IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 18, 2012

TOM PERRY BELL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

Nos. 283823, 283824 Don W. Poole, Judge

No. E2012-01141-CCA-R3-PC - Filed January 10, 2013

The petitioner, Tom Perry Bell, appeals the summary dismissal of his petitions for postconviction relief, wherein he challenged his 1983 conviction of petit larceny and his 1978

conviction of receiving stolen property. Because the petitions are time-barred and because

the petitioner failed to establish grounds for tolling the statute of limitations for filing a

petition for post-conviction relief, we affirm the judgments of the post-conviction court.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which JOSEPH M.

TIPTON, P.J., and CAMILLE R. MCMULLEN, J., joined.

Tom Perry Bell, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Assistant

Attorney General, for the appellee, State of Tennessee.

OPINION

On May 1, 2012, the petitioner filed separate petitionsfor post-conviction relief

in the Hamilton County Criminal Court challenging his June 7, 1983, guilty-pleaded

conviction of petit larceny and his January 20, 1978, guilty-pleaded conviction of receiving

stolen property valued at less than $100. The petitioner alleged that the guilty pleas in both

cases were not knowingly, intelligently, and voluntarily entered and that both were the

product of the ineffective assistance of his trial counsel. Additionally, the petitioner alleged

that the trial court failed to follow the requirements of Rule 11 of the Tennessee Rules of

Criminal Procedure when accepting his guilty pleas. The post-conviction court summarily

dismissed both petitions as time-barred, specifically finding that the petitioner had failed to
establish statutory or constitutional grounds for tolling the statute of limitations for filing a

petition for post-conviction relief.

In this timely appeal, the petitioner contends that the post-conviction court

erred by dismissing the petitions as untimely, arguing that because the 1978 and 1983

convictions were used to enhance the sentence imposed for his 2010, guilty-pleaded

conviction of burglary, he is presently “in custody” by virtue of those convictions. He claims

that although the sentence imposed for each conviction has been served, use of the

convictions for enhancement purposes avails him the right to collaterally attack the decadesold convictions via a petition for post-conviction relief despite the one-year statute of

limitations. The State asserts that the post-conviction court properly dismissed the petition

as time-barred.

“[A] person in custody . . . must petition for post-conviction relief . . . within

one (1) year of the date of the final action of the highest state appellate court to which an

appeal is taken.” T.C.A. § 40-30-102(a) (2006). “If it plainly appears from the face of the

petition, . . . that the petition was not filed . . . within the time set forth in the statute of

limitations, . . . the judge shall enter an order dismissing the petition. The order shall state

the reason for the dismissal and the facts requiring dismissal.” Id. § 40-30-106(b). The

statute of limitations for filing a post-conviction petition is jurisdictional. See id. § 40-30-

102(b) (“No court shall have jurisdiction to consider a petition filed after the expiration of

the limitations period unless [certain statutory prerequisites are met].”). Our supreme court

has held that “the one-year statutory period is an element of the right to file a post-conviction

petition and that it is not an affirmative defense that must be asserted by the State.” State v.

Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is incumbent upon a petitioner to include

allegations of fact in the petition establishing either timely filing or tolling of the statutory

period,” and the “[f]ailure to include sufficient factual allegations of either compliance with

the statute or [circumstances] requiring tolling will result in dismissal.” Id.

A petition for post-conviction relief filed outside the one-year statute of

limitations may nevertheless be considered if its allegations fall within three rather narrow

exceptions:

(1) The claim in the petition is based upon a final ruling of an

appellate court establishing a constitutional right that was not

recognized as existing at the time of trial, if retrospective

application of that right is required. Such petition must be filed

within one (1) year of the ruling of the highest state appellate

court or the United States supreme court establishing a

constitutional right that was not recognized as existing at the

time of trial;

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(2) The claim in the petition is based upon new scientific

evidence establishing that such petitioner is actually innocent of

the offense or offenses for which the petitioner was convicted;

or

(3) The claim asserted in the petition seeks relief from a

sentence that was enhanced because of a previous conviction

and such conviction in the case in which the claim is asserted

was not a guilty plea with an agreed sentence, and the previous

conviction has subsequently been held to be invalid, in which

case the petition must be filed within one (1) year of the finality

of the ruling holding the previous conviction to be invalid.

T.C.A. § 40-30-102(b)(1)-(3). Additionally, due process principles may, in very limited

circumstances, require tolling of the post-conviction statute of limitations. See generally

Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

To determine whether due process requires tolling of the statute of limitations, we must

determine “when the limitations period would normally have begun to run”; “whether the

grounds for relief actually arose after the limitations period would normally have

commenced”; and, finally, “if the grounds are ‘later arising,’ determine if, under the facts of

the case, a strict application of the limitations period would effectively deny the petitioner

a reasonable opportunity to present the claim.” Sands v. State, 903 S.W.2d 297, 301 (Tenn.

1995).

In this case, the petitioner challenged his 1978 and 1983 convictions via postconviction petitions filed in 2011, decades after the judgments in both cases became final.

None of the statutory grounds for tolling the statute of limitations apply. Moreover, due

process principles do not require tolling the statute of limitations in either case because the

petitioner’s claims for relief, involuntary pleas and deprivation of the effective assistance of

counsel, are not “later-arising.” Finally, although a petitioner generally may use a postconviction petition to challenge a conviction that is used to enhance a later conviction, even

if the sentence for the earlier conviction has been served and has expired, see, e.g., Hickman

v. State, 153 S.W.3d 16, 23 n.4 (Tenn. 2004) (“The language ‘in custody’ has long been

broadly construed to permit persons to collaterally challenge, by means of a post-conviction

petition, a judgment of conviction that later may be used to enhance a sentence on another

conviction. Such challenges have been allowed even if the sentence on the challenged

conviction has been served or has expired at the time the post-conviction petition is filed.”),

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he must do so within the statute of limitations or demonstrate that tolling of the limitations

period is required. The petitioner in this case has done neither.

Accordingly, the judgments of the post-conviction court are affirmed.

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JAMES CURWOOD WITT, JR., JUDGE

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