FILED

November 25, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1996

TOMMIE L. HILL JR., ) C.C.A. NO. 02C01-9511-CC-00335

)

Appellant, )

)

) MADISON COUNTY

VS. )

) HON. WHIT LAFON

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

TOMMIE L. HILL, JR. JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

CCA/SCCF, P. O. Box 279

Clifton, TN 38425-0279 WILLIAM D. BRIDGERS

Assistant Attorney General

MARY ANNE QUEEN

Legal Assistant

450 James Robertson Parkway

Nashville, TN 37243

JERRY WOODALL

District Attorney General

SHAUN A. BROWN

Assistant District Attorney

225 Martin Luther Kind Jr. Drive

Jackson, TN 38301

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

In this case Appellant, Tommie L. Hill, Jr., appeals the summary

dismissal of his petition for post-conviction relief filed on June 1, 1995. Following

a careful review of the record in this case we affirm the judgment of the trial court.

1. FACTUAL BACKGROUND

On May 9, 1991, in Case No. 90-433, Appellant was convicted by a jury for

the sale and delivery of cocaine. On June 11, 1991, the trial court sentenced the

petitioner as a Range III offender to 25 years in the Tennessee Department of

Correction.

On April 26, 1993, Appellant appealed to this Court and raised four issues.

This Court held that: (1) testimony about Appellant’s character or reputation was

not error, and even if it was error, it was harmless; (2) the trial court properly

refused to allow into evidence the prior convictions of the informant; (3) the trial

court did not err by refusing to allow the testimony of a defense witness because

Appellant failed to lay a foundation for the testimony; and (4) Appellant was not

eligible for Range III punishment pursuant to Tenn. Code Ann. 39-17-417(c)(1),

and thus, the trial court erred in sentencing Appellant - State v. Tommy Lee Hill,

Jr., Madison county, C.C.A. 02C01-9212-CC-00285, Opinion filed December 1,

1993, at Jackson. This Court vacated Appellant’s sentence, remanded the case

to the trial court for resentencing, and affirmed the judgment of the trial in all other

respects. The trial court resentenced Appellant on December 14, 1994.
-3-

On September 11, 1991, in Case Nos. 90-432, 90-434, 90-1000, 90-1127,

91-198, 91-199, and 91-682, Appellant pleaded guilty to two counts of sale of

cocaine, theft over $1,000, possession of cocaine with intent to sell, possession

of a handgun while being a convicted felon, hindering a secured creditor, and

felony escape. Appellant did not appeal these conviction.

On June 1, 1995, Appellant filed a pro se petition for post-conviction relief

in Case No. 90-433 and Case Nos. 90-432, 90-1000, 90-1127, 91-198, 91-199,

and 91-682. He alleged that his guilty pleas in Case No. 90-433 and Case Nos.

90-432, 90-1000, 90-1127, 91-198, 91-199, and 91-682 were entered

unintelligently and unknowingly due to the ineffectiveness of his trial counsel.

On August 4, 1995, the trial court dismissed the post-conviction petition

and ruled: (1) the petition was filed outside the three year statute of limitations in

Case Nos. 90-432, 90-1000, 90-1127, 91-198, 91-199, and 91-682; and (2)

regarding Case No. 90-433, the petitioner alleged no grounds for relief.

2. STATUTE OF LIMITATIONS

It is clear that the petition for post-conviction relief, in so far as it relates to

cases 90-432, 90-1000, 90-1127, 91-198, 91-199, and 91-682, was properly

dismissed summarily since it is clearly barred by the applicable three year statute

of limitations. See. Tenn. Code Ann. §40-30-102 (Repealed). Appellant never

appealed his convictions in these cases and thus the time for filing for postconviction relief with respect to them expired on September 11, 1994. The

instant petition filed on June 1, 1995, is obviously time-barred.
-4-

Appellant claims that he did not discover his counsel’s alleged

ineffectiveness until December 14, 1994. In Burford v. State, 845 S.W.2d 204

(Tenn. 1992); our state supreme court held that a post-conviction petitioner must

be excused from the strict operation of the statute of limitations where a new

issue arises near the end of the limitations period or after the period thereby

depriving a petitioner of a fair opportunity to litigate the issue. Id. at 208.

In this case however, Appellant simply failed to discover the factual basis

of an alleged claim of ineffectiveness of counsel. Burford does not apply to a

post-conviction petitioner who simply slept on his rights to seek post-conviction

relief. Passarella v. State, 891 S.W .2d 619, 625-26 (Tenn. Crim. App. 1994).

Therefore, the post-conviction petition was time-barred and properly denied with

respect to the cases noted above.

3. CASE NO. 90-433 AND THE LACK OF A CONSTITUTIONAL CLAIM

Although the petition for post-conviction relief was timely filed with regard

to Case No. 90-433, it fails to state grounds for which post-conviction relief can

be granted. Post-conviction relief can be granted only when a conviction or

sentence is void or voidable because of an abridgement of a right guaranteed by

the federal or state constitutions. Tenn. Code Ann. § 40-30-105. The petition is

this case alleges that an involuntary guilty plea was entered in Case No. 90-433

as the result of alleged ineffectiveness of counsel. This is somewhat puzzling

since Appellant was convicted by a jury upon a plea of not guilty in Cae No.90-

433. Thus, we are unable to find a constitutional claim in the petition regarding

Case No. 90-433.
-5-

Where a post-conviction petition conclusively shows that the petitioner is

not entitled to relief, it is properly subject to summary dismissal. Tenn. Code

Ann. § 40-30-109; Givens v. State, 702 S.W .2d 578, 580 (Tenn. Crim. App.

1985). For these reasons the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

DAVID H. WELLES, JUDGE