### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 2, 2001
ERIC WRIGHT v. STATE OF T ENNESSEE
Direct Appeal from the Criminal Court for Shelby County

No. P-24313 Joseph B. Dailey, Judge

No. W2001-00386-CCA-R3-PC - Filed Decem ber 17, 2001

The Petitioner filed a

petition for

post-conviction relief on December 11, 2000, in which he attac ked convictions entered in September 1990 and upon which final appellate a ction was taken in 1992. The post-conviction court dismissed the petition without a hearing, because it was filed outside the statute of limitat ions. Conc luding that the post-conviction court erred by dismissing the petition without an evidentiary hearing, we rever se and remand to the post-c onviction court for such a hearing. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t Rever sed and Remanded

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., joined and J OSEP H M. T IPT ON , J., filed a dissenting opinion. Eric Wright, Only, Tennessee, Pro Se

. Paul G. Summers, A ttor ney Gene ral and Re

porter; K im R. Helpe

r, Assista nt Attorne

y Gener al; William L. Gibbons , Distric t Attorne y Gener al; and Stephen P. Jone s, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

I. PROCEDURAL BACKGROUND

The Petitioner, Eric Wright, is presently serving an effective sente nce of 150 year s in th e Tennessee Department of Correction, as a result of his convictions for one count of robber y by the
use of a deadly weapon and two counts of assault with intent to commit murder in the first degree. The convictions and sentences were affirmed on a ppeal by this Court. See State v. Eric R. Wright , No. 02C01-9107-CR-00152, 1992 WL 1414 (Tenn. Crim. App., Jackson, Jan. 8, 19 92). A time ly application for per

mission toappeal w as not file d. On Apr il 27, 2000, the Petitioner filed a motion for appointment

of counsel to file a Rule 11 application for permission to appeal. See Tenn. R. App. P. 11. On May 8, 2000, the Tennessee Supreme Court filed an order denying the Petitioner’s motion1 Although t he post- con viction cou rt cites Jan uary 9, 19 92 a s the d ate of “final appellat e acti on”, the corr ect date is Januar y 8, 1992.

2 See supra note 1 (concerning correct date).
-2- for appointment of counsel to file a Rule 11 application for permission t o ap peal, in w hich it indicated that “the

[Petitione

r’s] re course i s to file a

post-con viction pe

tition alle ging ine ffective assistance of counsel and seeking a delayed appea l. The Court expresses no opinion at this time as to the timeliness of such a petition.”

On Decemb er 11, 20 00, the Pe titi oner fil ed his post-conviction petition. On January 10, 2001, the post- convicti on court en tered an order containing the following findings of fact and conclusions of law: 1. The Petition was filed with the Shelby County Criminal Court Clerk on December 11, 2000. 2. The Petition attacks judgments of conviction from September 20, 1990. 3. The final appellate action on the judgments of convictions was when the Court of Criminal Appeals affirmed the convictions on January 9, 1992. 1 4. The Petition alleges no f acts whic h would toll

the statut e of limitati ons for po stconvicti on petition s. 5. Taking all the alleg a tions in the Petition as true, the Petition is filed outside the statute of limitations

. 6. Taking a

ll the alle gations in

the Petitio n as true , the judgm ents of conviction are not void on their face. The Court hereby orders that the Petition be DISMISSED without a hearing. Tenn. Code Ann. § 40-30-206(b).

II. ANALYSIS

The Petitioner claims that he was represented ineffectively be cause hi s attorne y failed to pursue an appeal of his conviction from this Court to our Supreme Court. As the Tennessee Supreme Courtstated i n its order filed on May 8, 2000, “the judgment of the Court of Criminal Appeals was file d on Janua ry 8, 1992 . Counsel f

or the De fendant failed to notify his c li e nt that judgment had bee

n render ed, fail ed to file

a motion to withdraw pursuant to Supreme Court Rule 14, and failed to file a

Rule 11 ap

plication withthis Court. The time f or filing a Rule 11 ap

plication to this Court expired on March 9, 1992.”

The post-conviction court’s order dismissing the petition includes findings that “the final appella te action on the judg ments of convictions was when the Court of Criminal Appeals affirmed the convictions on January 9, 1992.” 2 The petition for post-conviction relief was filed on Decembe r 11, 2000.

As the State points out in its brief, under the Post-Conviction Procedure Act of 1995, a petition must be filed “within one (1) year of the date of the fina l action of the highe st state a

ppellate-3-

court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of such petition shall be barred.” Tenn. Code Ann. § 40-30-202(a). Since Petitioner’s judgments were entere d prior to the Post-Conviction Procedure Act of 1995, the Petitioner was entitled to a peri o d of one year following the effective date of the act (May 10, 1995) in which to file his petition for post-conviction relief. Carter v . State , 952 S.W.2d 417, 419 (Tenn. 1997).

Under the Post-Conviction Procedure Act of 1995, exceptions to the statute of limitations
are explicitl

y set for th. These include c laims base d upon a ne w rule of constituti onal law a

pplicabl e to a petitioner’s ca se, clai ms based u pon new sc ientific

evidenc e sh owi ng innoce nce, an d claims based upon enhanced sentences that wer e enhanced because of convictions subseque ntly found

to be illegal. Tenn. Code Ann. § 40-30-202(b)(1)-(3).

The Tenness ee Supre

me Court ha s recently h eld that strict application of the statute of limitations may not den y a Petiti oner “a reasonable opportunity to assert a cla im in a meaningful time and manner.” Seals v. Sta te , 23 S.W.3d 272 , 279 (Te nn. 2000) (applyin g this rule to me ntally incompetent

petitione rs). Add it ional ly, the Tennessee Supreme Court has recently held that the statute of limitati ons might be

tolled in a

post-con viction c ase if “ due proc ess concerns surrounding possible attorney misrepresentation” exist. Williams v . State , 44 S.W.3d 464, 471 (Tenn. 2001). In Williams , our supreme c ou rt affirmed this Court’s remand to the trial court for an evidentiar y hearing to determine whether due process tolled the statute of limitations so as to give the appellee
a reasona ble oppor tunity aft er the e xpiration of the limitations p eriod to pres ent his claim in a meaningful time and manner and to determine whether the appellee’s filing of his post-conviction petition was within the reasonable opportunity afforded by the due proc ess tolling. Id.

In this case , the peti tion for p ost -conviction relief was clearly filed beyond the statute of limitations

. In dismissi ng the pet it ion witho ut a hearing, the trial court found that “the petition alleges no facts which would toll the statute of limitations for post-conviction petitions.” However, the pro se petition contains an allegation that the Pe titioner’ s attorne

y did not effectively pursue the appeal of his convictions. The Petitioner attached to his petit

ion what a

ppears t o be a “petition for discipline” concer

ning his at

torney which sets forth in d etail the allegations of ineffective representationby the attorney on appeal. Based on the Williams case, w e conclu de that the postconviction court erred in dismissing the petition without conducting an evidentiary hearing to make determinations similar to those outlined in Williams

. See id. Specifically, the post-conviction court should conduct an evidentiary hearing to determine “(1) whether due process tolled the statute of limitations so as to give the [Petitioner] a reasonable opportunity af ter t he expiration of the limitations period to present his claim in a meaningful time and manner; and (2) if so, whe ther the [Petitione r’s] filing of the post-conviction petition [in December 2000] was within

the rea sonable opportunity afforded by the due process tolling.” Id. Accordingly, we REVERSE the judgment of

the post- convicti on court a nd REMAND

this matter to the post-conviction court for an evidentiary hearing to deter mine the a

bove-sta ted issue s.-4- __________________________________ ROBERT W. WEDEMEYER, JUDGE