### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs S eptember 19, 2001

BARRY N. WADDELL v. STAT E OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County No. 96-C-1372 Cheryl Blackburn, Judge

No. M2001-00096-CCA-R3-PC - Filed October 17, 2001

TheAppellant, Barry N.Waddell, p roceeding pro se , appeals the DavidsonCounty Criminal Court’s summary dismissal of his petition for post-conviction relief. The post-co nviction court found Waddell’s petition was time-b arred. On appe

al, Waddell argu

es that: (1) his pet

ition was timel y filed, and (2 ) altern atively, if the petition was untimely filed, the statute of limitations was tolled under the holding of Dexter Williams v. Stat e , 44 S.W.3d 464 (Tenn. 2001). After review, we affirm the judgment of the post-conviction court dismissing the petition.

Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court is Affirme

d.

D AVID G. H AYES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J. and J ERRY L. S MITH , J., joined.
Barry N. Waddell, Pro Se , Tiptonville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore, So licitor General ; Kim R. Helper, Ass ist ant Att orn ey Gen eral ; Vi cto r S. Joh nso n III, D ist ric t At tor ney G eneral; and Roger Moore, Assistant District Attorney General, for the Appellee, State of Tennesse e.

OPINION
Factual Backgrou

nd

On March 13, 1997,

the Appellant, af

ter a trial by

jury, was c

onvicted of two (2

) counts of rape of a chil

d and two (2) coun

ts of aggrava

ted sexual battery

. He was sentenc

ed to seventy (70) year s in the Departmen

t of Correction. T

he Appellant file

d a direct appea

l challenging

his

con vic tio ns a nd s ent ence . On Jun e 1, 199 9, t his cou rt r edu ced t he A ppe lla nt’ s se nte nce t o si xtysix (66) years. See State v. Waddell
, No. 01C01-9801-CR-00016 (Tenn. Crim. App. at Nashville, June 1, 1999). The case was not remanded to the trial court because the sentence, as modified, was imposed by this court after de novo review; therefore, additional proceedings were1 The Appellant incorrec tly poi nts to Gibson v . State , 7 S.W.3d 47 (Tenn.Crim. App. 1998), asserti ng that “the Court of Criminal A ppeals, sitting in N ashville, held tha t for (sic) a perso n in the App ellant’s predic ament, shou ld first seek to file t

he delayed appeal

and if then theRule 11 [a ]pplication was denied , at that point in time , the one year sta tute of limita tions wou

ld then begin to run for the fi ling of a [p]etiti

on [f]or [p]ost-conviction [r]eli ef to allege any constitut ional violations involving the original conviction.” Not only does the Appellant misstate the hold ing of Gibson
, but Gibson involved a d issimilar factual sce nario bec ause, here, the Appellan t never pursu ed a Rule 1 1 appea l.

2 “A person in custody under a sentence of a court of this state m ust petition for p ost-convictio n relief under th is part withi

n one (1) year of the dat e of the fi

nal action of

the highest

state appell

ate court to whi

ch an appeal is taken or, if no appeal i s taken,

withi n one (1) y

ear of t he date on wh

ich the judg ment bec ame final, or considerati

on of such petiti on shall be barred.

The statute of

limitat ions shall

not be tolled f

or any reason, i

ncl uding any

tol ling or saving provision otherwise available at l aw or equity.” Tenn. Code Ann. § 40-30-202(a) (1997 ).

-2- not necessary. On August 17, 1999, the trial court entered the ame nded judgment form to reflect the action of the Co

urt of Criminal Appe

als.

On December 13,

1999, the Appellan

t’s attorney

informed the Appe

llant by lette

r that his direct appeal to the Court of Criminal Appeals had been denied, except for the sentence modification. Appe

llant’s counsel fu

rther opined that

a Rule 11 applicat

ion for permission t

o appeal to the Tennessee Supreme Court would be futile and for this reason, advised the Appellant that he was terminating further representation. On August 4, 2000, the Appellant, incarcera ted and proceedi ng pro se, mailed his petition for post-conviction relief seeking a delayed appea l of a Rule 11 application. The petition was received by the Davidson County Court Clerk’s Office and filed on August 11 , 2000. On Decemb er 12, 2000, the post-conviction cou rt summarily dismissed the Appellant’s petition for post-conviction relief as untimely filed in violation of the one (1) ye

ar statute of limita

tions.

ANALYSIS
The Appellant argues that his post-conviction petition seeking a delayed a ppeal was timely filed. 1 In order for the Appellant’s pe

tition to be timely

, it must have been f

iled within one (1) year of the date of the final action of the hig hest appellate court to which an appeal was taken. Tenn. Code Ann. § 40-30-202(a) (1997). 2 The Appellant’s conviction became final on June 1, 1999, when the Court of Criminal Appeals affirmed the Appellant’s convictions and modified his sentence, as this was the final action of the highest state appellate court to which an appeal was taken. Thus, under the Pos t-Conviction Act, th

e Appellant had un

til June 1, 2000, to file a petition for post-conviction relief. The Appellant did n ot file the instant p

etition until August 4, 2000, ou

tside the applica

ble limitations peri

od. Therefore,

the Appellant’s pe

tition is time-barred.

In the alterna tive, the A ppellant, citing Williams v. State , 44 S.W.3d 464 (Tenn. 2001), argues that ass

uming the petition

was untimely, due process con siderations should

toll the statute of limitations beca

use he may h

ave been depriv

ed by trial c

ounsel of a reaso

nable opportunity

to seek post-conviction relief. Specifically, the Appellant points to the following facts: (1) counse l unilaterally

terminated the Ap

pellant’s right t

o file a Rule 11 app

eal to the Tennessee Supreme3 Tennessee Supreme Co urt Rule 14 governs w ithdrawal of counsel for indigent defend ants. In th is case,

appellate counsel on direct appeal was r etai ned. Tenn. R. Cri

m. P. 37(e), de fines the duties o f counsel rega rding app eal:

Retainedcounsel fi

ling a n otic e of appeal, whether counsel be fully paid or not, shall represent the defendant on appeal, fully complying with all of the rules of t he appellate court

as to timely fil

ing and appearances therein, and shall be al lowed to withdraw

as suchcounsel of re cord on ly for good cause and if application is made whe n such attorney is not delinquent in his or her duties.

See also , Tenn. Su p. Ct. R. 8, D R 2-110 (Withdr awal from E mployme nt), Tenn. C t. Crim. App . R. 12.

Although the Appe llant acknow ledges that he was advised by letter of De cember 1 3, 1999 , of his retained c ounsel’s termina tion of further r epresentati

on, the case history of t

he direct appeal r

eflects t hat no withdrawal as counsel of record was ever entered as requ ired by the above cited rules.

-3- Court by fail

ing to notify

the Appellant of th

e decision of the C

riminal Court of App

eals until December 13, 19

99, more than six month

s after the deci

sion was issued; (2)

counsel failed to formally withdraw as the attorney of record within fourteen (14) days after the final dec ision of the Court of Criminal Appeals as required by Tennessee Supreme Court Rule 14; 3 (3) and as further required by Rule 14, counsel failed to notify the Appellant in writing that the Appellant could file a pro seRule 11 application for permission to appeal to the Tennessee Supreme Court.

In Williams , the Tennessee Supreme Court held that due process may require tolling of the statute of limitations for filing a post-conviction petition where the inmate/petitioner may have been deprived by his counsel of a reasonable opportunity to seek post-conviction relief. Id. at 467. Williams was remanded to the trial court “for an evidentiary hea ring to determine (1) whether d ue proce ss tolled t he statute of limitat ions so as t

o give the [inmate/pe

titioner] a reasonable opportunity after the expiration of the limitations period to present his claim in a meaningful time a

nd manner; and (2

) if so, whether th

e [inmate/petitione

r’s] filing of the

postconviction . . . was within the reasonable opportunity afforded by the due process tolling.” Id. at 471.

In Williams , the inmate/petitio ner was convicte

d of first degre

e murder and sen

tenced to life imprisonment in 1993. Id. at 465. On January 9, 1995, his conviction was affirmed by the Court of Criminal Appeals. Id. Thereafter, trial counsel terminated representation. “The [inmate/petitioner] averred that his trial counsel failed to notify him of counsel’s withdrawal from the case, or to explain to him his rights for filing a pro sepetition to” the Te nnessee Supreme Court. Id. Trial counsel filed a formal motion to withdraw on October 18, 1995, in which trial counsel sought permission for the [inmate/petitioner] to proceed with a delayed appeal to the Tennessee Supreme Court. Id. at 465-66. The trial court denied the request. Id. at 466. On November 8, 1999, trial counsel filed an application for permission to appeal to the Tennessee Supreme Court, which was denied as untimely. Id. Thereafter, on October 24, 1996, the inmate/pe titioner, proceeding pro se, filed a petition for post-conviction relief. Id. The petition was dismissed by the post-conviction court without a full evidentiary hea ring because the inmate/petitioner was unprepared to present evidence. Id. at 465.-4-

In the instant case, the Appellant argues that his case is exactly on point with Williams
, and we should rema

nd to the post-conv

iction court “for

the [a]ppointment of [c

]ounsel to represent the Appellant and for an [e]videntiary hearing to be [h]eld in [o]rder to determine if the facts as so alleged [warrant] the tolling of the one (1) yea r statute of limitations for filing the [p]etition. . . .” We disagree. In Williams , the inmate/petitioner averred that he believed trial counsel was continuing to represent him through the appeals process. The court remanded f or an evidentiary

hearing on gr

ounds that the inmat

e/petitioner mig

ht “have been de

nied the opportunit

y to challenge his conviction in a timely manner through no fault of his own but because of the possible misrepresentation of counsel.” Id. at 468.
The Appellant in th

e present case w

as not under the mis

taken belief tha

t he continued to be represented by trial counsel. The Appellant acknowledg es on appeal he was aware on December 13, 19

99, that his attorne

y was termin

ating any further repre

sentation. Althoug

h a Rule 11 application to the Tennessee Supreme Court was time-barred at the time trial counsel notified the Appellant of h

is withdrawal, the

Appellant had a r

easonable oppor

tunity, six (6) m

onths, in which to file a pet

ition for post-con

viction relief. H

is failure to file s

uch a petition did no

t result from the misrepresentation of counsel. Rather, this failure resulted from the advice of a prison paralegal. The Appellant, based upon the advice of the prison paralega l, believed the date the trial court entered the amended judgment form, August 17, 1999, to be the date of final action triggering the one (1) yea r statute of limitations. However, as previously discussed, under Tenn. Code. Ann. §40-30-202(a) this is not the correct date of final action. The lack of knowledge of statute of limitations provisions does not excuse late filings. Skinner v. State , No. 02C01-9403- CC-0039 (Tenn. Crim. App. at Jackson, July 13, 1994), perm. to appeal denied (Tenn. 1994). Therefore, summary dismissal of the Appellant’s petition was proper.

CONCLUSION
Based upon the foregoing reasons, we find that the Appellant’s petition for post-conviction relief is time-ba

rred. Accordin

gly, the jud

gment of the post-

conviction court s

ummarily dismissing the petition is affirmed.

___________________________________ DAVID G. HAYES, JUDGE