# FILED
July 8, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON MAY 1997 SESSI ON

ARTHUR MELVIN TURNER, * C.C.A. # 02C0 1-9607-CR- 00233

Appellant, * SHELBY COUN TY VS. * Hon. John P. Co lton, Jr., J udge STATE OF TENNESSEE, * (Post-Conv iction)

Appellee. *
For Appellant : For Appellee: Arthur Melvin Turner Charles W. Burson Pro Se Attorney Gen eral & Repor ter No. 13253-076 Federal Cor rectional Institute W illiam David Bridgers P.O. Box 34550 Assistant Att orney Gener al Memphis, TN 38134- 0550 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Lorrain e Craig Asst. Dist rict Attor ney General Criminal J ustice Center 201 Poplar Avenue, Suite 301 Memphis, TN 38103
OPINION FILE D:_____________________

AFFIRMED

PER CURIAM2 OPINION The petitioner, A rthur Melv in Turner, appeal s the trial court's deni al of his petition for post-conv iction rel ief. The issue presented for rev iew is whether the trial court correctly dismissed the petition without an evidentiary hearing on the basis that it wa s barred by

the statute of li mitations. We affirm the judgment of the t rial court.
This post-conv iction petit ion, filed Apri l 15, 1996, chal lenges the validity of three separate convictions : a March 17, 1971, guilt y plea to th ird degree burglary ; a May 23, 1974, guilt y plea to s econd degree bur glary ; and a Februar

y 28, 1983, guilty

plea. The petiti oner contends thes e sentences are being used to enhance a sentence received in federal court. He alleges that the guilty pleas were not knowing ly and voluntarily made. The trial court summaril y dismiss ed the petition as being ti me-barred.

In this appeal of right, the pe titioner makes several arguments as t o why hi s petition sho uld not be barred by the stat ute of limitations . First, he contends that the statute of l imitations does not apply because he is in custody of the feder al rather than state government. Th is court has previously held, however, that there is no distincti on under the post- convicti on act between a prisoner in federal custod y and one in state c ustody. Passarella v . State , 891 S. W.2d 619, 622- 23 (Tenn . Cri m. App. 1994). Als o, this court has upheld appli cation of the statut e of limitations against a federal prisoner. See Phillip Woody v. State , No. 03C01-921 1-CR-00396, slip op. at 5 (Tenn. Crim. App., at Knoxville, July 29, 1993). Thus, this contention is without mer it.
The petitioner al so contends that a pplication of the statute of3 limitations violates the ex post fact o provisi ons of both the state an d federal constitutions . Our court s have consi stently rejected this a rgument. See Stat e v. Richard S. B utler , No. 1338, sl ip op. at 3 (Tenn. Crim. App., at Knoxvi lle, May

19, 1992). See also William Lynn Johnson v . State , No. 02C01-9605-CR-00136, slip op. at 5 (Tenn. Cr im. App., at Jac kson, June 10, 1997)

.

Next, the petitioner argues that the new Post-Conviction Procedu re Act creates a one- year w indow in w hich any pet itioner may file. Effective May 10, 1995, the new Post- Convicti on Procedure Ac t replaced the prior act i n its entirety. See 1995 Tenn. Pub. Act 207, §§ 1 and 3. Because this petitio n was filed in April of 1996, the new ac

t applies. The most recent leg islation replaced a three- year w ith a one-year l imitation:

(a) ...[A] pe rson in cust ody under a s entence of a court of this state must

petition for pos t-convic tion relief under this part w ithin one (1) year of the dateof the final action of the highest state app ellate court to which an appeal is taken or, if no appea l is taken, within one(1) year of the date on whic h the judgment became final, or consideration of such petition shall be barr ed. The statute of limitat ions shall n ot be tolled for an y reason... . (b) No cour

t shall have jurisdic

tion to consid er a petition filed after such time unless: (1) The claim in the petitio n is based upon a final ruling of an ap pellate court establishin g a constit utional right that was not recognize d as exist ing at the ti me of trial, if retrospective application of that right i s required. Such petition must be filed wi thin one (1) year of the ruling of the highest stat e appellate cour t or the Unit ed States [S]upreme [ C]ourt establ ishing a constitutional right that was not recognize d as exist ing at the ti me of trial; (2) The claim in the petitio n 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 t he petition seek s relief from a sen tenc e that w as en hanc ed be caus e of a previous conviction and such conviction in the case in4 which the claim is as serted was not a guilt

y plea w ith an agreed sentenc e, and the prev ious convi ction has subsequently

been held to be i nvalid, i n which case the petition must be filed withi n one (1) year of the finality of the ruling holding the previous convicti on to be inval id. Tenn. Code Ann. § 4 0-30-202 (Supp. 1996 ).

Because the conv ictions in this case beca me final in 1971, 1974, and 1983, this petit ion appears to ha ve been barred not only by the current o ne-year statute of limitat ions but also the former three- year statut e. Moreover, the gr ounds raised in thepetition and on a ppeal do not appear to fall wi thin any of the ex ceptions set out in Tenn. C ode Ann. § 40-30-20 2(b)(1), ( 2), or (3) (Supp. 1996).

In Arnold Cart er v. Stat e , No. 0 3C01- 9509-C C-002 70 (Tenn . Cri m. App., at Knoxv ille, July 11, 1996), appeal granted , (Tenn., Dec. 2 , 1996), a panel of this court, by a two-to-one marg in, ruled that the literal terms of the new statute created a one-year window , starting on May 10, 1995, during which post -convic tion petitions may

be filed, notw ithstanding the date of the judg ment: This act shall take eff ect upon becoming a law, the public welfare req uiring i t and shall g overn all petitions for po stconvicti on relief filed after this date, and an y motions which may

be filed after this

date to reopen peti tions for post-convi ction reli ef which were concluded pr ior to the effective date of this

act. Notwithstanding any other provision of this act to th e contra ry, any perso n having a ground for rel ief recogniz ed under this ac t shall have at least one (1) year from the eff ective date of this act to file a petition or a motion to reopen u nder this act

. 1995 Tenn. Pub . Act 207, § 3 (emphasis adde d).

This majority

found no ambiguiti es in the termi nology of the statute despite the reas onable argument by the diss ent to the contra ry. In Carter , our supreme court g ranted the state' s applicatio n for permissio n to appeal. While no decision has yet been filed, other panels of this court have adopt ed the dissenti ng5 view in Carter

and have held that the new a ct did not create a new one- year fili ng period. See, e. g. , Ronald Albert Brummitt v. State , No. 03C01-951 2-CC-00415 (Tenn. Crim. Ap p., at Knoxv ille, Mar . 11, 1997); Jimmy Earl Lofton v. State , No. 02C01-9603-CR -00073 (Tenn. Cr im. App., at Jac kson, Mar. 7 , 1997); Roy Ba rnet t v. State , No. 03C01-9512-CV-00394 (Tenn. Crim. App., at Knoxville, Feb. 20, 1997 ); Stephen Koprowski v. S tate , No. 03C01-951 1-CC-00365 (Tenn. Crim. App., at Knoxvil le, Jan. 28, 1997) ; Johnny L. Butl er v. Stat e , No. 02C01-950 9-CR-00289 (Tenn. Crim. Ap p., at Jackson, Dec. 2, 1996). A majority of this panel now

adheres to the holding in these subseq uent cases. Thus, treating th e petition as on e for post-convi ction reli ef, this claim i s barred by the statute of li mitations under the new Act.
The petitioner al so argues he is entitled to relief under the principl es announced in State v. Fr azier , 784 S.W.2d 927 (Tenn. 1990); State v . Newsome , 778 S.W.2d 34 (Tenn. 1989); and State v. McClintock , 732 S.W.2d 268 (Tenn. 1987). Frazier

held that Boykin was not to be applied retr ospectivel y and that Mackey vi olat ions

that exc eede d themand atesof Boykin were not s ubject to rev iew during a post-convic

tion proceeding

. Frazier , 784 S.W.2d at 928. News ome held that the h arml ess error r ule appl iesto v iol atio ns of Mackey

. News ome , 778 S.W.2d at 38. Neither Frazier

nor News ome created a new constitutiona l right to be applied retroactively. The pla in languag e in McClintockprovides that the ruli ng only applies to litig ants already

in the "pipeli ne." McClintock , 732 S.W .2d at 274. None of th ese rul ing s affo rd t he pe tit ione r an y reli ef.

The petitioner al so argues t hat the former post- convicti on statute of limitations does not apply to guilty proceedings

unless an acti on is filed in the highest stat e appellate cour t. Our cour

t has routinel y held that the statute of6 limitations on guilty pleas commences "when th e judgment of conviction [is] entered." Sharon Ann Conner v. State , No. 03C01-950 9-CC-00279, slip op. at 2 (Tenn. Crim. Ap p., at Knoxv ille, June 3, 1996).

The petitioner al so argues t hat the applicat ion of the statute of limitations to his case deni es him due proces s of law and t hat the post-conv iction court erred when it di d not find an exc eption to the stat ute of limitations in this cas e. In Burford v. S tate , 845 S.W.2d 204 (Tenn.1992), our supreme court carved out a
narrow ex

ception to the thr

ee-year statute of limitati ons. Burford had bee n sentenced as a habi tual crimina l to a term of li fe imprisonment based upon five pri or robbery convictions

. Id. at 205. He filed a timely p ost-convi ction petiti on, allegi ng that certain of his five prior robbery convictions were constitutionally infirm be cause he had not been ad vised of his right against self-incrimination bef ore entering his plea; he wa s granted post-convic tion relief from th ese convic tions. Id. Later, after the three-year statute of li mitations had ex pired, Burford fil ed a petition to set aside the finding of habit ual criminal ity on the b asis that there was no l onger a sufficien t number of prior felony

convicti ons to quali fy him for the enhanc ed punishment. Id. at 206. Our supreme court ruled th at the statute of limita tions, while generally compliant with constitutional due pro cess, violated Burford's specific du e process rights: If consideration of the petition is barred, Burfor

d will be forced to serve a persistent offender sentence that was enhanced by previous conv ictions that no longer stand. As a re sult , Bur for d will b e fo rced to se rve an exces sive sentence in v iolation of his rights unde r the Eight h Amendment to the U.S. Constitution, and ArticleI, § 16 of the Tenne ssee Constitution, which, by definition, are fundamental rights

entitled to hei ghtened protect ion. Burford , 845 S.W.2d at 209.

In Sands v. Stat e , 903 S.W .2d 297 (Tenn.19 95), our supreme court1 Th e thre e-yea r statu te of lim itations was pas sed in 198 6. See Tenn. Code Ann. § 40-30- 102 (repealed 1995 ). 7 further defined how

to apply th e Burford test. A cour t must: (1) determine when the limitations period would normally have begun t o run; (2) determine wh ether the gr ounds for relief actually arose afte r the limitations period would normally have commenced; and (3) if the grounds are "later aris ing," determi ne if, under the facts of the case, a strict application of the limitat ions period would effectively deny the petit ioner a reason able opportunity to present the claim. In making this final determinati on, courts should carefully weigh the petitioner's liberty interest in "collaterall y attacki ng constitut ional vi olations occur ring during the conviction process," against the State 's interest in preventing the litig ation of "stale and fraudulent claims ." Sands , 903 S. W .2d at 3 01 (citat ions om itted) (qu oting Burford , 845 S.W.2d at 207, 208).
By the use of thes e guidelines , we have first determi ned that the statute of limitat ions for this p etitioner's convicti ons expired in 1989. 1 The petitioner's

argument fails

at the second st ep. He arg ues his pleas were inv oluntary. The right to the voluntariness of a guilty plea was established well befo re petitioner's convicti ons were en tered. See, e.g. , Boyk in v. Alabam a , 395 U.S. 238 ( 1969). Thus, he has not esta blished that a constitutional right ar ose after his con victions became final or after his statute of li mitations ex pired. To the ex tent the petitio ner argues his pleas are invalid because he was not advised that the con viction could be used to enhance a s ubsequent punis hment, that portio n of the advice litany i s not constitutional ly req uired. Our supreme court has ruled that the "advice [that the convicti on may be used to enhance a future sente nce] ... is not based upon any constitutional provisi on, federal or st ate... such omis sions have no validi ty on the ... post-convi ction proceedi ng." State v. Prince , 781 S.W .2d 846, 853 (Tenn . 1989).8 This court is

compelled to comment on the 1983 gui lty plea. The petition states that this conviction occurred on "February 28, 1993." The state did not file an answer indicati ng when th e convicti on occurred. The trial cour t's order dismissing the petition al so did not indi cate the date of conv iction. Our court, however , takes judic ial notice of the fact that the conv iction in th is case occu rred on February 28, 1983, and that the petition contai ns a typog raphical er ror. "The cour ts may ta ke jud icial notic e of the court records in an e arli er pro ceedin g of thesame case and the acti ons of the courts t hereon." Delbridg e v. State , 742 S.W.2d 266, 267 (Tenn. 1987). I n addition, appel late courts a re authoriz ed to supplement incomplete records. Tenn. R. App. P. 24(e). According ly, w e have supplement ed the record w ith a copy of the judgment and conclude that the conviction did, in fact, become final on Febr uary 28, 1983.

If judgment had been ent ered on Februar y 28, 1993, as

alleged, th e petitioner would have file d a timely petition. In Betsy Jane P endergrast v. State , No. 01C01-9607-CC-00289, slip op. at 3 (Tenn. Crim. App., at Nashville, May 16, 1997), this court r uled that the new Post-Conv iction Act g ives indi viduals w hose statute of limitations had not yet r un a year from t he effective date of the n ew Act unti l May 10, 1996.
We emphasize that the state has a n obligati on to file porti ons of the record "that ar

e material to t he questions raised therei n." Tenn. Code Ann. § 40-30- 208(b) (1996 Sup p.). "It is the role of the State, and not the cour t, to file those p arts of the record that are material to the questi ons raised i n the petition." Allen v. State , 854 S.W.2d 873, 875 (Tenn. 1993).

We af firm the judgment of the trial cour t.9 PER CURIAM Joe B. Jones, Pr

esiding Ju dge Gary R. W ade, Ju dge John H. P eay, Judge