IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON OCTOBER 1999 SESSION

JOY NELSON, ) ) C.C.A. No. W1999-01885-CCA-R3-PC Appellant, ) ) Gibson County v. ) ) Honorable Dick Je rman, Jr., Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT : FOR THE APPELLEE : JOY NELSON, pro se PAUL G. SUMMERS TDOC No. 247472 Attorney General & Repor ter Mark H. Luttrell Rec

eption Center 6000 State Road J. ROSS DYER Memphis, TN 38134-7628 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 CLAYBURN L. PEEPLES District Attorney General EDWARD L. HARDISTER Assistant District A

ttorney General 110 South College Street, Sui te 200 Trenton, TN 38382-1841

OPINION FILED: ____________________________

______________ AFFIRMED ALAN E. GLENN, JUDGE



### O P I N I O N
The petitioner, Joy Nelson, appeals the Gibson County Circuit Court's denial of her petition for post-conviction re l ief withou t an evidentiary hear ing. After a review

of the 

# FILED
December 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk1 Although the record does no t indicate that the trial court’s dismissal of petiti oner's petition for post-convi cti on relie f was based on a finding that it was time-barred, based on the analysis contained in this opinion, the trial co urt would have erred had it granted an evid entiary hearing and appointed counsel. 2 record, we find that the peti tion is time-barred and affirm the dismissal of the trial cour t.

PROCEDURAL BACKGROUND The petitioner was indic ted for first degree murder on M arch 21, 1994

. In a plea bargain agreement

with the State, she pleaded guilty on April 10, 1995, to second degree murder and was sentenced to forty years incarceratio n i n the Tennessee Department of Correction as a Range I standard offender. Petitioner did not appeal this sentence.

On October 6, 1998, petitioner filed a pro se

petition for post-convic tion relief with the trial court. Her petition for pos t-conviction relie

f was dismissed on February 1, 1999. 1 Appeal was timely file

d.

ANAL YSIS The law co ntrol ling petitions for post-conviction relief is set out in the 1995 PostConviction Procedure Act. See Tenn. Code Ann. §§ 40-30-201 to -310. This new law went into effect on May

10, 1995. See id ., Compiler’s Notes. The ac t provides

for a statute of limitations for the filing of post-conviction relief petitions which states:

Except as provided in subsections (b) and (c) , a person in custody under a s

entence of a court of this state must petition forpost-convictionrelief under this part within one (1) ye ar of the date of the final action of the highest st ate appellate court to which an appeal is taken or, if no appeal is taken, withi n one (1) year of the date on which the judg ment became final, o r consideration of such petition shall be barred. The statute of l imitationsshall not be tolled for any reason, inclu ding an y tolling or saving provi sion otherwise available at law or equ ity. Time is of the essenc e of the right to file a petiti on for postconviction relief or motion to reopen established by this chapter, and the one-year lim itations period is an element of the rig ht to file such an action and is a condition upo n it s exercise. Except as specificall y provided in subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguish ed upon the expiration of the limita tions period. Tenn. Code Ann. § 40-30-202(a).
The exceptions to this one-year statute of limita tions are narrow: (1) retrospe ctive
a pplication of a new constitutional ri ght established by a r uling of the highest appe llat e court of the state or the U.S. Supreme C ourt; (2) new

scientific evidence est

ablishing that the petitioner is actually innocent; or (3) a previous conviction that was not a guilty plea3

that was used to enhance the sentenc e from which relief

is being sought has been held to be invalid. See id . § 40-30-202(b).

We review the recor

d to determine if it supports a fin ding that the petitionfor postconviction relief in this case is time-barred and, if so, w hether any except ions app ly to save the petition.
I. Application of Statute of Limitations At the time petitioner’s conviction became final on April 1 0, 1995, the statute of limitationsapplicable to post-conviction relief proceedings was three years. See id

. § 40- 30-102 (repealed 1995). Petitioner therefore had until April 10, 1998, to file a petition. On May 10, 1995, when the new act went into effect, petitioner became subject to the current statutory procedure as set out in the 1995 Post-Conviction Procedure Act. Because she
was still wi

thin the thr

ee-year st

atute of limita tions of the old Act, her rig ht to petition for post-convictionrelief remained viable. The language of the e nab ling provision for the 1995 Act provided such petitioners with a specific period for filing ending on May 10, 1996. See Carter v. State , 952 S.W.2d 417, 420 (Ten n. 1997). T his period worked to actually shorten what would have been petitioner’s ti me frame for filing under the old Act . In this case, application of the new statut e of limitations is not determi native be ca use when petitioner

filed for post-conviction re lief on October 6, 1998, her petition wastime-barred under both the new and old Acts.
Having determined that this petition for

post-con viction re lief is ti me-barre d, we next determine whether any exceptions applied to save the petition. Peti tioner does not argue any of the statutory excepti ons of Tennessee Code Annotated § 40-30-202 (b). Rather, she argue s that t he statute of limitations should not apply to her because the sentence itself is illegal. Petiti oner claims each of the followi ng to support her contention:

(1) that the sentence of forty years as a Range I offender violatest he statutory guidelin es of Tennessee Code A nnotated § 40-35-112(a)(1) and is an ille ga l sentence; (2) that she lacked mental capaci ty b oth as to the mens rea element of the offense and genera ll y as a condition tolling the statute of limitations; (3) that defense counsel caj oled, coerced, an d threatened her into accepting the pl ea agreement; and (4) that he r indictment fail ed to allege facts as to each essential element of the offense and failed to give her proper notice.2 For cases disapprovi ng such a sentencing structure, see Dixon v.State , 934 S.W.2d 69 (Tenn.

Crim. App. 1996); Woods v. State , 928 S.W.2d 52 (Tenn. Crim. App. 1 996); Ronald Lature McCray v. State , No. 02C01-9412-CC-00277, 1995 WL 568388 (Tenn. Crim. App., Jac kson, Se pt. 27, 1995); and George Cheai rs v. State , No. 02C01-9304-CC-000 70, 1994 WL 58333 1 (Tenn. Crim. App., Jackson , Oct. 26, 199 4).

3 For ca ses approving suc h a sentence structure, se

e, Gary Dewa

yne Donal d v. State , No. 01C01-9710-CR -004 81, 1998 WL 468646 (Te nn. Crim. Ap p., Nashvi lle, Aug. 12 , 1998), perm
. app
. denied (Tenn. Jan. 11, 1999); Terry L. Hic ks, Jr., v. Sta

te , No. 02C01-9503-CC-00071,19 96 WL 39386 (Tenn. Cri m. App., Jackson , Jan. 31, 1996), aff’d, 945 S.W.2d 706 (Tenn. 1997); and Darnell Gentry v. S

tate , No. 02C01-9304-CC-00052, 1994 WL 284115 (Tenn. Crim. App., Jackson, June 29, 199

4), perm
. app
. denied (Tenn. Oct. 3, 1 994). 4 First, as to the legality of petitioner’s plea bargain agreement wi

th the State, we are
aware of the decisions by this court supporting her contention that a sentence fa ll in g outside the span of years allocated to a specific range of offend er and a specific category
o f offense is illegal. 2 The law is not settled on the issue, and other pan els of this cour t have affirmed such “hybrid” sentences. 3

A source of the lack of clarity appears to be whether a sentence must fall within the overall felony class, as stated in the firs t columnof t he grid found in Tennessee Code Annotated § 40-35-101, or within the column under the offender range. I n Gentry v. State , this cou rt found that a defendant who entered a plea bar gain agreement for a forty- year sentence as a Range I offender for the offense of second degree murder had been legally sentenced because “[s]econd degree murder is a Class A offense and the possible ran ge of punishment is fifteen to sixty years.” Gentry , 19 94 WL 284115, at *3. Gentry is factually similar to this case. Our supr eme court, in Hicks v. State , cited the holding in Gentry and acknowledged the varied approaches to this issue that this court has taken. Hicks , 945 S.W.2d at 709. The Hicks court observedthat the legislature had evinced no intent in the Sentencing Refor m Act of 1 989 to “limit prosecutor’ s use of offender classification and release eligibility

as plea bargaining tool s” and affirmed the sentence of Terry Hicks, who pleaded g uilty to voluntary manslaughter, a Class C felony, and was sentenced t o te n years as a Range I offender. The overal l span of years for a Class C felony is three to fifteen years. The span for a Range I offender

is three tosix years, therefor e Hicks was sentenced outside the span for Rang e I.

We find the holding in Hicks controlling in this case where, as in Hicks , a sentence
was imposed that was outside the span of years of the offense, based on the agreed range of the offender, but within the ov erall statutory span of y ears for the class of felony

. Therefore , we conclude that petition er's plea bargain agr eement was valid and the5

sentence legal.

Petitioner

also alleges that her di minished mental capacity negated the mens rea elemen t of the offense and also tolled the statute of l imitations. There is nothi ng in th e record to support this con tention. The psychological ev aluation provided by pe titioner noted that peti tio ner was oriented to pers on, place, time, and situation an d was appropriately dressed and appeared normal. We find no basis for tol ling the s tatu te of limitations based on the mental state of the petitioner.

Petitioner

argues that she

was coerced by defense counsel into accepti ng an illegal plea agreemen t and tha t she did n ot enter her plea k nowingly, vol untarily, and inte lligently. We have already concluded that the agree me nt and sentence applied in this case were legal. Since the a lle gations do not fall with in any exceptions so a s to toll the statute of limitations, as previ ously discussed, the peti tion is time barred.

Petitioner

finally argues

that her indictment is constitutionally void because it does not allege all the elements necessary to constitute the offense of f irst degree murder. The indictment stated:

THE GRAND JURORS of GIBSON County, Tennessee, duly empaneled and sworn, upon their oath, present that ROBERT DUVALL, JOY NELSON & ELIZABETH ALL ISON on the

____ day of January, 1994, in GI BSON Co unty, Tennessee, and before the finding of thi s indictm ent, did unlawful ly, intentionally , d eliberately and with premeditation kill Ronnie Nelson, in violation of T.C.A. 39-13-202, all of which is against the peace and dignity of the St ate of Tennessee. Petitioner points to no essential element missing from this indictment, and we find none. Petitioner

had sufficient notice of the offense she was called to answ er. SeeTenn. Code Ann. § 40-13-202.
Petitioner further alleg es that the indictment failed to pr ovide her with sufficien t notice because it failed to alle ge the “date and times the murder w as allegedly committed byuse of a deadly weapon, i.e. , a gun, a knife, a stick, e tc. ” The indictment need not specify the time or place of the offense when ti me is not a material ingr edient of th e offense. See id

. § 40-13-207; see also Shadden v. State , 488 S.W. 2d 54 (Tenn . Crim. App. 1972), cert

. denied , 41 1 U .S . 9 09 , 9 3 S .Ct. 15 38 , 3 6 L .E d. 2d 19 9 ( 19 73 ). We conclude that the indictment w as valid.

CONCLUSION6 Petitioner

has pr esented no valid grounds to sav e her petition for post-conv iction relieffrom being time-barred. Addition ally, we note that we cannot treat this petition as a petition for

writ of habeas corpus because it was filed in Gibson Count y where petitioner entered her guilty plea, r ather than in Shelby

County were she is

incarcerated. See Tenn. Code Ann. § 29-21-105 (1980).

For the above stated reasons, we affirm the ruling of the trial court denying the petition for post-convic

tion relief.

_____________________________________

ALAN E. GLENN, JUDGE

CONCUR:

__________________________________ JOHN H. PEAY, JUDG E

__________________________________ NORMA McGEE OGLE, JUD GE