### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs M

ay 21, 2002 CHARLES BRYANT v. STATE OF TENNESSEE Direct Appeal from the Circuit Court for Coffee County No. 31,323 L. Craig Johnson, Judge
No. M2001-02456-CCA-R3-PC - Filed July 26, 2002
Petitioner/Appellant, Charles Bryant, filed a petition for post-conviction relief on August 3, 2001, attacking his conviction on July 18, 1997, for violation of the Moto

r Vehicle Habitu

al Offender Ac

t. According to the allegations in the petition, there was no appeal from the conviction to which he pled guilty and received a sentence of four years as a multiple Range II off ender. The trial court summarily

dismissed the petitio

n because it was f

iled outside of the

applicable statu

te of limitations. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed. T HOMAS T. W OODALL , J., delivered th e opinion of the court, in which N ORMA M C G EE O GLE and J OHN E VERETT W ILLIAMS , JJ., joined. Charles Bryant, Nashville, Tennessee, pro se . Paul G. Summers, Attorne y General and Re

porter; Christine M . Lapps, Assistant A ttorney Genera

l; and C. Michael Layne, District Attorney General, for the appellee, State of Tennessee. OPINION On August

3, 2001, Petitioner actually filed three separate petitions for post-conviction relief in the Circuit Court of

Coffee County, Te

nnessee. Each p

etition was given th

e id e ntical docket number of No. 31,323. How

ever, it is clear

that three separ

atepetitions were filed. One attacked a conviction on June 22, 1998, for which Petitione r pled guilty to viola

tion of the Motor Ve

hicle Habitual Offender

Act and received a Range II sentence of three years. The second petition attacked a conviction on June 22, 1998, for driving under the influence, for which he received a sentence of eleven months twenty-nine days upon a plea of guilty. The two convictions on June 22, 1998, were the result of separate counts in Indictment No. 28,939F. The third petition dealt with a conviction in July 1997 for viola

tion of the Motor Ve

hicle Habitual Of

fender Act.-2-

However, the order filed b y the trial court fr om which this appea

l was taken, spec

ifically limits its ruling to

the petitio n for post-conviction relief regarding the July 1997 conviction for violation of the Motor

Vehicle Habitual Offender Act in which Petitioner received a sentence of four years. There is no order from the trial court in the record regarding the oth

er two petitions fo

r postco nviction relief. Theref ore, inasmuch as P

etitioner has pur

ported to appeal a

dismissal of those other two petitions, atta

cking his convictio

ns in Coffee County C

ase No. 28,939F,

the ap peal is dismissed. Regarding the petition for post-conviction re lief attacking th

e conviction in July 19

97, in CaseNo. 28,29 9F, we agree with the trial court that the petition violated the applicable one-year statute of limitations. See Tenn. Code Ann. § 40-30-202(a) (1997). Petitioner asserts that his sentence is an “illegal sentence,” which would toll the running of the statute of limitations. In s upport thereo f, he relies upon State v. Burkhart , 566 S.W.2d 871 (Tenn. 1978). Essentially, Petitioner argues that

he was sentenced as a Range II offender, but that he didnot have the suffi

cient number of pr

ior felony convic

tions to properly c

lassify him

as such. In his petition, he refers to a negotiated p lea agreement wherein he pled guilty and received sentencing as a Range II offender. Even if Petitioner was sentenced, pursuant to a negotiated plea agreement, as a Range II offender and he did not have sufficien t conviction s for this classification under Tennessee Code Annotatedsection 40-35-106(a), the sentence is not necessarily an “illegal sentence.” In McConnell v. State , 12 S.W.3d 795 (Tenn. 2000), our supreme court recogn ized th at in a negotiated plea ag reement, a defendant can be sentenced as a Range II offender, eve n if he or she woul d b e sentenced as a Range I offender

absent a negotiat

ed plea agreeme

nt, as long as the se

ntence is within the limits fixed for a Range II offender. Id. at 798. The sentence imposed upon Petitioner for the Class E felony offense of

violation of

the Motor Vehicle

Habitual Offend

er Act (four ye

ars) is within the parameters of a Range II sentence for a Class E felony. In McConnell , the supreme court stated as follows: Our

decision today in no way alte rs the ability of the

State and defend

ants to use offender class

ification and re

lease eligibility a

s subjects of plea

bargain ne gotiations. These elements of plea bargaining have been and still are properl y characterized as non-jurisdictional. Id. Finally, Petitioner alleges in his petition that he lacked the mental capacity to knowingly and voluntarily enter a guilty plea as a result of his diminished mental capacity. In order to toll the statute of limitations because of a petitioner’s mental status, he must show that he is unable either to

manage his person

al affairs or to u

nderstand his lega

l rights and liabiliti

es.-3-

Statev. Nix , 40 S.W.3d 459, 463 (Tenn. 2001). Furthermore, the statute cannot be tolledupon the “mere assertion of a psychological problem.” Id. The peti tion for pos t-conviction relief under consideration in this case falls far short of establishing that the statute of limitations should be

tolled based on an

y “diminis hed c apacity” of Petitioner. Therefore, the orde r of the trial court, summarily dismissing the petition without an evidentiary hearing because it was filed past the applicable statute of limitations, should be affirmed. CONCLUSION For the foregoing reas ons, the j udgment of the trial court regarding the post-conviction petition attacking the conviction in Coffee County Circuit Court Case No. 28,299F is affirmed. As the trial court did not f

ile a specific or

der dismiss ing the pos t-conviction petitions which attack Petitioner’s convictions in Coffee County Case No. 28,939F, the purported appeal from that action is dismissed.

____________________________________ THOMAS T. WOODALL, JUDGE