# FILED
January 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1997

PERRY McDONALD, ) ) No. 03C01-9703-CC-00103 Appellant ) ) BRADLEY COUNTY vs. ) ) Hon. STEVE R. BEBB, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant : For the Appellee : Perry McDonald, Pro Se John Knox Walkup Northeast Correctional Attorney General and Repor ter Center, No. 240535 P. O. Box 5000 Timothy F. B ehan Mountain City, TN 37683- 5000 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The State correct ly arg ues that t he appellant faile d to fil e his noti ce of appeal wi thin t he thirty day time p eriod allowe d by Rule 4 of the Te nness ee Ru les of Ap pellate Pro cedure

. See Tenn. R. App. P. 4(a). However, in the i nterest of justice , we address the appellant ’s clai ms.
2 The trialcourt’s “

Order of Dismissal”

reflect s “[t] hat the ent ry of t he judgment in [5] fiv e of these c ases w as Oc tober 17 , 1994, an d in one c ase the date of J anuary 25 , 1995.” 2 OPINION
The appellant, Perry McDonald, appeals the judgment of th e trial court summarily dismiss ing his

petiti on for pos

t-conv iction relief. 1 His petition alleges that he is currently servi ng an effective sentence of sevent y-six years imprisonment following his convictions for espec ially aggrav

ated kidnapping, aggrav ated rape, aggravated robbery, two counts of aggravated burglar y, and theft. Judgments of conv iction were entered on October 10, 1994, following the appellant’s guilty pleas to these offenses. 2 In his pro se petition, he alleges as grounds for relief: (1) involuntary guilty pleas; (2)

ineffective assistance of counsel ; and (3) defective indictment. The trial court found the appellant’ s claims barred by the statute of limitations. The appellant app eals from this ruling.

After revi ew, we affi rm.

ANAL YSIS
The appellant argues that the tr ial court erred in rul ing that his petition istimebarred for two reasons. F irst, on the date his gui lty pleas were enter ed, the applicable statute of limitati ons period was three y ears. See Tenn. Code Ann. § 40- 30-102 (repealed 1995). Accor dingly, he argues that any reduction of the three y ear period v iolates due proc

ess and t he dicta

tes of Sands v. State , 903 S.W.2d 297, 301 (Tenn. 1995). In further support of th is position, he cites as authority this court’s decision in Carter v. State , No. 03C01-9509-CC-00270, (Tenn. Crim. App. at Knoxville, July

11, 1996), rev’d , 952 S.W.2d 417 (Tenn. 1997). Second, the3

appellant contends that his cl aim of a defective indictment rai ses “subject matter jurisdictional quest ions” which may be pr esented at any time and cannot be w aived. Specifically, he argue

s that the indictment languag e charging him with aggravated rape failed to charge a criminal offense. In suppo rt, the appellant cites State v. Hill , No. 01C01-9508-CC-00267 (Tenn.Crim. App. at Nashvil le, June 20, 1996), rev’d , 954 S.W.2d 725 (Tenn. 1997). The appellant’s relianc e upon Carter

and Hill is misplaced. Both of these cases hav e been reversed by our supreme court. Carter, 952 S.W.2d at 417; Hill 954 S.W.2d at 725.
We note that the challenged indictment in Hill and the instant case invol ve the same criminal offense, aggrav ated rape. Thus, Hill is the law of the case. Moreover, the challeng ed indictment in the present cas e was not included in the record. It is incumbent upon the appellant to prepare a record th at includes all material necessary for r eview of his appeal. See Tenn. R. App. P. 24(b). Absent the necessary relevant material in the record, an appellate court cannot consider the merits of the issue. State v. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993). Accordingly, w

e find no merit to the appellant’s argument that the indictment w as defective.
In reference to the appellant’s du e process claim, we notethat his petition for postconviction relief w

as filed on October 2, 1996. Thus, hi s petition is gover ned by the Post-Conviction Proc

edure Act in effect on the date of filing.In Daniels v. State , 03C01-9606-CC-00244 (Tenn. Cr im. App. at Knoxville , Feb. 27, 1997), perm. to appeal denied, (Tenn. Sept. 29, 1997), we articulated three categories of petitio ners created by the 1995 Post-Co nviction Procedure Act , which was in effect on the date this petition was filed. The new Post-Convicti on Procedure Act became effective May 10, 1995 , reducing the statute o

f limitation s period from three years to one year. Tenn. Code Ann. § 40-30-202(a) (1995 Supp.) Section 3 of Tenn. Pub. Act 207, which is not codified, but is noted in the Compi ler’s Notes, Tenn. Code Ann. § 40-30-201 (19 95 Supp.), provid es that “any perso n having4

ground for relief recogni zed under this part shal l have at least one year from May 10, 1995, to file a petition . . . under this part.” Thus, the limitation provision of the new Act , in effect, creates three potential categories of petitioners, wh ose petition is filed on or after May 10, 1995. (1) Those petitioners whose three-yea r statute of limita tions has extinguish ed any rem edy available under the Act; (2) Those petitioners whose three-year period was “cut short” by the enactment of the new one-year statute of limitations. The effe ct upon the petitioner in this group is that the three-y ear limitations period w ill be reduced to one year plus the period from the date of the pe titioner’s final conviction and May 9, 1995. Finally, (3), . . . those petitioners whose three year li mitation period expired d uring the period between May 10, 1995, and May 9, 1996. A petitioner in this category would, i n effect, be granted an enlargement of the three year limitation perio

d, conceivably to a max imum period of one day less than four years

. . . . The legislative intent

behind the Act is clear, i .e., “to limit the number of post-conviction petitions that a defendant could file and to reduce the time in which he could file them.” See Carter , No. 03C01- 9509-CC-00270 (Welles, J., dissenting). The appellant falls within the second category. Si nce he was convicted i n 1994 and 1995, his time to file a post-co nviction petition w as effectively “cut shor

t” by the new Act which went into

effect on May 10, 1995. Instead of hav ing three years from the date of the conviction in w hich to file a petition for post-conviction relief, the appella nt had on ly from th e date of his convict ions to Ma y 9, 1996. Accordin gly, because the petition was fil ed on October 4, 1996, it was time-barred.
We find the appellant’s due process argument w ithout merit. See Carother s v. State , No. 01C01-9610-CR-00455 ( Tenn. Crim. App. at Nashvi lle, Dec. 4, 1997) (holding t hat appellant

s were not deprived o

f due process whose stat utory time period was effect ively “cut sh ort” by the new Act). Fo r the for egoing rea sons, we conclude that the trial court was correct in summarily dismissing the appellant’s petition. The judgment of the tria l court is affirmed.5 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________ DAVID H. W ELLES, Judge

________________________________ THOMAS T. W OODALL, Judge