FILED

January 12, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1997

PERRY McDONALD, )

) No. 03C01-9703-CC-00103

Appellant )

) BRADLEY COUNTY

vs. )

) Hon. STEVE R. BEBB, Judge

STATE OF TENNESSEE, )

) (Post-Conviction)

Appellee )

For the Appellant: For the Appellee:

Perry McDonald, Pro Se John Knox Walkup

Northeast Correctional Attorney General and Reporter

 Center, No. 240535

P. O. Box 5000 Timothy F. Behan

Mountain City, TN 37683-5000 Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

OPINION FILED: 

AFFIRMED

David G. Hayes

Judge
1

The State correctly argues that the appellant failed to file his notice of appeal within the

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 interest of justice, we address the appellant’s claims.

2

The trial court’s “Order of Dismissal” reflects “[t]hat the entry of the judgment in [5] five 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 the trial court summarily

dismissing his petition for post-conviction relief.1

 His petition alleges that he is

currently serving an effective sentence of seventy-six years imprisonment following

his convictions for especially aggravated kidnapping, aggravated rape, aggravated

robbery, two counts of aggravated burglary, and theft. Judgments of conviction

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 appeals from this ruling.

After review, we affirm.

ANALYSIS

The appellant argues that the trial court erred in ruling that his petition is timebarred for two reasons. First, on the date his guilty pleas were entered, the

applicable statute of limitations period was three years. See Tenn. Code Ann. § 40-

30-102 (repealed 1995). Accordingly, he argues that any reduction of the three year

period violates due process and the dictates of Sands v. State, 903 S.W.2d 297,

301 (Tenn. 1995). In further support of this 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, the
3

appellant contends that his claim of a defective indictment raises “subject matter

jurisdictional questions” which may be presented at any time and cannot be waived. 

Specifically, he argues that the indictment language charging him with aggravated

rape failed to charge a criminal offense. In support, the appellant cites State v. Hill,

No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20, 1996), rev’d,

954 S.W.2d 725 (Tenn. 1997). The appellant’s reliance upon Carter and Hill is

misplaced. Both of these cases have 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 involve the

same criminal offense, aggravated rape. Thus, Hill is the law of the case. 

Moreover, the challenged indictment in the present case was not included in the

record. It is incumbent upon the appellant to prepare a record that includes all

material necessary for review 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, we find no merit to the appellant’s argument that the indictment was

defective. 

In reference to the appellant’s due process claim, we note that his petition for postconviction relief was filed on October 2, 1996. Thus, his petition is governed by the

Post-Conviction Procedure Act in effect on the date of filing. In Daniels v. State,

03C01-9606-CC-00244 (Tenn. Crim. App. at Knoxville, Feb. 27, 1997), perm. to

appeal denied, (Tenn. Sept. 29, 1997), we articulated three categories of petitioners

created by the 1995 Post-Conviction Procedure Act, which was in effect on the date

this petition was filed.

The new Post-Conviction Procedure Act became effective 

May 10, 1995, reducing the statute of limitations 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 Compiler’s Notes, Tenn. Code Ann. 

§ 40-30-201 (1995 Supp.), provides that “any person having 
4

ground for relief recognized under this part shall 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, whose petition

is filed on or after May 10, 1995. (1) Those petitioners whose 

three-year statute of limitations has extinguished any remedy 

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 effect upon the petitioner in this 

group is that the three-year limitations period will be reduced 

to one year plus the period from the date of the petitioner’s final 

conviction and May 9, 1995. Finally, (3), . . . those petitioners 

whose three year limitation period expired during the period 

between May 10, 1995, and May 9, 1996. A petitioner in this 

category would, in effect, be granted an enlargement of the three 

year limitation period, conceivably to a maximum 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. Since he was convicted in 1994 and

1995, his time to file a post-conviction petition was effectively “cut short” by the new

Act which went into effect on May 10, 1995. Instead of having three years from the

date of the conviction in which to file a petition for post-conviction relief, the

appellant had only from the date of his convictions to May 9, 1996. Accordingly,

because the petition was filed on October 4, 1996, it was time-barred.

We find the appellant’s due process argument without merit. See Carothers v.

State, No. 01C01-9610-CR-00455 (Tenn. Crim. App. at Nashville, Dec. 4, 1997)

(holding that appellants were not deprived of due process whose statutory time

period was effectively “cut short” by the new Act). For the foregoing reasons, we

conclude that the trial court was correct in summarily dismissing the appellant’s

petition. The judgment of the trial court is affirmed.
5

____________________________________

DAVID G. HAYES, Judge

CONCUR:

________________________________

DAVID H. WELLES, Judge

________________________________

THOMAS T. WOODALL, Judge