# FILED
August 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 1998 SESSION
VIKKI LYNN SPELLMAN, ) ) NO. 02C01-9801-CC-00036 Appellant, ) ) TIPTON COUNTY VS. ) ) HON. JOSEPH H. WALKER, III, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : VIKKI LYNN SPELLMAN, Pro Se # 81976 Special Needs Facility 7575 Cockrill Bend Industr ial Road Nashville, TN 37209-1057 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter PET ER M . CO UGH LAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General 302 Market Street Somerville, TN 38068

OPINION FI LED:

REVERSED AND

REMANDED

JOE G. RILEY, JUDGE2 OPINION
This case represents

an appeal from the trial court’s summary dismis sal of the appellant’s petition for post-conviction relief base d upon the statute of limitations. Appellant

contends her mental incompetence tolled the statute of limitations. We re verse a nd remand for a determination of appellant’ s alleged mental incompetence and its effe ct upon the statute of limitations.

PROCEDURAL HISTORY

The appe llant pled guilty t o first degree murder on Apr il 18, 1988, and received a life sentence. No appeal was taken. On June 15, 1989, the appellant filed her first petition for post-conviction relief all eging inef fect ive assistance of counsel and was represented by appo i nted counsel. Just prior to the evidentiary hearing on the merits of the peti tion, the appellant withdr ew the petition. On December 24, 1997, the appellant fil ed this her second petition for postconviction relief again alleging ineffective assistance of counsel at the time of her original guilty plea. In

this petition, she asserts that she withdrew her first petition because of her “psychological state” as she was in “no condition to as sist postconviction counsel in presenting anything in a logical, orderly fashion to the Court.” The trial court dismissed the present petition without a heari ng, finding that the petition was barred by the statute of limitations. See Tenn. Code Ann. § 40-30- 202(a). On appeal, the ap pellant, citing Watkins v. State , 903 S.W.2d 302 (Tenn. 1995), claims that application of the statute of

limitations in this cas

e would violate constitutional due process.

STATUTE OF LIMITATIONS

Tenn. Code Ann. § 40-30-202(a) prov ides that a person in custody under a sentence of a court of this state must petiti on for post-conviction rel ief within one (1)3

year of the fina l action ofthe highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final. The statute further provides that the limitations period “ shall not be tolled for any reason, in cluding any tolling or saving provision otherwise available at law or equity.” Id. None of the specified exceptions to the statute a pply in this
case. See

Tenn. Code Ann. § 40-30-202(b).

A. Saving Statute

The appellant’s insistence th at the saving statute, Tenn. Code Ann. § 28-1- 106, applies to post-convic tion proceedings is misplac ed. The appellant relies upon Watkins , wherein our Supreme Court held that this statute applied in post -conviction proceedings. 903 S.W.2d at 305. However, this hol ding construed the 1989 PostConviction Procedure Act. In 1995, the legislature specifically amended the PostConviction Procedure Act to preclude the application of the saving provision. Tenn. Code Ann. § 40-30-202(a). According ly, appellant cannot benefit from Tenn.Code Ann. § 28-1-106.

B. Due Process

This, however, does not end our inquiry. Watkins now becomes relevant in determining whether constitutional due process is applicabl e. There, th e appellant’s first petition was

dismissed without a hearing because the appellant was unable to proceed with the petition due to his mental incompetence. The second petition w as not filed until a fte r the stat ute of li mitatio ns expired and was, co nsequen tly, dismissed by the trial court. In remanding the matter for further proceedings on the pos t-co nviction petition, the Supreme Court, r elying upon Burford v. State , 845 S.W.2d 204 (Tenn. 1992), based its reasoning upon constitution al due proce ss considerations

in addition to

the application of the saving statute. The Court stated that if the appellant’s “ allegations of incompetency prove to be valid, application of1 In Watkins , there was apparently nothing before the Court establishing the appellant was, in fact, mentally incompetent. The same is true in this case. 4 the statute of limitations would effectiv ely deprive him of an

opportunity to ch allenge his conviction in a meaningful time and manner.” Watkins , 903 S.W.2d at 30 6 (emphasis added). 1 Furthermore, [i]f t he petitioner was mentally incompetent, and therefore legally incapable, he would be denied any oppor tuni t y to assert his constitutional rights in a post-conv iction petition, unless the periodof lim itations was suspended during hi s mental incompetence. Due process requires that some reason able opportunity to assert those rights be afforded. Id.

C. Watkins ’ Application to the 1995 Post-Con viction Procedure Act

In light of Watkins , we proceed to interpr et Tenn. Code Ann. § 40-30-202(a) which states, “[t]he statute of limitations shall not be tolled for any reason, including any tolling or s avi ng pr ovision otherwise available at law or

equity.” The clear legislati ve intent is t

o elimi nate tolling provisi ons, such as the saving statute; however, Tenn. Code Ann. § 40-30-202(a) may not eliminate a const itutionally required tolling provisi on. Since our Supreme Court det ermined in Watkins that incompetence tolls the statute of limitations under constitutional due p rocess, incompet en ce remains a viable toll ing provision under the 1995 Post-Conviction Procedure Act.

D. Sufficiency of Appellant’s Allegations of Tolling

In the present case, the appellant’s first petition for post-conviction re lief was dismissed before consideration on the merits. The appellant all eged in her present petition that her psychologic al condition precluded her fr om pursuing the first petition in 1990. The court below dismissed thesecond petition based solely upon the running of the statute of limitations, without a finding as to mental incompetence. The matter in Watkins was remanded for this determi nation.5 We note that appellant did not all ege that she was incompete nt during t he entire period from 1990 to the filing of the present petiti on on December 24, 1997. If appellant were incompe t ent in 1990, but regained competenc y thereafter, the statute of limitations may stil l have expired pri or to her filing on December 24, 1 997. Therefore, even on the face of the petition, appellant did not sufficiently allege facts that would show the filing was timely. We find it difficult to fault the trial court for it s dismissal based upon the allegations in the petition. Nevertheless, this issue is one of first impression under the 1995 Post-Conviction Pr ocedure Act. A remand for appointmentof counsel and the filing of an amended petition would be appropriate under these circumstances.

OTHER FACTS APPEARING IN RECORD

A remand is also uniquely justified by the facts appeari ng in the record which arguablylend support to a claim of mental incompetence. Prior to the original trial, the appellant was deliv ered to th e W est Tennessee Mental Health Institute at Bolivar, Tennessee, by the Tipton County Sheriff’s Office for emergency treatment. The trial court ordered a pre-tri al evaluat ion to be conducted by the West Tennessee Mental Health Institute. The Institute reported that the a ppellant was competent to stand trial and that a defense of insanity could not be suppor ted. Although the Institute reported that the appellant was

not subject to commitment to
a mental healt h instituti on, it recom m ended “ outpatient supportive couns eling through the Tri-County Mental Health Center.” At the time of the appellant’s first petition for post-convic tion relief in June 1989, she alleged she

was then residing

at the DeBerry Correctional Institute, which is a Speci al Needs F acility. The current petition for post-c onviction relief alleg ed that at the time of its preparation on December 19, 1997, the appellant was also confinedin the DeBerry facility. This latter

petition alleged that the first petition was dismissed “as a result of peti tione r and counsel so requesti ng because of the petitioner’s psychological6

state at the time.”

The petition further alleged that there were no efforts made on the part of any

counsel to “ascertain if her psychological s tate had improved to the point that she could assist counsel in presenting the facts a sserted in t he initial petition.” Based upon the record, there is ar guab le e vidence of me ntal health p roblems
as early as 1988 and as rece ntly as when the present petition was fil ed. Although the present petitio n does not allege facts sufficient to warrant the trial court in toll ing the statute of limitations found in Tenn. Code Ann. § 40-30-202(a), the record does evince sufficientdocumented bases of prior mental health problems to warrant, in this case, further findings of the cour t in order to de term ine whether appropriate grounds exist for the tolling of the statute of limitations based upon the Watkins due process rationale. In other words, the appellant has not made mere conclu sory allegations

of incompetence. Rather, the record presents a unique justification for further findings of fact on the statute of l imitations issue.

REMAND

U pon reman d, the trial court should appoint counsel and determine if appellantwas ever incompetent after her original c onvicti on became final. The sta tute of limitations was three (3) years prior to May 10, 1995. If appell ant wa s competent for three (3) years prior to May 10, 1995 , the statute of limitations ex pired at the end of the three (3) year period and the present petition filed December 24, 1997, was untimel y. Effect ive May 10, 1995, the statute of li mitations became one (1) year. If the st atute of limitations did not expi re prior to May 10, 1995, the new one(1) yea r statute of limitations must be applied. Appellant did not fil e her present petitionuntil December

24, 1997. Incompetence would need to be determined between May 10, 1995, and December 24, 1996. If appellant w as competent f or a year prior to December

24, 1996, the statute would have ex pired at the end of that year per iod. The pres ent peti tion file d Decemb er 24, 199 7, would, t herefo re, be unt imely.7 For appellate purposes the trial court should make findings as to al leged incompetence prior to May 10, 1995, and subsequent to May 10, 1995.

CONCLUSION

For the reasons stated above, w e vacate the trial court’s judg ment dismissing the appella nt’s se cond pet ition fo r post- convic tion re lief. The matter

is remanded forappointment of counsel and further proceedings on the petition. If the trial court finds that the appellant was in fact mentally incompetent, as alleged, at

the time of the withdrawal of

t he first petition, the trial court shall then determine w hen and whether the appellant regained competenc e, and whether the present pet ition was timely filed.
JOE G. RILEY, JUDGE CONCUR:

CURWOOD WITT, JUDGE

ROBERT W. WEDEMEYER, SPECIAL JUDGE