### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 13, 200 5

KEN NET H B. WHITE v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 98-02995 Ber nie Weinm an, Jud ge

No. W2004-02553-C CA-R 3-P C - F iled Janu ary 4, 2005

Petitioner, Kenne th B. White, filed a pro se petition f or post-conviction relief

alleg ing that his trial counsel re n d ered ineff

ective a ssistance of c ounsel by failing to pursue an a

ppeal f ollowing Petitioner’s conviction of ve hicular homicide . Th e p o s t -c onviction court dismissed the petition without an evidentiary

hearing be cause i t was untimely filed. Afte r a thoroug h revie w, we a ffirm the jud g me nt o f the po st- c on vic tio n c ou rt

. Tenn. R. App . P . 3, Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

T H O M A S T. W O O D A LL , J

. , d el i v er ed the opinion of the court, in which G AR Y R. W ADE , P.J ., and D AVI D G. H AYES , J ., joined.

Kenne th B. White, Clifton, Tennessee, pro s e

.

Paul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Re ne e W. Turne r, As sis tant A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and A lexi a M. F ulgham, Assistant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee.

OP IN ION

Following a jury

trial, Petitioner was c onvicted of ve hicular homicide on J anuary 29, 1999, and wa s sentenc ed to twelve y ear s as a Rang e I , standard of fende r. No notice of appe al was f iled. On S eptember 1, 2004, Petitioner filed a pro s e pe tit ion fo r p os t- c on vic tio n r e lie f a lle g ing that hi s ri g ht t o a dir e c t app e a l of

his c on vic tio n w a s d e nie d d ue to the ine ff e c tiv e ne ss of

his tr ia l c ou ns e l.

Th e Po s t- Co n v ic ti o n Pr o c e d u r e A c t c le ar ly r e q u ir e s th a t p o s t- c o n v ic ti o n c laim s b e filed within one y ear

from the date on which the j u d gm en t b ecomes final if no appe al is taken. Te nn. Code Ann. § 40-30- 102(a) . “Time is of the essenc e of the rig ht to file a petition f or post-convic tion relief or motion to reopen e stablished by this chapter, an d the one- y ear limit ations period is an element of

the rig ht to file such an a ction and is a c ondition upon it s exercise.” Id . “ I f i t pl a inl y appea rs from the fac e of the petition, any annexed exhibit s, or the prior pr ocee dings in the c ase that-2-

the pe tit ion wa s not fil e d .

. . wi thi n th e tim e se t f orth i n th e statut e of

lim itatio ns , . . . the jud g e sh a ll
enter an orde r dismissing the petition.” Id . § 40-30-106( a).

Rely ing on W

ill iam s v . S tat e , 4 4 S. W.3 d 4 64 (T e nn . 2 00 1) , h ow e ver, P eti tione r a rg ue s in his appea l that his trial counsel’s misrepre sentations deprive d him of the opportunity to pursue a direc t appea l of his conviction in a ti mely manner , and that due process concerns toll the statute of limit ations applicable to the filing of post-conviction claims. The State, w ithout addressing Petitioner’s due proc ess claims, ar g ues that Petitioner has not established that he has met one of the
statut ory re qu ir e me nts se t forth in Te nn e sse e Cod e An no ta te d s e c tio n 4 0- 30 -1 02 (b ), wh ic h p e rm its the extension of the one-y ear statute of limitations period under c erta in limi ted circ umstances not prese nt in the case sub judice

.

I n W illiams , our Supreme Court c oncluded that “ due proc ess consider ations may have tolled the limitations period” for f iling a post-c onviction petition when the pe titioner’s appointed c ounsel

ma y ha ve mis le d th e pe tit ion e r i nto be lie vin g that c ou ns e l wa s c on tin uin g the dir e c t app e a l pr oc e ss. W illiams , 4 4 S. W.3 d at 47 1; se e als o Se als v . S tat e , 23 S.W .3d 272, 279 (Tenn. 2000) (The strict

ap p l i c a t i o n o f

t h e s t a t u t e o f l i m i t a t i o n s o f t h e P o s t

- C o n v i c t i o n P r o c e d u r e A c tm a y n o td e n y a petitioner “a

rea sonable opportunity

to assert a

claim in a mea ningf

ul time and m an n er ” if a petitioner is unable to pursue his or her post-c onviction cl ai m s d u e to circumstances be y ond the petitioner’s c ontrol such as a period of me ntal incompetenc e).

I n W illiams , the petitioner’s conviction and sentenc e wer e aff irmed by this Court on J anuary 9, 1995. W

illiams , 44 S.W .3d at 465. I n a substant i al ly late-f iled motion to wit hdraw filed by petitioner Will iams ’ co u n s el
, counsel stated that he mailed Willi ams a c opy of the de cision and informed Williams t hat he no long er r epre sented him. Id . Tenne ssee Supre me C o u rt R ule 14 require s that a motion to withdraw must be filed not more than fourtee n day s after entry of judg ment in the Co u r t o f

Crim in a l A p p e a ls

. Wi ll iams ’ c o u n s e l d idn o t f il e th e mo ti o n u n ti l O c to b e r , 1 9 95, nine months after

entry of t h e j u d gm en t

. Id . Wil liams filed a pro se petition for post-conviction relief on October 24, 1996, which the post-conviction court dismiss ed as untimely filed, wi thout

co n d u ct i n g an ev i d en t i ar y h ea ri n g.

Th e Sup re me Cou rt

c on c lud e d th a t “ [f]u rthe r d e ve lop me nt o f the re c or d [w a s] r e qu ir e d to de te rm ine the pr e c ise c ir c ums ta nc e s su rr ou nd ing the [pe tit ion e r’ s] un de rs ta nd ing of his re la tio ns hip to counsel.” Id

. at 471. On rema nd, the evidentiary hearing w as limited to determining “ (1) whe ther du e pr oc e ss t oll e d th e statut e of lim itatio ns so a s to g ive the [pe tit ion e r] a re a so na ble op po rtun ity afte r the expiration of the limit ations period to pr esent his c laim in a meaning ful time and manne r; and (2) if so, whether

the [petiti oner’ s] f

i l i n g of the post-c onviction petition in October 1996 wa s within the rea sonable opportunity aff orded by the due pr ocess tolling.” Id

.
Petitioner in the case sub judice arg ues t hat he informed both the trial cour t and his retaine d counsel that he wished to a ppeal his c onviction at the hearing on his motion for new trial, and that he er roneously believed that his counsel had timely filed a notice of appe al. As in W illiams
, Petitioner was not af

forde d an evide ntiary

hearing by the post-conviction court in which to develop-3-

the basis for his a lleg ations. Unlike the petitioner in W illiams , h ow e ve r, Pe tit ion e r in the ins ta nt c a se has had a

previous opportunity

to present his cla ims concerning his c ounsel’s alleg ed mis re pr e se ntatio ns

.
Prior to f iling his pe tition for post-conviction relief , Petitioner filed a pro se pe tit ion fo r w ri t of e rr or c or a m no bis in 2 00 3. I n th a t pe tit ion , Pe tit ion e r a ve rr e d th a t the app lic able on e -y e ar s ta tut e of l i m i t ations should be tolled because of due proce ss violations arising out of his trial counse l’s failure to pursue an a

ppeal of Petitioner’s conviction. Se e Ke nn e th B . W hit e v . S tat e , No. W2004- 00653-CCA-R3-C0, 2005 WL 396380, at *4 (Tenn. Crim. App., at J ackson, Feb. 17, 2005), perm. to appeal denied (T e nn . Jun e 27 , 2 00 5) ; s e e a l s o W o r k m a n v . S tat e , 41 S.W .3d 100, 103 (Tenn. 2001) (Due proce ss may

require tolling of a n appli ca b l e s tatute of limitations). The trial court appointed counse l
, an d an am ended petition was filed. Id . at *1. Following two evidentiary hearings, the trial court de nied the petition. I n aff irming the trial court’ s denial of Petit ioner’s petition fo r writ or er

ror c oram nobis, this Court summ arized the e vidence prese nted at the

e vid e nti ary

he ari ng s a s f

oll ow s:
The petiti oner, Kenneth B. W hite, was convicted by a jury of vehic ular homicide on J anuary 29, 1999. He was sentenc ed to twe lve y ear s as a Rang e I , standard of fende r. He then f iled a motion for new trial, which wa s denied by the t rial court. Four a nd

a ha lf y e ars la te r, the pe tit ion e r fi le d a pro se pe tit ion fo r writ o f e rr or c or a m no bis

. The trial court subsequently appointed counsel, and an a mended pe tition was filed. Following two hearings to de ter mi n e the a ppropriate ness of a

delay ed appe al, the trial court de nied the petition. The petitioner now appea ls to this Court, averring that the trial court e rre d in deny ing the petition because his due proce ss rig ht to appeal wa s violated when trial counsel failed t o appea l his case a fter the petitioner re quested that he do so.

During the hea

ring on the motion for new trial, trial counsel que stioned the petitioner

on his de sir e to ap pe a l. Th e pe tit ion e r wa s initi a lly qu e sti on e d r e g ard ing his inc ome stemming fr om Social Security disability . I n response , the petitioner stated that he

re c e ive d $ 80 0 a

mon th i n d isa

bilit y , bu t st a te d th a t he " wa sn ' t su re " if he wo uld continue to re ceive the c h ec k o nce inc arc erated. Further, the pe titioner responde d aff irmatively

when a sked if counse l had informed him of the rig ht to appeal a nd of the costs that would be involved. When a sked if he wanted to pur sue an a ppeal, the petitioner re sponded,

Wel l, Y ou r H on or , at th is tim e I ' m no t c on c e rn e d a bo ut g e tti ng it appea led. I

just really

want to g o to my

destinat i on and g o to the Depa rtment of Corre ctions at the nea rest con v en i en ce so that I can start doing some time that I ' ve been gra nted and that I may rec eived [si c] some alcohol and dr ug prog ram tre atment.-4-

At that point, the court noted its co n ce rn t hat the petitioner' s statements might be construed as a waiver of his a ppeal. Upon further questioning by counsel, the petitioner stated that he did not intend to w aive his right to a ppea l b yh i s earlier statement and that he wan t ed t o appea l. On cross-e x amination, the petitioner admitted that he re ceive d ap p roxi mately $300 eac h month as income fr om an annuity , in addition to his disabilitypay ment, for a total o f $ 1100 in monthlytotal income.

I n deny ing the motion for new tria l, the trial court f ound that it could not appoint counsel to the petitioner due to the amount of his monthly income. The court further noted that eve n if his disability chec k was discontinued, the annuity pay ment alone would be sufficient to make incrementa l pay ments on the petitioner' s leg al costs. The
court a lso rejec ted trial counse l's r equest that the court order t he funds paid toward the costs of a

ppeal, noting that, "[the represe ntation is] something be tween y ou and h i mas t o wh et h ero r n o th e's go i n g t o go fo rw ar d wi t h h i s ap p ea l an d wh et h erh e's willi n g to take his money that he' s rec eiving and pay for that." Finally , the court denied c ounsel' s motion t o withdraw.

Some four and a

half y ear s later, on September 10, 2003, the petitioner filed a pro s e petition for writ of e rror c or am no bis
, alleg ing that the proxi mate ca use of the victim's de ath was a d efe ctive " T-top" hatch on he r automobile. He further stated that he believe d the State knew of these de fec ts but failed to inf orm him of

them at the time of trial. He further explained the delay in his petition by stating that he had only rec ently learned that trial counsel had failed to file an a ppeal on his beha lf. The State responde d on October 1, 2003, demanding proof of the alleg ations contained in the peti tion and reque sting that the tria l court appoint counse l to review the petition and file an amende d petition if nece ssary

. The trial c ourt appointed c ounsel
t o t h e p e t i t i o n e r

t h a ts a m e d a y.

On Dece mber 10, 2003, ne wly appointed counse l filed an a mended motion sty led "motion to file out of time motion for er ror c or am no bis ." I n th e m o t i o n , t he pe tit ion e r state d that he ma de his de sir e to a pp e a l kn ow n d uring the he ari ng on his

m o t i o n fo r n ew tri al an d i n a co n v er s at i o n h e h ad wi t h co u n s el fo l l o wi n g t h e h ea ri n g. Ho we ve r, c ou ns e l f

a ile d to fi le the app e a l.

On Dec ember

15, 2003, a hea

ring was held to determine w hether or not the petitioner sho u l d b e g rante d a delay ed appe al by which to pre sent his claims. Upon hea ring arg uments from both counsel, the tri al court de termined that a full hearing w as
nece ssary to determine w hether

or not the petitioner' s due proc ess rig ht to appeal ha d been violated by

trial counsel' s failure to file an a ppeal on the pe titioner' s behalf. T he trial c o u r t a ls o r e q u e s te d th a t ame n d e d p le a d in g s b e f il e d to a ll e g e w ith more specific ity

the claims soug ht to be prese nted.-5-

I n his amended motion, the petit ioner arg ued that st rict application of the statute of limit ations would deny

him due proce ss. He further stated that if it was discove red that the petitioner wa s unable to pay , it was counsel' s duty to inform the court of that fac t. T h e St a te r e s p o n d e d th a t th e p e ti ti o n e r f a il e d to a s s e r t th a t a n a g r e e me nt had be e n r e a c he d to pu rs ue the app e a l. R a the r, the Sta te arg ue d, the pe tit ion er m e re ly

as s er t ed t h at h e s t at ed h i s d es i re t o ap p ea l d u ri n g t h e m o t i o n f o r n e w t ri al h ea ri n g. Further, the St ate averr ed that, acc ording to the t ransc ript from the motion for ne w tr ia l, the tr ia l c ou rt didno t de c lare the pe tit ion e r i nd ig e nt, no te d th e tim e c on str a int s on the appe al, and indicated that it was the pe titioner' s re s p o n s i b ilityto make

arr ang ements with counsel r eg arding repr esentation.

On J anuary

16, 2004, a fu l l h ea ring was he ld in which both the petitioner and trial counsel testified. O n direc t examination, t he petitioner state d that, fo l lowing the h ea ri n g o n t h e m o t i o n fo r n ew tri al
, h e e x p re s s ed t o tri al c o u n s e l h i s d es i re t o go forwa rd with an a

ppeal. He further stated t hat, although he was unable to pay counsel at that time, it was his unde rstanding that the appe al would g o forwa rd and w ould be filed by counsel. On c ross-examination, the petiti o n er admi tted that he had a monthly income of $1100 at the time of the motion for new tria l. He further testified that he told counsel he would pay him “ the best way [he] could,” but admitted that he neve r s p o k e to c o u n s e l a g a in a f te r th a t c o n v e r s a ti o n a n d n e v e r ma d e a p a y ment to him. The petitioner also admitted that he w as made awa re of the appe al dea dlines by bo th the tr ia l c ou rt

a ndc ou ns e l. O n r e -d ir e c t, the pe tit ion e r s ta te d th a t hi s disabilitychec k was discontinued a fter he was re tained in state c ustody and that he

was unsure as to whethe r he still rec eived the annuity chec k.

Tria l c ou ns e l th e n te sti fi e d th a t he dis c us se d with the pe tit ion e r his ri g ht t o a pp e a l, the fee i nvolved, and the t ime constraints on filing. Counsel further stated that the petitioner indicate d befor e the motion for new t rial t hat he did not want to appea l the

case . Moreove r, he state d that afte r t he mot ion for new t rial, t he petitioner r eiterated that he did not want to spend a ny more money pursuing his a ppeal and that he w ished to serve the sentenc e is sued. Finally
, counsel stated that afte r t heir meeting f ollowing
t h e m o t i o n f

o r n e w tr i a l
, h e h e ar d n o t h i n g f u r t h e r f r o mt h e p e t i t i o n e r

o r h i s f a m i l y. On cr oss-examination, c ounsel admitted that he did not ask the petitioner to sign a n
a ff ida vit ind ic a tin g that he didno t w ishto p ur su e a n a pp e a l.

Following the hea

ring , the court c redited the testimonyof trial counse l and found that the petitioner wa ived his rig ht t o ap p ea l

. T he court noted that the petitioner wa s
a dv ise d b y

the tr ia l c ou rt

of his ri g ht t o app e a l, the tim e lim its inv olv e d, the ne e d to hire an atto r n e y , a n d th a t h e w a s n o t e n ti tl e d to th e ap p o in tm e n t o f a n a tt o r n ey be c a us e of his inc ome . T he c ou rt fu rthe r n ote d th a t th e pe tit ion e r m a de no e ff ort to reta in a n o th e r

a tt o r n e y o r p u r c h a s e th e tr a n s c r ip t. F u r th e r mo r e , w h il e th e c ourt acknow ledg ed that no written waiver was sig ned, it co n cl u ded that all issues-6-

normally addre ssed in a wa iver we re discusse d fully at the hea ring on the motion for

ne w t ri a l.

The c ourt also found that the pe titioner did not alleg e that he rec eived a ny assura nces the app e a l wo uld be fi le d. To the c on tr ary , tr ia l c ou ns e l ma de it kn ow n that he d id not want to be fina ncially

responsible for

the appe al if the petitioner did not pay , and it appear ed fr om the testimonythat the petitioner did not desi re t o spend any more money on his case. The court conclude d that trial counsel had no responsibilityfor the app e a l a ft e r the pe tit ion e r f a ile d to take ste ps to e ns ur e re pr e se ntatio n. On app e a l, the petitioner c ontends that the trial court erre d in deny ing his delay ed appe al. The State aver s that the post-conviction court erre d in not dism issing the p et i t i o n as
ou ts id e the statut e of

lim itatio ns ; a lte rn a tiv e ly , it a sse rt s th a t th e c ou rt

pr op e rl y de nie d th e de la y e d a

pp e a l.

Ke nn e th B . W

hit e , 2005 WL

396380, at **1-3.

The S upreme Court stated in W illiams
, that the Court was “not holding that a petitioner ma y be excused fr om filing a n untimely po s t -c o nviction petition as a result of c ounsel’s neg lige nce. I nstead, the f

ocus here is only upon trial and a ppellate c ounsel’s alleg ed misrepr esentation in failing to pr operly withdraw from repr esentation a nd in f ailing to notify

the petitioner that no a

pplication for pe rmission to appeal would be f iled in this C ourt.” W

illiams
, 4 4 S

. W

. 3 d a t4 6 8
, n

. 7

. In Cra wfo rd v . S tat e , 151 S.W .3d 179 (Tenn. Crim. App. 2004) , we inter prete d W illiams as “l i m i t [ i n g] claims of attor

n e y mi s r e prese ntation tolli ng the statute of limitations to t imes when c ounsel has made misrepre sentations direc tly relating to filing a def

endant’ s appea l.” Id. at 184.

A pane l of this Court has previously conclude d that Petitioner was not de prived of his due proce ss rig ht to appeal by any misrepre sentations on the part of his tria l c ounsel as wa s the conc ern expressed in W

illiams , and that Petitioner had not e stablished a due pro ce s s b as i s for toll ing the statute of limitations fo r f ili ng a pe tit ion of

writ o f e rr or

c or a m no bis . Ke nn e th B . W hit e , 2 0 0 5 WL 39 63 80 , at *4 .; see W

illiams
, 4 4 S

. W

. 3 d at 4 6 9 (c i t i n g Se als , 23 S.W .3d at 278). The W hit e court stated:

We n ote , a s did the po st- c on vic tio n [sic ] c ou rt , that the pe tit ion e r wa s a dv ise d o f h is ri g ht t o a n a

pp e a l, h is r e sp on sib ili ty

in o btaini ng c ou ns e l, andthe tim e lim itatio ns in filing a n appea l. Further, the petitioner admitted that he f ailed to contac t trial counsel

or make a pay ment toward his a ppeal afte r their conver sation following the hearing

on the m o ti o n f

o r n e w tria l. F in a ll y , th e p e ti ti o n e r f a il s to a ll e g e th a t h e r e ceive d

assura nce that his appea l would be filed by trial counsel. The court made it clear that the on us in o btaini ng cou ns el re ste d w ith the pe tit ion e r, du e to h is i nc ome a ndhis lack of financ ial responsibility . We theref ore co n cl u d e that the petitioner’s due pr oc e ss ri ght to app e a l w a s n ot v iol a te d s imp ly be c a us e he faile d to take a c tio n in

securing r epre sentation for his app eal. As suc h, we hold that the pe titioner was-7-

outside the applica

ble statute of limitations for c or am no bis relief

and that the petition was properly

dismiss ed.

Id. at *4.

“An unpublished opinion sha ll be considere d controlling authority betwee n the parties to the

c a se wh e n r e le va nt u nd e r the do c tr ine s o f the la w of the c a se , re s judi c a ta , c oll a te ra l e sto pp e l, o r i n
a criminal, post-conviction, or habeas corpus action involving thesame de fenda nt.” Tenn. R. Sup. Ct. 4(H)(1) (empha sis in original).

Petitioner now seeks to toll the statute of l imitations applicable to the filing of a petition for post-conviction re lief base d on the same alleg ed due pr ocess violations and the sa me fa ctual re asons as pre sented in his petition for writ of err or cora m nobis. This Court has pre viouslydetermined that Pe tit ion e r’ s d ue pr oc e ss rig hts we re no t vi olate d b y his c ou ns e l’ s r e pr e se ntatio n o f P etition e r i n
connec tion with his direc t appea l.

CO NC LU SION

Ba sed on the for eg oing, w e conc lude that Petitioner’s petition for post-c onviction relief w as fi le d b e y on d th e on e -y e ar s ta tut e of lim itatio ns , a ndthat th e po st- c on vi cti on cou rt didno t e rr

in dismiss ing Petitioner’ s petition as untimelywithout conducting an e v i d en tiary hearing. T he judgme nt of the post-convic tion court is affirmed.

___________________________________ THOMAS T. WOODAL

L , J UDGE