IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 25, 2016 at Knoxville

WILLIAM GEORGE COX v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2008-C-2734 Mark Fishburn, Judge

No. M2016-00012-CCA-R3-PC – Filed November 17, 2016

The petitioner, William George Cox, appeals the denial of post-conviction relief from his 

2008 Davidson County Criminal Court guilty-pleaded convictions of aggravated burglary 

and theft of property, for which he received an effective sentence of 10 years. In this 

appeal, the petitioner contends only that he was denied the effective assistance of 

counsel. We affirm the judgment of the post-conviction court but remand for correction 

of clerical errors in the judgment forms.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY,JR., and J. ROSS DYER, JJ., joined.

Jesse Lords, Nashville, Tennessee, for the appellant, William George Cox.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On October 8, 2008, the petitioner entered pleas of guilty to one count each 

of aggravated burglary and theft of property valued at $1,000 or more but less than 

$10,000. The trial court imposed a sentence of 10 years‟ incarceration for the aggravated 

burglary conviction, to be served concurrently with an eight-year sentence for the theft of 

property conviction. The court further ordered the defendant to serve the entirety of his 

effective 10-year sentence on community corrections placement.

On July 15, 2009, the petitioner‟s community corrections officer filed a 

violation report alleging that the petitioner had violated the terms of his community 
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corrections placement by being arrested for assault. On September 3, 2009, the trial court 

found that the petitioner had violated the terms of his community corrections placement 

and resentenced the petitioner, ordering consecutive service of his 10- and eight-year 

sentences, to be served as one year of incarceration followed by 17 years on community 

corrections placement.

On October 28, 2010, the petitioner‟s community corrections officer again 

filed a violation report, this time alleging that the petitioner had been arrested for 

aggravated assault. The trial court, on April 13, 2011, amended the judgments to reflect 

that the petitioner would remain incarcerated until April 26, 2011, at which time his 

community corrections placement would be reinstated.

On February 23, 2012, the trial court found that the petitioner had 

“successfully complied with” the conditions of his community corrections placement and 

transferred him to supervised probation. On October 30, 2013, the petitioner asked the 

trial court to “release him from the conditions of probation” due to “his age and physical 

condition,” requesting that he “be placed on unsupervised probation for the remainder of 

his sentence.” No court order ruling on this petition appears in the record.

On February 19, 2014, the petitioner, in response to his January 2014 arrest 

on charges of aggravated burglary and possession of burglary tools, moved the trial court 

“to place his sentence into effect,” thus permitting him to “serve the remaining portion of 

the sentence by incarceration.” In support of his motion, the petitioner averred that, in 

December 2013, his community corrections supervision was “transferred to a 

misdemeanor level of supervision, where he only ha[d] to report every few months.” The 

petitioner further stated that, because he was incarcerated on the new charges and 

believed that he would not “be released anytime soon,” he wished to “place this sentence 

into effect so that he may receive all proper jail credit and begin moving towards 

completion of this rather lengthy sentence.” A violation of probation report was filed on 

February 27, 2014, alleging that the petitioner had violated the terms of his probation by 

being arrested for aggravated burglary and possession of burglary tools.

The trial court, on March 6, 2014, granted the motion and entered amended 

judgments which revoked the petitioner‟s alternative sentencing and ordered the 

petitioner‟s sentence into execution, with credit for time served. On March 9, 2015, the 

petitioner filed, pro se, a petition for post-conviction relief, alleging that he was deprived 

of the effective assistance of counsel at his March 6, 2014 court appearance when he was 

pressured by counsel into seeking execution of his original sentence. Following the 

appointment of counsel and the amendment of the petition, the post-conviction court 

conducted a brief hearing, at which the court heard argument from both parties but no 

witness testimony.
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After taking the matter under advisement, the trial court issued an order 

dismissing the petition, finding that, although the petition was timely filed, postconviction relief was not available to the petitioner because he was merely seeking to 

collaterally attack the validity of his revocation of probation.

In this appeal, the petitioner reiterates his claim of ineffective assistance of 

counsel, claiming that trial counsel performed deficiently by coercing him “into waiving 

a hearing on his motion to place a sentence into effect.” The State contends that the postconviction court did not err by denying relief.

“[A] person in custody . . . must petition for post-conviction relief . . . 

within one (1) year of the date of the final action of the highest state appellate court to 

which an appeal is taken.” T.C.A. § 40-30-102(a) (2006). “If it plainly appears from the 

face of the petition, . . . that the petition was not filed . . . within the time set forth in the 

statute of limitations, . . . the judge shall enter an order dismissing the petition. The order 

shall state the reason for the dismissal and the facts requiring dismissal.” Id. § 40-30-

106(b). The statute of limitations for filing a post-conviction petition is jurisdictional. 

See id. § 40-30-102(b) (“No court shall have jurisdiction to consider a petition filed after 

the expiration of the limitations period unless [certain statutory prerequisites are met].”). 

Our supreme court has held that “the one-year statutory period is an element of the right 

to file a post-conviction petition and that it is not an affirmative defense that must be 

asserted by the State.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is 

incumbent upon a petitioner to include allegations of fact in the petition establishing 

either timely filing or tolling of the statutory period,” and the “[f]ailure to include 

sufficient factual allegations of either compliance with the statute or [circumstances] 

requiring tolling will result in dismissal.” Id.

A petition for post-conviction relief filed outside the one-year statute of 

limitations may nevertheless be considered if its allegations fall within three rather 

narrow exceptions:

(1) The claim in the petition is based upon a final ruling of an 

appellate court establishing a constitutional right that was not 

recognized as existing at the time of trial, if retrospective 

application of that right is required. Such petition must be 

filed within one (1) year of the ruling of the highest state 

appellate court or the United States supreme court 

establishing a constitutional right that was not recognized as 

existing at the time of trial;
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(2) The claim in the petition is based upon new scientific 

evidence establishing that such petitioner is actually innocent 

of the offense or offenses for which the petitioner was 

convicted; or

(3) The claim asserted in the petition seeks relief from a 

sentence that was enhanced because of a previous conviction 

and such conviction in the case in which the claim is asserted 

was not a guilty plea with an agreed sentence, and the 

previous conviction has subsequently been held to be invalid, 

in which case the petition must be filed within one (1) year of 

the finality of the ruling holding the previous conviction to be 

invalid.

T.C.A. § 40-30-102(b)(1)-(3). Additionally, due process principles may, in very limited 

circumstances, require tolling of the post-conviction statute of limitations. See generally 

Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 

1992). To determine whether due process requires tolling of the statute of limitations, we 

must determine “when the limitations period would normally have begun to run”; 

“whether the grounds for relief actually arose after the limitations period would normally 

have commenced”; and “if the grounds are „later arising,‟ determine if, under the facts of 

the case, a strict application of the limitations period would effectively deny the petitioner 

a reasonable opportunity to present the claim.” Sands v. State, 903 S.W.2d 297, 301 

(Tenn. 1995).

In the instant case, the petitioner was originally convicted in 2008, was 

sentenced to community corrections placement, and, following a revocation, was 

resentenced on September 3, 2009. The trial court last altered the terms of the 

community corrections sentence in 2011 following his second revocation. Thus, the 

petitioner had one year from the date on which the judgment resentencing the defendant 

became final to seek post-conviction relief. See Carpenter v. State, 136 S.W.3d 608, 612 

(Tenn. 2004) (“[A] petitioner may challenge the resentencing which follows revocation 

of community corrections in a post-conviction proceeding based on an allegation of 

ineffective assistance of counsel.”). In any event, the petitioner‟s 2015 petition for postconviction relief was filed well outside the one-year statute of limitations, and the 

statutory grounds for the tolling of the statute of limitations are not applicable. 

Moreover, due process principles do not mandate the tolling of the statute of limitations 

because the petitioner‟s claims for relief are not “later-arising.” 
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The statute of limitations for a post-conviction action may not be timed to a 

revocation of mere probation because a post-conviction petition may not be used to 

challenge a revocation of probation. An order revoking probation simply ends the 

probation term, imposes no new sentence, and accordingly, is not an action that may be 

challenged via Tennessee‟s post-conviction procedure. Young v. State, 101 S.W.3d 430, 

432-33 (Tenn. Crim. App. 2002). The record in the instant case clearly established that 

the trial court, in February 2012, determined that the petitioner had “successfully 

complied with” the terms of his community corrections placement and transferred him to 

supervised probation. Thus, the petitioner‟s efforts to collaterally attack the 2014 

revocation of his probation avail him nothing. 

We detect, however, clerical errors in the March 2014 amended judgment 

forms that require correction. As previously discussed, the petitioner was unquestionably 

transferred from community corrections placement to supervised probation in February 

2012. The 2014 amended judgment forms, however, erroneously reflect that the 

petitioner‟s community corrections placement was revoked. On remand, we direct the 

trial court to correct the 2014 amended judgment forms to effectuate the proper 

alternative sentencing revocation.

Accordingly, the judgment of the post-conviction court is affirmed.

 _________________________________ 

 JAMES CURWOOD WITT, JR., JUDGE