FILED

July 28, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE SESSION, 1997

WALTER E. INGRAM, ) C.C.A. NO. 02C01-9608-CR-00258

)

Appellant, )

)

) SHELBY COUNTY

VS. )

) HON. JAMES C. BEASLEY, JR.

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

WALTER E. INGRAM, PRO SE JOHN KNOX WALKUP

P.O. Box 1050 Attorney General and Reporter

Henning, TN 38041

CLINTON J. MORGAN

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

JOHN W. PIEROTTI

District Attorney General

LEE V. COFFEE

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Street

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

See Tenn. Code Ann. § 40-30-206(b) (Supp. 1996).

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OPINION

The Petitioner, Walter E. Ingram, appeals as of right pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. The Petitioner filed a pro se petition for postconviction relief on April 10, 1996. On April 25, 1996, the trial court dismissed the

petition without conducting an evidentiary hearing, finding that it was barred by

the statute of limitations.1 We affirm the judgment of the trial court.

The record reveals that from 1982 to 1984, the Petitioner amassed seven

convictions for robbery with a deadly weapon and one conviction for seconddegree murder. At a bifurcated trial on one of the charges for robbery with a

deadly weapon, the Petitioner was also found to be an habitual criminal and was

sentenced to life imprisonment. Although the record is somewhat unclear, it

appears that the habitual criminal conviction occurred in September or November

of 1983. Both the conviction and sentence were affirmed upon direct appeal to

this Court. See State v. Walter Eugene Ingram, C.C.A. No. 147, Shelby County

(Tenn. Crim. App., Jackson, June 26, 1985).

According to the Petitioner, he escaped from the Tennessee Department

of Correction in 1987. He was captured in Louisiana in 1988 and apparently was

convicted of attempted murder there. After being imprisoned in the Louisiana

State Penitentiary for a period of time, he was returned to the Tennessee

Department of Correction in February of 1996.
2

 In his brief, the Petitioner claims that he originally mailed his petition for post-conviction relief

from the Louisiana State Penitentiary to the Shelby County Court Clerk on March 2, 1989. In fact, the

petition filed on April 10, 1996, is apparently a copy of the original petition referred to by the Petitioner

and contains a certificate of service and an affidavit of indigency dated in March and February of

1989, respectively. There is nothing in the record which indicates that the original petition allegedly

mailed in 1989 was ever received or filed by the Shelby County Court Clerk. Instead, the record

clearly reflects that the petition actually considered by the trial court in the case at bar was marked as

having been filed on April 10, 1996.

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The petition for post-conviction relief considered by the trial court in the

case sub judice was filed on April 10, 1996.2

 The petition alleged that several of

the prior convictions used to form the basis for the Petitioner’s habitual criminal

conviction were invalid. The challenged convictions were all based on guilty

pleas. The Petitioner asserted that the trial court did not advise him of his

constitutional rights before he pleaded guilty, thereby rendering his guilty pleas

involuntary. Because the convictions used to form the basis for the habitual

criminal finding were allegedly based on involuntary guilty pleas, the Petitoner

argued that his habitual criminal conviction and accompanying life sentence were

invalid. The trial court found that the petition was barred by the statute of

limitations and dismissed it without conducting an evidentiary hearing. It is from

the trial court’s order of dismissal that the Petitioner appeals.

On appeal, the Petitioner contends that the trial court erred in finding that

his petition for post-conviction relief was barred by the statute of limitations. At

the time the Petitioner’s convictions became final, a prisoner could petition for

post-conviction relief “at any time after he ha[d] exhausted his appellate remedies

and before the sentence ha[d] expired or ha[d] been fully satisfied.” Tenn. Code

Ann. § 40-30-102 (1982). In 1986, this section was amended to provide that a

“prisoner in custody under sentence of a court of this state must petition for postconviction relief under this chapter within three (3) years of the date of the final

action of the highest state appellate court to which an appeal is taken or
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consideration of such petition shall be barred.” Tenn. Code. Ann. § 40-30-102

(1990). The three-year limitations period began to run for the Petitioner on the

effective date of the amended provision, July 1, 1986. See State v. Mullins, 767

S.W.2d 668, 669 (Tenn. Crim. App. 1988). The expiration of the three-year

statute of limitations in the Petitioner’s case occurred on July 1, 1989. As we

stated above, the petition considered by the trial court in the present case was

not filed until April 10, 1996.

Of course, the new Post-Conviction Procedure Act governs this petition

and all petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 et

seq. (Supp. 1996). This Act provides, in pertinent part, that “notwithstanding any

other provision of this part to the contrary, any person having ground for relief

recognized under this part shall have at least one (1) year from May 10, 1995, to

file a petition or a motion to reopen a petition under this part.” Compiler’s Notes

to Tenn. Code Ann. § 40-30-201 (Supp. 1996) (referring to Acts 1995, ch. 207,

§ 3). Another panel of this Court has held, with one member dissenting, that the

new Post-Conviction Procedure Act provides “a one-year window” during which

each and every defendant may file a petition. See Arnold Carter v. State, C.C.A.

No. 03C01-9509-CC-00270, Monroe County (Tenn. Crim. App., Knoxville, July

11, 1996), perm. to appeal granted (Tenn. 1996). The Carter court held that the

one-year window is available even if the petition would have been long ago

barred by the three-year statute provided under the previous act.

Other panels of this Court have followed the reasoning of the dissent in

Carter and held that the 1995 Act did not provide previously-barred petitioners

with a new one-year period from May 10, 1995 during which they could petition
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for post-conviction relief. See Doyle Carter v. State, C.C.A. No. 01C01-9511-CC00398, Davidson County (Tenn. Crim. App., Nashville, Feb. 12, 1997); Eric C.

Pendleton v. State, C.C.A. No. 01C01-9604-CR-00158, Davidson County (Tenn.

Crim. App., Nashville, Feb. 12, 1997); Wallace Butler v. Ricky Bell, Warden,

C.C.A. No. 02C01-9510-CC-00297, Fayette County (Tenn. Crim. App., Jackson,

Nov. 19, 1996); Johnny L. Butler v. State, C.C.A. No. 02C01-9509-CR-00289,

Shelby County (Tenn. Crim. App., Jackson, Dec. 2, 1996); Stephen Koprowski

v. State, C.C.A. No. 03C01-9511-CC-00365, Anderson County (Tenn. Crim.

App., Knoxville, Jan. 28, 1997); Steve Koprowski v. State, C.C.A. No. 03C01-

9511-CR-00378, Knox County (Tenn. Crim. App., Knoxville, Jan. 28, 1997).

We choose to follow the reasoning set forth in the Carter dissent. In our

view, the one-year window provided by the language of the new Act is applicable

only to those petitioners who were not already barred by the previous statute of

limitations at the time the new Act took effect. Thus, if the previous three-year

statute of limitations had not expired on a petitioner at the time the new Act took

effect, he or she would have one year from the effective date of the statute, May

10, 1995, to file for post-conviction relief. This approach is in accordance with the

general tenor of the entire Act as well as its legislative history.

In the case sub judice, the record indicates that the Petitioner’s habitual

criminal conviction became final in June of 1985. The previous three-year statute

of limitations began to run for the Petitioner on July 1, 1986 and expired on July

1, 1989. As a result, the Petitioner was already barred by the previous statute of

limitations on the date the new Act took effect, May 10, 1995. In addition, the

Petitioner has not demonstrated that he fits within an exception to the statute of
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limitations. See Tenn. Code Ann. § 40-30-202(b),(c) (Supp. 1996). Accordingly,

the trial court did not err in finding that the petition was barred by the statute of

limitations.

For the reasons set forth in the discussion above, we conclude that the trial

court did not err in dismissing the petition for post-conviction relief. We therefore

affirm the judgment of the trial court.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

JOE G. RILEY, JUDGE