# FILED

Au gust 27, 1997
Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON MAY 1997 SESSI ON
EDWARD EARL JONES, * C.C.A. # 02C0 1-9607-CR- 00226

Appellant, * SHELBY COUN TY VS. * Hon. Arthur T. Bennett, Judge STATE OF TENNESSEE, * (Post-Conv iction)

Appellee. *
For Appellant : For Appellee: Edward Earl Jones, pro se Charles W. Burson #085890 Attorney Gen eral & Repor ter Cold Creek Correction al Facili ty P.O. Box 1000 M. Allis on Thompson Henning, TN 38041-1000 Counsel for the St ate 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Perry H ayes Assistant District Attorney General 201 Poplar Avenue Memphis, TN 38103

OPINION FILE D:_____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The petitioner, E dward Ear l Jones, appeals the trial court's denial of post-convi ction reli ef. The single i ssue presented for review is whethe r the petitio n was barred by the stat ute of limitations

.

We af firm the judgment of the trial cour t.
On August 11, 1 977, the petitione r was convicted of ag gravated rape, for which he received a life sentence; r obbery by

the use of a deadly

weapon, for which he r

eceived an ei ght-year

sentence; and cr ime against n ature, for w hich he received a sentence of not less th an eight years nor more than twelve years. This court affirmed the conv ictions on di rect appeal. Edward Ear l Jones v. State , No. 102 (Tenn. Crim. App., at Jacks on, Feb. 29, 1980) . An applicati on for permissi on to appeal to the supreme court wa s denied July 1, 1980.
On May 14, 1996, the petition er filed a post- convicti on petition, challenging the validity of the rape conviction. The petition er contended that the re were various irregularities regarding the affidavit of complaint, his arrest, and his preliminary hearing in the General Sessions Court. He also argued tha t there were deficiencies i n the arraig nment, the trial , the instruc tions to the j ury, and the sentencing pr

ocedure.

The trial cour

t ruled that th e petition was barred by the three-year statute of limitat ions whi ch had been in effect unti l repealed on M ay 10, 1995. See Tenn. Code Ann. §§ 40- 30-102 to -124 ( repealed 1995).

In this appeal, the petitioner also complains that he should hav

e been3 appointed counsel for assistance in his post- convicti on claim. He contends that the district attorney g eneral failed to respond to his petition as required by statute: The district attorney g eneral shall represent the state and respond by proper pleading on behalf of the state within thirty ( 30) days after

receivi ng notice of the d ocketing or within s uch time as the court orders. Tenn. Code Ann. § 4 0-30-114(a) (repealed 1995 ).

Initially , the dismiss al of a colorabl e post-conv iction clai m, prior to t he 1995 amendment, was rarely proper wi thout the appointment of counsel. Swanson v. State , 749 S.W .2d 731 (Tenn. 198 8). If, however, it could be conclusively determined from the pr o se petition t hat the petitioner is not entitl ed to relief, a summary dis missal is n ot precluded. A time-barred petition is a classic

example. See, e. g. , Frederick

v. State , 906 S.W.2d 927, 930 (Tenn. Crim. App . 1993) (petit ion dismissed w ithout the appoint ment of counsel w hen barred by statute of limit ations). Also, the failur

e of the distric

t attorney general to pa rticipate would not w arrant a reversal unless the peti tioner wa s prejudiced thereby. See Brown v . State , 445 S.W.2d 669 (Tenn. Crim. App. 1969). More impor tantly, the amendments to the Post-Conv iction Procedure Act, effective May 10, 199 5, implemented subst antial changes. See Ten n. Pu b. Ac t 207 , §§ 1 and 3 . Now, t he tr ial ju dges must give preliminary

considerati on to each petiti on. Tenn. Code Ann. § 40-30-206 (1996 Supp.). Because this petition was filed May 14, 1996, the amende d act would apply and, unless the claims fa ll within one of the statutory exceptions, a summ ary dismissal without the appointme nt of counsel would be proper:

If it plainly

appears from the face of the petition, any annexed exhi bits or the pr ior proceedi ngs in the case that the petition was not filed in t he court of conv iction or within t he time set forth i n the statute of li mitations, or that a prior petition was filed attacki ng the conv iction and was resol ved on the meri ts, the judg e shall enter an order dismis sing the peti tion.... Tenn. Code Ann. § 40- 30-206(b) (1 996 Supp.).4 Here, the peti tioner has made no claims that w ould qualify

as an exception to the statute of limitations. Tenn. Code An n. § 40-30-202 (1996 Sup p.);
see Burford v. State , 845 S.W.2d 204 (Tenn. 1992). Thus, under any inter pretation of the 1995 Act, this

petition is

barred by

the statute of li mitations. See Arnold Carter v . State , No. 03C01-950 9-CC-00270 (Tenn. Crim. App., at Knoxvi lle, July 11, 1996), appeal granted , (Tenn., Dec. 2 , 1996).

__________________________________ Gary R. W ade, Ju dge CONCUR:

______________________________ John H. P eay, Judge

_______________________________ Thomas T. Woodall, Judge