### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Decem ber 9, 2003 Session
ANTON McDON

ALD v. STATE OF

TENNESSEE Direct Appeal from the Circuit Court for Rutherford County No. F-53618 James K. C layton, Jr., Judge

No. M2003-00947-CCA-R3-PC - Filed January 28, 2004

The petitioner, Anton McDona ld , appeals the dismissal of his petition for post-conviction relief from a guilty plea topossessio n of over .5 gra ms of coc aine with

the inten t to sell or deliver, arguing that the post-con

viction c ourt err

ed in finding that the petition was time-barred. Following our review , we affirm the dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID H. W ELLES and D AVID G. H AYES , JJ., joined. Terry A . Fann, Murfreesboro, Tennessee , for the appellant, Anton McDonald.
Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; William C. Whitesell, Jr., District Attorney General; and John W. Price, I II , As si stant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION
FACTS
We first will set out the facts, as stated by the prosecution at

the July 28, 1998, submission hearing, which were the ba sis for the charges ag ainst the petitioner:

[The petitione

r was] charged

. . . in Count

No. 1 with p ossession

with the intent to sell over a half gram of crac k cocaine, in Count No. 2 withpossessio n of drug

paraphe rnalia, and in Coun

t No. 3 with resist ing arrest, these ev ents occurring on Novemb er the 21 st of [19 97]. [O]fficers with the Murfreesboro Police Department executed a search warrant at an a partment that

was owned by

Brenda-2- Rutledge, who was charge d . . . with maintaining that dwelling for the purpose of keeping or selling drug s. And when they e

xecuted the search warrant, they found [the petitioner] upstairs in a bathr oom. There were two separate quantities of drugs found in the ho use, on e in a bedroom adjoining that ba throom that . . . was approximately 1.8 g rams. And the n downstairs they found another quantity of coca

ine. Both of those were packaged f

or resale.

. . . . [The petitioner was] on probation . . . for a to tal of 12 y ears, having been rel ease d from boot camp. . . . There [was] a probation revocation pending in both of [his previous] cases based on these new arrests , failure

to repor t these new arrests, and failure to pay fines and costs and failure to do his public service work.
Alth ough the sear

ch itself seemed t o be in com

pliance with all of his righ ts that he w ould have , there w ere some things tha t arose subsequent

in rega rd to this c ase , including the fact that [the petitioner] was held

appare ntly a little bit longer than he should have been without the issu ance of the arr est warr ant.
A nd there wo uld be at least the possibility of a filing . . . a suppression motion . . . . [The prosecution too k] all th is i nto con sideration and draf

ted a some

what uniq ue settle ment . . . in

th a t [the petitioner] . . . remain[ed] on probation. [The] agreement [was] that upon [the petitioner’s] plea of guilty in Count No. 1, as cha

rged, to possess ion with the intent to se

ll or deliver over a half gram of c rack cocaine, he

w ould receive a sentenc e of eig

ht y ears, Ra

nge 1, 3 0 perce

nt.
The petitioner’s sentence was suspended, and he wa s placed on probation and ordered to pay a $4000 fine. This sentence was to run consecutively to a pr

evious sentence, for

a total of twenty y

ears on probation. In exchange , the prosecution dismissed Counts 2 and 3.
On September 29, 2000, the petitioner’s probation was revoked, and he w as incarcerated. He fil ed his first petition for post-conviction relief on July 24, 2001, which wa s dismissed as untimely because it was filed past the one-y ear statute of limitations. No appeal was taken from this dismissal. On December 20, 2002, the petitioner filed a second pro se petition for post-conviction relief, whi ch i s t he b asi s fo r th e cu rre nt app eal . In his petition, he alleged that he had discovered new1 M s. Rutledge’s stateme nt was, in part: “I was in my room playi ng wit h my Grandson wai tin g on my daught er to com e get him , cause soon as she’d com e get him I was go nna ge t high, I had m y rock s sitting on m y dresse r in a peice [sic ] of paper. My stem was i n the dra wer along with a nother [si c] li ttl e peice [s ic] of Rock . . . .” -3- exculpatory

evidence, that

his codefendant, Brenda Rutledge , gave a handwritten statement to police in which she admitted that the drugs found in theresidence wer e hers. 1 The petitioner contended that his pe ti ti on fo r p os t- co nv ic ti on re li ef wa s n ot un ti me ly b ec au se th is ev id en ce wa s “ ma li ci ou sl y” withheld from him by his retained trial counsel, and he did

not discover it until he received a copy of his file from his attorney on Mar ch 9, 2001, after the statute of limitations had already expired. Had he known of

his codefendant’s statement prior to his guilty plea, he “would not

have plead [sic] guilty and would hav e insisted

on going to trial.” The post-conviction court entered a preliminary order on January 22, 2003, finding that the pe titioner had presented

a colora ble claim. The State then filed a motion to dismiss the petition on January 26, 2003, arguing that it was time-barred.
A hearing was held on the Stat

e’s motion

to dismiss on March 17, 2003, at which counsel fo r the petitioner argued the petition was not time-barre d because he had no know ledge o f th e exculpatory

evidence until March 9, 2001, after the statute of limitations had expired. No testimony was presen ted at the he aring, the proc eeding consisting

solely of conte nding le gal ar

gumentsas to whether the petition was time-barred. The post-conviction court dismissed the petition, concluding that it was barred by

the applicable statute of limitations, and the petitioner appealed.

ANALYSIS
A post-conviction petitioner bears the burden of pr oving his allegations by clear and convincing evidence. See Tenn. Cod e Ann. § 40 -30-210(f). When a n evident iary hearing is held in the post-conviction setting, the findings of fact made by the court ar

e conclusi ve on app eal unle ss the evidence preponderates ag ainst them. See Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate court should not reweigh or reeval uate the evidence. See Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial c ourt’s applica

tion of the

law to the

facts of the case is de novo , with no presumption of correctness. See Ruff v. Sta te , 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel and possib le preju dice to the defen se are m ixed questio ns of law a

nd fact a nd, thus, subject to de novo review by the appel late court

. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).
F i rst, we will review the timeliness of the petitioner’s claim pursuant to Tennessee Code Annotated section 4 0-30-202 (a), wh ich requ ires that a post-conviction petition be filed within one year of the fin al action

of the hig

hest state appella te court reviewing the c onviction or of its becoming final: Exceptas providedin subsec tions (b) a nd (c), a person in custody under a sentence of a

court of this state must petition for post-conviction relief u

nder this part with

in one (1) ye ar of the

date-4- of the fina l action o f the hig

hest state appella te court t o w hich an appeal is t aken or, if

no appeal is taken, within one (1) year of the date on which t

he judg ment bec ame fina l, or cons id er ation of such petition shall be barred. The statute of limitations shall not be tolled for any reason, including

any tolling o r saving provision

otherwis e available at law or equity . Time is of the essence of theright to file a petition for post-conviction relief or motion t o reopen established by this chapter, and the one-ye ar limitations period is an element of the right to file such an action and i s a condition upon its exercise. Exceptas specifically pr

ovided in subsections (b) and (c), the right to filea petition for post-conviction relief or a motion to reopen under this chapter

shall b e ex tinguished upon the expiration of the limitations period.
In the present appeal, the petitioner arg ues that his claim should not have been dismissed as untimely because, by

his view, it is a later-arising claim that could not have been ra ised during the applica ble statute of limitations. Specifically, he arg ues that he did not discover the new evidence until March 9, 2001, whe n his attor

ney sent h im a copyof his client file which contained the statement of Brenda

Rutledg e. At the h

earing on the Stat

e’s motion

to dismiss the post-conviction petition, the parties agreed, for purposes of e xpediting the matter, that the petitioner had learned of his codefendant’s statement at the time and in the man

ner he ha d alleg ed, diff

ering, however , as to whether discovery in this fashion entitled him to procee d with an otherw is e untimely post-conviction petition.
In certain circumst ances, due proc ess prevents the strict application of the post-conviction statute of limitations to bara petitioner's claim when the grounds for reli ef, whe ther leg al or fa

ctual, arise after th e point at which the

limitationsperiod w ould norma lly have be gun torun, as explained in Sands v. Sta

te , 903 S.W.2d 297, 301 (Ten n. 1995), setting

out the thr

ee-ste p proces s to asce

rtain whe ther to apply the statute of limitations: “(1) deter mine when the limitations peri od woul d normally have begun to run; (2) determine whe ther the ground s for relief actually arose after the limitati ons period would normally have commenced; and (3) if the grounds ar e ‘later-arising , ’ determine if

, und er the f

acts of th

e case, a strict a

pplicatio n of the lim

itations pe

riod would effectively

deny the petitioner a

reasonable opportunity

to present the claim.” Id.
At the submission hearing, the prosecutor, providing the trial cou rt background into the matter, stated that “[t]here were three codefenda nts. They all basicallypled guilty to at lea st one offense th ey were charged wi th as charged . . . .” Thus, at the time of his pleas of g uilty, the petitioner knew th at charges had been re solved against all those charged in the ma tter and, pr es um ab ly, that the records had become available as public records. Although the petitioner pled guilty on July 28, 1998, a

nd learned of Rutle dge’s a lleged exculpato

ry statemen t nearly three ye ars lateron March 9, 2001, he inexplicably did not raise his claim as to late discovered exculpatory evidence until Dec ember 20 02 when he filed the post-con viction pe tition which is the basis for this2 W hat is appare ntl y a part ial copy of t he tra nscri pt of t

his h earing is i ncluded in the ap pen dix to th e petitio ner’s brief. -5- appeal. Thus, even after

being armed with the statement of his codefenda nt, the petitioner waited nearly two y ears to r

aise his c laims base d upon tha t stateme nt.
The pe titioner’ s claim is p remised o n his asse

rtion that his trial c ounsel wit

hheld a codefendant’s statement which would have “cleared the petitioner of guilt.” Even though the record on appeal is sparse and many of the documents relied upon by the petitioner are attached to his brief rather than included in the technical record, it is obvious that the statement of codefendant Brenda Rutl edge does not “ clear”him. Her statement, in part, was that she “had [her] rocks sitting on [her] dresser in a pei ce [sic] of pap er [and] [he r] stem wasin the dra

wer along with a

nother [sic ] little peice [sic] of

Rock.” However, according to the testimony 2 of Detective Terry Spence, a narcotics officer withthe Murfreesboro Police Department, at the petitioner’s bond reduction hearing, “[t]here was one plastic bag in the downstairs dresser, a nd there was one plastic bag in the upstairs dresser drawer of the master bedroom,” and the b edroom w as “ [a]djoining the bathroom . . . [v]ery accessible.” Impor

tantly , Rutledg e claime d owners hip only of the drug s downstairs near her, not of those upstairs n

ear the petitione r. As for th e peti tioner’s actions, Spence said the petitioner was “barricaded” in a bathroom of the apartment when officers e ntered to execute the search warr ant. They were “ all scream ing police, police, search warrant” a nd, after knocking on the door severa l times, broke it down. Officers found $410 in cash on the petitioner but no drug s.
Given the facts of the case, that codefenda ntRutl edge cla imed o wners hip o nly of the drugs found downstair s near he r, but not o f those up stairs where the petitione r had bar ricade d himself i n the bathro om, i t is n ot su rpris ing th at the petit ioner ’s tri al cou nsel d id no t beli eve th at Rut ledge ’ s statement aided the

petitione r. Thus, th

e petitioner’s so- called “ later-a rising”claim is , in f

act, wi th ou t m er it , a s w el l a s u nt im el y. CONCLUSION Based upon the foregoing authorities and reasoning, we affirm the post-c onviction court’s dismissal of the petition for post-conviction relief.

______________________________ ALAN E. GL

ENN, JUDGE