FILED

December 18, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1997

OLEN EDWARD HUTCHISON, ) C.C.A. NO. 03C01-9702-CR-00065

)

Appellant, )

) CAMPBELL COUNTY

)

V. )

) HON. JAMES WITT, JUDGE

STATE OF TENNESSEE, )

)

Appellee. ) (POST-CONVICTION)

FOR THE APPELLANT: FOR THE APPELLEE:

CHRISTOPHER VAN RIPER JOHN KNOX WALKUP 

STUART & VAN RIPER Attorney General & Reporter

300 Market Street

Clinton, TN 37716 JOHN P. CAULEY 

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243-0943

WILLIAM PAUL PHILLIPS

District Attorney General

MICHAEL O. RIPLEY 

Assistant District Attorney General

P.O. Box 323 

Jacksboro, TN 37757 

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Petitioner, Olen Edward Hutchison, appeals as of right from the

trial court’s dismissal of his second petition for post-conviction relief. The

dismissal followed argument by both parties on the State’s motion to dismiss.

The trial court allowed both parties to argue the merits of the State’s motion to

dismiss, but no evidence was submitted by either side at the hearing. W e affirm

the judgm ent of the trial court. 

In his appeal, Petitioner presents three (3) issues for review:

(1) The trial court erred by not finding that the statute of

limitations codified in Tennessee Code Annotated section 40-

30-202(a) violated the due process rights of Petitioner and by

not making findings of fact mandated by our supreme court in

Sands v. State, 903 S.W.2d 297 (Tenn. 1995).

(2) The trial court erred by finding that statements included within

an exhibit attached to the petition for post-conviction relief

were not “Brady” material. 

(3) The trial judge who granted the State’s motion to dismiss was

not one who was properly designated to hear this petition for

post-conviction relief pursuant to Tennessee Code Annotated

section 40-30-205.

FACTUAL BACKGROUND

Petitioner was convicted of the first degree murder of Hugh

Huddleston, conspiracy to take a life, and solicitation to commit first degree

murder. For the conviction of first degree murder, he received the death penalty.

The convictions and sentences were affirmed on direct appeal. State v.

Hutchison, 898 S.W .2d 161 (Tenn. 1994), cert. denied, ____ U.S. ____, 116
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S.Ct. 137 (1995). On May 4, 1995, Petitioner filed his first petition for postconviction relief. The trial court denied the petition following an evidentiary

hearing on September 27, 1995, and the dismissal of the first petition for postconviction relief was recently affirmed by a panel of this court. Olen Eddie

Hutchison v. State, No. 03C01-9601-CC-00033, Campbell County (Tenn. Crim.

App., Knoxville, Oct. 3, 1997). In the case sub judice, Petitioner filed his second

petition for post-conviction relief pro se on August 1, 1996. The State filed a

motion to dismiss this second petition on August 29, 1996. Petitioner filed a pro

se response on September 12, 1996, and Petitioner’s counsel in the first postconviction petition appeared in the present case and filed a motion in the case

sub judice on September 17, 1996. The trial court allowed a hearing in this

matter on September 19, 1996, and dism issed the petition. 

In the second post-conviction petition which is the subject of this

appeal, the Petitioner alleges that the State withheld exculpatory material before

and during the original trial which led to his convictions. Petitioner alleged that

the material withheld was in violation of the mandates found in Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194 (1963). The specific item argued in this court to be

Brady material is a statement purportedly made by one Tony Goings to an

insurance company investigator. In this recording of the statement given by Mr.

Goings, one David Davis told Mr. Goings about a conversation he had with

Richard Miller who was, as described by our supreme court in the direct appeal,

the chief prosecution witness. Hutchison, 898 S.W.2d at 165. Petitioner admits

in his brief that the report from the insurance investigator was included in a large

volume of documents which Petitioner’s attorney was allowed to examine prior

to the hearing of the original post-conviction petition. Petitioner argues, however,
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that he and his counsel were not provided with adequate time to “examine and

utilize” the investigative report in order to include it in the original post-conviction

hearing. 

The trial court dismissed the present petition because it was filed

after the expiration of the applicable one year statute of limitations and a prior

petition for post-conviction relief had been previously filed and heard on its

merits. He also ruled that the claims and issues asserted had been waived

pursuant to Tennessee Code Annotated section 40-30-206(g), and the facts

alleged in the Petition, even if taken as true, failed to show that the Petitioner is

entitled to relief as the alleged exculpatory evidence does not constitute “Brady”

material pursuant to Tennessee Code Annotated section 40-30-206(f).

DUE PROCESS VIOLATION

Relying upon Sands v. State, 903 S.W.2d 297 (Tenn. 1995), the

Petitioner argues that the trial court erred by not making certain findings of fact

as mandated in that decision of our supreme court, and by not finding that the

statute of limitations violated his due process rights. In Burford v. State, 845

S.W.2d 204 (Tenn. 1992), our supreme court held that the three-year statute of

limitations then in effect on post-conviction petitions complies with the due

process requirements of the United States and Tennessee Constitutions.

However, the supreme court also recognized that “before a state may terminate

a claim for failure to comply with procedural requirements such as statutes of

limitations, due process requires that potential litigants be provided an

opportunity for the presentation of claims at a meaningful time and in a
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meaningful manner.” Id. at 208 (citations omitted). Therefore, the suprem e court

found that in particular circumstances, application of the statute of limitations

might not afford a reasonable opportunity to have an issue heard and decided.

Id. In addition, the court suggested that “[c]learly, it would be helpful in such

instances for the legislature to adopt a shorter statute of limitations for later

arising grounds providing such a reasonable opportunity.” Id. In a separate

concurring opinion Justice Daughtrey also noted that “[i]t obviously would be best

if the Tennessee General Assembly would enact legislation dealing specifically

with the effect of T.C.A. § 40-30-102 [statute of limitations on post-conviction

matters] on later-arising grounds.” Id. at 212.

Petitioner’s first petition for post-conviction relief attacking his

convictions and sentences was timely filed and an evidentiary hearing was held.

Not only does the statute of limitations bar the second petition for post-conviction

relief, but it is also barred by the provisions of Tennessee Code Annotated

section 40-30-202(c) which states in part, “[t]his part contemplates the filing of

only one (1) petition for post-conviction relief. In no event may more than one (1)

petition for post-conviction relief be filed attacking a single judgment.” Tennessee

Code Annotated section 40-30-206(b) provides in pertinent part that “[i]f it plainly

appears from the face of the petition, any annexed exhibits or the prior

proceedings in the case that . . . a prior petition was filed attacking the conviction

and was resolved on the merits, the judge shall enter an order dismissing the petition.”

As noted above, Petitioner candidly admits that he had access to the

alleged “Brady” material prior to the hearing on the first petition for postconviction relief. There is no evidence in the record to suggest that Petitioner
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was not provided an opportunity for the presentation of claims at a meaningful

time and in a m eaningful manner as required by Burford, 845 S.W.2d at 208.

Therefore, this issue is without merit.

FINDING THAT ALLEGED EXCULPATORY INFORMATION WAS NOT “BRADY” MATERIAL

The trial court was justified in dismissing this second petition for

post-conviction relief on the basis that it had been filed after expiration of the

statute of limitations, and another petition for relief had already been filed and

heard on the merits. However, the trial court erred in relying upon Tennessee

Code Annotated section 40-30-206(f) to support dismissal of the petition without

an evidentiary hearing. 

In its order dismissing the petition, the trial court stated that the

allegations in the petition, even if true, failed to show that the Petitioner was

entitled to relief, failed to show that the claims for relief had not been waived, and

made a finding that the alleged exculpatory evidence did not constitute “Brady”

material. In its ruling from the bench, the trial court expressed doubt that

Petitioner could prove the allegations contained in the petition. 

Included within the petition are the allegations that the prosecution

knowingly presented perjured testimony during the trial and withheld exculpatory

information, among other claims. In essence, it appears from the record that the

trial court made a determination, without an evidentiary hearing, that it did not

believe the allegations. 
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The standard in Tennessee Code Annotated section 40-30-206(f)

requires the trial court to assume the facts alleged to be true, and then make a

determination that the Petitioner is still not entitled to any relief. Also, there are

allegations in the petition that the claims for relief were not waived. We

respectfully find that the trial court applied the wrong standard of review and the

petition should not have been dismissed pursuant to Tennessee Code Annotated

section 40-30-206(f). However, since we determined that the petition was

properly dismissed because it had been filed after expiration of the statute of

limitations and a prior post-conviction petition had been filed and heard on the

merits, any error by the trial court was harmless.

TRIAL COURT’S JURISDICTION

Petitioner argues that Judge James C. Witt did not have jurisdiction

to enter an order dismissing the petition for post-conviction relief. In support of

his argument, he relies upon Tennessee Code Annotated section 40-30-205(b)

which provides as follows:

At either the trial proceeding or an appellate proceeding reviewing

the proceeding, the presiding judge of the appropriate court shall

assign a judge to hear the petition. The issue of competency of

counsel may be heard by a judge other than the original hearing

judge. If a presiding judge is unable to assign a judge, the chief

justice of the supreme court shall designate an appropriate judge to

hear the matter. 

It appears from the record that Judge Witt was designated to preside

over the trial of the original charges and also was designated to hear the first

petition for post-conviction relief. Counsel for Petitioner did not challenge the
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appropriateness of Judge Witt to hear the case until the morning of the hearing

on the State’s motion to dismiss. 

While we recognize that the language contained in Tennessee Code

Annotated section 40-30-205(b) appears to be mandatory, we also note there is

nothing in the record to indicate that the presiding judge of the Circuit Court of

Campbell County would not appoint Judge Witt to hear this particular petition.

Even if it was error for Judge Witt to hear the State’s motion to dismiss without

strict compliance with Tennessee Code Annotated section 40-30-205(b), we hold

that it was harmless error. In May v. State, 589 S.W.2d 933, 934 (Tenn. Crim.

App. 1979), our court held that it was harmless error for the trial court to dismiss

a petition for post-conviction relief without an evidentiary hearing and not comply

with a statute requiring the court to designate a judge other than the one who

presided at trial to hear a related post-conviction matter. This issue is without

merit.

Finding no reversible error, we affirm the judgment of the trial court.

The sentence of death will be carried out as provided by law on the 8th day of

April, 1998, unless otherwise ordered by the Tennessee Supreme Court or other

proper authority. 

____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

DAVID H. WELLES, Judge
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___________________________________

JOHN K. BYERS, Senior Judge