### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

uly 25, 2001
DANNY W. HOBBS v. STATE OF TE NNESSEE
Direct Appeal from the Criminal Court for Sullivan County

No. C43,295 Phyllis H. Miller, Judge

No. E2000- 03182-CCA- R3-PC November 7, 2001

The Petitioner/Appellee, Danny W. Hobbs, filed a petition for post conviction relief in the Criminal Courtof Sullivan County. The petition was filed after expiration of the applicable statute of limitations. The trial court granted post-conviction relief a n d the State appeals. After review, we reverse the judg

ment of the trial c

ourt. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Reversed.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which G AR Y R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined. Daniel B. Minor, Kingsport, Tennessee, for the appellee, Danny W. Hobbs.

Paul G. Summers, Attorne y General and Reporter; Pet

er M. Coughlan, Assistant Attorney Ge

neral; H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant District Attorney General, for the appellant, State of Tennessee.
OPINION

The judgment of conviction which was set aside as a result of Petit

ioner’s request

for postconvicti on relief is not a part of the record on appeal. However, we glean the following from the entire record, including the post-conviction court’s findings in the ord er granting post-conviction relief.

On May 20, 1998, Petitioner entered into a negotiated plea agreement and pled

guilty to the offense of introduction of drugs into a penal institution. The agreed sentence was three (3) y ears as a Standard, Range I offender, consecutive to two other sentence s. Petitioner requested alternative sentencing, an

d in a hearing on

July 17, 1998, the trial court granted intensive probation. From the record, we assume that judgment was entered on July 17, 1998; both parties and the trial court agreed that the petition for post-conviction relief, filed October 18, 1999, was filed more than one (1) year after the judgment became final.-2-

The factual basis leading to the conviction was that Petitioner had introduced drugs into an institution known as the “Hay House” where he was serving a commu nity co rrect ions s enten ce. In his post-conviction petition, he alleged that the conviction was “illegal,null, and void inasmuch as Hay House is not a penal institution.” He alleged that his due process rights w

ere violated bec

ause he had entered a plea of guilty to a charg e that does not exist under Tennessee law, that the sentence was therefore “cruel and unusual,” and that he was denied his civil rights guaranteed by the United States Constitution since he received a prison sentence for a crime “which does not and cannot exist under Tennessee law.”

After appointment of cou

nsel, Petitioner’s post-conviction attorney filed an amended petition which speci f

ically alleged that in State v. Kendrick , 10 S.W.3d 650 (Tenn. Crim. App. 1999), th

is court found that the Hay House is not a penal institution as defined in Tennessee Code Annotated
se ction 39-16-201, and re

versed the convi

ction and dismissed

the charges against defendant Kendrick

. The amended

petition alleged that

therefore, Petitioner’s conviction was null and void. No testimony
was introduced at the hearing in the post-conviction court. Howev er, bo th the Peti tioner, th rough counsel, and the State, through the assistant district attorney, were afforded the opportunity to argue.

The transcript of the guil ty plea hearing is not a part of the record in this appeal. The proceedings in the post-conviction court do not include any discussion conce

rning Petitioner

’s guilty plea, other

than what has already been described in this opinion. Prior to the hearing, the State filed
a motion to dismiss the petition for post-conviction relief because it was filed after the expiration of the statute of limitations.

The post-convi ctio n trial court found that Petitioner’s claim did not fall within any of the stat utory exceptions to application of the statute of limitations contained in Tennessee Cod e Annotated section 40- 30 -202(b). However, the post-conviction court found that the statute of limitations should not apply to Petitioner

pursuant to Burford v. State , 845 S.W.2d 204 (Tenn. 1992), and Sands v. State , 903 S. W.2d 297 (Tenn . 1995). The trial court found, pursuant to Burford and Sands , that application o

f the statute of limi

tations would deny

Petitioner his rig

hts to due process of law.

Without further el aboration, the court concluded that P etitioner was entitled to post-conviction relief because the statute of limitations did not apply, and dismissed the charges, thereby setting aside his conviction. Obviously, this was based upon the po st-c onviction court’s conclusion that if Mr. Kendrick’s conviction could n ot withstand scruti

ny becaus e the “Hay House” was not a penal institution, Petitioner Hobbs’ conviction could also not be upheld.

The opinion in State v. Kendrick was filed Septembe

r 10, 1999. Thus,

it was filed after the statute of limitations expire

d in Petitioner Hobb s’ case

. In Burford , the Tennessee Supreme Court found that strict applic

ation of the statute

of limitations in post-conviction matters might violate due process if it prohibited a claim based upon grounds for relief that did not exist when the limitations period began to run. 845 S.W.2d at 208. In Sands , the Supreme Court of Tenness ee stated that in-3-

applying the Burford

rule to “sp ecif

ic factual situat

ions,” a three-s

tep process should

be utilized to determine: (1) When the limitations period would normally have begun to run; (2) Whether

the grounds for relief actually arose af t er the limitations pe

riod would normally have commenced; and (3) If the grounds are “later arising,” whether under the facts of the case, a strict application of the limitations period would effectively deny the p etitioner a reasonable oppo

rtunity to pre

sent the claim.
903 S.W.2d at 301.
In Petitioner’s case, the limitations peri od would have beg

un to run thirty

(30) days after he
was sentenced to intensive probation, which was in August, 1998. A s stated above, the

opinion in Statev. Kendrick

was filed September 10, 1999, more than a year later. Therefore, Petitioner’s alleged “ground for relief” (his reliance upon Kendrick ) arose not only after the limitations period had begun to run, but after it had expired in August, 1999. The next criteria of Sands , concerns whether under the facts of the case, a

strict application of the limitations period would deny the petitioner a reasonable

oppor tuni ty to pr esent the cl aim. It is the third criteria of Sands which controls our conclusion that Peti tioner’s rights to due process are not violated by apply ing the statute of limitations.

Prior to, and at the time o

f his guilty

plea in May, 1998, Petitioner could have asserted the claim that “Hay House” was not a penal institution, although granted, he w o uld hav e not had the Kendrick case to cite as a

uth orit y. However, for whatever reason[s], Petitioner pled guilty to the offense in a negotiated plea

agreement, and by

doing so, accepted with full knowledge of the facts of the case that the Stat

e could establish his

guilt beyond a reasonable doubt. Tenn. R. Crim. P. 11(f).

Petitioner alleged in his pro se post-conviction petition that he entered his guilty plea on the advice of his trial counsel, who had failed to warn him that the “Hay House” w as not a penal institution, “therefore rendering the charge n ull and v oid.” However, the issue of ineffective assistance of

counsel was not pursued by petitioner at the hearing for post-conviction relief, and was not addressed by the post-conviction court. Therefore, that issue is waived. Tenn. Code A nn. § 40-30-202 (a) (Supp. 2000).

Petitioner was not found guilty of a criminal offense that does not exist, as was the defendant in State v. Kimbrough , 942 S.W.2d 888 (Tenn. 1996), wherein the Supreme Court of Tennessee held that there is no such offense i

n Tennessee as “attempt to commit felony murder.” I nstead, Petitioner, (absent findings of fact to the contrary) entered a know ing and voluntary

plea of guilty to a criminal of fen se, based upon a factual situation well known to him and was, as a result, convicted of the offense. Petitioner had amp le opportunity

to present a clai

m that the “Hay House” was not a “penal institution” prior to his guilty plea. The fact that an appellate court, over a

year later, held that another-4-

defendant in an unrel ated case co uld not be convicted of the same criminal offense based upon a virtually identical factual situation, does not result in Petitioner’s conviction being null and void.
Therefore, Petitioner’s claim for post-con viction relief was barred by the statute of limita

tions. Even if not so barred, w

e would be compell

ed to hold that the trial court erred by granting relief on the issue presented by the Petitioner. Essentially, Petitioner’s claim was that the State had insufficient evidence to support his conviction for introduction of drugs into a penal institution, based uponthis court’s holding in Kendrick . Post-conviction relief is granted only where a petitioner has been denied
a constitutional right. Tenn. Code Ann. § 40-30-203 (Supp. 2000). While i t is true that, constitutional ly, a d efendant’s conviction must be based upon proof beyond a reasonable doubt of eachelement of the offense, Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1 979); In re Win ship , 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), Petitioner Hobbs waived this requirement upon entering a knowing and voluntary plea of guilty. As stated above, there is absolutely nothing in this record to support a conclusion that Pe

titioner’s guilty plea was not voluntarily and knowingly entere d. Presumably, by entering a g uilty plea, he accepted that the facts which th

e State could prov

e would establish h

is guilt bey

ond a reasonable

doubt. The fact that a later case

of this court would g

ive support to a dif

ferent c onclusion, if he had the opportunity

to plead gui lty again, does not justi fy granting post- conviction relief in this case. Therefore, since his claim for relief is essentially based upon an attack upon the suffi ciency of evidence to support the conv ictio n, relief und er the post-conviction act is not cognizable. Absent
some proof

in the record that Petitioner’s guilty plea was not knowingly and voluntarily entere d, the only conclusion to be re

ached is that he waived an y challeng

e to the sufficiency of the evidence upon entry of the g uilty plea . Therefore, no constitutional claim was made by the Petitioner in the trial court, and he is not entitled to relief on the petition for post-conviction relief.
CONCLUSION

The judgment of the tr

ial c ourt is reversed, and Petitioner’s conviction for introduction of drugs into a penal institution is reinstated.

___________________________________ THOMAS T. WOODALL, JUDGE