IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 28, 2017

TERRY LEA BUNCH v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County

No. CC-2017-CR-80 Jill Bartee Ayers, Judge

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No. M2017-00246-CCA-R3-PC

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Petitioner, Terry Lea Bunch, appeals the summary dismissal of his petition for postconviction relief for being filed untimely. Petitioner alleged in his petition that defects in 

the affidavit of complaint rendered his conviction void. Having reviewed the record and 

the parties’ briefs, we affirm the judgment of the post-conviction court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and J. ROSS DYER, JJ., joined.

James R. Potter, Clarksville, Tennessee, for the appellant, Terry Lea Bunch.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant 

Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur 

Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Petitioner pled guilty to driving under the influence (“DUI”) second offense and 

was sentenced to 11 months and 29 days, to be suspended on probation after 45 days of 

incarceration. The judgment was entered on June 1, 2015. 

Petitioner’s pro se petition for post-conviction relief has two file stamps of the 

Montgomery County Circuit Court Clerk. One file stamp is dated December 8, 2016, and 

the other stamp is dated January 20, 2017. There is a notation on the petition that states, 

“move to circuit court.” In his brief on appeal, Petitioner states that he filed his petition 

on December 8, 2016, in the Montgomery County General Sessions Court, and the 

petition was subsequently re-filed in the Montgomery County Circuit Court. On January 

05/08/2018
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23, 2017, the trial court entered a written order summarily dismissing the petition as timebarred. 

In his petition, Petitioner alleged that defects in the affidavit of complaint rendered 

the charging instrument and subsequent conviction void. The affidavit of complaint 

contains a typewritten statement of the facts surrounding Petitioner’s arrest. At the 

bottom of the typewritten statement, there is a handwritten note that states, “[Defendant] 

has prior convictions for DUI with his last conviction on 7/12/2013.” Petitioner contends 

that the statement does not conform to the requirements of Tennessee Code Annotated 

section 5-10-411(b)(2) because it did not “disclose the time, place, and state of his 

previous DUI conviction.” 

The State contends that Petitioner has failed to establish any grounds for due 

process tolling of the statute of limitations and that none of the statutory exceptions that 

toll the post-conviction one year statute of limitations apply. Therefore, the postconviction court properly dismissed the petition as untimely. 

Post-conviction relief is available when a “conviction or sentence is void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A person in 

custody under a sentence of a court of this state must petition for post-conviction relief 

“within one year of the date of the final action of the highest state appellate court to 

which an appeal is taken or, if no appeal is taken, within one year of the date on which 

the judgment becomes final.” Id. § 40-30-102(a). “The statute of limitations shall not be 

tolled for any reason, including any tolling or saving provision otherwise available at law 

or equity.” Id. Moreover, “[t]ime is of the essence of the right to file a petition for postconviction relief or motion to reopen established by this chapter, and the one[ ]year 

limitations period is an element of the right to file the action and is a condition upon its 

exercise.” Id. If it plainly appears on the face of the post-conviction petition that the 

petition was filed outside the one year statute of limitations or that a prior petition 

attacking the conviction was resolved on the merits, the post-conviction court must 

summarily dismiss the petition. Id. § 40-30-106(b). “The question of whether the postconviction statute of limitations should be tolled is a mixed question of law and fact that 

is . . . subject to de novo review.” Bush v. State, 428 S.W.3d 1, 16 (Tenn. 2014) (citing 

Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011)). 

Tennessee Code Annotated section 40-30-102(b) provides three exceptions to the 

statute of limitations for petitions for post-conviction relief: (1) claims based on a final 

ruling of an appellate court establishing a constitutional right not recognized as existing 

at the time of trial and given retroactive effect by the appellate courts; (2) claims based 

upon new scientific evidence establishing that the petitioner is actually innocent of the 
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conviction offense; and (3) claims seeking relief from a sentence that was enhanced 

because of a previous conviction and the previous conviction was later held to be invalid. 

T.C.A. §§ 40-30-102(b)(1)-(3). 

In addition to the statutory exceptions, our supreme court has held that due process 

principles may require tolling the statute of limitations. See Whitehead v. State, 402 

S.W.3d 615, 622-23 (Tenn. 2013). To date, our supreme court “has identified three 

circumstances in which due process requires tolling the post-conviction statute of 

limitations” (1) when the claim for relief arises after the statute of limitations has expired; 

(2) when the petitioner’s mental incompetence prevents him from complying with the 

statute of limitations; and (3) when the petitioner’s attorney has committed misconduct. 

Id. at 623-24. To succeed upon such a claim, a petitioner must show “(1) that he or she 

had been pursuing his or her rights diligently, and (2) that some extraordinary 

circumstance stood in his or her way and prevented timely filing.” Id. at 631 (citing 

Holland v. Florida, 560 U.S. 631, 648-49 (2010)). 

Petitioner concedes that his petition for post-conviction relief was filed outside of 

the one year statute of limitations. Petitioner does not argue nor does the record show 

that any of the statutory exceptions or any of the grounds set out in Whitehead apply to 

his case. Instead, Petitioner asserts generally that the trial court lacked subject matter 

jurisdiction, and that his challenge “may be raised at any time.” This allegation does not 

satisfy any of the available grounds for due process tolling of the statute of limitations. 

Moreover, Petitioner’s claim, even if timely, would not entitle him to relief under 

the Post-Conviction Procedure Act. While both the state and federal constitutions 

guarantee an accused the right to be informed of the nature and cause of the accusation 

against him, neither creates a right to a charging instrument free from defect. See State v. 

Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (recognizing “that an indictment need not 

conform to traditionally strict pleading requirements”). To satisfy constitutional 

requirements, a charging instrument must “‘1) provide notice to the accused of the 

offense charged; 2) provide the court with an adequate ground upon which a proper 

judgment may be entered; and 3) provide the defendant with protection against double 

jeopardy.’” State v. Lindsey, 208 S.W.3d 432, 438 (Tenn. Crim. App. 2006) (quoting 

Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000)). Petitioner’s specific contention – that 

the charging instrument fails to comply with the requirements for charging an enhanced 

DUI under Tennessee Code Annotated section 55-10-411(b)(2) – alleges only a statutory 

violation rather than a constitutional violation. See Kenneth DeWayne Johnson v. State, 

No. M2013-02491-CCA-R3-PC, 2014 WL 3696268, at *3 (Tenn. Crim. App. July 24, 

2014) (citing T.C.A. § 40-30-103) (holding that a statutory defect in a charging 

instrument did not raise a cognizable claim for post-conviction relief), perm. app. denied

(Tenn. Nov. 19, 2014). Petitioner’s guilty plea waived all non-jurisdictional defects in 
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the charging instrument. See State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). 

Petitioner is not entitled to relief. 

CONCLUSION

Based on the foregoing, we affirm the judgment of the post-conviction court.

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THOMAS T. WOODALL, PRESIDING JUDGE