# FILED
September 19, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE SEPTEMBER 1995 SESSI ON

JAIMIE K. LOVA

TO, ) ) Appellant, ) NO. 03C01-9410- CR-00375 ) ) GREENE COU NTY CRIM INAL V. ) NO. C11793 ) ) HON. JAMES E. BEC KNER, JUD GE STATE OF TENNESSEE, ) ) Post-Conv iction ) Appellee. )

FOR THE APPELLANT : FOR THE APPELLEE : Paul G. Whetstone Charles W. Burson 502 North Jack

son Street Attorney Gen eral and Repor ter Morristow n, Tennessee 37814 Christiana S. Shevali er Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0943 C. Berkeley Bell, Jr. Distric t Attorney General Cecil Mills Assistant D istrict A

ttorney Gener

al 109 South Main St reet, Suite 501 Greenevil le, Tennessee 37743

OPINION FILE D: _______________

Affirmed

Lee Russ ell, Spe cial Judge OPINION2 This is an appeal from the dismiss al of a Petition for Post-Conv iction Rel ief filed pro se by Jaimie K. Lovato ( “Petitioner ”). The Pe tition was dismisse d by the tria l judge without a hearing and wit hout t he appointment of counsel . The Order st ated that the Petition was dismissed on the grounds that all issues r aised had b een previously determined or waiv

ed under Tennessee C ode Annot ated § 40-30-102 and that the Petition wastime-barred under Tennessee Code Annotated § 40- 30-102. The Petiti oner has appealed the dismi ssal on the g rounds thatcounsel shoul d have been appoi nted and
a full evident iary hear ing held on the Petition, on the grounds that the three year statute of limitation had not passed since final disposi tion of the Petiti oner’s prev ious Petition for Post-Conv iction Relief, and on the groundsthat the issues raised in t he second Petiti on forPost-Conv iction Rel ief were not previously determined or waived. We af firm the trial court.
The Petitioner was c onvic ted on Septembe r 1, 1989, for a numb er of offe nses, including aggrav

ated rape, agg ravated ki dnapping, ag gravated sexual batt ery, ro bbe ry, burgl ary, larceny, assault w ith intent to commit rape, armed robbery, simple possess ion of marijuana, cr iminal tresp ass, and prow ling. The Pet itioner waived his right to a trial by jury and entered a plea of guilty pursuant to a plea bargain agreement. There was no direct appeal from the ple a of guilty. The Petitioner su bsequently file d pro se a first Petition for Post-Conv iction Rel ief, which w as amended by counsel . This court affirmed the tri al c ourt ’s d ismi ssal of th e fir st P etit ion on Ja nuar

y 28 , 199 2, i n thecas e of Jaimie K. L ovat o v. State , Greene County , C.C.A. No . 03C01-9108-C R-00244, Opini on filed January28, 1992, at Knoxv ille. On M ay 18, 1992, the Tennessee Supr eme Court denied the Petitioner’ s applicatio n for permissio n to app eal this c ourt’s judgment on the first Peti tion for P ost- Conv ict ion Rel ief.

The original post-conv icti on case raised two gr ounds for relief, fir

st, that the Petitioner’s pleas of guil ty wer e involuntar

y, and second, that the Peti tioner recei ved3

inef fec tive assistance of counsel. Both issues were based on the Petitioner’s claim that his trial couns el incorre ctly adv ised him that h e wa s subject to t he death penalty for armed robbery. No issue was raised in the first post-con viction proceeding ab out the Petitioner

being und er the in fluen ce of d rugs at the first se ntenci ng hearin g. A full evidentiaryhearing was conducted on the first application for post-conv iction rel ief, and the trial judge found as f ollows: [Defense counsel in the origi nal cases] adv ised the petiti oner of all the chargesagainst him; all his rights; all his options; the consequences of his actions; of all the ev idence i n th e case; all procedures; all punishme nts. The death penalty

was never discusse d with hi m. No one object ively can look at thi s rec ord and come to any conclusion other than these lawyers did everyt hing that could be done in the repres entation of the pet iti oner and that the decisions

and tactics were correct ones. . . [I]t appears t hat plea negotiations

wenton for a period of at least two months. And the lawyers were careful to advise the petit ioner of all possibilities, punishments, options and make recommendati ons based upon the gr eat efforts that had preceded the plea negotiations. But they were careful to leave the choice of whether to plead guilty or to go to trial to petitioner.
This Petitioner ap pealed the first denial of post-convi ction reli ef to this court, and
an opinion was filed on Januar y 28, 1992. Thi s court found that t he Petitioner “ received the bene fi t of very

experienc ed counsel w ho diligent ly investigated al l aspects of the
c ases and ably represented him i n their prepar ation.” This court agre ed with th e tria l court th at the Petitioner at his sentenc ing hearing“convinc ingly” testified that h e understood the range of puni shment to whi ch he was ex posed and he “convinc ingly and und erst and ingly” confirmed the factual allegatio ns against h im. This court affirmed the trial cour t’s dismiss al of the first post-conviction proceeding, and the Petitioner filed for perm iss ion to appeal to the Tennes see Supreme Cour t. As prev iously stated, the Supreme Court deni ed that applicat ion on May 18, 1992.
The Petitioner fil ed the instant Pet ition, his s econd petition, on May 4, 1994. He also filed a Motion to Proceed in Forma Pauperis and a Memorandum of Law in support of his Petition. The St ate filed its Answer on June 6, 1994. On September 6, 199 4, the trial court dismi ssed the second Petit ion for Post-C onviction Relief as beingtime-barred and as raisingissues that had pre viously been determined or

were waived. The Petitioner

subsequently filed a Motion for Appoin tment of Counsel, and o ne was4

appointed. Noti ce of Appeal was filed on September 27, 1994. Tennessee Code Annotated § 40- 30-102 prior to its repeal in 1995 stated th at a prisoner in custody

in Tennessee “must

petition for post-c onviction relief under this chapter within three (3) years of the d ate of the final actio n of the highest state appellate court to which an appeal is taken or consider ation of such petition shall be bar red.” The Petitioner

argues that the three yea r period be gan to run on May 18, 19 92, when the SupremeCourt denied permis sion to appeal the denial of the first post- convicti on proceeding. If that were the correct time from which to calculatethe three year period, the seco nd ap plica tion would in fa ct ha ve been timely filed. The State, however, arg ues that the three year

time period began to run as soo n as th e orig inal convi ction became
a final judgment, that origi nal convic tion not havi ng been appealed. If the State is correct
as to the date on w hich the three years beg an to run, then the se cond Petition forPostConvicti on Relief was

not timely fil ed. This court has previ ously held that the three year time period beg ins to run from thedate of judgments of conviction when the defendant did not take a

direct appeal of his or her conviction. See Warren v. State, 833 S.W.2d 101, 102 (Tenn. Cri m. App. 1992), perm. app. denied (Ten n. 19 92). Therefo re thi s second applicat ion for post-con viction relief was not timely

filed.
Ten ne ssee Code Annotated § 40- 30-109(a)(1) provided b efore its repeal that when a post-conv iction petit ion “has been competen tl y drafted and all pleadings, files, and records of thecase whi ch are before thecourt concl usively show that t he petitioner is entitled to no relief, the cou rt may order the petition dis missed.” In Baxter v. Ro se, our SupremeCourt stated that “the allegatio ns of a pro se complaint are held to less stringent standardstha n forma l pleadings drafted by lawyers, and the test is whether it appears beyond doub t that thepla inti ff can pro ve n o set of fac ts i n sup port

of h i s claim which would entitle him to relief.” 523 S.W .2d 930, 939 (Tenn . 1975). “Whe n a colorable claim is presented in a pro se petition, dis missal w ithout appointment of counsel to draft a competentpetition is rarel y proper.” Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988). A colorabl e claim is on e that allegesfacts showi ng that the conv iction resu lted from an abridgement of a constitutional right and which demonstrates that the ground for5

reliefwas not pr

eviously determined or waiv

ed. See State v.Smi

th, 814 S.W.2d 45, 49 (Tenn. 1991); Arthur v. St ate , 483 S.W.2d 95, 96 (Tenn. 1972). “ If the availabi lity of rel ief cannotbe conclusiv

ely determi ned from a pro se petition and the accompanying records, the petitioner must be given the aid of cou nsel.” Swans on , 749 S .W.2d at 734. However, when a petition hasbeen competently drafted, and concl usively shows that

the petitioner

is entitled to no rel i ef, the court may order the peti tion dismiss ed without t he appointmentof co unse l and witho ut an evi dentiary hearing. T.C.A. § 40-30-109(a)(1). See also Swanson, 749 S.W.2d at 734; Gi vens v. State, 702 S.W.2d 5 78, 580 (Te nn. Crim. App. 1985). A c lear but patentl y non-meri torious petit ion may be di smissed
summ arily, without t he appointment ofcounsel, much less an ev identiary hearing. See Martucci v. State, 872 S.W .2d 947, 949 (Tenn . Crim. App. 1993). However, the court must look to the sub stance rather than the form of the petiti on, and no petitio n should be dismissed fortechnical defects , incompleteness , or lack of cl arity unt il the petiti oner has had reasonable oppor

tunity, w ith the aid of couns el, to file amendments

. The Petition in this case appear s to be competently drafted. The Petition and th e re cord avail able to the tri al judge pr ovided him w ith all of the factual information necessaryto ascertain that the limitations period set out

in Tennessee Code Annotated § 40-3 0-102 had e xpired. This court has held that a tri al judge may without t he appointmentof coun sel and wi thout an evide ntiary hear ing dismis s a post-conv iction petition on th e grou nds t hat t he lim itat ions perio d est abli shed by Tennesse e Code Annotated § 40-30-102 has expired because a f ailure to file timely is not a technical defect and does not res ult from lack of cl arity or incompleteness. See Frederick v. State, 906 S.W .2d 927, 930 (Tenn . Crim. App. 1993).
The trial cour

t’s dismiss al of the Petition for Post-Convi ction Reli ef is affirmed on the basis of the failure to f ile for relief w ithin the time allowed by law. It therefore is not necessary to reach the Appellant’s f inal grounds for appeal.6 LEE RUSSELL, SPE CIAL JUDGE

CONCUR:

____________________________ WILLIAM M. BARKER, JUDG E

____________________________ JOHN K. BY ERS, SENIOR JUDGE