### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 16, 2002 DARRELL WENT ZEL v. STA TE OF TENNESSEE Direct Appeal from the Circuit Court for Williamson County

No. I-696-177 Donald P. Harris, Judge

No. M2002-00799-CCA-R3-PC - Filed March 18, 2003

On December 6, 1996, t

he petitioner was convicted of armed robbery , aggravated burg lary, and aggravated

kidnaping. On direct

appeal, those con

victions w ere af

firmed. T he Tenne ssee Supr

eme Courtdenied permission to appeal on May 10, 1999. On June 21, 2001, the petitioner filed, pro se, a do cu me nt ti tl ed “m ot io n f or ex tr ao rd in ar y r e lief.” The trial court dismissed the motion, characterizing it as a petition for po st-convi ction relief, and barred by the one-ye ar statute of limitations . We affir

m the dismis sal from t

he trial c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J OHN E VERE TT W IL LI AMS , J., deliver ed the opinion of the

court, in whic h D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. Darrell Wentzel, Only, Tenne ssee, Pro Se.
Paul G. Summers , Attorney Gene ral and Reporter; Kim R. Helper, Assistant Attorney General; and Ronald L. Davis, District Attorney General, for the appellee, State of Te nnessee.

OPINION
The petitioner

was convicted of

two count s of agg

ravate d robber

y, in violation of Tennessee Code Annotated section 39-13-402; one count of ag gravated bu rglary , in violation of Tennessee Code Annotated section 39-14-403; and one count of especially aggravated kidnaping , in violation of Tenness ee Code A

nnotated se ction 39-1 3-305, and was sentenced to twelve y ears in the Tennessee Department of Correct ion. The p etitioner

directly appealed the conv

ictions, raising the following issues: plain error by the trial court

in allowing an in-court identification; sufficiency of the evidence to corroborate acc omplice testimony; double jeopardy ; wrongful convi c tion of the kidn appin g, as kidnap

ping wa s only

incid ental to th e robb ery; and s enten cing. See State v. D arrell Wentzel , No. 01C01-9705-CC-00193, 1998 Tenn. Crim. App. LEXI S 1263, (Ten n. Crim. App. December

7, 1998, at Nashville) (permission to appeal denied, May 10, 1999). This Court affirmed1 The issue s are gl eaned from t he Stat e’s br ief , as the iss ues as stated in t he petiti oner’s pro se brief were diff icul t to f ollow. -2- the judgments of the trial court. On June 25, 2001, the petitioner filed a document titled“motion for extraordinary

relief.” The trial court treated that document as a post-conviction relief petition and dismissed the petiti on as time barred. Additionally, the trial court dismissed without prejudice the petitione r’s motion

seeking public re cords. 1 The petit ioner ap peals tho se dismissa

ls.
Post-Conviction
Post-conviction relief can be granted in a post-conviction proceeding only if the petitioner’s denial of a

right under the Tennesse e or Unite d States Con stitution c aused hisunderlying conviction or sentence to be void or voidable. Tenn. Code Ann. § 40-30-203. The petitioner, in his brief, includes a number

of concl usory statemen ts that his r

ights we re denie d, st atements rearguing the actual trial itse

lf, and g eneral

expressio ns of his di ssatisfa ction with

the result of his t

rial and subsequent

appeal. The only

discernible issue he raises is that the pros ecution withheld evidence that could have affected the outcome of the trial. Such arguments at

a post -conv icti on rel ief hea ring, without su pp or t f or th ei r c on cl us io ns , a re su bj ec t t o s um ma ry d ism issal. Id. § 40-30-206(d). However, the trial court, in dismissing the petition as time bar red, d id not even have to reach that decision.
Without addressing themerits, a claim of this type is in the nature of what is addressed

in a post-conviction relief p etition. A s such, it issubject to the post- convicti on statute of limitati ons. Tennessee Code Annotated section 40-30-202(a ), which providesin pertine nt part: “ [a] person in custody under a s entence

of a cour t of this sta

te must petition for

post-con viction re lief unde r this part within on e (1) yea

r of the date of the final action of the highe st state appellate court to which an appeal is taken . . . .” The date of the final judgment was May 10, 1999, w hen the Tennessee Supreme Court denied permission to appeal. The petitioner’s document titled “ motion for extraordinary

relief” was file d June 25, 20 01, clea rly after the one-y

ear statute of limitations hadrun. The petitione

r argu es that hisdocument was not a

post-con viction pe

tition, but a m otion seeking extraordinary proc ess as neces sa ry to affect the ends of justice, as per Tenne ssee Code Annotated sectio n 29-1-105. However, his claim of prosecutorial misconduct by the withholding of evidence is precisely

in the nature of what is properly addressed in a post-con viction petition. Such an actio n by

a prosec utor, if it actually occurred, would be an abridge ment of the petitioner’s rights. As such, the statute of limitations for post-conviction motions will be applied.
This Court has previously ch aracterized a petition to refle ct what th

e petition is actua lly seeki ng, as opposed to what the petition is titled. In State v. Luttre ll , this Court characterized a petition for habeas corpus relief as being , in reality, a post-conviction petition, because the nature of the compl aints rai sed wer e matter s covere d by

the Post-Co nviction Pr

ocedure Act. 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982). Additionally, this Court stated recently tha

t “Section 40-30-205, Tennessee Code Annotated, instructs tri al courts to treat habeas petitions as post-conviction petitions-3-

‘when the relie

f and pro cedure

authorize d by

[the Post-Co nviction Pr

ocedure Act] appear

adequa te and appropriate.’ The trial court treated the present

petition as both an application for habeas corpus relief and as a petition for p ost -conviction relief. The trial court found that the application was barred as a petition for post-conviction relief as it was filed outside the applicable statute o f limitations.” Statev. Jerry Hill , No . W 200 1-0 259 5-C CA- R3 -CD , 20 02 T enn . C rim . Ap p. LE XIS 288, at *6 (T en n. Cr im . A pp ., Ma r. 25 , 2 00 2, at Ja ck so n) . S im il ar ly, a proper characterization of the petitione r’s motion

is in order in the present

case. As the State quotes in its brief, “I f it walks like a duck, quacks like a duck, or looks likea du ck . . . it’s probably a duc k.” We agree. We see no reason why such

proper characterization should be limited to habeas corpus proc eedings, as we look to the type of re

lief sought to determine how to treat a motion before the trial c ourt. The trial court’s finding of fact was that the petitioner was seeking post-conviction relief and, therefore, was time b arred. The tria l judge’ s fin dings of f

act on post-conviction hearings are conclusive on appeal unless the evidence prepondera tes otherwise. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). The trial court’s findings of fact ar e afforded the

weight of a jury verdict , and this Courtis bound by the

trial court’s findings unless the evidence in the rec ord preponderates agains t those findings. Henley

v. State , 960 S.W.2d 5 72, 578 (T enn. 1997 ); Alley v. State , 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). The evidencedoes not preponderate against the fa ct that the petitioner was see king pos t-convic tion sty

le relief, reg ardless of the titl e of his do cument. The petitioner argues forcefully that if there is prosecutorial misconduct, that misconduct can ris e to the level of a violation against his right to a fair trial. The petitioner is correct. However , these types of alleg ations are properly addressed in a post-conviction relief hearing . The petitioner is attemptin g to get around the one-ye ar statute of limitations for post-conviction relief by labeling his docume nt as a motion fo r extraor dinary relief. He even

admits tha

t the time limit for a p ostconviction relief filing had l apse d, which is why he wa s seeking relief in the motion form that he was. Labeling his motion other than a post-conviction relief petition does not change the nature of the relief sought. We conclude the trial court was correct

in characterizing this petitioner’s motion as a post-conviction relief petition and, subsequently , time barred.
A relevant exception to the one-y ear statute of limitations is if the petition is based on new scientif ic evidence establishing that such petitioner is actually innocent of the offense. Tenn. Code Ann. § 40- 30-202( b)(2). Moreover, in Workman v. State , 41 S.W.3d 100, 103 (Tenn. 2001); the Tennessee Supreme Court held that statute of limitations for collateral relief petitions may be tolled if a petition is filed outlining with specificity new ly discovered p roo f of actual innocence. The petitioner fails to de

tail with a

ny d egree of speci ficity

any new evid ence sc ientific

or other wise to support his claims. Having failed to do so, we find the statute of limitations is not tolled. Request fo r Public

Records
In its order

dismissing

the petiti oner’s m

otion as post- conviction claim, the trial court commentedon the petitioner’s Motion for Disclosure, pursuant to Tennessee Code A nnotated section 10-7-503, dismissing that motion without prejudice and directing the petitioner to file such-4-

motion in Chancery Court, pursua nt to Tennessee C ode Annotated section 10-7-505(b), which provides in pertinent part , “[S]uch pet ition shall

be filed in the cha

ncery court fo r the cou nty in which the county or municipal records sought are situated, or in any other c ourt of that county having equity jurisdict ion.” The

trial cou rt stated th at the pe ti tioner could then file his request in the appropr iateforum. Asa result, the petiti oner will have ac cess to a

ny r ecords h e needs, only being required to file for same in the proper forum. We find no er ror. Conclusion
After permissi on to appeal the Criminal Court of Appeals’ decision was denied by the Tennessee Supre me Court, the petitioner attempted to raise the issue that he was treated fundame ntally unfairly during t he proce ss of his tr

ial. He br ought tho se compla

ints under a heading of a “moti on forextraordinary re lief,” yet the na

ture of the complaints were clearly those that are considered

in a post-conviction relief petition. As such, the trial court properly dismissed the motion as being filed outside the one-y ear statute of limitations.
Accord ingly , we aff

irm the dis missal fr

om the tria

l court.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE