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

arch 20, 2001
JOSEPH A. HOUGH v. STATE OF TENN ESSEE Appeal from the Criminal Court for Greene County No. 00CR017 Kindall T. Lawson, Judge

No. E2000- 00945-CCA- R3-PC April 19, 2001
In February 2000, the petitioner filed a petition for post-conviction relief, setting out sever al claims as to th e invalidity of his June 12, 1998, DUI guilty plea in the Greene County General Sessions Court. He had not appea led th e plea of guil

ty but claimed that his post-conviction petition was timely because he had a “mental disability,” which tolled the running of the a pp licable stat ute of li mitations. The post-convict ion court conclud

ed that the petition

was untimely

and dismissed it. Finding that the allega

tions of “mental dis

ability ” are insufficient to toll the statute, we agree that the dismissal of the petition was proper. Fur ther, we find tha

t the notice of app

eal was not timely filed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OE G. R ILEY , JJ., joined. Joseph A. Hough, Northeast Correctional Center, Mountain City, Tennessee, Pro Se. Paul G. Summers,

Attorney General and Rep

orter; Jennifer L

. Smith, Assistant Atto

rney Gene

ral; and C. Berkeley Bell, Jr., District Attorney General, for the appellee, State of Tennessee.
OPINION
On June 12, 1998, the petitioner, Joseph A. Ho ugh, en tered a guilty plea to the offense of driving under the influen ce, first offen

se, in th e Greene County General Sessions Court and was sentenced to eleven months and twenty-nine days and f ined $350. The pet itioner w as required to serve forty-eight hours, with the remainder of the sentenc e suspended.1 This petition bears the stam ped date of “FEB 19 200 0” of the circ uit court clerk. In its order dismissing the

petiti on, the pos

t-convi ction cou

rt foun d that i t had been f

iled on Febr

uary 25, 2000.

Regardles s which of

these dates is correct, it

is clear t hat the peti

tion was not f

iled until February 2000, approximately twenty monthsafter the petitione r’s plea of guilty in the g eneral sessio ns court.

2 In his a ppellat e brief, the peti tioner c laims t hat by “a let ter or mot

ion,” he appealed t

he DUI convict

ion to a court, which he does not i dentify, and that the appeal was dismiss ed on July 27, 1998. However, the record on appeal does not contain any

evidence showing that ther e was an appeal of the conviction. Even if the claim is true, the p ostconviction petition was still untim ely. -2- In Febr uary 2 000, 1 the petitioner filed a pro se petition for post-conviction relief, alleging that his plea of guilty was

involuntary, that

his conviction was

based upon eviden

ce obtained as the

result of an illegal search and seizure, and that he had been denied his right t

o a speedy t

rial. In resp

onse to the qu estion on the prepr inted petition form

as to why the

claim should be bar

red if not file

d within one year of t

he final act ion on the plea which was the basis for his claim, the petitioner stated: “I have

been declared

with a mental disability by state official [sic], I wa s not able to appeal since I was in a mental (prison) ho spital.” By

order entered M

arch 21, 2000, the

Greene County Criminal Court dismissed the petition, finding that the petitioner entered a plea of guilty to DUI on June 12, 1998, in the General Sessions Court, that he did not appeal the conviction, and that he filed his petition for post-conviction relief on February 25, 2000, more than one year after the judgment on the DUI became final. The court det ermined that the judgment of conviction from the Greene County General Sessions Cou rt b ecam e fi nal on J une 23, 199 8, w hic h wa s te n da ys fr om i ts e ntr y. Acco rdi ngly, the court conclud ed in its order that

the petition was time barred, since it was not filed within the one-year period set out in Tennessee Code Annotated Section 40-30-202. The certificat

e of service for the order of dismissal shows that it was mailed on March 24, 2000, by the circuit court clerk to the petitioner at

the DeBerry Special Needs Facility in Nashville, Tennessee. The petitioner then filed a pro se notice of appeal, stating that

he received the order of dismissal on April 6, 2000. Th e notice of ap peal bears the c lerk’s stamp of Ap

ril 26, 2000, and a l

etter to the Gree

ne County Circuit Court Clerk

from the clerk of this court states that the clerk received the notice on April 24, 2000. In response t

o the appeal, th

e State ha s argued that neither the petition for post-conviction relief nor the notice of a

ppeal of its dismissa

l wer e timely filed. In his reply brief, the petitioner all eges that he “filed a n otice of appeal t

o this court on or ab

out April 20, 2000, in

the priso n mailbox.” However, the notice of appeal is undated and does not bear a certificate of service.
DISCUSSION
The petitioner had ten days from the entry of his plea of guilty in the general

sessions court, which occurred on June 12, 1998, 2 to file his appeal to the criminal court. Tenn. Code Ann. § 27-5- 108. From the date that the judgment became final, he had one y ear to file a petitionfor p ostconviction relief. Tenn. Code Ann. § 40-30-202. However, the post-conviction court found that the first action that he took, following the entry of the plea of guilty, was to file,on February 25, 2000, a petition for post-conviction relief. Following the entry of the order of the criminal court dismissing that petition on March 21, 2000, the petitioner then had thirty days to file his notice of appeal to this court. Tenn. R. App. P. 4(a ). However, the

notice of appea

l was not receive

d by the cler

k of this3 It appears th at the petitioner also filed a no tice of appe al with the circuit co urt clerk, the no tice bearin g th e

clerk’ s stamp of

April 26,2000. -3- court until April 24, 2000. 3 Thus, both the filing of the petition for post-conviction relief and of the notice of appeal of the dismissal of that petition were untimely, and this court must affirm the action of the criminal court

unless the applicable limitations period for the filing of the petition was tolled and unless he timely filed his notice of appeal. We will now determine whether either occur red.
Timeliness of Petition for Post-Conviction Relief
In the consolidated cases of State v. Scott Houston Nixand Statev. Ralph Dean Purkey , Nos. E 1999-02715-SC-R11 -PC, E1999-01864-SC-R11-CD, 2001 WL 166384, at *1 (Tenn. Feb. 20 , 2001), our supreme cour

t resolved the issu

e as to “what stan

dard of mental inc

ompetence must a petitioner satisfy before due process requires tolling of the post-conviction statute of limitations.” The court determine

d “that due proce

ss requires tolling of the post-conviction statute of limitations only if a petitioner sho

ws that he is unable

either to manage his personal affairs or to understand his legal rights and

liabilities.” Id. at *2. The court then ad dressed the ques

tion of what alleg

ations must be mad e in a petition for post-conviction relief to make out a prima facie case under the standard which the court had established and determined:

[T]o make a prima facie showing of incompetence requiring tolling of the limitations peri

od, a post-convic

tion petition must

incl ude specific factual allegations that demonstrate the petitioner’s inability to manage his per

sonal affair

s or understand his legal rights and liabilities. Unsupported, conclusory, or general allegations of mental illness will not be sufficient to requiretolling and prevent summary dismissal under Tenn. Code Ann. § 49-30-2 06(b). The required prima facie showing may be satisfied by attach in g to the petition affidavits, depo sitio ns, medical reports, or other credible evidence tha t contain fac tual allegat ions showi ng the petitioner‘s incompetence.
Id. at *3 (citations omitted).
The court then reviewed the allegations of both petitione rs and det ermined that they were inadequate to require t olling:

Nix’s petition alleges that heis incompetent because he suffers mood disorders,depression, schizophrenia, i ns omnia, and alcoho lism. Purkey’s petition allege

s that he is in competent because he has radical mood swings, extreme de p ression, loss of me mory, poor ju

dgment, anddifficulty with thinking abstractly. N on e of these allegations indicates that either Nix or Pur key isincapable of ha ndling his-4- personal affairs o

r incapable of understanding his legal rights and liabilities. As previously stated, even when proven, men tal illness does not equate with incompetency.
Id. at *4.
The claims of

this petitioner, as set out

in his petition for post-conviction relief, were that he hadbeen “declared with a mental disabili ty,” that he was unable to appeal because he “wa s in a mental (prison) hospital,” that he “was suffering from a mental disor

der of anxiety

and depression,” that he was under “stress,” and that he was“not mentally stable,” in that he had “seen a psychiatr

ist before the arrest.” However, the petitioner failed to attach to his petition any affidavits,

depositions, ormedica l reports to support his allegations of mental illness and to indicate that his alleged “depression” and“stress” prevented him from managing his personal affairs and understanding h

is legal rights and

liabilities. The petitioner’s bare, unsupported allegations are insufficient to meet the requirements

for a prime f acie showin g of incompet ence requiri ng t olling of the statute of limitations. The additional claims of mental problems, set out in the petitioner’s appellate p leading, even if presented

pro perl y, are ins uff ici ent , li kew ise , to tol l th e st atu te. Acco rdi ngly, we concur with the pos t-c onv ict ion cou rt’ s de ter min ati on t hat the pet iti on w as u nti mel y. Timeliness of the Appeal
The State has asserted that thenotice of a ppeal was not timely filed, which would be a separate ground for denying relief to the petitioner unless, in the interest of justice, this court waived t he late filing of the notice. See Tenn. R. App. P. 4(a

). The order of t

he post-convic

tion cour t dismissing the petition was filed on Tuesday, March 21, 2000. A letter dated April 27, 2000, from the clerk of this court to the Greene County Circuit Court Clerk states that the clerk received the notice of appeal on April 24, 2000, which was a Monday. The notice of appeal itself does not bear a date or a certificate of service. The only informa tion in the record as to when the petitioner began the appeal process

is the unsworn state

ment in his appellate reply brief that he “filed a notice of appeal to [the Court of Criminal Appeals] on or about April 20, 2000 in the prison mailbox.” Regardingthe filing of a notice of appeal by a pro se litigant, Rule 20(g) of the Tennessee Rules of Appellate

Procedure provi

des, in pertinent p

art, as follows: If papers required

or permitted to be filed pursuant to the rules of appellate procedure a

re pre pared by or on behalf of a pro se litigant incarcerated

in a correctionalfacility

and are not received by the clerk of the court until after the time fixedfor filing, filing shall be timely if the p apers wer e delivered to the appropriate individual at the correction al facilit

y within the ti

me fixed for filing . . . . Should timelinessof filing or service become an issue, the burden is on the pro se litigant to establish compliance with this provision.-5-

Although it does not appear that a determination has been made as to the manner in which a litigant may establish timely delivery to “the appro priate in dividual,” this cou rt has recently construedidentical language found in Tennessee Supreme Court Rule 28, § 2(G) an d determined that timely filing of a petition for post-conviction relief was not shown when the pro se litigant’s sole proof on the matter was his testimony that “he deposited the [petition] into the correctional facility mailbox” before the runn

ing of the statute

of limitations. Neely v. Sta te , 34 S.W.3d 879, 880 (Tenn. Crim. App.), perm. to appeal denied(Tenn. 2000). Accordingly, we affirmed the post-conviction court’s dismissal of Neely’s petition as untimely.
In the instant case, we conclude, likewise, that the petitioner’s claim that he filed his notice of appeal “on or about” April, 20, 2000, which was the last day for timely f

iling, is insuffic

ient to establish that he, in fact, did so. Further, after carefully reviewing the record and the pleadings, we do not conclude that there are grounds for our waiving the filing requirements of Rule 4(a), Tennessee Rules of Appellate Procedure

. State v. Patterson , 966 S.W.2d 435, 440 (T enn. Crim. App . 19 97) . Ac cord ingl y, th e app eal is d ism iss ed as unt ime ly.
CONCLUSION Based upon the foregoing authorities and reasoning, the judgment of the post-c onviction court is affirmed.

___________________________________ ALAN E. GLENN, JUDGE