Gary Donald v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9710-CR-00481
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1998

GARY DEWAYNE DONALD, ) C.C.A. NO. 01C01-9710-CR-00481 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, JR. STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Co nviction Re lief)

FOR THE APPELLANT: FOR THE APPELLEE:

GARY DEW AYNE DONALD JOHN KNOX WALKUP Pro Se Attorney General and Reporter TDOC #221716 Lake C o. Reg . Corr. Fa cility TIMOTHY F. BEHAN Tiptonville, TN 38079 Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493

VICTOR S. JOHNSON District Attorney General Washington Square Building 2nd Av enue N orth Nashville, TN 37201

ORDER FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE ORDER

On May 4, 1993 , Appellant Ga ry Dewayn e Donald pleaded guilty in the

Davidson Coun ty Crim inal Court to second degree murder. He waived the

sentencing range pursuant to State v. M ahler, 735 S.W .2d 226 (Te nn. 1987).

Appellant was sentenced as a Ran ge I standard o ffender to fifty years

incarceration with the Tennessee Department of Correction. On appeal, he

presen ts the following issue for o ur review: whethe r the trial court erred in

dismissing Appellant's petition for the writ of habeas co rpus or post-conviction

relief.

After a review of the record, we affirm the judg ment of the trial cou rt

pursuant to Court of Criminal Appeals Rule 20.

On March 12, 199 7, Appellant filed his pro se petition for writ of habeas

corpus or, in the alternative, post-conviction relief in the Davidson C ounty

Crimina l Court. The trial co urt dism issed the petition witho ut a hearing on May

15, 1997. Both in his petition and on appeal, Appellant alleges the following:

(1) Appellant's guilty plea was not entered knowingly and voluntarily; (2) Ap pellan t receive d ineffe ctive as sistan ce of c ouns el; (3) Appellant agreed to an illegal sentence not permitted by Tenn. Code Ann. § 40-35-112, as that section does not allow a defen dant to be senten ced to fifty years inca rceration with 30 percent release eligibility; and (4) The trial court misapplied certain enhancement and mitigating factors.

In Tenn essee , it is well- settled law tha t the rem edy of h abea s corp us is

limited both in sc ope an d in relief. Archer v. State , 851 S.W.2d 157, 164 (Tenn.

1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In criminal cases, habeas

corpus is available only where the judgment is void or the term of imprisonment

has expired. Passa rella v. State , 891 S.W .2d 619, 627 (Tenn. Crim . App. 1994 ).

-2 - The habeas petitioner bears the burden of demonstrating by a preponderance of

the evidence that the judgment of conviction is void or that his term of

confinement has exp ired. Id. If the petitioner establishes by a preponderance of

the evidence either that his conviction is void o r that his term of confinement has

expired, he can obtain im media te release . Warren v. State, 740 S.W.2d 427, 428

(Tenn. C rim. App. 198 6).

Appe llant’s complaint would at most make his conviction and sentence

voidable, not void . Furthe rmor e, he n eglec ted to file his pe tition in the most

convenient court to his place of confinement as required by Tenn. Code Ann. §

29-21-105.1 See G ouldin v. S tate, C.C.A. No. 0 2C01-9 605-CR -00145, Shelby

Coun ty (Tenn. Crim . App., Jacks on, Fe bruar y 27, 19 97). H ence , the pe tition fails

to qualify as warranting a writ of habeas corpus.

Alternatively, were we to treat this petition as one for post-conviction relief,

it is barred by the statute of lim itations. Prio r to the ado ption of the recent P ost-

Conviction Procedure Act, petitions like the present one had to be filed with in

three years of the date of the fina l action of the highest s tate app ellate cou rt to

which an appeal was ta ken. Tenn . Code An n. § 40-30-10 2 (1995, Re pl.).

According ly, Appellant's statute o f limitations for the filing of a petition for post-

conviction relief began to run on May 4, 1993 and expired three years later on

May 4, 1996. However, the new Post-Conviction Procedure Act, which took

effect on May 10, 1995, subsequently shortened the three-year statute of

limitations to one year. Tenn. Code Ann. § 40-30-201 et seq. (Supp. 1996 ).

When the new Act took effect, the previous three-year statute of limitations had

not expired for Appellant. Because the three-year statute of limitations had not

1 Accor ding to his b rief Appe llant is incarce rated in La ke Co unty Reg ional corre ctional fac ility locatedat Tiptonville, Tennessee.

-3 - expired, Appe llant's right to petition for post-conviction relief survived under the

new Act. Accord ingly, Appellant had one year from the effective date of the new

Act--May 10, 199 5--in which to file for post-c onviction re lief. Albert H olston v.

State, C.C.A. No. 02C01-9609-CR-00298, She lby Cou nty (Ten n. Crim. A pp.,

Jackson. July 28, 1997). Appellant filed his petition on Marc h 12, 1997,

appro ximate ly ten mo nths after th e expiration of the one -year per iod. We

conclude that the trial court properly dismissed the March 12, 1997 petition as

being barred by the statute of limitations.

With respect to Appellant's third and fourth allegations, we need only point

out that in a post-conviction or habeas corpus proceeding, this Court does not

review a s entenc e. State v. Bryant, 805 S.W .2d 762, 763 (Tenn. 199 1).

According ly, we affirm the trial court's judgment pursuant to Court of

Crimina l Appea ls Rule 2 0.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAYES, JUDGE

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