James Romine v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9805-CC-00211
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED FEBRUARY 1999 SESSION July 1, 1999

Cecil W. Crowson Appellate Court Clerk JAMES RICHARD ROMINE, ) ) C.C.A. No. 01C01-9805-CC-00211 Appellant, ) ) Lincoln County V. ) ) Honorable Charles Lee, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP 113 North Court Square Attorney General and Reporter P. O. Box 26 Waverly, TN 37185 MARVIN E. CLEMENTS, JR. (On appeal only) Assistant Attorney General 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243

W. MICHAEL McCOWN District Attorney General

WEAKLEY E. BARNARD Assistant District Attorney General 17th Judicial District P. O. Box 878 Fayetteville, TN 37334

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIAMS, Judge OPINION

The petitioner, James Richard Romine, appeals from the trial court’s

dismissing his claim for post-conviction relief. In the Lincoln County Circuit

Court, Romine pleaded guilty to second degree murder and is presently serving

a sentence of twenty years in the Tennessee Department of Correction. He is

ineligible for release until he completes eighty-five percent of that sentence. The

petitioner filed a petition for post-conviction relief, claiming ineffective assistance

of counsel, and the post-conviction court, finding that the pertinent statute of

limitations barred the claim, dismissed the petition. W e AFFIRM the trial court’s

dismissal.

BACKGROUND

The petitioner's date of birth was March 18, 1979, and he was seventeen

years of age on April 16, 1996, when he entered his plea of guilty to second

degree murder. In March of 1998, the petitioner filed his petition for post-

conviction relief. The post-conviction court dismissed the petition because the

one-year statute of limitations had expired, and that court appointed counsel1 for

the petitioner’s subsequent appeal.

ANALYSIS

The petitioner asserts that “the trial court err[ed] in dismissing [his] Petition

for Post-Conviction Relief based upon the applicable statute of limitations.” The

Code establishes both the pertinent statute of limitations and the exceptions to

that statute:

[A] person in custody under a sentence of a court of this state must petition for post-conviction relief . . . within one (1) year of the date on which the judgment becomes final, or consideration of such petition shall be barred. The statute of limitations shall not be tolled for any reason . . . . Time is of the essence of the right to file

1 The District Public Defender’s Office represented the petitioner prior to his post-conviction app eal.

-2- a petition . . . , and the one-year limitations period is an element of the right to file such an action and is a condition upon its exercise.

Tenn. Code Ann § 40-30-202(a). “No court has jurisdiction to consider a petition

filed after this time” unless either (1) a final ruling by an appellate court

establishes a new constitutional right that requires retrospective application; or

(2) the petition asserts a claim based on pertinent new scientific evidence; or

(3) certain circumstances involving an enhancement based on a prior conviction

exist in the case.

Upon waiving his right to appeal on the day of his guilty plea, the judgment

became final, and the statute of limitations began to run. See Passarella v.

State, 891 S.W.2d 619, 624 (Tenn. Crim. App. 1994); Warren v. State, 833

S.W.2d 101, 102 (Tenn. Crim. App. 1992). Accordingly, the statute of limitations

began to run on April 16, 1996 and expired on April 16, 1997. The petitioner

admits that his age during the initial portion of his confinement is irrelevant under

the applicable statute. Compare Tenn. Code Ann. § 40-30-202(a)-(b) with State

v. David Wayne Britt, No. 02C01-9410-CC-00234 (Tenn. Crim. App. July 25,

1995, filed at Jackson) ( A panel of the Court recognized that the applicable

statute at that time tolled the statute of limitations until a minor reached the age

of majority.).2

However, the petitioner asserts that he was “held in what amounted to

isolation during his minority” and therefore could not learn about post-conviction

relief procedures from adult inmates. He further asserts that “youthfulness and

lack of maturity on his part” merit this Court's ignoring the statute of limitations

and remanding the cause for a hearing. We disagree because the petitioner

does not qualify his claim as any of the three possible exceptions.

2 See Karn T om T hongk umg ool v. State , No. 0 1C0 1-97 07-C R-0 028 1 (T enn . Crim . App . April 9, 1998, filed at Nashville) (Rule 20 opinion concluding that the Code no longer precludes tolling of the statute of limitations for a minor petitioner.).

-3- He identifies neither circumstances involving enhancement by a prior

conviction nor new scientific evidence establishing his innocence. Regarding the

remaining basis for possible exception to the statute, the right in question must

be “based upon a final ruling of an appellate court establishing a constitutional

right that was not recognized as existing at the time of the plea,” Tenn. Code

Ann. § 40-30-202(b)(1), and “not on a claim that the appellant did not know this

constitutional right existed at the time of his plea,” Pete Smith v. State, No.

03C01-9805-CR-00182 (Tenn. Crim. App. April 30, 1999, filed at Knoxville).

Ignorance of the law, even if a person is ignorant of a right to appeal from a

conviction, does not toll the statute. See Passarella v. State, 891 S.W.2d 619,

625 (Tenn. Crim. App. 1994) (The statute of limitations is not affected by when a

petitioner “learns” that his constitutional rights might have been violated.);

Donnie Carpenter v. State, No. 01C01-9703-CC-00114 (Tenn. Crim. App. Dec.

17, 1997, filed in Nashville); Bernard Nelson v. State, No. 01C01-9212-CC-

00375 (Tenn. Crim. App. Nov. 18, 1993 filed at Nashville) (“[I]lliteracy, ignorance,

and difficulty in obtaining assistance while incarcerated” does not toll the statute

of limitations.); Melvin Douglas Boyle v. State, No. 02C01-9201-CC-00003,

(Tenn. Crim. App. November 18, 1992, filed at Jackson) (Lack of legal materials

does not toll the statute of limitations.).

“Legislative intent and purpose is to be ascertained primarily from the

natural and ordinary meaning of the language used, without a forced or subtle

construction that would limit or extend the meaning of the language,” Tuggle v.

Allright Parking Sys., Inc, 922 S.,W.2d 105, 107 (Tenn. 1996), and no authority

cited by the petitioner compels this Court’s contravening the plain language of

the applicable statute.

-4- CONCLUSION

The judgment below is AFFIRMED.

_____________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

______________________________ DAVID G. HAYES, Judge

______________________________ JAMES CURWOOD WITT, JR., Judge

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