State v. Kevin Abston

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 30, 1998
• Docket: 02C01-9807-CR-00212
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED OCTOBER 1998 SESSION December 30, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

KEVIN LAVELL ABSTON, ) ) C.C.A. NO. 02C01-9807-CR-00212 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. BROWN, JR., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

KEVIN LAVELL ABSTON, Pro Se JOHN KNOX WALKUP Lauderdale Co. Correctional Complex Attorney General & Reporter Site #1 P.O. Box 1000 DOUGLAS D. HIMES Henning, TN 38041-1000 Asst. Attorney General 425 Fifth Ave., North Nashville, TN 37243-0493

WILLIAM L. GIBBONS District Attorney General

JOHNNY R. McFARLAND Asst. District Attorney General 201 Poplar Ave., Suite 301 Memphis, TN 38103-1947

OPINION FILED:

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

JOHN H. PEAY, Judge OPINION

On November 17, 1989, the petitioner pled guilty to sixteen counts of

robbery with the use of a deadly weapon and was sentenced to fifty years in prison. The

petitioner did not directly appeal these convictions. However, on June 1, 1998, the

petitioner filed sixteen pro se petitions for post-conviction relief alleging that his

convictions were illegal, that his sentence was illegal, that the petitioner was denied the

effective assistance of counsel, and that his guilty pleas were not knowing and voluntary.

On June 26, 1998, the post-conviction court dismissed the petitions on the ground that

they were barred by the applicable statute of limitations. The petitioner now appeals and

argues that the post-conviction court erred when it dismissed his petitions for post-

conviction relief.

When the petitioner pled guilty on November 17, 1989, a three-year statute

of limitations was in effect regarding post-conviction petitions. T.C.A. § 40-30-102

(repealed 1995). This statute of limitations began to run when the judgments against the

petitioner became final in December of 1989. See State v. Moore, 814 S.W.2d 381, 382

(Tenn. Crim. App. 1991). As the petitioner’s post-conviction petitions were filed after

December 1992, the three-year statute of limitations had expired. Although there are

exceptions to the statute of limitations, the defendant has alleged nothing that would

bring his petition within those limited circumstances entitling him to relief. See T.C.A. §

40-30-202(b).

Although the grounds alleged in the post-conviction petitions do not fall

under any of the statutory exceptions to the applicable statute of limitations, the petitioner

contends that the statute of limitations does not apply in this case because his

2 convictions and sentences are illegal and therefore void. We agree that the statute of

limitations does not bar the petitioner’s claim that his sentences are illegal. See State

v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987)(noting that generally, an illegal judgment

may be noticed at any time, even after it becomes final). The statute of limitations,

however, does bar the petitioner’s contentions that his convictions are illegal,1 that he

received ineffective assistance of counsel, and that his guilty pleas were unknowing and

involuntary.

After a review of the record, it appears that the petitioner’s sentences may

be illegal in that they exceeded the allowable sentence for a Range I standard offender

under the old sentencing guidelines and all ranges under the Criminal Sentencing Reform

Act of 1989.2 However, from the record it is impossible to make a clear determination as

to whether the sentences are illegal because there is only one judgment form included

in the record and it appears to have been used for all sixteen of the petitioner’s

convictions. This judgment form fails to indicate if the fifty-year sentence imposed on the

petitioner is a total of several consecutive sentences or if it is one term imposed on all

counts to run concurrently. 3

In light of the foregoing, we remand this cause so that an attorney can be

appointed for the petitioner and a hearing can be held to determine if the petitioner’s

1 We note that the petitioner does not allege any grounds to justify a finding of an illegal conviction other than the grounds used to argue that his sentence was illegal. As the record is also devo id of a ny evid enc e tha t mig ht su ppo rt a fin ding t hat h is con viction was illegal, t his co nten tion is without merit even if not barred by the statute of limitations.

2 Under the sentencing gu idelines in effect before Novembe r 1, 1989, a Range I standard offend er could b e sente nced to ten to thirty-five year s for rob bery by the us e of a de adly weap on. See T.C.A. § 40-35-109 (1982); T.C.A. § 39-2-501(1982). Under the Criminal Sentencing Reform Act of 1989, robbery by use of a deadly weapon wa s characterized as a Class B felony and a R ange I standard offend er conv icted of a C lass B fe lony could o nly be sente nced to eight to twelve years. See T.C.A . § 40-35-118 (1989); T.C .A. § 40-35-112(a)(2) (1989).

3 Although the judgment form is silent on this issue, the plea agreement indicates that the senten ces are concu rrent.

3 sentences are indeed illegal. If the sentences are found to be illegal, they should be set

aside and a hearing held to determine if the defendant is entitled to withdraw his guilty

pleas. See State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978).

Accordingly, the dismissal of the petitioner’s petitions for post-conviction

relief is affirmed in part, reversed in part, and remanded for a hearing to determine the

legality of the petitioner’s sentences.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID G. HAYES, Judge

______________________________ L. T. LAFFERTY, Senior Judge