State v. Lester Page

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 02C01-9605-CR-00176
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED JUNE 1997 SESSION July 2, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk LESTER PAGE, ) ) C.C.A. No. 02C01-9605-CR-00176 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, ) JUDGE STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

LESTER PAGE (on petition) JOHN KNOX WALKUP Pro Se Attorney General & Reporter Federal Correctional Institute P.O. Box 34550 ELLEN H. POLLACK Memphis, TN 38184-0550 Assistant Attorney General 450 James Robertson Parkway D. TYLER KELLY (appeal only) Nashville, Tennessee 37243-0493 P.O. Box 98 Jackson, Tennessee 38302 WILLIAM L. GIBBONS District Attorney General

JENNIFER NICHOLS Assistant District Attorney General 201 Poplar Ave. Ste. 301 Memphis, Tennessee 38103-1947

OPINION FILED: __________________

AFFIRMED

JOE G. RILEY, JUDGE OPINION

Petitioner, Lester Page, appeals the trial court’s summary denial of post-

conviction relief. In 1991, petitioner entered guilty pleas and was convicted of two (2)

counts of simple possession of cocaine. His effective sentence was eleven (11)

months and twenty-nine (29) days in the local correctional facility. On March 21,

1996, petitioner filed for post-conviction relief claiming that the above guilty pleas

were involuntary and unknowingly entered. Without an evidentiary hearing, the trial

court dismissed the petition as time-barred. The judgment of the trial court is

AFFIRMED.

STATUTE OF LIMITATIONS

Petitioner argues that he is entitled to a post-conviction hearing because the

new Post-Conviction Procedure Act extends the filing period to May 10, 1996. Under

the new Post-Conviction Procedure Act, the statute of limitations for post-conviction

relief is reduced to one (1) year. Tenn. Code Ann. § 40-30-202 (Supp. 1996). The

Act also provides for a one (1) year grace period from May 10, 1995, to file a petition

or reopen a petition for post-conviction relief. However, the grace period does not

apply in this instance because post-conviction relief was already barred by the

statute of limitations when the legislation was enacted. Since the petitioner did not

appeal his original conviction, the judgment became final in 1991. His claim was in

existence and expired prior to enactment of the new Post- Conviction Procedure Act.

Tenn. Code Ann. § 40-30-102 (repealed by 1995 Tenn. Pub. Act 207, § 1).

The new Post-Conviction Procedure Act did not revive previously barred

claims. See Ralph Dewayne Brock v. State, C.C.A. No. 03C01-9508-CC-00247,

Sullivan County (Tenn. Crim. App. filed April 10, 1997, at Knoxville); Eric C.

Pendleton v. State, C.C.A. No. 01C01-9604-CR-00158, Davidson County (Tenn.

Crim. App. filed February 12, 1997, at Nashville); Johnny L. Butler v. State, C.C.A.

No. 02C01-9509-CR-00289, Shelby County (Tenn. Crim. App. filed December 2,

1996, at Jackson). The majority of this Court is no longer following Arnold Carter v.

2 State, C.C.A. No. 03C01-9509-CC-00270, Monroe County (Tenn. Crim. App. filed

July 11, 1996, at Knoxville). Accordingly, this issue is without merit.

DUE PROCESS & EQUAL PROTECTION

Petitioner next argues that under Burford v. State, 845 S.W.2d 204 (Tenn.

1992), the former three-year statute of limitations violates due process and equal

protection because he was never advised that his convictions could later be used to

enhance sentences for future crimes. As a result, he contends his 1991 guilty pleas

were unknowingly and involuntarily entered.

The facts and circumstances of this case do not amount to a later arising

claim under Burford v. State, supra. Jimmy Lee Key v. State, C.C.A. No. 03C01-

9509-CC-00277, Knox County (Tenn. Crim. App. filed March 27, 1997, at Knoxville).

Furthermore, the right to be informed of the enhancement possibilities of one’s plea

is not constitutional in nature and not subject to post-conviction relief. State v.

Adkins, 911 S.W.2d 334, 348 (Tenn. Crim. App. 1994). The petition was properly

dismissed.

The judgment of the trial court is AFFIRMED.

___________________________ JOE G. RILEY, JUDGE

CONCUR:

_________________________ PAUL G. SUMMERS, JUDGE

_________________________ DAVID H. WELLES, JUDGE