State v. Tommie Hill

• Court: Court of Criminal Appeals of Tennessee
• Decided: November 25, 1997
• Docket: 02C01-9511-CC-00335
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBE R SESSION, 1996

TOM MIE L . HILL J R., ) C.C.A. NO. 02C01-9511-CC-00335 ) Appe llant, ) ) FILED ) MADISON COUNTY VS. ) November 25, 1997 ) HON. WHIT LAFON STATE OF TENNESSEE, ) JUDGE Cecil Crowson, Jr. Appellate C ourt Clerk ) Appellee. ) (Post-conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

TOMMIE L. HILL, JR. JOHN KNOX WALKUP Pro Se Attorney General and Reporter CCA/SCCF, P. O. Box 279 Clifton, TN 38425-0279 WILLIAM D. BRIDGERS Assistant Attorney General

MARY ANNE QUEEN Legal Assistant 450 James Robertson Parkway Nashville, TN 37243

JERRY W OODALL District Attorney General

SHAUN A. BROWN Assistant District Attorney 225 Martin Lu ther Kind Jr. Drive Jackson, TN 38301

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE OPINION

In this case Appellant, Tommie L. Hill, Jr., appeals the summary

dismissal of his petition for post-conviction relief filed on June 1, 1995. Following

a carefu l review of the re cord in this case we affirm the judgment of the trial court.

1. FACTUAL BACKGROUND

On May 9, 1991, in Case No. 90-433, Appellant was convicted by a jury for

the sale and delivery of co caine. On June 11, 1991, the trial court sentenced the

petitioner as a Ra nge III offender to 25 years in the Tennessee Department of

Correction.

On April 26, 19 93, Ap pellan t appe aled to this Court and raised four issues.

This Court he ld that: (1) testimony about Appellant’s character or reputation was

not error, and even if it was error, it was harmles s; (2) the trial court properly

refused to allow into evidence the prior convictions of the informant; (3) the trial

court did not err by re fusing to a llow the tes timony o f a defense witness because

Appellant failed to lay a foundation for the testimony; and (4) Appellant was not

eligible for Range III punishment pursuant to Tenn. Code A nn. 39-17-41 7(c)(1),

and thus, the trial court erred in sentencing Appellant - State v. Tom my Le e Hill,

Jr., Madison county, C.C.A. 02C01-9212-CC-00285, Opinion filed December 1,

1993, at Jackson. This Court vacated Appellant’s sentence, remanded the case

to the trial court for resentencing, and affirmed the judgment of the trial in all other

respects. The trial court resentenced Appellant on December 14, 1994.

-2- On September 11, 1991, in Case Nos. 90-432, 90-434, 90-1000, 90-1127,

91-198, 91-199, and 91-682, Appellant pleaded guilty to two counts of sale of

cocaine, theft over $1,000 , posses sion of co caine w ith intent to sell, possession

of a handgun while being a convicted felon, hindering a secured creditor, and

felony escape. Appellant did not appeal these conviction.

On June 1, 1995, Appellant filed a pro se petition for post-conviction relief

in Case No. 90-433 and Case Nos. 90-432, 90-1000, 90-1127, 91-198, 91-199,

and 91-682. He alleged that his guilty pleas in Case No. 90-433 and Case Nos.

90-432, 90-1000, 90-1127, 91-198, 91-199, and 91-682 were entered

uninte lligently a nd un know ingly du e to the ineffec tivenes s of his tr ial cou nsel.

On August 4, 1995, the trial court dismissed the post-conviction petition

and ruled: (1 ) the pe tition wa s filed o utside the thre e year statute of limita tions in

Case Nos. 90 -432, 90 -1000, 9 0-1127 , 91-198 , 91-199 , and 91 -682; and (2)

regardin g Case No. 90-4 33, the pe titioner allege d no gro unds fo r relief.

2. STATUTE OF LIMITATIONS

It is clear that the pe tition for p ost-co nviction relief, in s o far as it relates to

cases 90-432, 90-10 00, 90 -1127 , 91-19 8, 91-1 99, an d 91-6 82, wa s prop erly

dismissed sum marily since it is clearly barred b y the app licable thre e year sta tute

of limitations . See. Tenn . Code Ann. §4 0-30-10 2 (Rep ealed). Appellant never

appealed his convic tions in these ca ses an d thus the time for filing fo r post-

conviction relief with respect to them expired on September 11, 1994. The

instant petition filed on June 1, 1995, is obviously time-barred.

-3- Appellant claim s that h e did n ot disc over h is coun sel’s alleged

ineffectiveness until December 14, 1994. In Burford v. State, 845 S.W.2d 204

(Tenn. 1992); our state supreme court held that a post-conviction petitioner must

be excused from the strict operation of the statute of limitations where a new

issue arises near the end of the limitations period or after the period thereby

depriving a petitione r of a fair opp ortunity to litigate the issue . Id. at 208.

In this case how ever, Appellant simply failed to discover the factual basis

of an alleged c laim of ine ffectivenes s of coun sel. Burford does n ot apply to a

post-c onvictio n petitio ner wh o sim ply slept on his rights to seek post-conviction

relief. Passa rella v. State , 891 S.W .2d 619 , 625-26 (Tenn . Crim. App. 1994 ).

Therefore, the post-c onviction p etition was time-ba rred and properly d enied w ith

respect to the cases noted above.

3. CASE NO. 90 -433 AN D TH E LAC K OF A CON STITU TION AL CLA IM

Although the petition for post-conviction relief was time ly filed with regard

to Case No. 90-433 , it fails to state grounds for which post-conviction relief can

be granted. Post-conviction relief can be granted only when a conviction or

sentence is void o r voida ble because of an abridgement of a right guaranteed by

the federal or s tate cons titutions. Tenn . Code Ann. § 4 0-30-10 5. The petition is

this case alleges that an involuntary guilty plea was entered in Case No. 90-433

as the result of alleged ineffectiveness of counsel. This is somewhat puzzling

since Appellant wa s convicted by a jury upon a plea of not guilty in Cae No.90-

433. Thus, we are unable to find a constitutional claim in the petition regarding

Case No. 90-433.

-4- Wh ere a post-conviction petition conclusively shows that the petition er is

not entitled to re lief, it is properly su bject to sum mary dismissal. Tenn. Code

Ann. § 40-30 -109; Givens v. State, 702 S.W .2d 578, 580 (Tenn. Crim. App.

1985). For these reasons the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOE B. JONES, PRESIDING JUDGE

___________________________________ DAVID H. WELLES, JUDGE

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