Wendell Watts v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9711-CC-00533
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED OCTOBER 1998 SESSION December 9, 1998

Cecil W. Crowson WENDELL GENE WATTS, ) Appellate Court Clerk ) Appellant, ) No. 01C01-9711-CC-00533 ) ) Maury County v. ) ) Honorable James L. Weatherford, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )

For the Appellant: For the Appellee:

Shara Ann Flacy John Knox Walkup District Public Defender Attorney General of Tennessee and and William C. Bright Karen M. Yacuzzo Assistant Public Defender Assistant Attorney General of Tennessee 128 North Second St. 425 Fifth Avenue North P.O. Box 1208 Nashville, TN 37243-0493 Pulaski, TN 38478-1208 (AT TRIAL Michael T. Bottoms District Attorney General Shara Ann Flacy P.O. Box 459 District Public Defender Lawrenceburg, TN 38464 and and Joseph L. Penrod Robert Sanders 128 North Second Street Assistant District Attorney General P.O. Box 1208 Maury County Courthouse Pulaski, TN 38478-1208 Columbia, TN 38401 (ON APPEAL)

OPINION FILED:____________________

AFFIRMED PURSUANT TO RULE 20

Joseph M. Tipton Judge OPINION

The petitioner, Wendell Gene Watts, appeals the denial of post-

conviction relief by the Maury County Circuit Court. He is presently in the custody of the

Department of Correction serving a ninety-nine-year sentence for his conviction for

aggravated rape in 1982. The petitioner contends that the statute of limitations should

not bar his petition for post-conviction relief because: (1) he lacked the resources with

which to file it timely; (2) his interest in presenting his grounds for relief outweighs the

government’s interest in applying the statute of limitations; and (3) State v. Livingston,

907 S.W.2d 392 (Tenn. 1995), announced a new rule, and its application is not barred

by the three-year statute of limitations for post-conviction relief.

The petitioner was convicted on January 26, 1982, of aggravated rape

and sentenced to ninety-nine years. The conviction was affirmed by this court. State v.

Wendall [sic] Gene Watts, No. 82-72-III, Maury County (Tenn. Crim. App. Oct. 6, 1982),

app. denied (Tenn. Jan. 31, 1983).

The petitioner filed a petition for post-conviction relief on February 28,

1996, and subsequently filed three amendments. The state responded that the petition

was barred by the statute of limitations.

The post-conviction court granted a hearing to determine whether the

petition was time barred, and on October 30, 1997, ordered the petition dismissed due

to the failure to file within the statute of limitations.

Tenn. Code Ann. § 40-30-202 is the controlling authority with regard to the

statute of limitations on post-conviction relief petitions. It provides for a review of a

2 post-conviction petition filed outside the statute of limitations only in specific instances.

The petitioner’s claims in this case fail to meet any of these exceptions.

We note that the petitioner asserts a new rule was established by our

supreme court in Livingston, which would entitle him to a review of this post-conviction

petition. Livingston concerned the admissibility of “fresh complaint” evidence in light of

the Tennessee Supreme Court’s decision in State v. Kendricks, 891 S.W.2d 597 (Tenn.

1994). In Jimmy Wayne Wilson v. State, No. 03C01-9611-CR-00409, Sullivan County

(Tenn. Crim. App. Oct. 30, 1997), Wilson made an argument analogous to the

petitioner’s: that the Kendricks court created a new constitutional right requiring

retroactive application to his case. However, the court held that Kendricks did not

establish a new constitutional right but simply modified the principles governing “fresh

complaint” evidence. Likewise, we conclude that Livingston did not establish a new

constitutional right requiring retroactive application. Rather, it is a modification of

evidentiary principles governing “fresh complaint” testimony. Therefore, the trial court

properly denied the petitioner’s claim since it was barred by the statute of limitations.

After full consideration of the record, the briefs, and the law governing the

issues presented, we are of the opinion that the record supports the trial court’s action,

that no error of law exists that would require a reversal, and that no precedential value

would be derived from the rendering of an opinion. Therefore, we conclude that the

judgment of the trial court should be affirmed pursuant to Rule 20, Tenn. Ct. Crim. App.

3 ___________________________ Joseph M. Tipton, Judge

CONCUR:

___________________________ Joe G. Riley, Judge

___________________________ James Curwood, Jr., Judge