Court of Criminal Appeals of Tennessee, Nashville
Session Date: March 11, 2015
Appeal from the Circuit Court for Robertson County No. 74CC2-2010-CR-461 Michael R. Jones, Judge
John E. Herbison, Clarksville, Tennessee, for the Petitioner, Daniel David Eden.
Herbert H. Slatery, III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; John W. Carney, Jr., District Attorney General; and Jason C. White, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Roger A. Page, JJ., joined.
CAMILLE R. McMULLEN, JUDGE
On November 3, 2010, the Petitioner entered a nolo contendere plea to attempted aggravated sexual battery and was sentenced to a six-year sentence of split confinement, requiring service of 320 days of incarceration followed by five years and forty-five days of supervised probation. At the July 20, 2012 probation revocation hearing, the State agreed to dismiss two new felony charges if the Petitioner admitted that he violated the terms and conditions of his probation by not reporting to his probation officer and agreed to serve the balance of his sentence in incarceration. The Petitioner subsequently acknowledged that he had violated the terms of his probation by failing to report to his probation officer. Pursuant to the above agreement, the trial court revoked the Petitioner's probation and ordered him to serve the balance of his six-year sentence in incarceration after giving him the appropriate jail credits.
On January 15, 2013, the post-conviction court received a letter from the Petitioner requesting post-conviction relief and claiming he received ineffective assistance of counsel at the probation revocation hearing because his attorney failed to discuss the possibility of his serving the remainder of his unexpired term in a community based alternative to incarceration. On February 19, 2013, the court received a second letter from the Petitioner requesting assistance in obtaining a "post-conviction relief form." On February 22, 2013, the post-conviction court appointed counsel to the Petitioner.
On September 10, 2013, the Petitioner, through counsel, filed an amended post-conviction petition alleging that he received ineffective assistance of counsel at the probation revocation hearing. The State filed a motion to dismiss the post-conviction petition based upon Young v. State, which held that a post-conviction petition cannot be used to collaterally attack the validity of a probation revocation proceeding. On March 14, 2014, the Petitioner filed a response to the motion to dismiss, which was similar in content to his brief on appeal. At the hearing on the State's motion to dismiss held the same day, the State argued that, pursuant to Young, the Petitioner was precluded from using post-conviction proceedings to collaterally attack a probation revocation and that the Petitioner's constitutional rights had not been violated. The Petitioner responded that he should be entitled to a hearing on the post-conviction claim because a court "essentially" resentences a defendant in a probation revocation matter just as it does in a community corrections revocation matter. After considering the pleadings and arguments of counsel, the post-conviction court granted the State's motion to dismiss pursuant to Young and entered an order dismissing the post-conviction petition the same day. The Petitioner then filed an untimely appeal thirty-seven days after entry of the post-conviction court's order.
Initially, we note that the post-conviction court entered its order summarily dismissing the post-conviction petition on March 14, 2014, and that the Petitioner filed his notice of appeal seven days late on April 21, 2014. The State correctly asserts that the Petitioner did not file a motion requesting this court to waive the thirty-day time period for filing a notice of appeal and did not provide an explanation as to why the notice of appeal was untimely or why the interest of justice requires a waiver of the notice requirement. Moreover, the State asserts that because this court has consistently followed the holding in Young, this issue is well-settled. Citing the need to enforce adherence to procedural rules and to expedite cases, the State argues that dismissal is required in this case. Tennessee Rule of Appellate Procedure 4(a) states that "the notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from . . . ." However, this rule also states that "in all criminal cases the
'notice of appeal' document is not jurisdictional and the filing of such document may be waived in the interest of justice." Tenn. R. App. P. 4(a). Upon evaluation, we conclude that the "interest of justice" is best served by granting a waiver in this case. See Tenn. R. App. P. 4(a); see also Crittenden v. State, 978 S.W.2d 929, 932 (Tenn. 1998). We will now address the merits of this case.
The Petitioner argues on appeal that the post-conviction court erred in summarily dismissing his post-conviction petition because Young is "unsound and should be abrogated." Specifically, he argues that Young offends equal protection guarantees by denying him an opportunity to litigate an ineffective assistance of counsel claim at his probation revocation proceedings when such an opportunity is available to petitioners in community corrections revocation proceedings. The State responds that the post-conviction court acted appropriately in summarily dismissing the post-conviction petition pursuant to Young, a decision that has been consistently upheld. In light of Young and the Tennessee Supreme Court's decision to distinguish community corrections revocation proceedings from probation revocation proceedings in Carpenter v. State, 136 S.W.3d 608 (Tenn. 2004), we agree with the State.
Post-conviction relief is only warranted when a petitioner establishes that his or her conviction or sentence is void or voidable because of an abridgement of a constitutional right. T.C.A. § 40-30-103. Petitions for post-conviction relief must include a "specific statement of all grounds upon which relief is sought, including full disclosure of the factual basis of those grounds." Id. § 40-30-106(d). As it did in this case, the State may file, in lieu of a response, a motion to dismiss the post-conviction petition on the basis that the facts alleged in the petition fail to show that the petitioner is entitled to relief. See id. § 40-30-108(c)(5). "If, on reviewing the petition, the response, files, and records, the court determines conclusively that the petitioner is entitled to no relief, the court shall dismiss the petition." Id. § 40-30-109(a); see id. § 40-30-106(f) (stating that the post-conviction court may summarily dismiss the petition when "the facts alleged, taken as true, fail to show that the petitioner is entitled to relief"); Tenn. Sup. Ct. R. 28 § 5(F)(5) (stating that a post-conviction petition may be summarily dismissed if the facts alleged in the petition do "not entitle petitioner to relief even if taken as true").
The Petitioner asserts that Young v. State, 101 S.W.3d 430 (Tenn. Crim. App. 2002), should be abrogated. In Young, this court considered whether an order revoking probation and requiring that the sentence originally imposed be carried out is a
'sentence' subject to collateral attack under the post-conviction act. Id. at 431. The Young court concluded ...