Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs June 23, 2015
Appeal from the Criminal Court for Davidson County No. 2001-I-1209 J. Randall Wyatt, Jr., Judge
David J. McKenzie, Lewisberg, Tennessee, and Matthew D. Wilson, Starkville, Mississippi, for the appellant, Raymond Andrew Herbst.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Amy M. Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.
TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ALAN E. GLENN and ROBERT H. MONTGOMERY, JR., JJ., joined.
TIMOTHY L. EASTER, JUDGE
This is Petitioner's appeal from the Davidson County Criminal Court's dismissal of his ill-fated petition for post-conviction relief attacking this guilty plea entered on November 21, 2001.
Petitioner was charged by information with one count of rape and three counts of attempted rape. On the same day, Petitioner entered guilty pleas to all four counts. The terms of Petitioner's plea agreement, as reflected in the guilty plea petition, provide that Petitioner would serve a split confinement sentence of nine years at 100% for the rape conviction with one year of confinement at 100% followed by eight years of community corrections for special needs. For each of the attempted rape convictions, Petitioner would serve a split confinement sentence of six years at 30% with one year of confinement at 100% followed by five years of community corrections for special needs. All four sentences were to be served concurrently.
Over 12 years later, Petitioner filed a petition for post-conviction relief, arguing that his guilty plea was not knowing and intelligent because he was unaware that he would be subject to lifetime community supervision. Petitioner also argues that the post-conviction statute of limitations should be tolled on due process grounds because he was unaware of the lifetime community supervision requirement until July 2013, when he was notified by the Tennessee Board of Probation and Parole. On June 13, 2014, the State filed a motion to dismiss, arguing that post-conviction relief was barred by the statute of limitations. On June 23, 2014, Petitioner filed a response, arguing that the State waived reliance on the statute of limitations as a defense by failing to respond to Petitioner's claim for due process tolling.
On July 10, 2014, the post-conviction court held a hearing on the motion to dismiss, at which neither party presented proof but both presented argument. After taking the matter under advisement, the post-conviction court entered an order granting the State's motion and dismissing the petition on August 26, 2014. Petitioner filed a timely notice of appeal.
Post-conviction relief is available for any conviction or sentence that is "void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." T.C.A. § 40-30-103. A petition for post-conviction relief must be filed within one year of the date on which the judgment became final if no direct appeal was taken. T.C.A. § 40-30-102(a). Our legislature emphasized the fact that "[t]ime is of the essence of the right to file a petition for post-conviction relief, " id., and provided only three narrow exceptions to the statute of limitations: (1) a new constitutional right with retrospective application; (2) new scientific evidence establishing actual innocence; and (3) the invalidation of convictions underlying an enhanced sentence. T.C.A. § 40-30-102(b).
However, the constitutional right to due process may necessitate tolling the statute of limitations in certain circumstances outside of the enumerated statutory exceptions. See Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). Our supreme court has held:
[B]efore a state may terminate a claim for failure to comply with procedural requirements such as statutes of limitations, due process requires that a potential litigant be provided an opportunity for "presentation of claims at a meaningful time and in a meaningful manner." The test is "whether the time period provides an ...