Court of Criminal Appeals of Tennessee, Nashville
MATTHEW B. FOLEY
STATE OF TENNESSEE
Session September 12, 2017
from the Circuit Court for Rutherford County No. F-52128
David M. Bragg, Judge.
B. Foley, the Petitioner, filed a petition for
post-conviction relief thirteen years after he entered a
guilty plea; he argued that the statute of limitations should
be tolled on due process grounds and that the State had
breached a material element of his plea agreement. The
post-conviction court summarily dismissed the petition on the
ground that the statute of limitations should not be tolled.
On appeal, this court held that the statute of limitations
should be tolled based on due process grounds and remanded
the case for an evidentiary hearing on the merits.
Matthew B. Foley v. State, No.
M2015-00311-CCA-R3-PC, 2016 WL 245857, at *8 (Tenn. Crim.
App. Jan. 20, 2016), no perm. app. filed. On remand,
the post-conviction court again denied relief on the ground
that the statute of limitations should not be tolled based on
due process. We again reverse and remand this case for an
evidentiary hearing on the merits of the post-conviction
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Remanded.
B. Clark, Nashville, Tennessee, for the appellant, Matthew
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Jennings H. Jones, District Attorney
General; and Hugh Ammerman, Assistant District Attorney
General, for the appellee, State of Tennessee.
L. Holloway, Jr., J., delivered the opinion of the court, in
which John Everett Williams and Robert H. Montgomery, Jr.,
L. HOLLOWAY, JR., JUDGE.
Factual and Procedural Background
February 28, 2002, Matthew B. Foley, the Petitioner, who was
fifteen years of age at the time of the offense, entered a
negotiated plea of guilty to a reduced charge of facilitation
of especially aggravated kidnapping. At that time, facilitation
of especially aggravated kidnapping was not listed as an
offense requiring registration under the Sexual Offender
Registration Act (the Act), and at the plea submission
hearing the State noted that it was of "major
benefit" to the Petitioner to plea to this offense
because he would not be required to register as a sex
offender. The trial court stated that the Petitioner would
"be required to follow the requirements for a sex
offender, although [he was] not going to be officially a sex
22, 2002, the Act was amended to add facilitation of
especially aggravated kidnapping as a sexual offense
requiring registration; on July 1, 2004, the Act was again
amended to remove facilitation of especially aggravated
kidnapping from the Act. In the fall of 2011, while the
Petitioner was incarcerated in a state prison serving the
remainder of his sentence for especially aggravated
kidnapping after violating his probation, he was informed
that he needed to register as a sex offender. The Petitioner
refused and was arrested upon his release from state prison.
However, when the Petitioner was able to show through counsel
that he was not statutorily required to register as a sex
offender, the State dismissed the charge on April 3, 2012. In
May 2012, Detective Jennifer West of the Murfreesboro Police
Department told the Petitioner that he was required to
register. The Petitioner told Detective West that he was not
required to register, however, on May 25, 2012, he signed a
Tennessee Bureau of Investigation Sexual Offender
Instructions Form and began reporting to Detective West.
Again, at this time, the Petitioner was not required to
register under the statute. On July 1, 2012, the Act was
again amended to add facilitation of especially aggravated
kidnapping as a sexual offense requiring registration. On
September 10, 2012, the Petitioner was again arrested for
violation of the sex offender registry. He again hired
private counsel who, on August 19, 2013, was successful in
having the charge retired. In 2014, the Petitioner was again
arrested for violating the terms of the registry; he later
pled no contest to two counts of violating the registry.
Petitioner filed a petition for post-conviction relief on
January 7, 2015. In his petition, the Petitioner alleged that
"[b]y modifying the Sex Offender Registration Act to
include the offense of Facilitation of Especially Aggravated
Kidnapping and forcing [the] Petitioner to comply with the
sex offender registry, the State of Tennessee ha[d]
effectively violated a material condition of the plea
agreement entered on February 28, 2002." Additionally,
the Petitioner alleged that the State of Tennessee
"violated [the Petitioner's] Due Process rights
under the 5th and 14th amendments to the U.S. Constitution
and Article I, § 8 of the Tennessee Constitution, and
rendering [the] Petitioner's guilty plea
post-conviction court summarily denied the post-conviction
relief petition, finding that the petition was barred by the
one-year statute of limitations. The Petitioner appealed, and
this court reversed and remanded for "an evidentiary
hearing in which to present proof as to his post-conviction
grounds for relief." Matthew ...