Assigned on Briefs July 25, 2017, at Knoxville
from the Criminal Court for Shelby County No. 11-02524 James
C. Beasley, Jr., Judge
petitioner, Monterious Bell, appeals the dismissal of his
post-conviction petition, arguing the post-conviction court
erred in dismissing the petition as time-barred. Following
our review, we conclude the petition was timely filed. The
judgment of the post-conviction court is reversed and the
matter remanded for consideration of the post-conviction
petition in accord with the Post-Conviction Procedure Act.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Reversed; Case Remanded
Monterious Bell, Henning, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Karen Cook, Assistant District
Attorney General, for the appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.
ROSS DYER, JUDGE.
post-conviction appeal stems from the petitioner's
participation in a home invasion on November 1, 2010. The
petitioner hired trial counsel, and proceeded to trial where
he was convicted of aggravated burglary and sentenced to
fifteen years in confinement. Subsequent to trial, the trial
court ordered trial counsel to represent the petitioner on
direct appeal where counsel challenged the sufficiency of the
evidence supporting the petitioner's conviction for
aggravated burglary. This Court summarized the underlying
facts leading to the petitioner's conviction as follows:
The State's proof at trial showed that on the morning of
November 1, 2010, Odella McKinnon was at home preparing to
take a bath when she heard the doorbell and then
"intense beating" on her iron front door. Ms.
McKinnon immediately began dressing. As she left the bathroom
to open the front door, she heard someone "beating"
on the back door, and she noticed a tan Toyota automobile
backed into her driveway. Before she could react, she heard
"cracking and breaking" on the back door. Ms.
McKinnon then proceeded directly to her bedroom and retrieved
her handgun. As Ms. McKinnon approached the back door, the
door "flew open" and two men rushed inside. Ms.
McKinnon fired a single gunshot, and the two men turned and
fled. Ms. McKinnon testified that she got "a good quick
look" at the two men, and she stated that she had no
trouble seeing their faces because it was "a sunny
day." At trial, Ms. McKinnon described the first man,
later identified as the defendant, as having light skin and
standing between five feet, eight inches, and five feet, ten
inches in height, and she described the second man as heavier
and bald with darker skin.
Ms. McKinnon called 9-1-1, and Memphis Police Department
("MPD") Officer Martrell Boswell arrived at the
scene two to three minutes after receiving the call from
dispatch. Upon his arrival, Officer Boswell observed a black
male, the defendant, standing by the driver's door of the
tan Toyota parked in Ms. McKinnon's driveway. When the
man noticed Officer Boswell's unmarked police vehicle
approaching, he "crossed the street and attempted to
gently knock on the door" of a neighbor's house.
Officer Boswell then detained the defendant in the front yard
of the neighbor's house. After other officers arrived at
Ms. McKinnon's residence, Officer Boswell had the
defendant stand outside Ms. McKinnon's house, and Ms.
McKinnon positively identified the defendant as the first of
the two men who had just broken into her home. Ms. McKinnon
admitted that, at the preliminary hearing, she initially
misidentified the second male who had broken into her home,
but, at trial, she was adamant that she had never
misidentified the defendant.
MPD Officer Patricia Turnmire photographed, among other
things, a footprint on the back door of Ms. McKinnon's
house and the bottoms of the shoes the defendant was wearing
on November 1. Based on the ridges on the defendant's
shoes, Officer Turnmire believed the defendant's shoes
"to be a match" to the footprint on Ms.
McKinnon's back door. Officer Boswell, a self-described
"shoe connoisseur, " testified that the defendant
was wearing Nike "Air Force 1" athletic shoes when
he was taken into custody and that the treads on those shoes
matched the footprint left on the back door. Officer Boswell
testified that, when the defendant's accomplice, Bryant
Johnson, was arrested two hours later, he was wearing Nike
"Air Max" shoes rather than "Air Force 1"
shoes and that the treads on the two types of shoes were
Mr. Johnson testified that he had known the defendant since
childhood and that, on November 1, the defendant picked him
up in a tan Toyota Camry owned by the defendant's
girlfriend. After the two men smoked some marijuana, the
defendant drove through Ms. McKinnon's neighborhood
looking for houses to burglarize. The defendant backed the
Camry into Ms. McKinnon's driveway, and the defendant
knocked on the front door. When he received no answer, the
men proceeded to the back door and knocked. The defendant
then "kicked the door in." Mr. Johnson entered the
house just behind the defendant. Mr. Johnson "heard a
shot, " and both men fled from the house. Mr. Johnson
was arrested later that day, and he admitted that he was