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McGill v. State

Court of Criminal Appeals of Tennessee, Knoxville

July 30, 2019

BERNIE RAY MCGILL
v.
STATE OF TENNESSEE

          Assigned on Briefs June 25, 2019

          Appeal from the Criminal Court for Knox County No. 112811 Bobby R. McGee, Judge

         The Petitioner, Bernie Ray McGill, appeals the Knox County Criminal Court's denial of his petition for post-conviction relief from his conviction of aggravated assault and ten-year sentence. On appeal, he contends that the post-conviction court erred by finding that his petition was barred by the statute of limitations because due process required that the statute of limitations be tolled. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Bernie Ray McGill.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Monette Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         On April 16, 2018, the Petitioner filed an untimely petition for post-conviction relief from his conviction of aggravated assault and resulting ten-year sentence. In the petition, the Petitioner claimed that he received the ineffective assistance of trial counsel. The post-conviction court appointed counsel and held a hearing to determine whether due process required that the statute of limitations be tolled.

         At the outset of the hearing, the State advised the post-conviction court that the Petitioner pled guilty to aggravated assault on February 14, 2017. He received a ten-year sentence to be served on supervised probation, and the judgment of conviction was entered on February 27, 2017. A probation violation report was filed on February 8, 2018; the Petitioner's probation was revoked on March 23, 2018; and he was sent to the Tennessee Department of Correction (TDOC). The Petitioner filed his pro se petition for post-conviction relief on April 16, 2018. The State contended that "what he's trying to do now is to go back and withdraw that guilty plea that's well over a year [old] only because his probation got revoked."

         The Petitioner testified on his own behalf that he did not remember if he pled guilty to aggravated assault and that he did not remember coming to court and pleading guilty to the charge. However, he then testified that he filed his petition for post-conviction relief because "they lied to me in the court on the deal, plea bargain." He said that pursuant to his plea agreement, he was supposed to have been released from jail on the day of his guilty plea to aggravated assault. Instead, he was released from jail the day after his guilty plea. The day after his release from jail, his probation officer telephoned his sister and told her that the Petitioner was supposed to be serving probation. The Petitioner said he did not know his guilty plea required probation. He stated that trial counsel represented him in the aggravated assault case and that he did not remember discussing the case with trial counsel prior to his guilty plea.

         The Petitioner testified that about one week after he was released from jail, he went to see a doctor about his mental state and began to think his guilty plea was not knowing and voluntary. Two or three weeks after the Petitioner's guilty plea hearing, he told trial counsel that he wanted to withdraw his plea. Trial counsel told the Petitioner that he would "take care of it" by filing a motion to withdraw the plea. Post-conviction counsel asked the Petitioner when he began to question whether trial counsel was actually going to file the motion, and the Petitioner answered, "When they brought me back up on violation." The Petitioner was arrested for the probation violation in February 2018, and trial counsel continued to represent him. They did not discuss withdrawing the guilty plea again, and the Petitioner never asked trial counsel why he did not file the motion to withdraw the plea.

         The Petitioner testified that he tried to file a pro se petition for post-conviction relief in January 2018 but that "it didn't go through for some reason." In February 2018, the Petitioner's sister said she would file the petition for him. The Petitioner was in the TDOC, so he and his sister filled out the petition "over the telephone." She mailed it for him, and he thought she mailed it in February 2018. However, he did not have any documentation showing when she mailed it. The Petitioner testified that he and trial counsel did not talk about filing a ...


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