         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 8, 2007

                   DENNIS JARRETT v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Hardeman County
                            No. 6633   J. Weber McCraw, Judge



                      No. W2006-02033-CCA-R3-PC - Filed July 24, 2007


The petitioner, Dennis Jarrett, filed a petition for post-conviction relief, alleging the ineffective
assistance of counsel as grounds for relief. The trial court summarily dismissed the petition as time-
barred. The petitioner appeals the dismissal, and we affirm the judgment of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE, JJ., joined.

Dennis Jarrett, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
D. Michael Dunavant, District Attorney General; and Joe VanDyke, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        Our knowledge of the facts underlying this appeal comes exclusively from the petition for
post-conviction relief and the parties’ briefs, which state that the petitioner was convicted in 2002
of driving under the influence (third offense), violation of a habitual motor vehicle offender order,
and resisting arrest. The petitioner was sentenced on June 13, 2002, to an effective six-year
sentence.

        According to the petitioner, he understood that his trial counsel would file a motion for a new
trial and notice of appeal following his convictions. The petitioner asserts, however, that he waited
for several years to hear word from counsel about the status of his case and that he attempted to
contact counsel to no avail. He says that he learned, with the assistance of people in prison, that no
direct appeal of his convictions was filed as of August 7, 2006. On August 14, 2006, the petitioner
filed a post-conviction petition under the style “Petitioner[’s] First Petition for Delay[ed] Post
Conviction Relief Due to No Fault of His Own Pursuant to Tennessee Code Annotated 40-30-113
seq. et. al.” The trial court dismissed the petition without appointing counsel or conducting a
hearing, finding that the petition was filed over four years after the petitioner’s convictions, that no
other pleadings had been filed in the case, and that the petition failed to comply with the one-year
statute of limitations.

        The petitioner contests the trial court’s dismissal of the petition. He does not dispute that his
petition was filed late, but he argues that he is not at fault for the late filing and that he is entitled to
a delayed appeal of his case under Wallace v. State, 121 S.W.3d 652 (Tenn. 2003). The state argues
that Wallace is distinguishable from the present case and that the petitioner’s assertions that he
expected trial counsel to file a motion for new trial and to appeal his convictions do not warrant
tolling the statute of limitations.

        The Tennessee Post-Conviction Procedure Act specifies that

                a person in custody under a sentence of a court of this state must
                petition for post-conviction relief under this part within one (1) year
                of the date of the final action of the highest state appellate court to
                which an appeal is taken or, if no appeal is taken, within one (1) year
                of the date on which the judgment became final, or consideration of
                such petition shall be barred. The statute of limitations shall not be
                tolled for any reason, including any tolling or saving provision
                otherwise available at law or equity.

T.C.A. § 40-30-102(a). A trial court may enter an order summarily dismissing a post-conviction
petition if the petition is not filed within the time set forth in the statute of limitations. T.C.A. § 40-
30-106. If a petitioner files a petition for post-conviction relief outside the one-year statute of
limitations, a court may still consider the petition if (1) a new constitutional right has been
recognized; (2) the petitioner’s innocence has been established by new scientific evidence; or (3) a
previous conviction that enhanced the petitioner’s sentence has been held to be invalid. T.C.A. §
40-30-102(b). A court may also consider an untimely petition for post-conviction relief if applying
the statute of limitations would deny the petitioner due process. Burford v. State, 845 S.W.2d 204,
209-10 (Tenn. 1992).

         In addressing the petitioner’s claims in the present case, we believe that the petitioner’s
reliance on Wallace is misplaced. In Wallace, our supreme court held that the petitioner was entitled
to a delayed direct appeal when the petitioner’s trial counsel was ineffective in failing to file a
motion for a new trial or to withdraw as the attorney of record to allow the petitioner to file a pro se
motion. 121 S.W.3d 652. However, Wallace had no issue regarding the timeliness of the
petitioner’s post-conviction petition. The petitioner in the present case filed his post-conviction
petition beyond the one-year statute of limitations for filing a post-conviction petition, and the issue
in this appeal is whether the statute of limitations should be tolled. We cannot reach the issue of
whether the petitioner’s trial counsel was effective or whether the petitioner is entitled to a delayed



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appeal unless we first conclude that due process or another exception to the one-year rule requires
tolling the statute of limitations.

        The defendant does not contend that his case fits under any of the narrow exceptions to the
statute of limitations listed in Code section 40-30-102(b) but only that the statute should be tolled
because the late filing was not his fault. Due process concerns may require the statute of limitations
to be tolled if a petitioner shows that misrepresentations made by counsel deprived the petitioner of
a reasonable opportunity to seek post-conviction relief. Williams v. State, 44 S.W.3d 464, 471
(Tenn. 2001). However, due process requires a weighing of the petitioner’s liberty interest against
the state’s interest in preventing the litigation of stale and fraudulent claims. Sample v. State, 82
S.W.3d 267, 273-74 (Tenn. 2002). To determine if due process requires tolling of the statute of
limitations, our supreme court has provided a three-step test:

                (1) determine when the limitations period would normally have begun
                to run;
                (2) determine whether the grounds for relief actually arose after the
                limitations period would normally have commenced; and
                (3) if the grounds are “later arising,” determine if, under the facts of
                the case, a strict application of the limitations period would
                effectively deny the petitioner a reasonable opportunity to present the
                claim.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).

            We conclude that due process does not require that the statute of limitations be tolled in
this case. The trial court found, and the petitioner does not dispute, that the petitioner filed for post-
conviction relief over four years after he was convicted. Although our supreme court held in
Williams that an attorney’s misrepresentations regarding whether an appeal has been filed may
require tolling the statute of limitations on due process grounds, the petitioner in the present case has
not alleged that his attorney misrepresented anything to him. He only states that “it was his
understanding” that his trial counsel would file a motion for new trial and appeal his case and that
counsel never contacted him regarding the status of his case. The Williams court clarified that its
holding did not mean “that a petitioner may be excused from filing an untimely post-conviction
petition as a result of counsel’s negligence.” Id. at 468, n.7. Furthermore, in considering the Sands
factors, we determine that although the petitioner’s alleged grounds for relief–that his trial counsel
was ineffective in failing to file a motion for new trial and direct appeal–are “later-arising” grounds,
application of the limitations period would not deny the petitioner a reasonable opportunity to
present his claims in a timely manner. See Sands, 903 S.W.2d at 301. The petitioner claims that he
waited four years after his convictions until confirming that no appeal had been filed in his case. He
makes no assertion that his counsel informed him that an appeal was filed. We note also that before
his 2002 convictions, the petitioner appealed a prior conviction and, thus, should have been aware
of the procedural requirements regarding the filing of a motion for new trial and a notice of appeal.



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See State v. Dennis Jarrett, C.C.A. No. 2, Hardeman County (Tenn. Crim. App. July 25, 1990).
Therefore, it was not reasonable for him to wait four years before determining the status of his case.

        Based on the foregoing and the record as a whole, we conclude that due process does not
require that the statute of limitations for filing a post-conviction petition be tolled in this case and
that the trial court did not err in dismissing the petition. We affirm the judgment of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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