        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 26, 2013

               SHERRY SULFRIDGE V. STATE OF TENNESSEE

            Direct Appeal from the Criminal Court for Claiborne County
               No. 13CC1-2012-CR-1364       E. Shayne Sexton, Judge


                  No. E2012-01908-CCA-R3-PC - Filed July 29, 2013


The petitioner, Sherry Sulfridge, appeals the summary dismissal of her petition for post-
conviction relief as untimely. The petitioner pled guilty to aggravated child neglect and
reckless homicide, and she is currently serving an effective eighteen-year sentence in the
Department of Correction. Almost four years after the judgments were entered, the petitioner
filed a pro se petition for post-conviction relief. The post-conviction court summarily
dismissed the petition as untimely. Following review, we affirm the dismissal.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.

Sherry Sulfridge, Nashville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Lori
Phillips-Jones, District Attorney General; and Jared Effler, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION




                     Procedural History and Factual Background




       The facts underlying the petitioner’s convictions, as stated by this court on direct

appeal, are as follows:
              On January 2, 2005, the police were called to 609 Coffey Road in new

       Tazwell, Tennessee. When they arrived, they found the six-year-old victim,

       who suffered from cerebral palsy, dead in her child seat. At the time of the

       victim’s death, two women were babysitting the victim and her three siblings

       for the childrens’ mother, the [petitioner]. When the police informed the

       [petitioner] about the victim’s death, the [petitioner] gave them consent to

       search her home. During the search, the police found marijuana and evidence

       of other drug use. According to the autopsy report, the victim was dehydrated

       and malnourished, suffered from bed sores and lice, and had pneumonia.

       Blood toxicology tests revealed she was given alcohol while she was alive.

       The report concluded that the victim was neglected, that she died of severe

       dehydration as a consequence of malnutrition, and that pneumonia

       significantly contributed to her death.




State v. Sherry Sulfridge, No. E2006-02220-CCA-R3-CD, 2008 WL 299065, *1 (Tenn.

Crim. App., at Knoxville, Feb. 4, 2008).




       Based upon these actions, a Claiborne County grand jury indicted the petitioner for

first degree felony murder committed during the perpetration of aggravated child neglect and

aggravated child neglect. Id. at *1. On April 4, 2006, the petitioner pled guilty to the lesser

offense of reckless homicide and to aggravated child neglect. Id. After hearing the evidence

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presented at the sentencing hearing, the trial court determined that the appropriate sentences

were nineteen years for the aggravated child neglect and three years for the reckless

homicide. The court further ordered that the two sentences be served concurrently in the

Department of Correction. Id. at *3.




       The petitioner timely appealed, raising the single issue of whether her sentence for

aggravated child neglect was excessive because the trial court misapplied the enhancement

factor that the victim was particularly vulnerable due to age or physical or mental disability.

Id. Although finding no merit in the petitioner’s argument that the enhancement factor was

misapplied, this court remanded the case for re-sentencing under the pre-2005 sentencing

law or for execution of a waiver of ex post facto protections. Id. at *6. No record of the re-

sentencing hearing is included within this record on appeal. However, in her brief, the

petitioner states that, upon remand, the trial court imposed a total effective sentence of

eighteen years and that the judgments were entered on August 4, 2008.




       Almost four years later, on July 25, 2012, the petitioner filed a pro se petition for post-

conviction relief in which she raised numerous issues. As grounds for relief, the petitioner

asserted: (1) that trial counsel did not fully explain the plea agreement; (2) that the conviction

was based upon a coerced confession; (3) that the State withheld favorable evidence,

specifically that the victim’s medical records showed that she was hospitalized continually

for pneumonia; (4) trial counsel failed to appeal the judgment of the sentencing court

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following remand or inform her of when she should appeal; and (5) as “other grounds” again

raises the issue of misapplication the enhancement factor that the victim was particularly

vulnerable. The petitioner also asserted that her Fifth, Fourteenth, and Sixth Amendment

rights were violated, although she does not assert how the alleged violations occurred.




       The State filed a motion to dismiss the petition for relief because it was filed outside

the one-year statute of limitations and none of the statutory exceptions to the filing period

were applicable to this case. Apparently, the petitioner appeared before the court at a motion

to dismiss hearing. The post-convictions court, “[b]ased upon argument of the parties and

the entire record as a whole,” granted the State’s motion and dismissed the post-conviction

petition. The petitioner has timely appealed that dismissal.




                                          Analysis




       In her brief, the petitioner raises two issues for review on appeal: (1) that the

“particularly vulnerable” enhancement factor was erroneously relied upon “to add more time

to [her] sentence;” and (2) that trial counsel was ineffective for “not informing [her] about

the appeals and the time limits of said appeals.” As an aside, we note that, even had the

petition for relief been timely filed, the issue regarding the enhancement factor would not be

addressed, as it is not an issue cognizable in a petition for post-conviction relief. Moreover,

the issue has been previously determined by this court on direct appeal. The petitioner would

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not be granted a second review of the same issue.




       While ineffective assistance of counsel is a proper claim for post-conviction relief, it

will not be reviewed unless the petition for relief is timely filed. Under Tennessee Code

Annotated section 40-30-102(a), a post-conviction petition must be filed within one 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.”

The statute explicitly states, “The statute of limitations shall not be tolled for any reason,

including any tolling or saving provision otherwise available at law or equity.” Id. It further

stresses that “[t]ime is of the essence of the right to file a petition for post-conviction relief

or motion to reopen established by this chapter, and the one-year limitations period is an

element of the right to file the action and is a condition upon its exercise.” Id. In the event

that a petitioner files a petition for post-conviction relief outside the one year statute of

limitations, the trial court is required to summarily dismiss the petition. T.C.A. § 40-30-

106(b) (2010).




       Subsection (b) of the statute sets forth the three narrow exceptions under which an

untimely petition may be considered: (1) when the claim is based upon a final ruling of an

appellate court establishing a constitutional right that was not recognized at the time of trial

and which requires retrospective application; (2) when the claim is based upon new scientific

evidence establishing that the petitioner is innocent; and (3) when a previous conviction that

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was not a guilty plea and which was used to enhance the petitioner’s sentence has been held

to be invalid. Id. The post-conviction court must also consider an otherwise untimely

petition if the application of the statute of limitations would be a denial of due process. Seals

v. State, 23 S.W.3d 272, 278-79 (Tenn. 2000).




       [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 the “presentation of claims at

       a meaningful time and in a meaningful manner.” The test is “whether the time

       period provides an applicant a reasonable opportunity to have the claimed

       issue heard and determined.”

Id. at 277-278 (quoting Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)). [C]ourts

should utilize a three-step process: (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). The principles of due process are flexible, requiring a

balancing of the petitioner’s liberty interest against the state’s finality interests. Sample v.

State, 82 S.W.3d 267, 273-74 (Tenn. 2002).




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          There is no dispute in this case that the petition for post-conviction relief was filed

outside the applicable one-year statute of limitations. Following the remand in the case,

judgments were entered in 2008, and no appeal was taken. The post-conviction petition was

not filed until 2012, almost four years later. The petitioner herself acknowledges that her

petition was filed outside the relevant statute of limitations period. In the petition itself, she

states:




                 Petitioner avers that her attorney did not notify her about the need to

          appeal before a certain date. Petitioner avers that she was heavily medicated

          and was incoherent most times. Petitioner avers she had written her attorney

          on several occasions and never received a response. Then, Petitioner avers,

          that her attorney passed away.




In her brief, the petitioner's argument with regard to why the petition should be heard is

based entirely upon federal, not state case law. She contends that “when counsel fails to

inform the appellant about when the next appeal is due to be filed with the court[,] it is a

violation of the petitioner’s right [of] access to the courts and is a denial of effective

assistan[ce] of counsel.”




          Following our review, we conclude that the petitioner has failed to establish a reason

to excuse her untimely filing of the petition. The facts of the case do not fall into one of the

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three recognized statutory exceptions. Nor can we conclude that due process requires

excusing the late filing because the grounds for relief raised by the petitioner were not “later-

arising.” Each of the grounds existed prior to the running of the statute of limitations. Her

lack of knowledge of the appellate process does not excuse the untimely filing. As argued

by the State, we are aware of no authority which requires trial counsel to inform a defendant

of the availability of post-conviction relief. Simply stated, the record before us provides no

basis for tolling the statute of limitations, and the post-conviction court properly dismissed

the petition. While we recognize that the petitioner is proceeding pro se and that pro se

litigants are not held to the same standard as attorneys on appeal before this court, there is

simply nothing in this record to lead us to conclude that the statute of limitations should not

apply in this case.




                                       CONCLUSION

       Based upon the foregoing, the summary dismissal of the post-conviction petition is

affirmed.




                                                     _________________________________

                                                     JOHN EVERETT WILLIAMS, JUDGE




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