         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     June 28, 2005 Session

               BRONZO GOSNELL, JR. V. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Greene County
                          No. 04-CR-242 James E. Beckner, Judge



                     No. E2004-02654-CCA-R3-PC - Filed August 19, 2005


A Greene County jury convicted the Petitioner, Bronzo Gosnell, Jr., of second degree murder, and
the trial court sentenced him to twenty-five years in prison. This Court affirmed the Petitioner’s
conviction on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The
Petitioner filed a petition for post-conviction relief, which the post-conviction court summarily
dismissed as time-barred. Because we agree that the petition is time-barred, we affirm.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT ,
JR. and NORMA MCGEE OGLE, JJ., joined.

Paul Whetstone, Mosheim, Tennessee, for the appellant, Bronzo Gosnell, Jr.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
C. Berkeley Bell, Jr., District Attorney General; and Eric Christiansen, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

        On September 22, 1999, a Greene County jury found the Petitioner guilty of second degree
murder. The trial court sentenced the Petitioner to twenty-five years in prison. On March 20, 2001,
this Court affirmed the Petitioner’s conviction and sentence. See State v. Gosnell, 62 S.W.3d 740
(Tenn. Crim. App. 2001), perm. app. denied (Tenn. 2001). On October 5, 2004, the Petitioner,
through appointed counsel, filed a petition for post-conviction relief. In his petition, the Petitioner
avers that he never received notice that application for permission to appeal to the Tennessee
Supreme Court had been filed or notice that the Court denied permission to appeal. Further, the
Petitioner avers that he first received a copy of this Court’s opinion in his direct appeal during a
conference with his post-conviction counsel in September of 2004.
         In his petition, the Petitioner asserts that he was denied the effective assistance of counsel
at trial and on direct appeal. He also asserts that the trial court erred in not requiring the State to
elect offenses and that the trial court incorrectly instructed the jury on the requisite “knowing”
mental state. The State responded that the Petitioner’s petition for post-conviction relief was time-
barred because it was filed outside the one year statutory limitation period.

           The trial court dismissed the Petitioner’s petition for post-conviction relief, without a hearing,
stating:

           [The Petitioner] files a petition for post-conviction relief. This is his first petition for
           post conviction relief. The petition attaches a pleading which he calls a “Motion for
           Correction of Judgment and Sentence.”

                 The [P]etitioner was convicted on September 22, 1999, of second degree
           murder and sentenced to [twenty-five] years.

                  The [P]etitioner appealed and his appeal was denied by the Tennessee Court
           of Criminal Appeals on March 20, 2001. Permission to appeal was denied by the
           Tennessee Supreme Court on October 22, 2001.

                   There can be no question but that the petition is time-barred under TCA § 40-
           30-102, unless the [P]etitioner should be afforded the benefit of a new constitutional
           rule to be applied retroactively. . . .

                   Of the several grounds for relief advocated only one can be said to involve a
           new constitutional rule to be applied retroactively: That the trial court erred in
           instructing the jury as to the mens rea of “Knowing”, for second degree murder. All
           other grounds have either been previously determined or are time-barred.

                   This court charged both the result of the conduct and the awareness of the
           nature of the conduct prongs of the then accepted “Knowing” instruction.

                  State v. Page, 81 S.W.[3d] 781 (Tenn. Crim. App. 2002) reversed for such a
           charge in a second degree murder case, and held the failure to instruct properly was
           not harmless error under the facts of that case.

                  The Page court held that the erroneous instruction in many or most cases
           would be harmless error.

                   This case is distinguished from Page in several respects. This was a first
           degree murder trial and the [S]tate’s theory was premeditation or felony murder. The
           [P]etitioner denied having anything to do with the murder. The mens rea of the
           [P]etitioner was not a disputed issue at the trial. There were two defendants involved


                                                       -2-
       and either could have been criminally responsible for the conduct of the other. Both
       defendants denied any part in the killing which was accomplished by a gunshot
       without eye witnesses.

               The jury charge in this case is harmless error at most.

               Therefore the petition is dismissed . . . .

It is from this order that the Petitioner now appeals.

                                            II. Analysis

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-103 (2003). The petitioner bears the burden of proving factual allegations in the petition
for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). A
post-conviction court’s factual findings are subject to a de novo review by this Court; however, we
must accord these factual findings a presumption of correctness, which is overcome only when a
preponderance of the evidence is contrary to the post-conviction court's factual findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

       In Burnett v. State, 92 S.W.3d 403 (Tenn. 2002), the Tennessee Supreme Court stated:

       [T]he Post-Conviction Procedure Act clearly affords the trial court the authority to
       dismiss a petition without holding an evidentiary hearing, notwithstanding the fact
       that the petition may have survived earlier dismissal. See Swanson v. State, 749
       S.W.2d 731, 736 (Tenn.1988) (holding that when a colorable claim for relief has
       been presented, a hearing may not be necessary after the petitioner has had the
       assistance of counsel to amend the petition, by which the court may then fully
       evaluate the merits of the claim); see also Gable v. State, 836 S.W.2d 558, 560
       (Tenn.1992) (holding that the trial court did not err in dismissing the petition without
       an evidentiary hearing where the petitioner was given both the aid of counsel and a
       reasonable opportunity to amend the petition and no amendment was filed).
       Therefore, once a petitioner is afforded the benefit of counsel, the trial court may
       evaluate the claim and determine whether the petitioner is entitled to relief without
       holding an evidentiary hearing.

Tennessee Code Annotated section 40-30-102(a) (2003) promulgates the statute of limitations for
a petition for post-conviction relief:

       [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


                                                  -3-
        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. Time 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 such an action and is a
        condition upon its exercise. Except as specifically provided in subsections (b) and
        (c), the right to file a petition for post-conviction relief or a motion to reopen under
        this chapter shall be extinguished upon the expiration of the limitations period.

        In his petition, the Petitioner asserts the following:

        Rule 11 Applications for Permission to Appeal are presumed to have been filed, and
        denied. However, [the Petitioner] has received no written notification. In fact, he
        alleges that he received his first copy of the Court of Criminal Appeals’ opinion on
        Sunday, September 5, 2004, during a scheduled visit with post-conviction counsel.

The Petitioner, at least impliedly, is averring that he had no knowledge the one-year statute of
limitations began on October 22, 2001, which is the “date of the final action of the highest state
appellate court to which an appeal is taken.” Tenn. Code Ann. § 40-30-102(a).

        In the case under submission, the record clearly indicates that the statute of limitations
expired well before the Petitioner filed his petition for post-conviction relief. The Petitioner was
convicted on September 22, 1999. This Court affirmed on March 20, 2001, and the Tennessee
Supreme Court denied permission to appeal on October 22, 2001. Thus, the statute of limitations
expired on October 22, 2002, one year after the final disposition in the Petitioner’s case. The
Petitioner did not file his petition for post-conviction relief until October 5, 2004, almost three years
after the date of the final action of the highest state appellate court to which an appeal was taken.

         The Post-Conviction Procedures Act permits the extension of the one-year statute of
limitations period for: (1) claims based on a final appellate court ruling establishing a constitutional
right not recognized at the time of trial, but given retroactive effect by the appellate court; (2) claims
based upon new scientific evidence establishing that the petitioner is actually innocent; and (3)
claims seeking relief from an enhanced sentence that was based upon convictions later determined
to be invalid. Tenn. Code Ann. § 40-30-102(b). Additionally, due process requires, in certain
circumstances, that the statute of limitations be tolled. See Williams v. State, 44 S.W.3d 464 (Tenn.
2001); Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).
The Tennessee Supreme Court has recognized that “in certain circumstances, due process prohibits
the strict application of the post-conviction statute of limitations to bar a petitioner’s claim when the
grounds for relief, whether legal or factual, arise . . . after the point at which the limitations period
would normally have begun to run.” Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995); see Burford,
845 S.W.2d at 208. Therefore, the Supreme Court developed a three-part test to determine whether


                                                   -4-
strict application of the post-conviction statute of limitations violates a petitioner’s due process
rights: To make such a determination, a court must:

        (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, 903 S.W.2d at 301. In Williams, the petitioner filed his post-conviction petition nine months
after the statute of limitations had expired, alleging that no notification was given by his appointed
counsel with regard to the status of his direct appeal, counsel’s intent to withdraw, and counsel’s
untimely application for permission to appeal to the Supreme Court. Williams, 44 S.W.3d at 466.
The Tennessee Supreme Court stated that “[i]f a defendant erroneously believes that counsel is
continuing to represent him or her, then the defendant is essentially precluded from pursuing certain
remedies independently.” Id. at 469. After reviewing the record, the Williams court noted that the
petitioner “might have been denied the opportunity to challenge his conviction in a timely manner
through no fault of his own but because of the possible misrepresentation of his counsel.” Id. at 468.
Our Supreme Court determined that if such misrepresentation existed, then due process required the
tolling of the statute of limitations. Id. at 471.

        Unlike the circumstances in Williams, the Petitioner, in his brief on appeal to this Court,
asserts that he is not claiming any “willful misrepresentation” on the part of his trial or appellate
counsel. The Petitioner merely argues that his counsel “did not provide him with the opinions of
either this [C]ourt, or the Tennessee Supreme Court,” and, thus, he was unaware of the final
disposition of his direct appeal. The Williams decision is not intended to require a hearing on due
process concerns every time a petitioner alleges that the untimeliness of his petition is due to his trial
or appellate counsel’s negligence. Indeed, “[s]uch a rule is clearly inconsistent with the plain
language of the post-conviction statute requiring a trial judge to summarily dismiss an untimely
petition without . . . a hearing.” Id. at 476 (Drowta, J., dissenting). To clarify the holding in
Williams, the majority specifically stated:

        [W]e are not holding that a petitioner may be excused from filing an untimely post-
        conviction petition as a result of counsel’s negligence. Instead, the focus here is only
        upon trial and appellate counsel’s alleged misrepresentation in failing to . . . notify
        the petitioner that no application for permission to appeal would be filed in [the
        Tennessee Supreme] Court.

Id. at 468 n.7. Thus, Williams is distinguishable from the case at bar because the Williams holding
was based on counsel’s failure to inform the petitioner that counsel had decided to abandon the direct
appeal. Whereas, here, the appellate process was complete, and counsel, allegedly, failed to inform
the Petitioner of the outcome of his Rule 11 application for permission to appeal. See Tenn. R. App.
P. 11. Consequently, if the facts as alleged in the Petitioner’s petition are taken as true, the Petitioner


                                                   -5-
is not entitled to relief, because the petition alleges negligence on the part of his counsel, not
misrepresentation.

        The Petitioner further contends that the trial court should not have summarily dismissed his
petition because the untimeliness of his petition is excused under Tenn. Code Ann. § 40-30-
102(b)(1). Specifically, the Petitioner asserts that, while his direct appeal was pending, this court
decided State v. Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002), which held that a conviction for
second degree murder involving a “knowing” mens rea, must be based on a result-of-conduct
definition of “knowing.” It is the Petitioner’s assertion that Page announced a new constitutional
rule to be applied retroactively.

        In its order summarily dismissing the petition, the post-conviction court specifically
addressed the Petitioner’s Page argument, and it determined that any error in its instruction to the
jury on the mens rea of “knowing” was harmless. In doing so, the post-conviction court determined
that the Petitioner’s case could be factually distinguished from Page, and it determined that the trial
court had given both the incorrect and correct jury instruction on the “knowing” mens rea.

         The failure to challenge the incorrect jury instructions of “knowing” on direct appeal
constitutes waiver of the right to raise this issue in post-conviction proceedings. See Corwyn E.
Winfield v. State, No. W2003-00889-CCA-R3-PC, 2003 WL 22922272 at *5, 9-10 (Tenn. Crim.
App., at Knoxville, Dec. 10, 2003), perm. app. denied, (Tenn. May 10, 2004). Further, that “[t]he
decision in Page was released while [the case at issue] was pending” has no bearing. State v.
Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (determining that the defendant had waived his right to
raise on direct appeal the issue regarding an incorrect “knowing” jury instruction by failing to raise
it in any of his three motions for new trial). “The timing of the decision in Page does not relieve [the
Petitioner] of the requirement of raising the issue [at an earlier stage in his case].” Id. Further, even
if Page created a new constitutional right requiring retroactive application, the petitioner failed to
file his petition within one year of the April, 16, 2002 Page decision. Finally, the Petitioner is not
entitled to plain error review of this issue because “the plain error doctrine has no application in post-
conviction relief proceedings.” Winfield, 2003 WL 22922272, at *5. We conclude, therefore, that
the Petitioner is not entitled to relief.

                                           III. Conclusion

        In accordance with the foregoing reasoning and authorities, we affirm the post-conviction
court’s dismissal of the Petitioner’s petition for post-conviction relief.



                                                         ____________________________________
                                                         ROBERT W. WEDEMEYER, JUDGE




                                                   -6-
