            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                         On Brief May 7, 2013

        SANDRA HENDRICKS FRANKLIN v. STATE OF TENNESSEE

                         Appeal from the Circuit Court for Tipton County
                              No. 5975 Joseph H. Walker, Judge



                    No.W2012-01445-CCA-R3-PC - Filed September 26, 2013


In 2009, Petitioner, Sandra Hendricks Franklin,1 was convicted by a Tipton County jury of
first degree murder. As a result, she received a sentence of life imprisonment. Petitioner’s
conviction and sentence were affirmed by this Court on appeal. See State v. Cassandra
Hendricks Franklin, No. W2009-01087-CCA-R3-CD, 2010 WL 2265439, at *1 (Tenn. Crim.
App., at Jackson, June 3, 2010), perm. app. denied, (Tenn. Nov. 10, 2010). In May of 2012,
Petitioner filed a pro se petition for post-conviction relief in which she claimed, among other
things, that she received ineffective assistance of counsel. The post-conviction court
dismissed the petition for relief as untimely. Petitioner appeals. After a review of the record
and authorities, we determine that Petitioner has failed to show that her claims fall within the
statutory exceptions to the one-year statute of limitations for post-conviction claims as listed
in Tennessee Code Annotated section 40-30-102(b) or that due process requires the tolling
of the statute of limitations. Consequently, the judgment of the post-conviction court
dismissing the petition is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN, J., joined,
and N ORMA M CG EE O GLE, J., dissenting.

Sandra Franklin, Pro Se, Nashville, Tennessee

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; Michael Dunavant, District Attorney General, and Walter Freeland, Assistant
District Attorney General, for the appellee, State of Tennessee.



        1
          Petitioner is also known by the name “Cassandra Hendricks Franklin,” which is the name under which her
direct appeal is filed.
                                           OPINION

                                      Factual Background

       Petitioner was indicted for the April 21, 2008 shooting of her boyfriend, Marcus
Jackson. After a jury trial, Petitioner was convicted of first degree murder and sentenced to
life imprisonment.

       Petitioner appealed her conviction, challenging both the sufficiency of the evidence
and the trial court’s refusal to grant defense counsel’s motion to withdraw from
representation. See State v. Cassandra Hendricks Franklin, W 2009-01087-CCA-R3-Cd
(Tenn. Crim. App. June 3, 2010) 2010 WL 2265439, at *1. This Court affirmed her
conviction, and the supreme court denied permission to appeal on November 10, 2010. Id.

        On May 24, 2012, Petitioner filed a pro se petition for post-conviction relief. In the
petition, she indicated that more than one year had passed since the date of final action on
her appeal and that the statute of limitations should not bar her claim because she “has not
received any notification concerning the [s]upreme [c]ourt’s ruling.” Petitioner claims she
was also waiting for correspondence from ounsel, but never received a response. Petitioner
is currently incarcerated and claims she “does not have complete and full access to checking
her case status on Westlaw.” However, in another section of the petition, Petitioner noted
that the supreme court denied permission to appeal on November 10, 2010.

       In the actual petition for relief, Petitioner alleged that her conviction was based on the
unconstitutional failure of the prosecution to disclose favorable evidence in the form of
discovery; her trial counsel did not question the jury about bias, so she was convicted by a
biased jury; she received ineffective assistance of counsel; witnesses at trial gave false
testimony; and the trial court improperly denied counsel’s motion to withdraw.

       On May 25, 2012, the post-conviction court entered an order summarily dismissing
the petition on the basis that it was untimely and failed to set forth an exception that would
waive the statute of limitations for filing a petition for post-conviction relief. Petitioner filed
a notice of appeal on July 10, 2012.

                                            Analysis

        On appeal, Petitioner does not address the timeliness of her petition and makes no
argument as to whether the statute of limitations should be tolled. Her issues on appeal are:
(1) whether the jury was tainted because one of the jurors knew the victim; (2) whether the
trial court erred in denying the motion to withdraw; and (3) whether there was sufficient

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proof at trial to support the conviction. The State contends that the post-conviction court
properly dismissed the petition as untimely.


          Initially, we address the fact that Petitioner’s notice of appeal was untimely. “In an
appeal as of right to the . . . Court of Criminal Appeals, the notice of appeal required by Rule
3 shall be filed with and received by the clerk of the trial court within 30 days after the date
of entry of the judgment appealed from . . . .” Tenn. R. App. P. 4(a). The post-conviction
court filed its dismissal of the petition on May 24, 2012. Petitioner filed her notice of appeal
on July 10, 2012, roughly one-and-a-half months after the post-conviction court’s final
action. This is well outside the thirty days called for in the statute. In criminal cases,
however, “the ‘notice of appeal’ document is not jurisdictional and the filing of such
document may be waived in the interest of justice.” See id. We have decided in this case
that it is in the interest of justice to waive the timely filing of the notice of appeal.

        However, under the Post-conviction Procedure Act, a petition for post-conviction
relief 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 year of the date on
which the judgment became final. T.C.A. § 40-30-102(a). Unless one of the enumerated
exceptions applies, a court does not have jurisdiction to consider an untimely petition. See
T.C.A. § 40-30-102(b). Tennessee Code Annotated section 40-30-102(b) states:

       (b) No court shall have jurisdiction to consider a petition filed after the
       expiration of the limitations period unless:

       (1) The claim in the petition is based upon a final ruling of an appellate court
       establishing a constitutional right that was not recognized as existing at the
       time of trial, if retrospective application of that right is required. The petition
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States supreme court establishing a constitutional right that
       was not recognized as existing at the time of trial;

       (2) The claim in the petition is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the petition seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence, and
       the previous conviction has subsequently been held to be invalid, in which case

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       the petition must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid.

        In the present case, the post-conviction court determined that the petition was filed
more than one-and-a-half years after the date of the final action by the highest court to which
an appeal was taken and thus well outside the statute of limitations. Petitioner’s application
for permission to appeal was denied by the supreme court on November 10, 2010. Her
petition for post-conviction relief was not filed until May 24, 2012. Apart from the bare
allegation that Petitioner did not know of the November 10, 2010 date of the supreme court’s
action, Petitioner fails to allege any circumstances that prevented her from filing the petition
in a timely fashion or any situation that would require tolling of the statute of limitations.

      Consequently, the post-conviction court correctly determined that the petition was
untimely.

                                          Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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