         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE

                           MARCH 1997 SESSION
                                                       FILED
                                                          May 28, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

JAMES ROBERT BLEVINS,          )      C.C.A. No. 03C01-9611-CR-00396
                               )      WASHINGTON COUNTY
            Appellant,         )
                               )      Hon. Arden L. Hill, Judge
VS.                            )
                               )      (Post-Conviction)
STATE OF TENNESSEE             )      No. 21467 BELOW




FOR THE APPELLANT:                    FOR THE APPELLEE:

JOHN E. HERBISON                      JOHN KNOX WALKUP
2016 Eighth Avenue South              Attorney General and Reporter
Nashville, TN 37204
                                      SANDY R. COPOUS
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      DAVID E. CROCKETT
                                      District Attorney General
                                      Rt. 19, Box 99
                                      Johnson City, TN 37601

                                      MICHAEL LaGUARDIA
                                      Assistant District Attorney General
                                      Post Office Box 38
                                      Jonesborough, TN 37659




OPINION FILED:__________________


AFFIRMED



CORNELIA A. CLARK,
Special Judge



                                   OPINION

                                     1
       Appellant appeals as of right from the trial court’s dismissal of his petition for

post-conviction relief based on the running of the statute of limitations. Appellant

contends that the ruling in State v. Rickman, 876 S.W.2d 824 (Tenn. 1994),

clarifying the rule of when other uncharged instances of sexual conduct can be

admitted into evidence, creates a new, retroactive constitutional rule that voids his

conviction and sentence. He also asserts a denial of equal protection. We disagree

and affirm the judgment of the trial court.



       In 1988 appellant was convicted by a jury of four counts of rape. He received

four sentences of seven years, to be served consecutively. On direct appeal

appellant specifically raised the issue of admission into evidence of sexual

encounters between the victim and the appellant outside the time frame alleged in

the indictments. The conviction and the sentence were affirmed by this court. State

v. James R. Blevins, No. 250 (Tenn. Crim. App., Knoxville, August 31, 1989). The

petition for rehearing was denied October 18, 1989. The Supreme Court denied

application for permission to appeal, concurring in results only, on January 2, 1990.

The Court denied the application to rehear on February 5, 1990.



       In his first petition for post-conviction relief appellant alleged ineffective

assistance of counsel. After an evidentiary hearing the trial court dismissed the

petition, finding that defendant had effective trial representation. This court upheld

the dismissal. James R. Blevins v. State, No. 03C01-9106-CR-00171 (Tenn. Crim.

App., Knoxville, October 27, 1994). The application for permission to appeal was

denied February 6, 1995.



       On March 3, 1993, petitioner filed a petition for habeas corpus. The trial

court found that it failed to allege grounds that would warrant the issuance of such

a writ and, if treated as a petition for post-conviction relief, was barred by the statute

of limitations. That dismissal was upheld by this court in James R. Blevins v. State,

No. 03-C-01-9308-CR-00271 (Tenn. Crim. App., Knoxville, January 5, 1994).



                                            2
       The petition for post-conviction relief now before the court was filed

January 5, 1995. It again raises the issue of admission of evidence of other sex

crimes not charged in the presentments. Under the law in effect at the time this

petition was filed, Tenn. Code Ann. §40-30-102(f)(1) required that an individual

apply for post-conviction relief within three years of the date of the final action of the

highest state appellate court to which an appeal was taken.1 Appellant’s petition in

this matter was filed well beyond that three-year limitations period.



       However, appellant contends that the facts in his case place him within the

exception created in Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) and/or

Tenn. Code Ann. §40-30-105,2 granting relief when a case involves a constitutional

right not existing at the time of trial if the constitution requires retrospective

application. The appellant relies on State v. Rickman, 876 S.W.2d 824 (1994),3

asserting that Rickman creates a new constitutional rule of law which was not in

existence at the time of any earlier petitions. After consideration, we find the

defendant’s claims do not properly fall within either of these exceptions to the

statute of limitations.

       First, the decision on which appellant in this case relies does not announce

a new constitutional rule, but only a new interpretation of Tenn. R. Evid. 404. State

v. Rickman, 876 S.W.2d at 829. It does not even exclude all evidence of other sex

crimes when an indictment is not time specific. It focuses only on evidentiary



       1
       The 1995 Post-Conviction Procedure Act, T.C.A. §40-30-201 et. seq. (Supp.
1996) applies to all post-conviction petitions filed after May 10, 1995. See 1995
Tenn. Pub. Act 207, Section 3. T.C.A. §40-30-202(a) provides that petitions 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.
       2
           Now T.C.A. §40-30-202(b)(1).
       3
        In Rickman the Supreme Court overruled prior precedent, holding that there
is no “sex crimes” exception to the general rule that other crimes evidence is not
admissible in criminal prosecutions, but there is a narrow special rule which admits
prior sex crimes into evidence if the indictment is not time specific and the other
crimes allegedly occurred during the time frame charged in the indictments.


                                            3
relevance of such other acts. Accordingly, this issue is without merit. See Burr v.

State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).



       Second, even if a new constitutional rule had been announced in Rickman,

retroactive application would not be required. Generally, a new constitutional rule

of law is one that “breaks new ground or imposes a new obligation on the states or

the federal government . . . [or] if the result was not dictated by a precedent existing

at the time the defendant’s conviction became final”. Teague v. Lane, 489 U.S.

288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334, 349 (1989); Meadows v. State,

849 S.W.2d 748, 751 (Tenn. 1993). A new rule of federal constitutional law is now

retroactively applied to all cases, state or federal, pending on direct review or not

yet final, regardless of whether the new rule constitutes a “clear break” with the

past. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

However, a new federal constitutional rule will not be given retroactive application

to cases on collateral review unless (1) the rule places certain kinds of primary,

private individual conduct beyond the powers of the state to proscribe, or (2) the rule

requires the observance of procedures implicit in the concept of ordered liberty.

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).



       In State v. Meadows the Tennessee Supreme Court rejected the Teague

analysis, concluding that a new state constitutional rule will be given retroactive

effect only if it materially enhances the integrity and reliability of the fact-finding

process at trial. State v. Meadows, 849 S.W.2d 748, 754 (Tenn. 1993). As further

refined by our courts:




               [A] factor which weighs heavily in favor of retroactive
       application of a new rule is the likelihood that it will enhance the
       integrity and reliability of the fact finding process of the trial. A factor
       which weighs heavily against retroactive application is the prospect
       that the integrity of the fact-finding process at trial will not be
       materially enhanced, coupled with the wholesale unsettling of final
       judgments of conviction.



                                            4
Adkins v. State, 911 S.W.2d 334, 344 (Tenn. Crim. App. 1994), quoting State v.

Robbins, 519 S.W.2d 799, 801 (Tenn. 1975).



       Thus, even if a new constitutional rule had been announced in Rickman, we

conclude that it should not be applied retroactively in this case because, applying

the Meadows standard, the rule announced therein does not materially enhance the

integrity and reliability of the fact finding process. Retroactive application of a new

constitutional rule in the post-conviction setting is necessary only when “the old rule

substantially impairs the truth-finding function at trial” and would tend to raise

“serious questions about the accuracy of [the] guilty verdicts . . . “. Meadows, 849

S.W.2d at 755. Such is not the case here. The defendant confessed to police that

he abused his stepdaughter twice a week for approximately five years. A tape

recording of an incriminating conversation between the defendant and the victim

was also introduced.     The evidence of guilt was overwhelming. 4         Therefore,

retroactive application was not required.



       Appellant finally contends that he has been denied equal protection of the

law because he has been treated differently from those persons whose cases were

in the direct appeal process at or after the time Rickman was decided. We find no

violation of appellant’s rights. He does not have an unqualified constitutional right

to retroactive application of subsequent case law once his case becomes final. Barr

v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995), citing Meadows v. State,

849 S.W.2d 748, 753-55 (Tenn. 1993).



       We find no error of law mandating reversal. The judgment of the trial court

dismissing the petition is affirmed.

       4
        Although the attorneys stipulated during the hearing on this matter that the
original trial transcript would be made a collective exhibit, it apparently was never
tendered to the court, and was not sent as part of the record on appeal. Therefore,
this court has considered the evidence presented at trial only insofar as it is
included in previous appellate opinions.


                                          5
                                __________________________________
                                CORNELIA A. CLARK
                                SPECIAL JUDGE

CONCUR:


__________________________________
JOHN H. PEAY
JUDGE


__________________________________
PAUL G. SUMMERS
JUDGE




                               6
   IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE




JAMES ROBERT BLEVINS,               )      C.C.A. No. 03C01-9611-CR-00396
                                    )      WASHINGTON COUNTY
              Appellant,            )
                                    )      Hon. Arden L. Hill, Judge
VS.                                 )
                                    )      (Post-Conviction)
STATE OF TENNESSEE                  )      No. 21467 BELOW




                                    JUDGMENT



        Came the appellant, James Robert Blevins, by counsel and also came the
attorney general on behalf of the state, and this case was heard on the record on
appeal from the Criminal Court of Washington County; and upon consideration
thereof, this court is of the opinion that there is no reversible error in the judgment
of the trial court.

       Our opinion is hereby incorporated in this judgment as if set out verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of
Washington County for execution of the judgment of that court and for collection of
costs accrued below.

       It appears that the appellant is indigent. Costs of this appeal will be paid by
the State of Tennessee.


                                           PER CURIAM

                                           John H. Peay, Judge
                                           Paul G. Summers, Judge
                                           Cornelia A. Clark, Special Judge
