                                                                                                     02/21/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs January 24, 2019

                 STATE OF TENNESSEE v. CARL DAVID ROE

                    Appeal from the Circuit Court for Cocke County
                         No. 9204    Carter S. Moore, Judge


                                No. E2018-00609-CCA-R3-CD


The defendant, Carl David Roe, appeals the denial of his motion to withdraw his 2003
guilty plea to attempted aggravated sexual battery, arguing that the entry of an amended
judgment in 2007 that added a requirement that the defendant be subject to community
supervision for life invalidated the plea. Discerning no error, we affirm the denial of
relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Carl David Roe, Clarksville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Jimmy B. Dunn, District Attorney General; and Tonya D. Thornton,
Assistant District Attorney, for the appellee, State of Tennessee.

                                             OPINION

              In July 2003, the Cocke County Grand Jury charged the defendant with one
count of aggravated sexual battery, and, in February 2004, the defendant pleaded guilty to
the lesser included offense of attempted aggravated sexual battery in exchange for an
agreed sentence of six years to be served in the Department of Correction (“TDOC”). In
July 2007, the trial court entered an amended judgment that included a mark next to the
provision that “[p]ursuant to 39-13-524 the defendant is sentenced to community
supervision for life” and noted in the Special Conditions portion of the judgment:
“Amended to include community supervision for life.”1

1
      Code section 39-13-524, as applicable in this case, provided, in pertinent part, as follows:
              Some 10 years later, in August 2017, the defendant moved the trial court,
pursuant to Tennessee Rule of Criminal Procedure 32(f), to withdraw his guilty plea on
grounds that he had not been advised at the time of his plea that he would be subject to
community supervision for life and that the amended judgment adding this requirement
had been entered without his knowledge or consent. The defendant asserted that he first
learned “that he would be required to serve the additional term of community supervision
for life” when he was released from TDOC following the service of his sentence. Citing
Ward v. State, 315 S.W.3d 461 (Tenn. 2010), the defendant claimed that the trial court’s
failure to advise him of the community supervision requirement rendered his guilty plea
unknowing and involuntary. The defendant said that he had not previously raised the
issue because he “was not made aware of this ruling until just recently.”

              In answer to the motion, the State argued that the 2007 amendment of the
judgment was necessary because the failure to include the community supervision
requirement rendered the original judgment illegal and that a petition for writ of habeas
corpus rather than a motion to withdraw the guilty plea was “the proper procedure for
challenging an illegal sentence.” The trial court summarily dismissed the defendant’s
motion based upon the “cause shown by the State of Tennessee in the Answer” to the
defendant’s motion.

              In this appeal, the defendant argues that the trial court erred by summarily
dismissing his motion, and the State contends that summary dismissal was appropriate.

                                            Rule 32(f)

            As indicated, the defendant moved to withdraw his plea under the terms of
Tennessee Rule of Criminal Procedure 32(f). That rule provides:

               (f) Withdrawal of Guilty Plea.




               In addition to the punishment authorized by the specific statute
               prohibiting the conduct, any person who, on or after July 1, 1996,
               commits a violation of § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-
               522, or attempts to commit a violation of any of these sections, shall
               receive a sentence of community supervision for life.

T.C.A. § 39-13-524 (a) (2003).
                                                -2-
                (1) Before Sentence Imposed. Before sentence is imposed,
                the court may grant a motion to withdraw a guilty plea for
                any fair and just reason.
                (2) After Sentence But Before Judgment Final. After
                sentence is imposed but before the judgment becomes final,
                the court may set aside the judgment of conviction and permit
                the defendant to withdraw the plea to correct manifest
                injustice.

Tenn. R. Crim. P. 32(f). In this case, the defendant’s judgment became final 30 days
after its entry in 2004. Nothing in the plain language of Rule 32(f) allows the defendant
to withdraw his plea after his judgment becomes final. See State v. Green, 106 S.W.3d
646, 650 (Tenn. 2003) (observing that defendants have “thirty days within which to
determine whether circumstances exist that may prompt the filing of a motion to
withdraw the previously entered plea pursuant to Rule 32(f)”).

               We are cognizant that in State v. Nagele, our supreme court allowed Nagele
to withdraw his guilty plea years after his November 13, 2002 guilty plea based upon his
failure to fully understand “the mandatory nature of lifetime community supervision.”
See State v. Nagele, 353 S.W.3d 112, 121 (Tenn. 2011). In Nagele, the State moved the
trial court to amend the judgment to include community supervision for life “two days
before the expiration of” Nagele’s sentence in February 2009, and the trial court entered a
corrected judgment one month later. Id. at 115. Nagele immediately “moved to set aside
the conviction, claiming that because he was not informed of the lifetime community
supervision requirement, his plea was not knowingly and voluntarily made.” Id. Without
directly addressing the timeliness issue, our supreme court essentially treated Nagele’s
motion to withdraw as timely from the entry of the corrected judgment. In this case,
however, the defendant filed his motion to withdraw more than 10 years after the filing of
the amended judgment. In consequence, the motion is untimely, and summary dismissal
was appropriate on this basis alone.2

                                 Petition for Post-Conviction Relief

             “It is well settled that a trial court is not bound by the title of the pleading,
but has the discretion to treat the pleading according to the relief sought.” Norton v.
Everhart, 895 S.W.2d 317, 319 (Tenn. 1995) (citations omitted). Thus, despite that the

2
         The defendant has not asked this court to address the issue of a due process tolling of the time
limitation for the filing of a Rule 32(f) motion, and this court has previously concluded “that it is not
appropriate to extend a potential tolling remedy to the strict time restraint set forth in Tennessee Rule of
Criminal Procedure 32(f)(2).” State v. Joshua Jermaine Whitehead, No. E2012-00312-CCA-R3-CD, slip
op. at 4 (Tenn. Crim. App., Knoxville, Oct. 3, 2012).
                                                    -3-
defendant moved to withdraw his plea via a Rule 32(f) motion, the trial court could have
treated the pleading according to the nature of the relief sought. In this case, the
defendant alleged that, because he was not informed of the lifetime community
supervision requirement, his guilty plea was unknowing and involuntary. Typically,
“[t]he Post-Conviction Procedure Act . . . provides the procedure for attacking a
constitutionally defective conviction based on a guilty plea that was not knowingly and
voluntarily entered.” Johnson v. State, 834 S.W.2d 922, 925 (Tenn. 1992); see also State
v. Burris, 40 S.W.3d 520, 524 (Tenn. Crim. App. 2000) (“Once judgment has been
entered, the only avenue available to a defendant seeking to withdraw a plea is a
collateral proceeding under the Post-Conviction Procedure Act.”).

              Even if we viewed the defendant’s pleading as a petition for post-
conviction relief, however, he would not be entitled to the relief he desires.

               Code section 40-30-102 provides that a petition for post-conviction relief
must be filed “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,” otherwise, “consideration of the petition
shall be barred.” T.C.A. § 40-30-102(a). The statute of limitations for filing a post-
conviction petition is jurisdictional. See id. § 40-30-102(b) (“No court shall have
jurisdiction to consider a petition filed after the expiration of the limitations period unless
[certain statutory prerequisites are met].”).

             A petition for post-conviction relief filed outside the one-year statute of
limitations may nevertheless be considered if its allegations fall within three rather
narrow exceptions:

              (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. Such 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

                                              -4-
              (3) The claim asserted in the petition seeks relief from a
              sentence that was enhanced because of a previous conviction
              and such 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 the petition must be filed within one (1) year of
              the finality of the ruling holding the previous conviction to be
              invalid.

T.C.A. § 40-30-102(b). Code section 40-30-122 further provides:

              For purposes of this part, a new rule of constitutional criminal
              law is announced if the result is not dictated by precedent
              existing at the time the petitioner’s conviction became final
              and application of the rule was susceptible to debate among
              reasonable minds. A new rule of constitutional criminal law
              shall not be applied retroactively in a post-conviction
              proceeding unless the new rule places primary, private
              individual conduct beyond the power of the criminal law-
              making authority to proscribe or requires the observance of
              fairness safeguards that are implicit in the concept of ordered
              liberty.

Id. § 40-30-122.

               In his motion, the defendant citing Ward v. State, claimed that he was
entitled to withdraw his plea because he was not alerted to the lifetime community
supervision requirement before he entered his plea. In Ward, our supreme court held that
“trial courts have an affirmative duty to ensure that a defendant is informed and aware of
the lifetime supervision requirement prior to accepting a guilty plea” and that the failure
to so inform the defendant rendered the plea unknowing and involuntary. Ward v. State,
315 S.W.3d 461, 476 (Tenn. 2010). In Bush v. State, the court characterized the Ward
ruling as “an important new constitutional rule,” but it nevertheless concluded that
because the ruling in Ward was “neither a watershed rule of criminal procedure nor a rule
that substantially enhances the accuracy of convictions,” the ruling could not be classified
as “implicit in the concept of ordered liberty” as required by Code section 40-30-122,
and, accordingly, did not qualify as “a new constitutional right for which ‘retroactive
application . . . is required’ under [Code section] 40-30-102(b)(1).” Bush v. State, 428
S.W.3d 1, 20-21 (Tenn. 2014). Consequently, the court ruled, the Ward decision “did not
toll the Post-Conviction Procedure Act’s one-year filing deadline.” Id.

                                            -5-
               That being said, due process principles may, in very limited circumstances,
require tolling of the post-conviction statute of limitations. See id. at 22 (citing Burford
v. State, 845 S.W.2d 204, 208 (Tenn. 1992), for the proposition that “due process requires
that, once the legislature provides prisoners with a method for obtaining post-conviction
relief, prisoners must be afforded an opportunity to seek this relief ‘at a meaningful time
and in a meaningful manner’”); see also generally Seals v. State, 23 S.W.3d 272 (Tenn.
2000). “[A] post-conviction petitioner is entitled to due process tolling of the one-year
statute of limitations upon a showing (1) that he or she has been pursuing his or her rights
diligently, and (2) that some extraordinary circumstance stood in his or her way and
prevented timely filing.” Bush, 428 S.W.3d at 22 (citing Whitehead v. State, 402 S.W.3d
615, 631 (Tenn. 2013)).

               In this case, the defendant discovered the amended judgment with the
lifetime supervision requirement added when he was released from prison following the
service of the six-year sentence imposed in this case, which would have been sometime
in 2009 or 2010. The supreme court’s decision in Ward was filed in 2010. The
defendant did not move to withdraw his plea until August 2017. Although the defendant
claimed that he had only recently been made aware of the Ward decision, nothing in the
record suggests that the defendant was otherwise diligently pursuing his rights. In
consequence, the defendant has failed to show that he is entitled to due process tolling of
the statute of limitations for filing a petition for post-conviction relief, and, as a result, his
claim of an unknowing guilty plea as a ground for post-conviction relief is time barred.

                             Petition for Writ of Habeas Corpus

               In its answer to the defendant’s motion to withdraw his plea, the State
suggested that a petition for writ of habeas corpus rather than a motion to withdraw the
guilty plea was “the proper procedure for challenging an illegal sentence.” To be sure,
the trial court could have treated the defendant’s untimely Rule 32(f) motion as a petition
for writ of habeas corpus. Even if the trial court had done so, however, the defendant
would not have prevailed.

              “The determination of whether habeas corpus relief should be granted is a
question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the habeas corpus court’s
decision is, therefore, “de novo with no presumption of correctness afforded to the
[habeas corpus] court.” Id. (citing Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d
406, 408 (Tenn. 2006)). The writ of habeas corpus is constitutionally guaranteed, see
U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for
more than a century, see Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee
Code Annotated section 29-21-101 provides that “[a]ny person imprisoned or restrained
                                               -6-
of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and
restraint.” T.C.A. § 29-21-101. Despite the broad wording of the statute, a writ of habeas
corpus may be granted only when the petitioner has established a lack of jurisdiction for
the order of confinement or that he is otherwise entitled to immediate release because of
the expiration of his sentence. See Ussery, 432 S.W.2d at 658; State v. Galloway, 45
Tenn. (5 Cold.) 326 (1868). The purpose of the state habeas corpus petition is to contest
a void, not merely a voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d
186, 189 (Tenn. 1968). A void conviction is one which strikes at the jurisdictional
integrity of the trial court. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); see State
ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App. 1994).

               Although the State is correct that a claim of sentence illegality may be
litigated in a habeas corpus proceeding, the record establishes that the defendant’s
sentence as currently expressed is legal and that the amended judgment filed in this case
is not void. The original judgment filed in the defendant’s case did not include the
provision for lifetime community supervision, which omission contravened Code section
39-13-524’s requirement that “[t]he judgment of conviction for all persons to whom the
provisions of subsection (a) apply shall include that the person is sentenced to community
supervision for life.” T.C.A. § 39-13-524(b). Consequently, the sentence as originally
expressed was illegal, and “[t]he trial court had jurisdiction to correct the illegal
sentence[] by amending the judgment[] of conviction.” State v. Bronson, 172 S.W.3d
600, 602 (Tenn. Crim. App. 2005). The amended judgment filed by the trial court in this
case, which now includes the community supervision requirement, is not void.
Additionally, the defendant’s claim that the addition of the lifetime supervision
requirement rendered his guilty plea unknowing and involuntary is not a cognizable
ground for habeas corpus relief. See Archer, 851 S.W.2d at 163. The defendant is not,
therefore, entitled to habeas corpus relief.

                                        Conclusion

              The trial court did not err by summarily dismissing the defendant’s motion
to withdraw his guilty plea because the filing was time barred. Moreover, the defendant
cannot establish entitlement to relief via either a petition for post-conviction relief or a
petition for writ of habeas corpus. Accordingly, we affirm the judgment of the trial court.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE



                                            -7-
