         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE


           RACHEL DIDENA SUMMERS v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Rutherford County
                               No. F-56577 Don R. Ash, Judge



                     No. M2008-00728-CCA-R3-PC - Filed August 29, 2008


This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by
memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Petitioner
has appealed the trial court’s order dismissing the petition for post-conviction relief. Upon review
of the record in this case, we are persuaded that the trial court was correct in dismissing the petition
for post-conviction relief and that this case meets the criteria for affirmance pursuant to Rule 20 of
the Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted and the
judgment of the trial court is affirmed.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES, and ROBERT W.
WEDEMEYER, JJ., joined.

Rachel Didena Summers, Pro Se, Nashville,Tennessee.

Robert E. Cooper Jr., Attorney General & Reporter; Lacy Elaine Wilber, Assistant Attorney General,
for the appellee, State of Tennessee.



                                   MEMORANDUM OPINION

        On July 11, 2005, Petitioner pled guilty to first degree murder for the death of her seven-year-
old son and was sentenced to life without parole. On October 16, 2007, Petitioner filed a pro se
petition for post-conviction relief. In that petition, Petitioner argued that the one-year statute of
limitations should be tolled because her co-defendant husband’s sentencing occurred almost two
years after her sentencing and that she was mentally unstable so as to render her unable to file a
petition for post-conviction relief. On October 24, 2007, the post-conviction court summarily
dismissed the petition because it was time-barred. The trial court held that Petitioner did not show
that the statute of limitations should be tolled due to her mental incompetence pursuant to State v.
Nix, 40 S.W.3d 459 (Tenn. 2001), and that her husband’s later conviction and sentencing had no
bearing on the tolling of the statute.

                                                Analysis

        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. § 40-30-202(a). Unless one of the enumerated exceptions applies, a court does not have
jurisdiction to consider an untimely petition. See T.C.A. § 40-30-202(b). In the present case, the
post-conviction petition was filed outside the statute of limitations, and the trial court properly held
that Petitioner failed to show that one of the exceptions listed in the statute was applicable.

        Since July 1, 1995, the statute of limitations for filing a petition for post-conviction relief has
been one year from the date on which the judgment of conviction became final in cases where no
appeal is taken. T.C.A. § 40-30-202(a). There are three statutory exceptions to the statute of
limitations in post-conviction matters. These exceptions are set forth in Tennessee Code Annotated
section 40-30-202(b)(1), (2) & (3): (1) claims based on an appellate court ruling concerning a
constitutional right not recognized at the time of the trial and given retroactive effect by the appellate
courts; (2) claims based upon newly-discovered evidence which establishes that the petitioner is
actually innocent of the crime; and (3) claims which arise out of a situation where the petitioner
received an enhanced sentence for a crime based on previous convictions which were later held to
be invalid. Petitioner did not argue that her situation fell within one of the above enumerated
exceptions. She instead argued that she was so mentally unstable that she was unable to launch an
appeal and that the later sentencing of her co-defendant affected her due process rights.

         We have found no authority to toll the statute of limitations due to a co-defendant’s
sentencing at a later date nor has Petitioner cited to any. Therefore, we address the issue of
Petitioner’s potential mental instability to toll the statute. In Nix, our supreme court stated that due
process considerations may require that tolling of the statute of limitations if a petitioner
demonstrates “that he is unable either to manage his personal affairs or to understand his legal rights
and liabilities.” 40 S.W.3d at 463. The court went on to state that a petitioner must include
sufficient factual allegations to support his claim of incompetency. Id. at 464. To make a prima
facie showing so that the statute of limitations may be tolled, “a post-conviction petition must
include specific factual allegations that demonstrate the petitioner’s inability to manage his personal
affairs or understand his legal rights and liabilities. Unsupported, conclusory, or general allegations
of mental illness will not be sufficient to require tolling and prevent summary dismissal under Tenn.
Code Ann. § 40-30-206(b) & (f).” Id.

        In the case sub judice, Petitioner attached the discharge summary dated February 2, 2004,
upon her discharge from the hospital following her suicide attempt in connection with the murder
of her seven-year-old son. In the mental status examination portion of this document it states that
the patient is not confused and is oriented to the four spheres, but she is depressed. This section also


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states that her thinking is organized. Petitioner also attached a second discharge summary dated
October 5, 2004. The mental examination portion of this document states that Petitioner was alert
and oriented, her thought process was linear and her thought content “denies auditory/visual
hallucinations.” This section stated that Petitioner was depressed.

        We agree with the post-conviction court that this documentation is insufficient to meet the
requirements set out in Nix. These documents at most would constitute unsupported, conclusory,
or general allegations of mental illness, specifically depression, which Nix specifically stated was
insufficient. Id. Moreover, the documents tend to establish that Petitioner, despite depression, was
competent to understand and manage her affairs. Finally, we point out that the dates of the writing
of these documents is before Petitioner pled guilty to the offense for which she is now incarcerated.
The relevancy of these documents to any diagnosis concerning her mental abilities during the
applicable statute of limitations period is questionable at best when the documents are not from the
year between her conviction and when the statute of limitations had run.

                                             Conclusion

        The trial court was correct in dismissing the petition for post-conviction relief. The petition
was filed outside the statute of limitations, and the petitioner has not shown sufficient reason to toll
the statute. Rule 20 of the Rules of the Court of Criminal Appeals provides:


                 The Court, with the concurrence of all judges participating in the case, when
        an opinion would have no precedential value, may affirm the judgment or action of
        the trial court by memorandum opinion rather than by formal opinion, when:

                        (1)(a) The judgment is rendered or the action taken in a
                proceeding before the trial judge without a jury, and such judgment
                or action is not a determination of guilt, and the evidence does not
                preponderate against the findings of the trial judge . . . .


        We determine that this case meets the criteria of the above-quoted rule and, therefore, we
grant the State’s motion filed under Rule 20, and we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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