         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned On Briefs May 10, 2006

                   RICKY BUTLER v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Maury County
                           No. 11825 Jim T. Hamilton, Judge



                     No. M2004-01543-CCA-R3-PC - Filed June 27, 2006


The petitioner pled guilty to two counts of aggravated sexual battery. He later filed a petition for
post-conviction relief. The post-conviction court held a hearing on May 8, 2003. The court then
entered an order on May 9, 2003 denying the petition. The petitioner filed a pro se notice of appeal
over a year and a month later on June 17, 2004. We now dismiss the petitioner’s appeal because the
notice of appeal was filed outside of the thirty days required under Rule 4 of the Tennessee Rules
of Appellate Procedure.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN E.
GLENN , J., joined.

Dwight E. Scott, Nashville, Tennessee for the appellant, Ricky Butler.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Mike Bottoms, District Attorney General; and Larry Nickell, Assistant District Attorney General,
for the appellee, State of Tennessee.




                                             OPINION

               The petitioner’s written statement given to the police upon his arrest stated the events
as follows:


       On Sunday around 12:00 in the afternoon I was around to [sic] little girls around 11
       and 13. We was watching a movie, when I felt like doing it. I then ask [sic] one of
       them to come and rub me after I saw see [sic] was interested after she talked to her
         sister and she wanted to to [sic]. I let both of them touch me, then I tried to insert
         into them when I coundn’t, I pumped their Backside. I put my penis in the crack of
         their but [sic]. I rub their vagina and but [sic] cheeks. We heard somebody comin[g]
         so thats [sic] why we stop.


        The petitioner was charged with rape of a child and aggravated sexual battery. He agreed
with the District Attorney’s office in Maury County to enter an Alford plea1 to two counts of
aggravated sexual battery. As part of his plea agreement, the petitioner would serve eight years at
100 percent for each count to run concurrently and also run concurrently to a sentence he was serving
for another offense. The petitioner’s plea was entered on December 17, 2001, over one year from
the order denying his post-conviction petition.

        The petitioner filed a petition for post-conviction relief on September 18, 2002, arguing that
his plea was not entered voluntarily and that he was not afforded the effective assistance of counsel.
The post-conviction court held a hearing on May 8, 2003, and entered an order the next day, May
9, 2003, denying the petition. The petitioner filed a pro se notice of appeal on June 17, 2004.

                                                     ANALYSIS

        The petitioner argues that his plea was involuntary, that he was afforded the ineffective
assistance of counsel and that the post-conviction court’s order did not meet the requirements of
Tennessee Code Annotated section 40-30-111. The State argues that the plea was voluntary and the
petitioner received effective assistance of counsel.

         The State does not, however, address whether the petitioner’s notice of appeal was timely.
Under Rule 4 of the Tennessee Rules of Appellate Procedure, a notice of appeal for an appeal as of
right under Rule 3 should be filed with the clerk of the trial court within thirty days of the entry of
the final order. In the petitioner’s case, the post-conviction court filed the final order denying his
petition on May 9, 2003. The petitioner did not file his notice of appeal until over a year and a
month later on June 17, 2004.2 Clearly, the petitioner’s notice of appeal was outside the thirty day
filing requirement.

       Under Rule 4, we can waive the filing requirement in the interest of justice. After reviewing
the post-conviction hearing transcript, the plea hearing colloquy and rest of the record, we have
determined that waiving the filing requirement would not serve the interest of justice in this case.


         1
         This type of plea is named after North Carolina v. Alford, 400 U.S. 25 (1970), in which the United States
Supreme Court discussed the right of an accused to plead guilty in his best interest while professing his actual innocence.


         2
          W e wish to emphasize that the tardiness in the filing of the notice of appeal was not the fault of appellate
counsel in this case.

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We realize that the petitioner in this case filed his own notice of appeal and that it was recommended
that he serve his sentence in a special needs facility. These facts would counsel the court’s discretion
in deciding to waive the time requirements for filing the notice of appeal if the petitioner were likely
to be successful on the merits. However, the petitioner’s plea colloquy and statements at the post-
conviction hearing make it clear that his plea was voluntary and he would have pled guilty regardless
of his allegations concerning his counsel’s deficiencies.

                                          CONCLUSION

        For this reason, we dismiss the petitioner’s appeal from the trial court’s denial of his
petition for post-conviction relief.


                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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