        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 18, 2012

                 TOM PERRY BELL v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                    Nos. 283823, 283824    Don W. Poole, Judge




                 No. E2012-01141-CCA-R3-PC - Filed January 10, 2013


The petitioner, Tom Perry Bell, appeals the summary dismissal of his petitions for post-
conviction relief, wherein he challenged his 1983 conviction of petit larceny and his 1978
conviction of receiving stolen property. Because the petitions are time-barred and because
the petitioner failed to establish grounds for tolling the statute of limitations for filing a
petition for post-conviction relief, we affirm the judgments of the post-conviction court.

            Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and C AMILLE R. M CM ULLEN, J., joined.

Tom Perry Bell, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Assistant
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                On May 1, 2012, the petitioner filed separate petitions for post-conviction relief
in the Hamilton County Criminal Court challenging his June 7, 1983, guilty-pleaded
conviction of petit larceny and his January 20, 1978, guilty-pleaded conviction of receiving
stolen property valued at less than $100. The petitioner alleged that the guilty pleas in both
cases were not knowingly, intelligently, and voluntarily entered and that both were the
product of the ineffective assistance of his trial counsel. Additionally, the petitioner alleged
that the trial court failed to follow the requirements of Rule 11 of the Tennessee Rules of
Criminal Procedure when accepting his guilty pleas. The post-conviction court summarily
dismissed both petitions as time-barred, specifically finding that the petitioner had failed to
establish statutory or constitutional grounds for tolling the statute of limitations for filing a
petition for post-conviction relief.

              In this timely appeal, the petitioner contends that the post-conviction court
erred by dismissing the petitions as untimely, arguing that because the 1978 and 1983
convictions were used to enhance the sentence imposed for his 2010, guilty-pleaded
conviction of burglary, he is presently “in custody” by virtue of those convictions. He claims
that although the sentence imposed for each conviction has been served, use of the
convictions for enhancement purposes avails him the right to collaterally attack the decades-
old convictions via a petition for post-conviction relief despite the one-year statute of
limitations. The State asserts that the post-conviction court properly dismissed the petition
as time-barred.

                 “[A] person in custody . . . must petition for post-conviction relief . . . within
one (1) year of the date of the final action of the highest state appellate court to which an
appeal is taken.” T.C.A. § 40-30-102(a) (2006). “If it plainly appears from the face of the
petition, . . . that the petition was not filed . . . within the time set forth in the statute of
limitations, . . . the judge shall enter an order dismissing the petition. The order shall state
the reason for the dismissal and the facts requiring dismissal.” Id. § 40-30-106(b). 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].”). Our supreme court
has held that “the one-year statutory period is an element of the right to file a post-conviction
petition and that it is not an affirmative defense that must be asserted by the State.” State v.
Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is incumbent upon a petitioner to include
allegations of fact in the petition establishing either timely filing or tolling of the statutory
period,” and the “[f]ailure to include sufficient factual allegations of either compliance with
the statute or [circumstances] requiring tolling will result in dismissal.” Id.

              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;

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              (2) The claim in the petition is based upon new scientific
              evidence establishing that such 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 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)(1)-(3). Additionally, due process principles may, in very limited
circumstances, require tolling of the post-conviction statute of limitations. See generally
Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).
To determine whether due process requires tolling of the statute of limitations, we must
determine “when the limitations period would normally have begun to run”; “whether the
grounds for relief actually arose after the limitations period would normally have
commenced”; and, finally, “if the grounds are ‘later arising,’ determine if, under the facts of
the case, a strict application of the limitations period would effectively deny the petitioner
a reasonable opportunity to present the claim.” Sands v. State, 903 S.W.2d 297, 301 (Tenn.
1995).

               In this case, the petitioner challenged his 1978 and 1983 convictions via post-
conviction petitions filed in 2011, decades after the judgments in both cases became final.
None of the statutory grounds for tolling the statute of limitations apply. Moreover, due
process principles do not require tolling the statute of limitations in either case because the
petitioner’s claims for relief, involuntary pleas and deprivation of the effective assistance of
counsel, are not “later-arising.” Finally, although a petitioner generally may use a post-
conviction petition to challenge a conviction that is used to enhance a later conviction, even
if the sentence for the earlier conviction has been served and has expired, see, e.g., Hickman
v. State, 153 S.W.3d 16, 23 n.4 (Tenn. 2004) (“The language ‘in custody’ has long been
broadly construed to permit persons to collaterally challenge, by means of a post-conviction
petition, a judgment of conviction that later may be used to enhance a sentence on another
conviction. Such challenges have been allowed even if the sentence on the challenged
conviction has been served or has expired at the time the post-conviction petition is filed.”),


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he must do so within the statute of limitations or demonstrate that tolling of the limitations
period is required. The petitioner in this case has done neither.


              Accordingly, the judgments of the post-conviction court are affirmed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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