       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs April 8, 2008

                     TONY SHEFFA v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County

                              No. P-26146    W. Fred Axley, Judge



                         No. W2007-01443-CCA-R3-PC - July 2, 2008



The petitioner, Tony Sheffa, appeals the Shelby County Criminal Court’s denial of post-conviction
relief. On appeal, he alleges that his trial counsel was ineffective and, that because of the
ineffectiveness of counsel, his pleas were not knowingly and voluntarily entered. Upon our review
of the record and the parties’ briefs, we conclude that the post-conviction court did not have
jurisdiction to hear the petition. Therefore, we dismiss the appeal.


                  Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
J.C. MCLIN , JJ., joined.

R. Andrew Hutchison (on appeal) and Paul Guibao (at trial), Memphis, Tennessee, for the appellant,
Tony Sheffa.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

       On January 29, 2001, the petitioner entered guilty pleas to two counts of especially
aggravated robbery, two counts of especially aggravated kidnapping, one count of evading arrest,
one count of resisting official detention, and one count of being a convicted felon in possession of
a handgun. The petitioner received a total effective sentence of thirty years in the Tennessee
Department of Correction.
       Subsequently, on February 8, 2002, the petitioner filed a petition for post-conviction relief.
The State filed a motion to dismiss the petition, alleging that the petition was not timely filed. The
post-conviction court granted the State’s motion and dismissed the petition.

         Thereafter, on April 28, 2003, the petitioner filed a motion asking the post-conviction court
to reopen his post-conviction petition, arguing that “[t]he petition was timely filed by Petitioner.
However, due to an institutional lockdown, the Petition did not reach the Shelby County Clerks until
February 8, 2002.” The record reflects that this motion was granted, although the record does not
reflect the date the motion was granted.1

        On October 14, 2004, the petitioner filed an amended petition for post-conviction relief,
alleging further instances of ineffective assistance of counsel. A post-conviction hearing was held
on February 5, 2007, regarding the amended petition. At the post-conviction hearing, the petitioner’s
post-conviction counsel stated, without dispute, that the State had consented to the motion to reopen
the post-conviction action. The post-conviction court proceeded to hear the petitioner’s claims for
post-conviction relief.

       At the conclusion of the hearing, the post-conviction court found that the petitioner had failed
to prove the claims alleged in his amended post-conviction petition. On appeal, the petitioner
challenges this ruling.

                                                   II. Analysis

        Before we address the merits of the petitioner’s claims, we must first address a procedural
challenge raised by the State. For the first time on appeal, the State contends that the post-conviction
court did not have jurisdiction to hear the petitioner’s amended post-conviction petition. In its brief,
the State “concedes that the post-conviction court erred in dismissing the original petition,”
explaining that the original petition was timely filed. However, the State contends that the petitioner
did not appeal this erroneous dismissal. Instead, the petitioner filed a motion to reopen more than
a year after the dismissal. The State argues that the petition does not fall into any of the categories
authorizing the reopening of post-conviction petitions; thus, the post-conviction court was without
jurisdiction to hear the petition. We agree with the State.

       Initially, we note that “[r]elief under [the Post-Conviction Procedure Act] shall be granted
when the conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code
Ann. § 40-30-103 (2003). However, to obtain relief,

                  a person in custody under a sentence of a court of this state must


         1
            The post-conviction court’s order denying the petitioner’s amended petition for post-conviction relief
indicates that the petitioner’s motion to reopen “was granted after further review.” The order granting the motion is
not in the appellate record.

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                petition for post-conviction relief under this part 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, or consideration of
                such petition shall be barred.

Tenn. Code Ann. § 40-30-102(a) (2003); see also Williams v. State, 44 S.W.3d 464, 468 (Tenn.
2001). The statute emphasizes that time is of the essence of the right to file a petition for
post-conviction relief or motion to reopen established by this chapter, and the one-year limitations
period is an element of the right to file such an action and is a condition upon its exercise. Tenn.
Code Ann. § 40-30-102(a).

        In the instant case, the petitioner pled guilty on January 29, 2001. Generally, “a judgment
of conviction entered upon a guilty plea becomes final thirty days after acceptance of the plea
agreement and imposition of sentence.” State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003). On
appeal, the State acknowledges that the petitioner’s guilty plea did not become final until February
28, 2001; therefore, his original petition, which was filed on February 8, 2002, was timely. We
agree. Thus, the post-conviction court’s dismissal of the original petition was erroneous.

        Upon the erroneous dismissal of the original petition, the petitioner should have filed, within
thirty days, a notice of appeal. Specifically, we note that Rule 3(b) of the Tennessee Rules of
Appellate Procedure provides that a criminal defendant may appeal to this court following “a final
judgment in a . . . post-conviction proceeding.” Rule 4(a) of the Tennessee Rules of Appellate
Procedure instructs that “the notice of appeal required by Rule 3 shall be filed with and received by
the clerk of the trial court within 30 days after the date of entry of the judgment appealed from;
however, in all criminal cases the ‘notice of appeal’ document is not jurisdictional and the filing of
such document may be waived in the interest of justice.”

        The petitioner did not file a notice of appeal contesting the erroneous dismissal of his original
petition. Instead, more than one year after the dismissal, the petitioner filed a motion to reopen his
original petition. The record indicates that, at some point, this motion was granted. In certain
limited circumstances, a petitioner may file a motion to reopen a prior petition for post-conviction
relief. Tennessee Code Annotated section 40-30-117(a) (2003) provides that a petitioner may file
a motion to reopen the first post-conviction petition if:

                (1) The claim in the motion 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 . . . ; or

                (2) The claim in the motion 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


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                (3) The claim asserted in the motion 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 . . . ; and

                (4) It appears that the facts underlying the claim, if true, would
                establish by clear and convincing evidence that the petitioner is
                entitled to have the conviction set aside or the sentence reduced.

As the State contends, the petitioner’s motion to reopen did not fall into any of these limited
circumstances. Therefore, the post-conviction court erroneously granted the petitioner’s motion to
reopen.

        As we noted earlier, the petitioner did not file a notice of appeal contesting the dismissal of
his original petition. Therefore, thirty days after the order dismissing the petition was filed, the post-
conviction court’s judgment became final. Thus, no “amended” petition could be filed on a
completed action. Further, the “amended” petition cannot be treated as a new post-conviction
petition. Generally, a petitioner may file only one petition for post-conviction relief. See Tenn.
Code Ann. § 40-30-102(c). Accordingly, the post-conviction court had no jurisdiction to address
the complaints in the petitioner’s amended petition.

                                           III. Conclusion

        Based upon the foregoing, we conclude we must dismiss the petitioner’s appeal.




                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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