        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE

               STATE OF TENNESSEE v. DEXTER MCMILLAN

                   Appeal from the Criminal Court for Knox County
                           No. 84667   Steve Sword, Judge




                No. E2011-02258-CCA-R3-CD - Filed February 9, 2012


The appellant, Dexter McMillan, filed in the Knox County Criminal Court a motion to reopen
his case, which the trial court treated as a petition for post-conviction relief. The trial court
dismissed the petition, and the appellant appeals. The State filed a motion requesting that
this court affirm the trial court’s denial of relief pursuant to Rule 20, Rules of the Court of
Criminal Appeals. Upon review of the record and the parties’ briefs, we conclude that the
trial court properly dismissed the petition. 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 Criminal Court is Affirmed
          Pursuant to Rule 20, Rules of the Court of Criminal Appeals.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., AND D. K ELLY T HOMAS, J R., JJ., joined.

Dexter McMillan, pro se.

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

                                          OPINION

        The appellate record is sparse. However, we glean the following facts from prior
opinions filed by this court in this case: On October 2, 2006, the appellant pled guilty to two
counts of assault, one count of driving on a suspended license, and one count of resisting
arrest, all misdemeanors. State v. Dexter McMillan, No. E2008-02626-CCA-R3-CD, 2010
Tenn. Crim. App. LEXIS 1, at *2 (Knoxville, Jan. 4, 2010), perm. to appeal denied, (Tenn.
2010). He received an effective sentence of eleven months, twenty-nine days to be served
on probation and to be served concurrently to a sentence received in another case for a total
effective sentence of two years. Id. at *3. The appellant filed a motion to withdraw his
guilty pleas, arguing that his pleas were not knowing and voluntary. State v. Dexter Lewis
McMillan, No. E2008-02626-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 295, at *1
(Knoxville, April 17, 2008), perm. to appeal denied, (Tenn. 2008). The trial court denied the
motion, and this court affirmed the trial court. Id. at *2. Subsequently, probation violation
warrants were issued. Dexter McMillan, No. E2008-02626-CCA-R3-CD, 2010 Tenn. Crim.
App. LEXIS 1, at **3-5. After a revocation hearing, the trial court revoked the appellant’s
probation. Id. at ** 4-5. On direct appeal, a panel of this court held that the trial court erred
by revoking the appellant’s probation because his sentences had expired when the probation
violation warrants were issued. Id. at ** 8.

         On April 19, 2011, the petitioner filed a pro se document titled “MOTION TO
REOPEN FOR UNJUST REASONS ON THE BEHALF OF JUDGE: RICHARD R.
BAUMGARTNER.” In the motion, the appellant alleged that he was made to “cop out to
charges” and that Judge Baumgartner “would not take back the plea.” At a hearing, the
appellant requested that his case be “reopened for unjustly cause.”1 The trial court treated
the appellant’s motion as a petition for post-conviction relief. The trial court determined that
it did not have jurisdiction over the petition because “this is a concluded case” and stated that
“you’re probably even outside the [one-]year statute of limitations on filing post-conviction
relief.”

         On appeal, the appellant argues that he pled guilty because his trial attorney said he
was not getting out of jail unless he “cop out to all of the charges” and that Judge
Baumgartner’s actions resulted in his being illegally and unconstitutionally restrained. The
State argues that this court should dismiss the appeal because an appeal as of right does not
lie for a denial of a motion to reopen for unjust reasons. In the alternative, the State argues
that if this court treats the appellant’s motion as a petition for post-conviction relief, then we
should affirm the trial court’s dismissal of the petition because the appellant filed it outside
the one-year statute of limitations.

        The appellant is essentially arguing in his motion and in his appellate brief that he did
not plead guilty knowingly and voluntarily and that he received the ineffective assistance of
counsel, claims only cognizable under the Post-Conviction Procedure Act. Therefore, the
trial court properly treated his motion as a petition for post-conviction relief. Tennessee
Code Annotated section 40-30-102(a) provides that a person “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 or, if no appeal is taken, within one (1) year
of the date on which the judgment became final.” In this case, the appellant filed a motion

       1
           Judge Baumgartner did not preside over the hearing.

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to withdraw his guilty pleas after the imposition of sentences but before the judgments
became final. Dexter Lewis McMillan, No. E2008-02626-CCA-R3-CD, 2008 Tenn. Crim.
App. LEXIS 295, at **1-2. The trial court denied the motion, and this court affirmed the
trial court. Our supreme court denied the appellant’s application for permission to appeal on
September 15, 2008. Therefore, the appellant had one year from that date to file his petition
for post-conviction relief, and the trial court properly dismissed the petition for
post-conviction relief as untimely.

       Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed
in accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                           ___________________________________
                                           NORMA McGEE OGLE, JUDGE




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