         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 9, 2003

                ANTHONY PHILLIPS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. P-26844    Bernie Weinman, Judge



                  No. W2002-03004-CCA-R3-PC - Filed September 16, 2003


The petitioner appeals the summary dismissal of his post-conviction relief petition based upon the
expiration of the statute of limitations. He argues: (1) due process required the post-conviction court
to hear his petition because of his attorney’s inaction even though it was filed outside the statute of
limitations; and, regardless, (2) his convictions should be set aside because they are based on void
indictments. We affirm the judgment of the post-conviction court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JERRY L.
SMITH, J., joined.

Anthony Phillips, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Emily B. Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        On October 6, 1997, the petitioner pled guilty to two counts of felony murder, one count of
aggravated robbery, and one count of especially aggravated kidnapping. Pursuant to a plea agreement,
he received an effective sentence of two consecutive terms of life without parole. On October 25,
2002, the petitioner filed a post-conviction relief petition alleging (1) he received ineffective
assistance of counsel in entering his guilty pleas, and (2) his convictions were void because the
indictments charging him with felony murder were silent as to essential elements of the offense. The
petitioner acknowledged the petition was filed outside the statute of limitations, but charged his trial
counsel led him to believe he would pursue an appeal of a certified question of law challenging the
constitutionality of the felony murder statute. See Tenn R. Crim. P. 37(b)(2). The post-conviction
court dismissed the petition without an evidentiary hearing, finding it was not timely filed. The
petitioner argues the trial court erred in dismissing his petition because application of the one-year
statute of limitations deprives him of due process. He further maintains the post-conviction court
erred in dismissing his petition without addressing whether the indictments charging him with felony
murder were valid.

           I. STATUTE OF LIMITATIONS FOR POST-CONVICTION RELIEF

        A petition for post-conviction relief must be filed within one year 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, or consideration of the petition is barred. Tenn. Code
Ann. § 40-30-202(a). Time is of the essence in claiming post-conviction relief, and compliance with
the one-year statute is an element of the right to file a petition. Id. The statute itself provides three
exceptions to the one-year statute of limitations: (1) when a new constitutional right has been
recognized; (2) when the petitioner’s innocence has been established by new scientific evidence; or
(3) when a previous conviction that enhanced the petitioner’s sentence has been held invalid. Id.
§ 40-30-202(b). The post-conviction court must also consider an otherwise untimely petition if the
application of the statute of limitations would be a denial of due process. See Seals v. State, 23
S.W.3d 272, 278-79 (Tenn. 2000). The principles of due process are flexible, requiring a balancing
of the petitioner’s liberty interest against the state’s finality interests. Sample v. State, 82 S.W.3d
267, 274 (Tenn. 2002).

        In determining whether due process should toll the statute of limitations, courts should utilize
a three-step process:

        (1) determine when the limitations period would normally have begun to run; (2)
        determine whether the grounds for relief actually arose after the limitations period
        would normally have commenced; and (3) 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.
        In making this final determination, courts should carefully weigh the petitioner’s
        liberty interest in “collaterally attacking constitutional violations occurring during the
        conviction process,” [Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)], against
        the State’s interest in preventing the litigation of “stale and fraudulent claims.” Id.
        at 208.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995) (footnote omitted).

        In Williams v. State, 44 S.W.3d 464, 471 (Tenn. 2001), our state supreme court held due
process concerns may require that the statute of limitations be tolled if a petitioner establishes his
attorney’s misrepresentations deprived him of a reasonable opportunity to seek post-conviction
relief. The petitioner in Williams averred he believed his attorney was going to pursue a second-tier
appeal after the Court of Criminal Appeals affirmed his conviction because his attorney failed to
notify him of his intent to withdraw as counsel of record for the petitioner. Id. at 466. There was
evidence that approximately nine months after Williams’ conviction was affirmed, Williams’ attorney


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learned Williams had not received notice that he did not intend to file an application for permission
to appeal on Williams’ behalf. Id. at 465-66. The attorney then unsuccessfully sought additional
time for Williams to file an application for permission to appeal to the state supreme court. Id. at
466. Williams then filed his petition for post-conviction relief approximately nine months after the
statute of limitations had expired. See id. Holding that due process considerations may have tolled
the statute of limitations, the Tennessee Supreme Court remanded the matter to the post-conviction
court for a determination of whether the statute was tolled and whether the petitioner filed his
petition within a reasonable time afforded by the tolling. Id. at 471.

        While the petitioner correctly asserts due process may sometimes require that the statute of
limitations be tolled, the trial court did not err in dismissing the instant petition under the facts
alleged by the petitioner. Although the petitioner claimed his trial counsel led him to believe he
would be pursuing an appeal on a certified question of law, the undisputed record shows the
petitioner delayed for five years before seeking relief.1 This hardly compares with the nine-month
delay in Williams.

         According to the facts alleged by the petitioner, his trial attorney promised to appeal a certified
question of law concerning the constitutionality of the felony murder statute.2 The petitioner asserted
in his petition that he “stood by idly awaiting to hear from counsel” until “a prison legal advocate
. . . informed [him] that if counsel had not contacted him by now, it was more than likely that
counsel was not working on the case any longer.” Even though the petitioner is a lay person, and
even if the facts alleged by him are accurate, it is unreasonable for a person to passively wait five
years to hear from an attorney before making any effort to discover the status of the case or to seek
relief from a perceived injustice.

         For these reasons, the facts alleged in the petition under review are distinguishable from those
in Williams. The petitioner’s reasonable opportunity to seek post-conviction relief expired long
before the filing of his petition. We cannot conclude the petitioner’s liberty interests outweigh the
state’s interest in finality where the petitioner “stood by idly” for a five-year period before seeking
relief. See Burford, 845 S.W.2d at 208. Therefore, the post-conviction court did not err in
dismissing the petition as untimely.




         1
           None of the documents com mem orating the plea agreement nor the petitioner’s jud gments, which were
included as part of the appellate record, make any reference to a certified question of law. Further, a document entitled
“Petition for Waiver of Trial by Jury and Request for Acceptance of Plea of Guilty” signed by the petitioner on the date
of his pleas specifically states, “I fully understand my right to have my case reviewed by an Appellate Court, but hereby
waive my right to a M otion for a N ew T rial and App eal.”

         2
         Although we recognize the merit of a challenge to the constitutionality of the felony murder statute is not
determinative of this appeal, such a challenge would be totally without merit. See State v. Godsey, 60 S.W.3d 759, 773
(Tenn. 2001 ) (upholding constitutionality of the felony murder statute).

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                  II. VALIDITY OF FELONY MURDER INDICTMENTS

        The petitioner contends he is entitled to relief because the indictments charging him with
felony murder were invalid. A guilty plea does not waive an objection to a void indictment. State
v. Carter, 988 S.W.2d 145, 148 (Tenn. 1999). If an indictment is void for failing to allege an
offense, the courts are deprived of jurisdiction. Id. Therefore, regardless of whether his petition was
timely filed, the petitioner would be entitled to relief if the record establishes his convictions were
based on void indictments.

        The petitioner submits the indictments did not allege he acted deliberately, knowingly, or
recklessly in committing the felony murders. The indictments at issue alleged the petitioner in
October 1996 “did unlawfully and with the intent to commit a Robbery kill [the victims] during the
perpetration of a Robbery, in violation of Tennessee Code Annotated 39-13-202. . . .” The felony
murder statute under which the petitioner was charged does not require proof of a culpable mental
state except for the intent to commit the underlying felony. Tenn. Code Ann. § 39-13-202(b) (Supp.
1996). Further, an indictment alleging an unlawful killing in perpetration of robbery with a reference
to the appropriate statute is valid. State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000). This argument
lacks merit.

       Accordingly, we conclude the post-conviction court did not err in dismissing the petitioner’s
post-conviction relief petition. We affirm the judgment of the post-conviction court.



                                                       ____________________________________
                                                       JOE G. RILEY, JUDGE




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