IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 5, 2019

JEFFREY MCCOY v. STATE OF TENNESSEE

 

Appeal from the Circuit Court for Gibson County FILE D
No. 19202 Clayburn Peeples, Judge

 
      

MAR 11 2020
Clerk of the Appellate Courts

Rec'd By —

 

No. W2019-00574-CCA-R3-PC

 

The Petitioner, Jeffrey McCoy, pleaded guilty to theft of property valued at $10,000 or
more and one count of burglary of a building other than a habitation. The trial court
imposed a twelve-year effective sentence to be served consecutively to a previous
sentence in South Carolina. The Petitioner appeals the post-conviction court’s summary
dismissal of his pro se petition for post-conviction relief. The Petitioner maintains that
the post-conviction court erred in finding that the petition was barred by the statute of
limitations. The State concedes error. After a review of the record and applicable law,
we reverse the judgment of the post-conviction court and remand for appointment of
counsel and further proceedings consistent with the Post-Conviction Procedure Act.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
Case Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jeffrey McCoy, Columbia, South Carolina, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Garry G. Brown, District Attorney General; and Jason C. Scott,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

On July 13, 2016, the Petitioner pleaded guilty to theft of property valued at
$10,000 or more and one count of burglary of a building other than a habitation.
Following a sentencing hearing on December 2, 2016, the trial court sentenced the
Petitioner to an effective sentence of twelve years. State v. Jeffrey Glynn McCoy, No.
W2016-01619-CCA-R3-CD, 2017 WL 6507232, at *1 (Tenn. Crim. App. Dec. 17,
2017), perm. app. denied (Tenn. Apr. 23, 2018). The Petitioner appealed his sentence,
and this court denied relief. Jd. Subsequently, the Petitioner filed an application for
permission to appeal to the Tennessee Supreme Court, which was denied on April 23,
2018.

On September 5, 2018, the Petitioner filed a pro se petition for post-conviction
relief, in which he alleged that trial counsel was ineffective. In the petition, the Petitioner
noted both his appeal to this court and the denial of permission to appeal to the Tennessee
Supreme Court. The State filed a response, asserting that the petition was barred by the
statute of limitations because over one year had elapsed from the time the Petitioner was
sentenced until he filed his petition for post-conviction relief. The State’s response failed
to mention the Petitioner’s direct appeal to this court or his application for permission to
appeal to the Tennessee Supreme Court. On March 13, 2019, the post-conviction court
entered an order dismissing the petition, finding that it was not timely filed. The post-
conviction court noted that the Petitioner was sentenced on December 2, 2016, and did
not file his petition for post-conviction relief until September 4, 2018.

On March 15, 2019, after the post-conviction court had entered its order, the
Petitioner filed a reply to the State’s response, again noting that the Tennessee Supreme
Court’s final action denying him permission to appeal was entered on April 23, 2018, and
that his petition for post-conviction relief was filed on September 5, 2018, clearly within
the one-year statute of limitations. The post-conviction court entered a second order
again dismissing the petition on the same grounds. The Petitioner now appeals the post-
conviction court’s summary dismissal of his petition.

ANALYSIS

The Petitioner asserts that his petition for post-conviction relief was timely, and
the State concedes that the post-conviction court erred. This court reviews a post-
conviction court’s summary dismissal of a post-conviction petition de novo. See Burnett
v. State, 92 S.W.3d 403, 406 (Tenn. 2002). The Post-Conviction Procedure Act requires
that a petition for post-conviction relief be filed “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.” T.C.A. §
40-30-102(a). The Tennessee Supreme Court denied the Petitioner permission to appeal
this court’s decision on April 23, 2018. The Petitioner filed his petition for post-
conviction relief on September 5, 2018, within the one-year statute of limitations.

a9 =
As noted by the State in its brief, the post-conviction court’s order also failed to
satisfy the requirements articulated in Tennessee Code Annotated section 40-30-106(b).
Tennessee Code Annotated section 40-30-106(b) requires a post-conviction court’s order
dismissing a petition as untimely to “state or the record shall reflect the date of
conviction, whether an appeal was taken, the name of each court to which an appeal was
taken, the date of final action by each appellate court, and the date upon which the
petition was filed.” The post-conviction court’s order failed to meet these requirements
because the order did not discuss whether an appeal was taken, the name of the courts in
which the Petitioner sought relief, and the dates of the final actions taken by those courts.

Accordingly, we reverse the judgment of the post-conviction court and remand for
appointment of counsel and further proceedings consistent with the Post-Conviction
Procedure Act.

 

JOHN EVERETT WILLIAMS, PRESIDING JUDGE
