        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs June 26, 2013

             LARRY KEITH HUDDLE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Sullivan County
                          No. C59592    R. Jerry Beck, Judge


                   No. E2012-01903-CCA-R3-PC - Filed June 27, 2013


In June 1998, petitioner, Larry Keith Huddle, entered a “no contest” plea to one count of
attempted aggravated sexual battery. Pursuant to the plea agreement, he received an eight-
year sentence, with thirty-five percent release eligibility, to be served in community
corrections. His sentence expired in 2004, but he remained under community supervision
for life. In 2011, petitioner filed a petition for post-conviction relief, arguing that he pleaded
guilty without knowing that he would be subject to community supervision for life.
Following a hearing, the post-conviction court dismissed the petition, finding that the petition
was not timely. On appeal, petitioner contends that Ward v. State, 315 S.W.3d 461 (Tenn.
2010), announced a new rule of constitutional law that should be applied retroactively, which
would toll the statute of limitations and render his petition for post-conviction relief timely.
He further argues that he received ineffective assistance of counsel and that the State now
carries the burden of proving that the failure to advise him of the condition of community
supervision for life was harmless beyond a reasonable doubt. Following our review of the
record and the applicable law, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS
and R OBERT W. W EDEMEYER, JJ., joined.

Ilya I. Berenshteyn, Bristol, Tennessee, for the appellant, Larry Keith Huddle.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Barry
Staubus, District Attorney General; and Julie Canter, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                          OPINION

                               I. Facts and Procedural History

       Petitioner was indicted for the August 10, 1997 aggravated rape of his ex-wife. The
record reflects that they had divorced but lived together and maintained a relationship. On
June 5, 1998, he entered a “no contest” plea to attempted aggravated sexual battery. He was
sentenced to eight years, to be served in community corrections. The trial court revoked his
community corrections sentence upon proof that he had violated the terms of his sentence,
and this court affirmed the revocation. See State v. Larry Keith Huddle, No. E1999-00250-
CCA-R3-CD, 2000 WL 527886, at *1 (Tenn. Crim. App. May 2, 2000). Petitioner’s
sentence expired on August 24, 2004.

      On June 27, 2011, petitioner filed a document styled “Motion to Reopen Post[-]
Conviction Petition.” The post-conviction court appointed counsel, and petitioner filed an
amended petition for post-conviction relief. The post-conviction court held a hearing on the
motion, at which petitioner and his trial counsel testified.

        Trial counsel testified that he did not advise petitioner prior to his plea hearing that
petitioner would be subject to community supervision for life if he entered a “no contest”
plea to attempted aggravated sexual battery. In 2006, trial counsel filed a motion to set aside
petitioner’s community supervision for life.

       Petitioner testified that neither trial counsel nor the trial court advised him that a
conviction for attempted aggravated sexual battery entailed the “additional punishment” of
community supervision for life. Petitioner agreed that the community supervision had
“presented problems in [his] life” because he had been to court many times for violations of
the terms of community supervision. The first time that he learned of the lifelong community
supervision was in 2004, when a “Ms. Moody” informed him. He agreed that he signed a
community supervision for life certificate. Petitioner testified that he signed the certificate
because he believed he would go “straight to jail” if he did not. The post-conviction court
admitted the community supervision certificate into evidence.

       On cross-examination, petitioner testified that he understood that the Class A felony
with which he was originally charged carried a penalty of up to twenty-five years. He said
that he would rather have spent fifteen to twenty-five years in jail than be subject to
community supervision for life.

      Following the hearing, the post-conviction court entered an order denying post-
conviction relief. In the order, the post-conviction court made the following findings: (1)

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petitioner filed his petition for post-conviction relief within one year of the publication of
Ward v. State; (2) the guilty plea transcript indicated that the trial court never “advised the
petitioner of life[]time supervision as a violent sex offender; and (3) under Tennessee Code
Annotated section 39-13-524(a), any person convicted after July 1, 1996, of attempted
aggravated sexual battery would receive a sentence that included community supervision for
life. Following this court’s conclusions in Derrick Brandon Bush v. State, No. M2011-
02133-CCA-R3-PC, 2012 WL 2308280 (Tenn. Crim. App. June 15, 2012), argued (Tenn.
May 1, 2013), the post-conviction court found that petitioner’s claim for relief was barred
by the statute of limitations. The petitioner now appeals.

                                             II. Analysis

        On appeal, the petitioner argues that the new rule of constitutional law announced in
Ward v. State should be retroactively applied to his case and that doing so would render his
petition for post-conviction relief timely. Alternatively, he contends that due process should
toll the statute of limitations. He also argues that he received ineffective assistance of
counsel and that the State bears the burden of proving that the trial court’s failure to advise
him of the community supervision for life provision of his sentence was harmless beyond a
reasonable doubt. The State responds that Ward v. State should not be retroactively applied
to petitioner’s case. We agree with the State.

        A person convicted of a crime must petition for post-conviction relief within one year
of the final action of the highest state court that has considered the claim. Tenn. Code Ann.
§ 40-30-102(a).1 Time is of the essence when asserting a claim for post-conviction relief,
and a petitioner’s compliance with the statute of limitations is an element of the right to file
a petition. See id. § 40-30-102(b). A petition for post-conviction relief must include facts
that demonstrate timely filing or justification for tolling the statute of limitations period. See
State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). A petitioner’s failure to include sufficient
factual allegations of either compliance with the statute or circumstances that require the
court to toll the statute will result in dismissal. Id. However, pursuant to Tennessee Code
Annotated section 40-30-102(b)(1)-(3), this court may consider a petition for post-conviction
relief filed outside the one-year statute of limitations if the petitioner’s claim (1) is based
upon a final ruling of an appellate court establishing a new constitutional right; (2) is based
upon new scientific evidence establishing that petitioner is actually innocent; or (3) seeks
relief from a sentence that was enhanced because of a prior conviction that was found to be
invalid.




       1
           Tenn. Code Ann. § 40-30-102 replaced § 40-30-202.

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        In addition to the exceptions above, this court will also consider an untimely petition
if due process considerations require tolling of the post-conviction statute of limitations. See
Seals v. State, 23 S.W.3d 272, 278-79 (Tenn. 2000); Burford v. State, 845 S.W.2d 204, 210
(Tenn. 1992). “To determine if due process requires the tolling of the statute of limitations,
a court must weigh the petitioner’s interest in having an opportunity to present his claims in
a meaningful time and manner against the state’s interest in preventing the litigation of stale
and fraudulent claims.” Gerald Wayne Carter v. State, No. W2008-00652-CCA-R3-PC,
2008 WL 4922710, at *2 (Tenn. Crim. App. Nov. 13, 2008) (citing Burford, 845 S.W.2d at
208). When determining whether due process considerations mandate tolling of the statute
of limitations, a court should use 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.

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

       In this case, petitioner filed his petition for post-conviction relief more than twelve
years after the statute of limitations expired. The petitioner relies on Tennessee Code
Annotated section 40-30-102(b)(1) to assert that the Tennessee Supreme Court’s ruling in
Ward v. State, 315 S.W.3d 461 (Tenn. 2010), was a new constitutional rule meant to be
retroactively applied and would operate to toll the statute of limitations in his case. In Ward,
the supreme court held that a trial court has “an affirmative duty to ensure that [the]
defendant is informed and aware of the lifetime supervision requirement prior to accepting”
the defendant’s guilty plea. Id. at 476. Petitioner asserts that he should be allowed to
challenge his “no contest” plea under Ward. We disagree.

       This Court previously concluded that Ward does not apply retroactively to toll the
running of the one-year statute of limitations applicable to petitions for post-conviction relief.
See Derrick Brandon Bush, 2012 WL 2308280, at *9. The supreme court has granted Bush’s
application to appeal and has heard arguments in the case. Nevertheless, “we agree with its
reasoning in concluding that Ward should not be applied retroactively in post-conviction
proceedings.” Jose Juan Frierson v. State, No. M2011-01665-CCA-R3PC, 2012 WL
6163127, at *10 (Tenn. Crim. App. Dec. 11, 2012); see also, John E. Allen, Jr. v. State, No.
M2012-01732-CCA-R3-PC, 2013 WL 948366, at *2 (Tenn. Crim. App. March 11, 2013),
perm. app. filed (Tenn. April 12, 2013). Accordingly, petitioner is not entitled to have the
applicable statute of limitations tolled on the basis of the supreme court’s decision in Ward.

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        Petitioner also contends that due process requires the tolling of the statute of
limitations, citing Ward as a “later-arising” ground for relief under Sands. See Sands, 903
S.W.2d at 301. Petitioner pleaded guilty in June 1998, and his judgment became final in July
1998. The statute of limitations for post-conviction relief in this case would have expired in
July 1999. Petitioner learned that he would be under community supervision for life in
August 2004. Ward was filed on July 7, 2010.

        First, we note that the due process tolling argument is entirely separate from the
tolling created by a new, retroactive rule of constitutional law, which is a statutory grounds
for relief under Tennessee Code Annotated section 40-30-102(b)(1). In addition, if Ward
cannot be retroactively applied, then it logically follows that it cannot be a later-arising
grounds for relief. Furthermore, petitioner could have brought his claim any time prior to the
filing of Ward, as Ward himself and others did. See, e.g., Marcus Ward v. State, No.
W2007-01632-CCA-R3-PC, 2009 WL 113236, at *11 (Tenn. Crim. App. Jan. 14, 2009),
rev’d, 315 S.W.3d 461 (Tenn. 2010); Chad Alan Parker v. State, No. M2007-02799-CCA-
R3-PC, 2008 WL 2938046, at *8 (Tenn. Crim. App. July 31, 2008). Our supreme court has
noted that “[i]n every case in which we have held the statute of limitations is tolled, the
pervasive theme is that circumstances beyond a petitioner’s control prevented the petitioner
from filing a petition for post-conviction relief within the statute of limitations.” Smith v.
State, 357 S.W.3d 322, 358 (Tenn. 2011). Such circumstances include “petitioner’s mental
incompetence during the limitations period, . . . the withholding of exculpatory evidence by
the prosecution during the limitations period, . . . [and] [a]n attorney’s active
misrepresentations to his client about the status of his or her case.” Bush, 2012 WL 2308280,
at *9 (citations omitted). An attorney’s negligence would not be sufficient to toll the statute
of limitations. Smith, 357 S.W.3d at 358. Because we have concluded that the supreme
court’s ruling in Ward cannot be considered a later-arising ground for post-conviction relief
and because petitioner has not argued that any other circumstance beyond his control existed
to prevent him from filing his petition for post-conviction relief in a timely manner, we hold
that the trial court properly dismissed the petition for post-conviction relief as untimely.

        Furthermore, even if we were to conclude that petitioner’s discovery that he was
subject to community supervision for life constituted a later-arising ground for relief, which
he has not argued, the statute of limitations could not be tolled ad infinitum. “Although the
supreme court has declined to establish a ‘bright line rule’ for the applicable statute of
limitations that should apply to an alleged later-arising claim for post-conviction relief, it has
certainly indicated that the timeliness of the petitioner’s eventual filing is a relevant
circumstance.” Bush, 2012 WL 2308280, at *10 (citations omitted). This court has
previously held that a period two to four years is too long of a delay in filing a petition after
learning of a later-arising grounds for relief. Id. (citing Tyrone Chalmers v. State, No.
W2003-02759-CCA-R3-PC, 2005 WL 1249072, at *3 (Tenn. Crim. App. May 23, 2005));

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State v. Dana Louis Solomon, No. E2008-01713-CCA-R3-CD, 2009 WL 3247427, at *1
(Tenn. Crim. App. Oct. 9, 2009). Likewise, we conclude that petitioner, irrespective of
whether he would have been entitled to due process tolling of the statute of limitations
following his learning that he would be subject to community supervision for life, he is not
entitled to have the statute of limitations period tolled for seven years. As his petition for
post-conviction relief is not timely, we will not consider petitioner’s remaining arguments.

                                      CONCLUSION

       Based on the record, the parties’ briefs, and the applicable law, we conclude that the
post-conviction court properly dismissed the petitioner’s petition for post-conviction relief
as it was filed outside of the statute of limitations and petitioner has not shown that any
grounds exists for tolling the statute of limitations.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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