                                                                                          06/29/2018
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 24, 2018

            JUSTIN DANIEL LOINES v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Hamilton County
              Nos. 274883, 298996          Don R. Ash, Senior Judge
                      ___________________________________

                            No. E2017-02088-CCA-R3-PC
                       ___________________________________


The pro se Petitioner, Justin Daniel Loines, appeals the dismissal of his petition for post-
conviction relief as time-barred. Following our review, we affirm the judgment of the
post-conviction court summarily dismissing the petition on the basis that it was filed
almost six years after the judgment became final and that the Petitioner failed to show
any grounds to warrant that the statute of limitations be tolled.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Justin Daniel Loines, Pikeville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Leslie Anne Longshore,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

        In February 2010, the Hamilton County Grand Jury indicted the Petitioner for two
counts of first degree felony murder, one count of aggravated child abuse, and one count
of aggravated child neglect based on his involvement with his wife in the August 6, 2008
death of his two-year-old stepson. In July 2010, the Petitioner pled guilty to the lesser
offenses of voluntary manslaughter and facilitation of aggravated child neglect. Pursuant
to the terms of his negotiated plea agreement, the two other counts of the indictment were
dismissed, and he was sentenced as a Range I offender to consecutive terms of fifteen
years for the voluntary manslaughter conviction and ten years for the facilitation of
aggravated child neglect conviction, for a total effective sentence of twenty-five years at
30% release eligibility.

        On July 7, 2016, the Petitioner filed a pro se petition for post-conviction relief in
which he argued, among other things, that he was denied the effective assistance of
counsel and that his facilitation of aggravated child neglect sentence was illegally
enhanced without proof of prior felonies, in violation of Blakely v. Washington, 542 U.S.
296 (2004).1 The Petitioner additionally argued that the Tennessee Constitution and the
Sixth Amendment to the United States Constitution should be read as providing a right to
post-conviction counsel to a petitioner who alleges ineffective assistance of counsel in a
first petition for post-conviction relief, and that the one-year statute of limitations for
filing a post-conviction petition should be declared unconstitutional on the grounds that it
deprives an indigent post-conviction petitioner the reasonable opportunity to assert a
claim in a meaningful time and manner.

        On October 6, 2017, the post-conviction court entered an order summarily
dismissing the petition on the basis that it was barred by the statute of limitations and the
Petitioner failed to show he was entitled to statutory or due process tolling of the
limitations period. The court additionally concluded that even if it treated the petition as
a Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence, the
Petitioner would not be entitled to any relief. Thereafter, the Petitioner filed a timely
notice of appeal to this court.

                                              ANALYSIS

        In his original and reply briefs, the Petitioner’s argument, as best as we can
understand it, is that the statute of limitations for filing a post-conviction petition should
be tolled in his case because of the nature of his allegations, which were that his
“indictments were void” because his dual convictions for voluntary manslaughter and
facilitation of aggravated child neglect violated the prohibition against double jeopardy,
that his sentence for facilitation of aggravated child neglect was illegal under Blakely,
and that his trial counsel was ineffective for not recognizing and challenging the above
violations of the Petitioner’s constitutional rights. The Petitioner cites Sutton v.
Carpenter, 745 F.3d 787 (6th Cir. 2014), for the proposition that applying the post-
conviction statute of limitations in his case “infringes on [his] right to seek a meaningful

        1
            In its order of dismissal, the post-conviction court referenced another claim the Petitioner
apparently raised in his petition: that the Petitioner could not be convicted of both voluntary manslaughter
and facilitation of aggravated child neglect because both offenses contain the same elements. That
portion of the post-conviction petition is not legible on the copy included in the record. Regardless, we
agree with the post-conviction court that the claim is without merit.
                                                   -2-
opportunity” to raise his claims. He asserts that Sutton “clearly says a defendant has a
right to raise an ineffective counsel claim.”

        We respectfully disagree with the Petitioner’s contention that Sutton establishes a
constitutional right to the effective assistance of post-conviction counsel and/or the right
to raise a claim of ineffective assistance of trial counsel, regardless of the statute of
limitations. We have rejected similar assertions in previous cases. See e.g., Michael V.
Morris v. State, No. M2015-01113-CCA-R3-ECN, 2015 WL 9487829, at *2 (Tenn.
Crim. App. Dec. 29, 2015); David Edward Niles v. State, No. M2014-00147-CCA-R3-
PC, 2015 WL 3453946 (Tenn. Crim. App. June 1, 2015), perm. app. denied (Tenn. Sept.
17, 2015).

       Under the Post-Conviction Procedure Act, a claim for post-conviction relief must
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, or consideration of the petition shall be barred.”
Tenn. Code Ann. § 40-30-102(a) (2012).

       The post-conviction statute contains a specific anti-tolling provision:
       The statute of limitations shall not be tolled for any reason, including any
       tolling or saving provision otherwise available at law or equity. 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 the action and is a condition upon its exercise.
       Except as specifically provided in subsections (b) and (c), the right to file a
       petition for post-conviction relief or a motion to reopen under this chapter
       shall be extinguished upon the expiration of the limitations period.

Id.

        Subsection (b) of the statute sets forth the three narrow exceptions under which an
untimely petition may be considered, none of which is applicable in this case. Nor are
there any due process considerations in this case that would require tolling of the statute
of limitations. See Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013)
(identifying three circumstances under which due process requires tolling of the post-
conviction statute of limitations: (1) when a claim for relief arises after the statute of
limitations has expired; (2) when a petitioner is prevented by his or her mental
incompetence from complying with the statute’s deadline; and (3) when attorney
misconduct necessitates the tolling of the statute).



                                            -3-
       We, therefore, conclude that the post-conviction court properly dismissed the
petition as time-barred. We further conclude that the court also properly found that the
Petitioner is not entitled to relief even if his petition is liberally treated as a motion to
correct an illegal sentence. Rule 36.1 of the Tennessee Rules of Criminal Procedure
provides in pertinent part that “[e]ither the defendant or the state may[, at any time,] seek
to correct an illegal sentence by filing a motion to correct an illegal sentence in the trial
court in which the judgment of conviction was entered.” Tenn. R. Crim. P. 36.1(a).
Rule 36.1 defines an illegal sentence as “one that is not authorized by the applicable
statutes or that directly contravenes an applicable statute.” Id. If the motion states a
colorable claim that the sentence is illegal, and the defendant is indigent and not already
represented by counsel, the trial court is required to appoint counsel to represent the
defendant. Tenn. R. Crim. P. 36.1(b). A colorable claim pursuant to Rule 36.1 is “a
claim that, if taken as true and viewed in a light most favorable to the moving party,
would entitle the moving party to relief under Rule 36.1.” State v. Wooden, 478 S.W.3d
585, 593 (Tenn. 2015).

       As the post-conviction court noted in its order, the Petitioner’s offenses contain
different elements, and his convictions thus do not violate the prohibition against double
jeopardy. Moreover, “the purpose of [Rule 36.1] is to provide an avenue for correcting
allegedly illegal sentences. The Rule does not provide an avenue for seeking the reversal
of convictions.” State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD, 2014
WL 1285622, at * 2 (Tenn. Crim. App. Mar. 31, 2014) (emphasis in original), perm. app.
denied (Tenn. Nov. 19, 2014).

       The Petitioner’s assertion that his ten-year sentence was illegally enhanced
without proof of prior felonies, in violation of Blakely, also fails to state a colorable
claim for Rule 36.1 relief. The Petitioner’s ten-year sentence was the result of a
negotiated plea agreement and fell within the eight-to twelve-year range for a Range I
offender convicted of a Class B felony. Accordingly, the Petitioner has failed to state a
colorable claim for relief under Rule 36.1, and the post-conviction court properly
dismissed the claim without a hearing.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court summarily dismissing the petition for post-conviction relief as
time-barred. We further conclude that the court also properly found that the Petitioner
has no claim under Rule 36.1.

                                              ____________________________________
                                              ALAN E. GLENN, JUDGE
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