                                                                                           06/22/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 15, 2020

        PEDRO IGNACIO HERNANDEZ v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2011-A-525    Monte Watkins, Judge
                     ___________________________________

                           No. M2019-01305-CCA-R3-PC
                       ___________________________________


The Petitioner, Pedro Ignacio Hernandez, appeals the post-conviction court’s summary
dismissal of his post-conviction petition without a hearing to determine whether due
process dictates the tolling of the statute of limitations. The State concedes that the post-
conviction court erred in dismissing the petition without a hearing to address the
Petitioner’s tolling argument. We agree. We reverse the judgment of the post-conviction
court and remand for appointment of counsel and a hearing to determine whether the
Petitioner is entitled to due process tolling of the statute of limitations.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT W. WEDEMEYER, JJ., joined.

Pedro Ignacio Hernandez, pro se, Clifton, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; and Glenn Funk, District Attorney General, for the appellee, State of
Tennessee.


                                        OPINION

                   FACTS AND PROCEDURAL BACKGROUND

      The Petitioner was indicted on ten counts of rape of a child and five counts of
aggravated sexual battery. State v. Pedro Ignacio Hernandez, No. M2013-01321-CCA-
R3-CD, 2014 WL 3740028, at *1 (Tenn. Crim. App. July 29, 2014), perm. app. denied,
designated not for citation (Tenn. Dec. 19, 2014). A jury convicted the Petitioner of
three counts of rape of a child, one count of attempted rape of a child, and five counts of
aggravated sexual battery. Id. The trial court dismissed two of the counts of rape of a
child for insufficient evidence and declared a mistrial with respect to the third count of
rape of a child based on the State’s motion. Id. The jury acquitted the Petitioner of two
counts of rape of a child and one count of aggravated sexual battery. Id. The trial court
sentenced the Petitioner to twenty-eight years for each conviction of rape of a child and
ten years for each conviction of aggravated sexual battery and for the conviction of
attempted rape of a child. Id. at *7. The trial court ordered the Petitioner to serve the
sentences for rape of a child consecutively to each other and concurrently with the
sentences for the remaining convictions, for an effective sentence of eighty-four years at
one hundred percent. Id.

       On direct appeal, this court modified the Petitioner’s sentences for his convictions
for rape of a child to twenty-five years each and otherwise affirmed the trial court’s
judgments. Id. at *39-40. On December 19, 2014, the Tennessee Supreme Court entered
an order denying the Petitioner’s application for permission to appeal and designating this
court’s opinion “Not for Citation.” On January 29, 2015, the trial court entered amended
judgments in accordance with this court’s opinion.

       On April 24, 2019, the Petitioner filed a pro se petition for writ of error coram
nobis and for post-conviction relief. The Petitioner acknowledged in his petition that his
requests for post-conviction and coram nobis relief were untimely. With respect to his
request for post-conviction relief, the Petitioner maintained that the statute of limitations
should be tolled based on post-conviction counsel’s failure to timely file a petition for
post-conviction relief. The Petitioner asserted that he was led to believe that post-
conviction counsel, whom he retained, would timely file a petition for post-conviction
relief. The Petitioner noted that because he was represented by counsel, he was
prevented from filing a pro se petition for post-conviction relief. He argued that he was
diligent in pursuing his post-conviction rights and that he was entitled to tolling of the
statute of limitations. The Petitioner attached two affidavits to his petition. The
affidavits of the Petitioner’s friends, Mr. Ruben Cruz and Ms. Milagro Cruz, stated that
while the Petitioner’s direct appeal was pending in 2013, they consulted with post-
conviction counsel to represent the Petitioner in post-conviction proceedings and that
they made a series of payments totaling over $3,500 to post-conviction counsel for his
representation of the Petitioner.

       On June 28, 2019, the post-conviction court entered an order summarily denying
and dismissing the petitions for both writ of error coram nobis and post-conviction relief.
Relying on Tennessee Code Annotated section 40-30-102(a), the post-conviction court
found that the petition for post-conviction relief was filed outside of the one-year statute
                                            -2-
of limitations. The post-conviction court did not address the Petitioner’s claim of due
process tolling with respect to the Petitioner’s request for post-conviction relief, although
it addressed a separate due process argument in dismissing the petition for error coram
nobis. The Petitioner filed a timely notice of appeal.

                                        ANALYSIS

        On appeal, the Petitioner maintains that the post-conviction court erred when it
dismissed his petition for post-conviction relief without first conducting an evidentiary
hearing to address his due process tolling argument. The Petitioner does not challenge
the post-conviction court’s dismissal of his request for coram nobis relief. The State
concedes that the post-conviction court erred in summarily dismissing the petition for
post-conviction relief without conducting a hearing to determine if due process requires
the tolling of the statute of limitations. We agree.

        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).
Post-conviction relief is available to petitioners for any conviction or sentence that is
“void or voidable because of the abridgment of any right guaranteed by the Constitution
of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A petition
for post-conviction relief is required to 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). As a general rule, a trial court’s judgment becomes final thirty days after
its entry “unless a timely notice of appeal or specified post-trial motion is filed.” State v.
Peele, 58 S.W.3d 701, 704 (Tenn. 2001). The Petitioner recognizes that he did not file
his petition within the one-year statute of limitations; nevertheless, he argues that due
process requires tolling of the statute of limitations.

       Due process may necessitate the tolling of the statute of limitations. See Seals v.
State, 23 S.W.3d 272, 278-79 (Tenn. 2000). “Issues regarding whether due process
require[s] the tolling of the post-conviction statute of limitations are mixed questions of
law and fact and are, therefore, subject to de novo review.” Whitehead v. State, 402
S.W.3d 615, 621 (Tenn. 2013). A petitioner is “entitled to due process tolling of the one-
year statute of limitations upon a showing (1) that he or she has been pursuing his or her
rights diligently, and (2) that some extraordinary circumstance stood in his or her way
and prevented timely filing.” Bush v. State, 428 S.W.3d 1, 22 (Tenn. 2014) (citing
Whitehead, 402 S.W.3d at 631). In Whitehead, our supreme court identified three
circumstances that allow for equitable tolling: 1) when the claim for relief arises after the
statute of limitations has expired; 2) when a petitioner’s mental incapacities prevent the
petitioner from filing prior to the expiration of the statute of limitations; and 3) when
                                            -3-
attorney misconduct necessitates the tolling of the statute of limitations. Whitehead, 402
S.W.3d at 620-21. “[B]efore a state may terminate a claim for failure to comply with
procedural requirements such as statutes of limitations, due process requires that potential
litigants be provided an opportunity for the presentation of claims at a meaningful time
and in a meaningful manner.” Buford v. State, 845 S.W.2d 204, 208 (Tenn. 1992).

       The Petitioner argued in his petition for post-conviction relief that post-conviction
counsel engaged in attorney misconduct because he failed to timely file a petition for
post-conviction relief after he was retained to do so. The Petitioner attached two
affidavits to his petition in which Mr. Cruz and Ms. Cruz stated that they paid counsel
over $3,500 to represent the Petitioner during the post-conviction process. The post-
conviction court summarily dismissed the petition as untimely without addressing the
Petitioner’s due process argument. We conclude that the post-conviction court erred in
summarily dismissing the Petitioner’s petition for post-conviction relief. See Williams v.
State, 44 S.W.3d 464, 468 (Tenn. 2001) (remanding to the post-conviction court for a
hearing to determine whether due process required the tolling of the statute of limitations
on the basis that “the appellee might have been denied the opportunity to challenge his
conviction in a timely manner through no fault of his own but because of the possible
misrepresentation of his counsel.”); Latroy Lee Robertson v. State, No. M2009-01736-
CCA-R3-PC, at *4 (Tenn. Crim. App. Aug. 3, 2010) (holding that the post-conviction
court erred in summarily dismissing the petitioner’s petition as untimely without
considering the due process tolling argument that the petitioner made based on his
understanding that counsel would counsel to file an appeal).

                                     CONCLUSION

        We reverse the judgment of the post-conviction court and remand for appointment
of counsel and a hearing to determine whether the Petitioner is entitled to due process
tolling of the statute of limitations.




                                    JOHN EVERETT WILLIAMS, PRESIDING JUDGE




                                           -4-
