        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                On Brief February 2, 2010

         CLARENCE EDWARD SPINKS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Gibson County
                        No. 17640 Clayburn Peeples, Judge




                  No. W2009-01801-CCA-R3-PC - Filed May 26, 2010


After being indicted by the Gibson County Grand Jury, Petitioner, Clarence Edward Spinks,
pled guilty on May 7, 2007, to three offenses. He was sentenced to an eight-year sentence,
and the trial court ordered that sentence to be served consecutively to a previously-imposed
sentence. On January 21, 2009, Petitioner filed a petition for post-conviction relief. The
post-conviction court conducted a hearing to determine whether the petition was timely.
Petitioner admitted that the petition was filed more than a year after the statute of limitations
had run. The post-conviction court dismissed the petition based upon the statute of
limitations. On appeal, Petitioner argues that the post-conviction court erred in dismissing
his petition. After a thorough review of the record, we affirm the post-conviction court’s
dismissal of the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J.C. M CL IN and C AMILLE R.
M CM ULLEN, JJ., joined.

Jeffrey A. Smith, Trenton, Tennessee, for the appellant, Clarence Edward Spinks.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Garry Brown, District Attorney General, and Stephanie Hale, Assistant District
Attorney General for the appellee, State of Tennessee.
                                           OPINION

                                       Factual Background

        On May 7, 2007, Petitioner pled guilty to one count of possession of cocaine with
intent to deliver or sell, one count of attempt to tamper with evidence, and one count of
aggravated assault. Petitioner was sentenced to an effective sentence of eight years to be
served at 30%. The trial court ordered that this sentence be served consecutively to a
previously-imposed, eight-year sentence. On January 21, 2009, Petitioner filed a pro se
petition for post-conviction relief alleging ineffective assistance of counsel. Counsel was
appointed. Petitioner conceded that the petition was filed outside the one year statute of
limitations. Petitioner did not argue or present proof regarding the tolling of the statute. The
post-conviction court dismissed the petition based upon the fact that it violated the statute of
limitations. Petitioner filed a timely notice of appeal.

                                          ANALYSIS

        Petitioner argues that the trial court incorrectly dismissed his petition. The State
argues that the post-conviction court was correct in its dismissal based upon the statute of
limitations.

       In its order, the post-conviction court stated that the petition was filed outside of the
one year statute of limitations as set out at Tennessee Code Annotated section 40-30-102(a).
Since July 1, 1995, the statute of limitations for filing a petition for post-conviction relief has
been one year from the date of the final action of the highest state appellate court to which
an appeal is taken. T.C.A. § 40-30-102(a).

       There are three statutory exceptions to the statute of limitations in post-conviction
matters.    These exceptions are set forth in Tennessee Code Annotated section
40-30-102(b)(1), (2) & (3): (1) claims based on an appellate court ruling concerning a
constitutional right not recognized at the time of the trial and given retroactive effect by the
appellate courts; (2) claims based upon newly discovered evidence which establishes that the
petitioner is actually innocent of the crime; and (3) claims which arise out of a situation
where the petitioner received an enhanced sentence for a crime based on previous
convictions which were later held to be invalid.

      The petitioner relies on Sands v. State, 903 S.W.2d 297 (Tenn. 1995), to support his
argument. Sands is one of a line of cases including Williams v. State, 44 S.W.3d 464 (Tenn.
2001) and Burford v. State, 845 S.W.2d 204 (Tenn. 1992), analyzing when due process


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limitations toll the statute of limitations. In all three of those cases, our supreme court
decided that the statute of limitations for post-conviction relief could be tolled in the factual
situations presented in those cases. In Burford, the petitioner’s sentence was being enhanced
by previous convictions that had subsequently been declared invalid, but not in time for him
to meet the statute of limitations for filing his post-conviction petition. Burford, 845 S.W.2d
at 208. Our supreme court stated that because the petitioner was in a procedural trap, the
petitioner’s due process rights would be violated by not allowing a tolling of the statute of
limitations and the filing of a post-conviction petition. Burford, 845 S.W.2d at 208-09.

      In Sands, our supreme court analyzed Burford and set out the basic rule derived from
Burford and how to go about applying this rule in future cases. The supreme court stated:


       [I]t will be helpful to summarize the basic rule to be derived from Burford:
       that, in certain circumstances, due process prohibits the strict application of the
       post-conviction statute of limitations to bar a petitioner’s claim when the
       grounds for relief, whether legal or factual, arise after the “final action of the
       highest state appellate court to which an appeal is taken” – or, in other words,
       when the grounds arise after the point at which the limitations period would
       normally have begun to run. In applying the Burford rule to specific factual
       situations, courts should utilize a three-step process: (1) determine when the
       limitations period would normally have begun to run; (2) determine whether
       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 convictions process,” Burford, 845 S.W.2d at 207, against
       the State’s interest in preventing the litigation of “stale and fraudulent claims.”
       Id. at 208.


Sands, 903 S.W.2d at 301.

        Initially we address the fact that Petitioner argues on appeal that due process requires
the tolling of the statute of limitations. He contends that his trial counsel guaranteed him that
he would only serve thirty percent of his sentence. He claims he realized after the statute ran
that trial counsel cannot make such a guarantee. Therefore, he argues that these facts
constitute a later-arising ground as set out in Sands.

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        However, we are precluded from addressing the merits of Petitioner’s claims that the
situation constitutes a later-arising ground because this argument was not presented to the
lower court. The record before us fails to establish a due process basis for tolling the statute
of limitations.

        Moreover, it is well-established in this State that a party may not take one position
regarding an issue in the trial court, change its strategy or theory in midstream, and advocate
a different ground or reason in this Court. See State v. Aucoin, 756 S.W.2d 705, 715 (Tenn.
Crim. App. 1988), cert. denied, 489 U.S. 1084 (1988); State v. Dobbins, 754 S.W.2d 637,
641 (Tenn. Crim. App. 1988).

        Based upon the record presented, the one-year statute started running on May 7, 2007,
when Petitioner pled guilty to the offenses in question. Therefore, Petitioner had until May
7, 2008 to file his petition. The petition was filed January 21, 2009, eight months after the
statute had run. The Court finds that the petition is time-barred by the applicable one-year
statute of limitations, and fails to meet any of the statutorily recognized exceptions to the
statute of limitations.1

        It is therefore the opinion of the Court that the Petitioner’s petition for post-conviction
relief should be dismissed.


                                             CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s dismissal of the
petition for post-conviction relief.



                                                   ___________________________________
                                                   JERRY L. SMITH, JUDGE




        1
          We note that the original petition for post-conviction relief does not appear in the record, only an
amended petition is included. However, it is undisputed that the original petition was filed outside the statute
of limitations.

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