        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 19, 2015


            NATHAN YOUNG PAYNE v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hamilton County
                         No. 286706   Don W. Poole, Judge




              No. E2014-01553-CCA-R3-PC – Filed September 23, 2015
                        _____________________________

Petitioner, Nathan Young Payne, appeals the dismissal of his motion to withdraw his
guilty plea, which the lower court subsequently treated as a petition for post-conviction
relief. Because Petitioner has not proven that due process requires tolling of the statute of
limitations for post-conviction purposes, the decision of the post-conviction court is
affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR. and JOHN EVERETT WILLIAMS, JJ., joined.

J. Liddell Kirk (on appeal), Knoxville, Tennessee, and Keith A. Black (at post-conviction
hearing), Chattanooga, Tennessee, for the appellant, Nathan Young Payne.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
William H. Cox III, District Attorney General; and Charles D. Minor, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                              Facts and Procedural History

      After the passage of over ten years since his conviction for Rape, Petitioner has
determined that he was not fully apprised of his due process rights when he pled guilty in
2000.
       On November 21, 2000, Petitioner pled guilty to rape, a Class B felony, and
received an eight-year sentence of intensive probation. However, the judgment form did
not indicate that Petitioner was also subject to lifetime community supervision as
required by statute. Almost seven years later, upon motion by the State, the trial court
entered an amended judgment containing the lifetime community supervision
requirement.1

       On February 21, 2011, Petitioner filed a motion to withdraw his guilty plea,
pursuant to Tennessee Rule of Criminal Procedure 32(f)(2), claiming that his
constitutional due process rights were violated because he was not informed that lifetime
community supervision was a consequence of his plea and because he was not notified of
the entry of the amended judgment. The State filed a response, arguing that Petitioner’s
motion was untimely as a motion to withdraw his guilty plea or as a petition for post-
conviction relief.

        After a purported hearing on November 29, 2012, the post-conviction court
entered an order, on January 30, 2013, in which it concluded that it did not have
jurisdiction over Petitioner’s motion to withdraw his guilty plea because it was untimely.
However, the court decided to treat the motion as a petition for post-conviction relief and
took the matter under advisement pending our supreme court’s decision in Bush v. State,
428 S.W.3d 1 (Tenn. 2014), on the issue of whether its holding in Ward v. State, 315
S.W.3d 461 (Tenn. 2010), was retroactively applicable for purposes of post-conviction
relief.

        After Bush was decided, the post-conviction court entered an order, on July 7,
2014, dismissing Petitioner’s converted petition for post-conviction relief. The court
concluded that due process did not necessitate tolling of the post-conviction statute of
limitations in this case because Petitioner failed to diligently pursue his post-conviction
claim after learning that he was required to submit to lifetime community supervision.
Specifically, the court found that Petitioner’s “testimony dating his discovery of the 13
July 2007 amendment of the judgment to the end of 2007 or the beginning of 2008,
establishes that he did have a reasonable opportunity to challenge the amendment or the
voluntary or intelligent nature of his guilty pleas before he did so in February 2011 . . . .”
Petitioner filed a timely notice of appeal.

                                            Analysis




       1
         The certified technical record does not contain a copy of either of these judgment forms.
However, the State attached copies to its response. Both parties appear to agree to these facts.
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        Petitioner contends that the post-conviction court erred in dismissing his converted
petition for post-conviction relief and asks this Court to remand for an additional hearing
on the issue of due process tolling of the statute of limitations. Petitioner reasons that
“aside from the length of time between discovery [of the amended judgment] and the
filing of Petitioner’s [motion to withdraw his guilty plea], the [post-conviction] court did
not in its order cite any additional specific explanation of its reasoning for the conclusion
that the Petitioner had not been diligently pursuing his rights.”2 The State argues that
dismissal of the petition was proper and that no remand is required.

        Post-conviction relief is available 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 must be filed within one year of the date on which the judgment
became final if no direct appeal was taken. T.C.A. § 40-30-102(a). Our legislature
emphasized the fact that “[t]ime is of the essence of the right to file a petition for post-
conviction relief,” id., and provided only three narrow exceptions to the statute of
limitations: (1) a new constitutional right with retrospective application; (2) new
scientific evidence establishing actual innocence; and (3) the invalidation of convictions
underlying an enhanced sentence. T.C.A. § 40-30-102(b).

       However, the constitutional right to due process may necessitate tolling the statute
of limitations in certain circumstances outside of the enumerated statutory exceptions.
See Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn.
1992). Our supreme court has held:

        [B]efore a state may terminate a claim for failure to comply with procedural
        requirements such as statutes of limitations, due process requires that a
        potential litigant be provided an opportunity for “presentation of claims at a
        meaningful time and in a meaningful manner.” The test is “whether the
        time period provides an applicant a reasonable opportunity to have the
        claimed issue heard and determined.”

Seals, 23 S.W.3d at 277-78 (quoting Burford, 845 S.W.2d at 207). “[A] post-conviction
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,
428 S.W.3d at 22 (citing Whitehead v. State, 402 S.W.3d 615, 631 (Tenn. 2013)). Thus
far, our supreme court has identified only three instances in which due process requires

        2
          Appellant does not contest the lower court’s decision to convert his original motion to withdraw
his guilty plea to a petition for post-conviction relief. Therefore, we will not consider the merits of that
issue.
                                                      -3-
tolling of the post-conviction statute of limitations: (1) where the basis for post-
conviction relief arises after the statute of limitations has expired; (2) where a petitioner’s
mental incompetence prevented compliance with the statute of limitations; and (3) where
attorney misconduct prevents compliance with the statute of limitations. Whitehead, 402
S.W.3d at 623-24. The petitioner bears the burden of pleading and proving that the
statute of limitations should be tolled on due process grounds. See Tenn. Sup.Ct. R. 28, §
5(F)(4) (“A petition may be dismissed without a hearing if it . . . does not state the
reasons that the claim is not barred by the statute of limitations.”); see also State v. Nix,
40 S.W.3d 459, 464-65 (Tenn. 2001). “Whether due process considerations require
tolling of a statute of limitations is a mixed question of law and fact, which we review de
novo with no presumption of correctness.” Smith v. State, 357 S.W.3d 322, 355 (Tenn.
2011) (quoting Harris v. State, 301 S.W.3d 141, 145 (Tenn. 2010)).

        In Ward, our supreme court held that “trial courts have an affirmative duty to
ensure that a defendant is informed and aware of the lifetime supervision requirement[,
when applicable,] prior to accepting a guilty plea.” 315 S.W.3d at 476. In Bush, it
determined that the rule announced in Ward is not retroactively applicable. 428 S.W.3d
at 20-21. However, the court suggested that the statute of limitations might be tolled on
due process grounds when appropriate to permit a claim for post-conviction relief based
on ignorance of the lifetime community supervision requirement. See id. at 21-23. In
that case, though, the court held that due process did not require tolling of the statute of
limitations because the petitioner waited over six years before filing a post-conviction
petition after learning of the lifetime community supervision component of his sentence.
Id. at 23.

        We agree with the post-conviction court that this case is indistinguishable from
Bush. Although the record does not contain a transcript of the proceedings before the
post-conviction court, the court’s July 7, 2014 order contains a specific finding that
Petitioner admitted that he learned of the amended judgment and the lifetime supervision
requirement in 2007 or 2008, several years before he initiated relief proceedings in 2011.
“It is the duty of the appellant to prepare a record which conveys a fair, accurate, and
complete account of what transcribed in the trial court with respect to the issues which
form the basis of the appeal.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.
1991) (citing Tenn. R. App. P. 24(b)). Consequently, “[i]n the absence of an adequate
record on appeal, this [C]ourt must presume that the trial court’s rulings were supported
by sufficient evidence.” Id. (citing Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim.
App. 1979)). Given the dearth of evidence in this record, we find no evidence to
preponderate against the factual findings of the post-conviction court. Petitioner had not
met his burden of proving by clear and convincing evidence that the statute of limitations
should be tolled on due process grounds. See Nix, 40 S.W.3d at 464-65 (citing T.C.A. §
40-30-210(f)). Accordingly, Petitioner is not entitled to relief on appeal.

                                              -4-
                                        Conclusion

      Because Petitioner has not proven that due process requires tolling of the post-
conviction statute of limitations, the dismissal of Petitioner’s converted petition for post-
conviction relief is affirmed.



                                                   _________________________________
                                                   TIMOTHY L. EASTER, JUDGE




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