             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                   Assigned on Briefs January 8, 2008

                        DARRON PRICE v. STATE OF TENNESSEE

                           Appeal from the Criminal Court for Shelby County
                              No. 02-02785    John P. Colton, Jr., Judge


                          No. W2006-02233-CCA-R3-PC - Filed May 14, 2008


The Petitioner, Darron Price, appeals the summary dismissal of his pro se petition for post-
conviction relief by the Shelby County Criminal Court. Price was convicted in 2003 for attempted
first degree murder, attempted especially aggravated kidnapping, and aggravated robbery. State v.
Darren Price,1 No. W2003-01447-CCA-MR3-CD (Tenn. Crim. App. at Jackson, Feb. 9, 2005). The
judgments were affirmed on direct appeal, and our supreme court denied Price’s application for
permission to appeal on June 20, 2005. Id. Subsequently, Price filed the instant petition for post-
conviction relief. The post-conviction court denied Price an evidentiary hearing based upon its
determination that the petition was untimely pursuant to the one-year statute of limitations. On
appeal, Price argues that the post-conviction court erred in summarily dismissing his petition as
untimely. After review, we conclude that the record supports a threshold showing of Price’s
compliance with Tennessee Supreme Court Rule 28, § 2(G). Accordingly, we vacate the trial court’s
order dismissing Price’s petition, and we remand for an evidentiary hearing to determine whether
Price can show by a preponderance of the evidence that he complied with Rule 28 § 2(G) in filing
his post-conviction petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C. MCLIN ,
JJ., joined.

Charles S. Mitchell, Memphis, Tennessee, for the Appellant, Darron Price.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel, Attorney
General’s Office, for the Appellee, State of Tennessee.

                                                      OPINION

                                                Procedural History

         1
          We acknowledge the difference in the spelling of the Petitioner’s name in this appeal and in the direct appeal
of his convictions. We elect to utilize the spelling consistently used by the Petitioner in this appeal and as reflected by
his signature.
        The Petitioner was found guilty of attempted first degree murder, attempted especially
aggravated kidnapping, and two counts of aggravated robbery, and he was ordered to serve an
effective sentence of forty-nine years. Darren Price, No. W2003-01447-CCA-MR3-CD. The
judgments were affirmed on direct appeal, but the case was remanded for entry of corrected
judgment forms to reflect the merger of two convictions for aggravated robbery. Id. The Petitioner
filed an application to appeal to the Tennessee Supreme Court, which was denied on June 20, 2005.
Id.

        The Petitioner, proceeding pro se, subsequently filed the instant petition for post-conviction
relief. On September 5, 2006, the post-conviction court entered an order dismissing the petition
“without the need of an evidentiary hearing or the appointment of counsel[,]” finding that the petition
was filed on June 26, 2006, and was, therefore, outside the one-year statute of limitations. The
Petitioner timely appealed the post-conviction court’s order.

                                                   Analysis

        The Petitioner argues that the post-conviction court erred in summarily dismissing his
petition. He contends that the post-conviction court should have held a hearing to determine whether
his petition was timely filed. In response, the State concedes that the Petitioner made a threshold
showing of compliance with Tennessee Supreme Court Rule 28 § 2(G) and agrees that remand is
necessary to determine the date on which the Petitioner filed his petition.

        The Tennessee Post-Conviction Procedure Act provides that

        a person in custody under a sentence of a court of this state must petition for post-
        conviction relief under this part 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 such petition shall be barred. The statute of limitations shall not be tolled for any
        reason, including any tolling or saving provision otherwise available at law or equity.

T.C.A. § 40-30-102(a) (2006). Notwithstanding, if petitions are “prepared by or filed on behalf of
a pro se petitioner incarcerated in a correctional facility and are not received by the clerk of the court
until after the time fixed for filing, filing shall be timely if the papers were delivered to the
appropriate individual at the correctional facility within the time fixed for filing.” Tenn. Sup. Ct.
R. 28, § 2(G); see also Tenn. R. Crim. P. 49(d). In effect, “the jailer is . . . the clerk of the [court.]”
Paul v. State, 75 S.W.3d 926, 929 (Tenn. Crim. App. 2001) (citing Houston v. Lack, 487 U.S. 266,
270, 108 S. Ct. 2379, 2383 (1988)). A trial court may enter an order summarily dismissing a post-
conviction petition if the petition is not filed within the time set forth in the statute of limitations.
T.C.A. § 40-30-106 (2006).

        In Butler v. State, 92 S.W.3d 387 (Tenn. 2002), our supreme court addressed the issue of the
statute of limitations regarding a pro se petition for post-conviction relief. In addition to the

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procedures in place for the filing of such petitions set forth by Rule 49 of the Tennessee Rules of
Criminal Procedure, in analyzing this issue, the court cited Tennessee Supreme Court Rule 28, which
provides, in pertinent part, that “[s]hould timeliness of filing or service become an issue, the burden
is on the pro se petitioner to establish compliance with this provision.” Butler, 92 S.W.3d at 390.
The court also relied upon State v. Vickers, 970 S.W.2d 444, 448 (Tenn. 1998), for the principle that
“it is generally the duty of the trial courts to conduct evidentiary hearings on statute of limitations
issues that do not involve a determination of guilt or innocence.” Id. The Butler court concluded
that the defendant had “alleged sufficient facts to make a threshold showing that he . . . complied
with Rule 28 § 2(G).” Id. The court held that the defendant was entitled to an evidentiary hearing
wherein the trial court would determine: (1) whether the defendant could prove by a preponderance
of the evidence that he had actually filed a post-conviction petition by tendering it to the named
correctional officer within the one-year statute of limitations: and (2) that such named correctional
officer was an “appropriate individual” for post-conviction petition filing purposes within the
meaning of Rule 28 § 2(G). Id. at 390-91.

         In the case at bar, the pro se petition filed in the record indicates on the face of the petition
that it was signed by the Petitioner on May 23, 2006. The Petitioner asserts that he hand delivered
his petition to prison authorities on May 31, 2006. After the trial court dismissed the petition, based
upon a finding that the petition was filed on June 26, 2006, the Petitioner filed a motion “Responding
to the Order Dismissing Petitioner’s Petition for Post-Conviction Relief” and attached to the motion
a “Declaration of Mailroom of the Hardeman Co. Correctional Facility at Whiteville, Tennessee.”
This “Declaration” asserted that the petition was mailed on May 31, 2006. Upon filing his pro se
brief with this court, the Petitioner was appointed counsel, and the record was supplemented with
the affidavit of the clerk of the Hardeman County Correctional Facility mail room, who attested that
the Petitioner delivered his petition to be mailed on May 31, 2006.

        After review, we conclude that the Petitioner has offered proof sufficient to make a threshold
showing that he properly filed his post-conviction petition pursuant to the requirements of Rule 28
§ 2(G).

                                           CONCLUSION

       Based upon the foregoing, we reverse the judgment of the Shelby County Criminal Court and
conclude that the Petitioner has presented evidence such that he has made a threshold showing of
compliance with Tennessee Supreme Court Rule 28 § 2(G). Accordingly, we remand this case to
the post-conviction court to determine whether the Petitioner can show by a preponderance of the
evidence that he complied with Rule 28 § 2(G) in filing his post-conviction petition.

                                                         ___________________________________
                                                         DAVID G. HAYES, JUDGE




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