        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 22, 2016

                JOHN A. JONES, III v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Bradley County
                   No. 15-CR-230 Sandra N. C. Donaghy, Judge



                  No. E2015-01491-CCA-R3-PC – Filed June 3, 2016



The Petitioner, John A. Jones, III, appeals the Bradley County Criminal Court‟s summary
dismissal of his petition for post-conviction relief for the petition‟s being filed outside the
one-year statute of limitations. Based upon the record and the parties‟ briefs, we affirm
the dismissal of the petition.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

John A. Jones, III, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
and Stephen Davis Crump, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

                                  I. Factual Background

       On April 15, 2013, the Petitioner pled guilty to possession of one-half gram or
more of cocaine with intent to sell, a Class B felony, and received a ten-year sentence to
be served on supervised probation. The judgment of conviction was entered that same
day. On August 22, 2014, the Petitioner‟s probation was revoked, and he was ordered to
serve his original sentence in confinement.
        On June 9, 2015, the Petitioner filed a pro se petition for post-conviction relief,
raising various claims of ineffective assistance of trial counsel, including that counsel
failed to respond to his letters or confer with him, failed to challenge the prosecutor‟s not
bringing him before a magistrate within forty-eight hours, failed to challenge his
warrantless arrest, and failed to challenge his warrantless body cavity search. In an
answer to the petition, the State requested that the post-conviction court dismiss the
petition for being filed outside the one-year statute of limitations. On June 24, 2015, the
post-conviction court found the petition to be time-barred and dismissed it without an
evidentiary hearing.

                                         II. Analysis

       On appeal, the Petitioner claims that the post-conviction court erred by summarily
dismissing his petition. For the first time, he contends that the statute of limitations
should be tolled because trial counsel led him to believe that counsel would file a motion
to dismiss his guilty plea but never did so. The State argues that the post-conviction
court properly dismissed the petition. We agree with the State.

       “Relief under [the Post-Conviction Procedure Act] shall be granted when the
conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
Tenn. Code Ann. § 40-30-103. However, to obtain relief, the post-conviction petition
must be filed within one year of the final action of the highest state appellate court to
which an appeal is taken. Tenn. Code Ann. § 40-30-102(a); see also Williams v. State,
44 S.W.3d 464, 468 (Tenn. 2001). The statute emphasizes that “[t]ime is of the essence
of the right to file a petition for post-conviction relief” and that “the one-year limitations
period is an element of the right to file such an action and is a condition upon its
exercise.” Tenn. Code Ann. § 40-30-102(a).

       Pursuant to Tennessee Code Annotated section 40-30-102(b), a court does not
have jurisdiction to consider a petition for post-conviction relief if it was filed outside the
one-year statute of limitations unless: (1) “[t]he claim in the petition is based upon a final
ruling of an appellate court establishing a constitutional right that was not recognized as
existing at the time of trial, if retrospective application of that right is required”; (2) “[t]he
claim in the petition is based upon new scientific evidence establishing that such
petitioner is actually innocent of the offense or offenses for which the petitioner was
convicted”; or (3) the claim in the petition “seeks relief from a sentence that was
enhanced because of a previous conviction and such conviction in the case in which the
claim is asserted was not a guilty plea with an agreed sentence, and the previous
conviction has subsequently been held to be invalid[.]” The statute of limitations may
also be tolled in cases where its strict application would deny the petitioner “„a
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reasonable opportunity to assert a claim in a meaningful time and manner.‟” Williams,
44 S.W.3d at 468 (quoting Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)).

       The record reflects that the Petitioner pled guilty and was sentenced on April 15,
2013. Therefore, he was required to file his petition for post-conviction relief within one
year of May 15, 2014, the date his judgment became final. See Tenn. Code Ann. § 40-
30-102(a); State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003) (holding that “a judgment
of conviction entered upon a guilty plea becomes final thirty days after acceptance of the
plea agreement and imposition of sentence”). He did not file his petition until June 9,
2015, more than one year after the statute of limitations expired.

         The Petitioner now claims that due process requires tolling the statute of
limitations because trial counsel led him to believe that counsel would file a motion to
withdraw his guilty plea. However, the Petitioner did not raise that claim in his petition
for post-conviction relief. Accordingly, the claim has been waived because the Petitioner
failed to present it to the post-conviction court. See State v. Alvarado, 961 S.W.2d 136,
153 (Tenn. Crim. App. 1996) (stating that “[o]rdinarily, issues raised for the first time on
appeal are waived”); see also State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001) (stating that
“it is incumbent upon a petitioner to include allegations of fact in the petition establishing
either timely filing or tolling of the statutory period” and that the “[f]ailure to include
sufficient factual allegations of either compliance with the statute or [circumstances]
requiring tolling will result in dismissal”); Konstantinos Diotis v. State, No. W2011-
00816-CCA-R3-PC, 2011 WL 5829580, at *2 (Tenn. Crim. App. at Jackson, Nov. 17,
2011) (concluding that petitioner waived claim of due process tolling when he raised it
for the first time on appeal).

                                      III. Conclusion

       Based upon the record and the parties‟ briefs, we affirm the post-conviction
court‟s dismissal of the petition.



                                                   _________________________________
                                                   NORMA MCGEE OGLE, JUDGE




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