         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                         MAY SESSION, 1999          FILED
                                                     August 26, 1999
DAVID LEE HUNDLEY,              )   C.C.A. NO. 02C01-9810-CC-00313
                                                 Cecil Crowson, Jr.
                                )               Appellate Court Clerk
          Appe llant,           )
                                )   WEAKLEY COUNTY
V.                              )
                                )
                                )   HON. WILLIAM B. ACREE, JUDGE
STATE OF TENNESSEE,             )
                                )
          Appellee.             )   (POST-C ONVIC TION)



FOR THE APPELLANT:                   FOR THE APPELLEE:

DAVID LEE H UND LEY, pro se          JOHN KNOX WALKUP
Specia l Needs Facility              Attorney General & Reporter
7575 Cockrill Bend
Industrial Road                      J. ROSS DYER
Nashville, TN 37209-1057             Assistant Attorney General
                                     2nd Floor, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     THOMAS A. THOMAS
                                     District Attorn ey Ge neral

                                     JAMES T. CANNON
                                     Assistant District Attorney General
                                     P.O. Box 218
                                     Union City, TN 38261




OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE
                                   OPINION
      On November 2, 1992, Petitioner David Lee Hundley pled guilty to two cou nts

of second degree murder. That same day, the trial court sentenced Petitioner to two

consecu tive twenty-five year term s in the T ennes see De partme nt of Corre ction. On

May 30, 1997, Petitioner filed a petition for post-conviction relief in which he alleged

that he had received ineffective assistance of counsel at the guilty plea hearing. On

June 24, 1997, the post-conviction court dismissed the petition because it was not

filed within one year of the guilty plea hea ring as req uired by th e applica ble statute

of limitations. Petitioner challenges the dismissal of his petition, raising the following

issue: whether the one year statu te of limitation s that gov erns the filing of post-

conviction petitions was tolled by Pe titioner’s mental incom petency. After a review

of the record, we reverse the judgment of the post-conviction court and we remand

this case for further proceedings.



                                   BACKGROUND




      On September 3, 1991, the Weakly County Grand Jury indicted Petitioner

David Lee Hun dley for two co unts o f first deg ree m urder , two co unts o f espe cially

aggrava ted kidna pping, an d one c ount of po ssessio n of a dea dly weap on.



      On November 4, 1991, the trial court ordered the hospitalization of Petitioner

for thirty da ys in the Middle Tennessee Mental Health Institute (“MTMHI”) and

ordered an evaluation of Petitioner’s competency to stand trial and sanity at the time

of the commission of the offenses. Although the actual letter is not in the re cord, it

appears that the staff of the MTMHI notified the trial court by letter dated January 13,

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1992, that they had evaluated Petitioner and determined that he was insane at the

time of the offenses and he was not competent to stand trial. On February 10, 1992,

the trial court issued an order that recommitted Petitioner to the MTMHI for further

evaluation. By letter dated April 14, 1992, the staff of the MTMHI notified the trial

court that they had evaluated Petitioner and determined that although he was insane

at the time of the offenses, his condition had improve d and h e was c ompe tent to

stand trial.



       On Novem ber 2, 19 92, Petition er pled g uilty to two cou nts of second degree

murder in return for the State’s agreement to dismiss the other charges. That same

day, the trial court imposed two consecutive twenty-five year sentences. On August

22, 1995, Petitio ner filed a petition for post-conviction relief, claiming that he

received ineffective assistance of counsel at the guilty plea hearing. On December

11, 1995, Petitioner filed a motion to dismiss his petition. The post-conviction court

granted the mo tion to dism iss the pe tition by an o rder date d Janu ary 5, 199 6.



       On May 30, 1997, Petitioner filed the petition for post-conviction relief at issue

in this case. In the petition, Petitioner alleged that when he dismissed his previous

petition, he was “psychotic and unable to pres ent an ything in a logica l orderly

fashion, “ and was “actively hallucinating, deluding, and was probab ly suicidal. ” In

addition, Petitioner alleged that he chose to withdraw his previous petition “because

of his serious psyc hosis at the time .” On June 2 4, 1997, the po st-conviction court

dismissed the petition without a hearing because it was not filed within one year as

required by the statu te of limitation s.



                                       ANALY SIS

                                            -3-
      Petitioner contends that the post-con viction court erred w hen it d ismiss ed his

petition because it was filed after the applicable one year statute of limitations had

expired. Specifically, Petitioner contends that the statute of limitations was tolled by

his mental incompetence.



      When Petitioner filed his petition o n May 3 0, 1997 , the applicable statute of

limitations provided that, with certain exceptions not relevant here,

      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 h ighes t state a ppella te cou rt to whic h an a ppea l 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. Time is of the essence of the
      right to file a petition for post-con viction relief or m otion to reopen established
      by this chapter, and the one-year limitations period is an element of the right
      to file such an action and is a condition upon its exercise. Except as
      spec ifically provided in subse ctions (b) a nd (c), the rig ht to file a petition for
      post-conviction relief or a motion to reopen under this chapter shall be
      extinguished upon the expiration of the limitations period.

Tenn . Code Ann. § 4 0-30-20 2(a) (199 7) (effective M ay 10, 19 95).



      Initially, Petitioner c ontend s that his m ental inco mpete ncy tolled th is statute

of limitations pursuant to Tennessee Code Anno tated section 28-1-106, which

states,

      If the person entitled to commence an action is, at the time the cause of action
      accrued, either within the age of eighteen (18) years, or of unsound mind,
      such person, or his rep resentatives an d privies, as the case may be, may
      commence the ac tion, afte r the rem oval of such disability, within the time of
      limitation for the particular cause of action, unless it exceed three (3) years,
      and in tha t case with in three (3) years from the rem oval of suc h disability.

Tenn. Code A nn. § 28-1-10 6 (1980). However, as this Court has previously stated,

the express language of section 40-30-202 precludes the application of the saving

provision of section 28-1-106 to the post-conviction statute of limitations. See John



                                             -4-
Paul Seals v. State, No. 03C01-9802-CC-00050, 1999 WL 2833, at *2 (Tenn. Crim.

App., Knoxville, Jan. 6, 1999 ), perm. to appeal granted, (Tenn . 1999); Vikki Lynn

Spellman v. State, No. 02C01-9801-CC-00036, 1998 WL 517840, at *1 (Tenn. Crim.

App., Jackso n, Aug. 2 1, 1998 ), perm. to appeal granted, (Tenn. 1999). Thus,

section 28-1-106 has no application in this case.



       Petitioner also co ntend s that h is me ntal incompetency tolled the statutes of

limitations under Wa tkins v. State , 903 S.W.2d 302 (Tenn . 1995). In Watkins, the

Tennessee Supreme Court addressed the previous post-conviction statute, which

contained a three ye ar statute o f limitations and did not contain an “anti-tolling”

provision. See Tenn. Code Ann. §§ 40-30-1 01 to -124 (19 90). The su preme co urt

held that even in the absence of the saving provision of section 28-1-106, principles

of cons titutiona l due p roces s wou ld be o ffende d by ap plication of the statute of

limitations in the cas e of me ntal incom petenc e. Watkins, 903 S.W.2d at 305-06.

The supreme court stated that if the petitioner’s “allegations of incompe tency prove

to be valid, application of the statute of limitations would effectively deprive him of

an opportunity to challenge his conviction in a meaningful time and ma nner.” Id. at

306.



       The State conten ds that Watkins is no longer applicable because it was based

on the previous post-conviction statute and the Legislature included an “anti-tolling”

provision in sectio n 40-3 0-202 (a) wh en it en acted the sta tute in 1995. How ever, as

previo usly stated by this Court, section 40-30-202(a) “may not eliminate a

cons titutiona lly required tolling provisio n.” Vikki Lynn Spellman, 1998 WL 517840,

at *2. See also John Paul S eals, 1999 WL 2833, at *2. Thus, Petitioner is correct

that mental incompetency acts to toll the statute of limitations.

                                           -5-
       W e note that Petitioner did not specifically allege in his petition that he was

incompetent for the entire period from the effective date of section 40-30-202(a) on

May 10, 1995, u ntil he filed the petition at iss ue in this ca se on M ay 30, 19 97. If

Petitioner was competent for one year during this time period, the statute of

limitations expired prior to his filing on May 30, 1997. Thus, even on the face of the

petition, Petitioner did not sufficiently allege facts that would show that the filing was

timely. However, this Court held in Vikki Lynn Spellman that even though the

petition in that case did not allege facts sufficient to toll the statute of limitations,

other facts in the record were sufficient to justify remanding the case for a

determination of whether the statute of limitatio ns ha d bee n tolled by the p etitione r’s

mental incompetency. 1998 WL 517840, at *3-4. We conclude that this case

presents a similar situation that requires remand.



       The record ind icates that on November 4, 1991, the trial court ordered the

hospitalization of Petitioner in the MTMHI and ordered an evaluation of Petitio ner’s

competency to stand trial and sanity at the time of the commission of the offenses.

On January 13, 1992, the MTMHI staff informed the trial court that their evaluation

indicated that Petitioner was insane at the time of the offenses and he was not

competent to stand trial. On February 10, 1992, the trial court issued an order that

recommitted Petitioner to the MTMHI for further evalua tion. O n Apr il 14, 1992, the

MTMHI staff informed the trial court that they had evaluated Petitioner and

determined that although he was insane at the time of the offenses, his condition

had improved and he was competent to stand trial. On October 26, 1992, the trial

court ordere d the M TMH I staff to s uperv ise Pe titioner o n a we ekly ba sis, m onitor h is

medication, evaluate his competency to stand trial, and report back to the court. On

October 9, 1995, the post-conviction court issued an order that stated that because

                                              -6-
there was a question about Petitioner’s competency to participate in the prosecution

of his first petition, Petitioner should be evaluated to determine his mental

compe tency.     Unfor tunate ly, the re cord d oes n ot con tain the results of this

evaluation.



       Although the petition in this case does n ot allege fa cts sufficient to warrant a

tolling of the statute of limitations, the record does contain evidence of prior mental

health problems that warrants further findings of the post-conviction court in order

to determine whether appropriate grounds exist for the tolling of the statute of

limitations under th e due p rocess rationale o f Watkins. However, we note that

although Petitioner has surpassed the threshold for avoiding summary dismissal of

his petition, he has not proven his claim and the burden remains on him to establish

that he was mentally incompetent during the relevant time period. See John Paul

Seals , 1999 WL 2833, at *4.



       Upon remand , the post-conviction c ourt should a ppoint co unsel to represent

Petitioner and should determine whether the statute of limitations was tolled by

mental incompetency. The one year statute of limitations became effective on May

10, 1995 , and P etitione r filed his p etition on May 30, 1997. If Petitioner was

competent for one year between May 10, 1995, and May 30, 1997, the sta tute of

limitations expired and the petition is untimely. If Petitioner was not competent for

one year between May 10, 1995, and May 30, 1997, the petition was timely and the

court sho uld add ress the m erits of Petition er’s claim s.



       W e note that the statute of limitations can be tolled only during periods of

incompe tency. Thus, the one year of competency could consist of one continuous

                                            -7-
period or it could consist of two or more periods of com petenc y that are e qual to one

year when added togethe r. For instance, if a petitioner is competent for the initial ten

month period of the statute of limitations and then is incompetent for three months,

he or she would have o nly two m onths followin g a retu rn of co mpe tency in which to

file a petition.



       For the reasons stated above, we vacate the judgment of the post-conviction

court and we reman d this cas e for app ointme nt of counsel and for further

proceedings consistent with this opinion.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
JOE G. RILEY, Judge




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