                                                                                           11/01/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              September 12, 2017 Session

               MATTHEW B. FOLEY v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                        No. F-52128 David M. Bragg, Judge
                     ___________________________________

                           No. M2016-02456-CCA-R3-PC
                       ___________________________________


Matthew B. Foley, the Petitioner, filed a petition for post-conviction relief thirteen years
after he entered a guilty plea; he argued that the statute of limitations should be tolled on
due process grounds and that the State had breached a material element of his plea
agreement. The post-conviction court summarily dismissed the petition on the ground
that the statute of limitations should not be tolled. On appeal, this court held that the
statute of limitations should be tolled based on due process grounds and remanded the
case for an evidentiary hearing on the merits. Matthew B. Foley v. State, No. M2015-
00311-CCA-R3-PC, 2016 WL 245857, at *8 (Tenn. Crim. App. Jan. 20, 2016), no perm.
app. filed. On remand, the post-conviction court again denied relief on the ground that
the statute of limitations should not be tolled based on due process. We again reverse and
remand this case for an evidentiary hearing on the merits of the post-conviction relief
petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.

Wesley B. Clark, Nashville, Tennessee, for the appellant, Matthew Benjamin Foley.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Jennings H. Jones, District Attorney General; and Hugh Ammerman, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                              OPINION

                            I. Factual and Procedural Background

        On February 28, 2002, Matthew B. Foley, the Petitioner, who was fifteen years of
age at the time of the offense, entered a negotiated plea of guilty to a reduced charge of
facilitation of especially aggravated kidnapping.1 At that time, facilitation of especially
aggravated kidnapping was not listed as an offense requiring registration under the
Sexual Offender Registration Act (the Act), and at the plea submission hearing the State
noted that it was of “major benefit” to the Petitioner to plea to this offense because he
would not be required to register as a sex offender. The trial court stated that the
Petitioner would “be required to follow the requirements for a sex offender, although [he
was] not going to be officially a sex offender.”

       On June 22, 2002, the Act was amended to add facilitation of especially
aggravated kidnapping as a sexual offense requiring registration; on July 1, 2004, the Act
was again amended to remove facilitation of especially aggravated kidnapping from the
Act. In the fall of 2011, while the Petitioner was incarcerated in a state prison serving the
remainder of his sentence for especially aggravated kidnapping after violating his
probation, he was informed that he needed to register as a sex offender. The Petitioner
refused and was arrested upon his release from state prison. However, when the
Petitioner was able to show through counsel that he was not statutorily required to
register as a sex offender, the State dismissed the charge on April 3, 2012. In May 2012,
Detective Jennifer West of the Murfreesboro Police Department told the Petitioner that he
was required to register. The Petitioner told Detective West that he was not required to
register, however, on May 25, 2012, he signed a Tennessee Bureau of Investigation
Sexual Offender Instructions Form and began reporting to Detective West. Again, at this
time, the Petitioner was not required to register under the statute. On July 1, 2012, the
Act was again amended to add facilitation of especially aggravated kidnapping as a
sexual offense requiring registration. On September 10, 2012, the Petitioner was again
arrested for violation of the sex offender registry. He again hired private counsel who, on
August 19, 2013, was successful in having the charge retired. In 2014, the Petitioner was
again arrested for violating the terms of the registry; he later pled no contest to two
counts of violating the registry.




        1
          To assist in the resolution of this proceeding, we take judicial notice of the record from the
Petitioner’s first appeal from the denial of post-conviction relief. See Tenn. R. App. P. 13(c); State v.
Lawson, 291 S.W.3d 864, 869 (Tenn. 2009); Delbridge v. State, 742 S.W.2d 266, 267 (Tenn. 1987); State
ex rel. Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).
                                                  -2-
                               Post-Conviction Proceedings

       The Petitioner filed a petition for post-conviction relief on January 7, 2015. In his
petition, the Petitioner alleged that “[b]y modifying the Sex Offender Registration Act to
include the offense of Facilitation of Especially Aggravated Kidnapping and forcing [the]
Petitioner to comply with the sex offender registry, the State of Tennessee ha[d]
effectively violated a material condition of the plea agreement entered on February 28,
2002.” Additionally, the Petitioner alleged that the State of Tennessee “violated [the
Petitioner’s] Due Process rights under the 5th and 14th amendments to the U.S.
Constitution and Article I, § 8 of the Tennessee Constitution, and rendering [the]
Petitioner’s guilty plea involuntary.”

       The post-conviction court summarily denied the post-conviction relief petition,
finding that the petition was barred by the one-year statute of limitations. The Petitioner
appealed, and this court reversed and remanded for “an evidentiary hearing in which to
present proof as to his post-conviction grounds for relief.” Matthew B. Foley, 2016 WL
245857, at *8 (emphasis added). Our court stated the following:

              We find this to be one of those rare unconscionable cases that cries
       out for due process tolling. See, e.g., Dennis Cedric Woodard, Jr., v. State,
       No. M2013-01857-CCA-R3-PC, 20014 WL 4536641 (Tenn. Crim. App.
       Sept. 15, 2014) (concluding that later-arising claim involving attorney
       misconduct necessitated tolling of the limitations period). However, we
       note that our determination that the Petitioner is entitled to a hearing is not
       to be read as indicative of the merit of the Petitioner’s claims, which will be
       analyzed by the post-conviction court. Id. We also guide the lower court to
       make the appropriate findings in ruling on the petition. Id. Accordingly,
       this case is reversed, and the Petitioner must receive an evidentiary hearing
       in which to present proof as to his post-conviction grounds for relief.

Matthew B. Foley, 2016 WL 245857, at *8.

                                        II. Analysis

        On appeal, the Petitioner argues that due process concerns require tolling of the
post-conviction statute of limitations, that the State breached its plea agreement with the
Petitioner, and that enforcement of the registry against the Petitioner violated the Ex Post
Facto clause. The State contends that the Petitioner is not entitled to due process tolling
of the statute of limitations because he has not diligently pursued his post-conviction
rights and no extraordinary circumstance prevented him from timely filing his petition.

                                            -3-
        On remand, it appears that the post-conviction court again focused solely on
whether the statute of limitations should be tolled in the Petitioner’s case on due process
grounds. In its order filed on November 14, 2016, the post-conviction court stated:
“After an examination of the Petition, the record as a whole, transcripts, and
correspondence relating to the claims, this Court DENIES the Petitioner’s request for
failure to file within the statutory time limit and for failure to state any basis for tolling
the Statute of Limitations.” The post-conviction court concluded that the Petitioner had
not pursued his claim diligently and that no extraordinary circumstance existed to warrant
due process tolling of the statute of limitations. The post-conviction court did not reach
the merits of the petition.

        However, in this court’s previous opinion, a panel of this court determined that the
Petitioner’s claims were “later-arising” and concluded that “it was only when the State
sought to apply the act’s provisions to the Petitioner that it possibly breached a ‘material
term’ of the plea agreement triggering the Petitioner’s responsibility to pursue his rights
diligently.” Id. at *5, 7. Further, our court concluded that “the Petitioner was diligently
pursuing his rights in accordance with the Whitehead-Holland test.”2 Id. at *8. Because
our court, in Matthew B. Foley, explicitly concluded that due process concerns should toll
the statute of limitations in the Petitioner’s case and remanded the case for an evidentiary
hearing on the merits of the Petitioner’s petition, we again remand this case for an
evidentiary hearing on the merits. On remand, the post-conviction court should make
findings of fact and conclusions of law relating to the claims for relief in the petition.

                                        III. Conclusion

       For the aforementioned reasons, the judgment of the post-conviction court is
reversed and remanded for an evidentiary hearing on the merits of the Petitioner’s claims
for post-conviction relief.


                                                ____________________________________
                                                ROBERT L. HOLLOWAY, JR., JUDGE




       2
         See Whitehead v. State, 402 S.W.3d 615, 622–23 (Tenn. 2013), Holland v. Florida, 560 U.S.
631, 648–49 (2010).
                                              -4-
