                                                                                            05/08/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 28, 2017

                TERRY LEA BUNCH v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                 No. CC-2017-CR-80        Jill Bartee Ayers, Judge
                     ___________________________________

                            No. M2017-00246-CCA-R3-PC
                        ___________________________________


Petitioner, Terry Lea Bunch, appeals the summary dismissal of his petition for post-
conviction relief for being filed untimely. Petitioner alleged in his petition that defects in
the affidavit of complaint rendered his conviction void. Having reviewed the record and
the parties’ briefs, we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.

James R. Potter, Clarksville, Tennessee, for the appellant, Terry Lea Bunch.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur
Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       Petitioner pled guilty to driving under the influence (“DUI”) second offense and
was sentenced to 11 months and 29 days, to be suspended on probation after 45 days of
incarceration. The judgment was entered on June 1, 2015.

       Petitioner’s pro se petition for post-conviction relief has two file stamps of the
Montgomery County Circuit Court Clerk. One file stamp is dated December 8, 2016, and
the other stamp is dated January 20, 2017. There is a notation on the petition that states,
“move to circuit court.” In his brief on appeal, Petitioner states that he filed his petition
on December 8, 2016, in the Montgomery County General Sessions Court, and the
petition was subsequently re-filed in the Montgomery County Circuit Court. On January
23, 2017, the trial court entered a written order summarily dismissing the petition as time-
barred.

       In his petition, Petitioner alleged that defects in the affidavit of complaint rendered
the charging instrument and subsequent conviction void. The affidavit of complaint
contains a typewritten statement of the facts surrounding Petitioner’s arrest. At the
bottom of the typewritten statement, there is a handwritten note that states, “[Defendant]
has prior convictions for DUI with his last conviction on 7/12/2013.” Petitioner contends
that the statement does not conform to the requirements of Tennessee Code Annotated
section 5-10-411(b)(2) because it did not “disclose the time, place, and state of his
previous DUI conviction.”

       The State contends that Petitioner has failed to establish any grounds for due
process tolling of the statute of limitations and that none of the statutory exceptions that
toll the post-conviction one year statute of limitations apply. Therefore, the post-
conviction court properly dismissed the petition as untimely.

         Post-conviction relief is available when a “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.” T.C.A. § 40-30-103. A person in
custody under a sentence of a court of this state must petition for post-conviction relief
“within one 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 year of the date on which
the judgment becomes final.” Id. § 40-30-102(a). “The statute of limitations shall not be
tolled for any reason, including any tolling or saving provision otherwise available at law
or equity.” Id. Moreover, “[t]ime is of the essence of the right to file a petition for post-
conviction relief or motion to reopen established by this chapter, and the one[ ]year
limitations period is an element of the right to file the action and is a condition upon its
exercise.” Id. If it plainly appears on the face of the post-conviction petition that the
petition was filed outside the one year statute of limitations or that a prior petition
attacking the conviction was resolved on the merits, the post-conviction court must
summarily dismiss the petition. Id. § 40-30-106(b). “The question of whether the post-
conviction statute of limitations should be tolled is a mixed question of law and fact that
is . . . subject to de novo review.” Bush v. State, 428 S.W.3d 1, 16 (Tenn. 2014) (citing
Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011)).

        Tennessee Code Annotated section 40-30-102(b) provides three exceptions to the
statute of limitations for petitions for post-conviction relief: (1) claims based on a final
ruling of an appellate court establishing a constitutional right not recognized as existing
at the time of trial and given retroactive effect by the appellate courts; (2) claims based
upon new scientific evidence establishing that the petitioner is actually innocent of the
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conviction offense; and (3) claims seeking relief from a sentence that was enhanced
because of a previous conviction and the previous conviction was later held to be invalid.
T.C.A. §§ 40-30-102(b)(1)-(3).

        In addition to the statutory exceptions, our supreme court has held that due process
principles may require tolling the statute of limitations. See Whitehead v. State, 402
S.W.3d 615, 622-23 (Tenn. 2013). To date, our supreme court “has identified three
circumstances in which due process requires tolling the post-conviction statute of
limitations” (1) when the claim for relief arises after the statute of limitations has expired;
(2) when the petitioner’s mental incompetence prevents him from complying with the
statute of limitations; and (3) when the petitioner’s attorney has committed misconduct.
Id. at 623-24. To succeed upon such a claim, a petitioner must show “(1) that he or she
had been pursuing his or her rights diligently, and (2) that some extraordinary
circumstance stood in his or her way and prevented timely filing.” Id. at 631 (citing
Holland v. Florida, 560 U.S. 631, 648-49 (2010)).

        Petitioner concedes that his petition for post-conviction relief was filed outside of
the one year statute of limitations. Petitioner does not argue nor does the record show
that any of the statutory exceptions or any of the grounds set out in Whitehead apply to
his case. Instead, Petitioner asserts generally that the trial court lacked subject matter
jurisdiction, and that his challenge “may be raised at any time.” This allegation does not
satisfy any of the available grounds for due process tolling of the statute of limitations.

       Moreover, Petitioner’s claim, even if timely, would not entitle him to relief under
the Post-Conviction Procedure Act. While both the state and federal constitutions
guarantee an accused the right to be informed of the nature and cause of the accusation
against him, neither creates a right to a charging instrument free from defect. See State v.
Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (recognizing “that an indictment need not
conform to traditionally strict pleading requirements”). To satisfy constitutional
requirements, a charging instrument must “‘1) provide notice to the accused of the
offense charged; 2) provide the court with an adequate ground upon which a proper
judgment may be entered; and 3) provide the defendant with protection against double
jeopardy.’” State v. Lindsey, 208 S.W.3d 432, 438 (Tenn. Crim. App. 2006) (quoting
Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000)). Petitioner’s specific contention – that
the charging instrument fails to comply with the requirements for charging an enhanced
DUI under Tennessee Code Annotated section 55-10-411(b)(2) – alleges only a statutory
violation rather than a constitutional violation. See Kenneth DeWayne Johnson v. State,
No. M2013-02491-CCA-R3-PC, 2014 WL 3696268, at *3 (Tenn. Crim. App. July 24,
2014) (citing T.C.A. § 40-30-103) (holding that a statutory defect in a charging
instrument did not raise a cognizable claim for post-conviction relief), perm. app. denied
(Tenn. Nov. 19, 2014). Petitioner’s guilty plea waived all non-jurisdictional defects in
                                             -3-
the charging instrument. See State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).
Petitioner is not entitled to relief.

                                   CONCLUSION

      Based on the foregoing, we affirm the judgment of the post-conviction court.


                                 ____________________________________________
                                 THOMAS T. WOODALL, PRESIDING JUDGE




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