                                                                                         05/06/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 27, 2019

                DENNIS R. BOLZE v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Sevier County
              No. 8611    Steven Wayne Sword, Judge, by Interchange
                      ___________________________________

                            No. E2018-01231-CCA-R3-PC
                       ___________________________________

The Petitioner, Dennis R. Bolze, appeals the dismissal of his motion to vacate his state
convictions, which the trial court treated as a petition for post-conviction relief and
determined to be time-barred. After review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and TIMOTHY L. EASTER, JJ., joined.

Dennis R. Bolze, Coleman, Florida, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; and James B. Dunn, District Attorney General, for the
appellee, State of Tennessee.


                                       OPINION

                                         FACTS

       In May 2001, the Petitioner was indicted by the Sevier County Grand Jury on
sixteen counts of failure to file sales tax reports. He was released on bond. His July 2,
2001 arraignment sheet showed that he “[a]ppeared [without] counsel, but will retain
[c]ounsel, 15 days allowed[.]”

       On August 28, 2001, the Petitioner signed a waiver of jury trial and entry of guilty
plea. The waiver shows the Petitioner was acting pro se. The plea provided that the
Petitioner would be sentenced to two years for each Class E felony conviction in Counts
1 through 4, with one count served consecutively, for an aggregate sentence of six years’
probation. The remaining counts were nolle prosequied. The trial court accepted the plea
and entered judgments, the top right of each judgment form indicating that the Petitioner
was pro se. In August 2003, the Petitioner, then represented by counsel, successfully
moved for unsupervised probation.

       While serving his state probation, however, the Petitioner was conducting a 21-
million dollar Ponzi scheme between 2002 and 2008, “affecting over one hundred victims
in the United States and Europe and resulting in a multi-million dollar loss to fraud
victims.” United States v. Bolze, 444 Fed. Appx. 889, 890 (6th Cir. 2012). Represented
by counsel, the Petitioner ultimately entered an open guilty plea to three counts of wire
fraud and three counts of money laundering, and the district court imposed a prison
sentence of 327 months. Id. At his federal sentencing hearing, the Petitioner raised
multiple challenges to his Presentence Investigation Report (“PSR”) but significantly did
not challenge the enhancement of his sentence based on his prior criminal history.
United States v. Dennis R. Bolze, No. 3:09-CR-93, 2010 WL 2927418, at *2 n.5 (E.D.
Tenn. July 23, 2010).

        The Petitioner took no action on his state court convictions until July 31, 2017,
when he filed the instant “Motion To Vacate Judgment, Expunge Conviction And Seal
Record” in the Sevier County Circuit Court. In his motion, the Petitioner claimed that
during the hearing on August 28, 2001, which was for the purpose of requesting more
time to retain a lawyer or to have one appointed for him, the State approached him and
offered a six-year plea agreement.1 The Petitioner said that he accepted the plea without
consulting with a lawyer concerning its “disadvantages or consequences,” and that the
court did not inquire into his lack of counsel or confirm that he had agreed to waive his
right to an attorney.

       Based on these assertions, the Petitioner argued that the structural error of the
court’s failing to make a proper inquiry into his self-representation undermined his state
convictions. He, accordingly, asked that his state convictions be vacated. He further
requested that the court “dismiss the case, expunge and seal the record in the interest of
justice” because “the passage of time, faded memories, the loss of records and evidence,
the where abouts [sic] of witnesses, and other factors” would impede his ability to defend
himself after sixteen years.

       On December 19, 2017, the Petitioner moved to have the original trial judge
recuse himself, and the motion was granted. All the other judges in the Fourth Judicial
       1
           The Defendant offers a more ominous version of events in his brief on appeal: “The state
prosecutor offered [the Defendant] a plea bargain. He stipulated that [the Defendant] must accept this
one-time offer without any consultations with a lawyer concerning the advantages and disadvantages of
the plea offer. This included the future consequences of a felony conviction.” (Brief pg. 2)
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District recused themselves as well, and the Tennessee Supreme Court appointed a judge
from another district to preside over the case.

       On April 9, 2018, the court treated the Petitioner’s motion to vacate judgment,
expunge conviction, and seal the record as one for post-conviction relief and dismissed
the motion as being filed outside the one year statute of limitations for post-conviction
petitions. The Petitioner filed a motion to reconsider on April 30, 2018, in which he
asserted that Tennessee Code Annotated section 40-30-102(b) provided for tolling of the
statute of limitations when a “judgment is a product of a fatally ‘unique constitutional
defect’ of Due Process[.]” On June 14, 2018, the court denied the motion, finding no
basis for tolling the statute of limitations.

                                       ANALYSIS

        As we understand his argument, the Petitioner asserts that his state court
convictions are facially void because the trial court failed to follow Tennessee Rule of
Criminal Procedure 44 before accepting his pro se guilty pleas and, thus, he suffered
uncounseled convictions that were used to enhance his federal sentence. He additionally
asserts that the “structural trial errors that occurred through the complete deprivation of
trial counsel” fall within the exceptions for reviewing post-conviction claims filed outside
of the one-year statute of limitations.

        We initially note that the Petitioner’s assertion that his state convictions are
facially void lacks merit. First, the Petitioner’s claim that the court did not adhere to the
requirements of Tennessee Rule of Criminal Procedure 44 appears to fail because of lack
of proof regarding his indigency at the time of his state court pleas. The record indicates
that the Petitioner intended to hire his own attorney and was given 15 days to do so. At
his next appearance, he entered his guilty pleas pro se. Rule 44 provides that “[e]very
indigent defendant is entitled to have assigned counsel in all matters necessary to the
defense and at every stage of the proceedings, unless the defendant waives counsel.”
Tenn. R. Crim. P. 44(a) (emphasis added). This court has held that “‘the failure to retain
counsel by a defendant who can afford an attorney is properly regarded as a waiver of the
right to the assistance of counsel.’” State v. Earley Story, No. W2001-00529-CCA-R3-
CD, 2002 WL 31257803, at *6 (Tenn. Crim. App. Sept. 13, 2002), perm. app. denied
(Tenn. Jan. 27, 2003) (quoting State v. Dubrock, 649 S.W.2d 602, 606 (Tenn. Crim. App.
1983)). Thus, Rule 44 is not plainly applicable in this case as it is not clear that the
Petitioner was indigent.

        Second, the Petitioner’s claim requires proof outside the record. Our supreme
court has said that “this [c]ourt’s prior decisions stand for the proposition that a judgment
is entitled to a presumption of regularity and is not void unless a defect appears on the
                                            -3-
face of the judgment.” Hickman v. State, 153 S.W.3d 16, 25 (Tenn. 2004). In this case,
the Petitioner’s judgments are valid on their face, and the record shows the Petitioner
proceeded pro se. A defendant has the right to counsel, as well as the alternative right to
self-representation. State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984). Even
assuming that the Petitioner was indigent, the limited record is silent on the issue of
whether the trial court properly ascertained that the Petitioner made an informed decision
to represent himself as required by Tennessee Rule of Criminal Procedure 44. Thus, the
Petitioner’s claim requires findings of fact not available in the record.

       Moreover, regardless of whether the Petitioner’s judgments are void or merely
voidable, he is not entitled to relief via post-conviction because his claim is time-barred.
Under the Post-Conviction Procedure Act, a claim for post-conviction relief must be filed
“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 the petition shall be barred.” Tenn.
Code Ann. § 40-30-102(a).

       The post-conviction statute contains a specific anti-tolling provision:

               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-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. Except as specifically provided in subsections (b) and (c), the
       right 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.

Id.

        Subsection (b) of the statute sets forth the three narrow exceptions under which an
untimely petition may be considered, none of which is applicable in this case. The
Petitioner appears to concede that none of the exceptions in Tennessee Code Annotated
section 40-30-102(b) are applicable to him but asserts that federal law “would override
[s]tate law where tensions between the two exist regarding the bedrock
jurisdicitonal/procedural [sic] elements of an accused right to counsel and waiver to right
of counsel inquiry.” He relies on Ake v. Oklahoma, 470 U.S. 68 (1985), in support of
this assertion. However, Ake is not applicable in this case.



                                            -4-
        Ake involved a direct appeal of a state conviction, not a collateral attack as is the
case here. In Ake, the Oklahoma state court failed to consider the defendant’s claim that
he was improperly denied expert services because his claim did not meet the Oklahoma
plain error standard. Id. at 74-75. The Ake court noted that one part of the Oklahoma
plain error standard involved application of federal constitutional law and concluded that
this gave federal courts jurisdiction to hear the claim “when resolution of the state
procedural law question depends on a federal constitutional ruling, the state-law prong of
the court’s holding is not independent of federal law, and [federal court] jurisdiction is
not precluded.” Id. Distinguishably, here, only subsection (b)(1) of Tennessee Code
Annotated section 40-30-102 requires a predicate application of constitutional law and
then only if such is “a constitutional right that was not recognized as existing at the time
of trial, [and] if retrospective application of that right is required.” The right to counsel is
not a newly-recognized right; therefore, the factual scenario of Ake is not applicable here.

       In addition to the statutory bases, principles of due process may allow for the
tolling of the statute of limitations in limited circumstances. See Williams v. State, 44
S.W.3d 464, 468 (Tenn. 2001); Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001);
Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000); Burford v. State, 845 S.W.2d 204, 208
(Tenn. 1992). To determine whether due process tolling applies, courts should examine:
(1) when the limitations period would normally have begun to run; (2) whether the
grounds for relief arose after the limitations period normally would have commenced;
and (3) if the grounds are later-arising, would a strict application of the limitations period
deny the petitioner a reasonable opportunity to present the claim. Sands v. State, 903
S.W.2d 297, 301 (Tenn. 1995).

        In Whitehead v. State, 402 S.W.3d 615 (Tenn. 2013), our supreme court discussed
due process in a post-conviction context. The court identified three scenarios in which
due process requires tolling the post-conviction statute of limitations. Id. at 623. The
first of the three circumstances involves claims for relief that arise after the statute of
limitations has expired. Id. The second due process basis for tolling the statute of
limitations involves prisoners whose mental incompetence prevents them from
complying with the statute’s deadline. Id. at 624. The third exception is when attorney
misconduct necessitates the tolling of the statute of limitations. Id. The court
emphasized that due process tolling “must be reserved for those rare instances where—
due to circumstances external to the party’s own conduct—it would be unconscionable to
enforce the limitation period against the party and gross injustice would result.” Id. at
631-32.

      The Petitioner contends that he is entitled to due process tolling because he was
unaware that the trial court did not conduct the required colloquy for self-representation
and because he was not informed that his state convictions could later be used to enhance
                                             -5-
a subsequent sentence. However, both of these claims were available to the Petitioner in
a post-conviction action the day he walked out of the courtroom after pleading guilty.
Lack of knowledge or late discovery of a claim does not make it “later arising.” See, e.g.,
Brown v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996). The Petitioner has
shown no diligence regarding his claims. Almost 16 years elapsed between the
Petitioner’s state plea and when he filed the motion to vacate judgment. Even pretending
that the Petitioner’s claim for relief did not arise until he learned that his state convictions
were being used to enhance his federal sentence, he waited approximately seven years
after his federal conviction before filing the motion. Given that the Petitioner was not
impeded by anything beyond his control in pursuing a collateral challenge to his state
convictions, other than a lack of knowledge, he cannot show entitlement to due process
tolling of the statute of limitations. Accordingly, the post-conviction court properly
denied the motion.

                                      CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.




                                               ____________________________________
                                               ALAN E. GLENN, JUDGE




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