        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 12, 2014

                MICHAEL MORRIS v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Davidson County
                  No. 2004-I-991       Monte Watkins, Judge



               No. M2013-01652-CCA-R3-PC - Filed April 2, 2014


Petitioner, Michael Morris, was indicted by the Davidson County Grand Jury in July of 2004
for possession of less than .5 grams of cocaine with the intent to sell. Petitioner pled guilty
to the charge in September of 2004 in exchange for a suspended four-year sentence and drug
treatment. In September of 2012, Petitioner filed a pro se petition for post-conviction relief.
The post-conviction court dismissed the petition as time-barred. Petitioner appeals. After
a review of the record, we determine that the post-conviction court properly dismissed the
petition for post-conviction relief as time-barred by the statute of limitations. Accordingly,
the judgment of the post-conviction court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.

Ryan K. H. Nevin, Nashville, Tennessee, for the appellant, Michael Morris .

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General, and Roger Moore, Assistant
District Attorney General, for the appellant, State of Tennessee.


                                         OPINION

                                    Factual Background

      Petitioner was indicted by the Davidson County Grand Jury in July of 2004 for
possession of less than .5 grams of cocaine with the intent to sell. In September of 2004,
Petitioner pled guilty to the charge. As a result of the guilty plea, Petitioner received a four-
year sentence. The trial court suspended the sentence, ordering Petitioner to serve the time
on probation. The trial court also ordered Petitioner to drug treatment at the “V.A.” as part
of the sentence. The judgment form also indicates that “GS 187019, GS 187021, and SC
580058” are dismissed.

       On September 24, 2012, Petitioner filed a pro se petition for post-conviction relief.1
In the petition, Petitioner claimed that his “previous prior conviction resulted in improper
sentences and was improperly used to enhance [his] sentence in this case to career.”
Additionally, Petitioner claimed that his guilty plea did not waive the right to seek post-
conviction relief; that his guilty plea was unknowing and involuntary; and that he was not
notified of the right of self-incrimination, among other things. Confusingly, Petitioner
references both his cocaine conviction and aggravated robbery conviction in the
memorandum that supports the petition for post-conviction relief.

       On November 15, 2012, the post-conviction court entered an order indicating that
“Petitioner has filed another pro se petition for post-conviction relief alleging the same
matters that have previously been ruled on by this Court.” The post-conviction court
dismissed the petition.2

      On February 22, 2013, Petitioner filed a notice of appeal. On June 5, 2013, the post-
conviction court appointed counsel for appeal purposes.




        1
          In the petition, Petitioner affirmatively states that he previously filed a petition for post-conviction
relief and the date of the result was “5-13-10” and the “CCA affirmed the lower courts decision on 1-6-12.”
We have surmised that this post-conviction petition and appeal pertained to Petitioner’s conviction for
aggravated robbery, rather than his conviction for possession of cocaine. See Michael V. Morris v. State, No.
M2010-02069-CCA-R3-PC, 2012 WL 76905 (Tenn. Crim. App., at Nashville, Jan. 6, 2012), perm. app.
denied, (Tenn. Apr. 20, 2012). As such, this is the first post-conviction petition that we can determine was
filed with regard to Petitioner’s conviction for possession of cocaine. It appears the post-conviction court
was somewhat confused about the content of the prior petition for post-conviction relief and whether it
related to the conviction for possession of cocaine at issue herein.

        2
         The order indicates that on August 25, 2009, the post-conviction court entered an order dismissing
Petitioner’s first petition for post-conviction relief on the basis that it was time-barred. This order does not
appear in the record. There does not appear to have been an appeal from this denial, and it is not clear if this
petition was related to the case of Michael V. Morris v. State.

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                                           Analysis
                                Timeliness of Notice of Appeal

        On appeal, Petitioner challenges the dismissal of his petition for post-conviction relief.
We must begin our analysis by addressing the timeliness of the notice of appeal. We note,
as pointed out by the State, that Petitioner’s notice of appeal was filed more than two months
after the order of summary dismissal of the petition was filed.

        Petitioner claimed in his notice of appeal that it was untimely because the trial court
did not “post” the order until February 15, 2013, and Petitioner did not receive the order until
February 20, 2013. However, Petitioner failed to move this Court to waive the timeliness of
the notice of appeal. Despite this failure, we acknowledge that the notice of appeal in
criminal cases is not jurisdictional, and can be waived by this Court “in the interests of
justice.” Tenn. R. App. P. 4(a). We have decided to waive the timely notice of appeal.

                      Timeliness of Petition for Post-conviction Relief

       On appeal, Petitioner posits that the post-conviction court improperly dismissed the
petition for post-conviction relief as time-barred by the statute of limitations. The State
argues that the petition was filed outside the statute of limitations, and due process does not
warrant the tolling of the limitations period. Therefore, this Court should affirm the
summary dismissal of the petition.

        Under the Post-Conviction Procedure Act, a petition for post-conviction relief must
be filed 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 became final. T.C.A. § 40-30-102(a). Unless one of the enumerated exceptions
applies, a court does not have jurisdiction to consider an untimely petition. See T.C.A. § 40-
30-102(b). Tennessee Code Annotated section 40-30-102(b) states:

       (b) No court shall have jurisdiction to consider a petition filed after the
       expiration of the limitations period unless:

       (1) The 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. The petition
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States supreme court establishing a constitutional right that
       was not recognized as existing at the time of trial;



                                               -3-
       (2) The claim in the petition is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the petition seeks relief from a sentence that was
       enhanced because of a previous conviction and the 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, in which case
       the petition must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid.

        In the present case, the post-conviction court determined that the petition was filed
almost seven years to the day after the date of the final action by the highest court to which
an appeal was taken and thus well outside the statute of limitations. Petitioner fails to allege
any circumstances that prevented him from filing the petition in a timely fashion or any
situation that would require tolling of the statute of limitations. Of course, this Court may
consider an otherwise untimely petition if applying the statute of limitations would deny due
process. Seals v. State, 23 S.W.3d 272, 278-79 (Tenn. 2000). Due process requires the
opportunity for the “presentation of claims at a meaningful time and in a meaningful
manner.” Id. This is dependent on “whether the time period provides an applicant a
reasonable opportunity to have the claimed issue heard and determined.” Id. at 277-78
(quoting Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)). In Whitehead v. State, 402
S.W.3d 615, 623-24 (Tenn. 2013), the Tennessee Supreme Court identified three
circumstances in which due process requires tolling the limitations period: (1) claims for
relief that arise after the statute of limitations has expired; (2) claims involving prisoners
whose mental incompetence prevents them from complying with the procedural deadline; and
(3) claims in which attorney misconduct resulted in the delay in filing the petition. Petitioner
argues that he was unaware that his conviction could be used to enhance punishment in
subsequent cases. This is not one of the circumstances that would require tolling of the
statute of limitations.

      Consequently, the post-conviction court correctly determined that the petition was
untimely.




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                                Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                  ___________________________________
                                  JERRY L. SMITH, JUDGE




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