        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 19, 2010

        ROKISHA LASHIA ALDERSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                      No. 2007-A-708      Seth Norman, Judge




               No. M2010-00896-CCA-R3-PC - Filed November 30, 2010


The Petitioner, Rokisha Lashia Alderson, appeals the Davidson County Criminal Court’s
summary dismissal of her petition for post-conviction relief. The post-conviction court found
that the petition was barred by the statute of limitations. On appeal, she argues that the
statute of limitations was tolled because she was misled by prison officials about her minority
status. After our review of the record, we reverse the judgment of the post-conviction court
summarily dismissing the petition and remand for an evidentiary hearing on the timeliness
of the petition.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
D. K ELLY T HOMAS, J R., JJ., joined.

Rokisha Lashia Alderson, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                         OPINION

                                   Factual Background
       In March 2007, a Davidson County grand jury charged the sixteen-year-old Petitioner
with two counts of first-degree murder, two counts of felony murder, two counts of attempted
especially aggravated robbery, one count of attempted first degree murder, and one count of
aggravated assault. On November 1, 2007, pursuant to a negotiated plea agreement, the
Petitioner pleaded guilty to two counts of felony murder and one count of attempted first
degree murder and received a sentence of life plus fifteen years in the Department of
Correction.1 The Petitioner turned eighteen years old on November 23, 2008.

       On January 11, 2010, the Petitioner filed2 a petition for post-conviction relief, alleging
that: (1) her guilty plea was involuntarily entered; (2) her conviction was based on use of a
coerced confession; (3) her conviction was based on use of evidence gained pursuant to an
unconstitutional search and seizure; (4) her conviction was based on use of evidence obtained
pursuant to an unlawful arrest; (5) her conviction was based on a violation of the privilege
against self-incrimination; and (6) she received the ineffective assistance of counsel. In her
petition, she contended that the the petition was not time-barred due to her minority status
which tolled the limitations period:

        Petitioner was a juvenile at the time she took the plea and when she arrived at
        the Tennessee Prison for Women she asked the officers including legal aids
        [sic] about her legal options and she was told that she could not file her post-
        conviction until she was out of juvenile safe keeping. When the [P]etitioner
        was released out on the main compound she tried to get help with her post-
        conviction [sic] but she did not understand how to go about doing it properly.
        She did finally find someone to help her with understanding how to fill the
        form out and that is what she has done at this time. The [P]etitioner has a very
        hard time understanding the process and the questions in the post-conviction
        petition due to the fact she has a low education level. She has a reading level
        of 2nd grade. She has tried to get someone to help her but she couldn’t until
        now and the aid [sic] can only provide her with assistance and not legal advice.

      On January 27, 2010, the post-conviction court dismissed the Petitioner’s petition as
time-barred, finding as follows:

               The Petitioner moves the [c]ourt to consider her Petition in spite of its
        untimely filing. She argues that she should be permitted to proceed in the
        matter based on her being a juvenile at the date upon which the plea was


        1
          The judgment forms in this case show an entry date of January 24, 2008. There is no “file-stamp”
reflected on the forms.
        2
           The petition reflects that the Petitioner delivered the petition to prison authorities on November
22, 2009. See Tenn. R. Crim. P. 49(d) (“mailbox rule”). This date is within one year from the date the
Petitioner reached the age of majority.

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       entered. The Petitioner contends that her youth, coupled with her low level of
       education, prevented her from being able to present her Petition in a timely
       manner. Furthermore, she claims that officers and legal aides advised her that
       she could not file her [p]etition until she was out of juvenile supervision and
       released to the main compound at the Tennessee Prison for Women.

              A similar claim was presented in Stewart v. State, 95 S.W.3d 229
       (Tenn. Crim. App. 2002), wherein the petitioner argued that his minority
       rendered him “‘legally disabled’ to exercise his rights under the post-
       conviction statutes.” Id. at 230. The Court of Criminal Appeals held that
       pursuant to T.C.A. 37-1-134(a), the juvenile transfer statutes effectively
       convert a juvenile defendant’s legal status to that of an adult, thus divesting
       that defendant the benefit of statutes expressly applicable to children. Id. at
       232-33; Colyer v. State, 577 S.W.2d 460, 463 (Tenn. 1979).

               Juveniles who have been transferred to adult courts may successfully
       toll the limitations period, however, there must be a prima facie showing of
       incompetence in order to do so. State v. Nix, 40 S.W.3d 459, 464 (Tenn.
       2001). However, to make such a showing “requires specific factual allegations
       that demonstrate the Appellant’s inability to manage his personal affairs or
       understand his legal rights and abilities.” Id. The fact that the Petitioner was
       a minor at the time the plea was entered is not sufficient to make such a
       showing of incompetence, thus the statute of limitations may not be tolled
       based on this contention. Stewart, 95 S.W.3d at 233.

This appeal followed.

                                            Analysis
       First, we note that the Petitioner’s notice of appeal was filed almost four months after
the post-conviction court dismissed her petition. Therefore, her notice of appeal was
untimely. See Tenn. Code Ann. § 40-30-116; Tenn. R. App. P. 4(a). Nevertheless, in the
interest of justice, we elect to address the post-conviction court’s summary dismissal of the
petition as time-barred.

        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 from the
date on which the judgment becomes final. See Tenn. Code Ann. § 40-30-102(a). If the
petition is not filed within one year, consideration of the petition by the post-conviction court
is barred. Id. It is apparent from the record in this case that the petition was not filed within

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the time allowed by the statute of limitations. The pleading also does not allege any grounds
which would provide an exception to the statute of limitations. See Tenn. Code Ann. §
40-30-102(b).

        We agree with the post-conviction court that the statute of limitations is not tolled
simply by the Petitioner’s minority status without proof of further disability. See Stewart v.
State, 95 S.W.3d 229, 233 (Tenn. Crim. App. 2002). However, this correct statement of the
law does not adequately address the Petitioner’s allegations. The precise issue presented by
the Petitioner is whether she was misled by prison authorities to believe that her minority
status prevented her from filing a petition or tolled the limitations period, thereby, entitling
her to equitable tolling of the filing period.

        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), the Tennessee Supreme Court held
that due process may require tolling of the statute of limitations for filing a post-conviction
petition where the petitioner may have been deprived by his counsel of a reasonable
opportunity to seek post-conviction relief. 44 S. W.3 d at 467. In Williams, the petitioner
was convicted of first degree murder and sentenced to life imprisonment in 1993. Id. at 465.
On January 9, 1995, his conviction was affirmed by the Court of Criminal Appeals. Id.
Thereafter, trial counsel terminated representation. “The [petitioner] averred that his trial
counsel failed to notify him of counsel’s withdrawal from the case, or to explain to him his
rights for filing a pro se petition to” the Tennessee Supreme Court. Id. Trial counsel filed
a formal motion to withdraw on October 18, 1995, in which trial counsel sought permission
for the petitioner to proceed with a delayed appeal to the Tennessee Supreme Court. Id. at
465-66. The trial court denied the request. Id. at 466. On November 8, 1995, trial counsel
filed an application for permission to appeal to the Tennessee Supreme Court, which was
denied as untimely. Id. Thereafter, on October 24, 1996, the petitioner, proceeding pro se,
filed a petition for post-conviction relief. Id. The petition was dismissed by the
post-conviction court without a full evidentiary hearing. Id. at 465. Although the petition
was filed beyond the statutory limitations period, our supreme court remanded the case to the
post-conviction court to determine whether due process considerations tolled the statute of
limitations based on counsel’s actions. Id. at 467.

        In the instant case, the Petitioner avers that she was misled by prison officials to
believe that she could not file a post-conviction petition because of her juvenile status. At
this point, we also feel constrained to note that the Petitioner did deliver her post-conviction
petition to prison authorities within one year from the date she reached majority age and that
she appears to be grossly uneducated. While Williams addressed possible attorney
misrepresentation, we conclude that the same rationale applies to possible misrepresentation
by prison officials. We conclude that the post-conviction court erred in dismissing the
petition without conducting a hearing to make determinations similar to those outlined in

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Williams. See Eric Wright v. State, No. W2001-00386-CCA-R3-PC, 2001 WL 1690194, at
*2 (Tenn. Crim. App., Jackson, Dec. 17, 2001). Therefore, the post-conviction court’s
summary dismissal of the petition is reversed, and this case is remanded for an evidentiary
hearing

       to determine (1) whether due process tolled the statute of limitations so as to
       give the [Petitioner] a reasonable opportunity after the expiration of the
       limitations period to present [her] claim in a meaningful time and manner; and
       (2) if so, whether the [Petitioner’s] filing of the post-conviction petition [on
       November 22, 2009] was within the reasonable opportunity afforded by the
       due process tolling.

Williams, 44 S.W.3d at 471.

                                       Conclusion
      Based upon the foregoing reasons, we reverse the post-conviction court’s summary
dismissal of the Petitioner’s petition for post-conviction relief and remand for further
proceedings consistent with this opinion.




                                                   _________________________________
                                                   DAVID H. WELLES, JUDGE




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