       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                MIDDLE DIVISION AT NASHVILLE

                              January 15, 2013 SESSION

          TIMOTHY WILLIAM JELKS v. STATE OF TENNESSEE

   APPEAL FROM THE JUDGMENT OF THE SUMNER COUNTY CIRCUIT
                             COURT
                No. 239-2012 Dee David Gay, Judge
                         ______________________________

                    No. M2012-00984-CCA-R3-PC- Filed July 30, 2013
                         ______________________________




Timothy William Jelks seeks post-conviction relief from a guilty plea and conviction for
aggravated child neglect, a Class A felony. Tenn. Code Ann. § 39-15-402. Jelks claims his
counsel failed to advise him properly during his plea bargain and asserts the one (1) year
statute of limitations should be tolled due to new constitutional rights established by the
United States Supreme Court. Finding no merit to the assertions of the appellant, we affirm
the judgment of the Circuit Court in all aspects.

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


P AUL G. S UMMERS, Sr. J., delivered the opinion of the Court in which JOSEPH. M.
T IPTON, P.J., concurred in results, and JAMES C URWOOD Witt, Jr., J., joined .
Robert E. Cooper, Jr. Attorney General and Reporter; Clark B. Thorton, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; Sallie Wade
Brown, Assistant District Attorney General for the appellee, State of Tennessee .

Mr. Eric Scott Mauldin, Gallatin, Tennessee, for appellant, Timothy William Jelks.


                                  I. Standard of Review

       The Supreme Court of Tennessee has ruled that the standard of review for a criminal
appeal is determined by the nature of the appeal:
              A trial court’s findings of fact are conclusive unless the evidence in the
       record preponderates against those findings. Where appellate review is of
       purely factual issues, the appellate court will not reweigh or reevaluate the
       evidence.

               Review of a trial court’s application of law to the facts of a particular
       case is de novo, with no presumption of correctness. Cases that involve mixed
       questions of law and fact are subject to de novo review.

       State v. Burns, 6 S.W. 3d 453, 461 (Tenn. 1999).

The case before this Court requires application of law to the facts and is de novo with no
presumption of correctness.

                            II. Facts and Procedural Background

        On March 8, 2005, petitioner, Timothy William Jelks, then represented by counsel,
entered a best interests plea of guilty to a charge of aggravated child neglect, a Class A
felony. See, Tenn. Code Ann. § 39-15-402. Petitioner received a minimum sentence of 15
years at 100%. See, Tenn. Code Ann. § 40-35-501. The offense was committed in 2002.
Seven years after his conviction, on April 2, 2012, petitioner filed a pleading styled “motion
to reopen post-conviction relief…” in the Sumner County Circuit Court. The motion was
improperly titled because the petitioner had not previously filed a motion for post-conviction
relief. Petitioner also filed other motions requesting appointment of counsel based on
indigency.

       Jelks stated he “entered his plea on the advice of his trial attorney” and pled guilty in
2005 to his 2002 crime of aggravated child neglect, a Class A felony, in exchange for a
sentence of 15 years at 100%. No previous appeals or motions were filed.

       Jelks signed a plea agreement in 2005 which indicated the competence of, and his
satisfaction with, his counsel. Jelks now insists his court appointed counsel was ineffective
by failing to accurately advise him regarding minimum and maximum sentence lengths
versus his plea bargain of 15 years at 100% and, as a result of ineffective counsel, his plea
was not knowing and voluntary. See, Tenn. R. Crim. P. 11(b)(2). Jelks appealed the original
ruling nor filed any motions during the seven years he has been incarcerated.

       On April 12, 2012, the trial court, without an evidentiary hearing, denied the
appellant’s motion for post-conviction relief based on the statute of limitations. The current
appeal followed, and petitioner was appointed counsel.


                                        III. Law and Analysis




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       The statute of limitations for filing a post-conviction petition is one year from the date
the judgment became final. See, Tenn. Code Ann. § 40-30-102(b) states:

              (b) No court shall have jurisdiction to consider a petition filed after the
              expiration of the limitations 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 the trial.

Tenn. Code Ann. § 40-30-102(b).

        Appellant’s claim for an exception to the statute of limitations relies upon Tennessee
Code Annontated section 40-30-102(b)(1) and the recognition of a new constitutional right
to effective counsel during plea bargaining, as declared by the United States Supreme Court
in Missouri v. Frye, 123 S. Ct. 1399 (2012). Justice Kennedy’s opinion in Frye explained:

       The reality is that plea bargains have become so central to the administration
       of the criminal justice system that defense counsel have responsibilities in the
       plea bargain process, responsibilities that must be met to render the adequate
       assistance of counsel that the Sixth Amendment requires in the criminal
       process at critical stages.

Frye, 132 S. Ct. at 1407

       Petitioner asserts the application of Frye retroactively by application of Teague v.
Lane, 488 U.S. 288 (1989). The relevant portion of Teague requires that the new rule
establish a “watershed rule” of criminal procedure that implicated the fundamental fairness
of the trial. Teague, 489 U.S. at 311. Because the merits of whether original counsel was
ineffective is dispositive, the court need not consider the impact of other issues, or
retrospective application of a new constitutional right and the impact of Teague analysis in
the application of Frye.

       The gravamen of petitioner's claim is that petitioner’s attorney was mistaken, and thus
ineffective, by advising him that aggravated child abuse was a 100% crime. Jelks asserts the
proper percentage for a Range I offender is 30%; and he would not have pled guilty had he
been properly advised. He asserts it would have been much better for him to go to trial and,
if found guilty, be sentenced to 15 years at 30%.


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        Jelks committed the offense in 2002. The statute in effect at the time states that “[a]
person commits the offense of child abuse or neglect” that results in serious bodily injury or
that is committed with a deadly weapon. Tenn. Code Ann. § 39-15-402(a)(2002).

       The offense of child abuse and neglect as defined by Tenn. Code Ann. § 39-
       15-401(a) (2002) is a single offense that may be committed by two courses of
       conduct: child abuse through injury or child abuse through neglect.

State v. Mateyko, 53 S. W.3d 666, 668 n.1 (Tenn. 2001).


       In 2002, the crime of child abuse and neglect was a single integrated crime without
differentiation of separate elements for abuse and neglect. If Jelks had been apprehended,
charged and found guilty of his crime in 2002, he would have been sentenced under then
current laws and would have a sentence at 100% which may or may not have been reduced
to 85% based on earned sentencing credits. A claim of inneffectiveness of counsel, even if
timely, would have been without merit because counsel properly advised Mr. Jelks regarding
the consequences of his actions.

       Jelks bases his argument on an October 24, 2008, Tennessee Attorney General
opinion, 08-168 (2008), which analyzed the 2005 amended version of Tennessee Code
Annontated section 40-35-501(i)(1) and said that a sentence for aggravated child neglect is
not required to be served at 100% and can be sentenced as a Range 1 standard offender.

        The 2008 Attorney General’s opinion does not apply to Mr. Jelks because he was not
sentenced under the 2005 amended version of Tennessee Code Annontated sections 40-35-
501(i)(1)-501(i)(2)(K). His plea was entered and he was sentenced under the 2002 version
of Tennessee Code Annontated section 39-15-402(a) (2002) which did not differentiate
between aggravated child abuse and aggravated child neglect. Mr. Jelks is not eligible for
relief merely by the fortuitous circumstances of a subsequent change in the law by the
legislature.

       The punishment for the single offense must be imposed with a release eligibility of
100% which may be reduced to no less than 85% on the application of earned sentencing
credits. Tenn. Code Ann. §§40-35-501(i)(1)-501(i)(2)(K).

        This Court is without the power or desire to question the legislature’s wisdom in
failing to accord retroactive effect to the later division of Mr. Jelks's offense into two separate
crimes. The record contains insufficient factual or legal basis for this Court to overturn a
seven year old conviction that is barred by the post-conviction statute of limitations.




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                                   IV. Conclusion

      Having carefully reviewed the record and based on the foregoing, we affirm the
judgments of the trial court.




                                                    _____________________________
                                                    PAUL G. SUMMERS, Senior Judge




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