        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 18, 2011

                 STATE OF TENNESSEE v. SONNY COULTER

                 Appeal from the Criminal Court for Davidson County
                    No. 2001-D-1971    Cheryl Blackburn, Judge




                  No. M2011-00533-CCA-R3-CO - Filed June 19, 2012


On January 10, 2002, the defendant, Sonny Coulter, pled guilty to one count of rape, and the
trial court sentenced him to eight years, to be served at 100%. The trial court entered a
corrected judgment in 2008 in which it set forth the defendant’s supervision for life
requirements. In 2011, the defendant filed a motion to “quash” the modified sentence,
alleging that he had not been advised of the supervision for life requirement when he pled
guilty. The trial court treated the motion as a petition for post-conviction relief that alleged
that the defendant did not knowingly and voluntarily enter his guilty plea. It then summarily
dismissed the petition after a hearing. On appeal, the defendant contends that the trial court
erred on multiple grounds when it denied his motion, each of which is discussed below.
After a thorough review of the record and applicable authorities, we affirm the judgment of
the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J. and J EFFREY S. B IVINS, J., joined.

Sonny Coulter, Albion, Pennsylvania, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                              I. Facts and Procedural History
        The facts underlying the defendant’s guilty plea are not contained in the record. The
record indicates that the defendant was indicted on charges of aggravated rape, and, on
January 10, 2002, he pled guilty to the lesser-included offense of rape. On March 11, 2002,
the trial court entered a judgment, sentencing the defendant to eight years, to be served as a
violent offender at 100%. On April 30, 2008, the trial court entered a corrected judgment,
reflecting the defendant’s sentence as eight years and stating in the notes section, “*corrected
on 4/30/08 to show lifetime supervision requirement.”

       On January 19, 2011, the defendant filed a motion to “quash” this sentence, arguing
that he was unaware of the lifetime supervision requirement at the time he entered his plea
of guilty. The trial court’s order on this motion reads, in part:

              This Court requested Defendant’s file from archives and has now
        reviewed the file and finds that Defendant’s challenge lacks merit.

               Defendant entered his guilty plea to the lesser included charge of rape
        on January 10, 2002. Although the Judgment Form did not explicitly state the
        lifetime supervision requirement, the Guilty Plea Petition, signed by Petitioner
        the same day he entered his plea sets forth that as part of his best interest plea,
        he would plead to the charge of rape, a B felony, for a sentence of 8 years at
        100% and that as part of the plea he would register as a sex offender and be
        subject to lifetime supervision. The portion regarding the registry and
        supervision, in fact, is marked with an asterisk (*) on the form. The lifetime
        supervision requirement was also addressed during the plea colloquy before
        the Court.

               However, since this requirement was not explicitly noted on the
        Judgment Form, this Court was presented with a Corrected Judgment form
        (not an Amended Judgment) on April 30, 2008. As noted at the bottom of the
        Corrected Judgment Form, this new form “corrected on 4/30/08 to show
        lifetime supervision requirement.”1 This requirement was not a new
        requirement; this supervision requirement was inadvertent[ly] omitted from the
        original Judgment Form signed on January 10, 2002.



        1
         The Court noted in a footnote that the Defendant appeared in court on July 1, 2008, when he moved
the Court to declare him indigent and waive his fines and court costs. The trial court stated that the archival
record reflected that the motion was granted and that a written order was issued the same day.

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              This Corrected Judgment Form did not add any requirements to
       Defendant’s sentence; th[u]s, the Court finds Defendant’s instant motion lacks
       merit and DENIES said motion.


        The trial court then noted that, because the defendant’s motion essentially argued that
he was unaware of the lifetime supervision requirement at the time that he pled guilty, it
would consider the motion as a post-conviction petition alleging that his guilty plea was not
knowingly and voluntarily entered. The trial court noted that the defendant’s motion, or
petition, was filed on January 19, 2011. The trial court found that the defendant entered his
plea on January 10, 2002, and, therefore, the post-conviction petition was filed well beyond
the one-year statute of limitations. The trial court further found that, even were it to consider
the date the corrected judgment was entered, April 30, 2008, the post-conviction petition was
still untimely filed. For these reasons, the trial court summarily dismissed the petition.

       It is from this judgment that the defendant now appeals.

                                         II. Analysis

        On appeal, the defendant contends that the trial court erred when it: (1) “altered” his
sentence by imposing the “further” judgment of lifetime supervision more than six years after
the original sentence had been imposed; and, (2) improperly considered his motion as a post-
conviction petition without appointing him counsel. He further asserts that his sentence is
illegal and, therefore, his judgment is void.

                                   A. Corrected Judgment

        The defendant contends that the trial court erred when it entered the corrected
judgment. He asserts that, in the corrected judgment, the trial court “[r]esentence[d]” him
by adding the supervision for life requirement while he was not present. He contends that
the trial court also reduced by two months the jail credit to which he was entitled.

       Upon our review of the record, we find absent the transcript from the guilty plea
hearing, wherein the trial court said it discussed with the defendant the supervision for life
requirements. Also absent from the record is the Guilty Plea Petition, signed by the
defendant, that purportedly sets forth that his sentence included a lifetime supervision
requirement. It is the duty of the appealing party to provide a record which conveys a fair,
accurate, and complete account of what transpired with regard to the issues forming the basis
of the appeal. Tenn. R. App. P. 24(b). “[I]n the absence of an adequate record on appeal,
we must presume that the trial court’s ruling was supported by the evidence.” State v. Bibbs,

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806 S.W.2d 786, 790 (Tenn. Crim. App. 1991).

       In this case, the defendant has failed to provide this Court with a complete record,
including the guilty plea petition and a transcript of the guilty plea hearing. As such, we
presume the trial court’s findings are correct. The trial court found that the defendant’s
guilty plea petition included the lifetime supervision requirement and found that this
requirement discussed this during the guilty plea hearing. The judgment originally entered
mistakenly omitted the lifetime supervision requirement, so the trial court entered a corrected
judgment that included this requirement. We conclude the trial court did not err when it
entered the corrected judgment.

        To the extent that the defendant complains about the trial court’s reduction of the
amount of jail credit he was afforded, we have previously held that there is no appeal as of
right from the trial court’s judgment regarding jail credits. State v. Michael L. Calandros,
No. E2004-02382-CCA-R3-CD, 2005 WL 1712389, at *2 (Tenn. Crim. App., at Knoxville,
June 23, 2005), no Tenn. R. App. P. 11 application filed. In that opinion we stated:

       Tennessee Rule of Appellate Procedure 3 states that a defendant can appeal as
       of right “from any judgment of conviction . . . from an order denying or
       revoking probation, and from a final judgment in a criminal contempt, habeas
       corpus, extradition, or post-conviction proceeding.” Tenn. R. App. P. 3(b).
       Therefore, the trial court’s denial of the defendant’s petition for pretrial credits
       is not included in the actions from which an appeal as of right may be taken.
       See State v. Greg Smith, No. E2003-01092-CCA-R3-CD, 2004 WL 305805
       (Tenn. Crim. App., at Knoxville, Feb. 18, 2004).


Id. The defendant is not entitled to relief on this issue.




                                B. Post-Conviction Petition




       The defendant next contends that the trial court erred when it considered his motion
as a post-conviction petition without appointing him counsel. After denying the defendant’s
motion upon the facts alleged therein, the trial court stated that the motion would not be
timely filed, even if treated as a petition for post-conviction relief. It then summarily
dismissed the petition. We discern no error in the trial court’s decision.

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       A trial court may, in some instances, consider a motion such as the one filed by the
defendant as a petition for post-conviction relief. See e.g., State v. Shawn Meritt, No.
W2011-00662-CCA-R3-CD, 2011 WL 4865156, at *1 (Tenn. Crim. App, at Jackson, Oct.
13, 2011), no Tenn. R. App. P. 11 application filed. Further, this Court has previously stated:

       The Rules of Post-Conviction Procedure provide that if the trial court
       determines that “a colorable claim is not asserted by the petition, the court
       shall enter an order dismissing the petition or an order requiring that the
       petition be amended.” Tenn. R. Sup.Ct. 28, § 6(B)(4)(a) (emphasis added).
       Thus, when a trial court determines that a petitioner has not presented a
       colorable claim or that a claim has been waived, the court may, in its
       discretion, summarily dismiss the petition without the appointment of counsel.


Harris v. State, 996 S.W.2d 840, 841-42 (Tenn. Crim. App. 1999).




        Tennessee Code Annotated section 40-30-102 is the controlling authority with regard
to the statute of limitations for post-conviction relief petitions. It provides:

       [A] person in custody under a sentence of a court of this state must petition for
       post-conviction relief under this part 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. 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. . . .


Id.




       A trial court’s judgment becomes final thirty days after its entry unless a timely notice
of appeal or specified post-trial motion is filed. See T.R.A.P. 4(a), (c). The one-year statute
of limitations for filing a post-conviction petition is jurisdictional. See T.C.A. § 40-30-
102(b)(2006) (“No court shall have jurisdiction to consider a petition filed after the
expiration of the limitations period unless [certain statutory prerequisites are met].”). Our
Supreme Court has held that “the one-year statutory period is an element of the right to file

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a post-conviction petition and that it is not an affirmative defense that must be asserted by
the State.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is incumbent upon a
petitioner to include allegations of fact in the petition establishing either timely filing or
tolling of the statutory period,” and the “[f]ailure to include sufficient factual allegations of
either compliance with the statute or [circumstances] requiring tolling will result in
dismissal.” Id.

        If a petitioner files a petition for post-conviction relief outside the one-year statute of
limitations, a court may still consider it if (1) a new constitutional right has been recognized;
(2) the petitioner’s innocence has been established by new scientific evidence; or (3) a
previous conviction that enhanced the petitioner’s sentence has been held to be invalid.
T.C.A. § 40-30-102(b)(1)-(3) (2006). A court may also consider an untimely petition for
post-conviction relief if applying the statute of limitations would deny the petitioner due
process. Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992); see, e.g., Seals v. State, 23
S.W.3d 272 (Tenn. 2000) (holding that due process mandates the tolling of the statute of
limitations under the 1995 Sentencing Act during periods of a petitioner’s mental
incompetence).

       In the case under submission, because the defendant’s motion was filed well outside
the one-year statute of limitations and the motion contained no factual allegations that would
support a claim of due process tolling, the petition is time-barred. The trial court did not err
when it summarily dismissed the motion, and the defendant is not entitled to relief on this
issue.

                                C. Habeas Corpus Argument

        The defendant further asserts that his sentence is illegal and, therefore, his judgment
is void. The defendant raises this issue for the first time on appeal. Because the defendant
failed to raise this issue in his original motion it “may not be raised for the first time on
appeal.” See State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000) (reversed on other
grounds); see also T.C.A. § 40-30-106(g) (“A ground for relief is waived if the petitioner
personally or through an attorney failed to present it for determination in any proceeding
before a court of competent jurisdiction in which the ground could have been presented . .
.”).

                                        III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we conclude that
the trial court did not err when it summarily dismissed the defendant’s motion. The judgment
of the trial court is affirmed.

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      _________________________________
      JOHN EVERETT WILLIAMS, JUDGE




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