        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 October 20, 2009 Session

                SARRAH HEWLETT v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Robertson County
                      No. 99-0277 John H. Gassaway, III, Judge




                  No. M2009-00379-CCA-R3-PC - Filed July 20, 2010


Petitioner, Sarrah Hewlett, appeals the trial court’s dismissal of her petition for post-
conviction relief because it is time-barred. On appeal, Petitioner argues that due process
considerations require the tolling of the one-year statute of limitations for filing a post-
conviction petition. After a thorough review, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES and
J ERRY L. S MITH, JJ., joined.

Paul J. Bruno, Nashville, Tennessee, for the appellant, Sarrah Hewlett.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; John Carney, District Attorney General; and Dent Morriss, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

I. Background

        On July 29, 1999, Petitioner and her co-defendant, Christy Burgess, were indicted for
conspiracy to commit first degree premeditated murder, solicitation to commit first degree
premeditated murder, and first degree premeditated murder. On February 23, 2000, the State
filed a notice of intent to seek a sentence of life imprisonment without the possibility of
parole in Petitioner’s case. Pursuant to a negotiated plea agreement, Petitioner agreed to
enter a plea of guilty to first degree premeditated murder, and the State agreed to enter a nolle
prosequi as to counts one and two of the indictment. The State agreed not to seek a sentence
of life imprisonment without the possibility of parole. At the guilty plea submission hearing
on March 31, 2000, the State offered the following factual basis in support of Defendant’s
plea of guilty:

       The victim in this case, Your Honor, is Timothy Edward Lee Hewlett. He was
       twenty-six years of age. At the time, [he] was a police officer with the Cross
       Plains Police Department. On June 21st, 1999, while asleep in his home in
       Cross Plains, he was shot in the back of the head one time with a nine
       millimeter pistol, which was his own personal weapon that he used as a police
       officer.

       The State further informed the trial court that Petitioner’s co-defendant entered a plea
of guilty on March 17, 2000, to conspiracy to commit first degree premeditated murder in
exchange for her agreement to testify truthfully at Petitioner’s trial.

        The trial court explained to Petitioner the constitutional rights she was foregoing by
entering a plea of guilty. Petitioner stated that she understood that a sentence of life
imprisonment with the possibility of parole would require her to serve a minimum of fifty-
one years before she was eligible for parole. Petitioner acknowledged that she understood
the difference between a sentence of life without the possibility of parole and life with the
possibility of parole. Petitioner also acknowledged that she was giving up the right to appeal
her conviction and sentence by the entry of a plea of guilty. When asked if the factual basis
for her plea of guilty was correct, Petitioner responded, “Yes, sir.” At the conclusion of the
hearing, the trial court sentenced Petitioner to life imprisonment with the possibility of
parole.

        Petitioner filed a petition for post-conviction relief on October 31, 2007, alleging that
her trial counsel rendered ineffective assistance of counsel in connection with the entry of
her plea of guilty, and that her plea was not voluntarily and knowingly entered into.
Petitioner also alleged that she had recently discovered new evidence in the form of Ms.
Burgess’ confession to another inmate that she, and not Petitioner, had killed Mr. Hewlitt.

        The State filed a motion to dismiss the post-conviction petition without an evidentiary
hearing because it was time-barred. At the hearing on the State’s motion to dismiss,
Petitioner testified that trial counsel told her that as a result of her plea of guilty, she could
not “appeal in any way” her conviction or sentence. Petitioner understood from this advice
that she would also be barred from seeking post-conviction relief. Petitioner acknowledged
that she signed a waiver of appeal on March 31, 2000. Petitioner stated, however, that at that
time she did not understand the difference between a direct appeal and a petition for post-
conviction relief. Petitioner said that she learned about the possibility of post-conviction

                                               -2-
relief from an inmate at the Tennessee Prison for Women where Petitioner was housed, and
this information prompted Petitioner to file a post-conviction petition.

       Petitioner stated that trial counsel’s assistance was ineffective because he told
Petitioner that the State would seek the death penalty should her case proceed to trial.
Petitioner said that she was not aware before entering her plea that the State intended to only
seek a sentence of life without the possibility of parole. Petitioner said that if she had known
the State was not seeking the death penalty, she would not have entered a plea of guilty.
Petitioner stated that trial counsel also told her that she would only have to serve twenty-five,
instead of fifty-one, years as a result of her life sentence.

        Susan Palmer testified that she and Christy Burgess were incarcerated together in
2001, and the two women became “best friends.” Ms. Palmer stated that Ms. Burgess
confided in her that she, Ms. Burgess, had killed the victim instead of Petitioner. Ms. Palmer
said that she did not tell anyone about this conversation because she did not know what to
do. Ms. Palmer was transferred to Nashville in 2007 where she met Petitioner. Ms. Palmer
told Petitioner that Ms. Burgess had admitted to Ms. Palmer that she had killed the victim.
On cross-examination, Ms. Palmer said that she was incarcerated as a result of her conviction
of thirty-seven counts of forgery.

        At the conclusion of the hearing, the trial court found that Petitioner had failed to
establish that due process concerns necessitated the tolling of the one-year statute of
limitations applicable to post-conviction petitions. The trial court also found that Petitioner’s
allegation of newly discovered evidence in the form of Ms. Burgess’ confession was not a
cognizable claim for reopening a post-conviction proceeding. The trial court found that “any
claim of newly discovered evidence is properly brought before the court by way of a petition
for writ of [error coram] nobis,” and did not address the merits of Petitioner’s claim. The
trial court accordingly granted the State’s motion to dismiss the post-conviction petition.

II. Analysis

        Relying on Williams v. State, 44 S.W.3d 464 (Tenn. 2001), Defendant argues that the
one-year statute of limitations applicable to post-conviction petitions should be tolled as a
result of trial counsel’s misrepresentations concerning (1) Petitioner’s appellate and post-
conviction rights, (2) the State’s intention to seek the death penalty in the event of a trial, and
(3) the length of Petitioner’s sentence which must be served before she was eligible for
parole. Citing Workman v. State, 41 S.W.3d 100 (Tenn. 2002), Petitioner also contends that
under due process principles, Petitioner should be given the opportunity for a hearing in
which to present the newly discovered statements by Ms. Burgess which Petitioner contends
support a claim of actual innocence.

                                                -3-
        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). “As a general rule, a trial court’s judgment
becomes final thirty days after its entry unless a timely notice of appeal or a specified post-
trial motion is filed.” State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996) (citing Tenn.
R. App. P. 4(a)(c)).

         There are few statutory exceptions to the one-year statute of limitations. A petition
for post-conviction relief may only be filed beyond the expiration of the one-year limitations
period if the otherwise untimely claim is based on (1) a constitutional right that did not exist
at trial; (2) new scientific evidence establishing that the petitioner is actually innocent of the
convicting offense; or (3) a request for relief from a sentence that was enhanced because of
a previous conviction that was later held to be invalid. T.C.A. § 40-30-102(b)(1)-(3). None
of these statutory exceptions applies in the case sub judice.

        “A petitioner’s interest in collaterally attacking a conviction is not a fundamental right
that deserves heightened due process protection.” Seals v. State, 23 S.W.3d 272, 277 (Tenn.
2000). However, our supreme court has instructed that “before a state may terminate a claim
for failure to comply with procedural requirements such as statute of limitations, due process
requires that a potential litigant be provided an opportunity for the ‘presentation of claims
at a meaningful time and in a meaningful manner.’” Id. at 278 (quoting Burford v. State, 845
S.W.2d 207, 207 (Tenn. 1992)).

       The exceptions to the technical requirements of the Post-Conviction Procedure Act
are limited. See Howell v. State, 151 S.W.3d 450, 461 (Tenn. 2004). One exception was
addressed by our supreme court in Williams v. State, 44 S.W.3d 464 (Tenn. 2001). In
Williams, the petitioner contended that the statute of limitations should be tolled because trial
counsel failed to inform him that he had withdrawn from the case and failed to explain the
petitioner’s rights for filing a pro se Rule 11 application for permission to appeal to the
supreme court. Williams, 44 S.W.3d at 468. The supreme court remanded the case to the
post-conviction court for an evidentiary hearing, stating that:

       [t]he question, then, is whether the appellee in this case was, in fact, misled to
       believe that counsel was continuing the appeals process, thereby requiring the
       tolling of the limitations period . . .. The sole inquiry here . . . is whether this
       limitations period is tolled because of due process concerns surrounding
       possible attorney misrepresentation.




                                               -4-
Id. at 471. In a footnote, the court clarified that it was “not holding that a petitioner may be
excused from filing an untimely post-conviction petition as a result of counsel’s negligence”
but that the inquiry was “only upon trial and appellate counsel’s alleged misrepresentation
in failing to properly withdraw from representation and in failing to notify the petitioner that
no application for permission to appeal would be filed in this Court.” Id. at 468 n.7.

       In this case, Petitioner testified that she signed a waiver of appeal in connection with
the entry of her plea of guilty. Petitioner stated that trial counsel advised her that the waiver
meant that Petitioner could not appeal her conviction and sentence “in any way.” Petitioner
said, however, that she believed that the waiver included a waiver of her right to post-
conviction relief because she did not understand the difference between a direct appeal and
a post-conviction proceeding.

        The waiver of appeal signed by Petitioner on March 31, 2000, provided that Petitioner
“did not desire to appeal her case to the Court of Criminal Appeals or to the Supreme Court
of Tennessee.” Petitioner also acknowledged in the waiver that she “fully [understood] her
right to appeal her case and that she, nevertheless, desire[d] not to appeal.” During the guilty
plea submission hearing, the trial court asked Petitioner, “You are giving up your right to
appeal the conviction, and you are giving up your right to appeal a sentence, do you
understand that you are doing all that? Petitioner responded, “Yes, sir.” Neither the waiver
of appeal nor the record of the guilty plea submission hearing mentions Petitioner’s post-
conviction rights, and there is no indication that trial counsel continued to represent
Petitioner after the submission of her plea of guilty.

        Petitioner’s failure to timely file a post-conviction petition was the result of her
misunderstanding of the meaning of the word “appeal.” However, it appears that Petitioner
is impliedly maintaining that trial counsel should have explained the difference between a
direct appeal and a collateral attack on her sentence and conviction. Nonetheless, this Court
has previously held that “a petitioner's ignorance of the existence of the statute of limitation,
even when alleged to stem from an attorney's negligent failure to render advice to the
petitioner, does not toll the running of the statute.” State v. Phillips, 904 S.W.2d 123, 124
(Tenn. Crim. App. 1995) (Citing Raymond Dean Willis v. State, No. 01C01-9211-CR-00359,
[1993 WL 427457] (Tenn. Crim. App. Oct. 21, 1993), perm. to appeal denied (Tenn. [Mar.
7,] 1994); see also Tyrice L. Sawyers v. State, No. M2007-02867-CCA-R3-PC, 2008 WL
5424031, at *3 (Tenn. Crim. App., at Nashville, Dec. 31, 2008), perm to appeal denied
(Tenn. Apr. 27, 2009); Stephen Willard Green v. State, No. E2005-02769-CCA-R3-PC, 2007
WL 1215022 (Tenn. Crim. App., at Knoxville, Jan. 30, 2007), no perm. to appeal filed;
Guillermo Matiaz Juan v. State, No. 03C01-9708-CR-00318, 1999 WL 76453 (Tenn. Crim.
App., at Knoxville, Feb. 18, 1999), perm. to appeal denied (Tenn. July 12, 2009). Based on



                                               -5-
our review, we conclude that due process does not require the tolling of the one-year statute
of limitations under these circumstances.

        As for Petitioner’s claims of ineffective assistance of counsel, our supreme court has
instructed that “consideration must be given to whether the petitioner is raising a claim that
has arisen after the statute of limitations has begun to run, i.e., a ‘later-arising’ claim.” Seals,
23 S.W.3d at 278 (emphasis in original) (citing Sands v. State, 903 S.W.2d 297, 301 (Tenn.
1995). “The “later-arising claim” limitation in Sands reflects the concern that a petitioner
who fails to assert an existing claim, that is, a claim that is not later-arising, in a timely
fashion may not expect due process relief under Burford.” Seals, 23 S.W.3d at 277; see also
Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996) (concluding that a lack of
knowledge that claims exist does not toll the statute of limitations).

       Issues challenging guilty pleas and ineffective assistance of counsel are not later-
arising claims. Seals, 23 S.W.3d at 279; Mark A. Mitchell v. State, No. M2002-01500-CCA-
R3-PC, 2003 WL 1868649 (Tenn. Crim. App., at Nashville, Apr. 11, 2003), perm. to appeal
denied (Tenn. Oct. 13, 2003); Raymond Hardie Cox v. State, No. M1999-00447-CCA-R3-
PC, 2001 WL 208503, at *3 (Tenn. Crim. App., at Nashville, Mar. 2, 2001), no perm. to
appeal filed. Our supreme court has concluded that the one-year statute of limitations
provides a defendant a reasonable opportunity to raise post-conviction claims in a reasonable
time and manner. See Seals, 23 S.W.3d at 279; see also Carothers v. State, 980 S.W.2d 215,
217-18 (Tenn. Crim. App. 1997). Because Petitioner failed to present these claims in a
timely manner, she is not entitled to due process relief on this basis.

       As for Petitioner’s claim of newly discovered evidence not based on scientific
evidence, we agree with the trial court that this claim is more properly presented through a
petition for writ of error coram nobis pursuant to Tennessee Code Annotated section 40-26-
105 rather than in a post-conviction forum. Harris v. State, 102 S.W.3d 587, 591 (Tenn.
2003); Stacy Dewayne Ramsey v. State, No. W2006-01827-CCA-R3-PC, 2008 WL 4117963,
at *5 (Tenn. Crim. App., at Jackson, Sept. 3, 2008), perm. to appeal denied (Tenn. Mar. 16,
2009); James Clark Blanton, III v. State, No. M2001-02421-CCA-R3-PC, 2003 WL
21766251, at *9 (Tenn. Crim. App., at Nashville, July 20, 2003), perm. to appeal denied
(Tenn. Dec. 28, 2003). Moreover, although other sources of collateral review addressing
claims of newly discovered evidence may be available to Petitioner, this Court may not sua
sponte convert the proceeding to one amenable to Petitioner’s claim. See Harris, 102 S.W.3d
at 593). Accordingly, Petitioner’s claim of newly discovered evidence fails to present a
claim upon which a post-conviction proceeding may be reopened. See T.C.A. § 40-30-
117(a)(1-3).




                                                -6-
                                       CONCLUSION

        After a thorough review, we conclude that principles of due process do not require the
tolling of the post-conviction statute of limitations in this case. We also conclude that
Petitioner has failed to establish a statutory basis for reopening a post-conviction proceeding.
Accordingly, we affirm the judgment of the trial court.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




                                              -7-
