             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE               FILED
                              JUNE 1999 SESSION
                                                             October 12, 1999

                                                           Cecil Crowson, Jr.
                                                          Appellate Court Clerk

ALVIN L. SMITH,                    )
                                   )     C.C.A. No. 01C01-9808-CC-00343
      Appellant,                   )
                                   )     Lincoln County
v.                                 )
                                   )     Honorable Charles Lee, Judge
STATE OF TENNESSEE,                )
                                   )     (Post-Conviction)
      Appellee.                    )




FOR THE APPELLANT:                       FOR THE APPELLEE:

JULIE A. MARTIN                          PAUL G. SUMMERS
P. O. Box 426                            Attorney General & Reporter
Knoxville, TN 37901-0426
(On Appeal)                              ELIZABETH B. MARNEY
                                         Assistant Attorney General
DONNA L. HARGROVE                        425 Fifth Avenue North
District Public Defender                 Nashville, TN 37243-0493

ANDREW J. DEARING, III                   WILLIAM MICHAEL McCOWN
Assistant Public Defender                District Attorney General
105 South Main Street
P. O. Box 1119                           WEAKLEY E. BARNARD
Fayetteville, TN 37334-1119              Assistant District Attorney General
(At Trial)                               215 East College Street
                                         P. O. Box 878
                                         Fayetteville, TN 37334-0878




OPINION FILED: _______________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                       OPINION

       On September 16, 1987, a Lincoln County jury convicted the petitioner, Alvin L.

Smith of aggravated rape, aggravated kidnapping, armed robbery with a deadly weapon,

and perpetration of a crime against nature. This Court affirmed the petitioner’s conviction

and modified his sentence on August 22, 1989. The Tennessee Supreme Court denied

permission to appeal on November 6, 1989. The petitioner filed a petition for post-

conviction relief on March 9, 1998. On June 23, 1998, the trial court dismissed the petition

for failure to file within the statute of limitations. The petitioner appeals this decision,

claiming the statue of limitations was tolled because he was not legally competent for any

meaningful period from November 6, 1989 to March 9, 1998. Based on our review of this

matter, we affirm the decision of the trial court.



       In 1995, the legislature repealed the entire 1989 Post-Conviction Procedure Act and

adopted a new comprehensive act. The 1995 Post-Conviction Procedure Act provides that

a person in custody under a sentence of a court of this state must petition for post-

conviction relief within one year 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. The one-year statute of limitations “shall not be tolled for any

reason, including any tolling or saving provision otherwise available at law or equity.” Tenn.

Code Ann. § 40-30-202(a) (1997). The 1995 Act gave petitioners, whose three-year

statute of limitations under the 1989 Act had not already expired, one year from the

effective date of the Act, May 10, 1995, in which to file a petition for post-conviction relief.

See Tenn. Code Ann. § 40-30-201 compiler’s notes (1997).



       In Vikki Lynn Spellman v. State, No. 02C01-9801-CC-00036, 1998 WL 517840

(Tenn. Crim. App., Jackson, Aug. 21, 1998), perm. app. granted (Tenn. 1999), this Court

ruled that the Legislature intended to eliminate all tolling provisions applicable to post-

conviction relief proceedings by its enactment of Tenn. Code Ann. § 40-30-202(a) as a part

of the 1995 Act. Vikki Lynn Spellman, 1998 WL 517840, at *2. However, we further held

that the Legislature cannot eliminate constitutionally required tolling through legislative

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action. Id. at *2. Thus, the statute of limitations will be tolled where a petitioner can show

that he or she has been deprived of the constitutional right to due process due to the

petitioner’s incompetence. Watkins v. State, 903 S.W.2d 302, 302-06 (Tenn. 1995); David

Lee Hundley v. State, No. 02C01-9810-CC00313, slip op. at 5-6, (Tenn. Crim. App.,

Jackson, Aug. 26, 1999); John Paul Seals v. State, No. 03C01-9802-CC-00050, 1999 WL

2833, at *2 (Tenn. Crim. App., Knoxville, Jan. 6, 1999), perm. app. granted, (Tenn. 1999);

Vikki Lynn Spellman, 1998 WL 517840, at *2.



       In Vikki Lynn Spellman and the cases that followed, we have reversed and

remanded for appointment of counsel and a hearing to address the question of

competency during the appropriate period. See David Lee Hundley, slip op. at 7-8; John

Paul Seals, 1999 WL 2833, at *4; Vikki Lynn Spellman, 1998 WL 517840, at *3-4. In the

case sub judice, such a remand is not necessary because the petitioner was represented

by counsel and because the trial court held a hearing to address the petitioner’s claim of

incompetency. All we must decide is whether the trial court’s dismissal of the petition was

proper based on the evidence presented.



       When the trial court follows the correct legal principle, its findings of fact are

conclusive on appeal unless the evidence preponderates against the judgment. Cooper

v. State, 849 S.W.2d 744, 746 (Tenn. 1993). Accordingly, we are bound to affirm the

judgment unless the evidence in the record preponderates against the findings of the trial

court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The burden of

establishing that the evidence preponderates against the trial court's findings is on the

petitioner. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).



       Here, the petitioner claims that to require him to prove a continuous state of

incompetency from 1989 to the filing of the petition in 1998, or to require him to prove

“each and every period of competence and incompetence between 1989 and 1998," would

deprive him of a reasonable opportunity to litigate his post-conviction claim. However, it

is the petitioner’s burden to show the statue of limitations has not expired. For this reason,



                                              3
the trial court did not err by requiring that the petitioner provide evidence of his

incompetence from 1989 to the filing of the petition.



       If the petitioner was competent for a total of three years from November 6, 1989 to

May 9, 1995, the three-year statue of limitations of the 1989 Act expired; and the petition

was not timely filed. If he was not competent for a total of three years prior to May 10,

1995, the subsequent one-year statute of limitations then applied. If that new one-year

statute of limitations applied and the petitioner was competent for a total of one year

between May 10, 1995 and the filing of the petition on March 9, 1998, the petition was not

timely filed. The petitioner succeeds in his claim that the statue of limitations did not expire

only if he was not competent for a total of three years from November 6, 1989 to May 9,

1995 and he was not competent for a total of one year from May 10, 1995 to March 9,

1998. The trial court found this not to be the case. For this Court to reverse the decision

of the trial court, the petitioner must now show the evidence presented at the hearing

preponderates against this finding.



       Two witnesses testified at the hearing. Dr. Jan Allen Mayer testified for the

petitioner. Dr. Mayer was his treating psychiatrist at the DeBerry Special Needs Facility.

Dr. Mayer stated the petitioner was admitted to the facility in 1989 because of “some

identified psychiatric problem.” Admission to DeBerry for a psychiatric problem, however,

did not necessarily mean the petitioner was incompetent. Dr. Mayer stated he could

address the petitioner’s competency only for the period that the petitioner was his patient.

This period was approximately one year before the filing of the petition on March 9, 1998.

During this year, the petitioner was competent only for eight to twelve weeks prior to the

hearing. From 1992 to the time Dr. Mayer began treating the petitioner, no competency

evaluation was conducted. Dr. Mayer stated there was no way to determine competency

in the past from reviewing the petitioner’s medical records. Dr. Mayer could not say the

petitioner was incompetent from 1992 until he began treating him. Dr. Mayer testified that

he could not say with certainty why the petitioner was admitted to the DeBerry facility in

1989, but that it would have been for some “identified psychiatric problem because that



                                               4
was the purpose for the facility.” However, he also stated that a person could have a

psychiatric problem and still be competent.



       The petitioner testified he was in the general prison population for one and one-half

to three years during the first three to four years of his incarceration. He was housed at

DeBerry at all other times. He first began thinking of filing a petition around 1991 or 1992.

He read legal books and talked to other prisoners. He spoke to his doctors and his family

about filing a petition, but he said they told him he could not file a petition until he was

competent. He has been on and off medication throughout his stay at DeBerry. At the

time of the hearing he was taking lithium, tranquilizers, and anti-depressants.



       The trial court found that although the petitioner’s incarceration in DeBerry “raised

suspicions in the court’s mind” regarding his competency, admission to DeBerry did not in

and of itself prove he was incompetent. After considering all testimony presented, the

court found that the petition was not timely filed because the petitioner did not meet his

burden of showing the statute of limitations was tolled due to incompetence. We cannot

say the evidence preponderates against this finding, therefore, we must affirm the decision

of the trial court.



                                          ________________________________________
                                          ALAN E. GLENN, JUDGE


CONCUR:




____________________________________
JOSEPH M. TIPTON, JUDGE




____________________________________
JOE G. RILEY, JUDGE




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