         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 1, 2009

                 JERRY SANDRIDGE v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Lauderdale County
                         No. 7119 Joseph H. Walker, III, Judge



                 No. W2009-00261-CCA-R3-PC - Filed September 18, 2009


The petitioner, Jerry Sandridge, was convicted of two counts of aggravated robbery and, upon his
direct appeal, this court modified one of the convictions to aggravated assault and remanded for
resentencing. The resentencing was affirmed on direct appeal. On January 15, 2009, the petitioner
filed a petition for post-conviction relief, asserting prosecutorial misconduct and denial of the
effective assistance of counsel. Concluding that the petition was untimely, the post-conviction court
dismissed it without a hearing, and this appeal resulted. Following our review, we affirm the
dismissal.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID H. WELLES and CAMILLE R.
MCMULLEN , JJ., joined.

Jerry Sandridge, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Cameron L. Hyder, Assistant Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

       This court set out the facts of the matter in the direct appeal of the petitioner’s convictions:

              On the morning of September 22, 2000, Howard Hutcherson was working
       behind the counter of the Amoco market in Ripley, Tennessee. He was working with
       Mary Jasani, one of the owners, who was behind the counter with him. Mr.
       Hutcherson testified that he had just looked at the clock and noticed that it was 7:10
       when a black man came into the store brandishing a handgun and entered the area
       behind the counter where he and Ms. Jasani were. The armed man demanded all the
       money from the cash register and told Mr. Hutcherson to open the register. Mr.
Hutcherson did so, and the man then took the money from the register and placed it
in a plastic bag. The gunman then told Mr. Hutcherson and Ms. Jasani to go into the
market’s restroom. On his way to the restroom, Mr. Hutcherson saw another black
man, who appeared to be the gunman’s cohort. No one else was in the store.

        Mr. Hutcherson and Ms. Jasani remained in the bathroom for a couple of
minutes. When they emerged, the two black men were gone. Mr. Hutcherson called
the police.

        Mr. Hutcherson subsequently viewed several photographic line-ups. On the
day of the robbery, he identified Defendant Franklin as one of the suspects. He
further testified at trial that he believed Defendant Franklin was the man who came
behind the counter with the gun. Five days after the robbery, Mr. Hutcherson viewed
another photographic line-up and identified a James Hall as the unarmed man. On
April 10, 2001, Mr. Hutcherson viewed two more photographic line-ups, neither of
which contained a photograph of Defendant Franklin. During the April viewing, Mr.
Hutcherson identified Daniel Scott, Defendant Sandridge, and a man named Anthony
D. Thompson as suspects. During cross-examination at trial, however, Mr.
Hutcherson stated, “As far as I know, I don't know Mr. Sandridge.”

        Christy Bonds testified that, on the morning in question, she was walking into
the Amoco market as two black men were leaving. She testified that they were
“nearly running,” and one of the men bumped into her. She watched the two men go
to a car parked in the carwash, get in, and then slide down in the seats, as if to hide.
There was already a driver seated in the car. Ms. Bonds described the car as blue
with a white top. She left the station in her car and got on Hwy. 51 headed toward
Covington. On the road, she saw the blue and white car again. She noticed the
license plate number and memorized it. When she passed the car, she saw the three
men in it. When she got to her workplace, she heard that the Amoco market had
been robbed. She then called the police and reported the description of the car and
the license plate number. She subsequently reviewed three photographic line-ups,
from which she identified Defendant Franklin, Defendant Sandridge and a James
Hall as the men she had seen. She testified that Defendant Sandridge was the man
she had bumped into at the market, and James Hall was the driver.

        Carolyn McBroom, the County Clerk for Lauderdale county, testified that the
license plate number reported by Ms. Bond was assigned to a car registered to
Defendant Franklin.

       Officer Rita Burnett testified that she drove by Carolyn Franklin’s residence
while patrolling on September 30, 2000; Carolyn Franklin was married to Defendant
Franklin. At the end of Ms. Franklin's driveway, Officer Burnett found Defendant
Sandridge, Daniel Scott and another man. Defendant Sandridge’s car was stuck in


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a ditch. Officer Burnett testified that Defendant Sandridge told her that he was
looking for Carolyn Franklin.

       Officer Burnett also testified that Defendant Franklin came to the police
department on October 6, 2000, saying that he had heard they were looking for him.
Defendant Franklin told Officer Burnett that he had not done anything. Defendant
Franklin subsequently made a handwritten statement, which provides:

       On 9-22-00 at Approximately 1:35 am or 1:30 am I left the Horseshoe
       Casino down in Tunica Mississippi headed toward or too [sic] Ripley.
       At approximately 7:00 am or 6:55 am I arrived at Amoco[.] I parked
       my car in the Second Stall counting back toward left. I then got out
       my car and was thinking about washing it up. I then had to use the
       Rest Room. I went into the Amoco gas station and used their Rest
       Room and left.

       After Defendant Franklin issued this statement, Investigator Terrance
Mitchell arrested him. Officer Mitchell also searched Defendant Franklin’s car but
found nothing.

        Daniel Scott pled guilty to the robbery of the Amoco market and testified at
trial. Scott testified that the robbery had been Defendant Franklin’s idea. He
explained that he, Defendant Franklin and Defendant Sandridge had been to the
casino the night before, and Franklin drove them to Ripley that morning from the
casino. Franklin told the other two men that he knew the Amoco market and could
not go in because he would be recognized. Scott described the crime:

       Well, when we got there--when we were in the store--well, Irvin
       Franklin went in first to check to see if everything was, you know,
       going to be all right. He went in more or less to check it out. And he
       came back to the car, and [Defendant Sandridge] and I went in, and
       [Sandridge] pulled a pistol on the people who was in the--the clerks
       who was behind the counter. After giving him the money, they were
       told to go into a restroom. And after that, we left, got in the car and
       left.

        Scott described the clerks as one man and one woman. He described the gun
as a handgun.

        The three men split the money three ways. Scott testified that Defendant
Sandridge purchased a Lincoln a short time later. Scott explained that this was the
car that Officer Burnett subsequently found stuck in the ditch outside Carolyn
Franklin’s residence.


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               Lieutenant Steve Sanders investigated the robbery and testified that the gun
       had never been recovered. He stated that $8,700 had been stolen, none of it
       recovered. He explained that Carolyn Franklin’s residence was one-half mile from
       the Amoco station. Lt. Sanders also stated that, after Defendant Franklin had been
       arrested, he told the Lieutenant that he had been the driver in the robbery. Franklin
       also told him that Scott had participated in the crime.

              With respect to Defendant Sandridge, Lt. Sanders testified that Sandridge had
       purchased a car on September 25, 2000, and that he lived on the same street as Scott.
       Lt. Sanders admitted on cross-examination that, in a previous proceeding where they
       were both present, Mr. Hutcherson had looked at Defendant Sandridge and stated that
       he had never seen him before.

               Sam Goodman testified on behalf of Defendant Franklin, stating that he had
       been at the Amoco on the morning in question waiting on his ride. At about seven,
       he saw a brown or tan car leaving the station at a high rate of speed. He testified that
       he did not see Franklin’s car there that morning.

               Tony Deck also testified on behalf of Defendant Franklin, echoing Mr.
       Goodman's testimony that he saw a rusty-colored car leaving the station at a high rate
       of speed that morning. There were three black persons in the car. His sighting
       occurred right after the robbery had been committed. Mr. Deck testified that he did
       not see Defendant Franklin’s car at the station.

                Lou Nettie Thompson testified that Defendant Franklin had been renting a
       room from her in September 2000, and that she saw him on the morning in question
       at about 7:15 or 7:20. She cooked him breakfast, and he later drove her to see her
       sister-in-law.

              Emma Sandridge testified on behalf of her son, Defendant Sandridge. She
       explained that her son had been living with her at the time in question and that he
       was with her on the morning of the robbery. She testified that there had been some
       problems between her son and Scott and that Scott had called the police on her son.
       She testified that she barred Scott from her home. She acknowledged that her son
       bought a Lincoln in the latter part of September.

               Defendant Sandridge testified, stating that he had been home on the morning
       in question. He acknowledged purchasing the Lincoln, claiming that he paid for it
       with money he had saved over a period of time. He testified that he had never been
       to the Ripley Amoco. He explained his presence at Carolyn Franklin’s residence as
       resulting from his giving Daniel Scott a ride there at Scott's request.

State v. Franklin, 130 S.W.3d 789, 791-93 (Tenn. Crim. App. 2003).


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        The petition for post-conviction relief made the following claims: (1) either the State failed
to provide “discovery” to petitioner’s trial counsel or, if it was provided, counsel was ineffective in
not then providing copies to the petitioner; and (2) counsel was ineffective for failing to
communicate with the petitioner before and during the trial, for not responding to the petitioner
during the appeal process, and for not keeping the petitioner “appraised [sic] of the law and any
relevant facts related to his case.” Additionally, he asserts that there was “witness tampering and
witness badgering” during his trial and that it lacked a “spirit of fairness”; the proof was insufficient
to sustain the verdict; and trial counsel did not “object to all the constitutional errors presented by
the prosecution at trial.” In a separate petition filed the same day, the petitioner explained that he
did not file his post-conviction petition within the one-year period for making such claims: “Because
the Trial Court has not responded to my motions for Trial Transcripts. Neither was I provided a copy
of the motion of discovery. Due process violation, violation of 14th Amendment to U.S.
Constitution.”

        On January 21, 2009, the post-conviction court entered its order of dismissal, concluding that
the petition was untimely:

                  On January 15, 2009, the petitioner filed a [p]etition for [p]ost-conviction
        relief.

                Petitioner was convicted by [a] Lauderdale County jury in 2001 of aggravated
        robbery with a deadly weapon. He was on parole at the time of the commission of
        the offense. He was sentenced to life without parole as a repeat violent offender.
        The sentence was consecutive to the sentence for which he was on parole.

               The conviction was upheld on appeal. See State v. [Franklin and] Sandridge,
        13[0] S.W.3d 789. One conviction was remanded for re-sentencing. The sentencing
        was upheld on appeal. See State v. Sandridge, 2005 Tenn. Crim. App. LEXIS 489,
        No. W2004-01199-CCA-R3-CD.

                  The court has reviewed the petition per T.C.A. 40-30-106.

                The [c]ourt finds that the petition was not timely filed. A person in custody
        under a sentence of this state must petition for post-conviction relief under this part
        within one (1) year of the date on which the judgment became final. T.C.A. 40-30-
        102. The court lacks the jurisdiction to hear the claim for post-conviction relief,
        since claims for post-conviction must be filed within one year.

                If it plainly appears from the face of the petition, any annexed exhibits or the
        prior proceedings in the case that the petition was not filed in the court of conviction
        or within the time set forth in the statute of limitations, the judge shall enter an order
        dismissing the petition. T.C.A. 40-30-106.



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                It is therefore ORDERED that the petition is dismissed[.]

         The petitioner filed a notice of appeal and asserts why, in his view, his petition was timely
filed:

                 The trial court incorrectly dismissed the [petitioner’s] petition for post-
         conviction relief because the petition was not barred by the one-year statute of
         limitations, had the post conviction court viewed the issues in a different light, a
         denial of due process would have tolled the running of the statute.

        As we understand the petitioner’s arguments on appeal, the trial infirmities, of which he
complains, each violated his right to due process, thus, in his view, tolling the running of the statute
of limitations.

        Under the Post-Conviction Procedure Act of 1995, a claim for post-conviction relief must
be filed “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.” Tenn. Code Ann. §
40-30-102(a) (2006).

         The post-conviction statute contains a specific anti-tolling provision, stating:

         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 of the
         right to file a petition for post-conviction relief or motion to reopen established by
         this chapter, and the one-year limitations period is an element of the right to file the
         action and is a condition upon its exercise. Except as specifically provided in
         subsections (b) and (c), the right to file a petition for post-conviction relief or a
         motion to reopen under this chapter shall be extinguished upon the expiration of the
         limitations period.

Id. Subsection (b) of the statute sets forth the three narrow exceptions under which an untimely
petition may be considered: (1) when the claim is based upon a final ruling of an appellate court
establishing a constitutional right that was not recognized at the time of trial and which requires
retrospective application; (2) when the claim is based upon new scientific evidence establishing that
the petitioner is innocent; and (3) when a previous conviction that was not a guilty plea and which
was used to enhance the petitioner’s sentence has been held to be invalid. Id. § 40-30-102(b).

      None of the above narrow exceptions exists in this case. In fact, all of the petitioner’s
complaints regard alleged occurrences during his trials or the appeal process.

         Simply calling a complaint a “due process” violation, as the petitioner has done, does not
result in the tolling of the statute of limitations. Examples of matters in which due process claims


                                                   -6-
have been examined make this clear. See Sample v. State, 82 S.W.3d 267, 273 (Tenn. 2002)
(concluding that statute of limitations should be tolled due to a late arising suppression of
exculpatory evidence claim); Williams v. State, 44 S.W.3d 464, 477 (Tenn. 2001) (finding that
misrepresentation by attorney as to continuing representation, rather than mere attorney negligence,
possibly tolled the statute of limitations); Seals v. State, 23 S.W.3d 272, 278-79 (Tenn. 2000)
(concluding that statute of limitations should be tolled during period of mental incompetence of
petitioner); Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995) (concluding that due process required
tolling because grounds for relief arose after the statute of limitations normally would have run);
Burford v. State, 845 S.W.2d 204, 206 (Tenn. 1992) (holding that due process required tolling of
statute of limitations because the petitioner was unable to file post-conviction claim in one county
until conviction in another county had been set aside). We conclude, therefore, that the
post-conviction court did not err in summarily dismissing the petition.

                                         CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the dismissal of the petition
for post-conviction relief.

                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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