        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               October 18, 2016 Session

                ROBERT MURPHY v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Lewis County
                    No. 2015-CR-23 Joseph A. Woodruff, Judge
                      ___________________________________

                 No. M2016-00071-CCA-R3-PC – Filed April 6, 2017
                      ___________________________________

The Petitioner, Robert Murphy, appeals the Lewis County Circuit Court‟s denial of his
petition for post-conviction relief from his convictions of two counts of rape, two counts
of aggravated sexual battery, and two counts of incest and resulting effective sentence of
forty-eight years to be served at 100%. On appeal, the Petitioner contends that the post-
conviction court erred by finding that his petition was barred by the statute of limitations
because due process required that the statute of limitations be tolled. Based upon the oral
arguments, the record, and the parties‟ briefs, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Donald Capparella and Elizabeth Sitgreaves, Nashville, Tennessee, for the appellant,
Robert Murphy.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Kim R. Helper, District Attorney General; and Jennifer Mason, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       On May 6, 2002, the Petitioner pled guilty in the Lewis County Circuit Court to
two counts of rape, a Class B felony, two counts of aggravated sexual battery, a Class B
felony, and two counts of incest, a Class C felony. He received twelve-year sentences to
be served at 100% for the rape convictions, twelve-year sentences for the aggravated
sexual battery convictions, and six-year sentences for the incest convictions. The trial
court ordered that the twelve-year sentences be served consecutively for a total effective
sentence of forty-eight years at 100% in confinement.

        On June 25, 2013, the Petitioner filed a petition for writ of habeas corpus in the
Lake County Circuit Court, alleging that the judgments of conviction were void because
the Lewis County Circuit Court failed to comply with Tennessee Code Annotated section
39-13-524, which required community supervision for life for defendants convicted of
rape and aggravated sexual battery. See Tenn. Code Ann. § 39-13-524(a)(1). The
Petitioner also argued in the petition that his judgments of conviction were void because
the trial court failed to award pretrial jail credit. On September 23, 2013, the habeas
corpus court conducted a hearing on the petition and took the matter under advisement
until it could review the guilty plea hearing transcript. After reviewing the transcript, the
court entered an order on February 18, 2014, finding that the issue of lifetime community
supervision was not part of the Petitioner‟s plea agreement and remanding the case to the
trial court for entry of “corrected” judgments. The order did not address pretrial jail
credit. On March 17, 2014, the Lewis County Circuit Court entered amended judgments
for the rape and aggravated sexual battery convictions, reflecting community supervision
for life pursuant to Tennessee Code Annotated section 39-13-524.

      On April 9, 2014, the Lake County Circuit Court entered an order amending its
February 18, 2014 order. The amended order stated follows:

                      After review of the trial record in this case, the Court
              has determined that neither the omission of lifetime
              community supervision nor failure to award pretrial jail
              credits was a material element of the plea agreement.
              Therefore, this Court is of the opinion that the petitioner is
              entitled to relief; however, because the petitioner has not
              shown that the illegalities in his sentence resulted from a plea
              agreement, the only relief to which the petitioner is entitled is
              entry of . . . corrected judgments imposing lifetime
              community supervision and awarding the appropriate jail
              credits.

Pursuant to the order, the Lewis County Circuit Court entered corrected judgments on
February 25, 2015, reflecting both community supervision for life and pretrial jail credit.

      On April 22, 2015, the Petitioner filed a pro se petition for post-conviction relief in
the Lewis County Circuit Court, arguing that he did not enter his guilty pleas knowingly,
voluntarily, and understandingly because he did not know when he pled guilty that he
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would be subject to community supervision for life and that he should be allowed to
withdraw his pleas. In the petition, the Petitioner stated that “[i]t is the February 25,
2015, Corrected Judgment Orders that is the subject of this petition for Post Conviction
relief.” The post-conviction court found that the petition stated a colorable claim and
appointed counsel.

        The State filed a motion to dismiss the petition on the basis that it was untimely
because the one-year statute of limitations began to run on March 17, 2014, when the
Lewis County Circuit Court entered the amended judgments reflecting the Petitioner‟s
community supervision for life, not February 25, 2015, when the court entered the
judgments reflecting the addition of pretrial jail credit. In support of its argument, the
State relied on Dennis J. Rountree, Jr., v. State, No. M2008-02527-CCA-R3-PC, 2009
WL 3163132, at *1 (Tenn. Crim. App. at Nashville, Oct. 2, 2009), in which this court
stated that “the failure to include the mandatory supervision sentence as part of the
judgment results in an illegal sentence, and, therefore does not merely constitute a
clerical error,” and State v. Bobby Blackmon, No. M2002-00612-CCA-R3-CO, 2003 WL
21250809, at *1 (Tenn. Crim. App. at Nashville, May 30, 2003), perm. to appeal denied,
(Tenn. Oct. 6, 2003), in which this court stated that “a dispute over the award of jail
credit is not proper for habeas review since even if the appellant is correct his sentence
would not be void nor would it have expired.” (Citation omitted.)

        On August 28, 2015, the trial court held a hearing regarding the timeliness of the
petition. At the hearing, post-conviction counsel conceded that the one-year statute of
limitations began to run on March 17, 2014, but claimed that due process required tolling
the statute of limitations until late May 2014, when the Petitioner received actual notice
that the trial court had filed the amended judgments. Counsel argued that the April 22,
2015 pro se petition for post-conviction relief was timely because the Petitioner filed it
within one year of his learning about the amended judgments. During the hearing, the
Petitioner submitted an affidavit stating that he did not receive notice of the March 17,
2014 judgments “until the latter part of May 2014.” On December 9, 2015, the post-
conviction court entered an order denying the petition on the basis that it was filed
outside the one-year statute of limitations. In the order, the post-conviction court found
as follows:

             (i) Petitioner had actual knowledge, on or about February 18,
             2014, that community supervision for life would be added to
             his sentence; (ii) Petitioner‟s original judgment was amended
             on March 17, 2014 to add community supervision for life;
             (iii) Petitioner received actual notice of the entry of the
             amended judgment in late May 2014; (iv) Petitioner had a fair
             and adequate opportunity to file his post-conviction relief
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              petition from February 18, 2014 onward; (v) Petitioner knew
              that the habeas court had failed to address the issue of jail
              credits in the February 18, 2014 order; however, the
              subsequent correction adding jail credits, unlike the
              amendment imposing community supervision for life, does
              not, as a matter of law, restart the running of the PCR statute
              of limitations.

                                       II. Analysis

        On appeal, the Petitioner maintains that due process required tolling the statute of
limitations until late May 2014, when he received actual notice of the March 17, 2014
amended judgments. At oral argument, the Petitioner acknowledged that upon learning
about the amended judgments, he still had ten months in which to file a timely petition
but noted that in Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), our supreme court
refused to apply a limitations period strictly even when a defendant had ten months to file
a petition for post-conviction relief. The State argues that the post-conviction court
properly denied the petition. We agree with the State.

       “Relief under [the Post-Conviction Procedure Act] shall be granted when the
conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
Tenn. Code Ann. § 40-30-103. To be successful in a claim for post-conviction relief, a
petitioner must prove the factual allegations contained in the post-conviction petition by
clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The post-
conviction court‟s findings of fact are entitled to substantial deference on appeal unless
the evidence preponderates against those findings. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). We will review the post-conviction court‟s findings of fact de novo
with a presumption that those findings are correct. See id. However, we will review the
post-conviction court‟s conclusions of law purely de novo. Id.

       To obtain relief,

              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 such petition shall be
              barred.

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Tenn. Code Ann. § 40-30-102(a); see also Williams v. State, 44 S.W.3d 464, 468 (Tenn.
2001). The statute emphasizes that 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 such an action and is a condition upon
its exercise. Tenn. Code Ann. § 40-30-102(a).

        Tennessee Code Annotated section 40-30-102(b) provides that “[n]o court shall
have jurisdiction to consider a petition [for post-conviction relief] filed after the
expiration of the limitations period” except in one of three narrow circumstances. The
three exceptions are: (1) claims based on a newly recognized constitutional right that
applies retroactively, and the petition is filed within one year of the ruling recognizing
that right; (2) claims based on new scientific evidence that proves that the prisoner is
innocent of the offense; and (3) claims seeking relief from a sentence that was enhanced
because of a previous conviction that was subsequently held to be invalid. Tenn. Code
Ann. § 40-30-102(b).

        Our supreme court has held that due process may require tolling the statute of
limitations. Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013). “[A] post-
conviction petitioner is entitled to due process tolling of the one-year statute of
limitations upon a showing (1) that he or she has been pursuing his or her rights
diligently, and (2) that some extraordinary circumstance stood in his or her way and
prevented timely filing.” Bush v. State, 428 S.W.3d 1, 22 (Tenn. 2014) (citing
Whitehead, 402 S.W.3d at 361). In explaining the first prong of the analysis, the court
stated that “pursuing one‟s rights diligently „does not require a prisoner to undertake
repeated exercises in futility or to exhaust every imaginable option, but rather to make
reasonable efforts [to pursue his or her claim].‟” Id. (quoting Whitehead, 402 S.W.3d at
631). “[T]he second prong is met when the prisoner‟s attorney of record abandons the
prisoner or acts in a way directly adverse to the prisoner‟s interests, such as by actively
lying or otherwise misleading the prisoner to believe things about his or her case that are
not true.” Whitehead, 402 S.W.3d at 631. Moreover, tolling “„must be reserved for those
rare instances where—due to circumstances external to the party‟s own conduct—it
would be unconscionable to enforce the limitation period against the party and gross
injustice would result.‟” Id. at 631-32 (quoting Harris v. Hutchinson, 209 F.3d 325, 330
(4th Cir. 2000)). Prior to Whitehead and Bush, the court had specifically identified the
following three circumstances in which due process requires tolling the statute of
limitations: (1) when the claim for relief arises after the statute of limitations has
expired; (2) when the petitioner‟s mental incompetence prevents compliance with the
statute of limitations; and (3) when the petitioner‟s attorney has committed misconduct.
Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).



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        Here, the failure to include the community supervision for life provision rendered
the Petitioner‟s sentence illegal; thus, the judgment of conviction was void. State v.
Bronson, 172 S.W.3d 600, 601-602 (Tenn. Crim. App. 2005). The failure to award him
pretrial jail credit, however, did not render the sentence illegal. State v. Brown, 479
S.W.3d 200, 213 (Tenn. 2015); Cory O‟Brian Johnson v. State, No. W2016-00087-CCA-
R3-HC, 2016 WL 4545876, at *2 (Tenn. Crim. App. at Jackson, Aug. 30, 2016).
Accordingly, the one-year statute of limitations began to run on March 17, 2014, when
the trial court filed the amended judgments, not February 25, 2015, when the trial court
filed the corrected judgments for pretrial jail credit. The Petitioner filed his pro se
petition more than one year later on April 22, 2015.

        The Petitioner does not allege any of the statutory exceptions to the one-year
statute of limitations. He also does not allege that his claim for post-conviction relief
arose after the statute of limitations expired, that his mental incompetence prevented
compliance with the statute of limitations, or that his attorney committed misconduct.
Instead, he argues that he late-filed his petition because he did not receive actual notice
that the amended judgments had been filed until late May 2014. However, this court has
“refuse[d] to engraft a discovery rule of the statute of limitations in post-conviction
cases.” Passarella v. State, 891 S.W.2d 619, 625 (Tenn. Crim. App. 1994); James Marvin
Martin v. State, No. E2004-00740-CCA-R3-PC, 2004 WL 2280425, at *3 (Tenn. Crim.
App. at Knoxville, Oct. 11, 2004), perm. to appeal denied, (Tenn. Feb. 28, 2005). In any
event, even though the Petitioner learned about the amended judgments in late May 2014,
he still had ten months in which to file his petition, and he has offered no explanation for
why he failed to do so. Therefore, under these facts, we cannot conclude that the
Petitioner was diligently pursuing his rights or that some extraordinary circumstance
prevented him from timely filing.

        The Petitioner argues that we should conclude, as did our supreme court in
Burford, that the circumstances of this case justify tolling the statute of limitations even
when a defendant still has time in which to file a petition. The instant case, though, is
quite distinguishable from Burford. In Burford, “the petitioner‟s sentence was enhanced
by previous convictions that had subsequently been declared invalid, but not invalidated
in time for him to meet the statute of limitations for filing his post-conviction petition.”
Jerry L. Bell v. State, No. W2013-00176-CCA-R3-PC, 2013 WL 9570548, at *4 (Tenn.
Crim. App. at Jackson, Sept. 4, 2013) (citing Burford, 845 S.W.2d at 208). As a result,
our supreme court described the petitioner as “caught in a procedural trap” and concluded
that his due process rights would be violated if the statute of limitations were not tolled.
Burford, 845 S.W.2d at 208. The Petitioner in the instant case was not deprived of the
full limitations period because he was caught in a procedural trap. To the contrary, his
pro se petition indicates that he erroneously believed he had one year from February 25,
2015, to file his petition. Thus, we conclude that the Petitioner was “provided an
                                           -6-
opportunity for the presentation of claims at a meaningful time and in a meaningful
manner,” Burford, 845 S.W.2d at 208, and that due process does not require the tolling of
the statute of limitations. The post-conviction court properly denied the petition.

                                    III. Conclusion

      Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.

                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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