        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs April 25, 2012

                  DALE M. ROGERS v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Blount County
                        No. C20214     David R. Duggan, Judge




                    No. E2011-02137-CCA-R3-PC - Filed May 4, 2012


In 2002, the Defendant, Dale M. Rogers, pled guilty to two counts of rape of a child, and the
trial court sentenced him to fifteen years, to be served at 100%, for each conviction and
ordered that the sentences run concurrently. The trial court later amended the judgements
to reflect that the Petitioner was sentenced to community supervision for life after the
expiration of his sentence. In 2011, the Petitioner filed a petition for post-conviction relief,
alleging that he did not have notice that his sentences were amended until 2011 and asking
the court to toll the applicable statute of limitations. He further alleged that the trial court’s
amending of his judgments, adding the community supervision for life provision, rendered
his guilty pleas unknowingly and involuntarily entered. The post-conviction court summarily
dismissed the Petitioner’s post-conviction petition based upon its finding that the petition was
untimely filed. On appeal, the Petitioner contends the post-conviction court erred when it
dismissed his petition. The State agrees with the Petitioner that the post-conviction court
erred and asks this Court to remand the case for an evidentiary hearing to determine when
the Petitioner knew that his judgments had been amended. We agree with the parties, and
we reverse the post-conviction court’s order and remand the case to the trial court for
appointment of counsel and an evidentiary hearing.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS,
J R., J., joined. J ERRY L. S MITH, J., not participating.

Dale M. Rogers, Pro Se, Pikeville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; and Mike Flynn, District Attorney General, for the appellee, State of Tennessee.
                                         OPINION
                              I. Facts and Procedural History

        This case arises from the Petitioner’s two convictions for rape of a child. The
transcript of neither the guilty plea hearing nor the sentencing hearing is included in the
record. The Petitioner’s original judgments of conviction were entered on September 30,
2002, and show that the trial court sentenced him to fifteen years on each conviction. The
trial court ordered that the sentences be served at 100% and that they be served consecutively
to one another. The Petitioner did not appeal either judgment of conviction.

       On April 8, 2008, the trial court amended the judgments of convictions and noted in
the special condition section of the judgments that they were “[a]mended for the purpose of
placing the [D]efendant on Community Supervision pursuant to TCA code 39-13-524.”

       On September 13, 2011, the Petitioner filed a petition for post-conviction relief,
alleging that his guilty pleas were not knowingly and voluntarily entered because he was not
aware of the community supervision for life requirement at the time he entered his guilty plea.

       The post-conviction court summarily dismissed the Petitioner’s post-conviction
petition, finding:

       By opinion filed July 7, 2010 in Ward v. State of Tennessee, 315 S.W.3d 461
       (Tenn. 2010), the Tennessee Supreme Court established a new constitutional
       right that a “trial court is constitutionally required to inform [a] defendant of the
       [lifetime] supervision requirement as part of the plea colloquy” when a
       defendant pleads guilty to any of the offenses contained in Tenn. Code Ann. §
       39-13-524(a).

       Petitioner’s petition in this matter was filed September 13, 2011.

       The petition was not filed until more than one year after the ruling of the
       Tennessee Supreme Court in Ward v. State of Tennessee establish[ing] a
       constitutional right that was not recognized as existing at the time petitioner
       pled guilty in these two cases.

Based upon these findings, the post-conviction court ruled that the petition was time-barred
because it was not filed within one year of the Tennessee Supreme Court’s ruling in Ward.
It is from this judgment that the Petitioner now appeals.

                                          II. Analysis

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        The Petitioner argues, and the State concedes, that the post-conviction court should
have held an evidentiary hearing to determine whether due process requires that the statute
of limitations be tolled based upon the Petitioner’s knowledge, or lack of knowledge, about
the trial court’s decision to amend his judgment. We agree.

       A person in custody under a sentence of a trial court of this state must petition for
post-conviction relief 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 from the
date on which the judgment becomes final. See T.C.A. § 40-30-102(a) (2006). If the petition
is not filed within one year, consideration of the petition by the post-conviction court is
barred. Id.

        In Williams v. State, the Tennessee Supreme Court held that due process may require
tolling of the statute of limitations for filing a post-conviction petition where the petitioner
may have been deprived by his counsel of a reasonable opportunity to seek post-conviction
relief. 44 S.W.3d 464, 467 (Tenn. 2001) . In Williams, the petitioner was convicted of first
degree murder and sentenced to life imprisonment in 1993. Id. at 465. On January 9, 1995,
his conviction was affirmed by the Court of Criminal Appeals. Id. Thereafter, trial counsel
terminated representation. “The [petitioner] averred that his trial counsel failed to notify him
of counsel’s withdrawal from the case, or to explain to him his rights for filing a pro se
petition to” the Tennessee Supreme Court. Id. Trial counsel filed a formal motion to
withdraw on October 18, 1995, in which trial counsel sought permission for the petitioner to
proceed with a delayed appeal to the Tennessee Supreme Court. Id. at 465-66. The trial court
denied the request. Id. at 466. On November 8, 1995, trial counsel filed an application for
permission to appeal to the Tennessee Supreme Court, which was denied as untimely. Id.
Thereafter, on October 24, 1996, the petitioner, proceeding pro se, filed a petition for
post-conviction relief. Id. The petition was dismissed by the post-conviction court without
a full evidentiary hearing. Id. at 465. Although the petition was filed beyond the statutory
limitations period, our Supreme Court remanded the case to the post-conviction court to
determine whether due process considerations tolled the statute of limitations based on
counsel’s actions. Id. at 467.

        In the case under submission, the Petitioner contends that the trial court amended his
judgment to include the community supervision for life requirement without the Petitioner’s
knowledge. We conclude that the post-conviction court erred in dismissing the petition
without conducting a hearing to make determinations similar to those outlined in Williams.
Therefore, the post-conviction court’s summary dismissal of the petition is reversed, and this
case is remanded for an evidentiary hearing:



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       to determine (1) whether due process tolled the statute of limitations so as to
       give the [Petitioner] a reasonable opportunity after the expiration of the
       limitations period to present [his] claim in a meaningful time and manner; and
       (2) if so, whether the [Petitioner’s] filing of the post-conviction petition was
       within the reasonable opportunity afforded by the due process tolling.

See Williams, 44 S.W.3d at 471.

                                      II. Conclusion

      Based upon the foregoing reasons, we reverse the post-conviction court’s summary
dismissal of the Petitioner’s petition for post-conviction relief and remand for appointment
of counsel and further proceedings consistent with this opinion.




                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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