        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned On Briefs June 17, 2014

     KENNETH DEWAYNE JOHNSON v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Davidson County
                     No. 2011-C-2232 Steve Dozier, Judge



                No. M2013-02491-CCA-R3-PC - Filed July 24, 2014



Petitioner, Kenneth Dewayne Johnson, pled guilty to aggravated assault in Davidson County
on November 17, 2011. On June 10, 2013, Petitioner filed a pro se petition for post-
conviction relief, alleging that the trial court lacked jurisdiction because the foreman of the
grand jury that issued the indictment was ineligible to serve for being a convicted felon.
Petitioner also asserted that he received ineffective assistance of counsel and entered an
unknowing and involuntary plea. The post-conviction court dismissed the petition as
untimely. On August 16, 2013, Petitioner, with the assistance of counsel, filed a second
petition for post-conviction relief, arguing that the statute of limitations should be tolled in
his case because the ineligibility of the grand jury foreman was not made public knowledge
until after the statute of limitations had expired and was, therefore, a “later-arising” ground
for relief. The post-conviction court dismissed the petition, finding that the ineligibility of
the grand jury foreman did not divest the trial court of jurisdiction and that Petitioner was not
denied effective assistance of counsel. Petitioner appealed. Upon a thorough review of the
law and the facts in this case, we affirm the decision of the post-conviction court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
R OGER A. P AGE, JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Kenneth Dewayne Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; Rachel Sobrero,

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Assistant District Attorney General, for the appellee, State of Tennessee.


                                           OPINION

                                     Factual Background
       In July of 2011, the third session of the Davidson County Grand Jury was empaneled
and a foreman was appointed. This grand jury issued over 900 indictments, one of which
was indictment number 2011-C-2232, charging Petitioner with one count of aggravated
assault of a police officer. In January of 2013, it came to light that the grand jury foreman
had been convicted of a felony back in 1977 and was therefore ineligible to serve. See
T.C.A. § 22-1-102(1); Tenn. R. Crim. P. 6(g)(2). It was this revelation that prompted
Petitioner to file for post-conviction relief and which eventually led to this appeal.

        On November 17, 2011, Petitioner pled guilty to aggravated assault and received a
sentence of six months in incarceration and four years on probation. On January 4, 2013, the
trial court revoked Petitioner’s probation and placed his four-year sentence into effect. On
June 10, 2013, Petitioner filed a pro se petition for post-conviction relief, which was
dismissed by the post-conviction court as untimely.

        On August 16, 2013, Petitioner filed a second post-conviction petition with the
assistance of counsel, arguing that the statute of limitations for post-conviction petitions
should be tolled in his case because he did not become aware of his asserted grounds for
relief until the status of the grand jury foreman as a convicted felon became public
knowledge in early 2013. He argued that the indictment was invalid because of the ineligible
foreman, that he received ineffective assistance of counsel, and that his guilty plea was
unknowingly and involuntarily entered. The State argued that the statute of limitations
should not be tolled because the asserted grounds for relief did not arise after the limitations
period would have normally begun to run. Additionally, the State contended that the defect
in the indictment did not divest the trial court of jurisdiction and that Petitioner waived his
challenge to the defect by not raising it prior to his plea.

        On October 3, 2013, the post-conviction court held a brief hearing to determine
whether it should toll the statute of limitations and grant Petitioner a hearing for post-
conviction relief. On October 17, 2013, the post-conviction court issued an order dismissing
the petition, finding that the trial court had jurisdiction over Petitioner’s case when he entered
his guilty plea and that he was not denied effective assistance of counsel. Petitioner filed a
timely notice of appeal.




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                                           Analysis
        Under the Post-Conviction Procedure Act, relief is available when a conviction “is
void or voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A petition for
post-conviction relief must be filed within one year of the date on which the judgment
became final if no direct appeal was taken. T.C.A. §40-30-102(a). Our legislature
emphasized the fact that “[t]ime is of the essence of the right to file a petition for
post-conviction relief,” id., and provided only three narrow exceptions to the statute of
limitations: (1) a new constitutional right with retrospective application; (2) new scientific
evidence establishing actual innocence; and (3) the invalidation of convictions underlying
an enhanced sentence. T.C.A. § 40-30-102(b).

        However, the right to due process may necessitate tolling the statute of limitations in
certain circumstances outside of the enumerated statutory exceptions. See Burford v. State,
845 S.W.2d 204 (Tenn. 1992); Seals v. State, 23 S.W.3d 272 (Tenn. 2000). “[B]efore a state
may terminate a claim for failure to comply with procedural requirements such as statutes of
limitations, due process requires that a potential litigant be provided an opportunity for
‘presentation of claims at a meaningful time and in a meaningful manner.’ The test is
‘whether the time period provides an applicant a reasonable opportunity to have the claimed
issue heard and determined.’” Seals, 23 S.W.3d at 277-78 (quoting Burford, 845 S.W.2d at
207). “Whether due process considerations require tolling of a statute of limitations is a
mixed question of law and fact, which we review de novo with no presumption of
correctness.” Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011) (quoting Harris v. State, 301
S.W.3d 141, 145 (Tenn. 2010)).

         One type of situation in which our supreme court has held that due process requires
tolling of the statute of limitations is “when the grounds for relief, whether legal or factual,
arise. . . after the point at which the limitations period would normally have begun to run.”
Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). To determine whether the statute of
limitations should be tolled because of “later-arising” grounds for relief, the supreme court
in Sands set out a three-step process:

       (1) determine when the limitations period would normally have begun to run;
       (2) determine whether the grounds for relief actually arose after the limitations
       period would normally have commenced; and (3) if the grounds are “later-
       arising,” determine if, under the facts of the case, a strict application of the
       limitations period would effectively deny the petitioner a reasonable
       opportunity to present the claim.
Id.



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        Under the first step of the Sands test, Petitioner’s limitation period began to run thirty
days after the entry of his guilty plea. See State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003)
(“[A] judgment of conviction entered upon a guilty plea becomes final thirty days after
acceptance of the plea agreement and imposition of sentence.”). Therefore, without tolling,
the statute of limitations in Petitioner’s case expired in December of 2012. As to the second
step of the Sands test, we must determine when the asserted grounds for relief – a defective
indictment and ineffective assistance of counsel – actually arose. We will address each
asserted ground in turn.

                                      I. Defective Indictment
         Petitioner alleges that the indictment in his case is void on its face because the grand
jury foreman was a convicted felon and thus ineligible to serve on the grand jury. See T.C.A.
§ 22-1-102(1); Tenn. R. Crim. P. 6(g)(2). However, this is not a cognizable ground for relief
under post-conviction as it is a statutory violation rather than a constitutional violation. See
T.C.A. § 40-30-103. While the constitution does guarantee an accused the right to be
informed of the nature and cause of the accusation, it does not create a right to an indictment
free from defect. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (recognizing “that an
indictment need not conform to traditionally strict pleading requirements”); see also State
v. Nixon, 977 S.W.2d 119, 121 (Tenn. Crim. App. 1997) (holding that “defects in the
indictment that go to matters of form rather than substance” can be waived if not objected
to prior to trial). To satisfy the constitutional requirements, an indictment must “1) provide
notice to the accused of the offense charged; 2) provide the court with an adequate ground
upon which a proper judgment may be entered; and 3) provide the defendant with protection
against double jeopardy.” State v. Lindsey, 208 S.W.3d 432, 438 (Tenn. Crim. App. 2006)
(quoting Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000)). Petitioner has not alleged that
the indictment either failed to provide him with adequate notice of the offense charged or that
it fails to protect him from double jeopardy. The issue is whether the indictment, signed by
an ineligible grand jury foreman, was “so defective as to deprive the court of jurisdiction.”
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998).

       This Court recently addressed the jurisdictional implications of a convicted felon
serving as grand jury foreman in a case arising out of the same term of the Davidson County
Grand Jury. See State v. Leonel Lopez, No. M2013-01264-CCA-R3-CD, 2014 WL 715447
(Tenn. Crim. App., at Nashville, Feb. 24, 2014). In that case, we held that “[t]he status of
the grand jury foreman as a convicted felon does not relate to the power of the court to hear
and decide a case”; therefore, the trial court did not lack subject matter jurisdiction. Id. at
*8. We held that, under Tennessee Rule of Criminal Procedure 12(b)(2)(B), “‘all objections
or defects in the indictment[,] other that those [related to the subject matter jurisdiction of
the court and failure to charge an offense,]’ must be raised prior to trial or will result in



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waiver.” Id. (quoting Nixon, 977 S.W.2d at 121) (alterations in original).1

        Because the eligibility of the grand jury foreman is not a jurisdictional element
necessary for a constitutionally valid indictment, this is not a cognizable ground for relief
under post-conviction, regardless of when it may have arisen. Therefore, this does not
constitute a “later-arising” ground for relief for which the statute of limitations should be
tolled under Sands. See 903 S.W.2d at 301. Additionally, Petitioner’s guilty plea serves as
a waiver all non-jurisdictional defects in the indictment. See State v. Pettus, 986 S.W.2d 540,
542 (Tenn. 1999). Therefore, the post-conviction court properly dismissed Petitioner’s
petition on this ground.

                            II. Ineffective Assistance of Counsel
        The second ground for relief raised by Petitioner is that he received ineffective
assistance of counsel, and thus entered into an unknowing and involuntary guilty plea. Both
the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee the right of an accused to the effective assistance of
counsel. To support a claim for ineffective assistance of counsel, a post-conviction petition
would have to contain sufficient factual assertions to satisfy the two-pronged test established
by Strickland v. Washington, 466 U.S. 668 (1984). In other words, Petitioner “must show
first that counsel’s performance was deficient and second that the deficient performance
prejudiced the defense.” Burnett v. State, 92 S.W.3d 403, 408 (Tenn. 2002). The test for
deficient performance is “whether counsel’s assistance was reasonable considering all the
circumstances,” Strickland, 466 U.S. at 688, and whether it was “within the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975).

       Petitioner alleges that he received ineffective assistance of counsel because his trial
attorney failed to inform him that the grand jury foreman was a convicted felon and allowed
him to plead guilty to a facially invalid indictment. We have already held that the indictment
was not rendered void on its face because of the ineligibility of the grand jury foreman.
Therefore, trial counsel’s performance was not deficient in allowing Petitioner to enter a
guilty plea on this indictment.



        1
          Other jurisdictions addressing the issue of an ineligible grand jury member have held that a
defendant is not entitled to relief absent a showing of prejudice. See United States v. Hefner, 842 F.2d 731,
733 (4th Cir. 1988); People v. White, 44 A.D.2d 749, 749 (N.Y.A.D. 1974); Terry Mills v. Commonwealth,
2004 WL 68543, at *1 (Ky. App. 2004); accord. Nixon, 977 S.W.2d at 121 (“Notwithstanding the
applicability of the waiver provision, the court may grant relief from the waiver if the defendant has shown
actual prejudice resulting from the defect in the indictment.”). No showing of prejudice was made in this
case.

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       The argument could be raised that failing to challenge the indictment in a timely
manner under Tennessee Rule of Criminal Procedure 12(b)(2)(B) constitutes deficient
performance. However, Petitioner asserted that “there [was] no reasonable way he could
have known [that the grand jury foreman was a convicted felon] until the information was
made public in early 2013,” and the State admitted that the Davidson County District
Attorney’s Office did not become aware of the issue until January 2013. Therefore, it would
not be reasonable to expect that Petitioner’s trial counsel should have been aware of the
defect prior to the time Petitioner entered his guilty plea in 2011. We find that the
performance of Petitioner’s trial counsel was not deficient under the Strickland standard, and
thus we need not address the issue of prejudice. See Hicks v. State, 983 S.W.2d 240, 246
(Tenn. Crim. App. 1998) (defining prejudice in the context of a guilty plea to mean, “but for
counsel’s errors, [the defendant] would not have pleaded guilty but would have insisted upon
going to trial” (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

        Moreover, even if we were to find that Petitioner has asserted a valid ground for relief
with his ineffective assistance of counsel claim, there is the matter of whether this ground
for relief is “later-arising” and should thereby toll the statute of limitations under the criteria
set out in Sands. See 903 S.W.2d at 301. Theoretically, Petitioner’s trial counsel could have
investigated the background of the grand jury foreman and raised an objection prior to
Petitioner entering his guilty plea, regardless of when the information about the foreman’s
background became public.2 Therefore, this ground for relief existed during the statutory
limitations period and is not “later-arising.” The fact that Petitioner claims that he was not
aware of the defect in the indictment – and, presumably, the ineffectiveness of counsel for
failing to challenge it – until after the statute of limitations had expired is not sufficient to
toll the statute of limitations. See Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App.
1996) (determining that “the petitioner’s claimed lack of knowledge does not toll the statute
for post-conviction purposes”). Therefore, even if we were to find that Petitioner’s claim
might have some merit, his claim would be time-barred and he would not be entitled to relief.

                                       Conclusion
       For the foregoing reasons, we affirm the decision of the post-conviction court.




                                              ___________________________________
                                              JERRY L. SMITH, JUDGE


      2
        The name of the grand jury foreman was published in the Nashville Scene pursuant to Tennessee
Code Annotated section 40-12-105, and criminal convictions are public record.

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