        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs November 14, 2013

              DAVID EASTON JONES v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2000-C-1550    J. Randall Wyatt, Jr., Judge




                No. M2013-00779-CCA-R3-PC - Filed January 17, 2014


Petitioner, David Easton Jones, appeals from the trial court’s dismissal of his post-conviction
petition. After review of the entire record we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, David Eston Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Brian Ewald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

        This is Petitioner’s second appeal to this court regarding the post-conviction petition
filed by Petitioner on May 2, 2011, which sought post-conviction relief from his convictions
that resulted from a negotiated plea agreement entered on January 30, 2003. The negotiated
plea agreement included all aspects of disposition of criminal charges: convictions, length
of sentences, and manner of service of those sentences. Accordingly, Tennessee’s rules of
appellate procedure do not provide for an appeal as of right from the convictions or the
sentences imposed. See Tenn. R. App. P. 3(b).

       Petitioner’s petition was initially dismissed by the trial court because it was filed after
expiration of the one-year statute of limitations for filing post-conviction claims. See Tenn.
Code Ann. § 40-30-102(a). On appeal, a majority of a panel of this court reversed and
remanded for an evidentiary hearing to determine whether the statute of limitations should
be tolled on due process grounds. Specifically, this was deemed necessary because Petitioner
had alleged in his petition that he believed his counsel was going to appeal the sentence
imposed following the January 30, 2003 guilty pleas. See David Easton Jones v. State, No.
M2011-01450-CCA-R3-PC, slip op. at 4 (Tenn. Crim. App. June 12, 2012).

       In that majority opinion the court set forth the following pertinent procedural facts of
Petitioner’s case as follows:

                From the meager record before us, we discern that on June 5, 2001,
        the petitioner pled guilty in a Davidson County Criminal Court to three
        counts of possession with intent to sell .5 grams or more of cocaine, one
        count of sale of over twenty-six grams of cocaine, and one count of theft of
        property over $1000, and he was sentenced to an effective term of
        seventeen years at forty-five percent. On June 3, 2002, the petitioner filed
        a petition for post-conviction relief, which the post-conviction court granted
        after hearing and vacated the petitioner’s convictions.

                On January 30, 2003, the petitioner pled guilty to the same charges
        and received, under the plea agreement, a total effective sentence of twenty-
        three years at thirty percent. The petitioner filed the instant untimely
        petition for post-conviction relief on May 2, 2011, in which he contended
        that his second guilty pleas were unknowingly and involuntarily entered and
        that he received the ineffective assistance of counsel, because, among other
        reasons, counsel did not file a direct appeal as he said he would. On May
        23, 2011, the post-conviction court summarily dismissed the petition on the
        basis that it was filed outside the one-year statute of limitations.

David Easton Jones, slip. op. at 1-2.

        After an evidentiary hearing upon remand, the trial court again dismissed the petition
upon concluding that no grounds existed to toll the running of the statute of limitations.
Witnesses who testified at the evidentiary hearing upon remand were Petitioner, Petitioner’s
father, and trial counsel. We will summarize the testimony of each witness that is pertinent
to the issue on remand and now in this appeal.

       Petitioner testified that he had already been paroled from the effective 23-year
sentence, but was still incarcerated in a federal penitentiary on unrelated convictions.
Petitioner testified that when he found out shortly after the guilty pleas were entered in
January 2003 that he had received a sentence of 23 years, six years more than what he had

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already “gotten . . . overturned,” he asked trial counsel to appeal the sentence. Petitioner
testified that he spoke with trial counsel’s secretary “several times,” and she told Petitioner
an appeal had been filed but it was “turned down.” According to the Petitioner these
conversations occurred in 2004. Petitioner added that he became aware that no appeal was
taken when his federal court attorney told Petitioner that there was no record of an appeal
ever being filed.

        Petitioner testified that he did not remember being in court and pleading guilty with
an effective sentence of 23 years being imposed. Petitioner identified the transcript of the
guilty plea hearing in January 2003 and stated that he had looked through it. Despite the fact
that the transcript clearly shows Petitioner was present and that he answered questions from
the court at the guilty plea hearing when he received the effective 23-year sentence,
Petitioner unequivocally testified that he was not in the courtroom for that guilty plea
hearing. He testified, “I’m saying that it didn’t happen.”

       Petitioner clarified on cross-examination that he was taken into custody on the federal
charges in 2009 after he had already been paroled on the sentences involved in the case sub
judice. Apparently, Petitioner’s state parole was revoked because he testified that his state
sentence was being served concurrently with his federal sentence. Petitioner reiterated on
cross-examination that trial counsel told him that he (trial counsel) “would file an appeal.”

       Petitioner’s father, Mr. Charles Jones, testified that he paid trial counsel to represent
Petitioner. He recalled speaking with trial counsel on the day that Petitioner entered his
guilty pleas in January 2003. Mr. Jones remembered hearing that Petitioner received “30
percent time,” but he could not recall the number of years of Petitioner’s effective sentence.
Mr. Jones could not remember any details of any conversation with trial counsel concerning
an appeal of Petitioner’s twenty-three-year sentence. However, Mr. Jones clearly stated that
he did not pay trial counsel “to do an appeal.”

        Trial counsel testified that he represented Petitioner in 2003 on the charges which are
the subject of the post-conviction petition. Trial counsel first represented Petitioner in the
post-conviction proceeding which resulted with the convictions and the effective seventeen-
year sentence being set aside. Trial counsel thereafter continued to represent Petitioner on
the reinstated charges. Trial counsel’s testimony indicated that he and Petitioner were both
aware that if the first petition for post-conviction relief was granted because Petitioner had
initially received an illegal sentence, then Petitioner could possibly receive a longer effective
sentence or be required to go to trial when all the charges were reinstated. Trial counsel
never discussed with Petitioner an appeal of Petitioner’s sentence. There were no letters or
notes in trial counsel’s file discussing an appeal. Trial counsel was aware that under the



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circumstances of Petitioner’s case, with an agreed, negotiated sentence, it was not possible
to appeal the sentence.

       Regarding why the original sentence of seventeen years was not possible in a
negotiated agreement, trial counsel testified as follows:

        A.     I do need to, I think it would be helpful if I could explain one other
               thing.

        Q.     Sure.

        A.     Because there was some question about why would one take 23
               years over 17 years. When this was set aside Mr. Zimmermann,
               John Zimmermann represented the State and the negotiations were
               to get - he would not agree to anything less than what the 17 at 45
               percent would have made Mr. Jones’ release eligible for, uh, and so
               the negotiations that were hammered out and the amending of the
               charges was to come back to a range I sentence that would mirror or
               be almost equal to the same as the 17 at 45. I didn’t like it. I
               remember Mr. Jones didn’t like it. [Co-counsel] didn’t like it, but it
               wasn’t a question of whether it was going to be 17 years or 23 years,
               it was a question of whether it was going to be a range I comparable
               to 17 at 45 or go to trial, those were our choices, so.

      At the conclusion on the hearing on remand, the trial court took the matter under
advisement, and subsequently entered an order again dismissing the petition for post-
conviction relief. After summarizing the testimony presented at the hearing, the trial court
made the following findings:

                Pursuant to the mandate from the Court of Criminal Appeals, the
        Court must first determine 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. The Petitioner alleges that the limitations period should be
        tolled because he thought that Mr. McNally had appealed his case and later
        learned that no appeal was filed. The Court is not persuaded by this
        argument. The Court finds no credibility in the Petitioner’ testimony. The
        Petitioner testified that he was not present for his guilty plea, while the
        transcript of the plea proceedings, which was made an exhibit at the post-
        conviction hearing, clearly shows that the Petitioner was present and

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        participated in the plea colloquy with the Court. Moreover, the Court
        accredits all of the testimony of Mr. McNally and finds that there was never
        any agreement that he would file an appeal on behalf of the Petitioner. The
        Court further finds that there is no other valid basis for tolling the statute of
        limitations.

               Having found no basis for tolling the statute of limitations, the Court
        finds that the Petitioner’s claim is time-barred. Therefore, the Court is of
        the opinion that the State’s motion to dismiss the petition should be granted.

        Misconduct by trial counsel can possibly necessitate tolling the statute of limitations
applicable to post-conviction proceedings. Whitehead v. State, 402 S.W.3d 615, 624 (Tenn.
2013) (citing Williams v. State, 44 S.W.3d 464 (Tenn. 2001)). In Williams, the Court held
a petitioner is entitled to have the statute of limitations tolled on due process grounds if “an
attorney’s misrepresentation, either attributable to deception or other misconduct,” caused
the statute of limitations to expire under circumstances where such conduct was beyond a
petitioner’s control. Williams, 44 S.W.3d at 469. Notably, it was a misrepresentation by trial
counsel about filing an application for permission to appeal to our supreme court which was
pertinent in Williams.

        However, in Petitioner’s case the trial court clearly and unambiguously found that
Petitioner’s testimony was not credible. Conversely, the trial court found trial counsel’s
testimony to be credible. These credibility determinations, as in all factual findings in a trial
court’s ruling in a post-conviction proceeding, are conclusive on appeal unless the evidence
preponderates against those findings.” Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). By
accrediting the testimony of trial counsel and by finding Petitioner’s testimony to not be
credible, the trial court concluded that there was no discussion whatsoever about trial counsel
filing an appeal of the sentence imposed pursuant to a negotiated plea agreement where the
length and manner of service of the sentence was agreed to by the State and Petitioner. The
entire record, including credible testimony and the exhibits, confirms the findings and
conclusions of the trial court.

       Accordingly, the judgment of the trial court is affirmed.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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