                                                                                        12/29/2016




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs November 15, 2016

              RICHARD L. VOWELL v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Anderson County
                    No. B3C00410      Donald R. Elledge, Judge


                             No. E2016-00374-CCA-R3-PC


The Petitioner, Richard L. Vowell, appeals from the Anderson County Circuit Court’s
summary denial of his petition for post-conviction relief. The Petitioner contends that the
post-conviction court erred in finding that his petition was untimely filed because the
statute of limitations should have been tolled on due process grounds. Following our
review, we affirm the judgment of the post-conviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Richard L. Vowell, Wartburg, Tennessee, Pro Se (on appeal); and J. Thomas Marshall,
Jr., District Public Defender (at hearing), for the appellant, Richard L. Vowell.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
David S. Clark, District Attorney General; and Anthony Jay Craighead, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND

       On August 11, 2000, the Petitioner pled guilty in the Anderson County Circuit
Court to one count of second degree murder and received a thirty-five-year sentence.
The judgment form and the plea agreement documents reflected that the Petitioner’s
sentence was to be served concurrently with his sentence in Knox County Criminal Court
case number 67167 and consecutively to his sentence in Knox County Criminal Court
case number 65964. There was no mention in the judgment form, in the plea agreement
documents, or at the plea submission hearing of the Petitioner having an outstanding
federal sentence or how his thirty-five-year sentence would be served in relation to any
federal sentence.

       On August 20, 2013, well past the one-year statute of limitations, the Petitioner
filed a pro se petition for post-conviction relief. The petition alleged that before the
Petitioner pled guilty in Anderson County Circuit Court, he had pled guilty in federal
court to an unrelated charge and had received a fifteen-year sentence. The petition
further alleged that, at the time he pled guilty in Anderson County Circuit Court, trial
counsel had led the Petitioner to believe that his thirty-five-year sentence and his fifteen-
year federal sentence would be served concurrently. According to the petition, the
Petitioner believed this until April 2013, when he attempted to check on the status of his
federal sentence. He was informed that he had actually not begun to serve it, and that it
would be imposed consecutively to his thirty-five-year sentence.

       Counsel was appointed to represent the Petitioner, and an evidentiary hearing was
held solely to address the timeliness of the petition. At the hearing, a letter dated
December 15, 1999, to the Petitioner from the attorney representing him in his Knox
County cases was introduced into evidence. In the letter, the attorney informed the
Petitioner that the State had proposed a plea agreement that would “be concurrent to [his]
federal sentence.” A second letter, this one from trial counsel to the Petitioner and dated
June 28, 1999, was also introduced. Trial counsel stated in the letter that the prosecutor
had “indicated a willingness to allow a second degree murder conviction to be served
concurrent with [the Petitioner’s] federal charge.” The judgment in the Petitioner’s
federal case was entered on November 15, 1999, and only stated that the Petitioner’s
sentence was to “run consecutively” to a nine-year state sentence from Blount County
Circuit Court that he was “presently serving.”

        At the hearing, trial counsel testified that he remembered “there were discussions
about” having the Petitioner’s federal and state sentences run concurrently and that he
thought “the [S]tate was going to try to do that.” Trial counsel further testified that he did
not think that “the last discussions [he] had with [the Petitioner] indicated that [the
sentences] would run concurrent[ly]” because “there was some consternation” on the day
of the plea submission hearing and the prosecutor had stated that “it wasn’t up to her.
[That] [s]he couldn’t do anything more than she had done.” When asked about the fact
that the federal sentence was not included “in any of the plea papers or anything else,”
trial counsel explained that he “thought [it] was the best [they] could do” because under
state law, sentences were presumed to be concurrent if the trial court is “aware of [the]
charge and [the judgment form was] silent.”

      Trial counsel testified that the Petitioner “was concerned with the federal time
obviously, and it was important to him.” Trial counsel stated that he thought the fact that
the concurrent nature of the state and federal sentences “wasn’t wrapped up in a bow”
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had “caused [the Petitioner] consternation on the day of the plea.” When asked if he ever
promised the Petitioner “concurrent time,” trial counsel responded as follows, “I
promised to try to get it. I told him that I thought I had it, but then I didn’t get it.” Trial
counsel acknowledged that in April 2013, he sent a letter to the Petitioner, which noted
that the Anderson County sentence was concurrent to one of his Knox County sentences
and stated that “[h]opefully this [would] dovetail[] with [the Petitioner’s] federal charge.”
Trial counsel testified that it was in April 2013 that he “learned that it was up to the feds
what happened.”

        The Petitioner testified that he pled guilty in his federal case “first . . . so that [his
Knox County attorney could] arrange [to have his] state time run concurrent with that
federal sentence.” After his plea in federal court, the Petitioner was taken into federal
custody. While in federal custody, the Petitioner received the June 1999 letter from trial
counsel regarding his Anderson County case. The Petitioner testified that it was his
understanding from the letter that trial counsel and the prosecutor “had come to an
agreement to allow . . . [his] Anderson County murder case to run concurrent[ly] with
[his] federal case.”

        According to the Petitioner, he was taken from federal custody in order to plead
guilty in Anderson County Circuit Court, and he was never returned to federal custody.
However, the Petitioner testified that even though he was in state custody, he thought his
federal sentence was running concurrently with his state sentences. The Petitioner
explained that he thought this because his Anderson County sentence was to run
concurrently with one of his Knox County sentences, which were supposed to run
concurrently with his federal sentence. The Petitioner testified that he wrote to the
Federal Bureau of Prisons in February 2013 because he believed he was close to
completing his Knox County sentences and that he filed his petition for post-conviction
relief shortly after receiving a response that his federal sentence would not begin until he
had served all of his state sentences.

       At the conclusion of the hearing, the post-conviction court summarily denied the
petition. The post-conviction court noted that the plea agreement documents, judgment
form, and plea submission hearing made no mention of the federal sentence. The post-
conviction court also accredited trial counsel’s testimony that he told the Petitioner “that
the D.A. said she had done all she could do and obviously this was not part of his
sentence.” The post-conviction court concluded that due process concerns did not toll the
statute of limitations in this case. The post-conviction court further concluded that no
other possible grounds for tolling the statute of limitations existed in this case. The
Petitioner now appeals to this court.

                                          ANALYSIS

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       The Petitioner contends that the post-conviction court erred in finding that his
petition was untimely filed because the statute of limitations should have been tolled on
due process grounds. Specifically, the Petitioner argues that his claim for post-conviction
relief arose after the statute of limitations had expired and that trial counsel had
committed misconduct by creating “an ongoing misrepresentation” that the state and
federal sentences were being served concurrently. The State responds that the post-
conviction court properly denied the petition for being untimely filed.

        Post-conviction relief is available when a “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. A
petition 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 . . . .” Tenn.
Code Ann. § 40-30-102(a). Here, it was undisputed that the one-year statute of
limitations expired years before the petition was filed.

       “[T]he right to file a petition for post-conviction relief . . . shall be extinguished
upon the expiration of the limitations period.” Tenn. Code Ann. § 40-30-102(a). “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 . . . within the time set forth in the
statute of limitations, . . . the judge shall enter an order dismissing the petition.” Tenn.
Code Ann. § 40-30-106(b). The Post-Conviction Procedure Act is explicit that the one-
year statute of limitations “shall not be tolled for any reasons, including any tolling or
saving provision otherwise available at law or equity.” Tenn. Code Ann. § 40-30-102(a).

        The Post-Conviction Procedure Act provides for only three narrow factual
circumstances in which the statute of limitations may be tolled, none of which the
Petitioner alleges apply to his case. See Tenn. Code Ann. § 40-30-102(b). In addition to
the statutory circumstances, our supreme court has held that due process principles may
require tolling the statute of limitations. See Whitehead v. State, 402 S.W.3d 615, 622-
23 (Tenn. 2013). To date, our supreme court “has identified three circumstances in
which due process requires tolling the post-conviction 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 him from complying with the statute of
limitations; and (3) when the petitioner’s attorney has committed misconduct. Id. at 623-
24.

       This court has previously held that when a guilty plea is entered by a defendant
with the expectation that his federal and state sentences will be served concurrently, such
a guilty plea is unknowing, involuntary, and subject to post-conviction attack. James L.
Crawford v. State, No. E2010-00425-CCA-R3-PC, 2011 WL 1745187, at *2 (Tenn.
                                             -4-
Crim. App. May 9, 2011) (citing cases). However, the fact that the Petitioner was
unaware that his state and federal sentences were not being served concurrently does not
mean that he has a late arising claim because “[m]ere ignorance of a factual or legal basis
for seeking post-conviction relief does not require tolling of the statute of limitations.”
Id. at *3.

        Furthermore, for an attorney’s misconduct to require tolling of the statute of
limitations, the attorney must act “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. Here, the post-conviction
court found that trial counsel informed the Petitioner when the prosecutor stated that the
concurrency of the federal sentence “wasn’t up to her.” Likewise, there was no mention
of the federal sentence in the judgment form, in the plea agreement documents, or at the
plea submission hearing.

        Additionally, trial counsel was confused about the effect of not mentioning the
federal sentence on the judgment form of the state conviction, mistakenly believing that
this silence would result in concurrent sentencing. See Tenn. R. Crim. P. 32(c)(2)(B)
(providing that a trial court “shall impose a sentence that is consecutive to any . . .
unserved [prior non-Tennessee] sentence unless the court determines in the exercise of its
discretion that good cause exists to run the sentences concurrently and explicitly so
orders”). While we believe that trial counsel’s actions regarding this issue were
negligent, we do not believe that they rise to the level of “actively lying or otherwise
misleading” the Petitioner. Accordingly, we conclude that the post-conviction court did
not err in summarily denying the petition for having been untimely filed.

                                     CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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