        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 11, 2011

       STATE OF TENNESSEE v. CHRISTOPHER JAKE REYNOLDS

                       Appeal from the Circuit Court for Giles County
                            No. 11240 Jim T. Hamilton, Judge



                       No. M2010-00607-CCA-R3-CD - May 23, 2011


Appellant, Christopher Jake Reynolds, was indicted by the Giles County Grand Jury in
October of 2003 for two counts of selling .5 grams or more of cocaine. After a jury trial in
June of 2005, Appellant was found not guilty of Count One and guilty of the lesser included
offense of possession of .5 grams or more of cocaine with the intent to sell in Count Two.
 Appellant was sentenced to thirty years as a Career Offender. A motion for new trial was
denied. Nearly one and a half years later, Appellant sought a delayed appeal and post-
conviction relief on the basis he received ineffective assistance of counsel because his trial
counsel had been disbarred. The trial court found that it was without jurisdiction to consider
Appellant’s claims. Appellant seeks relief in this Court. After a review of the record, we
conclude that Appellant’s claims are barred by the statute of limitations and that he has failed
to establish a reasonable explanation for the delay that would justify the tolling of the statute
of limitations for purposes of a delayed appeal or post-conviction relief. Accordingly, the
judgment of the trial court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

Christopher Jake Reynolds, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Mike Bottoms, District Attorney General, and Beverly White, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       The circumstances leading to Appellant’s underlying conviction are not entirely
relevant to the issues presented before this Court on appeal. Suffice it to say, Appellant was
convicted of possession of .5 grams or more of cocaine with the intent to sell by a Giles
County Jury and sentenced to thirty years in incarceration as a Career Offender.

        Before we determine the merits of Appellant’s case, we must determine whether to
hear Appellant’s untimely appeal. Appellant was sentenced by the trial court on September
23, 2005, to thirty years as a Career Offender. Appellant filed a motion for new trial on
October 26, 2005. While not noted by either party, from our review of the record, it appears
the motion for new trial was untimely. The judgment form was “entered” on Friday,
September 23, 2005. From that date, Appellant had thirty days to file his motion for new
trial. Tenn. R. Crim. P. 33(b). To calculate the 30 days, the date the judgment was entered
is not included and the period begins the following day. Tenn. R. Civ. P. 6.01. The last day
of the time period is included unless it is a Saturday, Sunday, or legal holiday. Tenn. R. Civ.
P. 6.01. Because the time period is thirty days, intermediate Saturdays, Sundays, and legal
holidays are included. Tenn. R. Civ. P. 6.01. Accordingly, the deadline for filing the
motion for new trial was, by our calculations, Monday, October 24, 2005. Appellant did not
file his motion for new trial until October 26, 2005, two days after the deadline. The trial
court went on to hold a hearing on the untimely motion for new trial, denying it on August
15, 2008. Clearly, Appellant’s motion for new trial, filed more than thirty days after the
judgment, was untimely, and the trial court lacked jurisdiction to hear it. In other words, the
trial court had no power to hear Appellant’s untimely motion for new trial, and the order
issued denying a new trial was a nullity. State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997);
State v. Stephens, 264 S.W.3d 719, 728 (Tenn. Crim. App. 2007).

        Subsequently, on January 21, 2010, nearly one-and-a-half years after the denial of the
motion for new trial, Appellant filed petitions in the trial court seeking a delayed appeal,
post-conviction relief, and a renewed motion for new trial. Appellant argued that “after his
motion for new trial his attorney . . . was disbarred from practicing law in the state of
Tennessee and . . . never did file an appeal on behalf of [Appellant].” Appellant claimed that
the errors and inaction of trial counsel amounted to ineffective assistance of counsel. The
trial court denied these pleadings on February 26, 2010, finding that it had lost jurisdiction
over Appellant’s case thirty days after the denial of the motion for new trial. Appellant filed




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a notice of appeal on March 9, 2010.1 On appeal, the State argues that the trial court properly
dismissed the petitions as untimely. Appellant’s argument, filed pro se, is an attack on his
convictions and sentence, making no mention of the timeliness of his appeal or whether the
statute of limitations for a post-conviction proceeding should be tolled.

       After judgment was entered, Appellant’s action, or inaction, caused a chain reaction
of sorts. The untimely motion for a new trial did not toll the thirty-day filing period for a
notice of appeal, see Tenn. R. App. P. 4(c), or the one-year statute of limitations for the filing
of a post-conviction petition. T.C.A. § 40-30-102(a).

        We agree with the State that Appellant’s petitions for relief in the form of a delayed
appeal and/or post-conviction relief are untimely. They were filed more than one year after
the judgment became final. It is well-settled that the statute of limitations for post-conviction
relief applies to delayed appeals as well, as petitioner must comply with the Post-conviction
Procedure Act to obtain a delayed appeal. T.C.A. § 40-30-102; Handley v. State, 889 S.W.2d
223 (Tenn. 1994). “[A] person in custody under a sentence of a court of this state must
petition for post-conviction relief [or a delayed appeal] 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. . . .” T.C.A.
§ 40-30-102(a). The statute explicitly states, “The statute of limitations shall not be tolled
for any reason, including any tolling or saving provision otherwise available at law or
equity.” Id. It further stresses that “[t]ime 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 the action and is a condition upon its
exercise.” Id. In the event that a petitioner files a petition for post-conviction relief outside
the one-year statute of limitations, the trial court is required to summarily dismiss the
petition. See T.C.A. § 40-30-106(b). Similarly, “[i]f, on reviewing the petition, the response,
files, and records, the court determines conclusively that the petitioner is entitled to no relief,
the court shall dismiss the petition.” T.C.A. § 40-30-109(a). Furthermore, “[i]f and when
a petition is competently drafted and all pleadings, files and records of the case conclusively
show that the petitioner is entitled to no relief the court may properly dismiss the petition
without the appointment of counsel or conducting a hearing.” Martucci v. State, 872 S.W.2d
947, 949 (Tenn. Crim. App.1993) (citing T.C.A. § 40-30-109; Stokely v. State, 470 S.W.2d
37, 39 (Tenn. Crim. App. 1971)).

        Tennessee Code Annotated section 40-30-102(b) sets out three exceptions to the
statute of limitations for petitions for post-conviction relief. The exceptions to the statute of


         1
          This notice appears in the file of this Court attached to a letter from the trial court but does not appear in the
technical record.

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limitations are explicitly limited to: (1) claims based upon a new rule of constitutional law
applicable to a petitioner’s case; (2) claims based upon new scientific evidence showing
innocence; and (3) claims based upon sentences enhanced because of convictions
subsequently found to be illegal. T.C.A. § 40-30-102(b)(1)-(3). None of those exceptions
apply herein. Additionally, due process concerns may toll the statute of limitations for
post-conviction relief. The Tennessee Supreme Court concluded:

       [B]efore a state may terminate a claim for failure to comply with procedural
       requirements such as statutes of limitations, due process requires that potential
       litigants be provided an opportunity for the presentation of claims at a
       meaningful time and in a meaningful manner.

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush Co.,
102 S. Ct. 1148, 1158-59 (1982)); see also Williams v. State, 44 S.W.3d 464, 468 (Tenn.
2001) (quoting “meaningful time and manner” language from Seals v. State, 23 S.W.3d 272,
279 (Tenn. 2000)).

       The Post-Conviction Procedure Act also provides for a delayed appeal when the
petitioner has been denied the right to an appeal from the original conviction. T.C.A. §
40-30-113(a). Supreme Court Rule 28, section 9(D) allows either a trial court or the Court
of Criminal Appeals to grant a delayed appeal as post-conviction relief where the petitioner,
through no fault of his own, was denied review following his direct appeal. A delayed appeal
may only be granted through a post-conviction proceeding.

       Here, Appellant’s judgments became final in 2005, because no appeal was taken after
the judgments were entered and, as noted above, the trial court improperly ruled on an
untimely motion for new trial. The current petitions and motions were not filed until January
21, 2010. Appellant has not alleged that any of the exceptions are applicable to his case.
Appellant argues that due process requires the tolling of the statute of limitations because his
attorney was disbarred, but the scant record does not demonstrate any due process concerns
that would require a tolling. In fact, the record indicated that counsel for Appellant was
suspended from the practice of law for eighteen months beginning in March of 2009. It is
unclear from the record when Appellant first learned of the suspension. The first mention
of the suspension in the record is in a letter dated September 3, 2009, in which Appellant
sought appointment of counsel due to disciplinary action being taken against trial counsel.
On that same date, Appellant filed motions asking for transcripts and the record. Appellant
also sent a letter to the Clerk of the Supreme Court in order to determine if trial counsel had
“file[d] an appeal.” Appellant was notified by the clerk in October of 2009 that the only case
shown for Appellant was a case from Giles County that ended in August of 2001. Appellant
did not file the motion for delayed appeal and post-conviction petition until nearly four-and-

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a-half months after he acknowledged that he knew of trial counsel’s suspension from the
practice of law. Appellant gives no explanation for this delay and makes no argument as to
why the trial court should have tolled the statute of limitations.

        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), a petition for delayed appeal was
summarily dismissed as untimely. 44 S.W.3d at 465-67. The supreme court determined that
the petitioner was entitled to a hearing in order to determine whether due process demanded
that the statute of limitations should be tolled. Id. at 468. The court determined that if the
petitioner “through no fault of his own,” was denied his due process rights to have a
reasonable opportunity to assert his claims as a result of his “attorney’s misrepresentation,
either attributable to deception or other misconduct,” and “was, in fact, misled to believe that
counsel was continuing the appeals process,” then petitioner would be entitled to a tolling
of the statute of limitations. The case in Williams, was remanded for an evidentiary hearing
to resolve the issue. The supreme court reasoned that it would be an “‘abridgement of both
direct and post-conviction avenues of appeal - without ever reaching the merits of the . . .
case . . . [and] would be patently unfair’” if the court were to “summarily terminate [the
petitioner’s claim] without further inquiry.” Id. (quoting Crittenden v. State, 978 S.W.2d
929, 932 (Tenn. 1998)).

        This Court has refused to extend the holding of Williams to situations akin to
Petitioner’s which are distinguishable from Williams. In Charles Ray Powell v. State, No.
M2009-01618-CCA-R3-PC, 2010 WL 4812765 (Tenn. Crim. App., at Nashville, Nov. 23,
2010), the petitioner appealed the summary denial of his petitioner for post-conviction relief
as untimely. 2010 WL 4812765, at *1. Petitioner argued that his retained counsel did not
withdraw from representation and “abandoned him prior to trial, during the guilt and penalty
phases and deserted him during the appellate processes.” Id. at *2. This Court declined to
grant the relief set forth in Williams to Powell’s case, finding that there was nothing in the
record to “support or explain [p]etitioner’s claims that he believed, for nine years, that his
counsel intended to file a Rule 11 application or continue to represent him after the decision
of this court [on direct appeal].” Id. Further, this Court noted that petitioner did not state
how he was “misled” and failed to provide “anything to support his claim” including “any
evidence of communications . . . that would suggest that his attorney made any
misrepresentations to him about the status of his case.” Id. This Court upheld the dismissal
of the petition and determined that an evidentiary hearing, as contemplated in Williams, was
unwarranted in petitioner’s case. Id.; see also Joshua Jacobs v. State, No. M2009-02265-
CCA-R3-PC, 2010 WL 3582493, at *3-4 (Tenn. Crim. App., at Nashville, Sept. 15, 2010)
(holding that petitioner was not entitled to tolling of statute of limitations where there was
no showing of a due process violation); Dennis Jarrett v. State, No. W2006-02033-CCA-R3-
PC, 2007 WL 2120182, at *2-3 (Tenn. Crim. App., at Jackson, Jul. 24, 2007), perm. app.
denied, (Tenn. Oct. 22, 2007) (determining that petitioner was not entitled to hearing on

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timeliness of post-conviction petition where record did not demonstrate petitioner was misled
by trial counsel and petitioner demonstrated knowledge of appeal process as evidenced by
prior appeal).

        We agree with the analysis in Charles Ray Powell and Dennis Jarrett. In the case
herein, there are no allegations made by Appellant as to misrepresentations of trial counsel.
In fact, Appellant merely alleges that the fact that trial counsel was suspended from the
practice of law four years after Appellant’s conviction should excuse the timeliness of his
petition and allow him to seek a delayed appeal. In the record before this Court, there is
nothing to indicate that Appellant believed, in the four years following his conviction, that
trial counsel intended to file a direct appeal on Appellant’s behalf. Further, there is no
allegation by Appellant that he was misled by trial counsel. In fact, there is no record of
communication between trial counsel and Appellant that would suggest trial counsel made
any assertions about continued representation of Appellant after conviction. We note also
that before his 2005 conviction, Appellant appealed a prior conviction and, thus, should have
been aware of the procedural requirements for filing post-trial motions. See State v.
Christopher Jake Reynolds, No. M2000-00210-CCA-R3-CD, 2001 WL 543443 (Tenn. Crim.
App., at Nashville, May 23, 2001). Based on the foregoing and the record as a whole, we
conclude that due process does not require that the statute of limitations for filing a post-
conviction petition or delayed appeal should be tolled in this case. The petition for post-
conviction relief was properly dismissed.

                                        Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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