        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 24, 2010

           LATROY LEE ROBERTSON v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                      No. 2007-A-784      Steve Dozier, Judge




                 No. M2009-01736-CCA-R3-PC - Filed August 3, 2010


The pro se Petitioner, Latroy Lee Robertson, appeals the Davidson County Criminal Court’s
denial of his petition for post-conviction relief, in which he attacks his sentences for three
counts of the sale of .5 grams or more of cocaine and three counts of the sale of twenty-six
grams or more of cocaine. The Petitioner seeks a delayed appeal of the sentence, alleging
that his attorney was ineffective for failing to file a direct appeal of the sentences. The post-
conviction court summarily dismissed the petition, and, after careful review, we reverse the
post-conviction court’s judgment and remand for further proceedings consistent with this
opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

R OBERT W. W EDEMEYER, delivered the opinion of the Court, in which J ERRY L. S MITH, and
T HOMAS T. W OODALL, JJ., joined.

Latroy Lee Robertson, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Mark A. Fulks and Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson,
III, District Attorney General; Pamela Anderson, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                          OPINION
                                           I. Facts

      In 2007, the Petitioner pled guilty to three counts of the sale of .5 grams or more of
cocaine and three counts of the sale of twenty-six grams or more of cocaine. As part of the
plea agreement, upon the Petitioner’s guilty plea to each count, the parties agreed to
concurrent sentences of between ten and twelve years as a Range I offender, with the trial
court to determine the length and manner of service of his sentence. In the trial court’s
sentencing order, it described the facts adduced during the Petitioner’s sentencing hearing:

       At the hearing, the Court heard from Detective Deslauriers that the [Petitioner]
       sold cocaine on multiple occasions between September and December of 2006
       to a confidential informant working with detectives. The sales correspond
       with each count of the indictment and include three counts of sales of .5 grams
       or more of cocaine and three counts of sales of more than 26 grams of cocaine.
       The detective testified that a search of the [Petitioner]’s vehicle, residence, and
       his mother’s residence revealed scales, over six thousand dollars in cash, and
       two handguns.

               The [Petitioner]’s mother testified she did not know her son was selling
       drugs, nor did she know he was on probation for a prior offense. She was
       aware he smoked marijuana. Danielle Mitchell, the [Petitioner’s] girlfriend,
       testified she has two children with the [Petitioner]. She testified the
       [Petitioner] wants to work at a cleaning service and was providing eight
       hundred dollars a month for the kids in addition to the two hundred dollars in
       child support she receives. Finally, the [Petitioner] testified he began selling
       two years prior to his arrest after working at Burger King. He stated he would
       buy a fourth of a kilogram of cocaine for four thousand seven hundred dollars
       and then would sell it. He admitted he used and sold drugs while on probation.

The trial court found three enhancement factors applied: Factor (1), the defendant has a
previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range; Factor (8), the defendant, before trial or sentencing, failed
to comply with the conditions of a sentence involving release into the community; and Factor
(16), the defendant was adjudicated to have committed a delinquent act or acts as a juvenile
that would constitute a felony if committed by an adult. See T.C.A. 40-35-113 (1), (8), and
(16) (2007). The trial court then sentenced the Petitioner to twelve years, at thirty percent,
on each count, with the sentences to be served concurrently. The trial court denied the
Petitioner an alternative sentence based upon the Petitioner’s “prior attempts at alternative
probation sentences.” The Petitioner did not file a direct appeal of his convictions or
sentences.

       On June 5, 2009, the Petitioner filed a petition for post-conviction relief alleging he
received the ineffective assistance of counsel and requesting a delayed appeal. Specifically,
he asserted that his counsel was ineffective for failing to recognize his rights pursuant to

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Blakely v. Washington, 542 U.S. 296 (2004). In support of this contention, the Petitioner
asserted that he asked his trial counsel (“Counsel”) to appeal his sentence and attached to his
petition a handwritten note, bearing the Petitioner’s name and the date 1-03-08 in the upper
right hand corner. The note reads:

       You told me that I should not have received a maximum sentence and if I did
       you were going to appeal. Could you please contact me or my family to
       discuss appealing my sentence. You told me by the phone that I received a
       maximum 12 year sentence but I have not seen the order that the judge took
       under advisement. Please contact me soon in regards to appealing my
       sentence.

The Petitioner does not clearly indicate that he sent this letter to Counsel but implies that he
did. He asserts that his twelve-year sentence was “absurd” and that he was clearly unaware
of the sentence he received because the judge took the sentencing matter “under advisement.”

        The Petitioner also asserted that he received the ineffective assistance of counsel
because Counsel agreed to an enhanced minimum sentence and failed to preserve for appeal
his objection to the Petitioner’s sentence pursuant to Blakely. He asserted that, as such, he
is entitled to a delayed appeal.

        The post-conviction court summarily dismissed his petition. The post-conviction
court found that the Petitioner failed to file his petition within the applicable statute of
limitations period and that he had not presented any ground for relief that fell within an
exception to the limitations period.

       It is from this judgment that the Petitioner now appeals.

                                         II. Analysis

        On appeal, the Petitioner contends that due process considerations require that the
statute of limitations be tolled. He asserts that Counsel failed to file a timely appeal,
rendering Counsel’s assistance ineffective. He asks this Court for a delayed appeal. The
State responds that the post-conviction court properly determined that the petition was time-
barred.

       “[A] person in custody under a sentence of a court of this state must petition for
post-conviction relief 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) (2006). The

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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) (2006). 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) (2006). 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) (2006) sets out three exceptions to
the statute of limitations for petitions for post-conviction relief:

       No court shall have jurisdiction to consider a petition filed after the expiration
       of the limitations period unless:

               (1) The claim in the petition is based upon a final ruling of an
               appellate court establishing a constitutional right that was not
               recognized as existing at the time of trial, if retrospective
               application of that right is required. The petition must be filed
               within one (1) year of the ruling of the highest state appellate
               court or the United States supreme court establishing a
               constitutional right that was not recognized as existing at the
               time of trial;

               (2) The claim in the petition is based upon new scientific
               evidence establishing that the petitioner is actually innocent of
               the offense or offenses for which the petitioner was convicted;
               or

               (3) The claim asserted in the petition seeks relief from a
               sentence that was enhanced because of a previous conviction
               and the conviction in the case in which the claim is asserted was
               not a guilty plea with an agreed sentence, and the previous

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                conviction has subsequently been held to be invalid, in which
                case the petition must be filed within one (1) year of the finality
                of the ruling holding the previous conviction to be invalid.




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.,
455 U.S. 422, 437 (1982)).

        In the case under submission, the Petitioner’s judgments were entered October 9,
     1
2007 , and those judgments became final thirty days later. The Petitioner filed his petition
for post-conviction relief on June 5, 2009, and the petition does not list any statutory ground
that would make him eligible for an exception to the one-year statute of limitations. He,
however, proposes that due process considerations require that the statute of limitations be
tolled, citing Wallace v. State, 121 S.W.3d 652 (Tenn. 2003). Further, he asserts that failure
to perfect a direct appeal in derogation of a defendant’s actual request is a per se violation
of the Sixth Amendment, citing Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998).


        The Wallace decision is clearly distinguishable from the case at hand in that it
involved an attorney’s failure to file a motion for new trial after a jury verdict, while the case
presently before us involves Counsel’s failure to appeal a sentence resulting from a plea of
guilty. More in line with the Petitioner’s case, is the Sixth Circuit case he cited, Ludwig. In
Ludwig, the defendant pled guilty to multiple counts involving drug trafficking, money
laundering, and tax evasion. Four years after the judgment, the defendant sought relief based
upon ineffective assistance of counsel, alleging, in pertinent part, that his counsel failed to
file a direct appeal, despite the defendant’s request. The Ludwig Court held:

         [W]ith respect to counsel’s failure to file a notice of appeal, every Court of


         1
        The judgment forms are dated October 5, 2007, but not file-stamped. The “Sentencing Order,” in
which the trial court imposes the sentences, is file-stamped October 9, 2007.

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       Appeals that has addressed the issue has held that a lawyer’s failure to appeal
       a judgment, in disregard of the defendant’s request, is ineffective assistance of
       counsel regardless of whether the appeal would have been successful or not.
       We agree with those courts and hold that the failure to perfect a direct appeal,
       in derogation of a defendant’s actual request, is a per se violation of the Sixth
       Amendment.

Ludwig, 162 F.3d at 458 (citations omitted). The Court held, “Thus, the failure to perfect a
direct appeal when requested by the defendant violates the Sixth Amendment without regard
to the probability of success on appeal.” Id. The Court went on to emphasize that “a
defendant’s actual “request” is still a critical element in the Sixth Amendment analysis. The
Constitution does not require lawyers to advise their clients of the right to appeal. Rather,
the Constitution is only implicated when a defendant actually requests an appeal, and his
counsel disregards the request.” Id. (citations omitted).

        In Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001), our highest Court discussed
a counsel’s failure to appeal to the Tennessee Supreme Court after his direct appeal and
counsel’s failure to withdraw as counsel. In Williams, the Tennessee Supreme Court stressed
that in limited circumstances an attorney’s misrepresentation to a petitioner could result in
a tolling of the statute of limitations for due process concerns:

       [W]e are not holding that a petitioner may be excused from filing an untimely
       post-conviction petition as a result of counsel’s negligence. Instead, the focus
       here is . . . upon trial and appellate counsel's alleged misrepresentation in
       failing to . . . notify the petitioner that no application for permission to appeal
       would be filed in [the Tennessee Supreme] Court.

Williams, 44 S.W.3d. at 468 n.7. In Craig Robert Nunn v. State, this Court agreed that “[t]he
Williams decision is not intended to require a hearing on due process concerns every time a
petitioner alleges that the untimeliness of his petition is due to his trial or appellate counsel’s
negligence.” No. M2005-01404-CCA-R3-PC, 2006 WL 680900, at *5 (Tenn. Crim. App.,
at Nashville, Mar. 17, 2006) (citing Bronzo Gosnell, Jr. v. State, No.
E2004-02654-CCA-R3-PC, 2005 WL 1996629, at *4 (Tenn. Crim. App., at Knoxville, Aug.
19, 2005), perm. to appeal denied (Tenn. Dec. 19, 2005)).

        In this case, the Petitioner contends that Counsel violated his due process rights by
failing to appeal his case. The Petitioner offers no explanation for the almost one-year delay
in filing his petition. He asserts, indirectly, in both his petition and in his brief that the
handwritten note attached to his petition for post-conviction relief establishes that he asked
that Counsel file an appeal on his behalf.

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       Upon our review of the record, we conclude that the post-conviction court erred in
dismissing the petition without conducting a hearing to make determinations as outlined in
Williams. See Eric Wright v. State, No. W2001-00386-CCA-R3-PC, 2001 WL 1690194, at
*2 (Tenn. Crim. App., at Jackson, Dec. 17, 2001). Here, the Petitioner attached a letter that
he implicitly asserts he sent to Counsel expressing his understanding that Counsel would
appeal his case if he were given the maximum sentence. Before dismissing the petition as
untimely, Williams required the trial court to conduct a hearing to determine if “in fact, [the
petitioner] [was] misled to believe that counsel was continuing the appeals process, thereby
requiring the tolling of the limitations period.” Williams, 44 S.W.3d at 471. Further, as
stated by the Sixth Circuit in Ludwig, “a lawyer’s failure to appeal a judgment, in disregard
of the defendant’s request, is ineffective assistance of counsel regardless of whether the
appeal would have been successful or not.” Ludwig, 162 F.3d 458. Accordingly, we remand
this case to the post-conviction court for the appointment of counsel and an evidentiary
hearing to determine whether the Petitioner actually requested that Counsel file an appeal in
his case and, in accordance with Williams:

       (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 in [June 2009]
       was within the reasonable opportunity afforded by the due process tolling.

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

                                      III. Conclusion

       After a thorough review of the record and the applicable law, we conclude that the
judgment of the trial court is reversed and the case is remanded for further proceedings
consistent with this opinion.

                                                    _________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




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