           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                          August 2, 2011 Session

                     TIMOTHY WATSON v. STATE OF TENNESSEE

                             Appeal from the Circuit Court for Dyer County
                                 No. C05-437     R. Lee Moore, Judge



                     No. W2010-02674-CCA-R3-PC - Filed November 18, 2011


Petitioner, Timothy “Tink” Watson, was indicted by the Dyer County Grand Jury in October
of 2005 for two counts of sale of more than .5 grams of cocaine. Petitioner represented
himself at trial and was convicted by a jury of one count of sale of more than .5 grams of
cocaine.1 After a sentencing hearing, Petitioner received a fifteen-year sentence as a Range
II, multiple offender. Petitioner filed several pleadings referred to as “amended” motions for
new trial after a hearing. The trial court denied the motions. Petitioner subsequently pled
guilty to five subsequent indictments through a plea agreement that included a waiver of his
right to appeal the felony drug conviction from the October 2005 indictment. Petitioner then
sought pro se post-conviction relief. After counsel was appointed, an amended petition was
filed. The trial court held a hearing on the petition. It was dismissed after a hearing by the
post-conviction court because it was untimely and because Petitioner had waived his claims
by his plea agreement. Appellant appeals this decision. After a review, we determine that
the petition was untimely and, therefore, properly dismissed by the post-conviction court.
However, the record fails to include a judgment form for Count One of the indictment.
Accordingly, the judgment of the post-conviction court is affirmed, but the matter is
remanded to the trial court for entry of a judgment form for Count One of the indictment.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
C AMILLE R. M CM ULLEN, JJ., joined.

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Timothy Watson.




       1
           The record does not reflect the resolution of Count One of the indictment.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                                     OPINION

                                               Factual Background

       The procedural history of this case is both lengthy and convoluted. However, a full
discussion and explanation is necessary to facilitate our review of the issues presented in this
appeal.

       Petitioner was indicted by the Dyer County Grand Jury in October of 2005 for two
counts of selling more than .5 grams of cocaine. The charges arose after two controlled buys
took place between Petitioner and a confidential informant. Petitioner filed a motion to
dismiss the indictments, claiming that he was residing in Indiana at the time of the offenses.

       On January 15, 2009, the matter proceeded to trial. Petitioner represented himself at
      2
trial. The trial court appointed elbow counsel to assist Petitioner during trial. Petitioner did
not present any proof at trial. The jury found Petitioner guilty in Count Two of the sale of
more than .5 grams of cocaine on January 15, 2009. Petitioner was sentenced to fifteen years
as a Range II, multiple offender. As noted previously, the record on appeal does not contain
a judgment form for Count One of the indictment. The judgment form for Count Two was
entered on April 24, 2009, and reflected that Petitioner pled guilty to the offense.

        On January 22, 2009, Petitioner sent a letter to the trial court asking for a new
attorney. On February 5, 2009, the trial court denied the motion and instructed counsel who
served as elbow counsel at trial to proceed with “the sentencing hearing, any motion for new
trial, and any appeal, if necessary.”

        On April 24, 2009, Petitioner sent a letter to the trial court. In the letter, Petitioner
stated that his retained attorney, a different attorney than the attorney who was appointed
elbow counsel for Petitioner at trial, had “run off with his money” and would “not represent
[him] in a motion for new trial” or “return [his] case file.” Petitioner asked for new counsel
to be appointed and “possibly . . . an extension to allow [new] counsel time to prepare.”
Petitioner asked the trial court to appoint counsel “for [his] motion for a new trial.”


          2
           Apparently, at some point during the pendency of the case, there was a hearing about whether Petitioner should
be permitted to represent himself at trial. During the hearing, a lengthy discussion purportedly took place between
Petitioner, his attorney, and the trial court. During the pendency of the post-conviction proceedings at issue herein, the
parties stipulated that the transcript of this hearing was lost.

                                                           -2-
Petitioner also asked the trial court to “consider an extension to allow [his] counsel time to
prepare.”

       A corrected judgment was entered on May 19, 2009. The corrected judgment changed
the date of entry of the judgment from April 21, 2009, to May 19, 2009. The corrected
judgment still reflected that Petitioner pled guilty to the offense.

       On July 16, 2009, Petitioner filed a pro se “Amended Motion for New Trial.”

      On January 8, 2010, Petitioner filed a “Motion for Entry of Additional Corrected
Judgment.” Petitioner asked the trial court to amend the judgment to reflect that he was
found guilty by a jury.

      On February 2, 2010, Petitioner filed a motion to “Allow Amendments to Petitioner’s
Motion for New Trial.” Attached to this motion was a document purporting to be the “Third
Amendment” to the motion for new trial.

       The trial court entered a corrected judgment on March 9, 2010, to reflect that
Petitioner was found guilty by a jury. On March 12, 2010, the trial court entered another
corrected judgment to reflect that Petitioner’s trial was conducted on January 15, 2009, rather
than January 14, 2009.

       On March 9, 2010, the trial court held a hearing on the various motions. The trial
court entered an order on March 12, 2010. In the order, the trial court determined that the
document filed on April 24, 2009, in which Petitioner requested new counsel and an
extension of time for filing a motion for new trial was not, in fact, a motion for new trial.
Instead, the trial court determined that the July 15, 2009, document entitled “Amended
Motion for New Trial” was the first motion for new trial filed by Petitioner and was
untimely. Despite the untimely nature of the motion for new trial and following
amendments, the trial court ruled on the merits, ultimately determining that Petitioner was
not entitled to relief.

        On June 15, 2010, Petitioner filed a pro se petition for post-conviction relief. In the
petition, Petitioner alleged, among other things, that he received ineffective assistance of
counsel and that his conviction was based on “the unconstitutional failure of the prosecution
to disclose to defendant evidence favorable to defendant.”

       On June 29, 2010, Petitioner pled guilty to five charges from a separate indictment.
As part of that plea agreement, Petitioner executed a waiver of appeal for the case at issue
herein, stating that he “d[id] not desire to appeal his case to the Court of Criminal Appeals

                                              -3-
or the Supreme Court of Tennessee.”3 Because there was already an appeal pending,
Petitioner indicated his understanding was that the appeal would be dismissed. Upon
Petitioner’s motion to voluntarily dismiss his appeal this Court dismissed his appeal on July
22, 2010.

       Counsel was appointed for Petitioner for the post-conviction proceeding and an
amended petition was filed on August 17, 2010. At one of the hearings held prior to the
decision on the petition, Petitioner testified that he never would have waived his right to
appeal the original conviction had he known the consequences of the lost transcript.4
Petitioner also acknowledged he waived his right to any post-conviction ineffective
assistance of counsel claim against the trial counsel who failed to advise Petitioner as to the
effect of the lost transcript.

       On October 5, 2010, the trial court held a hearing on the petition for post-conviction
relief. In an order, the trial court determined that Petitioner “repeatedly insisted on
representing himself” and “could not get along with any attorney appointed to represent
him.” The trial court found that Petitioner knowingly waived his right to an attorney and,
therefore, has no claim for ineffective assistance of counsel. Additionally, the court noted:

         He has also failed to carry his burden of proof to establish ineffective
         assistance of counsel or any prejudice. At the close of the trial in this case,
         defendant asked that his advisory counsel be allowed to make closing
         arguments. [Advisory Counsel] made closing arguments. The defendant then
         agreed to have [Advisory Counsel] proceed with sentencing and appeal.
         Thereafter, he again became upset with [Advisory Counsel] and employed his
         own attorney to represent him. [Retained Attorney] . . . appeared for
         sentencing after having the sentencing hearing continued. Since [Retained
         Attorney] made an appearance in the case on the record, [Advisory Counsel]
         had no obligation to file a Motion for New Trial or proceed with an appeal.
         The Court finds defendant’s retained counsel failed to file a Motion for New
         Trial following his sentencing. Defendant then filed a Motion for New Trial


         3
          At this hearing, both sides indicated that the transcript from the hearing during which Petitioner was advised
of the perils of proceeding pro se at trial could not be located. Prior to the execution of the waiver, the trial court
cautioned Petitioner that the lost transcript could provide him with a successful appeal. The parties subsequently entered
a document into the technical record in which they explained that the transcript was lost.


         4
           Discussions during the hearing indicated that Petitioner’s case would likely have been reversed had he appealed
the original judgment and merely shown that there was no transcript wherein there was proof that the trial court properly
advised him of the risks associated with proceeding pro se. See State v. Small, 988 S.W .2d 671 (Tenn. 1999).

                                                           -4-
       on July 15, 2009. The motion was not timely filed and could not be considered
       by the Court. Defendant was, however, granted a delayed appeal. [An
       attorney] was appointed to represent him on appeal. This appeal was in
       process at the time defendant chose to enter a plea of guilty in his other five
       pending cases. As part of his guilty plea, he waived his right to pursue an
       appeal in this case. . . . The Court further finds that defendant’s Petition for
       Post-Conviction Relief was not timely filed pursuant to T.C.A. § 40-30-102.
       The filing of an amended judgment on March 9, 2010, correcting a
       typographical error did not toll or extend the statute of limitations. The
       defendant has failed to establish any of the exceptions for tolling the statute of
       limitations.

As a result, the court denied the petition for post-conviction relief. Petitioner filed a timely
notice of appeal.

                                            Analysis

        On appeal, Petitioner insists that his petition for post-conviction relief is not barred
by the statute of limitations because the trial court entered an amended judgment form on
March 9, 2010, essentially extending the statute of limitations. Petitioner then filed his
petition for post-conviction relief on June 15, 2010, “well within the [one-year] statute of
limitations” set forth in Tennessee Code Annotated section 40-30-102. Petitioner also insists
that he received ineffective assistance of counsel because his retained counsel failed to file
a motion for new trial. Finally, Petitioner argues that he was prejudiced by the loss of the
transcript of the record of the hearing during which he made the decision to represent himself
at trial. The State, on the other hand, insists that the petition was properly dismissed as
untimely. In the alternative, the State argues that Petitioner failed to show clear and
convincing evidence that he received ineffective assistance of counsel. Finally, the State
contends that Petitioner waived any claim regarding “the trial court’s determination that the
Petitioner waived his right to counsel at trial” by executing the waiver of appeal in
conjunction with the plea agreement.

        Under the Post-conviction Procedure Act, a petition for post-conviction relief must
be filed within one 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 year of the date on which the
judgment became final. T.C.A. § 40-30-102(a). Unless one of the enumerated exceptions
applies, a court does not have jurisdiction to consider an untimely petition. See T.C.A. §
40-30-102(b). Tennessee Code Annotated section 40-30-102(b) lists the exceptions to the
statute of limitations as situations where: (1) “[t]he claim in the petition is based upon a final
ruling of an appellate court establishing a constitutional right that was not recognized as

                                               -5-
existing at the time of trial, if retrospective application of that right is required;” (2) “[t]he
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)
“[t]he 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 conviction has subsequently been held
to be invalid.”

       In the present case, the post-conviction court properly determined that the petition was
filed more than one year after the date of the final action by the highest court to which an
appeal was taken and thus well outside the statute of limitations. In the case herein, the
judgment became final on May 24, 2009, thirty days after the judgment was entered on April
24, 2009. We note that the trial court’s authority to amend the judgment order derived from
Rule 36 of the Tennessee Rules of Criminal Procedure, as the improper date of sentencing,
the improper date of trial, and the indication that Petitioner “pled guilty” were all merely
clerical errors, and did not extend the statute of limitations as would a corrected judgment.
See Dennis J. Rountree v. State, No. M2008-02527-CCA-R3-PC, 2009 WL 3163132, at *2
(Tenn. Crim. App., at Nashville, Oct. 2, 2009). The petition for post-conviction relief was
filed on June 15, 2010, more than one year after the judgment became final. Additionally,
we determine that the post-conviction court also properly held that Petitioner failed to show
that one of the exceptions to the one-year deadline listed in the statute was applicable.

        However, in addition to the exceptions set out in the statute, the courts in this State
have found that due process concerns can toll the statute of limitations in certain factual
situations. See Williams v. State, 44 S.W.3d 464 (Tenn. 2001); Sands v. State, 903 S.W.2d
297 (Tenn. 1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), the most recent in a line of cases
including Burford v. State, 845 S.W.2d 204 (Tenn. 1992) and Sands v. State, 903 S.W.2d 297
(Tenn. 1995), the Tennessee Supreme Court analyzed situation where due process limitations
toll the statute of limitations. In all three of these cases, our supreme court decided that the
statute of limitations for post-conviction relief could be tolled in the factual situations
presented. In Burford, the petitioner’s sentence was enhanced by previous convictions that
had subsequently been declared invalid, but not invalidated in time for him to meet the statute
of limitations for filing his post-conviction petition. Burford, 845 S.W.2d at 208. Our
supreme court stated that because the petitioner was in a procedural trap, the petitioner’s due
process rights would be violated by not allowing a tolling of the statute of limitations and the
filing of a post-conviction petition. Burford, 845 S.W.2d at 208-09.




                                               -6-
      In Sands, our supreme court analyzed Burford and set out the basic rule derived from
Burford and how to go about applying this rule in future cases. The supreme court stated:


       [I]t will be helpful to summarize the basic rule to be derived from Burford:
       that, in certain circumstances, due process prohibits the strict application of the
       post-conviction statute of limitations to bar a petitioner’s claim when the
       grounds for relief, whether legal or factual, arise after the “final action of the
       highest state appellate court to which an appeal is taken”-or, in other words,
       when the grounds arise after the point at which the limitations period would
       normally have begun to run. In applying the Burford rule to specific factual
       situations, courts should utilize a three-step process: (1) determine when the
       limitations period would normally have begun to run; (2) determine whether
       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.
       In making this final determination, courts should carefully weigh the
       petitioner’s liberty interest in “collaterally attacking constitutional violations
       occurring during the convictions process,” Burford, 845 S.W.2d at 207,
       against the State’s interest in preventing the litigation of “stale and fraudulent
       claims.” Id. at 208.

Sands, 903 S.W.2d at 301 (footnote omitted). However, after going through this analysis,
the supreme court concluded that the statute of limitations had not been tolled in the Sands
situation.

        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), the supreme court again held that
the statute of limitations was tolled by the factual and legal situation of the petitioner. In
Williams, there was some dispute over whether the petitioner’s trial counsel continued to
represent him and how much the petitioner actually knew about the progress of his appeals.
The supreme court stated that the question was whether the petitioner had been “misled to
believe that [his trial] counsel was continuing the appeals process . . . .” Id. at 471. The
supreme court remanded the case to the trial court for it to determine whether the statute must
be tolled due to possible attorney misrepresentation. Id. In other words, Williams “appears
to limit claims of attorney misrepresentation tolling the statute of limitations to times when
counsel has made misrepresentations directly related to filing a defendant’s appeal.”
Crawford v. State, 151 S.W.3d 179, 184 (Tenn. Crim. App. 2004).




                                               -7-
         In the case herein, we agree that retained trial counsel probably made missteps in his
representation of Petitioner, namely, that he failed to file a timely motion for new trial.
However, we determine that due process does not require the tolling of the statute of
limitations. By Petitioner’s own admission, as evidenced by the letter he wrote to the trial
court prior to the expiration of the time in which he was required to file a motion for new
trial, he was aware of counsel’s failure to file the motion and asked for an extension of time.
 Petitioner then filed a pro se untimely motion for new trial and the trial court held a hearing
on the motion and denied relief despite lacking jurisdiction.5

        Petitioner appealed the trial court’s denial of the motion for new trial to this Court but
later waived his right to appeal in conjunction with a guilty plea in a separate set of offenses.
We note that a criminal defendant has the right to one level of appellate review. Tenn. R.
App. P. 3(b); Collins v. State, 670 S.W.2d 219, 221 (Tenn. 1984). A defendant’s waiver of
this right to appeal must be made voluntarily. See Tenn. R. Crim. P. 37(d); Collins, 670
S.W.2d at 221. Further, the waiver should be reduced to writing in a document signed by the
defendant, subscribed to by counsel, and clearly reflecting the defendant’s awareness of the
right to appeal and voluntarily waiving it. Tenn. R. Crim. P. 37(d). All of these steps were
taken in the case herein.

        When the waiver was executed, Petitioner had already filed his petition for post-
conviction relief. However, the petition was filed more than one year from the date that the
judgment became final. This Court has previously determined that mere lack of knowledge
that a claim exists does not toll the statute of limitations. See, e.g., Joshua Jacobs v. State,
No. M2009-02265-CCA-R3-PC, 2010 WL 3582493 (Tenn. Crim. App., at Nashville, Sept.
15, 2010) perm. app. denied, (Tenn. Jan. 20, 2011) (determining that petitioner’s lack of
knowledge due to attorney abandonment of the case and ignorance of legal requirements did
not require tolling of the statute of limitations). Our supreme court has concluded that the
one-year statute of limitations provides a defendant a reasonable opportunity to raise
post-conviction claims in a reasonable time and manner. See State v. Seals, 23 S.W.3d at
279; see also Carothers v. State, 980 S.W.2d 215, 217-18 (Tenn. Crim. App. 1997).
Accordingly, we determine that Petitioner has filed an untimely petition for post-conviction
relief. The post-conviction court properly denied the petition.




         5
          A trial court has no jurisdiction to hear an untimely motion for new trial. Further, the trial court’s “erroneous
consideration [and] ruling on a motion for new trial not timely filed . . . does not validate the motion.” State v. Martin,
940 S.W .2d 567, 569 (Tenn. 1997) (citing State v. Dodson, 780 S.W .2d 778, 780 (Tenn. Crim. App. 1989)).

                                                           -8-
                                         Conclusion

        Based upon our review of the record, we conclude that the petition for post-conviction
relief was untimely. Therefore, we determine that the post-conviction court properly denied
relief. Accordingly, the judgment of the post-conviction court is affirmed. However,
because the record fails to include a judgment form for Count One of the indictment, we
remand the matter to the trial court for entry of a judgment form for Count One.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




                                             -9-
