Timothy William Jelks v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

MIDDLE DIVISION AT NASHVILLE

January 15, 2013 SESSION

TIMOTHY WILLIAM JELKS v. STATE OF TENNESSEE

APPEAL FROM THE JUDGMENT OF THE SUMNER COUNTY CIRCUIT

COURT

No. 239-2012 Dee David Gay, Judge

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No. M2012-00984-CCA-R3-PC- Filed July 30, 2013

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Timothy William Jelks seeks post-conviction relief from a guilty plea and conviction for

aggravated child neglect, a Class A felony. Tenn. Code Ann. § 39-15-402. Jelks claims his

counsel failed to advise him properly during his plea bargain and asserts the one (1) year

statute of limitations should be tolled due to new constitutional rights established by the

United States Supreme Court. Finding no merit to the assertions of the appellant, we affirm

the judgment of the Circuit Court in all aspects.

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

P AUL G. S UMMERS, Sr. J., delivered the opinion of the Court in which JOSEPH. M.

T IPTON, P.J., concurred in results, and JAMES C URWOOD Witt, Jr., J., joined .

Robert E. Cooper, Jr. Attorney General and Reporter; Clark B. Thorton, Assistant

Attorney General; Lawrence Ray Whitley, District Attorney General; Sallie Wade

Brown, Assistant District Attorney General for the appellee, State of Tennessee .

Mr. Eric Scott Mauldin, Gallatin, Tennessee, for appellant, Timothy William Jelks.

I. Standard of Review

The Supreme Court of Tennessee has ruled that the standard of review for a criminal

appeal is determined by the nature of the appeal:

A trial court’s findings of fact are conclusive unless the evidence in the

record preponderates against those findings. Where appellate review is of

purely factual issues, the appellate court will not reweigh or reevaluate the

evidence.

Review of a trial court’s application of law to the facts of a particular

case is de novo, with no presumption of correctness. Cases that involve mixed

questions of law and fact are subject to de novo review.

State v. Burns, 6 S.W. 3d 453, 461 (Tenn. 1999).

The case before this Court requires application of law to the facts and is de novo with no

presumption of correctness.

II. Facts and Procedural Background

On March 8, 2005, petitioner, Timothy William Jelks, then represented by counsel,

entered a best interests plea of guilty to a charge of aggravated child neglect, a Class A

felony. See, Tenn. Code Ann. § 39-15-402. Petitioner received a minimum sentence of 15

years at 100%. See, Tenn. Code Ann. § 40-35-501. The offense was committed in 2002.

Seven years after his conviction, on April 2, 2012, petitioner filed a pleading styled “motion

to reopen post-conviction relief…” in the Sumner County Circuit Court. The motion was

improperly titled because the petitioner had not previously filed a motion for post-conviction

relief. Petitioner also filed other motions requesting appointment of counsel based on

indigency.

Jelks stated he “entered his plea on the advice of his trial attorney” and pled guilty in

2005 to his 2002 crime of aggravated child neglect, a Class A felony, in exchange for a

sentence of 15 years at 100%. No previous appeals or motions were filed.

Jelks signed a plea agreement in 2005 which indicated the competence of, and his

satisfaction with, his counsel. Jelks now insists his court appointed counsel was ineffective

by failing to accurately advise him regarding minimum and maximum sentence lengths

versus his plea bargain of 15 years at 100% and, as a result of ineffective counsel, his plea

was not knowing and voluntary. See, Tenn. R. Crim. P. 11(b)(2). Jelks appealed the original

ruling nor filed any motions during the seven years he has been incarcerated.

On April 12, 2012, the trial court, without an evidentiary hearing, denied the

appellant’s motion for post-conviction relief based on the statute of limitations. The current

appeal followed, and petitioner was appointed counsel.

III. Law and Analysis

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The statute of limitations for filing a post-conviction petition is one year from the date

the judgment became final. See, Tenn. Code Ann. § 40-30-102(b) states:

(b) No court shall have jurisdiction to consider a petition filed after the

expiration of the limitations 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 the trial.

Tenn. Code Ann. § 40-30-102(b).

Appellant’s claim for an exception to the statute of limitations relies upon Tennessee

Code Annontated section 40-30-102(b)(1) and the recognition of a new constitutional right

to effective counsel during plea bargaining, as declared by the United States Supreme Court

in Missouri v. Frye, 123 S. Ct. 1399 (2012). Justice Kennedy’s opinion in Frye explained:

The reality is that plea bargains have become so central to the administration

of the criminal justice system that defense counsel have responsibilities in the

plea bargain process, responsibilities that must be met to render the adequate

assistance of counsel that the Sixth Amendment requires in the criminal

process at critical stages.

Frye, 132 S. Ct. at 1407

Petitioner asserts the application of Frye retroactively by application of Teague v.

Lane, 488 U.S. 288 (1989). The relevant portion of Teague requires that the new rule

establish a “watershed rule” of criminal procedure that implicated the fundamental fairness

of the trial. Teague, 489 U.S. at 311. Because the merits of whether original counsel was

ineffective is dispositive, the court need not consider the impact of other issues, or

retrospective application of a new constitutional right and the impact of Teague analysis in

the application of Frye.

The gravamen of petitioner's claim is that petitioner’s attorney was mistaken, and thus

ineffective, by advising him that aggravated child abuse was a 100% crime. Jelks asserts the

proper percentage for a Range I offender is 30%; and he would not have pled guilty had he

been properly advised. He asserts it would have been much better for him to go to trial and,

if found guilty, be sentenced to 15 years at 30%.

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Jelks committed the offense in 2002. The statute in effect at the time states that “[a]

person commits the offense of child abuse or neglect” that results in serious bodily injury or

that is committed with a deadly weapon. Tenn. Code Ann. § 39-15-402(a)(2002).

The offense of child abuse and neglect as defined by Tenn. Code Ann. § 39-

15-401(a) (2002) is a single offense that may be committed by two courses of

conduct: child abuse through injury or child abuse through neglect.

State v. Mateyko, 53 S. W.3d 666, 668 n.1 (Tenn. 2001).

In 2002, the crime of child abuse and neglect was a single integrated crime without

differentiation of separate elements for abuse and neglect. If Jelks had been apprehended,

charged and found guilty of his crime in 2002, he would have been sentenced under then

current laws and would have a sentence at 100% which may or may not have been reduced

to 85% based on earned sentencing credits. A claim of inneffectiveness of counsel, even if

timely, would have been without merit because counsel properly advised Mr. Jelks regarding

the consequences of his actions.

Jelks bases his argument on an October 24, 2008, Tennessee Attorney General

opinion, 08-168 (2008), which analyzed the 2005 amended version of Tennessee Code

Annontated section 40-35-501(i)(1) and said that a sentence for aggravated child neglect is

not required to be served at 100% and can be sentenced as a Range 1 standard offender.

The 2008 Attorney General’s opinion does not apply to Mr. Jelks because he was not

sentenced under the 2005 amended version of Tennessee Code Annontated sections 40-35-

501(i)(1)-501(i)(2)(K). His plea was entered and he was sentenced under the 2002 version

of Tennessee Code Annontated section 39-15-402(a) (2002) which did not differentiate

between aggravated child abuse and aggravated child neglect. Mr. Jelks is not eligible for

relief merely by the fortuitous circumstances of a subsequent change in the law by the

legislature.

The punishment for the single offense must be imposed with a release eligibility of

100% which may be reduced to no less than 85% on the application of earned sentencing

credits. Tenn. Code Ann. §§40-35-501(i)(1)-501(i)(2)(K).

This Court is without the power or desire to question the legislature’s wisdom in

failing to accord retroactive effect to the later division of Mr. Jelks's offense into two separate

crimes. The record contains insufficient factual or legal basis for this Court to overturn a

seven year old conviction that is barred by the post-conviction statute of limitations.

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IV. Conclusion

Having carefully reviewed the record and based on the foregoing, we affirm the

judgments of the trial court.

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PAUL G. SUMMERS, Senior Judge

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