State v. Edward Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY 1997 SESSION

EDWARD EARL JONES, * C.C.A. # 02C01-9607-CR-00226

Appellant, * SHELBY COUNTY

VS. * Hon. Arthur T. Bennett, Judge

STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

FILED

For Appellant: For Appellee:

Edward Earl Jones, pro se Charles W. Burson August 27, 1997

#085890 Attorney General & Reporter

Cold Creek Correctional Facility

P.O. Box 1000 M. Allison Thompson

Henning, TN 38041-1000 Counsel for the StateCecil Crowson, Jr.

450 James Robertson Parkway

Nashville, TN 37243-0493 C ourt Clerk

Appellate

Perry Hayes

Assistant District Attorney General

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE

OPINION

The petitioner, Edward Earl Jones, appeals the trial court's denial of

post-conviction relief. The single issue presented for review is whether the petition

was barred by the statute of limitations.

We affirm the judgment of the trial court.

On August 11, 1977, the petitioner was convicted of aggravated rape,

for which he received a life sentence; robbery by the use of a deadly weapon, for

which he received an eight-year sentence; and crime against nature, for which he

received a sentence of not less than eight years nor more than twelve years. This

court affirmed the convictions on direct appeal. Edward Earl Jones v. State, No.

102 (Tenn. Crim. App., at Jackson, Feb. 29, 1980). An application for permission to

appeal to the supreme court was denied July 1, 1980.

On May 14, 1996, the petitioner filed a post-conviction petition,

challenging the validity of the rape conviction. The petitioner contended that there

were various irregularities regarding the affidavit of complaint, his arrest, and his

preliminary hearing in the General Sessions Court. He also argued that there were

deficiencies in the arraignment, the trial, the instructions to the jury, and the

sentencing procedure.

The trial court ruled that the petition was barred by the three-year

statute of limitations which had been in effect until repealed on May 10, 1995. See

Tenn. Code Ann. §§ 40-30-102 to -124 (repealed 1995).

In this appeal, the petitioner also complains that he should have been

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appointed counsel for assistance in his post-conviction claim. He contends that the

district attorney general failed to respond to his petition as required by statute:

The district attorney general shall represent the state and

respond by proper pleading on behalf of the state within

thirty (30) days after receiving notice of the docketing or

within such time as the court orders.

Tenn. Code Ann. § 40-30-114(a) (repealed 1995).

Initially, the dismissal of a colorable post-conviction claim, prior to the

1995 amendment, was rarely proper without the appointment of counsel. Swanson

v. State, 749 S.W.2d 731 (Tenn. 1988). If, however, it could be conclusively

determined from the pro se petition that the petitioner is not entitled to relief, a

summary dismissal is not precluded. A time-barred petition is a classic example.

See, e.g., Frederick v. State, 906 S.W.2d 927, 930 (Tenn. Crim. App. 1993) (petition

dismissed without the appointment of counsel when barred by statute of limitations).

Also, the failure of the district attorney general to participate would not warrant a

reversal unless the petitioner was prejudiced thereby. See Brown v. State, 445

S.W.2d 669 (Tenn. Crim. App. 1969). More importantly, the amendments to the

Post-Conviction Procedure Act, effective May 10, 1995, implemented substantial

changes. See Tenn. Pub. Act 207, §§ 1 and 3. Now, the trial judges must give

preliminary consideration to each petition. Tenn. Code Ann. § 40-30-206 (1996

Supp.). Because this petition was filed May 14, 1996, the amended act would apply

and, unless the claims fall within one of the statutory exceptions, a summary

dismissal without the appointment of counsel would be proper:

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 in the court of conviction or

within the time set forth in the statute of limitations, or

that a prior petition was filed attacking the conviction and

was resolved on the merits, the judge shall enter an

order dismissing the petition....

Tenn. Code Ann. § 40-30-206(b) (1996 Supp.).

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Here, the petitioner has made no claims that would qualify as an

exception to the statute of limitations. Tenn. Code Ann. § 40-30-202 (1996 Supp.);

see Burford v. State, 845 S.W.2d 204 (Tenn. 1992). Thus, under any interpretation

of the 1995 Act, this petition is barred by the statute of limitations. See Arnold

Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim. App., at Knoxville, July 11,

1996), appeal granted, (Tenn., Dec. 2, 1996).

__________________________________

Gary R. Wade, Judge

CONCUR:

______________________________

John H. Peay, Judge

_______________________________

Thomas T. Woodall, Judge

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