KENNETH DEWAYNE JOHNSON v. STATE OF TENNESSEE

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned On Briefs June 17, 2014

KENNETH DEWAYNE JOHNSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2011-C-2232 Steve Dozier, Judge

No. M2013-02491-CCA-R3-PC - Filed July 24, 2014

Petitioner, Kenneth Dewayne Johnson, pled guilty to aggravated assault in Davidson County

on November 17, 2011. On June 10, 2013, Petitioner filed a pro se petition for post-

conviction relief, alleging that the trial court lacked jurisdiction because the foreman of the

grand jury that issued the indictment was ineligible to serve for being a convicted felon.

Petitioner also asserted that he received ineffective assistance of counsel and entered an

unknowing and involuntary plea. The post-conviction court dismissed the petition as

untimely. On August 16, 2013, Petitioner, with the assistance of counsel, filed a second

petition for post-conviction relief, arguing that the statute of limitations should be tolled in

his case because the ineligibility of the grand jury foreman was not made public knowledge

until after the statute of limitations had expired and was, therefore, a “later-arising” ground

for relief. The post-conviction court dismissed the petition, finding that the ineligibility of

the grand jury foreman did not divest the trial court of jurisdiction and that Petitioner was not

denied effective assistance of counsel. Petitioner appealed. Upon a thorough review of the

law and the facts in this case, we affirm the decision of the post-conviction court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and

R OGER A. P AGE, JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Kenneth Dewayne Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; Rachel Sobrero,

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

OPINION

Factual Background

In July of 2011, the third session of the Davidson County Grand Jury was empaneled

and a foreman was appointed. This grand jury issued over 900 indictments, one of which

was indictment number 2011-C-2232, charging Petitioner with one count of aggravated

assault of a police officer. In January of 2013, it came to light that the grand jury foreman

had been convicted of a felony back in 1977 and was therefore ineligible to serve. See

T.C.A. § 22-1-102(1); Tenn. R. Crim. P. 6(g)(2). It was this revelation that prompted

Petitioner to file for post-conviction relief and which eventually led to this appeal.

On November 17, 2011, Petitioner pled guilty to aggravated assault and received a

sentence of six months in incarceration and four years on probation. On January 4, 2013, the

trial court revoked Petitioner’s probation and placed his four-year sentence into effect. On

June 10, 2013, Petitioner filed a pro se petition for post-conviction relief, which was

dismissed by the post-conviction court as untimely.

On August 16, 2013, Petitioner filed a second post-conviction petition with the

assistance of counsel, arguing that the statute of limitations for post-conviction petitions

should be tolled in his case because he did not become aware of his asserted grounds for

relief until the status of the grand jury foreman as a convicted felon became public

knowledge in early 2013. He argued that the indictment was invalid because of the ineligible

foreman, that he received ineffective assistance of counsel, and that his guilty plea was

unknowingly and involuntarily entered. The State argued that the statute of limitations

should not be tolled because the asserted grounds for relief did not arise after the limitations

period would have normally begun to run. Additionally, the State contended that the defect

in the indictment did not divest the trial court of jurisdiction and that Petitioner waived his

challenge to the defect by not raising it prior to his plea.

On October 3, 2013, the post-conviction court held a brief hearing to determine

whether it should toll the statute of limitations and grant Petitioner a hearing for post-

conviction relief. On October 17, 2013, the post-conviction court issued an order dismissing

the petition, finding that the trial court had jurisdiction over Petitioner’s case when he entered

his guilty plea and that he was not denied effective assistance of counsel. Petitioner filed a

timely notice of appeal.

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Analysis

Under the Post-Conviction Procedure Act, relief is available when a conviction “is

void or voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A petition for

post-conviction relief must be filed within one year of the date on which the judgment

became final if no direct appeal was taken. T.C.A. §40-30-102(a). Our legislature

emphasized the fact that “[t]ime is of the essence of the right to file a petition for

post-conviction relief,” id., and provided only three narrow exceptions to the statute of

limitations: (1) a new constitutional right with retrospective application; (2) new scientific

evidence establishing actual innocence; and (3) the invalidation of convictions underlying

an enhanced sentence. T.C.A. § 40-30-102(b).

However, the right to due process may necessitate tolling the statute of limitations in

certain circumstances outside of the enumerated statutory exceptions. See Burford v. State,

845 S.W.2d 204 (Tenn. 1992); Seals v. State, 23 S.W.3d 272 (Tenn. 2000). “[B]efore a state

may terminate a claim for failure to comply with procedural requirements such as statutes of

limitations, due process requires that a potential litigant be provided an opportunity for

‘presentation of claims at a meaningful time and in a meaningful manner.’ The test is

‘whether the time period provides an applicant a reasonable opportunity to have the claimed

issue heard and determined.’” Seals, 23 S.W.3d at 277-78 (quoting Burford, 845 S.W.2d at

207). “Whether due process considerations require tolling of a statute of limitations is a

mixed question of law and fact, which we review de novo with no presumption of

correctness.” Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011) (quoting Harris v. State, 301

S.W.3d 141, 145 (Tenn. 2010)).

One type of situation in which our supreme court has held that due process requires

tolling of the statute of limitations is “when the grounds for relief, whether legal or factual,

arise. . . after the point at which the limitations period would normally have begun to run.”

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). To determine whether the statute of

limitations should be tolled because of “later-arising” grounds for relief, the supreme court

in Sands set out a three-step process:

(1) determine when the limitations period would normally have begun to run;

(2) determine whether the 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.

Id.

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Under the first step of the Sands test, Petitioner’s limitation period began to run thirty

days after the entry of his guilty plea. See State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003)

(“[A] judgment of conviction entered upon a guilty plea becomes final thirty days after

acceptance of the plea agreement and imposition of sentence.”). Therefore, without tolling,

the statute of limitations in Petitioner’s case expired in December of 2012. As to the second

step of the Sands test, we must determine when the asserted grounds for relief – a defective

indictment and ineffective assistance of counsel – actually arose. We will address each

asserted ground in turn.

I. Defective Indictment

Petitioner alleges that the indictment in his case is void on its face because the grand

jury foreman was a convicted felon and thus ineligible to serve on the grand jury. See T.C.A.

§ 22-1-102(1); Tenn. R. Crim. P. 6(g)(2). However, this is not a cognizable ground for relief

under post-conviction as it is a statutory violation rather than a constitutional violation. See

T.C.A. § 40-30-103. While the constitution does guarantee an accused the right to be

informed of the nature and cause of the accusation, it does not create a right to an indictment

free from defect. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (recognizing “that an

indictment need not conform to traditionally strict pleading requirements”); see also State

v. Nixon, 977 S.W.2d 119, 121 (Tenn. Crim. App. 1997) (holding that “defects in the

indictment that go to matters of form rather than substance” can be waived if not objected

to prior to trial). To satisfy the constitutional requirements, an indictment must “1) provide

notice to the accused of the offense charged; 2) provide the court with an adequate ground

upon which a proper judgment may be entered; and 3) provide the defendant with protection

against double jeopardy.” State v. Lindsey, 208 S.W.3d 432, 438 (Tenn. Crim. App. 2006)

(quoting Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000)). Petitioner has not alleged that

the indictment either failed to provide him with adequate notice of the offense charged or that

it fails to protect him from double jeopardy. The issue is whether the indictment, signed by

an ineligible grand jury foreman, was “so defective as to deprive the court of jurisdiction.”

Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998).

This Court recently addressed the jurisdictional implications of a convicted felon

serving as grand jury foreman in a case arising out of the same term of the Davidson County

Grand Jury. See State v. Leonel Lopez, No. M2013-01264-CCA-R3-CD, 2014 WL 715447

(Tenn. Crim. App., at Nashville, Feb. 24, 2014). In that case, we held that “[t]he status of

the grand jury foreman as a convicted felon does not relate to the power of the court to hear

and decide a case”; therefore, the trial court did not lack subject matter jurisdiction. Id. at

*8. We held that, under Tennessee Rule of Criminal Procedure 12(b)(2)(B), “‘all objections

or defects in the indictment[,] other that those [related to the subject matter jurisdiction of

the court and failure to charge an offense,]’ must be raised prior to trial or will result in

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waiver.” Id. (quoting Nixon, 977 S.W.2d at 121) (alterations in original).1

Because the eligibility of the grand jury foreman is not a jurisdictional element

necessary for a constitutionally valid indictment, this is not a cognizable ground for relief

under post-conviction, regardless of when it may have arisen. Therefore, this does not

constitute a “later-arising” ground for relief for which the statute of limitations should be

tolled under Sands. See 903 S.W.2d at 301. Additionally, Petitioner’s guilty plea serves as

a waiver all non-jurisdictional defects in the indictment. See State v. Pettus, 986 S.W.2d 540,

542 (Tenn. 1999). Therefore, the post-conviction court properly dismissed Petitioner’s

petition on this ground.

II. Ineffective Assistance of Counsel

The second ground for relief raised by Petitioner is that he received ineffective

assistance of counsel, and thus entered into an unknowing and involuntary guilty plea. Both

the Sixth Amendment to the United States Constitution and Article I, Section 9 of the

Tennessee Constitution guarantee the right of an accused to the effective assistance of

counsel. To support a claim for ineffective assistance of counsel, a post-conviction petition

would have to contain sufficient factual assertions to satisfy the two-pronged test established

by Strickland v. Washington, 466 U.S. 668 (1984). In other words, Petitioner “must show

first that counsel’s performance was deficient and second that the deficient performance

prejudiced the defense.” Burnett v. State, 92 S.W.3d 403, 408 (Tenn. 2002). The test for

deficient performance is “whether counsel’s assistance was reasonable considering all the

circumstances,” Strickland, 466 U.S. at 688, and whether it was “within the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975).

Petitioner alleges that he received ineffective assistance of counsel because his trial

attorney failed to inform him that the grand jury foreman was a convicted felon and allowed

him to plead guilty to a facially invalid indictment. We have already held that the indictment

was not rendered void on its face because of the ineligibility of the grand jury foreman.

Therefore, trial counsel’s performance was not deficient in allowing Petitioner to enter a

guilty plea on this indictment.

1

Other jurisdictions addressing the issue of an ineligible grand jury member have held that a

defendant is not entitled to relief absent a showing of prejudice. See United States v. Hefner, 842 F.2d 731,

733 (4th Cir. 1988); People v. White, 44 A.D.2d 749, 749 (N.Y.A.D. 1974); Terry Mills v. Commonwealth,

2004 WL 68543, at *1 (Ky. App. 2004); accord. Nixon, 977 S.W.2d at 121 (“Notwithstanding the

applicability of the waiver provision, the court may grant relief from the waiver if the defendant has shown

actual prejudice resulting from the defect in the indictment.”). No showing of prejudice was made in this

case.

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The argument could be raised that failing to challenge the indictment in a timely

manner under Tennessee Rule of Criminal Procedure 12(b)(2)(B) constitutes deficient

performance. However, Petitioner asserted that “there [was] no reasonable way he could

have known [that the grand jury foreman was a convicted felon] until the information was

made public in early 2013,” and the State admitted that the Davidson County District

Attorney’s Office did not become aware of the issue until January 2013. Therefore, it would

not be reasonable to expect that Petitioner’s trial counsel should have been aware of the

defect prior to the time Petitioner entered his guilty plea in 2011. We find that the

performance of Petitioner’s trial counsel was not deficient under the Strickland standard, and

thus we need not address the issue of prejudice. See Hicks v. State, 983 S.W.2d 240, 246

(Tenn. Crim. App. 1998) (defining prejudice in the context of a guilty plea to mean, “but for

counsel’s errors, [the defendant] would not have pleaded guilty but would have insisted upon

going to trial” (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

Moreover, even if we were to find that Petitioner has asserted a valid ground for relief

with his ineffective assistance of counsel claim, there is the matter of whether this ground

for relief is “later-arising” and should thereby toll the statute of limitations under the criteria

set out in Sands. See 903 S.W.2d at 301. Theoretically, Petitioner’s trial counsel could have

investigated the background of the grand jury foreman and raised an objection prior to

Petitioner entering his guilty plea, regardless of when the information about the foreman’s

background became public.2 Therefore, this ground for relief existed during the statutory

limitations period and is not “later-arising.” The fact that Petitioner claims that he was not

aware of the defect in the indictment – and, presumably, the ineffectiveness of counsel for

failing to challenge it – until after the statute of limitations had expired is not sufficient to

toll the statute of limitations. See Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App.

1996) (determining that “the petitioner’s claimed lack of knowledge does not toll the statute

for post-conviction purposes”). Therefore, even if we were to find that Petitioner’s claim

might have some merit, his claim would be time-barred and he would not be entitled to relief.

Conclusion

For the foregoing reasons, we affirm the decision of the post-conviction court.

___________________________________

JERRY L. SMITH, JUDGE

2

The name of the grand jury foreman was published in the Nashville Scene pursuant to Tennessee

Code Annotated section 40-12-105, and criminal convictions are public record.

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