Opinion
C.C.A. No. 02C01-9810-CC-00313.
August 26, 1999.
Weakley County, Hon. William B. Acree, Judge.
REVERSED AND REMANDED
FOR THE APPELLANT:
DAVID LEE HUNDLEY, pro se FOR THE APPELLEE:
JOHN KNOX WALKUP, Attorney General Reporter, J. ROSS DYER, Assistant Attorney General, THOMAS A. THOMAS, District Attorney General, JAMES T. CANNON, Assistant District Attorney General.
OPINION
On November 2, 1992, Petitioner David Lee Hundley pled guilty to two counts of second degree murder. That same day, the trial court sentenced Petitioner to two consecutive twenty-five year terms in the Tennessee Department of Correction. On May 30, 1997, Petitioner filed a petition for post-conviction relief in which he alleged that he had received ineffective assistance of counsel at the guilty plea hearing. On June 24, 1997, the post-conviction court dismissed the petition because it was not filed within one year of the guilty plea hearing as required by the applicable statute of limitations. Petitioner challenges the dismissal of his petition, raising the following issue: whether the one year statute of limitations that governs the filing of post-conviction petitions was tolled by Petitioner's mental incompetency. After a review of the record, we reverse the judgment of the post-conviction court and we remand this case for further proceedings.
BACKGROUND
On September 3, 1991, the Weakly County Grand Jury indicted Petitioner David Lee Hundley for two counts of first degree murder, two counts of especially aggravated kidnapping, and one count of possession of a deadly weapon.
On November 4, 1991, the trial court ordered the hospitalization of Petitioner for thirty days in the Middle Tennessee Mental Health Institute ("MTMHI") and ordered an evaluation of Petitioner's competency to stand trial and sanity at the time of the commission of the offenses. Although the actual letter is not in the record, it appears that the staff of the MTMHI notified the trial court by letter dated January 13, 1992, that they had evaluated Petitioner and determined that he was insane at the time of the offenses and he was not competent to stand trial. On February 10, 1992, the trial court issued an order that recommitted Petitioner to the MTMHI for further evaluation. By letter dated April 14, 1992, the staff of the MTMHI notified the trial court that they had evaluated Petitioner and determined that although he was insane at the time of the offenses, his condition had improved and he was competent to stand trial.
On November 2, 1992, Petitioner pled guilty to two counts of second degree murder in return for the State's agreement to dismiss the other charges. That same day, the trial court imposed two consecutive twenty-five year sentences. On August 22, 1995, Petitioner filed a petition for post-conviction relief, claiming that he received ineffective assistance of counsel at the guilty plea hearing. On December 11, 1995, Petitioner filed a motion to dismiss his petition. The post-conviction court granted the motion to dismiss the petition by an order dated January 5, 1996.
On May 30, 1997, Petitioner filed the petition for post-conviction relief at issue in this case. In the petition, Petitioner alleged that when he dismissed his previous petition, he was "psychotic and unable to present anything in a logical orderly fashion," and was "actively hallucinating, deluding, and was probably suicidal." In addition, Petitioner alleged that he chose to withdraw his previous petition "because of his serious psychosis at the time." On June 24, 1997, the post-conviction court dismissed the petition without a hearing because it was not filed within one year as required by the statute of limitations.
ANALYSIS
Petitioner contends that the post-conviction court erred when it dismissed his petition because it was filed after the applicable one year statute of limitations had expired. Specifically, Petitioner contends that the statute of limitations was tolled by his mental incompetence.
When Petitioner filed his petition on May 30, 1997, the applicable statute of limitations provided that, with certain exceptions not relevant here,
a person in custody under a sentence of a court of this state must petition for post-conviction relief under this part 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, or consideration of such petition shall be barred. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or equity. Time 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 such an action and is a condition upon its exercise. Except as specifically provided in subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limitations period.
Tenn. Code Ann. § 40-30-202(a) (1997) (effective May 10, 1995).
Initially, Petitioner contends that his mental incompetency tolled this statute of limitations pursuant to Tennessee Code Annotated section 28-1-106, which states,
If the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or his representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceed three (3) years, and in that case within three (3) years from the removal of such disability.
Tenn. Code Ann. § 28-1-106 (1980). However, as this Court has previously stated, the express language of section 40-30-202 precludes the application of the saving provision of section 28-1-106 to the post-conviction statute of limitations. See John Paul Seals v. State, No. 03C01-9802-CC-00050, 1999 WL 2833, at *2 (Tenn.Crim.App., Knoxville, Jan. 6, 1999), perm. to appeal granted, (Tenn. 1999); Vikki Lynn Spellman v. State, No. 02C01-9801-CC-00036, 1998 WL 517840, at *1 (Tenn.Crim.App., Jackson, Aug. 21, 1998), perm. to appeal granted, (Tenn. 1999). Thus, section 28-1-106 has no application in this case.
Petitioner also contends that his mental incompetency tolled the statutes of limitations under Watkins v. State, 903 S.W.2d 302 (Tenn. 1995). In Watkins, the Tennessee Supreme Court addressed the previous post-conviction statute, which contained a three year statute of limitations and did not contain an "anti-tolling" provision. See Tenn. Code Ann. §§ 40-30-101 to -124 (1990). The supreme court held that even in the absence of the saving provision of section 28-1-106, principles of constitutional due process would be offended by application of the statute of limitations in the case of mental incompetence. Watkins, 903 S.W.2d at 305-06. The supreme court stated that if the petitioner's "allegations of incompetency prove to be valid, application of the statute of limitations would effectively deprive him of an opportunity to challenge his conviction in a meaningful time and manner." Id. at 306.
The State contends that Watkins is no longer applicable because it was based on the previous post-conviction statute and the Legislature included an "anti-tolling" provision in section 40-30-202(a) when it enacted the statute in 1995. However, as previously stated by this Court, section 40-30-202(a) "may not eliminate a constitutionally required tolling provision." Vikki Lynn Spellman, 1998 WL 517840, at *2. See also John Paul Seals, 1999 WL 2833, at *2. Thus, Petitioner is correct that mental incompetency acts to toll the statute of limitations.
We note that Petitioner did not specifically allege in his petition that he was incompetent for the entire period from the effective date of section 40-30-202(a) on May 10, 1995, until he filed the petition at issue in this case on May 30, 1997. If Petitioner was competent for one year during this time period, the statute of limitations expired prior to his filing on May 30, 1997. Thus, even on the face of the petition, Petitioner did not sufficiently allege facts that would show that the filing was timely. However, this Court held in Vikki Lynn Spellman that even though the petition in that case did not allege facts sufficient to toll the statute of limitations, other facts in the record were sufficient to justify remanding the case for a determination of whether the statute of limitations had been tolled by the petitioner's mental incompetency. 1998 WL 517840, at *3-4. We conclude that this case presents a similar situation that requires remand.
The record indicates that on November 4, 1991, the trial court ordered the hospitalization of Petitioner in the MTMHI and ordered an evaluation of Petitioner's competency to stand trial and sanity at the time of the commission of the offenses. On January 13, 1992, the MTMHI staff informed the trial court that their evaluation indicated that Petitioner was insane at the time of the offenses and he was not competent to stand trial. On February 10, 1992, the trial court issued an order that recommitted Petitioner to the MTMHI for further evaluation. On April 14, 1992, the MTMHI staff informed the trial court that they had evaluated Petitioner and determined that although he was insane at the time of the offenses, his condition had improved and he was competent to stand trial. On October 26, 1992, the trial court ordered the MTMHI staff to supervise Petitioner on a weekly basis, monitor his medication, evaluate his competency to stand trial, and report back to the court. On October 9, 1995, the post-conviction court issued an order that stated that because there was a question about Petitioner's competency to participate in the prosecution of his first petition, Petitioner should be evaluated to determine his mental competency. Unfortunately, the record does not contain the results of this evaluation.
Although the petition in this case does not allege facts sufficient to warrant a tolling of the statute of limitations, the record does contain evidence of prior mental health problems that warrants further findings of the post-conviction court in order to determine whether appropriate grounds exist for the tolling of the statute of limitations under the due process rationale of Watkins. However, we note that although Petitioner has surpassed the threshold for avoiding summary dismissal of his petition, he has not proven his claim and the burden remains on him to establish that he was mentally incompetent during the relevant time period.See John Paul Seals, 1999 WL 2833, at *4.
Upon remand, the post-conviction court should appoint counsel to represent Petitioner and should determine whether the statute of limitations was tolled by mental incompetency. The one year statute of limitations became effective on May 10, 1995, and Petitioner filed his petition on May 30, 1997. If Petitioner was competent for one year between May 10, 1995, and May 30, 1997, the statute of limitations expired and the petition is untimely. If Petitioner was not competent for one year between May 10, 1995, and May 30, 1997, the petition was timely and the court should address the merits of Petitioner's claims.
We note that the statute of limitations can be tolled only during periods of incompetency. Thus, the one year of competency could consist of one continuous period or it could consist of two or more periods of competency that are equal to one year when added together. For instance, if a petitioner is competent for the initial ten month period of the statute of limitations and then is incompetent for three months, he or she would have only two months following a return of competency in which to file a petition.
For the reasons stated above, we vacate the judgment of the post-conviction court and we remand this case for appointment of counsel and for further proceedings consistent with this opinion.
____________________________________ THOMAS T. WOODALL, Judge
CONCUR:
___________________________________ JOHN H. PEAY, Judge
___________________________________ JOE G. RILEY, Judge
DISSENTING OPINION
I respectfully disagree with the majority opinion's conclusion that the petitioner was no longer entitled to an attorney because of his abuse of the post-conviction process. First, I do not believe that the record shows the petitioner's abuse of process. Second, I do not believe that the trial court provided the petitioner with an adequate hearing regarding the attorneys' motions to withdraw or an adequate post-conviction hearing.
The initial concern I have relates to whether or not there was a full understanding by the participants as to the duties and authority of an attorney for a post-conviction petitioner. Our supreme court has stated the basic obligations of a post-conviction attorney in Rule 28, § 6(c) (2), Tenn. S.Ct. R.:
Appointed or retained counsel shall be required to review the pro se petition, file an amended petition asserting other claims which petitioner arguably has or a written notice that no amended petition will be filed, interview relevant witnesses, including petitioner and prior counsel, and diligently investigate and present all reasonable claims.
(emphasis added). Also, counsel should file a certification affirming that the attorney has discussed the possible constitutional violations with the petitioner and has raised all non-frivolous constitutional grounds. See Tenn. S.Ct. R. 28, § 6(C) (3), Appendix C.
These provisions in support of the 1995 Post-Conviction Procedure Act focus upon ensuring that all potential grounds for relief that a petitioner may have will be aired fully and fairly in one proceeding and decided upon their merits. See Martucci v. State, 872 S.W.2d 947, 949 (Tenn.Crim.App. 1993) (noting that "[t]he concept behind post-conviction petitions . . . is that all claims of constitutional rights deprivations in the conviction or sentencing process be addressed in one petition."). The Post-Conviction Act provides counsel within this context. That is, the provision of counsel is meant to assist in ensuring that all available grounds for relief are fully aired at one time and not to obstruct such an airing.
On the other hand, when a petitioner seeks and obtains the aid of counsel through court appointment, the petitioner needs to understand that the right to make the large majority of the decisions relating to the conduct of the case then rests with the attorney. With respect to the role of counsel at post-conviction proceedings, the American Bar Association's Standards for Criminal Justice provide that "the responsibility of a lawyer in a post-conviction proceeding should be guided generally by the standards governing the conduct of lawyers in criminal cases."ABA Standards for Criminal Justice, Defense Function, Defense Function Standard 4-8.5 (3d ed. 1993). With respect to general decisions regarding the control and direction of criminal cases, the ABA Standards provide the following:
(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel include:
(i) what pleas to enter;
(ii) whether to accept a plea agreement;
(iii) whether to waive jury trial;
(iv) whether to testify in his or her own behalf; and
(v) whether to appeal.
(b) Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate. Such decisions include what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and what evidence should be introduced.
(c) If a disagreement on significant matters of tactics or strategy arises between defense counsel and the client, defense counsel should make a record of the circumstances, counsel's advice and reasons, and the conclusion reached. The record should be made in a way which protects the confidentiality of the lawyer-client relationship.
Defense Function Standard 4-5.2.
In other words, although the attorney is obligated to ensure that all arguable grounds for relief are raised and investigated and that all reasonable grounds are ultimately presented, the attorney need not raise, investigate, or present frivolous or groundless claims. Also, the attorney must reasonably consult with the client, but the attorney has the right to make strategic and tactical decisions. This means that no matter how strident the client in demanding a particular investigation, demanding a particular claim be raised at the hearing, or calling for certain witnesses, those decisions remain with the attorney in his or her professional judgment.
When I consider the above principles and the professional obligations of attorneys, I do not believe that the attorneys' motions in the present case justify, by themselves, the right to withdraw. The second attorney's only assertion was that "during the course of my representation, the client has insisted that I pursue or present claims that cannot be supported by good faith argument." However, the fact that the petitioner insists in such a manner does not mean that the attorney had to do anything improper.
The third attorney sought to withdraw because:
the Petitioner insists upon a hearing strategy that [counsel] is unable to conduct in good faith and that Petitioner repeatedly makes unreasonable demands upon appointed counsel as to how his case should be presented. For example, the Petitioner insists that appointed counsel subpoena over 37 witnesses, introduce about a dozen affidavits, conduct a thorough background check on the victim, including credit and military history and telephone records, ask for funds to obtain experts for blood and fiber tests, obtain and send to him trial exhibits and prosecution files, obtain blood test results from California, as well as other investigative and legal inquiries.
The attorney also asserts that the petitioner claimed that the attorney was violating the petitioner's constitutional rights by not acting upon the petitioner's demands. The attorney states that the petitioner will not be satisfied with him and will call his representation a sham. Finally, the attorney "foresees subsequent complaints against him to disciplinary boards or the Courts, which, although frivolous, will require time, energy, and anxiety to address." Again, within the context of the attorney's professional obligations and duties under the Post-Conviction Act and Rules, the attorney need not accede to the petitioner's demands that relate to how the case should be conducted. That is, the fact that the petitioner is making demands does not prevent the attorney from meeting his professional responsibilities in representing the petitioner.
Attorneys who are appointed to represent post-conviction petitioners provide substantial benefits to our system of justice. This is partly because they are burdened with special obligations that result from appointment. They cannot pick and choose their appointed clients nor can they freely decide to cease representation of a difficult client as retained counsel might be able to do in many areas of the law. The system needs appointed attorneys to deal with poorly drafted pro se documents, inaccurate allegations, and unhappy petitioners who are often seeking freedom from prison by whatever means they can find. Moreover, once the attorneys are appointed, their profession requires it of them.
I acknowledge that a petitioner's conduct can result in a loss of the statutory right to counsel in a post-conviction case. However, I do not believe that the record in the present case shows such conduct. In this respect, the present case is substantially different from Cazes v. State, 980 S.W.2d 364 (Tenn. 1998), upon which the majority opinion relies in holding that the petitioner abused the process so as to deny him access to counsel. In Cazes, the petitioner filed successive post-conviction petitions which the trial court allowed him to withdraw. When the petitioner filed a third petition and again demanded withdrawal, the trial court refused and dismissed the petition with prejudice. The petitioner filed a fourth petition which was also dismissed upon the state's motion. On appeal, the Tennessee Supreme Court held that those "who abuse the process cannot be heard to complain when access to the remedy is denied." 980 S.W.2d at 365. In the present case, the record does not reflect that the petitioner sought the removal of his attorneys; rather, the attorneys sought to withdraw. No evidence exists in the record to show that the petitioner abused the judicial process.
Also, I believe that it is significant that none of the attorneys filed an amendment to the petitioner's pro se petition nor did they file a written notice that no amended petition would be filed. The trial court should have made further inquiry relative to counsel's actions and the petitioner's demands before allowing counsel to withdraw.
Moreover, I believe that the trial court should not have required the petitioner to proceed to hearing as his own counsel only thirteen days after the third attorney was allowed to withdraw. The record indicates that little, if anything, had been done by counsel on the petitioner's behalf. Needless to say, the imprisoned petitioner had little capability in such short time to prepare for the hearing. In this respect, I do not believe that the petitioner has had a legitimate opportunity for a full and fair hearing on his post-conviction claims.
In consideration of the foregoing, I dissent from the majority opinion. I would reverse the dismissal and remand the case to the trial court with the appointment of counsel for the petitioner's further opportunity to pursue his post-conviction claims.
________________________ Joseph M. Tipton, Judge