Opinion
No. M2008-00244-CCA-R3-PC.
Filed May 30, 2008.
Appeal from the Circuit Court for Rutherford County; No. F-27110; Don R. Ash, Judge.
Judgement of the Circuit Court Affirmed Pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals.
Johnnie L. McGowan, Jr., Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.
David H. Welles, J., delivered the opinion of the court, in which Jerry L. Smith, and Robert W. Wedemeyer, JJ., joined.
MEMORANDUM OPINION
The Petitioner, Johnny L. McGowan, Jr., appeals from the order of the trial court dismissing his petition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.
The record before us reflects that on April 7, 1993, the Petitioner pleaded guilty to and was convicted of three counts of aggravated assault. He received a sentence of five years to be served in the Department of Correction for each conviction. His sentences were ordered to be served concurrently.
On December 13, 2007, the Petitioner filed a petition for post-conviction relief accompanied by a motion to toll the statute of limitations. His primary allegation as grounds for relief is that the grand jury which indicted him acted illegally when they indicted him on charges other than what were originally bound over to the grand jury from the general sessions court. The Petitioner asserted in his petition that the statute of limitations should be tolled because the original indictment violated the Petitioner's due process rights and that he has scientific evidence consisting "of a technical record and expert testimony" that establishes that the Petitioner is actually innocent of the crimes with which he was charged in the indictment. The essence of his argument appears to be that if the case had gone to trial, the Petitioner could have presented witnesses which would have demonstrated that he was not guilty of the crime.
The trial court found that the allegation in the petition did not support a claim of new scientific evidence establishing that the Petitioner was actually innocent of the crimes for which he was convicted upon his plea of guilty. The trial court also determined that the petition demonstrated no reason why the statute of limitation should be tolled based upon a violation of the Petitioner's due process rights. The trial court thus determined that the petition was barred by the one-year statute of limitations and summarily dismissed the petition. It is from the order of the trial court dismissing the petition, and also overruling a motion to reconsider the order of dismissal, that the Petitioner appeals.
A person in custody under a sentence of a court of this state must petition for post-conviction relief 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 from the date on which the judgment becomes final. See Tenn. Code Ann. § 40-30-102(a). If the petition is not filed within one year, consideration of the petition by the trial court is barred. Id. It is apparent from the record in this case that the petition was not filed within the time allowed by the statute of limitations.
Our legislature has provided only limited exceptions to the application of the statute of limitations. See Tenn. Code Ann. § 40-30-102(b). Although the Petitioner alleges that the statute of limitations should be tolled, an examination of the petition and the arguments presented on appeal reveal no facts or grounds under which due process would require that the statute of limitation not be strictly applied to the petition nor any reason supporting any other exception to the application of the statute of limitations.
We conclude that the trial court did not err by summarily dismissing the petition for post-conviction relief as time-barred. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.