State v. Guillermo Juan

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED OCTOBER SESSION, 1998 February 18, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

GUILLERMO MATIAZ JUAN, ) C.C.A. NO. 03C01-9708-CR-00318 ) Appe llant, ) ) HAMILTON COUNTY V. ) ) ) HON. REBECCA J. STERN, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST -CON VICTIO N)

FOR THE APPELLANT: FOR THE APPELLEE:

GUIL LER MO MATIAZ JUAN , pro se JOHN KNOX WALKUP Southe astern T ennes see Sta te Attorney General & Reporter Region al Corre ctional Fa cility Route 4, Box 600 MICH AEL J. F AHEY , II Pikeville, TN 37367-9243 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

WILL IAM H. C OX, III District Attorney General

STAN LANZO Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION The Petitioner, Guillermo Matiaz Juan, appeals as of right from the trial

court’s order denying his petition for post-conviction relief. Petitioner was charged in the Hamilton C ounty Crimina l Court with first degree premeditated murder, felony murder, aggravated burglary, and theft. Pursuant to a plea agreement, Petitioner pled guilty to the lesser offense of second degree murder, and the remaining charges were dis misse d. The plea to second degree murder was taken on October 21, 1991. There was no direct appeal from this plea. Petitioner filed his petition for post-conviction relief on June 10, 1997. The trial court dismissed the petition on June 25, 1997 on the basis that the petition was barred by the applicable statute of limitations. W e affirm the judgm ent of the tria l court.

Relying upon Burford v. State, 845 S.W.2d 204 (Tenn. 1992), Petitioner asserts that his rights to due process were violated by application of the statute of limitations. Petitioner, in essence, argues that the statute of limitations at Tennessee Code Annotated section 40-30-102 (Repealed May 1, 1995) is not ap plicab le to him because he canno t read, write , or speak the E nglish languag e. Specifically, Petitione r sets forth in his brief:

Since he [Petitioner] cannot speak, read, or write the English language, his failure to comply with the three-year statute of limitations was intrinsically beyond his capabilities.

Petitioner also relies upon Wa tkins v. State , 903 S.W.2d 302 (Tenn. 1995). In Watkins, our sup reme c ourt held that application of the statute of limitations where a petitioner is m entally inco mpete nt during the period the statute

-2-is running would violate constitutional due pro cess. Id. at 305-06 (citing Burford, 845 S.W .2d at 205, 208 ).

Howeve r, in a factua l situation m ore akin to the case sub judice, our court in Phillips v. Sta te, 890 S.W.2d 37 (Tenn. Crim. App. 1994), held that the statute of limitatio ns wa s not to lled be caus e the p etitione r was in carce rated in another state. Specifically, our court stated:

The first issue argued is that the statute of limitations should not be applied to Defen dant’s po st-convictio n petition. The Defendant argues that he was in custody in Alabama when the statute ran. He argues that the sta tute of lim itations shou ld not apply to his petition because he was not and is not a resident of the state of Tennessee, he had no access to a law library which contained Tennessee law, he had no access to an app ointed law yer with knowledge of Tennessee law, and he was ‘effectively denied assistance of other in mate s kno wledg eable of the laws’ of Tennessee.

Phillips, 890 S.W .2d at 38 (em phasis add ed).

In an unre lated cas e, State v. Phillips, 904 S.W.2d 123, 124 (Tenn. Crim. App. 1995), our court more recently noted that “a petitioner’s ignorance of the existence of the statute of limitation, even when alleged to stem from a n attorn ey’s negligent failure to render advice to the petitioner, does not toll the running of the statute.” (Citing Raym ond D ean W illis v. State, No. 01C01-9211-CR-00359, Davidson Coun ty (Tenn . Crim. A pp., Oct. 2 1, 1993 ), perm. app. denied (Tenn. 1994).

It appears the law is well settled that mere ignorance of the law concerning the statute of limitations , or even th e existenc e of the sta tute of

-3-limitations, by whatever means (other than menta l incomp etence ), does n ot rise to the status of being vio lative of con stitutional du e proce ss.

According ly, the judgment of the trial court summa rily dismissing the petition for post-conviction relief because it was filed outside the statute of limitations is affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding Judge

___________________________________ DAVID H. WELLES , Judge

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