Derrick Brandon Bush v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 8, 2012 Session

DERRICK BRANDON BUSH V. STATE OF TENNESSEE

Appeal from the Criminal Court of Sumner County
No. 308-2011 Dee David Gay, Judge

No. M2011-02133-CCA-R3-PC - Filed June 15, 2012

Derrick Brandon Bush (“the Petitioner”) pled guilty to two counts of attempt to commit rape
in December 2000. On April 25, 2011, the Petitioner filed for post-conviction relief, alleging
that his guilty plea was unconstitutional in light of Ward v. State, 315 S.W.3d 461 (Tenn.
2010), and that the one-year post-conviction statute of limitations should be tolled. After a
hearing, the post-conviction court granted relief. The State appealed. Upon our thorough
review of the record, we hold that the rule announced in Ward does not apply retroactively.
Therefore, the Petitioner is not entitled to tolling of the statute of limitations pursuant to
Tennessee Code Annotated section 40-30-102(b)(1). We also hold that the Petitioner is not
entitled to tolling on due process grounds. Thus, the Petitioner’s claim for relief is barred
by the statute of limitations. Accordingly, we reverse the judgment of the post-conviction
court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment
of the Criminal Court Reversed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Robert E. Cooper, Jr., Attorney General & Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; L. Ray Whitley, District Attorney General; Sallie Wade Brown, Assistant
District Attorney General, for the appellant, State of Tennessee.

J. Branden Bellar, Carthage, Tennessee, for the appellee, Derrick Brandon Bush.
 OPINION

I. Factual and Procedural Background

The Defendant was charged with seven or eight counts of rape in September 2000.1
In December 2000, the Defendant accepted a plea bargain offer and pled guilty to two counts
of attempt to commit rape. Pursuant to the plea agreement, the Petitioner was sentenced to
four years on each count, to be served consecutively, and suspended after one year of service
in confinement. During the plea colloquy, the trial court did not inform the Petitioner that
his sentence included mandatory lifetime community supervision. See Tenn. Code Ann.
§ 39-13-524 (Supp. 2000).

On April 25, 2011, the Petitioner filed a claim for post-conviction relief, alleging that
he did not learn of the lifetime supervision requirement until “advised by his probation
officer upon the expiration of his four (4) years sentence after serving one (1) year in jail.” 2
He claimed that his lawyer was ineffective in failing to inform him of the requirement and
that he would not have pled guilty had he been aware of the mandatory lifetime supervision
requirement. He also asserted that his plea is constitutionally infirm under the rule
announced in Ward v. State, 315 S.W.3d 461 (Tenn. 2010), and that the one-year statute of
limitations applicable to post-conviction proceedings should be tolled.

The record on appeal does not contain the State’s response. However, the post-
conviction court ordered a “limited evidentiary hearing” which was held on September 8,
2011. At the hearing, the State acknowledged that “there was no mention during the [guilty
plea] [s]ubmission [h]earing of lifetime supervision.” The State also acknowledged that the
Petitioner’s trial lawyer “recall[ed] no discussion with [the Petitioner] concerning lifetime
supervision.” The State argued that, irrespective of what occurred before and during the plea
hearing, Ward did not establish a new constitutional rule and “retroactive application is not
required.” Accordingly, the State asserted, the Petitioner’s claim for relief was time-barred.

The Petitioner argued that Ward established a new constitutional rule and that
retroactive application was required. The Petitioner acknowledged that, on the original

1
The indictment is not in the record before us. The judgments of conviction refer to counts one
through eight. At the plea hearing, the trial court referred to “a multi-count indictment charging . . . rape.”
The post-conviction court referred to “a seven count indictment for rape.”
2
We note the chronological discrepancy in the Petitioner’s allegation. His effective sentence was
eight years, suspended after one year of confinement. Therefore, the Petitioner should have met with his
probation officer earlier than four years after sentence was imposed. Moreover, his sentence did not expire
after four years, but after eight, because his sentences were ordered to be served consecutively.

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judgment forms entered on his two convictions, a handwritten notation indicates “Lifetime
supervision upon release.”3 The Petitioner, however, claimed that he did not receive a copy
of his judgments and did not become aware of the supervision requirement until his probation
officer informed him years later.

The post-conviction court noted that the Petitioner’s claim for post-conviction relief
had been filed outside the one-year statute of limitations, but within one year of the Ward
decision. The court further found that the Petitioner was never informed of the lifetime
supervision requirement in conjunction with his plea. After reviewing Ward and the post-
conviction statute, the court ruled that due process considerations required tolling of the
statute of limitations and that, pursuant to Ward, the Petitioner’s guilty plea was
constitutionally infirm. Based upon these rulings, the post-conviction court granted relief.
The State now appeals the grant of post-conviction relief.

II. Analysis

A. Standard of Review

Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims that the statute of limitations
must be tolled, our review is de novo with no presumption of correctness. See, e.g., Smith
v. State, 357 S.W.3d 322, 355 (Tenn. 2011).

3
The amended judgment order entered on Count 3 does not contain a reference to lifetime
supervision.

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 B. The Post-Conviction Statute of Limitations

At issue in this case is whether the Petitioner is entitled to post-conviction relief in
spite of his claim for relief having been filed more than ten years after his judgments of
conviction became final, clearly later than the one-year statute of limitations applicable to
petitions for post-conviction relief. See Tenn. Code Ann. § 40-30-102(a) (2006). The
Petitioner is claiming that he is entitled to have the statute of limitations tolled on the basis
of the Tennessee Supreme Court’s recent decision in Ward, which he argues established a
new rule of constitutional law that must be applied retroactively to cases on collateral review.
See id. § 40-30-102(b)(1). The State contends that Ward did not establish a new
constitutional right, but “merely clarified the responsibility of the trial courts to ensure the
protection of a defendant’s already-existing constitutional Due Process rights under the Fifth
Amendment of the United States Constitution.”

The Petitioner’s argument stems from a very narrow exception to the one-year post-
conviction statute of limitations, which provides that a petitioner may be entitled to have the
limitations period tolled where “[t]he claim in the petition is based upon a final ruling of an
appellate court establishing a constitutional right that was not recognized as existing at the
time of trial, if retrospective application of that right is required.” Tenn. Code Ann. § 40-30-
102(b)(1). The plain language of this provision makes clear that any claim thereunder is
subject to a two-prong inquiry. The first prong is whether there has been a new rule of
constitutional law established. If the answer to this question is affirmative, then the second
prong requires a determination of whether the new rule must be applied retrospectively to
cases on collateral review. See, e.g., Rene S. Guevara v. State, No. W2011-00207-CCA-R3-
PC, 2012 WL 938984, at *2-3 (Tenn. Crim. App. Mar. 13, 2012) (in analyzing whether a
United States Supreme Court decision entitled the petitioner to tolling pursuant to section
-102(b)(1), this Court first determined that the decision established a new rule and, second,
considered whether the decision applied retroactively to cases on collateral review).

Thus, in analyzing the Petitioner’s claim, we must determine whether the Tennessee
Supreme Court’s recent decision in Ward v. State established a new rule of constitutional law
and, if so, whether it must be applied retroactively in cases on collateral review. This is an
issue of first impression before this Court. We begin our analysis by recognizing the
existence of differing statutory and common law approaches regarding the analytical
framework to utilize in addressing this issue. We first attempted to reconcile these differing
approaches. Unfortunately, despite our best efforts, this is a feat we have been unable to
accomplish. Lacking the authority to resolve these differences, we will analyze both prongs
of our inquiry under both the statutory approach and the common law approach.

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 C. The Ward Decision

At issue in Ward was whether the petitioner’s guilty plea was constitutionally infirm
because the trial court did not inform him that, as a result of his plea of guilty to aggravated
sexual battery, he was subject to “a mandatory sentence of community supervision for life
in addition to his incarceration.” Ward, 315 S.W.3d at 465. Recognizing that “[c]ourts are
constitutionally required to notify defendants of only the direct consequences – not the
collateral consequences – of a guilty plea,” id. at 467, the court proceeded to analyze whether
the lifetime community supervision requirement was a direct or collateral consequence of the
petitioner’s guilty plea. Concluding that the requirement was a punitive, and therefore direct,
aspect of the petitioner’s sentence, the court held:

the mandatory sentence of lifetime supervision imposed in addition to other
statutorily authorized punishment is a direct and punitive consequence of a
plea of guilty to the crimes enumerated in Tennessee Code Annotated section
39-13-524(a). Consequently, trial courts have an affirmative duty to ensure
that a defendant is informed and aware of the lifetime supervision requirement
prior to accepting a guilty plea.

Id. at 476.

In short, our supreme court construed a state statute, within the context of the federal
and state constitutional paradigms for valid guilty pleas, in order to determine whether the
statutorily mandated lifetime community supervision requirement for sex offenses was a
direct or collateral consequence of conviction. In so doing, our supreme court issued an
opinion that impacts a criminal defendant’s due process rights under the federal and state
constitutions and required that a defendant pleading guilty to certain offenses be informed
of the lifetime community supervision aspect of his or her sentence.

D. Whether Ward Announced a New Rule

We turn now to the first prong of our inquiry: whether Ward announced a new rule
of constitutional law.

1. The Statutory Analysis

From a statutory analysis perspective, our Post-Conviction Procedure Act (“the Act”),
Tenn. Code Ann. § 40-30-101 through -122 (Supp. 2011, 2006), provides that, “[f]or
purposes of this part, a new rule of constitutional criminal law is announced if the result is
not dictated by precedent existing at the time the petitioner’s conviction became final and
application of the rule was susceptible to debate among reasonable minds.” Tenn. Code Ann.

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§ 40-30-122 (2006). In analyzing this statutory provision, we have reviewed this Court’s
previous decision in Ward, in which a majority of the panel held that the lifetime supervision
requirement was merely a collateral consequence of the petitioner’s conviction. See Marcus
Ward v. State, No. W2007-01632-CCA-R3-PC, 2009 WL 113236, at *9-11 (Tenn. Crim.
App. Jan. 14, 2009). The fact that Ward resulted in a split panel, and that the majority’s
decision was subsequently reversed, makes clear that the supreme court’s ruling in Ward was
not dictated by precedent existing at the time the Petitioner’s convictions became final.
Moreover, the dissenting opinion in this Court’s decision in Ward, opining that the lifetime
supervision requirement was a direct and punitive consequence of the petitioner’s conviction,
makes clear that, pursuant to section -122, “application of the rule was susceptible to debate
among reasonable minds.” See id. at *11 (Tipton, J., dissenting). See also Chad Alan Parker
v. State, No. M2007-02799-CCA-R3-PC, 2008 WL 2938046, at *8 (Tenn. Crim. App. July
31, 2008) (majority concluded that the petitioner was entitled to post-conviction relief on his
best-interest guilty plea because his lawyer misinformed him about the lifetime community
supervision requirement; one judge dissented on the basis that the lifetime supervision
requirement was merely a collateral consequence). Accordingly, under our statutory analysis,
we conclude that Ward announced a new rule of constitutional criminal law as defined by
section -122.

2. The Common Law Analysis

We note that the language in section -122 of the Act initially became effective on May
10, 1995.4 See 1995 Tenn. Pub. Acts ch. 207, §§ 1, 3. Nevertheless, the Tennessee Supreme
Court, in considering a motion to reopen a post-conviction petition filed in 1997,
subsequently has stated that “[a] case ‘announces a new rule when it breaks new ground or
imposes a new obligation on the States or Federal government.’” Van Tran v. State, 66
S.W.3d 790, 810-11 (Tenn. 2001) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). In
Van Tran, the court was considering whether its holding in that case “that the execution of
mentally retarded persons violates the Eighth Amendment to the United States Constitution
and article I, § 16 of the Tennessee Constitution constitutes a new rule warranting retroactive
application.” Id. at 810. Without reference to section -122’s definition of “new rules,” the
Van Tran court stated,

A case “announces a new rule when it breaks new ground or imposes
a new obligation on the States or the Federal government.” Teague v. Lane,
489 U.S. 288, 301, 109 S. Ct. 1060, 1070, 103 L. Ed.2d 334 (1989) (citations
omitted). In other words, “a case announces a new rule if the result was not

4
Tennessee Code Annotated section 40-30-122 was initially codified at Tennessee Code Annotated
section 40-30-222. See Tenn. Code Ann. § 40-30-222 (Supp. 1995).

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 dictated by precedent existing at the time the defendant’s conviction became
final.” Id.; see also Meadows v. State, 849 S.W.2d 748, 751 (Tenn. 1993).

Van Tran, 66 S.W.3d at 810-11. The Van Tran court did not address its reliance on federal
case law for the appropriate analytical framework for determining what constitutes a new
rule, instead of the language of section -122. While the standard utilized in Van Tran varies
somewhat from the statutory language, we also hold that Ward announced a new rule of
constitutional law under this standard, as well, because it imposed a new obligation on trial
courts: to inform defendants pleading guilty to certain crimes of the direct and punitive
consequence of lifetime community supervision. And, for the same reasons set forth above,
this Court’s decision in the Ward case makes clear that our supreme court’s decision in Ward
“was not dictated by precedent existing at the time the defendant’s conviction became final.”
Van Tran, 66 S.W.3d at 811.

Moreover, we note that, in determining that the lifetime community supervision
requirement was a punitive and direct consequence of a sex offense conviction, the Ward
court cited with approval a case from the Nevada Supreme Court, Palmer v. State, 59 P.3d
1192 (Nev. 2002). Ward, 315 S.W.3d at 475. In Palmer, the Nevada Supreme Court held
that the mandatory sentence of lifetime supervision imposed for a conviction of attempted
sexual assault was a direct consequence, of which the defendant must be made aware before
entering a guilty plea to such offense. Palmer, 59 P.3d at 1193, 1196. Subsequently, in
Avery v. State, 129 P.3d 664 (Nev. 2006), the Nevada Supreme Court turned its attention to
whether its holding in Palmer must be applied retroactively in cases on collateral review and
determined that Palmer announced a new rule:

Far from merely interpreting or clarifying an existing rule, in Palmer we
explored whether lifetime supervision was a direct consequence or a collateral
consequence of a guilty plea to a sexual offense. We also concluded that
lifetime supervision was not analogous to previously considered cases, e.g., we
specifically concluded that lifetime supervision was not analogous to parole,
which we had previously determined was a collateral consequence of a guilty
plea.

Id. at 668. The Ward court conducted a similar analysis. Accordingly, we find Avery
persuasive in our determination that Ward announced a new constitutional rule under our
supreme court’s standard.

E. Retroactivity of Ward

Having concluded that Ward announced a new rule, we turn to the second prong of
our inquiry: whether Ward must be applied retroactively to cases on collateral review, such

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as the instant case. Again, we will again analyze Ward’s retroactivity under both the
statutory and common law approaches.

1. The Statutory Analysis

The Act provides that “[a] new rule of constitutional criminal law shall not be applied
retroactively in a post-conviction proceeding unless [1] the new rule places primary, private
individual conduct beyond the power of the criminal law-making authority to proscribe or
[2] requires the observance of fairness safeguards that are implicit in the concept of ordered
liberty.” Tenn. Code Ann. § 40-30-122. The Van Tran court did parenthetically describe this
statutory provision as “citing the Teague [v. Lane, 489 U.S. 288 (1989)] standard for
retroactivity.” Van Tran, 66 S.W.3d at 811.

In Teague, the United States Supreme Court held that a new federal constitutional rule
would generally not be applicable retroactively in federal habeas corpus actions, with two
exceptions: (1) the new rule places “primary, private individual conduct beyond the power
of the criminal law-making authority to proscribe,” Teague, 489 U.S. at 311 (internal
quotation marks omitted), and (2) the rule is a watershed rule of criminal procedure that is
implicit in the concept of ordered liberty, i.e. an “absolute prerequisite to fundamental
fairness.” Id. at 311, 314. The first exception clearly is not at issue in this case. As to the
second exception, the high court has explained that a “watershed rule” is one that, first, “must
be necessary to prevent an impermissibly large risk of an inaccurate conviction,” and, second,
“must alter our understanding of the bedrock procedural elements essential to the fairness of
the proceeding.” Whorton v. Bockting, 549 U.S. 406, 418 (2007) (internal quotation marks
omitted).

Notably, we also find helpful the United States Supreme Court’s description of the
narrow nature of the second Teague exception that, if met, requires retroactivity:

We have repeatedly emphasized the limited scope of the second Teague
exception, explaining that it is clearly meant to apply only to a small core of
rules requiring observance of those procedures that . . . are implicit in the
concept of ordered liberty. And, because any qualifying rule would be so
central to an accurate determination of innocence or guilt [that it is] unlikely
that many such components of basic due process have yet to emerge, it should
come as no surprise that we have yet to find a new rule that falls under the
second Teague exception.

Beard v. Banks, 542 U.S. 406, 417 (2004) (internal quotation marks and citations omitted).
Providing an example of a new rule that might satisfy the second Teague exception, the
Banks court referred to Gideon v. Wainwright, 372 U.S. 335 (1963), which established an

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affirmative right to counsel in felony cases. Banks, 542 U.S. at 417. See also Humphress
v. United States, 398 F.3d 855, 862-863 (6th Cir. 2005) (discussing cases announcing new
rules that were held not retroactive under the second Teague exception).

In determining whether Ward’s new rule must be applied retroactively pursuant to the
section -122/federal standard, we find instructive this Court’s prior analysis of whether the
United States Supreme Court’s decision in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct.
1473 (2010), should be given retroactive application to cases on collateral review. See, e.g.,
Rene S. Guevara, 2012 WL 938984. In Padilla, the United States Supreme Court addressed
a claim of ineffective assistance of counsel and held that the defense lawyer’s performance
was deficient because he did not inform his client about potential adverse immigration
consequences of a guilty plea. Padilla, 130 S. Ct at 1483. In Rene S. Guevara, the petitioner
pled guilty in 1995 to the felony offense of possession of marijuana with intent to sell. Rene
S. Guevara, 2012 WL 938984, at *1. Fifteen years later, he filed for post-conviction relief
on the basis that, contrary to Padilla, his lawyer failed to inform him about the immigration
consequences of his plea. Id. This Court recognized that Padilla announced a new federal
rule, id. at *3, but concluded that “retroactive application of the rule announced in Padilla
is not warranted.” Id. In so concluding, this Court referred to the federal standard of
retroactivity, set forth in Teague, and held that the new rule announced in Padilla “does not
implicate either [Teague] exception.” Id. See also Ivano Stamegna v. State, No. E2011-
00107-CCA-R3-PC, 2011 WL 5971275, at *5 (Tenn. Crim. App. Nov. 29, 2011) (declining
to apply Padilla retroactively in post-conviction proceeding); Konstantinos Diotis v. State,
No. W2011-00816-CCA-R3-PC, 2011 WL 5829580, at *1 (Tenn. Crim. App. Nov. 17, 2011)
(same).5

This Court’s analysis of the retroactivity of Padilla is instructive because, like Ward,
Padilla concerned the information that must be provided to a defendant pleading guilty about
the consequences of his or her plea. Similarly, both Padilla and Ward held that a defendant
must be informed about serious adverse consequences resulting (or, in the case of
deportation, potentially resulting) from a guilty plea. Accordingly, we hold that the new rule
announced in Ward does not require retroactive application to cases on collateral review.

2. The Common Law Analysis

In Van Tran, our supreme court set forth the test for retroactivity as follows: “‘a new
state constitutional rule is to be retroactively applied to a claim for post-conviction relief if

5
The issue of whether Padilla created a new rule and is to be applied retroactively is currently
pending before the United States Supreme Court. See Chaidez v. United States, 655 F.3d 684 (7th Cir.
2011), cert. granted, 80 U.S.L.W. 3429 (U.S. Apr. 30, 2012) (No. 11-820).

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the new rule materially enhances the integrity and reliability of the fact finding process of the
trial.’” Van Tran, 66 S.W.3d at 811 (quoting Meadows v. State, 849 S.W.2d 748, 755 (Tenn.
1993)). And, in Meadows, from whence this articulation stems, the court added, “Stated
another way, we have held retroactive application necessary when the old rule substantially
impairs the truth-finding function of the trial and thereby raises serious questions about the
accuracy of guilty verdicts in past trials.” Meadows, 849 S.W.2d at 754 (citing Hellard v.
State, 629 S.W.2d 4, 7 (Tenn. 1982)). Interestingly, the Meadows court specifically declined
to adopt the federal standard for retroactivity. See Meadows, 849 S.W.2d at 754-55.

Again, the Van Tran court did not explain its reliance on Meadows, a case that
predates the relevant provision of the Act, as opposed to the relevant statutory language now
set forth in section -122. See also Wiley v. State, 183 S.W.3d 317, 327-28 (Tenn. 2006)
(holding in post-conviction proceeding that its decisions in State v. Burns, 6 S.W.3d 453
(Tenn. 1999), and State v. Ely, 48 S.W.3d 710 (Tenn. 2001), were not to be applied
retroactively, referring to “the integrity and reliability of the fact-finding process” but not to
section -122). Likewise, the Meadows decision did not delineate the precise difference in
the contours of the state and federal standards.

In any event, we also hold that the new rule announced in Ward is not required to be
applied retroactively in this collateral review proceeding under the Van Tran/Meadows
standard for retroactive application of new state rules of constitutional law. Again, we turn
to the Nevada Supreme Court’s decision in Avery for guidance. As explained above, in
Avery the court concluded that its decision in Palmer announced a new rule. The court then
considered whether the new rule was retroactive under the following state standard: whether
it “establishe[d] a procedure without which the likelihood of an accurate conviction is
seriously diminished.” Avery, 129 P.3d at 668. The court held that this criterion of
retroactivity was not satisfied:

We can envision few cases in which the accuracy of a conviction of a
defendant who pleads guilty to a sexual offense will be seriously diminished
by the failure to advise the defendant of a mandatory sentence of lifetime
supervision. While such advice may influence some defendants to reject a plea
offer and insist on going to trial, decisions to plead guilty will generally turn
on other factors, including the potential sentence, the State’s agreement to
forgo other charges, the risk of habitual criminal adjudication, prior
convictions, the strength of the State’s case, and any other concessions or
sentencing recommendations the State may be willing to make.

Id. We recognize, of course, that the standard for retroactivity utilized by Nevada courts is
somewhat different from both of our approaches. Nevertheless, the intention of each
standard is the same: an accurate conviction which is reliable and sound and obtained

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through the observance of fundamental fairness safeguards. Therefore, we find Avery to be
instructive and persuasive.

We also agree with the Nevada Supreme Court that many factors enter into a
defendant’s choice to plead guilty to a sexual offense. Thus, although the lifetime supervision
requirement is certainly significant, it is not so onerous that a defendant’s ignorance about
it renders his plea at odds with fundamental fairness or seriously undercuts the integrity and
reliability of the plea process. We emphasize that the Meadows standard looks to the “fact-
finding process” that results in the conviction. Of course, trial courts must “determine that
there is a factual basis” for a defendant’s guilty plea, Tenn. R. Crim. P. 11(b)(3), which
generally includes a defendant’s acknowledgment of the State’s proof. We, however, fail to
see how the defendant’s knowledge, or lack thereof, of the lifetime community supervision
requirement has any material impact on this fact-finding aspect of his or her guilty plea.

Additionally, we are guided by a comparison between the new rule announced in
Ward and new rules that our supreme court has found must be applied retroactively. For
instance, in Barber v. State, the court held that the rule previously announced in State v.
Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), would be given retroactive application:

We now hold that the rule in Middlebrooks materially enhances both the
integrity and the reliability of the fact finding process in the sentencing phase
of a capital trial and should therefore be applied retroactively.

The constitutional concern in Middlebrooks was that the class of death-
eligible murderers be narrowed so that only the worst offenders receive the
death penalty. The Court [in Middlebrooks] observed that the felony murder
aggravating circumstance duplicates the crime of felony murder and thereby
makes all felony murderers susceptible to the death penalty. This Court found
that such a result violates the Eighth Amendment to the United States
Constitution, as well as Article I, Section 16 of the Tennessee Constitution.
When an aggravating circumstance is improperly injected into the process by
which the jurors must weigh aggravating and mitigating circumstances to
determine a sentence, the integrity and reliability of the sentencing process is
jeopardized because the death penalty may not be reserved for only the most
culpable defendants. For this reason, we apply Middlebrooks retroactively
under the Meadows rule.

Barber, 889 S.W.2d 185, 186-87 (Tenn. 1994) (citations omitted). An earlier example is the
standard of attorney competence announced in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975),
held to require retroactive application by the Tennessee Supreme Court because “the
impairment of the fact-finding function of the trial is substantial if the defendant is denied

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the benefit of counsel whose representation is reasonably competent under the Baxter rule[.]”
Hellard, 629 S.W.2d at 6. Significantly, the Hellard court also noted that “retroactive
application of the Baxter rule has not and is not likely to result in the wholesale unsettling
of final judgments of conviction.” Id.

These cases illustrate that new rules found to have retroactive application in collateral
proceedings have a profound impact on the underlying fairness and reliability of the process
by which a conviction and/or sentence is imposed. Only those rules reaching so deeply into
the process of a criminal trial or plea proceeding that the very essence of the proceeding is
altered should be given retroactive effect in collateral cases. We emphasize that “[a] factor
which weighs heavily against retroactive application is the prospect that the integrity of the
fact-finding process at trial will not be materially enhanced, coupled with the wholesale
unsettling of final judgments of conviction.” State v. Robbins, 519 S.W.2d 799, 801 (Tenn.
1975). In this instance, we conclude that the fact-finding process of guilty pleas will not be
materially enhanced by retroactive application of Ward. Moreover, retroactive application
likely would result in the wholesale unsettling of long-standing final judgments of
conviction.

In sum, we hold that Ward announced a new rule, but that new rule is not applicable
retroactively in post-conviction proceedings. For the reasons set forth above, the new rule
announced in Ward is not a watershed rule of criminal procedure, nor does it materially
enhance the integrity and reliability of the plea process near the degree necessary to require
retroactive application. Accordingly, the one-year statute of limitations applicable to the
Petitioner’s claim for relief may not be tolled on the basis of the Ward decision pursuant to
Tennessee Code Annotated section 40-30-102(b)(1).

F. Due Process Tolling

The Petitioner also argued, and the trial court held, that due process considerations
required tolling of the statute of limitations. See Burford v. State, 845 S.W.2d 204, 208-09
(Tenn. 1992). In Burford, our supreme court held that due process considerations may
require that the post-conviction statute of limitations be tolled when application of the
limitations period denies the petitioner a fundamental right. Id. at 209-10. Examples of due
process concerns which may require tolling the one-year statute of limitations include the
petitioner’s mental incompetence during the limitations period, see Seals v. State, 23 S.W.3d
272, 279 (Tenn. 2000), and the withholding of exculpatory evidence by the prosecution
during the limitations period, see Sample v. State, 82 S.W.3d 267, 272-76 (Tenn. 2002). An
attorney’s active misrepresentations to his client about the status of his or her case may also
require tolling on due process grounds. See Williams v. State, 44 S.W.3d 464, 471 (Tenn.
2001).

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 Our supreme court has emphasized, however, that “[i]n every case in which [it has]
held the statute of limitations . . . tolled, the pervasive theme is that circumstances beyond
a petitioner’s control prevented the petitioner from filing a petition for post-conviction relief
within the statute of limitations.” Smith v. State, 357 S.W.3d 322, 358 (Tenn. 2011). Thus,
if an attorney’s misconduct misleads the petitioner into believing that the attorney is seeking
post-trial relief on the petitioner’s behalf and the petitioner thereby misses the post-
conviction filing deadline, due process tolling of the statute of limitations may be
appropriate. See Williams, 44 S.W.3d at 470-71. Conversely, and significantly for the
instant case, our supreme court also declared in Smith that an attorney’s “[n]egligence, as
opposed to deception or misconduct, would not be sufficient to toll the statute.” Smith, 357
S.W.3d at 358.

The record in this case demonstrates, at most, that the Petitioner’s lawyer was
negligent in failing to review with the Petitioner, and/or provide to him, a copy of the
judgment orders on which is plainly printed, “Lifetime supervision upon release.” This is
not a sufficient basis on which to toll the one-year statute of limitations on due process
grounds. Id. Moreover, even when due process requires that the statute of limitations be
tolled, an aggrieved defendant may not sit on his hands for an extended period of time after
learning that he has potential grounds for relief. Although the supreme court has declined
to establish a “bright line rule” for the applicable statute of limitations that should apply to
an alleged late-arising claim for post-conviction relief, see Wright v. State, 987 S.W.2d 26,
30 (Tenn. 1999), it has certainly indicated that the timeliness of the petitioner’s eventual
filing is a relevant circumstance, see, e.g., Sample, 82 S.W.3d at 275-76. Indeed, this Court
has held that two years is too long to wait after learning of late-arising grounds for filing a
petition for post-conviction relief. See Tyrone Chalmers v. State, No. W2003-02759-CCA-
R3-PC, 2005 WL 1249072, at *3 (Tenn. Crim. App. May 23, 2005). See also State v. Dana
Louise Solomon, No. E2008-01713-CCA-R3CD, 2009 WL 3247427, at *1 (Tenn. Crim.
App. Oct. 9, 2009) (due process tolling denied where petitioner failed to explain four-year
delay in filing after alleged grounds for tolling ceased).

In this case, the Petitioner pled guilty in December 2000. According to his petition,
he learned about the lifetime community supervision requirement “when advised by his
probation officer upon the expiration of his four (4) year sentence after serving one (1) year
in jail.” Accordingly, by the Petitioner’s own admission, he learned about this aspect of his
sentence no later than December 2004. At that time, even without the benefit of the Ward
case, he could have filed a petition for post-conviction relief on the same grounds that
petitioner Ward did: that his plea was constitutionally infirm because he was not made aware
of the lifetime community supervision requirement in conjunction with pleading guilty.
Additionally, like now, he could have asserted due process grounds for tolling the expired
statute of limitation. The Petitioner chose not to do so. He should not now be heard to
complain. We hold that, irrespective of whether the Petitioner was entitled to an initial

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tolling of the one-year post conviction statute of limitations on due process grounds because
he did not learn of the lifetime community supervision requirement until after the limitations
period had run, he was not entitled to have the statute tolled for an additional period of seven
years. Accordingly, the post-conviction court erred in so ruling.

In sum, the Petitioner’s claim for post-conviction relief is time-barred. Accordingly,
he is not entitled to relief.

III. Conclusion

For the foregoing reasons, we reverse the post-conviction court’s judgment granting
the Petitioner post-conviction relief.

_________________________________
JEFFREY S. BIVINS, JUDGE

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