Timothy A. Baxter v. State of Tennessee

Citation: Not availableDocket: W2006-01667-CCA-R3-PC

Court: Court of Criminal Appeals of Tennessee; September 26, 2007; Tennessee; State Appellate Court

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Timothy A. Baxter pled guilty on December 10, 2001, to multiple offenses, including possession of methamphetamine and theft over $10,000, resulting in a twelve-year sentence as a Range II multiple offender. He did not file a direct appeal. On February 25, 2005, Baxter filed a post-conviction relief petition, which was dismissed by the court on May 4, 2005, for being outside the one-year statute of limitations under T.C.A. 40-30-102. Baxter failed to file a timely notice of appeal. Over a year later, on July 20, 2006, he sought permission for a delayed appeal, which was denied by the post-conviction court on July 25, 2006. Subsequently, Baxter filed a notice of appeal regarding the denial of his delayed appeal on August 7, 2006. The Court of Criminal Appeals dismissed his appeal, stating there is no entitlement to a delayed appeal from the denial of post-conviction relief and that it would not serve the interest of justice to waive the timely filing requirement. The opinion was delivered by Judge Jerry L. Smith, with concurrence from Judges Joseph M. Tipton and Norma McGee Ogle.

Petitioner presents four issues on appeal, focusing on whether the post-conviction court should have tolled the statute of limitations for his petition, the denial of his motion for delayed notice of appeal, and an issue related to his habeas corpus petition. The appeal is primarily concerned with the denial of the delayed notice of appeal. The court points out that, according to Rule 3(b) of the Tennessee Rules of Appellate Procedure, an appeal as of right is limited to judgments from which an appeal can be made to the Supreme Court or Court of Criminal Appeals. Since the denial of the motion for a delayed notice does not qualify for such an appeal, jurisdiction is not established.

Even assuming the appeal addresses the dismissal of the post-conviction relief petition, the petitioner would still not succeed. Citing *Stokes v. State*, the court notes that the right to a delayed appeal is recognized only in the context of ineffective assistance of counsel on direct appeal, not for second-tier reviews of post-conviction relief denials. Further references to *Darrel D. Hayes v. State* and *Jessie Hodges v. State* reinforce that there is no entitlement to a delayed appeal from the denial of post-conviction relief petitions. Consequently, based on existing case law, the court concludes that the petitioner cannot pursue a delayed appeal from the post-conviction court’s denial of his petition.

Under Tennessee Rules of Appellate Procedure Rule 4(a), a notice of appeal in criminal cases is not jurisdictional and can be waived by the court for justice's sake. The court evaluates the appropriateness of a waiver by examining the issues for review, the reasons for the delay, and other relevant factors. In this case, the Petitioner seeks a delayed appeal following the dismissal of his post-conviction petition, which was filed over two years past the one-year statute of limitations. A post-conviction court lacks jurisdiction to hear such petitions unless specific criteria are met, including claims based on new constitutional rulings, new scientific evidence of actual innocence, or invalid prior convictions.

The Petitioner failed to demonstrate any valid reasons for tolling the statute of limitations at the hearing, where his attorney acknowledged no applicable exceptions. The Petitioner attributed the delay to his post-conviction attorney’s failure to file an appeal and keep him informed. The appeal motion was filed fourteen months after the dismissal of the post-conviction petition, and the Petitioner discovered the lack of an appeal only after contacting the court. His claims of his trial counsel’s misleading actions were deemed not credible by the post-conviction court, which made no findings regarding his testimony about being misled by two different attorneys.

Given the absence of credible arguments for tolling the limitations period, the lack of entitlement to a delayed appeal, and questionable reasons for the delay, the court concluded that allowing the appeal would not serve the interests of justice. Consequently, the appeal was dismissed.