WPC,GD)n9n:)n@)n@UHl WP_TV07805342WP6)sports2tlerxsIWPTVWPC2 yb Nf0,H2,HrN:l^Dg0,`080,HrҀXA9A:,DJEXOo/ ?.&?.HzHl`BEJn.g2Jlg8,`/ ?..HnHR{WP}10{WP}01TimesPWP 6.0 captionw{WP}12?l   M{WP}11   8{WP}22M{WP}16 \UN>(hH  Z 6Times New Roman Regular %X6 0(($HU:,  AZ"Arial RegularNw@ DDD !Ӏ-0"44n~<$H3|x0R 0DW(3$ !  0(6(2:$ !     `   0  R 0D!(#$  0  (e   :$   `   1    ݀InWatkins,therewasapparentlynothingbeforetheCourtestablishingtheappellant  was,infact,mentallyincompetent.Thesameistrueinthiscase.5'  !"  X XXXXX    Ad FILEDX X   August21,1998  CecilCrowson,Jr.IXX AppellateCourtClerk HU: ,cAZ"Arial Regular_ AQ I !#%C<< C Level 1Level 2Level 3Level 4Level 5R 0D `(3$ !  + B  dR 0D ($$   1  = D/ ''' dxd+ B 4P PdA D3 Q""""'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2. Ok } Corel WordPerfectxHH(FG(HH(d'hGVA^PSetBPJobNStylZwp60versWDatSTR PtPtVPV\& (B ~ #Q MR$ Q+ 2  +V V< VD V  )VP {V VD V V@ V@ Vl 2VX LV\ V, VH 4VP!  V`" bVt# Vp% V֠' (V( WVT mV VϬV` Vl{WP}10WP 6.0 caption{WP}12{WP}11{WP}22{WP}16{WP}01"Hl' '" yb{WP}10 <<KK ..,,..,, ybTimes۪HHlHЫ yb Helvetica(d(  { ybl`hj-%'$' yb{WP}10 <<KK  ybTimes ybR{WP}22 yb Helvetica $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 21, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk{     yb yb yb0' '0 yb"IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE0' '0*AT JACKSON*88FJULY 1998 SESSIONFTTbbp$  p~' '$VIKKI LYNN SPELLMAN,8)0  ~~~' '0)"NO. 02C019801CC000360  ' '0$Appellant,{)$  ' '$)"TIPTON COUNTY0  ' '0VS.)0' '0)"HON. JOSEPH H. WALKER,' 'III,$' '$STATE OF TENNESSEE,8)"JUDGE0' '0)$Appellee.~)"(PostConviction)  &5&46y' '5ܪ6y  ЫFOR THE APPELLANT:04B44' '0$BP' '$UUVIKKI LYNN SPELLMAN, ProPP' 'Se0Pl^^' '0# 819760lzll' '0Special Needs Facilityz7575 Cockrill Bend Industrial RoadNashville, TN 372091057R  b' 'RFOR THE APPELLEE:04B44' '0$BP' '$JOHN KNOX WALKUP0P^PP' '0Attorney General and Reporter ^l$!lz' '$PETER M. COUGHLAN0"zzz' '0Assistant Attorney General#Cordell Hull Building, 2nd Floor$425 Fifth Avenue North%Nashville, TN 372430493&$'' '$ELIZABETH T. RICE0(' '0District Attorney General)302 Market Street*UUSomerville, TN 38068 % G44%G 6y6y+$, $2-!2@."@N/#N\$0$\j' '$01%jxjj' '0J2&x xx&& HJOPINION FILED:  ÿ'ܿ'()REVERSED AND REMANDED*+,-JOE G. RILEY,.JUDGEV / p / H' 'V ybͪ  Ы yb yb   ybͬA 7VXXdXXd7A  yb  Times ЭOPINION00$?$' '01?Z$fThis case represents an appeal from the trial courts summary dismissal.of the appellants petition for postconviction relief based upon the statute of3limitations. Appellant contends her mental incompetence tolled the statute ofFlimitations. We reverse and remand for a determination of appellants allegedmental incompetence and its effect upon the statute of limitations.6Z$7' '$PROCEDURAL HISTORY08' '092$The appellant pled guilty to first degree murder on April 18, 1988, andIreceived a life sentence. No appeal was taken. On June 15, 1989, the9appellant filed her first petition for postconviction relief alleging ineffectivejassistance of counsel and was represented by appointed counsel. Just prior tothe evidentiary hearing on the merits of the petition, the appellant withdrew thepetition.?2$tOn December 24, 1997, the appellant filed this her second petition for33postconviction relief again alleging ineffective assistance of counsel at the timeUUof her original guilty plea. In this petition, she asserts that she withdrew her firstjpetition because of her  psychological state as she was in  no condition toqassist postconviction counsel in presenting anything in a logical, orderlyfashion to the Court.$Ev' '$$3The trial court dismissed the present petition without a hearing, findingNvR vRFv H' 'N""that the petition was barred by the statute of limitations. See Tenn. Code Ann. ' '4030202(a). On appeal, the appellant, citing Watkins v. State, 903 S.W.2dN302 (Tenn. 1995), claims that application of the statute of limitations in this casewould violate constitutional due process.Jv $K (' '$STATUTE OF LIMITATIONS0L(C(' '0MC^$.Tenn. Code Ann.  4030202(a) provides that a person in custody under;a sentence of a court of this state must petition for postconviction relief within""one (1) year of the final action of the highest state appellate court to which anappeal is taken or, if no appeal is taken, within one (1) year of the date on which/the judgment became final. The statute further provides that the limitationsperiod  shall not be tolled for any reason, including any tolling or saving'bprovision otherwise available at law or equity. Id. None of the specified' 'exceptions to the statute apply in this case. See Tenn. Code Ann.  4030 z' ' 202(b). V^Q$WQl' '$A. Saving Statute0Xll' '0Y$]The appellants insistence that the saving statute, Tenn. Code Ann.  28  UU1106, applies to postconviction proceedings is misplaced. The appellantFrelies upon Watkins, wherein our Supreme Court held that this statute appliedin postconviction proceedings. 903 S.W.2d at 305. However, this holding6 R] H6construed the 1989 PostConviction Procedure Act. In 1995, the legislaturespecifically amended the PostConviction Procedure Act to preclude theapplication of the saving provision. Tenn. Code Ann.  4030202(a). Accordingly, appellant cannot benefit from Tenn. Code Ann.  281106.a$b' '$B. Due Process0c' '0d$]This, however, does not end our inquiry. Watkins now becomes relevantin determining whether constitutional due process is applicable. There, theLappellants first petition was dismissed without a hearing because the appellantwas unable to proceed with the petition due to his mental incompetence. The@second petition was not filed until after the statute of limitations expired and*was, consequently, dismissed by the trial court. In remanding the matter forfurther proceedings on the postconviction petition, the Supreme Court, relyingupon Burford v. State, 845 S.W.2d 204 (Tenn. 1992), based its reasoning uponconstitutional due process considerations in addition to the application of the/saving statute. The Court stated that if the appellants  allegations ofincompetency prove to be valid, application of the statute of limitations wouldEeffectively deprive him of an opportunity to challenge his conviction in a' 'Emeaningful time and manner. Watkins, 903 S.W.2d at 306 (emphasis added). yb#Q{WP}11  1    yb  "Hl'  '"] yb{WP}10  <<KK  ybTimes yb{WP}12HHlH$  1   In Watkins, there was apparently nothing before the Court establishing the'  'appellant was, in fact, mentally incompetent. The same is true in this case.֭  ' 'Furthermore,br Y >  > r+ Y H' 'b ybͪ  Ы yb yb   yb$[i]f the petitioner was mentally incompetent, and therefore legally i' 'rincapable, he would be denied any opportunity to assert hisconstitutional rights in a post-conviction petition, unless the periodI%of limitations was suspended during his mental incompetence. Due process requires that some reasonable opportunity to assertthose rights be afforded.#x i #$y ' '$ ybͪ  Ы yb yb   ybId.0z  b' '0${ ' '$C. Watkins Application to the 1995 PostConviction Procedure Act0|   ' '0}  7$*In light of Watkins, we proceed to interpret Tenn. Code Ann.  4030  202(a) which states,  [t]he statute of limitations shall not be tolled for any reason,t]including any tolling or saving provision otherwise available at law or equity. UThe clear legislative intent is to eliminate tolling provisions, such as the savingstatute; however, Tenn. Code Ann.  4030202(a) may not eliminate aconstitutionally required tolling provision. Since our Supreme Courtdetermined in Watkins that incompetence tolls the statute of limitations under constitutional due process, incompetence remains a viable tolling provisionunder the 1995 PostConviction Procedure Act. 7 *$ * E' '$5D. Sufficiency of Appellants Allegations of Tolling0  E ` E' '0  ` {$In the present case, the appellants first petition for postconviction relief*was dismissed before consideration on the merits. The appellant alleged in herpresent petition that her psychological condition precluded her from pursuing6 H { H6;the first petition in 1990. The court below dismissed the second petition based؞solely upon the running of the statute of limitations, without a finding as tomental incompetence. The matter in Watkins was remanded for thisdetermination. { H$We note that appellant did not allege that she was incompetent duringmthe entire period from 1990 to the filing of the present petition on December 24,31997. If appellant were incompetent in 1990, but regained competencybvthereafter, the statute of limitations may still have expired prior to her filing onDecember 24, 1997. Therefore, even on the face of the petition, appellant did6not sufficiently allege facts that would show the filing was timely. We find itndifficult to fault the trial court for its dismissal based upon the allegations in the;petition. Nevertheless, this issue is one of first impression under the 1995 Post  Conviction Procedure Act. A remand for appointment of counsel and the filingof an amended petition would be appropriate under these circumstances. HV$Vq' '$XOTHER FACTS APPEARING IN RECORD0qq' '0$UUA remand is also uniquely justified by the facts appearing in the record;which arguably lend support to a claim of mental incompetence. Prior to theoriginal trial, the appellant was delivered to the West Tennessee Mental Health33Institute at Bolivar, Tennessee, by the Tipton County Sheriffs Office foremergency treatment. The trial court ordered a pretrial evaluation to beconducted by the West Tennessee Mental Health    Institute.    The Institute6 .R H6bvreported that the appellant was competent to stand trial and that a defense ofEinsanity could not be supported.    Although    the Institute reported that theFappellant was not subject to commitment to a mental health institution, itIrecommended  outpatient supportive counseling through the TriCounty MentalHealth Center. $@At the time of the appellants first petition for postconviction relief    in    June.   1989,    she    alleged    she was then residing at the DeBerry Correctional Institute,which is a Special Needs Facility.1$jThe current petition for postconviction relief    alleged    that at the time of its/preparation on December 19, 1997, the    appellant    was also confined in theUDeBerry facility. This latter petition    allege      d    that the first petition was dismissed as a result of petitioner and counsel so requesting because of the petitioners;psychological state at the time. The petition further    allege      d    that there    were    no'befforts made on the part of any counsel to  ascertain if her psychological statehad improved to the point that she could assist counsel in presenting the factsasserted in the initial petition.1 $Based upon the record, there is arguable evidence of mental healthproblems as early as 1988 and as recently as when the present petition wasfiled. Although the present petition does not allege facts sufficient to warrant thentrial court in tolling the statute of limitations found in Tenn. Code Ann.  4030  3202(a), the record does evince sufficient documented bases of prior mentalnhealth problems to warrant, in this case, further findings of the court in order to/determine whether appropriate grounds exist for the tolling of the statute of6 R H6Ulimitations based upon the Watkins due process rationale. In other words, the3appellant has not made mere conclusory allegations of incompetence. Rather,the    record    presents a unique justification for further findings of fact on the statuteof limitations issue.  B$B]' '$REMAND0]x]' '0x$ffUpon remand, the trial court should appoint counsel and determine ifappellant was ever incompetent after her original conviction became final. Theffstatute of limitations was three (3) years prior to May 10, 1995. If appellant wasOcompetent for three (3) years prior to May 10, 1995, the statute of limitations$expired at the end of the three (3) year period and the present petition filedDecember 24, 1997, was untimely.5$;Effective May 10, 1995, the statute of limitations became one (1) year. IfDDthe statute of limitations did not expire prior to May 10, 1995, the new one (1)year statute of limitations must be applied. Appellant did not file her presentpetition until December 24, 1997. Incompetence would need to be determinedUUbetween May 10, 1995, and December 24, 1996. If appellant was competentfor a year prior to December 24, 1996, the statute would have expired at the end*of that year period. The present petition filed December 24, 1997, would,therefore, be untimely.5 $t]For appellate purposes the trial court should make findings as to allegedincompetence prior to May 10, 1995, and subsequent to May 10, 1995.J C (R C HJܿ$Sn' '$CONCLUSION0nn' '0$For the reasons stated above, we vacate the trial courts judgmentdismissing the appellants second petition for postconviction relief. The matterFis remanded for appointment of counsel and further proceedings on the petition. ;If the trial court finds that the appellant was in fact mentally incompetent, asDDalleged, at the time of the withdrawal of the first petition, the trial court shall thenUUdetermine when and whether the    appellant    regained competence, and whetherthe present petition was timely filed.$a' '$ ybͪ  Ы yb yb   yb0aoa' '0$$$$$$$ 0o}o' '0$$$$$$$JOE G. RILEY, JUDGE}CONCUR:      yb yb yb yb CURWOOD WITT, JUDGE  %%3 yb yb yb yb $3A' '$ROBERT W. WEDEMEYER, SPECIAL JUDGE