Passarella v. State
| Decision Date | 28 July 1994 |
| Citation | 891 S.W.2d 619 |
| Parties | Sam John PASSARELLA, Appellant, v. STATE of Tennessee, Appellee. |
| Court | Tennessee Court of Criminal Appeals |
Richard Crane, Nashville, for appellant.
Charles W. Burson, Atty. Gen. and Reporter, Eugene J. Honea, Asst. Atty. Gen., Victor S. Johnson, III, Dist. Atty. Gen., John Zimmerman, Asst. Dist. Atty. Gen., Nashville, for appellee.
The appellant, Sam John Passarella, appeals as of right from a judgment of the trial court dismissing his suit for post-conviction and habeas corpus relief following an evidentiary hearing. The trial court found that the appellant's suit for post-conviction relief was barred by the statute of limitations, and the appellant failed to establish that the judgments he sought to challenge were void. In this Court, the appellant contends that his suit for post-conviction relief is not barred by the statute of limitations. He argues that his suit was filed within three years of the date he discovered that the grounds alleged in the petition existed. He also contends he is entitled to habeas corpus relief on the ground that the judgments he sought to challenge are void. He argues that a judgment in a criminal case is void when the accused has been denied his constitutional right to the effective assistance of counsel.
The judgment of the trial court is affirmed.
The appellant was convicted of two counts of aggravated kidnapping by a jury of his peers. The jury sentenced the appellant to confinement for twenty (20) years in the Department of Correction for the offense alleged in the first count; and he was sentenced to confinement for fifty (50) years in the Department of Correction for the offense alleged in the second count. The trial court ordered the sentences to be served consecutively. The effective sentence was seventy (70) years. This Court affirmed the appellant's convictions and sentences. 1 Neither the pleadings nor the evidence adduced at the hearing reveals whether an application for permission to appeal was filed in the Supreme Court.
The appellant was convicted of a federal offense in close proximity to the convictions challenged in this case. However, the record is silent regarding the nature of the offense and the sentence imposed by the federal district court. It appears that the appellant served the federal sentence first. The State of Tennessee placed a detainer with the federal authorities. The appellant was subsequently released to Tennessee authorities after serving approximately nine (9) years in a federal penitentiary.
In 1992 the appellant's family hired an attorney to assist the appellant. The attorney conducted an investigation and concluded that the appellant had been denied the effective assistance of counsel incident to his convictions, sentences and appeal to this Court. The appellant instituted this suit on July 12, 1993 by filing a pleading entitled "Petition for Post-Conviction Relief and Writ of Habeas Corpus." The trial court made the following finding at the conclusion of the hearing:
The Court is of the opinion that the petition is time barred. Further, the Court is of the opinion that there are no issues presented before the Court from which the Court can grant a petition for a writ of habeas corpus. The petition is denied.
The appellant subsequently perfected his appeal as of right to this Court.
The appellant contends the statute of limitations did not commence to run in this case until he discovered or should have discovered that he had been deprived of his constitutional right to the effective assistance of counsel. He argues that such a rule "would mirror the time bar under tort law ... which begins to run only after the plaintiff discovers or should have discovered his injury." He reasons that he should "be given the same opportunity to have his claim heard that tort victims enjoy." He also contends the dismissal of his suit on the ground that it was barred by the statute of limitations violated his right to due process of law.
The Post-Conviction Procedure Act provides relief to "[a] prisoner in custody under sentence of a [Tennessee] court," 2 whose "conviction or sentence is void or voidable because of the abridgement ... of any right guaranteed by the [Tennessee] constitution ... or the Constitution of the United States." 3 The Act also provides relief when a right was not previously available, if the new right is to be applied retroactively. 4
A person is considered "in custody" within the meaning of the Act if a prior conviction presents "any possibility of [a] restraint on liberty." 5 The appellate courts of this State have held that a person who suffers a "restraint on liberty" as a result of a Tennessee conviction does not have to be confined to a Tennessee jail or penitentiary as a prerequisite to filing a suit for post-conviction relief. 6 Thus, a person who has served his or her sentence, 7 or is on parole, 8 confined to a federal penitentiary, 9 or serving a sentence in another state 10 is "in custody" within the meaning of the Act if the person can establish that a "possibility of [a] restraint on liberty" exists as a result of the Tennessee conviction. 11
In McCray v. State, 12 the petitioner was permitted to serve his Tennessee sentences concurrently with a federal sentence. The petitioner filed suit for post-conviction relief while confined to a federal penitentiary. The trial court summarily dismissed the suit. The trial court commented that it was questionable whether the petitioner was "in custody" within the meaning of the Act. In affirming the judgment of the trial court, this Court said:
In his summary dismissal of the petition, the learned trial judge questioned the petitioner's status to seek relief under our Post-Conviction Procedure Act, inasmuch as he is in federal custody in another state. Since McCray is under multiple sentences, being expressly served in part (concurrently) in the federal prison, and there subject to detainers that will restore him immediately to State custody at the conclusion of his federal sentence, we believe him to be "in custody" sufficiently to have status to use the Act. 13
In Francis Ross v. State, 14 the petitioner, like the appellant in this case, served a federal sentence before being released to Tennessee authorities to serve five sentences imposed by the circuit court of Fayette County. Ross filed a suit for post-conviction relief after he was returned to Tennessee. The trial court dismissed the suit on the ground it was barred by the statute of limitations. In this Court, Ross contended that he was not "in custody" within the meaning of the Act until he was returned to Tennessee and confined in a Department of Correction facility. This Court, relying on McCray, held that Ross was "in custody" while confined in the federal penitentiary and affirmed the judgment of the trial court.
In Paul R. Spence v. State, 15 the petitioner was serving a sentence in Ohio before coming to Tennessee to be tried for criminal offenses committed in Sullivan County. He was returned to Ohio to complete his sentence after being convicted and sentenced in the Sullivan County cases. He was subsequently released to Tennessee authorities after serving the Ohio sentence. He filed a suit for post-conviction relief upon his return to Tennessee. The trial court dismissed the suit on the ground it was barred by the statute of limitations. This Court affirmed the judgment of the trial court. In ruling, this Court said:
Preliminarily, the term "in custody" means any possibility of restraint on liberty. For example, one in federal custody in another state and subject to a detainer in this state is sufficiently "in custody" under our post conviction statute. McCray v. State, 504 S.W.2d 773 (Tenn.Crim.App.1973). One is in custody as long as he suffers "any collateral legal consequences...." Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900 (1968).
So long as any such consequence exists, the petitioner has the status to file for post-conviction relief. Tennessee courts have traditionally given liberal construction to the term "in custody". State v. McCraw, 551 S.W.2d 692, 693 (Tenn.1977). Thus, we initially determine that the petitioner here was "in custody" on the effective date of the 1986 amendment to our Act. This state's detainer qualified the petitioner to file an action for post-conviction relief even though he was incarcerated in Ohio for almost all of the three-year limitations period. Clearly, the petition was filed after July 1, 1989, the expiration of the statute of limitations, and approximately one year after the petitioner's return to this state. 16
In short, the appellant was "in custody" within the meaning of the Act while he was confined in the federal penitentiary. This Court must now consider if the statute of limitations expired before the appellant filed the present suit and, if so, whether a "discovery rule" should be superimposed over the statute of limitations or the invoking of the statute of limitations resulted in a denial of due process.
Historically, the Post-Conviction Procedure Act did not contain a statute of limitations or other time constraint that required a suit for post-conviction relief to be filed within a specified period of time. Relief was available to any person who suffered a restraint upon his or her liberty as a result of a Tennessee conviction. 17 In 1986 the Tennessee General Assembly amended the Act by creating a three (3) year statute of limitations, effective July 1, 1986. 18 The portion of the amendment relevant to this inquiry is as follows:
... A prisoner in custody under sentence of this State must petition for post-conviction relief under this chapter within three (3) years of the date of the final action of the highest state appellate court to which an appeal is taken or consideration of...
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