Rickman v. State

• Decision Date: 28 July 1997
• Citation: 972 S.W.2d 687
• Parties: Ronald RICKMAN, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 687

972 S.W.2d 687

Ronald RICKMAN, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee,

at Jackson.

July 28, 1997.

Application for Permission to Appeal

Denied by Supreme Court

Dec. 1, 1997.

William P. Redick, Jr., Whites Creek, Paul Bottei, Nashville, for Appellant.

Charles W. Burson, Attorney General and Reporter, John P. Cauley, Assistant Attorney General, Nashville, James J. Challen, III, Assistant District Attorney, Memphis, for Appellee.

OPINION

HAYES, Judge.

The appellant, Ronald Rickman, appeals the post-conviction court's summary dismissal of his third petition for post-conviction court relief. In 1978, the appellant was convicted of first degree murder and sentenced to death for the contract killing of Deborah Lee Groseclose, the wife of his co-defendant, William Groseclose. In 1981, our supreme court affirmed the appellant's conviction. State v. Groseclose and Rickman, 615 S.W.2d 142 (Tenn.), cert. denied, 454 U.S. 882, 102 S.Ct. 367 (1981). In 1982, the appellant filed his first petition for post-conviction relief, which the post-conviction court denied following the appointment of counsel and a full evidentiary hearing. This court affirmed the lower court's judgment. Groseclose and Rickman v. State, No. 9 (Tenn.Crim.App. at Nashville, February 16, 1984). Our supreme court denied the appellant permission to appeal, and the United States Supreme Court denied certiorari. Rickman v. Tennessee, 469 U.S. 963, 105 S.Ct. 363, 83 L.Ed.2d 299 (1984). In 1985, the appellant filed a Petition for Writ of Habeas Corpus in federal district court. Subsequently, in 1989, while his habeas corpus petition was still pending in federal district court, the appellant filed his second petition for post-conviction relief. In 1990, the post-conviction court dismissed the appellant's petition without an evidentiary hearing. This court affirmed the lower court's judgment. Rickman v. State, No. 15, 1991 WL 174141 (Tenn.Crim.App. at Jackson, September 11, 1991), perm. to appeal denied, (Tenn.1992). In 1994, pursuant to the appellant's motion for partial summary judgment of his habeas corpus petition, the federal district court vacated the appellant's sentence of death. Rickman v. Dutton, 854 F.Supp. 1305 (M.D.Tenn.1994). Thereafter, in a separate opinion, the federal district court vacated the appellant's conviction for first degree murder. Rickman v. Dutton, 864 F.Supp. 686 (M.D.Tenn.1994). The federal district court's opinions are now on appeal before the United States Court of Appeals for the Sixth Circuit.

Nevertheless, on April 13, 1995, the appellant filed the instant petition for post-conviction relief, his third petition. ¹ On May 24, 1995, the appellant filed before the post-conviction court a "Motion to Abate Proceedings," pending resolution of the federal appeal. ² The appellant asserted that affirmance by the Sixth Circuit of the federal district court's decisions would render the instant post-conviction proceedings moot. On July 7, 1995, the appellant further submitted to the post-conviction court a motion for appointment of counsel. On March 6, 1996, the post-conviction court denied the appellant's motions and dismissed the appellant's petition, finding that the appellant had raised no claims in his third petition for post-conviction relief that had not been previously determined or waived. ³

On appeal, the appellant presents the following issues for our consideration:

(1) Whether the appellant is entitled to a new sentencing hearing pursuant to our supreme court's decision in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992);

(2) Whether the appellant was denied his right, under the Tennessee constitution, to a unanimous jury verdict;

(3) Whether the appellant was involuntarily administered "mind-dulling drugs" during his trial in violation of the United States Supreme Court's holding in Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992);

(4) Whether the death penalty infringes upon the appellant's fundamental right to life in violation of the Tennessee and United States constitutions;

(5) Whether the State's plea offer of a life sentence infringed upon the appellant's right to trial and resulted in the arbitrary imposition of a sentence of death in violation of the Tennessee and United States constitutions;

(6) Whether the appellant was sentenced by an impartial jury in violation of the Tennessee and United States constitutions;

(7) Whether, in violation of the state and federal constitutions, the grand jury was tainted by gender discrimination in the selection of grand jury fore persons in Shelby County;

(8) Whether the appellant was denied effective assistance of counsel at trial or in any subsequent proceeding in violation of the state and federal constitutions.

Following a review of the record, we affirm the post-conviction court's judgment.

ANALYSIS

The appellant contends that the post-conviction court erred in dismissing his petition for post-conviction relief. ⁴ The State contends that the appellant's petition is time-barred by the statute of limitations. Tenn.Code Ann. § 40-30-102 (1990)("[a] prisoner in custody under sentence of a court of this state must petition for post-conviction relief ... within three years of the date of the final action of the highest state appellate court to which an appeal is taken"). Our supreme court affirmed the appellant's conviction in 1981, prior to the enactment of the three year statute of limitations and prior to the effective date of the statute on July 1, 1986. The new limitations period applied to existing causes prospectively from this effective date. Abston v. State, 749 S.W.2d 487, 488 (Tenn.Crim.App.1988). See also Sands v. State, 903 S.W.2d 297, 301 (Tenn.1995)(the supreme court acknowledged the "Abston rule"). Accordingly, the statute of limitations expired in the appellant's case on July 1, 1989.

Regardless of the applicability of the statute, under Burford v. State, 845 S.W.2d 204 (Tenn.1992), and Sands, 903 S.W.2d at 297, ⁵ to the various issues raised by the appellant, the appellant asserts that the State did not rely upon the statute of limitations when arguing before the post-conviction court and cannot rely upon this defense on appeal. In its answer to the appellant's petition and in proceedings before the post-conviction court, the State argued that the court should dismiss the appellant's petition, because the appellant's case was pending before the United States Court of Appeals for the Sixth Circuit. Inexplicably, in its response, the State did not allege the expiration of the statute of limitations, nor did it raise the defenses of waiver and previous determination or address the merits of the appellant's petition.

Generally, with respect to those seeking post-conviction relief, this court will not address post-conviction issues that were not raised in the petition or addressed in the post-conviction court. Brown v. State, 928 S.W.2d 453, 457 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1996)(citing State v. Smith, 814 S.W.2d 45, 49 (Tenn.1991)). The appellant correctly observes in his brief that this court has similarly declined to adopt a position of the State taken for the first time on appeal. State v. Perry, No. 03C01-9401-CR-00016, 1995 WL 433319 (Tenn.Crim.App. at Knoxville), perm. to appeal denied, (Tenn.1995). Moreover, the statute of limitations is an affirmative defense which the State must plead and prove. Smith v. State, 873 S.W.2d 5, 6 (Tenn.Crim.App.1993). Failure to do so constitutes a waiver of the defense. Id. (citations omitted). See also Sandusky v. State, No. 01C01-9404-CC-00142, 1995 WL 84030 (Tenn.Crim.App. at Nashville, March 2, 1995)(a statute of limitations defense may not be raised for the first time on appeal). The post-conviction court may raise the issue sua sponte. Id. See also Handley v. State, 889 S.W.2d 223, 224 (Tenn.Crim.App.1994). However, in the instant case, the court did not address this defense.

Nevertheless, in Sands, 903 S.W.2d at 299, our supreme court, in the context of Tenn. R. Civ. P. 8.03's specific pleading requirement, held that this court did not err in applying the statute of limitations to the appellant's coram nobis claim, despite the State's failure to specifically plead the period of limitations applicable to coram nobis actions, either in its motion to dismiss the appellant's petition for a writ of coram nobis and/or post-conviction relief or at the hearing before the trial court. The State did cite the statute of limitations applicable to post-conviction petitions. Id. Accordingly, the court concluded that the appellant had received fair notice of the defense. Id. The supreme court observed:

Although Tenn. R. Civ. P. 8.03 does require that a statute of limitations defense be specifically pleaded, it is well settled that failure to do so does not result in a waiver of the defense if the opposing party is given fair notice of the defense and an opportunity to rebut it. In other words, the purpose of the specific pleading requirement is to prevent a party from raising a defense at the last moment and thereby prejudicing the opposing party's opportunity to rebut the defense.

Id. (citations omitted). In Smith, 873 S.W.2d at 6-7, this court suggested, consistent with the above rationale, that when a defense has not been pled, but the petitioner has raised the issue in his own pleadings, there is no waiver. In the instant case, as pointed out by the State, the appellant addressed the statute of limitations defense in his petition for post-conviction relief and in his brief on appeal. Additionally, appellant's counsel raised the issue of the statute of limitations before the post-conviction court when arguing before the court that the appellant's petition should not be dismissed. Appellant's counsel conceded that the statute of limitations had already run, but cited exceptions to application of the statute....