Sands v. State

• Decision Date: 26 June 1995
• Citation: 903 S.W.2d 297
• Parties: Robert Lee SANDS, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Supreme Court

Page 297

903 S.W.2d 297

Robert Lee SANDS, Appellant, v. STATE of Tennessee, Appellee.

Supreme Court of Tennessee at Knoxville.

June 26, 1995.

John E. Herbison, Nashville, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, Michael E. Moore, Sol. Gen., and Linda A. Ross, Associate Sol. Gen., Nashville, for appellee.

OPINION

DROWOTA, Justice.

The defendant, Robert Lee Sands, appeals from the Court of Criminal Appeals' affirmance of the trial court's dismissal of his petition for a writ of coram nobis or, in the alternative, for post-conviction relief. After consideration of the arguments of the defendant and the State, we conclude that both the coram nobis and post-conviction claims are time-barred, and therefore affirm the judgment of the Court of Criminal Appeals.

FACTS AND PROCEDURAL HISTORY

In 1977 the defendant Sands was convicted of armed robbery, kidnapping, and first-degree murder. He was sentenced to three consecutive life sentences with a consecutive five-year sentence for the use of a firearm. His convictions were affirmed on direct appeal by the Court of Criminal Appeals, and this Court denied Sands' application for permission to appeal.

In January 1979 the defendant collaterally attacked those convictions by filing a petition for post-conviction relief. Although a hearing on this petition was held, the tape recording of that hearing was lost and a second hearing was conducted. The trial court ultimately dismissed the petition, and the Court of Criminal Appeals affirmed the dismissal in December 1979. ¹ The defendant filed a second post-conviction petition in August 1981, which was also dismissed by the trial court. The Court of Criminal Appeals affirmed that dismissal in March 1982, ² and this Court denied Sands' application for permission to appeal in June 1982.

In April 1990 the defendant filed a pro se petition for a writ of error coram nobis. In April 1991 the defendant amended the petition by attaching numerous exhibits for the purpose of establishing that his convictions had been obtained by the use of perjured testimony, that exculpatory evidence had been withheld, that a fraud had been perpetrated upon the court, and that newly discovered evidence entitled him to a new trial. This "newly discovered" evidence was presented in the form of affidavits, including one from co-defendant Eddie Dukes, who recanted his earlier testimony that Sands had actually killed the victim.

At some point the trial court appointed counsel to represent the defendant in these proceedings. This counsel filed a second amended petition, alleging that the jury instructions used in Sands' 1977 trial impermissibly shifted the burden of proof to the defendant, and were therefore in violation of the United States Supreme Court's holding in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The State subsequently filed a motion to dismiss the petition; and after a hearing at which the defendant was allowed to testify as to the "newly discovered evidence" claim, the trial court dismissed both the coram nobis (the newly discovered evidence) and the post-conviction (the Sandstrom error) claims. The defendant appealed from this ruling.

The Court of Criminal Appeals affirmed the judgment. In its opinion, the Court first held that the coram nobis claim was barred by Tenn.Code Ann. 27-7-103--the one-year statute of limitations applicable to such actions. ³ As to the post-conviction claim, the Court determined the jury instructions did in fact violate Sandstrom and that, pursuant to this Court's decision in Burford v. State, 845 S.W.2d 204 (Tenn.1992), the post-conviction claim was not barred by Tenn.Code Ann. 40-30-102--the three-year statute of limitations applicable to such claims. ⁴ However, the Court concluded that the Sandstrom error was harmless under the circumstances of the case. We granted permission to appeal in this case in order to consider the statute of limitations issues.

I.

The first issue for our consideration is whether the Court of Criminal Appeals erred in holding that the defendant's coram nobis claim was time-barred. Although the defendant admits that the coram nobis petition was clearly filed more than one year after the judgment became final, he asserts that, pursuant to Tenn.R.Civ.P. 8.03, a statute of limitations is an affirmative defense, which must be specifically pleaded or is deemed to be waived. The defendant contends that the Court of Criminal Appeals' holding is erroneous because the State failed to specifically plead, either in its motion to dismiss or at the hearing itself, the period of limitations applicable to coram nobis actions.

The State concedes that it did not specifically cite § 27-7-103 in its motion to dismiss. However, the State also points out that it did cite § 40-30-102--the statute of limitations applicable to post-conviction claims. The State asserts that since the standard for determining the sufficiency of pleading an affirmative defense is whether the pleading gives the opposing party fair notice of the defense, its invocation of § 40-30-102 afforded Sands adequate notice that the State intended to assert that the entire petition was time-barred.

We agree with the State's argument. 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. Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 785-86 (Tenn.1975); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir.1993); McKinnie v. Lundell Mfg. Co., 825 F.Supp. 834, 836 (W.D.Tenn.1993). In other words, the purpose of the specific pleading requirement is to prevent a party from raising a defense at the last possible moment and thereby prejudicing the opposing party's opportunity to rebut the defense. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). Here the defendant had notice that the State intended to rely on a statute of limitations defense, and there is no indication that he was prejudiced by the State's failure to specifically plead § 27-7-103. Therefore, we affirm the Court of Criminal Appeals' judgment on this issue.

II.

The next issue for our consideration is whether the Court of Criminal Appeals was correct in holding that our decision in Burford, supra, served to relieve Sands of the consequences of the expiration of the three-year statutory period of limitations applicable to his Sandstrom claim. A proper resolution of this issue requires us to examine Burford.

In August 1976, Daryl Burford pleaded guilty to and was convicted of five counts of armed robbery in Wilson County. In November 1984, Burford was again convicted of robbery with a deadly weapon in Wilson County. At the sentencing hearing, the State used this conviction and the five robbery convictions from 1976 to establish Burford's status as a habitual criminal. As a result of this designation, Burford was sentenced to life.

In February 1985, Burford was again convicted of robbery with a deadly weapon, this time in Trousdale County. At the sentencing hearing, the State presented this conviction along with Burford's five 1976 convictions to have him sentenced as a persistent offender to fifty years; this sentence was to run concurrently with the life sentence he was already serving. The Court of Criminal Appeals affirmed the conviction and sentence, and this Court denied Burford's application for permission to appeal on August 4, 1986.

In 1988 Burford filed a petition for post-conviction relief in Wilson County, alleging that his 1976 robbery convictions were constitutionally invalid because he had not been advised of his right against self-incrimination before pleading guilty to the offenses. Burford also alleged that his 1984 life sentence, which was based on these convictions, was invalid. In October 1988 the Wilson County Criminal Court agreed, holding that four of the 1976 convictions were invalid; the trial court therefore reduced the 1984 life sentence to a term of forty years.

In May 1990 Burford filed a post-conviction petition in Trousdale County, alleging that his 1985 persistent offender sentence was excessive in light of the fact that four of the 1976 convictions upon which the sentence was based had been invalidated. The State responded by asserting that the petition was barred by § 40-30-102; the State argued that the three-year limitations period had begun to run when this Court denied Burford's application for permission to appeal on August 4, 1986. The Trousdale County Criminal Court dismissed the petition, holding that it was time-barred; and the Court of Criminal Appeals affirmed.

Burford appealed to this Court, arguing that § 40-30-102 violated the due process clauses of the state and federal constitutions because it denied petitioners the right to mount constitutional challenges to their convictions solely on the basis of an arbitrary time bar. This constitutional deficiency, according to Burford, rendered the statute invalid on its face. Alternatively, Burford argued that § 40-30-102 was invalid as applied to him because the application of the time-bar would force him to serve an excessive sentence.

In our analysis, we first rejected Burford's facial challenge to the statute, holding that the State has a legitimate interest in enacting procedural rules in the post-conviction context to prevent stale or fraudulent claims and to curtail the costs associated with repeated groundless claims. However, we also stated that before a State may terminate a claim for the failure to comply with procedural rules, such as a statute of limitations, the due process clauses of the state and federal constitutions require that the claimant be given "a reasonable opportunity to have the...