Donte R. Swainer v. State of Tennessee
M2021-00205-CCA-R3-PC
| Tenn. Crim. App. | Nov 1, 2021Background
- Petitioner Donte R. Swainer was indicted for aggravated robbery (Feb. 27, 2014) and, on August 30, 2018, pled guilty to the lesser-included offense of attempted aggravated robbery in Davidson County Case No. 2015-B-866.
- The trial court sentenced him to three years, to be served concurrently with a life sentence in a separate case (2015-B-865); the court found Petitioner understood he waived appellate review of the conviction.
- Petitioner filed a pro se post-conviction petition in Case No. 2015-B-866 on June 3, 2020 — more than one year after the judgment became final (Sept. 29, 2018).
- Petitioner conceded untimeliness but sought due process tolling, alleging he only learned of post-conviction relief in March 2020 and that multiple attorneys failed to inform or assist him about appeals/post-conviction procedures.
- The post-conviction court summarily dismissed the petition as time-barred, finding no statutory exception applied and that attorney negligence or lack of awareness did not justify due process tolling.
- The Court of Criminal Appeals affirmed, holding the petition untimely and that Petitioner did not plead facts establishing due process tolling or other statutory exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under Tenn. Code Ann. § 40-30-102 | Swainer: petition timely or tolled because he only learned of post-conviction relief in March 2020 | State: judgment was final Sept. 29, 2018; petition filed June 3, 2020 is untimely and no statutory exceptions apply | Petition untimely; statutory exceptions not met; dismissal affirmed |
| Due process tolling based on attorneys' conduct | Swainer: attorneys failed to inform/assist, so equitable tolling required | State: mere negligence or unresponsiveness by counsel does not constitute active misrepresentation to trigger tolling | No due process tolling; passive attorney failures insufficient |
| Whether Petitioner had a right to appeal (basis for reliance on counsel) | Swainer: believed attorneys would handle appeal in 2015-B-866 | State: plea was negotiated; Petitioner waived appellate review and had no appeal right | Petitioner had no appeal right; plea waiver noted by trial court |
| Jurisdiction to consider untimely petition | Swainer: asked court to consider merits despite delay | State: court lacks jurisdiction absent timely filing or tolling/exception | Court lacked jurisdiction; dismissal proper |
Key Cases Cited
- Williams v. State, 44 S.W.3d 464 (Tenn. 2001) (recognizing due process tolling in limited circumstances)
- Smith v. State, 357 S.W.3d 322 (Tenn. 2011) (counsel’s negligence alone does not justify tolling)
- Bush v. State, 428 S.W.3d 1 (Tenn. 2014) (enumerating circumstances that may justify tolling)
- Whitehead v. State, 402 S.W.3d 615 (Tenn. 2013) (diligence standard for pursuing tolling)
- State v. Nix, 40 S.W.3d 459 (Tenn. 2001) (failure to plead timeliness or tolling warrants dismissal)
- State v. Boyd, 51 S.W.3d 206 (Tenn. 2000) (finality rule for judgments and appeal timing)
- State v. Lawson, 291 S.W.3d 864 (Tenn. 2009) (permitting judicial notice of appellate record)