LEXAPRO & ALCOHOL & MEDICAL MARIJUANA: Murder: Woman Stabs Man To Death: CA

Paragraph eleven reads:  “During the interview, Rothwell
at times explained she was really drunk during the incident. However, she also
denied feeling “buzzed,” explaining she could “see straight” and was not falling
down drunk. She also admitted she drinks “a little bit” and takes medical
marijuana everyday. Rothwell said she takes Lexapro for anxiety and
depression and that she had taken her medication the night of the
incident.
Rothwell told police she has anger problems and when her
father died two years ago it “kinda pushed” her over the edge. She admitted to

stabbing a friend Alex Montes in the arm approximately a year and one-half
before when they were drunk and playing around. Rothwell explained she was not
mad at Montes, but he had said  ‘you won’t [stab me],’  so she did.
Rothwell agreed there were similarities about the two incidents with Rivas and
Montes because each man had dared her to stab him.”

SSRI Stories
Note:  The Physicians Desk Reference states that
antidepressants can cause a craving for alcohol and can cause

alcohol abuse. Also, the liver cannot metabolize the antidepressant and
the alcohol simultaneously, thus leading to higher levels of both alcohol and
the antidepressant
in the human body.

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PEOPLE v. ROTHWELL

THE PEOPLE, Plaintiff and
Respondent,
v.
SAMANTHA ELIZABETH ROTHWELL, Defendant and
Appellant.

No. G040557.

Court of Appeals of California, Fourth
District, Division Three.

Filed April 22, 2010.

Christine Vento,
under appointment by the Court of Appeal, for Defendant and
Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General,
Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for
Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

OPINION

O’LEARY, Acting P.
J.

Samantha Elizabeth Rothwell appeals from a judgment after a jury
convicted her of second degree murder and found true she personally used a
deadly or dangerous weapon, a knife, in the commission of the crime. Rothwell
argues her federal constitutional rights were violated when the trial court
refused to instruct the jury to consider evidence of her intoxication in
determining whether she acted with conscious disregard for human life. We
disagree and affirm the judgment.

FACTS[ 1 ]

One afternoon, a group of 10 to 15
friends rented a room at the Hotel Huntington Beach to celebrate Nicole Alcala’s
birthday. Rothwell, one of the invitees, and her friend, Kristina Torres,
arrived around 8:30 p.m. Marc Bellatiere and his girlfriend, Jennifer Mulcahy,
were at the party when Rothwell and Torres arrived. Mulcahy also invited her
brother Ryan Soto. Eighteen-year-old Walter Rivas was also at the
party.

Sometime in the evening, the group went to the beach to meet with
friends. Rothwell chose to stay at the hotel. When the group returned sometime
after midnight, Soto recalled that Rothwell “didn’t seem like herself.” While
some people started getting ready for bed, Bellatiere went outside to the fifth
floor stairwell landing to smoke a cigarette. Mulcahy, Torres, Rothwell, and
Rivas joined him. For the first five to 10 minutes, the mood was fine. However,
the atmosphere changed when Rivas began talking about seeing God the last time
he was in Huntington Beach. Rothwell became upset and ordered Rivas to not “talk
about God. I don’t like hearing about that stuff.” Rivas was taken aback by
Rothwell’s response and asked her why. She replied, “It’s because I’m the
devil,” and demanded Rivas “stop talking about it.” Rivas responded, “I’ll talk
about whatever I want.” Rothwell threatened, “If you don’t stop talking, shut
up, I’ll stab you.” No one in the group took Rothwell’s threat seriously. Rivas
said jokingly, “If you are going to do it, do it,” and continued to talk about
God. Rivas was not threatening, did not make any aggressive moves toward
Rothwell, and made no physical contact with her.

Rothwell walked to the
hotel room and flung the door open. Mulcahy followed and tried to calm her down.
Rivas stayed on the landing talking with Torres. When Rothwell and Mulcahy
entered the hotel room, it was dark and everyone was sleeping. Rothwell went to

the side of the bed where her belongings were located and began digging through
her purse while saying, “@#$% this guy . . . he can’t be talking to me like
this.” Mulcahy tried to grab Rothwell and calm her down, but Rothwell pulled
away and left the room.

Rothwell returned to the stairwell and headed
straight for Rivas. Rothwell swung her closed fist toward Rivas’s neck. Rivas
was substantially taller than Rothwell and struggled against her, but she
stabbed him in the jugular vein and in the back. When Rothwell took her arm
away, Rivas was bleeding profusely and said, “That @#$% fucking stabbed me.
That @#$% fucking stabbed me.” Bellatiere and Torres walked Rivas back to the
hotel room where they had him lay on the bathroom floor.

Rothwell
returned to the room and quickly gathered her things to leave. Soto asked, “Why
did you do it? What happened?” and Rothwell responded, “It wasn’t a big fucking
deal, get over it,” or “Get the @#$% over it. @#$% you,” and left the room
passing a bloody Rivas. Rothwell left bloody fingerprints on the stairwell
railing as she left. Someone called 911.

Bellatiere, Mulcahy, and Soto
left the hotel scared and panicked while Alcala and Torres tended to Rivas. The
group drove down the street and parked. Bellatiere left because he was the only
one in the group who was over 21 years old and had brought alcohol for the
party, which included underage party guests. Bellatiere, Mulcahy, and Soto
called Mulchay’s mother and asked what they should do. As a result of that
conversation, about one hour later, Bellatiere, Mulcahy, and Soto returned to

the hotel. Bellatiere and Mulcahy spoke to police who were at the
hotel.

Rivas died at the hospital. An autopsy determined he bled to death
as a result of an L-shaped stab wound in the left jugular vein of the neck.
Rivas had a blood alcohol level of .09% before his death. He would have needed
four and one-half to five drinks to reach that level.

Police officers
arrested Rothwell the next day at her apartment in Valencia. Officer Michael
Reilly executed a search warrant and found her purse and backpack. In a small
pocket of her backpack, he found a folding knife with dried blood on it. Dried
blood was also found on her backpack, tennis shoes, and pants. Inside Rothwell’s
purse, Reilly found a McDonald’s receipt from earlier that morning at 2:39 a.m.
for a double cheeseburger and chicken nuggets.

Later that day, officers
interviewed Rothwell at the Huntington Beach Police Department. After waiving
her Miranda[ 2 ] rights, Rothwell told police she consumed
three beers and two or three shots of alcohol and vomited while the others were
at the beach. Rothwell explained that while having a cigarette on the fire
escape, she had a conversation with Mulcahy about how she used to cut herself,
which sparked an argument with Rivas. She recalled Rivas said he “found God in
Huntington Beach,” but said it did not make her upset and she was joking when
she said the devil visited her. She explained Rivas had been drinking and yelled
at her to stab him. In response, she walked back to the hotel room and got her
knife. She denied saying she was going to stab Rivas. When she went back to the
stairwell, Rothwell alleged Rivas was taunting her to “stab me like that.”
Rothwell explained the two were wrestling and she was trying to get away when
she swung three times at his stomach and back and inadvertently stabbed him in
the neck. Rothwell explained Torres was screaming at her to stop, but she was
“drunk” and “pissed off” because Rivas had yelled at her and was grabbing her by
the arms. She told police that after she stabbed Rivas, he said, “You got me,”
and “[She] killed him.” Rothwell admitted seeing Rivas laying on the floor
bleeding profusely but gathered her belongings and left the hotel room because
she was terrified and realized he might die. Rothwell recalled saying, “tell
everybody to go to hell” to Mulcahy’s friend Marshall who had followed her down
the stairs. Rothwell explained that when she left the hotel she drove to

McDonald’s and purchased a double cheeseburger and chicken nuggets. Rothwell
explained she then went home and waited for the police to come and arrest
her.

During the interview, Rothwell at times explained she was really
drunk during the incident. However, she also denied feeling “buzzed,” explaining
she could “see straight” and was not falling down drunk. She also admitted she
drinks “a little bit” and takes medical marijuana everyday. Rothwell said she
takes Lexapro for anxiety and depression and that she had taken her medication
the night of the incident. Rothwell told police she has anger problems and when
her father died two years ago it “kinda pushed” her over the edge. She admitted
to stabbing a friend Alex Montes in the arm approximately a year and one-half
before when they were drunk and playing around. Rothwell explained she was not
mad at Montes, but he had said “you won’t [stab me],” so she did. Rothwell
agreed there were similarities about the two incidents with Rivas and Montes
because each man had dared her to stab him.

Rothwell cried while she told
police she did not mean to kill Rivas. When she heard about Rivas’s death she
“felt sick” and felt bad for his family. Rothwell did not know what made her do
it and admitted she is “not right.”

An indictment charged Rothwell with

murder in violation of Penal Code section 187, subdivision (a).[ 3 ]
The indictment alleged she personally used a knife, a dangerous and deadly
weapon, in the commission of the crime, pursuant to section 12022, subdivision
(b)(1).

At trial, the prosecutor offered Montes’s testimony. Montes
testified he was a good friend of Rothwell, had known her for three years, and
would see her everyday. Montes explained a conversation he had with Rothwell in
which she told him that she did not believe in God because her father told her
to say her prayers and when Rothwell woke up in the morning, her father was
dead. He testified Rothwell would get upset and very emotional if the topic of
God was discussed. He recalled she would say, “Don’t ever bring God up in my
house again. I don’t believe it.” Despite her anger about any discussion of God,
he never saw Rothwell pick up a weapon or heard her say she would stab someone
for talking about God. Montes recalled a night when he and Rothwell were
“playing around” and Rothwell said, “if you make me mad enough I’ll stab you.”
Not taking Rothwell seriously, Montes explained he said jokingly, “you won’t
stab me” and stuck his arm out. In response, she pushed the knife into his arm,
drawing blood. She apologized the next day, and Montes still considers her a
close friend.

Mulcahy also testified for the prosecution. Mulcahy was a
friend of Rothwell from high school and stayed in touch weekly. Mulcahy
testified Rothwell appeared to be fine when she entered the party. She explained
it was the first time Rivas and Rothwell had met. She believed Rothwell was not
religious but was also not an atheist. She also knew Rothwell carried a knife
for protection and could get very angry. Mulcahy testified everyone drank
throughout the night.

The prosecutor also offered the testimony of a
forensic scientist, Annette McCall. McCall testified blood samples gathered from
the scene compared with known samples of Rivas’s DNA revealed Rivas could “not
be eliminated as a source.” She also testified blood samples gathered from
Rothwell’s backpack and knife compared with known samples of Rivas’s DNA
revealed Rivas could “not be eliminated as a source.”

Rothwell offered
Torres’s testimony. Torres explained she and Rothwell were best friends. Torres
said they “probably smoked marijuana” before going to the hotel and she saw
Rothwell smoking marijuana throughout the night. Torres described Rivas as
always having a smile on his face. According to Torres, Rivas and Rothwell were
talking about religion on the landing and Rivas said he saw God on the beach.
Rothwell said, “I’m the devil.” Torres explained Rivas was calm and Rothwell was
yelling and then left briefly. Torres recalled that when Rothwell returned, it
appeared as though she was dancing with Rivas. She eventually realized it looked
confrontational and Rivas was trying to push Rothwell away. Torres testified she
never saw a knife. She saw the blood pouring from Rivas’s neck but did not think
he would die. Torres helped Rivas until the paramedics arrived. She remembered
Rivas saying, “Tell my mother I love her.” She stated Rothwell gathered her
belongings and left the hotel room. Torres thought she heard Rothwell say upon
her departure, “It’s no big deal, fucking deal with it.” Torres said Rivas had
not been confrontational or argumentative with Rothwell that night or in the
past. However, Torres explained Rothwell becomes confrontational whenever the
subject of God comes up. Torres also explained that if someone tells Rothwell
not to do something, she will do it. Furthermore, if someone dares Rothwell to

do something, she will. Torres testified she witnessed the stabbing of Montes by
Rothwell, which was the result of a dare. Torres also testified “`[Rothwell]
goes from zero to maniac . . . if you push her button.'”

Torres admitted
lying to the police to protect Rothwell. She tried to protect Rothwell because
she knew what Rothwell did was wrong and it was no accident. Torres explained
she called Christian Robinson, Rothwell’s boyfriend, and told him that Rothwell
had stabbed someone. Two days later, Torres felt she could no longer protect
Rothwell and typed a statement to police that she both faxed and hand delivered.
In the statement, she explained Rothwell had stabbed Rivas. She also reported
Rothwell said to Rivas, “Oh yeah, oh, you don’t think I won’t. You think I
won’t.”

The trial court instructed the jury on first degree murder and
second degree murder­both on the implied malice and no premeditation
theories­and involuntary manslaughter. Rothwell’s counsel requested CALCRIM
No. 3426, the voluntary intoxication instruction. The prosecutor objected based
on Rothwell’s statement she was not buzzed. The trial court expressed a
preference for CALCRIM No. 625, a voluntary intoxication instruction that
pertains directly to homicide. Defense counsel requested CALCRIM No. 625 be
modified to add malice aforethought, which includes implied malice. The
requested instruction (the Special Instruction) provided: “You may consider
evidence, if any, of the defendant’s voluntary intoxication only in a limited
way. You may consider that evidence only in deciding whether the defendant acted
with an intent to kill, or the defendant acted with deliberation and
premeditation, or acted with malice aforethought. [¶] A person is

voluntarily intoxicated if he or she becomes intoxicated by willingly
using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect.
[¶] You may not consider evidence of voluntary intoxication for any other
purpose.” The court declined to instruct the jury with the Special Instruction.
Instead, the court instructed the jury with CALCRIM No. 625 without the “or
acted with malice aforethought” language.

The jury convicted Rothwell of
second degree murder and found true the allegations she personally used a deadly
or dangerous weapon, a knife. The trial court sentenced her to prison for a
total term of 16 years to life.

DISCUSSION

Due Process and Fair Trial

Rothwell contends her federal constitutional rights to due process and a
fair trial were violated when the trial court, relying on section 22, refused to
instruct the jury it may consider her voluntary intoxication to negate implied
malice. Specifically, she argues section 22, subdivision (b), is
unconstitutional because it was designed to keep out relevant, exculpatory
evidence and is not a redefinition of the mental state element of the offense.
We disagree.

Section 22, most recently amended in 1995, provides: “(a) No
act committed by a person while in a state of voluntary intoxication is less
criminal by reason of his or her having been in that condition. Evidence of
voluntary intoxication shall not be admitted to negate the capacity to form any
mental states for the crimes charged, including, but not limited to, purpose,
intent, knowledge, premeditation, deliberation, or malice aforethought, with
which the accused committed the act. [¶] (b) Evidence of voluntary intoxication
is admissible solely on the issue of whether or not the defendant actually
formed a required specific intent, or, when charged with murder, whether the
defendant premeditated, deliberated, or harbored express malice
aforethought. [¶] (c) Voluntary intoxication includes the voluntary ingestion,
injection, or taking by any other means of any intoxicating liquor, drug, or
other substance.” (Italics added.)

The Legislature’s 1995 amendment to

section 22 inserted the word “express” before the word “malice” in subdivision
(b). The 1995 amendment was in direct response to People v. Whitfield
(1994) 7 Cal.4th 437 (Whitfield). In Whitfield, the California
Supreme Court held evidence of a defendant’s voluntary intoxication was
admissible to negate implied as well as express malice. (Id. at
451.)

The history of the 1995 amendment to section 22 was most recently
addressed in People v. Turk (2008) 164 Cal.App.4th 1361 (Turk). In

Turk, the court concluded, “The legislative history of the amendment
unequivocally indicates that the Legislature intended to legislatively supersede
Whitfield, and make voluntary intoxication inadmissible to negate implied
malice in cases in which a defendant is charged with murder.” (Turk,
supra,
164 Cal.App.4th at pp. 1374-1375.)

Rothwell argues section 22
is unconstitutional after the 1995 amendment because “it created a rule that
keeps out relevant exculpatory evidence by in effect precluding the jury from
considering evidence that could disprove the `conscious disregard for human
life’ element of implied malice second degree murder.” Rothwell relies on

Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff), and Justice
Ginsburg’s concurring opinion, to support her contention.

In
Egelhoff, a plurality of the court upheld the constitutionality of a
Montana statute providing voluntary intoxication “`may not be taken into
consideration in determining the existence of a mental state which is an element
of [the] offense.'” (Egelhoff, supra, 518 U.S. at p. 57.) The plurality
found no due process violation because the right to have a jury consider
intoxication evidence was not a “fundamental principle of justice.” In
concurrence, Justice Ginsberg drew a distinction between rules designed to keep
out relevant, exculpatory evidence that might negate an essential element of a
crime and violate due process, and rules that redefine the mental state element
of the offense. (Ibid.) Justice Ginsburg viewed the Montana statute as a
redefinition of the offense’s required mental state and therefore excluding
evidence of voluntary intoxication was constitutional. (Id. at pp.
57-59.)

“When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, `the holding of the
Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds . . . .'” (Marks v. United States

(1977) 430 U.S. 188, 193.) Assuming Justice Ginsburg’s concurrence controls, as
Rothwell urges this court to do, we nonetheless conclude section 22 does not
violate due process.

In People v. Timms (2007) 151 Cal.App.4th
1292, 1300-1301 (Timms ), the court addressed the identical issue we have
here. The court explained section 22 did not violate a defendant’s due process
rights because section 22, subdivision (b), did not belong to the “prohibited
category of evidentiary rules designed to exclude relevant exculpatory
evidence.” (Timms, supra, 151 Cal.App.4th at p. 1300.) The court
reasoned, “The absence of implied malice from the exceptions listed in
subdivision (b) is itself a policy statement that murder under an implied malice
theory comes within the general rule of subdivision (a) such that voluntary
intoxication can serve no defensive purpose. In other words, section 22,
subdivision (b)[,] is not `merely an evidentiary prescription’; rather, it
`embodies a legislative judgment regarding the circumstances under which
individuals may be held criminally responsible for their actions.’ [Citation.]
In short, voluntary intoxication is irrelevant to proof of the mental state of
implied malice or conscious disregard. Therefore, it does not lessen the
prosecution’s burden of proof or prevent a defendant from presenting all
relevant defensive evidence.” (Id. at pp. 1300-1301)

The

Timms court found illuminating the fact section 22 does not appear in the
Evidence Code, it appears in the Penal Code. (Timms, supra, 151
Cal.App.4th at p. 1300.) Additionally, the court acknowledged the California
Supreme Court’s holding in People v. Atkins (2001) 25 Cal.4th 76, which
rejected a due process challenge to section 22 in the context of the general
intent crime of arson. (Timms, supra, 151 Cal.App.4th at p.
1300.)

With respect to Justice Ginsburg’s concurrence, the court stated
that assuming the concurrence controls, “Justice Ginsberg also stated: `Defining

mens rea to eliminate the exculpatory value of voluntary intoxication
does not offend a “fundamental principle of justice,” given the lengthy
common-law tradition, and the adherence of a significant minority of the States
to that position today. [Citations.]’ [Citation.] Under this rational, the 1995
amendment permissibly could preclude consideration of voluntary intoxication to
negate implied malice and the notion of conscious disregard. Like the Montana
statute, the California Legislature could also exclude evidence of voluntary
intoxication in determination of the requisite mental state.” (Timms,
supra,
151 Cal.App.4th p. 1300.) Therefore, the court concluded section 22
did not infringe defendant’s constitutional rights.

Rothwell also argues
the trial court’s application of section 22 violated her constitutional right to

due process and a fair trial because, “[t]he level of a defendant’s intoxication
is undeniably relevant evidence on the issue of whether he or she consciously
disregarded a risk to human life.” We find People v. Martin (2000) 78
Cal.App.4th 1107 (Martin), instructive.

In Martin, supra,
78 Cal.App.4th at page 1113, the court rejected this constitutional challenge to
section 22. The court explained, “Section 22 states the basic principle of law
recognized in California that a criminal act is not rendered less criminal
because it is committed by a person in a state of voluntary intoxication.” The
court stated section 22 “is closely analogous to [the Legislature’s] abrogation
of the defense of diminished capacity . . . . The 1995 amendment to section 22
results from a legislative determination that, for reasons of public policy,
evidence of voluntary intoxication to negate culpability shall be strictly
limited. We find nothing in the enactment that deprives a defendant of the
ability to present a defense or relieves the People of their burden to prove
every element of the crime charged beyond a reasonable doubt.” (Martin,
supra,
78 Cal.App.4th at p. 1117.)

We find the courts’ reasoning in

Timms, supra, 151 Cal.App.4th 1292, and Martin, supra, 78
Cal.App.4th 1107, persuasive. Thus, we conclude the trial court’s refusal to
instruct the jury with Rothwell’s Special Instruction did not violate her
constitutional rights. The trial court properly instructed the jury with CALCRIM
No. 625.

Equal Protection

In its respondent’s brief,
the Attorney General suggests Rothwell may be asserting an equal protection
claim. In her reply brief, Rothwell raises the equal protection argument for the
first time. We need not consider this argument, because it was made for the
first time in reply without any showing of good cause for failing to raise it in
the opening brief. (Shade Foods, Inc. v. Innovative Products Sales &

Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.) Additionally,
to the extent Rothwell attempts to raise an equal protection claim, her failure
to properly raise the issue and support it with adequate argument and citation
to authority waived the issues on appeal. (See, e.g., California Dept. of
Corrections v. State Personnel Bd.
(2004) 121 Cal.App.4th 1601, 1619.) In
any event, her claim fails on the merits. (Timms, supra, 151 Cal.App.4th
at pp. 1302-1303.)

DISPOSITION

The judgment is
affirmed.

WE CONCUR.

MOORE, J.

IKOLA, J.
1. `In accord
with the usual rules of appellate review, we state the facts in the light most
favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206.)
2. Miranda v. Arizona (1966) 384 U.S. 436.
3. All further
statutory references are to the Penal Code

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PROZAC: Murder: Involuntary Intoxication Plea: Tennessee

Paragraph 14 reads:  “The Petitioner had available as a
defense at trial and also as a competency issue the fact that he was
[intoxicated] from the ingestion of . . .[the] medically prescribed drugs[,
Moban and Prozac].
The Petitioner contends that this intoxication
constitutes a valid defense that was overlooked by defense counsel. The
prescribed medications were taken pursuant to medical advice and without [the
Petitioner’s] knowledge of [their] potentially intoxicating effects. . . .
Petitioner contends that due to the ingestion of the aforementioned prescription
drugs he was unexpectedly intoxicated to the point of unconsciousness, incapable
of controlling his actions, and thus not criminally responsible for his actions.
Because the Petitioner was unaware of the potential for his medications to
produce abnormal thought processes and behavior, and because [they were]
medically prescribed to him, the petitioner’s condition qualified as involuntary
intoxication. See T.C.A. § 39-11-503(c). As a result of the aforementioned
prescribed medication-induced physical disorder of the brain, the Petitioner was
(1) unable to exercise his customary moral judgment, (2) unable to control his
violent impulses, (3) unable to appreciate the consequences of his violent
actions, and (4) unable to appreciate right and wrong in regard to what he was
doing at the time of the
homicide.”

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SILER v. STATE

JEFFERY T. SILER, JR.,
v.
STATE
OF TENNESSEE.

No. E2009-00436-CCA-R3-PC.

Court of Criminal Appeals
of Tennessee, at Knoxville.

Assigned on Briefs August 26,
2009.

Filed April 12, 2010.

Jeffery T. Siler, Pro Se, Only,

Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and
Clark B. Thornton, Assistant Attorney General, for the Appellee, State of
Tennessee.

Camille R. McMullen, J., delivered the opinion of the court,
in which Joseph M. Tipton, P.J., and D. Kelly Thomas, Jr., J.,
joined.

OPINION

CAMILLE R. McMULLEN, JUDGE.

The
Petitioner, Jeffery T. Siler, Jr., appeals the Knox County Criminal Court’s
summary dismissal of his petition for post-conviction relief as untimely. On
appeal, the Petitioner contends that due process considerations toll the
one-year statute of limitations for post-conviction relief and entitle him to a
delayed appeal. Upon review, we reverse the judgment of the post-conviction
court.

Prior to trial, the Petitioner pleaded guilty to the charge of
attempted especially aggravated robbery and received a sentence of eight years.
See State v. Jeffery T. Siler, No. E2000-01570-CCA-R3-CD, 2001 WL
387088, at *1 (Tenn. Crim. App., at Knoxville, Apr. 17, 2001). A Knox County
jury subsequently found the Petitioner guilty of the felony murder charge.

See id. He received a life sentence that was to be served
concurrently to his eight-year sentence for the attempted especially aggravated
robbery conviction. See id. The Petitioner’s convictions were
affirmed on direct appeal, and the Petitioner did not file an application for
permission to appeal to the Tennessee Supreme Court pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure. See id.

On February
13, 2009, the Petitioner filed a petition for post-conviction relief, claiming,
among other things, that: (1) his conviction was based on a coerced confession;
(2) his conviction was based on a violation of the privilege of
self-incrimination; (3) he received ineffective assistance of counsel at trial;
(4) he had newly discovered evidence; (5) his attorney failed to appeal to the

Tennessee Supreme Court after his convictions were affirmed on direct appeal;
(6) his attorney failed to withdraw following the direct appeal; (7) he had a
right to a delayed appeal because his attorney failed to appeal his case to the
Tennessee Supreme Court after his convictions were affirmed on direct appeal and
because his attorney failed to withdraw after the direct appeal; (8) he received
ineffective assistance of counsel at his transfer hearing; (9) his attorney was
ineffective for failing to argue he was incompetent because of involuntary
intoxication from prescribed medicatons and for failing to assert the defense of
involuntary intoxication; (10) his attorney was ineffective for failing to
investigate his psychiatric history and for failing to include this history in a
motion to suppress his pretrial statements; (11) his attorney was ineffective
for failing to hire an expert to support the defense of involuntary intoxication

from prescribed medications which established his actual innocence; (12) his
attorney was ineffective for failing to argue the Petitioner was insane at the
time of the homicide and for failing to hire an expert to support the defense of
insanity; (13) the grand jury that returned the indictment against him was
unconstitutionally selected because it did not reflect a cross-section of the
community and his attorney was ineffective for failing to raise this issue; (14)
the State committed prosecutorial misconduct by making inflammatory comments
about the Petitioner, the evidence, and the crime, and by implying that the
Petitioner would commit other crimes if the jury did not convict him; and (15)
the trial court erred by allowing “irrelevant, inadmissible, and false evidence”
to be presented to the jury, by failing to charge the jury on all applicable
defenses, and by failing to charge the jury on all lesser-included offenses. On
February 20, 2009, the post-conviction court summarily dismissed the petition as
untimely. The post-conviction court’s order did not address whether due process
required tolling of the statute of limitations period. On March 2, 2009, the
Petitioner filed a notice of appeal.

In the opinion on direct appeal,
this court provided a summary of the underlying facts in this case:

On February 19, 1998, the fifteen-year-old defendant and fifteen-year-old
Lavon Davis were riding with Jason Copley. Davis stated that he was “looking
for a lick,” meaning someone to rob. Upon seeing fifty-six-year-old Tommy
Haworth, the victim, walking down the street, they decided to rob him. The
defendant agreed to take Davis’ pistol, and Davis and the defendant exited the
vehicle and followed the victim to his residence. There, the defendant
confronted the victim and asked him for money. The victim replied that he had
none. The defendant then cocked the pistol, and it fired. The victim was hit
in the face with the bullet and died as a result of this gunshot wound.
The defendant and Davis fled the scene, and the defendant threw the empty
shell casing into a storm drain. Copley, who had remained in the vehicle,
stayed at the scene and told someone to call 911.
The defendant and Davis were subsequently arrested, and the defendant
confessed his involvement in the offense. In his statement the defendant
contended the gun went off accidentally during the attempted robbery, and he
did not intend to shoot the victim. An analysis of the shell casing found in
the storm drain and the projectile recovered in the victim’s toboggan revealed
they were fired from the pistol recovered from Davis’ coat pocket. The
defendant’s fingerprints were also found on the door of the victim’s
residence.
The defendant was transferred from juvenile court to the Criminal Court
for Knox County and indicted in Count 1 for first degree murder during the
perpetration of an attempted especially aggravated robbery and in Count 2 for
attempted especially aggravated robbery. On the morning of trial, the
defendant entered a guilty plea to attempted especially aggravated robbery,
and the case was tried before a jury on the felony murder charge. The jury
found the defendant guilty of felony murder. The defendant was sentenced to
concurrent sentences of life for felony murder and eight years for attempted
especially aggravated robbery.

Id. at *1 (internal footnote
omitted).

On appeal, the Petitioner argues that the post-conviction court
erred in dismissing his petition for post-conviction relief as untimely. He also
contends that due process considerations should toll the post-conviction statute
in light of his counsel’s failure to appeal his case to the Tennessee Supreme
Court after his convictions were affirmed on direct appeal, his counsel’s
failure to withdraw as counsel pursuant to Tennessee Supreme Court Rule 14, and
his counsel’s failure to argue that he was incompetent because of involuntary

intoxication and failure to assert the defense of involuntary intoxication at
trial. As explanation for his untimely filing, the Petitioner claims in his
appellate brief that his “multiple mental health diagnoses” including “mental
retardation” prevented him from determining how much time it would take for the
Tennessee Supreme Court to grant or deny counsel’s promised application for
permission to appeal. See Tenn. R. App. P. 11. Finally, the Petitioner argues
that he should be given a delayed appeal to the Tennessee Supreme Court because
of these due process violations. See Tenn. Sup. Ct. R. 28, § 9(D)(1)(b). In
response, the State argues that the Petitioner’s claims do not qualify as
exceptions to the statute of limitations, that the post-conviction court
properly dismissed his petition as untimely, and that he is not entitled to a
delayed appeal based on due process concerns.

Regarding counsel’s failure
to appeal his case following the direct appeal, the Petitioner cites to
counsel’s April 19, 2001 letter to him, wherein counsel stated:

Your appeal was denied by the Court of Criminal Appeals. I shall ask for
permission to appeal to the Tennessee Supreme Court, unless you instruct me
otherwise within the next ten (10) days. A copy of the Court’s opinion is
enclosed.
If I do not hear from you within the next ten (10) days, I shall prepare a
Request for Permission to Appeal to the Supreme Court of Tennessee. While I do
not think permission to appeal will be granted, I believe it is obviously in
your best interest for me to ask on your behalf. Thank you for the opportunity
to represent you in this matter.

The Petitioner also cites to
counsel’s November 4, 2008 letter to the Board of Professional Responsibility,
wherein counsel stated: “The Court of Criminal Appeals denied Mr. Siler’s
appeal, and he did not contact me within thirty (30) days, orally or in writing,
to appeal to the Supreme Court.”

Regarding counsel’s failure to withdraw
pursuant to Tennessee Supreme Court Rule 14, the Petitioner cites to the
response he received from Becky Doyal, the Deputy Clerk of the Courts of the
State of Tennessee, wherein she stated:

Your question: “Did [counsel] file a motion to withdraw on your behalf[.”]
If you are asking if [counsel] filed a motion to withdraw as your attorney,
the answer is no. If you are asking[] if [counsel] filed a motion to withdraw
the appeal, the answer is no.

The Petitioner included copies of
counsel’s April 19, 2001 letter, counsel’s November 4, 2008 letter to the Board
of Professional Responsibility, and the response from the Deputy Clerk of the
Courts of the State of Tennessee as exhibits to his petition for post-conviction
relief.

Finally, regarding counsel’s failure to assert competency or
defense arguments based on involuntary intoxication, the Petitioner argues:

The Petitioner had available as a defense at trial and also as a
competency issue the fact that he was [intoxicated] from the ingestion of . .
.[the] medically prescribed drugs[, Moban and Prozac]. The Petitioner contends
that this intoxication constitutes a valid defense that was overlooked by
defense counsel. The prescribed medications were taken pursuant to medical
advice and without [the Petitioner’s] knowledge of [their] potentially
intoxicating effects. . . . Petitioner contends that due to the ingestion of
the aforementioned prescription drugs he was unexpectedly intoxicated to the
point of unconsciousness, incapable of controlling his actions, and thus not
criminally responsible for his actions. Because the Petitioner was unaware of
the potential for his medications to produce abnormal thought processes and
behavior, and because [they were] medically prescribed to him, the
petitioner’s condition qualified as involuntary intoxication. See T.C.A. §
39-11-503(c). As a result of the aforementioned prescribed medication-induced
physical disorder of the brain, the Petitioner was (1) unable to exercise his
customary moral judgment, (2) unable to control his violent impulses, (3)
unable to appreciate the consequences of his violent actions, and (4) unable
to appreciate right and wrong in regard to what he was doing at the time of
the homicide.

“[A] person in custody under a sentence of a
court of this state must petition for post-conviction relief within one (1) year
of the date of the final action of the highest state appellate court to which an
appeal is taken or, if no appeal is taken, within one (1) year of the date on
which the judgment became final. . .” T.C.A. § 40-30-102(a) (2006). The statute
explicitly states, “The statute of limitations shall not be tolled for any
reason, including any tolling or saving provision otherwise available at law or
equity.” Id. It further stresses that “[t]ime is of the essence of the right to
file a petition for post-conviction relief or motion to reopen established by
this chapter, and the one-year limitations period is an element of the right to
file the action and is a condition upon its exercise.” Id. In the event that a
petitioner files a petition for post-conviction relief outside the one-year
statute of limitations, the trial court is required to summarily dismiss the
petition. See id. § 40-30-106(b) (2006). Similarly, “[i]f, on reviewing the
petition, the response, files, and records, the court determines conclusively
that the petitioner is entitled to no relief, the court shall dismiss the
petition.” Id. § 40-30-109(a) (2006). Furthermore, “[i]f and when a petition is
competently drafted and all pleadings, files and records of the case
conclusively show that the petitioner is entitled to no relief the court may
properly dismiss the petition without the appointment of counsel or conducting a
hearing.” Martucci v. State, 872 S.W.2d 947, 949 (Tenn. Crim. App. 1993) (citing
T.C.A. § 40-30-109; Stokely v. State, 470 S.W.2d 37, 39 (Tenn. Crim. App.
1971)).

Tennessee Code Annotated section 40-30-102(b) (2006) sets out
three exceptions to the statute of limitations for petitions for post-conviction
relief:

No court shall have jurisdiction to consider a petition filed after the
expiration of the limitations period unless:
(1) The claim in the petition is based upon a final ruling of an appellate
court establishing a constitutional right that was not recognized as existing
at the time of trial, if retrospective application of that right is required.
The petition must be filed within one (1) year of the ruling of the highest
state appellate court or the United States supreme court establishing a
constitutional right that was not recognized as existing at the time of trial;

(2) The claim in the petition is based upon new scientific evidence
establishing that the petitioner is actually innocent of the offense or
offenses for which the petitioner was convicted; or
(3) The claim asserted in the petition seeks relief from a sentence that
was enhanced because of a previous conviction and the conviction in the case
in which the claim is asserted was not a guilty plea with an agreed sentence,
and the previous conviction has subsequently been held to be invalid, in which
case the petition must be filed within one (1) year of the finality of the
ruling holding the previous conviction to be
invalid.

Additionally, due process concerns may toll the
statute of limitations for post-conviction relief. The Tennessee Supreme Court
concluded:

[B]efore a state may terminate a claim for failure to comply with
procedural requirements such as statutes of limitations, due process requires
that potential litigants be provided an opportunity for the presentation of
claims at a meaningful time and in a meaningful manner.

Burford
v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush Co.,
455 U.S. 422, 437, 102 S. Ct. 1148, 1158-59 (1982)).

Here, the Petitioner
was required to file his petition for post-conviction relief within one year of
April 17, 2001, the date that the Tennessee Court of Criminal Appeals affirmed
his convictions on direct appeal, which was the final action of the highest
state appellate court to which an appeal was taken in his case. See T.C.A. §
40-30-102(a) (2006). The Petitioner does not list any ground that would make him
eligible for the exceptions to the one-year statute of limitations. See id. §
40-30-102(b) (2006). However, regarding counsel’s failure to appeal to the

Tennessee Supreme Court after his direct appeal and counsel’s failure to
withdraw as counsel, he relies on Williams v. State, 44 S.W.3d 464, 468 (Tenn.
2001), for the proposition that due process considerations should toll the
one-year statute of limitations for filing his petition for post-conviction
relief. In Williams, the Tennessee Supreme Court stressed that in limited
circumstances an attorney’s misrepresentation to a petitioner could result in a
tolling of the statute of limitations for due process concerns:

[W]e are not holding that a petitioner may be excused from filing an
untimely post-conviction petition as a result of counsel’s negligence.
Instead, the focus here is . . . upon trial and appellate counsel’s alleged
misrepresentation in failing to . . . notify the petitioner that no
application for permission to appeal would be filed in [the Tennessee Supreme]
Court.

Williams, 44 S.W.3d. at 468 n.7. In Craig Robert Nunn,
this court agreed that “[t]he Williams decision is not intended to require a
hearing on due process concerns every time a petitioner alleges that the
untimeliness of his petition is due to his trial or appellate counsel’s
negligence.” Craig Robert Nunn v. State, No. M2005-01404-CCA-R3-PC, 2006 WL
680900, at *5 (Tenn. Crim. App., at Nashville, Mar. 17, 2006) (citing Bronzo
Gosnell, Jr. v. State, No. E2004-02654-CCA-R3-PC, 2005 WL 1996629, at *4 (Tenn.

Crim. App., at Knoxville, Aug. 19, 2005), perm. to appeal denied (Tenn. Dec. 19,
2005)). However, this court explained that the facts in the Williams case
necessitated an evidentiary hearing:

In Williams, the inmate/petitioner averred that he believed trial counsel
was continuing to represent him through the appeals process. The court
remanded for an evidentiary hearing on grounds that the inmate/petitioner
might “have been denied the opportunity to challenge his conviction in a
timely manner through no fault of his own but because of the possible
misrepresentation of counsel.”

Barry N. Waddell v. State, No.
M2001-00096-CCA-R3-PC, 2001 WL 1246393, at *3 (Tenn. Crim. App., Nashville, Oct.
17, 2001) (quoting Williams, 44 S.W.3d at 468) (emphasis added)), perm. to
appeal denied (Tenn. Apr. 8, 2002). Ultimately, the court in Williams remanded
the appellee’s case to the trial court for an evidentiary hearing to determine:

(1) whether due process tolled the statute of limitations so as to give
the appellee a reasonable opportunity after the expiration of the limitations
period to present his claim in a meaningful time and manner; and (2) if so,
whether the appellee’s filing of the post-conviction petition . . . was within
the reasonable opportunity afforded by the due process tolling. Williams, 44
S.W.3d. at 471. The Williams court then held that if the trial court
determined that the statute of limitations should be tolled and that the
appellee had filed his petition for post-conviction relief within the
“reasonable opportunity afforded by the due process tolling” then the trial
court would have “jurisdiction to determine whether Williams was deprived of
his right to request pro se Supreme Court review under Rule 11 of the
Tennessee Rules of Appellate Procedure.” Id. at 472 (citing Tenn. Sup. Ct. R.
28, § 9(D)).

Although the Petitioner does not specifically cite
State v. Nix, 40 S.W.3d 459 (Tenn. 2001), we think this case is also
particularly relevant, given the Petitioner’s claim in his appellate brief that
his mental conditions prevented him from determining how much time it would take
for the Tennessee Supreme Court to grant or deny counsel’s promised application
for permission to appeal. Prior to Nix, the Tennessee Supreme Court, following
the holding in Watkins v. State, 903 S.W.2d 302, 307 (Tenn. 1995), concluded
that “mental incompetency, if established, tolled the statute of limitations.”
Seals v. State, 23 S.W.3d, 272, 279 (Tenn. 2000). The court further held that
the statute of limitations for post-conviction relief should not deny a
Petitioner the right to raise a claim in a meaningful time and manner:

[W]e conclude that while the one-year statute of limitations set forth in
Tenn. Code Ann. § 40-30-202(a) does not violate due process on its face,
application of the statute must not deny a petitioner a reasonable opportunity
to raise a claim in a meaningful time and manner. Thus, a petitioner who is
mentally incompetent is denied an opportunity to raise a claim in a meaningful
manner unless the statute of limitations is tolled during the period of mental
incompetence.

Id. Less than a year later, the Tennessee Supreme
Court held that the Watkins and Seals cases did not specify the standard of
mental incompetence that a petitioner must satisfy in order for due process
concerns to toll the statute of limitations for post-conviction relief. Nix, 40
S.W.3d at 463. Ultimately, the court held:

We emphasize that to make a prima facie showing of incompetence requiring
tolling of the limitations period, a post-conviction petition must include
specific factual allegations that demonstrate the petitioner’s inability to
manage his personal affairs or understand his legal rights and liabilities.
Unsupported, conclusory, or general allegations of mental illness will not be
sufficient to require tolling and prevent summary dismissal under Tenn. Code
Ann. § 40-30-206(b) & (f).

Id. at 464-65.

On appeal,
the Petitioner contends that counsel violated his due process rights by failing
to appeal his case to the Tennessee Supreme Court after his convictions were
affirmed on direct appeal, by failing to withdraw as counsel pursuant to
Tennessee Supreme Court Rule 14, and by failing to argue that he was incompetent
because of involuntary intoxication and failing to assert involuntary

intoxication as a defense at trial. We recognize that the petition for
post-conviction relief was not filed until February 13, 2009, nearly seven years
after the expiration of the one-year statute of limitations. In addition, based
on the record, the Petitioner’s February 13, 2009 petition appears to be the
first time he has argued that due process concerns should toll the one-year
statute of limitations. See Richard A. Emmitt v. State, No.
M2004-00564-CCA-R3-PC, 2005 WL 639133, at *6 (Tenn. Crim. App., Nashville, Mar.
16, 2005) (concluding that the trial court’s dismissal was proper where the
Petitioner waited eighteen years after his convictions became final before
filing a petition for post-conviction relief and before requesting a delayed
appeal to the Tennessee Supreme Court), perm. to appeal denied (Tenn. June 27,
2005). However, as explanation for his lengthy delay in filing his
post-conviction, the Petitioner argues in his appellate brief but not in his
petition for post-conviction relief that his “multiple mental health diagnoses”
including “mental retardation” prevented him from determining how much time it
would take for the Tennessee Supreme Court to grant or deny counsel’s promised
application for permission to appeal. The Petitioner further asserts, on appeal
and in his post-conviction petition, that he lived in a psychiatric institution
nearly his entire childhood and that he was receiving Social Security benefits
for a mental disability and was taking the prescriptions Moban and Prozac for
schizophrenia at the time of the homicide in this case. He attached medical
records documenting his mental conditions from his early childhood to his
petition; however, there are no records showing his condition after
trial.

Upon our review of the record, we conclude that the
post-conviction court erred in dismissing the petition without conducting a
hearing to make determinations as outlined in Williams. See Eric Wright v.
State, No. W2001-00386-CCA-R3-PC, 2001 WL 1690194, at *2 (Tenn.Crim.App., at
Jackson, Dec. 17, 2001). Here, the Petitioner attached a letter from counsel as
proof of counsel’s intent to file for a Rule 11 appeal as well as a letter from
the court clerk as proof of counsel’s failure to properly withdraw from his
case. Before dismissing the petition as untimely, Williams required the trial
court to conduct a hearing to determine if “in fact, [the petitioner] [was]
misled to believe that counsel was continuing the appeals process, thereby
requiring the tolling of the limitations period.” Williams, 44 S.W.3d at 471;
see also Shelvy Baker v. State, 2008 WL 2648957, at 2 (Tenn.Crim.App. 2008)
(concluding that petitioner’s allegations that counsel “(1) failed to notify the
Petitioner that counsel did not intend to file a Rule 11 application for
permission to appeal; (2) failed to formally withdraw as the attorney of record
or otherwise failed to inform the Petitioner of counsel’s withdraw; and (3)
counsel assured `the Petitioner that he would take the case all the way to the
Tennessee Supreme Court'” required a Williams based evidentiary
hearing).

Accordingly, we are constrained to reverse the post-conviction
court’s summary dismissal of the petition and remand for an evidentiary hearing.
On remand, the post-conviction court is required to determine

(1) whether due process tolled the statute of limitations so as to give
the [Petitioner] a reasonable opportunity after the expiration of the
limitations period to present his claim in a meaningful time and manner; and
(2) if so, whether the [Petitioner’s] filing of the post-conviction petition
in [February 2009] was within the reasonable opportunity afforded by the due
process tolling.

Williams, 44 S.W.3d at 471. In addition, on
remand, the trial court should consider the Petitioner’s claims regarding his
mental condition against the standard for mental competency established in State
v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001).

CONCLUSION

We reverse the post-conviction
court’s summary dismissal of the Petitioner’s petition for post-conviction
relief and remand for further proceedings consistent with this
opinion.

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