Opinion
No. M2006-01692-CCA-R3-CD.
Filed September 28, 2007.
Appeal from the Circuit Court for Montgomery County; Nos. 25066A, 040663, 040991; John H. Gasaway, III, Judge.
Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
Cleo Patterson, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which David H. Welles and Jerry L. Smith, JJ., joined.
MEMORANDUM OPINION
The Petitioner, Cleo Patterson, appeals the trial court's denial of his petition for writ of error coram nobis and motion to reopen for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude the State's motion has merit. Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.
Between 1987 and 1999, the Petitioner was convicted burglary of a dwelling, sale of less than .5 grams of cocaine and escape from jail. It appears from the record that the Petitioner has completed all of the sentences associated with these crimes. On April 5, 2006, the Petitioner filed a petition for writ of error coram nobis contending that the attorneys representing him in these cases were ineffective. On May 25, 2006, the Petitioner filed an amendment to the petition for writ of error coram nobis. On June 5, 2006, the Petitioner filed a document titled "Amended Notice to Courts of Defendants Ineffective Assistance of Couns[e]l Against Attorney of Record." Specifically, the Petitioner claimed that his counsel advised him that his felony convictions would be reduced to misdemeanors upon his successful completion of a drug program, but this did not occur. On June 27, 2006, the trial court entered an order denying the Petitioner's petition. The trial court noted that the Petitioner's initial pleading was incorrectly titled a petition for error coram nobis because the Petitioner's allegations, if proved, would constitute ineffective assistance of counsel, which the writ of error coram nobis is not designed to remedy. Accordingly, the trial court treated the Petitioner's initial petition and subsequent amendments as a petition for post-conviction relief. The trial court then dismissed the petition as untimely. The Petitioner filed a timely notice of appeal.
We note that the trial court correctly treated the Petitioner's petition as one for post-conviction relief. Further, Tennessee Code Annotated section 40-30-102(a) provides that a petition for post-conviction relief must be filed within one year from final judgment. Under the Post-Conviction Procedure Act, exceptions to the statute of limitations are set forth. These exceptions include the following: (1) claims based upon a new rule of constitutional law applicable to a petitioner's case; (2) claims based upon new scientific evidence showing innocence; and (3) claims based upon sentences that were enhanced because of a previous conviction and the previous conviction was subsequently found to be illegal. See T.C.A. § 40-30-102(b)(1)-(3) (2003).
The Petitioner filed his petition beyond the one-year statute of limitation. The record indicates that the Petitioner pled guilty to the offenses at issue in 1989 and 1999 but did not file his petitions alleging the ineffective assistance of counsel until 2006. The Petitioner also failed to assert any of the exceptions for tolling the statute. He cites no new constitutional rule, refers to no new scientific evidence, and makes no claim that an earlier conviction has been overturned. Id.; see also T.C.A. § 40-30-106(g) (2003). Thus, no grounds exist as an exception to the statute of limitations.
Accordingly, the State's motion is hereby granted. The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.
ORDER
On July 16, 2007, this Court granted the State's motion to affirm the trial court's ruling pursuant to Rule 20 of the Tennessee Rules of the Court of Criminal Appeals. The Appellant, Cleo Patterson, filed a petition to rehear, pursuant to Rule 39 of the Tennessee Rules of Appellate Procedure, on July 30, 2007.
The grant or denial of a petition to rehear remains solely in the discretion of this Court. However, Rule 39 of the Tennessee Rules of Appellate Procedure provides guidance to the "character of reasons that will be considered" by the Court in making its determination. Such circumstances include the following: (1) the court's opinion incorrectly states the material facts established by the evidence and set forth in the record; (2) the court's opinion is in conflict with a statute, prior decision, or other principle of law; (3) the court's opinion overlooks or misapprehends a material fact or proposition of law; and (4) the court's opinion relies upon matters of fact or law upon which the parties have not been heard and that are open to reasonable dispute. See Tenn. R. App. P. 39(a); see also Advisory Comm'n Cmts., Tenn. R. App. P. 39. A petition to rehear is intended to call attention of the Court to matters overlooked, not things which counsel supposes were improperly decided after full consideration. Clover Bottom Hosp. Sch. v. Townsend, 513 S.W.2d 505, 508 (Tenn. 1974). Further, a petition for rehearing which merely reargues the appellant's original position will not be granted. New Jersey Zinc Co. v. Cole, 532 S.W.2d 246, 253 (Tenn. 1975); State v. Thomas Dillon, No. 03C01-9304-CR-00124, 1994 WL 615748 (Tenn.Crim.App., at Knoxville, Nov. 7, 1994); see also Tenn. R. App. P. 39.
The Appellant brings to our attention one factual discrepancy, and he then proceeds to, essentially re-argue his case. In our memorandum opinion, we stated, "On November 9, 1987, the Petitioner was convicted of robbery with a deadly weapon, aggravated kidnaping, assault with intent to commit first degree murder and grand larceny and received a life sentence plus seventy-five years." The Appellant submitted what he terms the "federal pre-sentencing report," which states the predicate crimes were actually burglary, escape from jail, and sale of cocaine less than .5 grams. We agree that we misstated the crimes of which the Defendant was convicted, however the result of our opinion remains the same. The predicate convictions occurred in 1988 and 1999. What the Appellant titled as a writ of error coram nobis, the trial court correctly termed a petition for post-conviction relief, for which there is a one-year statute of limitations. This has long since passed as the petition was first filed on April 5, 2006. The Appellant is not entitled to relief. The Petition to Rehear is DENIED, but the original memorandum opinion is withdrawn and an opinion will be filed contemporaneously with this order, nunc pro tunc, as a substitute for the original opinion.
PER CURIAM.