        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 17, 2014

                  CRAIG L. BEENE v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Dickson County
                       No. CR6611A       Robert Burch, Judge


                 No. M2014-00088-CCA-R3-ECN - Filed July 14, 2014


Petitioner, Craig L. Beene, pleaded guilty to attempted first degree murder, especially
aggravated kidnapping, and aggravated assault. Craig Lamont Beene v. State, No. M2005-
01322-CCA-R3-PC, 2006 WL 680919, at *1 (Tenn. Crim. App. Mar. 17, 2006). Pursuant
to the plea agreement, petitioner was sentenced to seventeen years in confinement. Id.
Subsequently, he filed the instant petition for a writ of error coram nobis, claiming that
affidavits and two pictures constitute newly discovered evidence. The coram nobis court
denied the petition. Following our review, we affirm the judgment of the coram nobis court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OGER A. P AGE, J., delivered the opinion of the court, in which JERRY L. S MITH and N ORMA
M CG EE O GLE, JJ., joined.

Craig L. Beene, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; and Dan Mitchum Alsobrooks, District Attorney General, for the appellee, State of
Tennessee.

                                          OPINION

       The factual basis for petitioner’s guilty plea was as follows:

       [The] Petitioner forced his former wife and their child into his car at a day care
       center in Dickson at the point of a gun. Petitioner then drove off with his
       former spouse and their child in the car. His former spouse dialed 911 on a cell
       phone that she had in her pocket and left it there so the police could determine
       what was occurring. Petitioner told the victim that she was going to die and
       struck her at least twice. As petitioner stopped near the local radio station, the
       victim jumped from the car and ran into the radio station. Petitioner fired at her
       twice and pursued her inside the radio station, leaving the child unattended in
       the car. Inside the radio station, Petitioner continued to intimidate the victim
       and pointed the gun at the disc jockey. After talking to police, Petitioner
       released the victim. Petitioner was ultimately arrested.

Id. After entering his guilty pleas, petitioner unsuccessfully sought post-conviction relief.
Id. In July 2007, petitioner sought habeas corpus relief, which the habeas corpus court and
this court denied. Craig L. Beene v. State, No. W2007-01748-CCA-R3-HC, 2008 WL
539049, at *1 (Tenn. Crim. App. Feb. 27, 2008). In November 2009, petitioner again sought
habeas corpus relief, which was denied. Craig L. Beene v. State, No. M2011-02666-CCA-
R3-HC, 2013 WL 871321, at *1 (Tenn. Crim. App. Mar. 8, 2013). Petitioner then sought
error coram nobis relief, which was denied. Craig Beene v. State, No. M2012-01578-CCA-
R3-CO, 2013 WL 1635519, at *1 (Tenn. Crim. App. Apr. 16, 2013). In August 2013,
petitioner filed another petition for habeas corpus relief, which was denied. Craig Beene v.
State, No. M2013-02318-CCA-R3-HC, 2014 WL 1912366, at *1 (Tenn. Crim. App. May 13,
2014). Finally, petitioner filed the instant petition for writ of error coram nobis on September
12, 2013. The coram nobis court initially entered its order denying the petition on September
20, 2013; however, the court re-entered the order on January 2, 2014, stating that through no
fault of petitioner, he did not receive a copy of the previous order in time to perfect an
appeal. Petitioner filed a notice of appeal on January 8, 2014.

       In this appeal, petitioner argues that he is entitled to coram nobis relief based on two
photographs, one of the victim and one of an investigating officer, and affidavits stating that
the victim was having an affair with that investigating officer. The State responds that the
coram nobis court lacked jurisdiction to re-enter its order and that, accordingly, this appeal
should be dismissed because petitioner failed to file a timely notice of appeal. Alternatively,
the State argues that petitioner has failed to prove that he is entitled to coram nobis relief.

        First, we will address the timeliness of petitioner’s notice of appeal. A notice of
appeal must be filed “within 30 days after the date of entry of the judgment appealed from.”
Tenn. R. App. P. 4(a). It is well-settled law in Tennessee that “a judgment becomes final
thirty days after entry unless a timely notice of appeal or a specified post-trial motion is
filed.” State v. Green, 106 S.W.3d 646, 648 (Tenn. 2003) (citations omitted). “Any exercise
of jurisdiction beyond that 30 days must be authorized by statute or rule.” State v. Lewis, 917
S.W.2d 251, 256 (Tenn. Crim. App. 1995) (citations omitted). Therefore, the coram nobis
court did not have jurisdiction to reenter its order on January 2, 2014, because its judgment
became final thirty days after September 20, 2013, well before the January 2 order. There
is also no statute or rule that allowed the lower court to re-enter its order after the judgment

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became final. Therefore, petitioner’s notice of appeal, which was filed on January 8, 2014,
was untimely.

        However, “in all criminal cases[,] the ‘notice of appeal’ document is not jurisdictional
and the filing of such document may be waived in the interest of justice.” Tenn. R. App. P.
4(a). “Waiver is not automatic, however, and pro se litigants are expected to comply with
the time requirements of Rule 4(a).” State v. Markettus L. Broyld, No. M2005-00299-CCA-
R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005) (citations omitted). “In
determining whether waiver is appropriate, this Court will consider the nature of the issues
presented for review, the reasons for and the length of the delay in seeking relief, and any
other relevant factors presented in the particular case.” Id. Because the trial court stated that
petitioner was unable to perfect an appeal through no fault of his own, we will waive the
thirty-day filing requirement in the interest of justice and address petitioner’s appeal on the
merits.

        The decision to grant or deny a petition for writ of error coram nobis on its merits is
left to the sound discretion of the trial court. Harris v. State, 301 S.W.3d 141, 144 (Tenn.
2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). A trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases
its decision on a clearly erroneous assessment of the evidence, or employs reasoning that
causes an injustice to the complaining party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.
2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)). The writ of error coram
nobis is an “extraordinary procedural remedy . . . into which few cases fall.” State v. Mixon,
983 S.W.2d 661, 672 (Tenn. 1999). Our legislature has limited the relief available through
the writ:

               The relief obtainable by this proceeding shall be confined to errors
       dehors the record and to matters that were not or could not have been litigated
       on the trial of the case, on a motion for new trial, on appeal in the nature of a
       writ of error, on writ of error, or in a habeas corpus proceeding. Upon a
       showing by the defendant that the defendant was without fault in failing to
       present certain evidence at the proper time, a writ of error coram nobis will lie
       for subsequently or newly discovered evidence relating to matters which were
       litigated at the trial if the judge determines that such evidence may have
       resulted in a different judgment, had it been presented at the trial.

Tenn. Code Ann. § 40-26-105(b). In determining whether newly discovered evidence may
have led to a different result, the trial court should decide “whether a reasonable basis exits
for concluding that had the evidence been presented at trial, the result of the proceeding



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might have been different.” State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007) (citation
and internal quotation marks omitted).

        Petitioner has failed to show that he is entitled to coram nobis relief. Petitioner
characterizes two photographs and three affidavits as newly discovered evidence. However,
two of the affidavits are from April 7, 2005, and the third is from September 2009.
Therefore, petitioner had two of these affidavits during five prior collateral attacks, most
notably during his prior post-conviction and error coram nobis cases. He also had the third
affidavit during his prior error coram nobis case. “[A] coram nobis petition will not lie
where a petitioner was previously aware of the alleged ‘newly discovered evidence.’”
Wlodarz v. State, 361 S.W.3d 490, 506 (Tenn. 2012) (citing Cormia v. State, No. E2010-
02290-CCA-R3-PC, 2011 WL 5027107, at *10 (Tenn. Crim. App. Oct. 21, 2011) (denying
coram nobis relief where the petition was based, in part, on an issue that formed the basis of
an earlier post-conviction claim); Young Bok Song v. State, No. M2010-02054-CCA-R3-CO,
2011 WL 2713738, at *3 (Tenn. Crim. App. July 13, 2011) (denying coram nobis relief
where the petitioner was aware of the alleged new evidence at trial and raised the issue in the
post-conviction court)). Therefore, pursuant to Tennessee Code Annotated section 40-26-
105(b), petitioner is not entitled to relief based on the affidavits because he has not presented
newly discovered evidence.

        Furthermore, petitioner has presented the court with two photographs. One picture
is of the victim, petitioner’s ex-wife, taken from her Facebook page. The second photograph
is allegedly a photograph from the victim’s Facebook page of an investigating officer in
petitioner’s case. Petitioner argues that the photographs show that the victim’s ex-wife and
the investigating officer were having an affair when petitioner was arrested and prior to
petitioner’s entering his guilty plea. The trial court noted that:

       [T]he postings of the victim were in 2013, some nine years after [p]etitioner’s
       trial. Any situation reflected therein would be extremely remote in time.
       Secondly, the picture of the investigating officer is obviously not from
       Victim’s Facebook page. The Uniform Resource Locator (URL) shown at the
       bottom of Victim’s Facebook page shows that it is from the “Facebook”
       website. The pages from Victim’s Facebook page make no mention of the
       investigating officer. The page containing the investigating officer’s picture
       is not from the Facebook page at all, but from the “AOL” website as shown by
       its URL.

We find nothing to show that the trial court abused its discretion in denying error coram
nobis relief. Even if these photographs were newly discovered, they do not demonstrate that



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the results of his proceeding might have been different. Therefore, the coram nobis court did
not abuse its discretion by denying petitioner’s petition for error coram nobis relief.

                                     CONCLUSION

       Upon review of the record and the prevailing legal authorities, we affirm the judgment
of the coram nobis court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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