        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   July 23, 2014 Session

          STATE OF TENNESSEE v. THOMAS EDWARD KOTEWA

                 Appeal from the Criminal Court for Anderson County
                     No. B2C00067      Donald R. Elledge, Judge




           No. E2014-00430-CCA-R3-ECN-FILED-SEPTEMBER 11, 2014


In 2006, the Petitioner, Thomas Edward Kotewa, pleaded guilty to second-degree murder.
See Thomas E. Kotewa v. State, No. E2007-02193-CCA-R3-PC, 2009 WL 1635177, at *1
(Tenn. Crim. App., at Knoxville, June 11, 2009), perm. app. denied (Tenn. Oct. 19, 2009).
For this conviction, the trial court sentenced the Petitioner to serve an agreed-upon sentence
of fifteen years. In February 2012, the Petitioner filed a petition for a writ of error coram
nobis alleging that he had discovered new evidence. The State filed a response to the petition
requesting the trial court dismiss the petition on the basis that, among other things, it was
untimely filed. The trial court agreed, and it dismissed the petition, finding that the petition
was untimely filed. On appeal, the Petitioner asserts that the trial court erred when it
dismissed his petition. After a thorough review of the record and applicable law, we affirm
the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T IMOTHY L.
E ASTER, S P. J., joined. J AMES C URWOOD W ITT, J R., J., filed a separate concurring opinion.

R. Casey Daganhardt, Clinton, Tennessee for the Appellant, Thomas Edward Kotewa.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Dave Clark, District Attorney General; and Sandra N.C. Donaghy,
Assistant District Attorney General for the Appellee, State of Tennessee.

                                         OPINION
                              I. Facts and Procedural History

       The Petitioner pleaded guilty to the second-degree murder of LaShawn Terence Mims,
in exchange for a sentence of fifteen years. Two witnesses identified the Petitioner as the
shooter, and the Petitioner admitted to the police that he shot the victim. See Kotewa, 2009
WL 1635177, at *1. On January 26, 2007, the Petitioner, pro se, filed a petition for post-
conviction relief. Id. After two amendments and the appointment of counsel, the post-
conviction court held an evidentiary hearing and then denied the Petitioner relief. Id. This
Court affirmed the post-conviction court’s judgment. Id. at *5-6.

       On February 8, 2012, the Petition filed a writ of error coram nobis alleging that he had
discovered new evidence. The Petitioner attached one affidavit to his petition to support his
claim. The affidavit was a statement by a witness that the Petitioner acted in self-defense.
On December 16, 2013, the trial court issued a written order dismissing the petition:

              The above matter came on for hearing on December 9, 2013, on a
       pending Writ of Error Coram Nobis filed by the [Petitioner] pro se and
       amended by Defense Attorney Kevin Angel, the Honorable Donald R. Elledge
       presiding. The appearances were: Sandra Donaghy on behalf of the State of
       Tennessee and the [Petitioner] appeared in person and by counsel, Attorney R.
       Casey Dagenhardt.

              At the hearing, [the Petitioner] through counsel admitted that his
       pleadings had been filed after the expiration of the Statute of Limitations. He
       conceded dismissal was appropriate.

              NOW, THEREFORE, it is the order of the Court that:

              1. The Writ of Error Coram Nobis shall be, and hereby is, dismissed.

It is from this judgment that the Petitioner now appeals.

                                          II. Analysis

       The Defendant argues that the trial court erred when it dismissed his petition for a writ
of error coram nobis because his newly discovered evidence entitles him to relief. The State
responds that the Petitioner has failed to build a record to support his claim and that the trial
court correctly dismissed the Petitioner’s claim as untimely because the evidence the
Petitioner claims existed during the limitations period. We agree with the State.

       Tennessee Code Annotated section 40-26-105 (2012) provides:

              There is hereby made available to convicted defendants in criminal

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       cases a proceeding in the nature of a writ of error coram nobis, to be governed
       by the same rules and procedure applicable to the writ of error coram nobis in
       civil cases, except insofar as inconsistent herewith. . . . 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 are
       litigated at the trial if the judge determines that such evidence may have
       resulted in a different judgment, had it been presented at trial.

It is well-established that the writ of error coram nobis “is an extraordinary procedural
remedy . . . [that] fills only a slight gap into which few cases fall.” State v. Mixon, 983
S.W.2d 661, 672 (Tenn. 1999). Generally, a decision whether to grant a writ rests within the
sound discretion of the coram nobis court. See State v. Hart, 991 S.W.2d 371, 375 (Tenn.
Crim. App. 1995). We, therefore, review for abuse of discretion. See State v. Workman, 111
S.W.3d 10, 18 (Tenn. Crim. App. 2002).

        A petition for a writ of error coram nobis must be filed within one year of the
judgment becoming final in the trial court. T.C.A. § 27-7-103. This statute of limitations
“is computed from the date the judgment of the trial court becomes final, either thirty days
after its entry in the trial court if no post-trial motions are filed or upon entry of an order
disposing of a timely filed post-trial motion.” Harris v. State, 301 S.W.3d 141, 144 (Tenn.
2010); see Mixon, 983 S.W.2d at 670 (“[W]e reject the contention . . . that the statute does
not begin to run until the conclusion of the appeal as of right proceedings.”). In the present
case, the judgment became final in December of 2006. The Petitioner did not file this
petition for writ of error coram nobis until February 8, 2012, more than five years later.

        The one-year statute of limitations for a petition for writ of error coram nobis may be
tolled on due process grounds if a petition seeks relief based upon newly discovered evidence
of actual innocence. Harris, 301 S.W.3d at 145. In determining whether the statute should
be tolled, the court must balance the petitioner’s interest in having a hearing with the State’s
interest in preventing a claim that is stale and groundless. Id. Generally, “before a state may
terminate a claim for failure to comply with . . . 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). The Burford rule requires three steps:

               (1) determine when the limitations period would normally have begun
       to run; (2) determine whether the grounds for relief actually arose after the
       limitations period would normally have commenced; and (3) if the grounds are
       “later arising,” determine if, under the facts of the case, a strict application of

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       the limitations period would effectively deny the petitioner a reasonable
       opportunity to present the claim.

Sands v. State, 903 S.W.2d 299, 301 (Tenn. 1995). As a general rule, the claim at issue must
not have existed during the limitations period to trigger due process consideration. Seals v.
State, 23 S .W.3d 272 (Tenn. 2000). Discovery of or ignorance to the existence of a claim
does not create a “later-arising” claim. See Brown v. State, 928 S.W.2d 453, 456 (Tenn.
Crim. App. 1996); Passarella v. State, 891 S.W.2d 619, 635 (Tenn. Crim. App. 1994).

       The Petitioner submitted an affidavit, signed November 23, 2011, by John D. Carter.
The affidavit states that it is Mr. Carter’s belief “that [the Petitioner] would be dead if he had
not defended himself that night.” He also alleges facts that he claimed he told the police but
that were not included in the police report. Even though the affidavit is dated after the
Petitioner’s guilty plea on November 6, 2006, this allegation is not “later-arising” for the
purposes of tolling the statute of limitations. This Court has previously held that “a
subsequent third party confession does not affect the voluntariness of a guilty plea.”
Newsome v. State, 995 S.W.2d 129, 134 (Tenn. Crim. App. 1998). The Newsome Court
reasoned as follows:

              By pleading guilty, the appellant admitted his factual guilt and waived
       his right to confront his accusers. See, e.g., People v. Jackson, 163 Misc.2d
       224, 620 N.Y.S.2d 240, 241 (N.Y. Co. Ct. 1994). He may not seek, after the
       judgment has become final, to later recant his admission as to those facts by
       an allegation that a third party has confessed. Moreover, a third party
       confession is not so much “newly discovered evidence” as it is “newly
       disclosed” to the court. See Travis v. State, [776 So.2d 819, 846 (Ala. Crim.
       App. 1997) ].

Id. The Petitioner knew at the time he entered his guilty plea whether he was guilty of the
murder. He had every opportunity to maintain his innocence but chose to admit guilt to
shooting Mr. Mims. Furthermore, nothing prevented the Petitioner from raising challenges
to the voluntariness of his plea or the effectiveness of his representation within the one-year
statute of limitations.

        Because the Petitioner’s claim is not “later-arising,” we do not address the third step
in the analysis, namely the reasonableness of the delay. See Sands, 903 S.W.2d at 301. The
Petitioner has failed to demonstrate that the statute of limitations should be tolled in his case;
therefore, we conclude that the trial court properly dismissed his untimely petition for coram
nobis relief. See id. The Petitioner is not entitled to relief.



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                                  III. Conclusion

      Based upon the foregoing reasoning and authorities, we affirm the trial court’s
dismissal of the Petitioner’s petition.

                                               _________________________________
                                               ROBERT W. WEDEMEYER, JUDGE




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