        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 29, 2011

         THOMAS EDWARD KOTEWA v. STATE OF TENNESSEE

            Direct Appeal from the Criminal Court for Anderson County
                    No. B0C00860      Donald R. Elledge, Judge




                  No. E2010-02305-CCA-R3-CO - Filed June 7, 2011


The petitioner, Thomas Edward Kotewa, appeals the trial court’s denial of his petition for
writ of error coram nobis. Following our review of the record, the parties’ briefs, and
applicable law, we affirm the judgment of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES
C URWOOD W ITT, J R., JJ., joined.

Thomas Edward Kotewa, Pro Se, Wartburg, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; David S. Clark, District Attorney General; and Sandra N.C. Donaghy, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                       Background
        On November 6, 2006, the petitioner, Thomas Edward Kotewa, pleaded guilty to
second degree murder involving the shooting death of the victim, LaShawn Terence Mims.
Two witnesses identified the petitioner as the shooter, and the petitioner admitted shooting
the victim. 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). The petitioner received an agreed-upon sentence of fifteen years as a Range
I, violent offender. Id.
       The petitioner filed a petition for post-conviction relief, which the post-conviction
court denied on September 24, 2007. Id. This court affirmed the trial court’s denial of post-
conviction relief. Id. The Tennessee Supreme Court denied the petitioner’s application for
permission to appeal. Id.

        On September 13, 2010, the petitioner filed a pro se “Petition for Writ of Error Coram
Nobis.” In his petition, he alleged that he was entitled to relief because he had “newly
discovered evidence” which established “his actual and factual innocence by way of
scientific and witness reports and statements of exculpatory material evidence.” He claimed
this new evidence would have resulted in the state’s dismissing his case or his receiving a
reduced sentence. On October 8, 2010, the trial court summarily dismissed the petition
finding that the petitioner did not sign or date the petition, and the petition was not sworn.
The petitioner filed a motion to reconsider and a notice of appeal on October 29, 2010.

                                          Analysis

        On appeal, the petitioner claims that the trial court erred by dismissing his petition.
The petitioner asserts that he signed and dated the petition and that although he filed his
petition outside the statute of limitations, this court should waive the statute of limitations
based on principles of due process. Additionally, the petitioner contends that if given the
opportunity for a hearing on his petition, he will present newly discovered evidence that
would prove his innocence. The state responds that the petition was untimely, the petitioner
did not support his claims of newly discovered evidence, and that relief through a petition
for writ of error coram nobis in unavailable because the petitioner pleaded guilty and did not
go to trial.

       Tennessee Code Annotated section 40-26-105(b), (c) provides for relief by petition
for writ of error coram nobis. That statute provides, in pertinent part that:

       (b) 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 a 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.




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       (c)The issue shall be tried by the court without the intervention of a jury, and
       if the decision be in favor of the petitioner, the judgment complained of shall
       be set aside and the defendant shall be granted a new trial in that cause.

        The writ of error coram nobis is an “extraordinary procedural remedy,” filling only
a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999)
(citation omitted). “The purpose of this remedy is to bring to the attention of the court some
fact unknown to the court which if known would have resulted in a different judgment.”
Freshwater v. State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004) (quoting State v. Hart,
911 S.W.2d 371, 374 (Tenn. Crim. App. 1995)). A petition for writ of error coram nobis
must relate: (1) the grounds and the nature of the newly discovered evidence; (2) why the
admissibility of the newly discovered evidence may have resulted in a different judgment had
the evidence been admitted at the previous trial; (3) that the petitioner was without fault in
failing to present the newly-discovered evidence at the appropriate time; and (4) the relief
sought by the petitioner. Freshwater, 160 S.W.3d at 553. The decision to grant or deny a
petition for writ of error coram nobis rests within the sound discretion of the trial court.
Hart, 911 S.W.2d at 375. Therefore, we review for abuse of discretion. See State v.
Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

        Relying on Reid v. Hoffman, 53 Tenn. 440 (1871), the trial court summarily dismissed
the petition for writ of error coram nobis finding that “the petition [was] not signed, or dated
by the petitioner, nor [was] there an affidavit swearing to the petitioner’s signature and
authenticity of the petition and the allegations therein.” The petitioner alleges that, on page
eighteen of the petition he signed and dated the petition and swore to it. Page eighteen of the
handwritten petition has a date and signature line, but the petitioner neither dated nor signed
the petition. Although the petitioner signed an affidavit attached as an exhibit to the petition,
that is not sufficient to swear to the entire petition.

        Furthermore, the petitioner pleaded guilty on November 6, 2006, and he filed his
petition for writ of error coram nobis on September 13, 2010, almost four years later. The
state did not raise the issue of the expiration of the statute of limitations at the trial level.
According to the state, “the trial court summarily dismissed the case approximately three
weeks after the petition was filed[, and] the State was not allowed time to respond to the
petition[.]”

        A petition for writ of error coram nobis relief must be filed within one year of the time
judgment becomes final in the trial court. See Tenn. Code Ann. § 27-7-103. However, a
court may consider an untimely petition if applying the statute of limitations would deny the
petitioner due process. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001); Burford
v. State, 845 S.W.2d 204, 209-10 (Tenn. 1992). To determine if due process requires tolling

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of the statute of limitations, a court must weigh the petitioner’s interest in having an
opportunity to present his claims in a meaningful time and manner against the state’s interest
in preventing the litigation of stale and fraudulent claims. Burford, 845 S.W.2d at 208.
More specifically, a court should utilize the following analysis: (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 the limitations period would effectively deny the petitioner a reasonable opportunity to
present the claim. Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). Although coram nobis
claims also are governed by a one-year statute of limitations, the state bears the burden of
raising the bar of the statute of limitations as an affirmative defense. See Harris v. State, 102
S.W.3d 587, 592-93 (Tenn. 2003); Sands, 903 S.W.2d at 299.

        Based on the record, it is clear that the petitioner filed his petition approximately four
years after the statute of limitations had expired. Although the statute of limitations for filing
a petition for writ of error coram nobis may be tolled based on principles of due process,
nothing in the record here implicates any due process concerns that would require that the
statute of limitations be tolled.

        Moreover, even if we overlook the procedural defects and rule on the merits of the
petition, the petitioner is not entitled to relief. The petitioner asserted that new exculpatory
evidence would support his innocence. In his petition he claimed that (1) a latent fingerprint
report; (2) a toxicology report confirming the victim’s drug usage; (3) the police property
reports that contained clothing seized for DNA testing and the results of DNA tests; (4) an
autopsy report identifying the bullet fragment recovered from the victim’s skull and lack of
ballistics reports linking the bullet fragment to the murder weapon; (5) 911 reports; (6) police
reports; and (7) a ballistic report from the murder weapon were newly discovered evidence.

        The petitioner asserts that the state fraudulently misrepresented the facts of the case
by stating that the only exculpatory evidence was a witness statement. However, besides the
assertions in his petition, the petitioner did not present any of the alleged exculpatory
evidence with his petition. Moreover, the petitioner did not explain how this alleged
exculpatory evidence showed that his guilty plea was involuntary or unknowing. In the
context of a guilty plea, “in order for a writ to issue, the [petitioner has] to present newly
discovered evidence which would show that his plea was not voluntarily or knowingly
entered.” Newsome v. State, 995 S.W.2d 129, 134 (Tenn. Crim. App. 1998). Accordingly,
we conclude that the petitioner is not entitle to relief on this issue.

      We note that the supreme court’s recently granted a defendant’s application to appeal
a coram nobis case involving a guilty plea. Stephen Bernard Wlodarz v. State, No.

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E2008–02179–SC–R11–CO, 2010 WL 1998766, at *1 (Tenn. Crim. App., at Knoxville, Aug.
25, 2010), perm. app. granted (Tenn. Aug. 25, 2010) (stating that for purposes of
supplemental briefing and oral argument, the court was particularly interested in whether the
writ of error coram nobis could be used to challenge a guilty plea conviction). However,
regardless of what the supreme court will hold in that case, the petitioner in the instant case
has still failed to point to “new” evidence of actual innocence within the meaning of the
coram nobis statute that would show that his plea was not voluntarily or knowingly entered.

                                         Conclusion

         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.




                                                    ___________________________________
                                                    J.C. McLIN, JUDGE




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