        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

           GEORGE OSBORNE WADE v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Obion County
                        No. 9-430    William B. Acree, Judge




                No. W2010-01089-CCA-R3-CO - Filed August 31, 2011


The Petitioner, George Osborne Wade, appeals the Circuit Court of Obion County’s
dismissal of his petition for writ of error coram nobis. The State has filed a motion
requesting that this Court affirm the trial court’s dismissal pursuant to Rule 20 of the Rules
of the Court of Criminal Appeals. Following our review, we grant the State’s motion and
affirm the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
        Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals

J.C. M CLIN, J., delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS
and CAMILLE R. M CMULLEN, JJ., joined.

George Osborne Wade, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General, for the Appellee, State of Tennessee.

                              MEMORANDUM OPINION

       The Petitioner was convicted of the sale of a controlled substance within 1,000 feet
of a school as the result of a controlled buy between a confidential informant and Officer
Kenneth Jones, an undercover officer, which was monitored through a wire by Lieutenant
Rick Kelly. The trial court sentenced the Petitioner to twenty-three years incarceration, and
this Court affirmed the Petitioner’s conviction on direct appeal. See State v. Roger Neal
James and George Osborne Wade, No. W2000-01301-CCA-R3-CD, 2002 Tenn. Crim. App.
LEXIS 231 (Tenn. Crim. App., at Jackson, Mar. 15, 2002), perm. to appeal denied (Tenn.
Sept. 30, 2002). The Petitioner subsequently filed a post-conviction relief petition alleging
the petit jury pool was unconstitutionally selected and that trial counsel was ineffective in
failing to raise the issue. The post-conviction court denied the petition, and this Court
affirmed the post-conviction court’s judgment on appeal. See George Osborne Wade v.
State, No. W2004-00214-CCA-R3-PC, 2005 Tenn. Crim. App. LEXIS 915 (Tenn. Crim.
App., at Jackson, Aug. 22, 2005), perm. to appeal denied (Tenn. Jan. 30, 2006).

       On February 24, 2010, the Petitioner filed a petition for writ of error coram nobis
alleging newly discovered evidence that Officer Kenneth Jones was reprimanded for driving
a police-issued vehicle after drinking alcohol and while employed with the Milan Police
Department. Following a hearing during which only argument was presented, the trial court
entered an order on April 20, 2010, denying the petition. The Petitioner filed a timely notice
of appeal.

       Tennessee Code Annotated section 40-26-105 provides:

       There is hereby made available to convicted defendants in criminal 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. The Petitioner filed his
petition outside the one-year statute of limitations. However, the trial court did not base its
order denying the petition on the statute of limitations but found that the newly discovered
evidence alleged by the Petitioner would not have resulted in a different judgment.

      The purpose of the writ of error coram nobis “‘is to bring to the attention of the court
some fact unknown to the court, which if known would have resulted in a different

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judgment.’” Hart, 911 S.W.2d at 374 (quoting State ex rel. Carlson v. State, 219 Tenn. 80,
407 S.W.2d 165, 167 (Tenn. 1966)). Generally, subsequent or newly discovered evidence
serving no other purpose than to contradict or impeach evidence introduced at trial “will not
justify the granting of a petition for the writ of error coram nobis when the evidence, if
introduced, would not have resulted in a different judgment.” Id. at 375. The testimony of
Officer Jones at trial was corroborated by the testimony of Officer Kelly and the confidential
informant, as well as other evidence introduced at trial. Thus, even if admissible, the
allegations upon which the Petitioner based his petition would not have resulted in a different
judgment.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding without a jury and such judgment
or action is not a determination of guilt, and the evidence does not preponderate against the
finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that this case
satisfies the criteria of Rule 20. Accordingly, it is ordered that the State’s motion is granted.
The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court
of Criminal Appeals.




                                                     _________________________________
                                                     J.C. MCLIN, JUDGE




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