         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE         FILED
                          NOVEMBER 1997 SESSION
                                                      March 3, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
RANDY HICKS,                        )
                                    )
            Appellant,              )    C.C.A. No. 03C01-9608-CR-00296
                                    )
vs.                                 )    McMinn County
                                    )
STATE OF TENNESSEE,                 )    Hon. Mayo L. Mashburn, Judge
                                    )
            Appellee.               )    (Motion for New Trial, Motion
                                    )    for Writ of Error Coram Nobis,
                                    )    Post Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:

RANDY HICKS                              JOHN KNOX WALKUP
Pro Se                                   Attorney General & Reporter
N.E.C.C.
P.O. Box 5000                            PETER M. COUGHLAN
Mountain City, TN 37683                  Assistant Attorney General
                                         Criminal Justice Division
                                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         JERRY N. ESTES
                                         District Attorney General
                                         Washington Ave.
                                         Athens, TN 37303




OPINION FILED: ____________________



AFFIRMED



CURWOOD WITT, JUDGE
                                       OPINION

              Randy Hicks appeals the McMinn County Criminal Court's summary

dismissal of his "Motion for New Trial Based on Newly Discovered Evidence Rule

22, FRCrP." The lower court considered this "motion" under the law applicable to

motions for new trial, petitions for writ of error coram nobis, and petitions for post

conviction relief, found it without merit, and summarily dismissed Hicks's claim

without conducting a hearing. Hicks's underlying conviction is for criminal facilitation

of first degree murder, for which he is serving a 25 year sentence. State v. Hicks,

835 S.W.2d 32 (Tenn. Crim. App. 1992). In his pro se appellate brief, Hicks never

directly attacks the lower court's denial of his "motion," but he does raise several

issues relating to the admission of evidence, denial of a severance and the

sufficiency of the convicting evidence at his trial. He also filed with his pro se

appellate brief a document entitled Petition for Writ of Error Coram Nobis, in which

he alleges that the district attorney knowingly and willfully submitted false evidence

in his trial.1 Having painstakingly reviewed the record and Hicks's brief, we affirm

the trial court's summary dismissal of the claim. Likewise, we find the petition filed

in this court proper for dismissal.



                                            I

              Hicks filed his action below alleging one of the state's key witnesses

testified falsely at trial because the witness was promised release from jail in

exchange for his testimony. An affidavit of the witness was filed as an exhibit to

Hicks's motion filed with the trial court. Hicks does not allege that any government

agent actually encouraged the witness to testify falsely, and the affiant claims that

he was promised freedom if he testified "in court," not if he testified falsely in court.

The substance of the affidavit is that Hicks was not involved in the brutal killing of

Leck Nunley or in facilitation of Nunley's murder. The affiant further claims he would



       1
        In fairness to Hicks, it is worth noting that these allegations are based
upon the same affidavit he submitted in support of his motion in the lower court,
in which a witness claims to have given false testimony inculpating the petitioner
so that the witness would be released from jail as promised by "the officials." He
has simply attempted to add an additional legal theory to this case.
not have testified to the contrary if he had known Hicks would be convicted and if

he had not been promised release from jail. It appears from the record that the

affiant is Hicks's brother.



              Several dates are necessary for an understanding of this case. The

supreme court denied Hicks's petition for permission to appeal his conviction on

June 8, 1992. Hicks alleges he received the affidavit described above on August

20, 1992. Hicks initiated this action on April 7, 1995. The trial court dismissed his

claim on February 7, 1996. Hicks filed a motion seeking to withdraw his motion for

new trial and petition for writ of error coram nobis in the trial court on February 14,

1996.2 The trial court, having already ruled on the motion Hicks sought to withdraw,

dismissed the motion. Hicks filed his notice of appeal on March 25, 1996.



              We begin with recognition that Hicks tardily filed his notice of appeal.

However, in the interest of justice, we have elected to waive this prerequisite to our

review. See Tenn. R. App. P. 4(a). Notwithstanding, we decline to address the

issues Hicks raises for the first time on appeal. See State v. Butler, 789 S.W.2d

898, 902 (Tenn. 1990). Instead, we confine our inquiry solely to the propriety of the

trial court's action in dismissing Hicks's claim.3



              We find that Hicks's claim was properly dismissed whether considered

as a motion for new trial, motion for writ of error coram nobis, or petition for post

       2
       According to an allegation in the notice of appeal, Hicks did not receive a
copy of the trial court's order dismissing the motion for new trial until February
22, 1996.
       3
         For reasons unknown to us, Hicks has chosen not to use his opportunity
to be heard in this court to present this issue, which is an appropriate one for our
consideration. We judicially know from examination of the records of this court
that Hicks has filed several actions which are generally indicative of his immense
dissatisfaction with the original proceedings in which he received his conviction.
In the interest of bringing finality to an issue which would be properly before us
had Hicks raised it in his pro se brief, we elect to address the propriety of the
lower court's dismissal in this case. See Tenn. R. App. P. 13(b)(1)
(consideration of issue not presented for review allowed in discretion of appellate
court where such will prevent needless litigation). But cf. Tenn. R. App. P. 13,
Advisory Comm'n Comments to Subdivision (b) ("It is intended that this
discretion be sparingly exercised.").

                                           3
conviction relief.



              First, as the lower court correctly found, Hicks's motion was untimely

if considered as a motion for new trial. See Tenn. R. App. P. 33(b) (motion for new

trial to be made within 30 days of date the order of sentence is entered). Hicks filed

his motion almost three years after the supreme court declined review of his case.

The order of sentence would have been entered well before this final action by the

supreme court.



              Second, Hicks's motion in the court below is untimely as a motion for

writ of error coram nobis. See Tenn. Code Ann. § 40-26-105 (1997); Tenn. Code

Ann. § 27-7-103 (1980) (writ may issue within one year after the judgment becomes

final). Again, Hicks filed this action well after the expiration of the statute of

limitations for obtaining this type of relief.4 The lower court correctly disposed of

Hicks's claim on this basis.



              Third, Hicks's motion is not appropriate for post conviction relief.5 We

begin our discussion with acknowledgment that the trial court took the unusual step

of summarily dismissing Hicks's claim prior to the appointment of counsel. Under

the Post Conviction Procedure Act as it existed prior to amendment in 1995, a pro

se petition which was not in proper form could not be dismissed for that reason until

the court gave the petitioner a reasonable opportunity, with the assistance of

counsel, to file an amended petition.         Tenn. Code Ann. § 40-30-107 (1990)

(amended 1995). In this case however, Hicks's "motion," though lacking some of

the information required of post conviction petitions by former Code section 40-30-

       4
        Because we resolve this issue by finding it procedurally barred, we
express no opinion about the propriety of relief through the writ of error coram
nobis for the claim Hicks presents. See generally Tenn. Code Ann. § 40-26-105
(1997). See Rowe v. State, 498 S.W.2d 322 (Tenn. 1973) (writ of error coram
nobis generally does not lie to attack trial testimony, including on grounds of
perjury).
       5
         Hicks's motion, though not presented as a post conviction petition, was
filed within the applicable statute of limitations for post conviction actions. See
Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995).

                                          4
104, thoroughly stated Hicks's grievance, outlined the factual basis, and included

exhibits supporting his claim. Thus, it was in the prescribed form, at least as to the

statement of the claim itself. Further, the basis of the trial court's dismissal was

based upon the lack of merit of the claim, not technical noncompliance with section

40-30-104. This unusual situation allowed the trial court to consider whether Hicks

had presented a colorable claim, and finding he had not, to dismiss it for failure to

state a claim without the necessity for amendment of the petition with the assistance

of counsel.6 Thus, we believe the trial court was within the statutory framework in

dismissing the petition at this juncture. Accord Earl Crawford, Jr. v. State, No.

03C01-9610-CR-00385, slip op. at 3 (Tenn. Crim. App., Knoxville, July 29, 1997)

("[T]he prerequisite to the panoply of rights and protections that Tennessee statutes

provide for post conviction petitioners is that the pro se petition must allege a

colorable claim."), pet. for perm. app. filed (Tenn. Sept. 29, 1997); Jessee Arthur

Moore v. State, No. 123 (Tenn. Crim. App., Knoxville, Nov. 19, 1990) (Wade, J.,

dissenting), perm. app. denied (Tenn. 1991); Givens v. State, 702 S.W.2d 578

(Tenn. Crim. App. 1985).



              Having found the court's action was procedurally allowed, we move

on to the propriety of the dismissal itself. As a basic principle, post conviction relief

is available in Tennessee only where a conviction or sentence is void or voidable

due to abridgment of the defendant's constitutional rights. Tenn. Code Ann. § 40-

30-105 (1990) (repealed 1995). A claim of newly discovered evidence, standing

alone, does not meet this threshold. See George Massey v. State, No. 1121, slip

op. at 6 (Tenn. Crim. App., Knoxville, Nov. 5, 1987); see also Herrera v. Collins, 506

U.S. 390, 400, 113 S. Ct. 853, 860 (1993) (federal habeas corpus proceeding).

"[T]he mere conclusion that the petitioner did not receive a fair trial without the

benefit of this allegedly exculpatory testimony does not convert this claim into a

constitutional one." George Massey, slip op. at 6 (newly discovered witness whose


       6
         Though we have not considered it in our determination of this issue, we
find it noteworthy that Hicks has never requested the assistance of counsel at
any stage of this proceeding.

                                           5
testimony would exculpate petitioner, key state witness who will change her trial

testimony so that it is now exculpatory of petitioner, and state witness who invoked

Fifth Amendment privilege at trial is now willing to offer exculpatory testimony).



              Claims of "newly discovered evidence" raised in post conviction

actions are quite often no more than attempts to relitigate the sufficiency of the

convicting evidence in a collateral proceeding. George Massey, slip op. at 6. The

question of whether a challenge to the sufficiency of the evidence is a proper

subject for post-conviction review is a subject of some debate in this state.

Compare, e.g., Rhoden v. State, 816 S.W.2d 56, 61 (Tenn. Crim. App. 1991)

(sufficiency question not proper subject of post-conviction review) with John Wayne

Slate v. State, No. 03C01-9201-CR-00014 (Tenn. Crim. App., Knoxville, Apr. 27,

1994) (sufficiency of evidence review is proper on post-conviction review under

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)), perm. app. denied

concurring in results only (Tenn. 1994). Although the Supreme Court said in

Jackson v. Virginia that the sufficiency of the evidence is an issue of constitutional

dimension for purposes of collateral review, it limited that holding in Herrera v.

Collins to evidence of record. Thus, newly discovered evidence is excluded.

Herrera, 506 U.S. at 402, 113 S. Ct. at 861. As a result, Hicks's claim must fail as

a post conviction action.



              In reaching our conclusions that Hicks has failed to timely file a claim

for relief in the form of a motion for new trial or motion for writ of error coram nobis

and that he likewise has failed to state grounds for relief cognizable under the prior

version of the Post Conviction Procedure Act, we acknowledge the seemingly harsh

nature of our result. However, as the Supreme Court recognized in Herrera, the

traditional method for addressing actual innocence based upon newly discovered

evidence which is procedurally barred from the courts is through executive

clemency. Herrera, 506 U.S. at 411-12, 113 S. Ct. at 866. If Hicks has not already

pursued that option, it is available to him. See Tenn. Code Ann. §§ 40-27-101 to



                                           6
-109 (1997).



                                            II

               Finally, we are left with the issue of the petition for writ of error coram

nobis that Hicks filed with his appellate brief. This petition was filed over four years

after Hicks's judgment became final via the supreme court's denial of permission to

appeal. The petition is not proper for our consideration because this court has only

appellate jurisdiction. Tenn. Code Ann. § 16-5-108 (1994); see also Randy Hicks

v. State, No. 03C01-9601-CC-00419 (Tenn. Crim. App., Knoxville, Jan. 4, 1996)

(order of Wade, J., dismissing another petition for writ of error coram nobis originally

filed by Hicks in this court). Even if this court had original jurisdiction over this

petition, Hicks is untimely in his request for the writ of error coram nobis. See Tenn.

Code Ann. § 40-26-105 (1997); Tenn. Code Ann. § 27-7-103 (1980).



               In conclusion, the trial court's dismissal of Hicks' claim is affirmed.

Likewise, his petition for writ of error coram nobis filed in this court is dismissed.




                                             _________________________________
                                             CURWOOD WITT, JUDGE




CONCUR:



_______________________________
JOSEPH B. JONES, PRESIDING JUDGE



_______________________________
PAUL G. SUMMERS, JUDGE




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