        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 28, 2011

         STEPHANIE DENISE PHILLIPS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Cocke County
                     No. 30,867-I     Ben W. Hooper, II, Judge


               No. E2010-00120-CCA-R3-PC - Filed September 9, 2011


The Petitioner, Stephanie Denise Phillips, appeals as of right from the Cocke County Circuit
Court’s denial of her petition for post-conviction relief. The Petitioner argues that errors in
her trial denied her due process of law. Following our review, we affirm the judgment of the
post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the Court, in which J ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Charlotte Ann Leibrock, Newport, Tennessee, for the appellant, Stephanie Denise Phillips.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; James B. Dunn, District Attorney General; and W. Brownlow Marsh, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       On February 20, 2007, the Petitioner pled guilty to second degree murder and
especially aggravated robbery, both Class A felonies. As part of her plea, the Petitioner
received concurrent sentences of twenty years in the Department of Correction. The
Petitioner filed a petition for post-conviction relief and subsequently filed an amended
petition. As grounds for relief, the Petitioner alleged the following: (1) she was denied due
process because of errors in the trial process; (2) she was denied effective assistance of
counsel; and (3) she did not knowingly or voluntarily plead guilty. Following an evidentiary
hearing, the post-conviction court held that the first issue was previously determined and that
the Petitioner failed to meet her burden of proof on the remaining two issues. The post-
conviction court entered an order dismissing the petition on December 14, 2009. The
Petitioner filed a notice of appeal on January 14, 2009.

       On appeal, the Petitioner only challenges the due process issue, which centers on her
statement to police and the waiver of rights form. The Petitioner contends that the post-
conviction court erred in ruling that this issue was previously determined and that she should
have been allowed to introduce evidence on the issue at the post-conviction hearing. The
State responds that the Petitioner failed to file a timely notice of appeal and that her appeal
should consequently be dismissed as untimely. The State further responds that the issue
raised by the Petitioner is previously determined and has been waived for failure to raise it
on direct appeal.

                                         ANALYSIS

       A petitioner may appeal the final judgment of the post-conviction court in the manner
prescribed by the Tennessee Rules of Appellate Procedure. Tenn. Code Ann. § 40-30-116.
The final judgment of a post-conviction court is appealable as of right. Tenn. R. App. P.
3(b).

              [T]he notice of appeal required by Rule 3 shall be filed with and
              received by the clerk of the trial court within 30 days after the
              date of entry of the judgment appealed from; 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. The appropriate appellate court shall be
              the court that determines whether such a waiver is in the interest
              of justice.

Tenn. R. App. P. 4(a). For the purposes of this rule, post-conviction proceedings are criminal
in nature and the notice requirement may be waived in the interest of justice. State v. Scales,
767 S.W.2d 157, 158 (Tenn. 1989). Given that the Petitioner’s notice of appeal document
was only one day late, we choose to waive the timely filing of the notice of appeal.

       Under the Post-Conviction Procedure Act, a petitioner is entitled to relief when her
“conviction or sentence is void or voidable because of the abridgment of any right guaranteed
by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann.
§ 40-30-103. In a post-conviction proceeding, the petitioner has “the burden of proving the
allegations of fact by clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f). On
appeal, a petitioner’s brief must set forth her argument “with citations to the authorities and
appropriate references to the record.” Tenn. R. App. P. 27(a)(7). “Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will be

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treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b).

        On March 3, 2011, this court denied the Petitioner’s motion for leave to file her
principal brief late and rejected the accompanying brief for failing to comply with Rule 27
of the Rules of Appellate Procedure. This court gave the Petitioner until April 1, 2011, to
file an amended principal brief remedying two key defects: (1) no statement of facts section;
and (2) no references to the record in the argument section. On April 1, 2011, the Petitioner
filed her amended brief. Although the amended brief contained a statement of facts section,
the argument section still did not contain any citations or appropriate references to the record.
Consequently, the amended brief failed to remedy the specified defects. Therefore, as this
court noted in its previous order, the brief “did not raise any issue that this court would not
conclude was waived due to the poor quality of the brief.”

        Furthermore, a post-conviction court will dismiss a petition “[i]f the facts alleged,
taken as true, fail to show that the petitioner is entitled to relief or fail to show that the claims
for relief have not been waived or previously determined.” Tenn. Code. Ann. § 40-30-106(f).
“There is a rebuttable presumption that a ground for relief not raised before a court of
competent jurisdiction in which the ground could have been presented is waived.” Tenn.
Code Ann. § 40-30-110(f).

               A ground for relief is waived if the petitioner personally or
               through an attorney failed to present it for determination in any
               proceeding before a court of competent jurisdiction in which the
               ground could have been presented unless:
                 (1) The claim for relief is based upon a constitutional right not
               recognized as existing at the time of trial if either the federal or
               state constitution requires retroactive application of that right;
               or
                  (2) The failure to present the ground was the result of state
               action in violation of the federal or state constitution.

Tenn. Code. Ann. § 40-30-106(g). “A ground for relief is previously determined if a court
of competent jurisdiction has ruled on the merits after a full and fair hearing,” which occurs
“where the petitioner is afforded the opportunity to call witnesses and otherwise present
evidence, regardless of whether the petitioner actually introduced any evidence.” Tenn.
Code. Ann. § 40-30-106(h).

       The Petitioner’s trial attorney filed a motion to suppress the Petitioner’s incriminating
statements and to challenge the validity of the waiver of rights form signed by the Petitioner.
The trial court denied the motion to suppress after a full evidentiary hearing. The Petitioner

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did not challenge the denial on appeal. The Petitioner has waived her due process issue,
which was determined by the trial court at the hearing on her motion to suppress, by failing
to present the claim in her prior proceeding before a court of competent jurisdiction.

                                       CONCLUSION

      Upon due consideration of the pleadings, the record, and the applicable law, this court
concludes that the post-conviction court’s denial of the petition for post-conviction relief was
appropriate. The judgment of the post-conviction court is affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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