        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE            FILED
                        JULY SESSION, 1997         October 30, 1997

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
JIMMY WAYNE WILSON,        )   C.C.A. NO. 03C01-9611-CR-00409
                           )
      Appe llant,          )
                           )
                           )   SULLIVAN COUNTY
VS.                        )
                           )   HON. ARDEN L. HILL
STATE OF TENNESSEE,        )   JUDGE
                           )
      Appellee.            )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SULLIVAN COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

JIMMY WAYNE WILSON             JOHN KNOX WALKUP
Pro Se                         Attorney General and Reporter
#108253 MCRCF POB 2000
Wa rtburg, T N 378 87          MICH AEL J . FAHE Y, II
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243

                               GREELEY W ELLS
                               District Attorney General
                               Sullivan County Justice Center
                               Blountville, TN 37617



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                           OPINION

         The Petitioner, Jimmy Wayne W ilson, appeals from the trial court’s denial

of his mo tion to re open a prior p etition fo r post-c onvictio n relief. On July 22,

1985, he was convicted by a Sullivan County jury of rape and found to be an

habitua l offender. He subsequently filed two petition s for post-c onviction re lief,

the first in 1987 and the second in 1990, both of which were denied.                                       The

Petitioner filed a pro se motion to reopen his first petition for post-conviction relief

on May 8, 1996 . In his m otion, h e alleg ed tha t our su prem e cou rt’s hold ing in

State v. Kendricks, 891 S.W.2d 597 (Tenn. 1994), established a constitutional

right not recognized at the time of his trial but requiring retrospective application

to his case , that DN A testing would p rove that h e was actually innocent of the

rape, and that his habitual offender sentence was based in pa rt on a conviction

which had been invalidated.1 On May 2 1, 1996, the trial court dismissed the

motion to reopen witho ut appointing co unsel or cond ucting an evide ntiary

hearing, finding tha t it did not pres ent a colo rable claim for relief. 2 The Petitioner

filed a notice of appeal with the trial court clerk on May 30, 1996. We conclude

that, because the Petitioner did not follow the appropriate statutory procedure for

perfecting his appeal to this Court, his appeal must be dismissed.



         W e begin by recounting the history of the present case. As we stated

above, the Petitioner was convicted by a Sullivan County jury of rape and found


         1
             See Tenn. Code A nn. § 40-30-217(a)(1) - (3) (Supp. 1996).

         2
          See Tenn. Code Ann. § 40-30-217(a), (b) (Supp. 1996). The Petitioner’s motion to reopen
was assigned case number S37,141. The case number of the challenged conviction from 1985 was
apparently 18,745. It appears that the trial judge inadvertently referred to the motion to reopen as
cas e num ber 1 8,74 5 in his May 2 0, 19 96, o rder of dis mis sal. T he tria l judg e late r cor recte d this
mistake by entering an order of dism issal referring to the proper case numb er.

                                                       -2-
to be an habitual offender on July 22, 1985.                H e was s entenc ed to life

imprison ment. His conviction and sentence were affirmed upon d irect appe al to

this Court. State v. Jimmy Wayne “Jimbo” W ilson, C.C.A. No. 717, Sullivan

Coun ty (Tenn . Crim. App., Knoxville, N ov. 14, 19 86), perm. to appeal denied

(Tenn. 19 87).



       He filed his first pro se petition for post-conviction relief on May 21, 1987.

In furtherance of this petition, he filed various pro se motions, multiple pro se

amen dmen ts to the petition and one ame ndm ent with the as sistan ce of c ouns el,

resulting in approximately twenty-nine issues ra ised in the first petition for p ost-

conviction relief. Jimm y Wa yne W ilson v. State , C.C.A. N o. 909, S ullivan Co unty

(Tenn. Crim. A pp., Kno xville, May 29 , 1991), perm. to appeal denied (Tenn.

1991). After conduc ting an evidentiary hearing, the trial court denied the petition.

Id., slip op. at 2. On a ppea l, this Co urt affirm ed the judgm ent of th e trial co urt in

all respects except on the issue of ineffective assistance of appellate counsel.

Id. at 13. On that issue , this Cou rt reman ded for fu rther proc eeding s. Id. An

eviden tiary hearing was even tually conducted in that regard, and the trial court

found the issue to lack m erit and denied the petition. That judgment was affirmed

on appea l to this Cou rt. Jimmy W ayne W ilson v. State, C.C.A. No. 03C01-9203-

CR-104 , Sullivan Coun ty (Tenn. Crim . App., Knoxville, Dec . 1, 1992).



       In the meantime, the Petitioner filed a second pro se petition for post-

conviction relief on May 31, 1990. In that petition, he argued that the 1989

Criminal Sentencing Reform Act had repealed the habitual criminal enhancement

statute, Tennessee Code Annotated section 39-1-801, resulting in his being

incarcerated in violation of his constitutional rights to equal protection, to due

                                            -3-
process, and against c ruel and unusu al punish ment. Jimmy W ayne W ilson v.

State, C.C.A. No. 970, Sullivan County (Tenn. Crim. App., Knoxville, Jun. 12,

1991), perm. to appeal denied (Tenn. 199 1). The trial court denied the petition,

finding that it was barred by the three-year statute of lim itations. The judgment

of the trial cou rt was affirm ed on a ppeal to th is Court. Id., slip op. at 3.



       The Petitioner later filed a petition for a writ of habeas corpus, which was

denied by the trial court on Februa ry 20, 199 6. Jimm y Wa yne W ilson v. State ,

C.C.A. No. 03C01-9604-CC-00142, Sullivan Coun ty (Tenn. Crim. App., Knoxville,

Aug. 12, 1997).      In that petition, he argued that he was being “unlawfully

restrained of his liberty” because the statute under which he was sentenced as

an habitual criminal was rendered unconstitutiona l by our s uprem e cou rt’s

holding in Gaskin v. Collins, 661 S.W .2d 865 (Tenn . 1983). Id., slip op. at 2-3.

The trial court’s denial of the petition was affirmed on appea l to this Cou rt. Id. at

7.



       On May 8 , 1996 , the Pe titioner filed the pro se motion to reopen his first

petition for post-conviction relief which is the subject of the case sub judice. In

his motion, the Petitioner raised three grounds:

       1) That our supreme court’s holding in State v. Kendricks, 891
       S.W.2d 597 (T enn. 19 94), esta blished a constitutional right not
       recognized at the time of his trial but requiring retrospe ctive
       application to his case;

       2) that D NA te sting w ould p rove th at he w as ac tually innocent of the
       rape; and

       3) that his habitual offend er sentence was based in part on a
       conviction which has been invalidated.




                                           -4-
See Tenn. C ode Ann . § 40-30-217(a)(1) - (3) (Supp. 1996). Through an order

filed on May 21, 1996, the trial court denied the motion without appointing

counsel and without co nducting an evidentiary hearing, finding that it did not

present a colorab le claim fo r relief. See Tenn. Code Ann. § 40-30-217(a), (b)

(Supp. 1996). The Petitioner filed a notice of appeal on May 30, 1996.



      After carefully examining the record and the procedural posture of the

case, we conclude that this appeal must be dismissed.             Tennessee Code

Annotated section 40-30-217 explains “motions to reopen” as created by the

Post-Conviction Procedure Act of 1995. Tennessee Code Annotated section 40-

30-217(c) sets forth the proper procedure for appealing the denial of a mo tion to

reopen a prior petition for post-co nviction relief to this Cou rt. It provides as

follows:

             (c) If the motion is denied, the petitioner shall have ten (10)
      days to file an application in the court of criminal appeals seeking
      permission to appeal. The application shall be accompanied by
      copies of all the documents filed by both parties in the trial court and
      the order de nying the motion . The sta te shall have ten (10) d ays to
      respond.

Tenn. Code Ann. § 40-30-217(c) (Supp. 1996) (emphasis added). This provision

obviou sly does not provide for an appeal as of right pursuant to Rule 3 of the

Tennessee Rules of Ap pellate Proced ure from the denial of a motion to reopen.

An appeal as of right “does no t require permission o f the trial or appellate court

as a prerequisite to takin g an a ppea l.” Ten n. R. A pp. P. 3 (d). By th e explic it

provision of Tennessee Code Annotated section 40-30-217(c), however, an

appeal to this Court from a denial of a motion to reopen requires that the

petitioner seek permission to appeal. Th us, as anothe r panel of this Cou rt

recen tly stated, the procedure provided by Tennessee Code Annotated section



                                         -5-
40-30-217(c) paralle ls Rule 10 of the Tennessee Rules of Appellate Procedure.

See Georg e L. McG hee v. Sta te, C.C.A. No. 02C01-9607-CR-00213, Shelby

Coun ty (Tenn. Crim. App., Jackson, Sept. 3 0, 1996 ), perm. to appeal denied

(Tenn. 1997). In fa ct, the McGhee court, noting the parallels with Rule 10 of the

Tennessee Rules of App ellate Procedure, recommended that petitioners use

subsection (c) of Rule 10 as a guide when drafting an application for permission

to appeal pursuant to Tennessee Code Annotated section 40-30-2 17(c). Id., slip

op. at 3. The McGhee court pointed ou t, however, that because an appeal

pursuant to Tennessee Code Annotated section 40-30-217(c) is not sp ecifica lly

a Rule 10 appeal, the technical requirements of Rule 10(c) may not be invoked

to deny a n applica tion. Id.



       In the case at bar, the Petitioner filed a notice of appeal with the clerk of

the trial court a s if he w ere ap pealin g purs uant to Rule 3 of the Tennessee Rules

of Appellate Procedure. See Tenn. R. App. P. 3(e). The notice of appeal stated

simp ly that the Petition er “her eby ap peals to the Court of Criminal Appeals from

the final judgment entered in the above number [sic] action on May 20, 1996, by

Judge Arde n L. Hill.” The Petitioner did not file an app lication with this Court

seeking permission to appeal and did not include copies of all the doc umen ts

filed by both pa rties in the trial co urt and th e order d enying th e motio n. In short,

the Petitioner did not comply with the plain requirements of Tennessee Code

Annotated section 40-30 -217(c), but apparently attempted to pursue an appeal

from the denial of his motion to reopen by way of Rule 3 of the Tennessee Rules

of Appella te Proce dure.       Because the Petitioner did not comply with the

requirem ents of Tennessee Code Annotated section 40-30-217(c) in pursuing an




                                           -6-
appeal from the denial of his motion to reopen, we conclude that this app eal is

not pro perly b efore th is Cou rt. Acco rdingly , we m ust dis miss the ap peal.



       Even if we we re to de em th is app eal as prope rly before this Court and

consider its merits, we believe that the trial judge did no t err or a buse his

discretion in denying the motion to reopen.          Relief under Tennessee Code

Annotated section 40-30-217(a) may be granted only where (1) the claim in the

motion is base d upo n a fina l ruling o f an ap pellate court establishing a

constitutional right that wa s not reco gnized as existing at the tim e of trial, if

retrospective application of that right is required and the motion is filed within one

year of the ruling ; or (2) the claim in the m otion is base d upo n new scient ific

evidence establish ing that the petitioner is a ctually innocent of the offense or

offenses for which the petitioner was convicted; or (3) the claim asserted in the

motion seeks relief from a sentence that was enhanced because of a previous

conviction and such conviction in the ca se in w hich th e claim is asserted was not

a guilty plea with an agreed sentence and the motion is filed within one year of

the finality of the ruling holding th e previous co nviction to be in valid; an d (4) it

appears that the fac ts underlying the claim, if true, would establish by clear and

convincing evidence that the petition er is entitled to have the conviction set aside

or the sentence reduced. Tenn. Code Ann. § 40-3 0-217(a)(1) - (4). Furthermore,

in reviewing the denial of a motion to reopen, this Court shall not grant the

application unless it appears that the trial court abused its discretion in denying

the motion. T enn. Cod e Ann. § 40 -30-217(c) (S upp. 1996 ).



       The Petitioner’s first claim in his motion to reopen is that our supreme

court’s holding in State v. Kendricks, 891 S.W.2d 597 (Tenn. 1994), established

                                          -7-
a constitutional right not recognized at the time of his trial but requiring

retrospective application to his case . See Tenn. Code Ann. § 40-30-217(a)(1)

(Supp. 1996 ). He a sserts that “fre sh co mpla int” evid ence was a dmitte d at his

1985 rape tria l in violatio n of the subs eque nt hold ing in Kendricks, thereby

depriving him of his right to a fair trial. He contends that the Kendricks holding

must be applied retroactively to his case.



       In Kendricks, our supreme court modified the principles governing the use

of “fresh comp laint” evidence in cas es where a n adult is the victim of a se xual

crime. Kendricks, 891 S.W.2d at 603.             Prior to Kendricks, Tennessee law

allowed “both the fact and the details of the complaint to be admitted during the

state’s ca se-in-ch ief.” Id. at 602 (citing Phillips v. Sta te, 28 Ten n. (1 Hum .) 246

(1848)) (emphasis in original). The Kendricks court overruled Phillips and its

progeny “to the extent that they permit testimony of the details of the incide nt to

be presen ted befo re the victim ’s credibility is attacked” in cases involving an ad ult

victim of a sexu al crime.     Id. at 603 (emphasis in original). The holding in

Kendricks did not affect the admissibility of the fact of the co mplain t, even during

the state’s case-in-c hief. Id.



       In the p resen t case , it is unclear whether “fresh complaint” evidence was

admitted during the Petitioner’s 1985 rape trial in violation of the principles later

announced in Kendricks. The record on appeal does not contain transcripts of

the trial testimony. According to the Petitioner’s motion to reopen, Officer Joan

Leonard testified at trial regarding both the fact of and the details of the victim ’s

comp laint to her sh ortly after the ra pe. The motion to reope n does not indica te

whether Officer Leonard’s testimony occurred during the State’s case-in-chief or

                                           -8-
during rebuttal, or whether the testimony occurred be fore or after the victim

testified at trial. Thus, from the re cord before us, we cannot conclude that “fresh

complain t” evidence was admitted in violation of the subsequently-announced

principles of Kendricks.



       In any event, regardless of whether “fresh complaint” evidence was

admitted against the Petitioner in violation of Kendricks, we do not believe that

Kendricks established a constitutional right that was not recognized as existing

at the time of the Petitioner’s trial. See Tenn. Code Ann. § 40-30-217(a)(1)

(Supp. 1996). Rath er, Kendricks mod ified an eviden tiary prin ciple governing the

admis sibility of “fresh c omp laint” ev idenc e in certain ca ses. Mo reover, Kendricks

spec ifically states that it applies “to all cases tried after the release of this opinion

and to those wherein a motion for new trial was granted on or after the date of the

release of this opinion.”     Kendricks, 891 S.W .2d at 606 (em phasis add ed).

Tennessee Code A nnotated se ction 40-30-21 7(a)(1), however, provides relief

only if retrospective application of a co nstitutio nal righ t is required. Furthermore,

Tennessee Code Annotated section 40-30-217(a)(1) requires that the m otion to

reopen be filed within one year of the ruling establishing the cons titutional right.

The Petitioner, however, filed his motion to reopen on May 8, 1996, more than

one year after Kendricks was released on December 5, 1994. Accordingly, we

conclude that the Petitioner’s claim concerning Kendricks and the admission of

“fresh comp laint” evidence at his 1985 rape trial does no t meet the su bstantive

or procedural requirements for reopening his prior petition for post-conviction

relief under Ten nessee C ode Ann otated section 4 0-30-217(a )(1).




                                           -9-
       The Petition er’s se cond claim in his m otion to reope n is tha t new s cientific

evidence, namely D NA testing, wo uld prove that he is actually innocent of the

rape. See Tenn . Code Ann. § 40-30-217(a)(2) (Supp. 1996). The petition does

not allege that he already has new scientific evidence establishing his innocence.

Rather, it merely asserts that DNA testing “would prove” that he did no t com mit

the rape.



       The Petitioner’s argument ignores the nature of the evidence introduced

at the 1985 rape trial. After the victim reported the crime, doctors collected hair

samples and m ade sw abbing s of her vagina. The samples, along with some

grass or leaves found on the buttocks of the victim, were examined by an FBI

serolog ist. The se rologist tes tified at trial that he found no blood or seminal

stains on the clothes of the victim and that there was no semen on the vaginal

smear, genital sw ab or the debris. In addition, another FBI agent testified that the

hair samp les all belon ged to the victim. In fact, th ese exp erts were called to

testify at trial by the P etitioner. See State v. Jimmy Wayne “Jimbo” W ilson,

C.C.A. No. 717, Sullivan C ounty (Ten n. Crim. App ., Knoxville, Nov. 14, 198 6),

perm. to appeal denied (Tenn. 198 7).



       Thus, it appears that law enforcement personnel discovered no blood,

semen or hair linking the Petitione r or anyone else to the crime. In short, the

prosecution offered no testimony regarding scientific evidence of this type.

Instead, the prin cipal evidence linking the Petitioner to the crime was the

testimony of the victim. A s a res ult, we fa il to see how D NA te sting c ould p ossib ly

establish the Pe titioner’s innocence given that no scientific evidence of that type

was presented at trial or even discovered during the investigation of the crime.

                                           -10-
There simply does not appear to be a blood, semen or hair sample from the

victim’s attacker with which to com pare a sample of the Petitioner’s DNA. Given

these circumstances, we conclude that the Petitioner’s claim that DNA testing

would establish his innocence does not meet the requirem ents for reop ening his

prior petition for post-conviction relief under Tennessee Code Annotated section

40-30-217 (a)(2).



      The Petitioner’s third claim in his motion to reopen is that his habitual

offender status was based in part on a conviction which has been invalidated.

He asserts th at one o f the convictions used to support his habitual criminal

status, a 1971 conviction for concealing stolen property, was vacated as a re sult

of the hearing on his first petition for post-conviction relief. Thus, the Petitioner

contends that his sentence as an habitual offender cannot stand.



      The Petition er raise d this very issue in his first petition for post-conviction

relief. See Jimmy Wa yne W ilson v. State , C.C.A. N o. 909, S ullivan Co unty

(Tenn. Crim . App., Knox ville, May 29, 1991), perm. to appeal denied (Tenn.

1991). The trial court found that the issue lacked merit, and this Court affirmed

the trial court with regard to th at issue. Id., slip op. at 5-7. Accordingly, we

conclude that this issue has been previously determined to be without merit. See

Tenn. C ode Ann . § 40-30-206 (h) (Supp. 19 96).



      For the reasons set forth in the discussion above, we believe that the trial

judge did not abuse his discretion in dismissing the motion to reopen and, thus,

the judgmen t of the trial court is affirmed . See Tenn. Code Ann. § 40-30-217(c)

(Supp. 1996). Because the Petitioner failed to follow the statutory procedu re for

                                         -11-
appealing to this Court from the denial of his motion to reopen, we conclude that

this appeal must be dismissed.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE



___________________________________
JOHN K. BYERS, SENIOR JUDGE




                                      -12-
