         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 27, 2004

                      JERRY BRITT v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Hamblen County
                Nos. 97CR213, 96CR207, 96CR172      James E. Beckner, Judge



                   No. E2004-01276-CCA-R3-PC - Filed December 20, 2004


The petitioner, Jerry Britt, entered Alford pleas in 1996 to three counts of attempted rape of a child
and guilty pleas to one count of possession with intent to sell or deliver a Schedule II controlled
substance, one count of possession with intent to sell or deliver a Schedule IV controlled substance,
and six counts of delivery of a Schedule II controlled substance, and received an effective sentence
as a Range I, standard offender of forty-eight years in the Department of Correction. He appeals the
dismissal of his petition for writ of error coram nobis, arguing that the trial court should have granted
him relief based on newly discovered evidence, the victim’s recantation testimony. Following our
review, we affirm the order of the trial court dismissing the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and J. C. MCLIN ,
JJ., joined.

P. Richard Talley, Dandridge, Tennessee, for the appellant, Jerry Britt.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; and
C. Berkeley Bell, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                    PROCEDURAL HISTORY

        This is the petitioner’s third time before this court, and his extensive procedural history has
been succinctly set out in two previous decisions. See Jerry Britt v. State, No. E2001-00864-CCA-
R3-PC, 2002 WL 31126638 (Tenn. Crim. App. Sept. 26, 2002), perm. to appeal denied (Tenn. Jan.
27, 2003); Jerry E. Britt v. State, No. 03C01-9806-CR-00208, 1999 WL 359000 (Tenn. Crim. App.
June 4, 1999).
         On August 26, 1997, the petitioner timely filed a pro se petition for post-conviction relief,
contending, as this court earlier described, “primarily that he was denied effective assistance of
counsel at his guilty plea hearing because he was not advised specifically of the consequences of his
guilty plea.” Jerry E. Britt, 1999 WL 359000, at *1. The post-conviction court dismissed this
petition on March 30, 1998, without a hearing. On appeal, this court remanded the case for the
petitioner to “have new counsel appointed and . . . be given an evidentiary hearing so that he will
have the opportunity to try to prove his allegation that his original trial counsel did not properly
investigate his case, as well as any other allegation that new counsel may determine is appropriate.”
Id. at *2.

        Subsequent to the remand, the petitioner filed an amended post-conviction petition, asserting
that “he received ineffective assistance of counsel when he entered his pleas; that his counsel’s
deficient performance rendered his guilty pleas unknowing and involuntary; and that he should be
granted post-conviction relief because of newly discovered evidence.” Jerry Britt, 2002 WL
31126638, at *1. On March 16, 2001, the post-conviction court conducted an evidentiary hearing,
at which the victim testified, recanting her accusation of sexual abuse made before the petitioner’s
pleas of guilt. After the hearing, the post-conviction court again dismissed the petition and this court
affirmed the decision, concluding that the petitioner “received effective assistance of counsel and
that he entered his plea knowingly, voluntarily, and intelligently.” Id. at *13. We further concluded
that “the [p]etitioner [was] not entitled to post-conviction relief on the basis of newly discovery
evidence,” id. at *14, disagreeing with the petitioner’s claim that the victim’s recantation was newly
discovered evidence:

               [A]s the State correctly points out, newly discovered evidence is not
               generally an appropriate ground for relief under the Post-Conviction
               Procedure Act. See William H. Necessary, Jr., v. State, No.
               03C01-9601-CC-00009, 1999 Tenn. Crim. App. LEXIS 246, at
               **17-18 (Tenn. Crim. App., Knoxville, Mar. 16, 1999); Randy Hicks
               v. State, No. 03C01-9608-CR-00296, 1998 Tenn. Crim. App. LEXIS
               253 at **8-9 (Tenn. Crim. App., Knoxville, Mar. 3, 1998). More
               specifically, this Court has held that "recanted testimony amounts to
               no more than a request to relitigate the sufficiency of the evidence at
               trial and is not a proper subject of post-conviction relief." Teresa
               Deion Smith Harris v. State, No. W2000-02611-CCA-R3-PC, 2001
               Tenn. Crim. App. LEXIS 604, at *3 (Tenn. Crim. App., Jackson, June
               13, 2001).
Id.

         Following this court’s affirmance of the dismissal of the amended petition for post-conviction
relief, the petitioner filed a petition for writ of error coram nobis on January 21, 2003, arguing that
the victim’s recantation testimony at the evidentiary hearing constituted newly discovered evidence,
requiring the trial court to set aside his guilty pleas. An exhibit to the petition was the entire
transcript from the March 16, 2001, evidentiary hearing. On April 29, 2004, the trial court, without


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holding a hearing on the coram nobis petition and relying on the transcript of the evidentiary hearing,
dismissed the petition. The petitioner appeals this dismissal.

                                            ANALYSIS

       The trial court dismissed this petition because it both was untimely and without merit. We
concur with both of those determinations, as we will explain.

         A writ of error coram nobis is an extraordinary remedy by which the trial court may provide
relief from a judgment under narrow and limited circumstances. State v. Mixon, 983 S.W.2d 661,
666 (Tenn. 1999). The remedy is available by statute to a criminal defendant in Tennessee. See
Tenn. Code Ann. § 40-26-105 (2003). This statute provides, in pertinent part:

               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. 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.

Id. Recanted testimony may qualify as newly discovered evidence. Mixon, 983 S.W.2d at 672. A
new trial should be granted on the basis of newly discovered recanted testimony, however, only if:

               (1) the trial court is reasonably well satisfied that the testimony given
               by the material witness was false and the new testimony is true; (2)
               the defendant was reasonably diligent in discovering the new
               evidence, or was surprised by the false testimony, or was unable to
               know of the falsity of the testimony until after the trial; and (3) the
               jury might have reached a different conclusion had the truth been
               told.

Id. at 673 n.17 (citations omitted). The decision to grant or deny a petition for writ of error coram
nobis based on newly discovered evidence lies within the sound discretion of the trial court. See
Tenn. Code Ann. § 40-26-105 (2003); State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).

       The petitioner argues the post-conviction court erred in holding that the victim’s recantation
testimony at the post-conviction evidentiary hearing did not constitute newly discovered evidence.
Specifically, he asserts that the victim’s inconsistent statements, even if known to him prior to his


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guilty pleas, constitute newly discovered evidence because they did not suggest that she would later
recant. He argues it was only after he entered into a plea agreement that “anyone was aware that the
[victim’s] allegations were not true.” We will review these claims.

         It is clear from the post-conviction transcript that both the petitioner and his trial counsel
were aware, prior to the petitioner’s guilty pleas, that the victim had made inconsistent statements
concerning her allegations against the petitioner. Trial counsel testified at the post-conviction
hearing that the victim “made conflicting statements, yes sir. And I -- I was prepared to cross-
examine her on those. And, certainly, [the petitioner] was aware of these . . . conflicting statements.”
In fact, the petitioner agreed during cross-examination at the post-conviction hearing that he, too,
was aware of the victim’s inconsistent statements:

               Q.       You knew, also, that . . . [the victim] had been giving [the
               district attorney] trouble in the investigation of the prosecution?

               A.      I know what [trial counsel] told me.

               Q.      And what did he tell you?

               A.      That [the victim] had changed – she’d changed her story and
               her testimonies wasn’t [sic] matching up.

               Q.      So you knew that was a problem before you pled guilty, that
               the state was having trouble even with [the victim]?

               A.      No, sir. I didn’t know it was trouble for the state. I knew it
               was – I thought it would help us. So, yeah, in a way I guess I thought
               it was damaging for the state. Yes, sir.

               Q.    Okay. So it’s not really newly discovered evidence. When
               you went to trial and you pled guilty, the fact is –

               A.     I know that her changing her story wasn’t new[ly] discovered
               evidence. Her testifying – that the sex did not happen was newly
               discovered evidence.

        The victim’s testimony from the post-conviction hearing was summarized by this court when
we affirmed the post-conviction court’s dismissal of the petition following the hearing:

                        The victim of the attempted rape of a child charges also
               testified at the post-conviction hearing. She stated that at the time of
               the hearing, she was seventeen years old and that at the time of the
               crimes, she was twelve years old. She testified that in 1996, she


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               alleged that she and the Petitioner had engaged in sexual intercourse
               on more than one occasion. She reported that neither counsel for the
               Petitioner nor any lawyer employed by counsel interviewed her about
               the allegations. The victim maintained that if counsel had
               interviewed her, she would have told him "the truth . . . . [t]hat
               nothing had ever happened." She stated that by this, she meant that
               she never engaged in sexual intercourse with the Petitioner. The
               victim explained, "It's going to sound crazy, but I was jealous,
               because [the Petitioner] was getting all the attention from my mom.
               And I was sitting here thinking, and I thought, Maybe I can do
               something about it, and make him go to jail, and I could get all her
               attention; she'd be focused on me and nobody else." The victim
               admitted that she had slept in a bed with her mother and the
               Petitioner, but denied that any sexual contact occurred. In addition,
               the victim admitted that she had alleged that her father had sexually
               abused her while she was with him in Oregon, but she maintained that
               the allegations concerning her father were true. She testified that the
               allegations against her father "got her back to Tennessee with [her]
               mom," and she stated that she "figured if [she said] that again, [she]
               could get what [she] wanted like [she] did before." The victim also
               maintained that had she been called to testify at the Petitioner's trial,
               she would have testified that she and the Petitioner did not engage in
               sexual intercourse.

                       On cross-examination, the victim testified that she made the
               tape-recorded telephone call to the Petitioner because she "was trying
               to confuse him, trick him into saying what he did . . . ." She claimed
               that she told a doctor and a detective who questioned her about the
               case that she had not had sexual intercourse with the petitioner. She
               could not recall whether she reported this information before or after
               the petitioner became incarcerated.

Jerry Britt, 2002 WL 31126638, at **5-6.

       On appeal, this court concurred that the victim’s testimony at the post-conviction hearing did
not constitute newly discovered evidence:

               [A]s previously noted, the trial court discredited the victim’s
               recantation at the post-conviction hearing. The trial court also made
               the following findings concerning the victim’s recantation:

                              [Counsel], in discussing the evidence, said that
                       he asked [the] prosecutor if . . . the victim . . . had


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                       retracted [the allegations against the Petitioner]. And
                       his testimony was: When I was having that
                       transcribed, . . . [the victim] had made the statement
                       that she lied. That it did not happen.

                       ....

                                It's just not newly discovered evidence. All of
                       the things about her testimony, or potential testimony
                       back then were known at this time. Nothing new has
                       been discovered now. . . . When she . . . changed her
                       mind and testified differently on several occasions
                       about different things, [she] put everybody on notice
                       . . . that her testimony could be anything from very
                       strong for conviction, to exoneration. But that was
                       not a chance that anybody wanted to take.

Id. at *14.

        The petition for writ of error coram nobis, as did the amended post-conviction petition,
argued that the recantation testimony was newly discovered evidence. In its order denying coram
nobis relief, the trial court found, as it had following the evidentiary hearing for the amended post-
conviction petition, that the victim’s recantation was not newly discovered evidence:

                      The most significant problem for the petitioner is that the
               victim’s alleged recantation is not newly discovered evidence.

                       The victim’s statements about what happened have always
               been inconsistent. . . . She had recanted before the guilty plea.
               During the al[l]ocution of the guilty plea[,] it was brought out that the
               victim had said on some occasions that the petitioner had not done the
               things he was accused of. All of these things were known to the
               petitioner at time the plea was entered. The alleged recantation is not
               newly discovered evidence.

                      Further, this issue was raised in the post conviction petition
               and this court ruled then that the recantation was not newly
               discovered evidence. This petitioner was afforded a meaningful
               opportunity to present the recantation issue and due process
               requirements were satisfied.




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        The petitioner has presented the same claim in a petition for post-conviction relief and a
petition for writ of error coram nobis that the victim’s statement at the evidentiary hearing, she was
not sexually abused by the defendant, is newly discovered evidence entitling him to relief. As the
post-conviction court succinctly explained, when the defendant pled guilty, he and his attorney knew
the victim had made conflicting statements as to what had occurred, including at least one claim that
the petitioner had not committed the acts she had accused him of. Knowing this, the petitioner
elected to plead guilty; and, the fact that the victim is again saying that the abuse did not occur is not
newly discovered evidence. We concurred with this analysis affirming the dismissal of the amended
petition for post-conviction relief and continue to agree. The petitioner has not presented newly
discovered evidence; and, thus, his coram nobis petition is without merit.

       Even if we accepted, arguendo, that the victim’s recantation does constitute newly discovered
evidence, the petitioner has an added burden because he pled guilty. There are three reasons a guilty
plea can be set aside:

                “(1) for any fair and just reason before the sentence is imposed,
                Tenn. R. Crim. P. 32(f);

                (2) to correct manifest injustice after sentence but before the
                judgment becomes final, Tenn. R. Crim. P. (32)(f);

                (3) once the judgment is final, if the plea was not entered voluntarily,
                intelligently, and knowingly, or was obtained through the abridgment
                of any right guaranteed by the United States or Tennessee
                Constitutions, State v. Mackey, 553 S.W.2d 337, 340-341 (Tenn.
                1977); Tenn. Code Ann. § 40-30-203.”

Newsome v. State, 995 S.W.2d 129, 133 (Tenn. Crim. App. 1998) (quoting State v. Antonio
Demonte Lyons, No. 01C01-9508-CR-00263, 1997 WL 469501, at *6 (Tenn. Crim. App. Aug. 15,
1997)). This court has previously explained that when a conviction stems from a guilty plea, "in
order for a writ [of error coram nobis] to issue, the [petitioner] would have to present newly
discovered evidence which would show that his plea was not voluntarily or knowingly entered." Id.
at 134. The fact that the petitioner entered a best interest Alford plea does not change his burden or
our analysis. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162
(1970) (holding the standard for a "best interest" or Alford plea is "whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant").

        This court previously has concurred with the finding of the post-conviction court following
the evidentiary hearing that the petitioner’s guilty pleas were knowing and voluntary:

                        As previously stated, we conclude that the Petitioner received
                the effective assistance of counsel, and therefore we conclude that the
                Petitioner was adequately informed when he entered his plea. Not


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               only did counsel inform the Petitioner of potential pitfalls were he to
               proceed to trial, but the trial court also informed the Petitioner at the
               plea proceeding that "if [he pled] guilty to the attempt to commit rape
               of a child [charges], [he] probably [would be required] to serve most
               of that sentence without being released on [the] release eligibility
               date." At the conclusion of the post-conviction hearing, the trial court
               found that the Petitioner received effective assistance of counsel and
               that he therefore entered his plea knowingly, voluntarily, and
               intelligently. The evidence contained in the record before us does not
               preponderate against that finding.

Jerry Britt, 2002 WL 31126638, at *13. The petitioner argues that if he had known about the
recantation before his guilty pleas, it would have resulted in a different judgment at trial. As the
court previously noted in the post-conviction hearing findings, the victim’s testimony at trial could
have been “anything from very strong for conviction, to exoneration. But that was not a chance that
anybody wanted to take.” Id. at *14. The petitioner is not entitled to habeas corpus relief because
he has changed his mind as to the pleas of guilty:

               [I]f the plea agreement was negotiated in good faith, there are no
               allegations of fraud or misfeasance, and, in all other regards, the plea
               agreement was entered into voluntarily and knowingly, [a defendant]
               cannot [later] complain of that which he had willingly bargained for
               previously. A petition for the writ of error coram nobis is not
               intended to relieve a party of its own negligence, ignorance, or change
               of mind.

Newsome, 995 S.W.2d at 134.

        Finally, the State argues that the trial court should have specifically found the petitioner’s
petition was barred by the statute of limitations, rather than simply finding the petition was “not
timely filed.” The statute of limitations for seeking a writ of error coram nobis is one year from the
date the judgment becomes final in the trial court. See Tenn. Code Ann. §§ 40-26-105, 27-7-103;
Mixon, 983 S.W.2d at 671. The petitioner concedes his petition was filed outside the one-year
statute of limitations but nonetheless argues that due process considerations, as set forth in Workman
v. State, 41 S.W.3d 100 (Tenn. 2001), and State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim. App. 2001),
require that the statute of limitations be tolled in his case. We respectfully disagree.

        In Workman, our supreme court held that due process required the tolling of the one-year
statute of limitations where a petitioner in a capital case sought a writ of error coram nobis based on
newly discovered exculpatory evidence, concluding that the petitioner's "interest in obtaining a
hearing to present newly discovered evidence that may establish actual innocence of a capital offense
far outweighs any governmental interest in preventing the litigation of stale claims." 41 S.W.3d at
103. Similarly, this court held in Ratliff that due process required that the statute of limitations for


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bringing a writ of coram nobis be tolled in a noncapital case where the petitioner had newly
discovered evidence in the form of a victim’s recantation. 71 S.W.3d at 297-98.

        Unlike the situations presented in Ratliff and Workman, the evidence the petitioner is relying
on in this case is not newly discovered and, in fact, he knew at the time of his pleas of guilty the
victim had made at least one statement exonerating him. Knowing this, the petitioner made knowing
and voluntary pleas of guilty and subsequently presented an untimely and unmeritorious claim of
newly discovered evidence. We conclude, therefore, that due process does not require the tolling
of the statute of limitations.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the order of the trial court
dismissing the petition.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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