                                                                                        03/02/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               January 4, 2018 Session

                CALVIN DOUGLAS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 12-05135       Carolyn W. Blackett, Judge
                     ___________________________________

                           No. W2017-00762-CCA-R3-PC
                       ___________________________________


The Petitioner, Calvin Douglas, appeals the denial of his petition for post-conviction
relief and the denial of his motion to reconsider, in which he argued that the facts
presented at the post-conviction evidentiary hearing supported a writ of error coram nobis
on the basis of newly discovered evidence. Pursuant to an order by this court, the
Petitioner was permitted to file an untimely notice of appeal. After a review of the
record, we hold that this court’s order allowing the Petitioner to late-file his notice of
appeal was improvidently granted. Accordingly, we dismiss the appeal.

              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.

Josie S. Holland, Memphis, Tennessee, for the appellant, Calvin Douglas.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Omar Malek and Paul
Goodman, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                       OPINION

                              PROCEDURAL HISTORY

       A Shelby County jury found the Petitioner guilty of three counts of aggravated
assault and one count of reckless endangerment with a dangerous weapon, and he
received an effective sentence of twenty years. The judgments and an order denying the
Petitioner’s motion for a new trial were entered on February 14, 2014. The Petitioner’s
convictions and sentences were upheld on direct appeal. See State v. Calvin Douglas,
No. W2014-00505-CCA-R3-CD, 2015 WL 846754, at *1-4 (Tenn. Crim. App. Feb. 26,
2015), no perm. app. filed.

        The Petitioner filed a timely pro se petition for post-conviction relief, which was
amended following the appointment of counsel, and alleged ineffective assistance of
counsel in various respects. The post-conviction court held an evidentiary hearing and
denied relief in a written order filed on January 25, 2017. Instead of filing a notice of
appeal, the Petitioner filed a “Motion to Reconsider” with the post-conviction court on
February 6, 2017. In his motion, the Petitioner argued that the facts established during
the post-conviction evidentiary hearing should be considered as newly discovered
evidence that entitled him to a new trial in the context of a petition for a writ of error
coram nobis. The Petitioner alternatively asked that the post-conviction court “toll the
statute of limitations for bringing a writ of error coram nobis claim prior to the judgment
in this matter becoming final.” He requested the post-conviction court to “[s]tay[] the
time frame in which [he] must file his Notice of Appeal, so that the court may consider
the evidence under this newly presented legal theory.” On March 24, 2017, the post-
conviction court held a hearing on the motion, denied the Petitioner’s request for a new
trial, and declined to toll the statute of limitations for a petition for writ of error coram
nobis.

       On April 18, 2017, the Petitioner filed a “Motion to Late File Notice of Appeal”
with this court, which included the fact that the petition for post-conviction relief had
been denied and that he had filed a motion for reconsideration. The motion to late file
did not mention that the Petitioner was seeking any coram nobis relief. On May 5, 2017,
this court granted the Petitioner an additional ten days, and the notice of appeal was filed
on May 15, 2017.

                                       ANALYSIS

      Tennessee Rule of Appellate Procedure 4(a) provides that the notice of appeal
must be filed “within 30 days after the date of entry of the judgment appealed from.” See
T.C.A. § 40-30-116 (“The order granting or denying [post-conviction] relief … shall be
deemed a final judgment, and an appeal may be taken to the court of criminal appeals in
the manner prescribed by the Tennessee Rules of Appellate Procedure.”). Rule 4(a) also
allows for this court to waive the timely filing requirement “in the interest of justice.”
This court considers “the nature of the issues for review, the reasons for the delay in
seeking relief, and other relevant factors” in determining whether waiver is appropriate.
Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 63950, at *1 (Tenn.
Crim. App. Feb. 13, 1996). The Petitioner has the burden of establishing that waiver is

                                            -2-
appropriate. State v. Kevin Montrell Thompson, No. E2016-01565-CCA-R3-CD, 2017
WL 262701, at *2 (Tenn. Crim. App. Jan. 20, 2017), no perm. app. filed.

       The Tennessee Rules of Criminal Procedure do not recognize a motion to
reconsider. State v. Turco, 108 S.W.3d 244, 245 n.2 (Tenn. 2003). Moreover, filing a
motion to reconsider the denial of post-conviction relief does not toll the time for filing a
notice of appeal. See State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App. 1992) (“No
other motion, including one for rehearing, is allowed to suspend the running of the appeal
time from the entry of the judgment.”). Thus, to have been timely, the Petitioner should
have filed his notice of appeal within thirty days after January 25, 2017, the date on
which the post-conviction court entered its order denying relief. Instead, the Petitioner
filed his motion to late-file the notice of appeal on April 18, 2017, well after the thirty
days had expired.

        We acknowledge that this court granted an order that allowed the Petitioner to
late-file his notice of appeal. When this court makes such determinations, we do not have
the benefit of reviewing the record; instead, the only information available to this court is
that contained within a petitioner’s motion and any accompanying affidavit of counsel.
The Petitioner’s motion indicates that his notice of appeal was not timely filed because
the thirty days had expired while his “Motion to Reconsider” was still pending with the
post-conviction court. The Petitioner’s motion to late-file the notice of appeal did not
indicate the claims he intended to raise on appeal.

        After a review of the appellate record and the Petitioner’s “Motion to Reconsider,”
it is clear that the motion was essentially a petition for writ of error coram nobis. The
“Motion to Reconsider” did not revisit any of the post-conviction issues. We note that
filing a motion to reconsider after the denial of a post-conviction petition is not proper
procedure. See Turco, 108 S.W.3d at 245, n.2. Moreover, the Petitioner asked the court
to consider the evidence from the hearing under a completely new legal theory — a writ
of error coram nobis based on newly discovered evidence. Filing a petition for coram
nobis relief under the guise of a motion to reconsider is not proper procedure. See T.C.A.
§§ 40-26-105 (providing that a writ of error coram nobis in criminal cases is governed by
the same rules and procedure applicable in civil cases, with some exceptions); 27-7-103
(providing that a writ of error coram nobis is to be sought “by petition presented to the
judge” within one year after the judgment becomes final) (emphasis added).

       The Petitioner’s motion to late-file the notice of appeal with this court failed to
explain that the “Motion to Reconsider” sought coram nobis relief on an entirely new
claim. Although the Petitioner’s counsel listed other reasons for the delay in filing, such
reasons did not arise until after the post-conviction court denied the “Motion to
Reconsider” and after the filing date for the notice of appeal had already expired.
                                            -3-
      Accordingly, we hold that permission to late-file the notice of appeal was
improvidently granted. Therefore, the Petitioner’s notice of appeal was untimely filed,
and we dismiss the appeal.



                                               ________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




                                         -4-
