        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 18, 2012

               TONEY JASON HALE v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Bedford County
                          No. 12237    Lee Russell, Judge


                  No. M2011-01992-CCA-R3-CO Filed May 23, 2012


In 2004, the petitioner, Toney Jason Hale, pled guilty before the Bedford County Circuit
Court to three counts of automobile burglary, a Class E felony. He received an effective
sentence of three years as a Range I, standard offender, to be served consecutively to a
previously imposed Marshall County sentence. Seven years later, in 2011, the petitioner
filed a petition for writ of error coram nobis, alleging that his convictions violated double
jeopardy protections. The coram nobis court dismissed the petition after a hearing. The
petitioner argues on appeal that the court erred in denying him relief. Upon review, we
affirm the judgment of the coram nobis court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JAMES C URWOOD
W ITT, J R., J., joined and J ERRY L. S MITH, J., not participating.

Trisha A. Bohlen, Bell Buckle, Tennessee, for the Petitioner-Appellant, Toney Jason Hale.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel;
Charles F. Crawford, Jr., District Attorney General and Michael D. Randles, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       Following the petitioner’s March 4, 2004 guilty plea, the trial court entered judgment
on April 16, 2004. On direct appeal, the petitioner challenged the trial court’s decision to
order the sentence in this case to be served consecutively to the sentence arising from his
Marshall County convictions. See State v. Toney Jason Hale, No. M2004-01370-CCA-R3-
CD, 2005 WL 1812825, at *1 (Tenn. Crim. App., at Nashville, Aug. 2, 2005). This court
affirmed the trial court’s judgments. Id.
        On February 17, 2011, the petitioner filed a pro se petition for writ of error coram
nobis alleging that his convictions violated double jeopardy protections. He asserted that his
crimes in Bedford County were committed as part of the same criminal episode as his crimes
in Marshall County, for which he had already been convicted and sentenced in a separate
prosecution. Acknowledging that the petition was filed outside the one-year statute of
limitations, the petitioner asserted that principles of due process required tolling because he
“ha[d] only recently come to understand his [double jeopardy] rights.” The State filed a
motion to dismiss, arguing that the petition was untimely, did not assert any grounds to toll
the statute of limitations, and did not allege any grounds for which relief could be granted.
The court, without ruling on the State’s motion to dismiss, appointed counsel and held an
evidentiary hearing.

        At the hearing, the petitioner testified that he burglarized a number of automobiles on
consecutive dates in Marshall and Bedford Counties. He pled guilty in the Marshall County
Circuit Court to the crimes he committed in Marshall County. After he pled, he was indicted
in this case for the burglaries that he committed in Bedford County. He was represented by
counsel in both cases. The petitioner testified that he believed the Bedford County offenses
should have been prosecuted with the Marshall County offenses.

       The statements the petitioner and his accomplices gave to police during the
investigation of the burglaries were admitted into evidence at the hearing. In the petitioner’s
statement, he provided a narrative of his burglary spree. He described in detail the cars he
burglarized and the items he took from each. He also described the locations of the cars,
including both Bedford and Marshall Counties. Also admitted as an exhibit was the
discovery form that the State provided the petitioner in the prosecution of this case. That
form states, in relevant part:

        [T]he Defendant’s prior criminal record is as follows: Defendant’s NCIC
        available for inspection upon request.

        MARSHALL COUNTY CIRCUIT NO. 15572 – AUTO BURGLARY (16
        COUNTS) – 7/9/03 10 YEARS.

The petitioner testified that he had seen neither of these items since his trial.1 On cross-
examination, the petitioner testified that he wrote the statement he gave to police and had
been aware of its existence since he wrote it in 2003.



        1
         Because the petitioner pled guilty, he did not have a trial. Nevertheless, “trial” in the context of
coram nobis proceedings includes a guilty plea proceeding. Wlodarz v. State, – S.W.3d –, 2012 WL 581210,
at *7-10 (Tenn. Feb. 23, 2012).

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        After the hearing, the coram nobis court dismissed the petition. The court determined
that the petition was time-barred because it was filed outside the one-year statute of
limitations and that due process concerns did not warrant tolling the statute. The court stated:

       I don’t find that there is any great injustice or any injustice, period, in this
       situation in requiring a one-year [statute of limitations] to apply. He knew
       about the statements; he knew where he was prosecuted, out of which courts
       and counties his sentences were, and for that reason, I don’t believe there’s a
       basis for having due process consideration[s] to extend the period of time to
       file.

The court additionally ruled that the petitioner did not present “any new evidence here or any
other basis for granting Coram Nobis relief.” The court reasoned, “[A]ll along, again, he has
known where the crimes took place and where he was being prosecuted. And he surely knew
about a statement that he had made, whether he forgot about it or not.” The petitioner
subsequently filed a timely notice of appeal.

       A writ of error coram nobis is available to convicted defendants. T.C.A. § 40-26-
105(a) (2006). However, a writ of error coram nobis is an “extraordinary procedural
remedy” that “fills only a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d
661, 672 (Tenn. 1999) (citing Penn v. State, 670 S.W.2d 426, 428 (Ark. 1984)). “The
purpose of this remedy ‘is to bring to the attention of the [trial] court some fact unknown to
the court, which if known would have resulted in a different judgment.’” State v. Hart, 911
S.W.2d 371, 374 (Tenn. Crim. App. 1995) (quoting State ex rel. Carlson v. State, 407 S.W.2d
165, 167 (Tenn. 1966)).

      Relief by petition for writ of error coram nobis is provided for in Tennessee Code
Annotated section 40-26-105. The statute provides, in pertinent part:

       (b) The relief obtainable by this proceeding shall be confined to errors dehors
       the record and to matters that were not or could not have been litigated on the
       trial of the case, on a motion for new trial, on appeal in the nature of a writ of
       error, on writ of error, or, in a habeas corpus proceeding. 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.




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       (c) 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. . . .

T.C.A. § 40-26-105 (b), (c). In the context of a guilty plea, the petitioner requesting a writ
to issue must “present newly discovered evidence [showing] that his plea was not voluntarily
or knowingly entered.” Newsome v. State, 995 S.W.2d 129, 134 (Tenn. Crim. App. 1998);
see also Wlodarz, 2012 WL 581210, at *7 (approvingly discussing Newsome). “The
decision to grant or deny a petition for the writ of error coram nobis on the ground of
subsequently or newly discovered evidence rests within the sound discretion of the trial
court.” Hart, 911 S.W.2d at 375 (citations omitted).

       The statute of limitations for a petition for writ of error coram nobis is one year from
the date the judgment becomes final in the trial court. T.C.A. § 27-7-103; Mixon, 983
S.W.2d at 671. For the purposes of a coram nobis petition, a judgment becomes final thirty
days after the entry of the trial court’s judgment if no post-trial motions are filed or upon
entry of an order disposing of a timely post-trial motion. Mixon, 983 S.W.2d at 670 (citing
Tenn. R. App. P. 4(c); State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996)). The State
has the burden of raising the statute of limitations as an affirmative defense. Harris v. State,
301 S.W.3d 141, 144 (Tenn. 2010) (citing Harris v. State, 102 S.W.3d 587, 593 (Tenn.
2003)). The issue of whether a claim is barred by an applicable statute of limitations is a
question of law, which this court reviews de novo. Id. at 144 (citing Brown v. Erachem
Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)).

        Here, the petitioner argues, for the first time on appeal, that the discovery document
introduced at the hearing constitutes new evidence. He maintains that it proves the State
failed to inform the petitioner of the dates of the Marshall County offenses, information that
would have alerted the petitioner’s counsel to the double jeopardy problem. According to
the petitioner, this constitutes new evidence which is sufficient to support his coram nobis
petition. He makes no argument on appeal regarding the statute of limitations and whether
due process should toll it.

       The State responds that the coram nobis court properly dismissed the petition. It
asserts that the petition was barred by the statute of limitations and that no due process
concerns justify tolling the statute. The State also argues that the petitioner has not asserted
any new evidence and that constitutional claims, such as the petitioner’s double jeopardy
claim, are not cognizable in coram nobis proceedings. We agree with the State that the
coram nobis court properly dismissed the petition.

       We first consider whether the statute of limitations barred the petition. Although the
petition was filed outside the one-year statute of limitations, due process concerns may toll

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the statute to allow a late-filed petition. Workman v. State, 41 S.W.3d 100, 101 (Tenn.
2001). The Tennessee Supreme Court has explained:

       These due process considerations refer to the principle that “before a state may
       terminate a claim for failure to comply with procedural requirements such as
       statutes of limitations, due process requires that potential litigants be provided
       an opportunity for the presentation of claims at a meaningful time and in a
       meaningful manner.” Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992).
       Whether due process considerations require tolling of a statute of limitations
       is a mixed question of law and fact, which we review de novo with no
       presumption of correctness. See Vaughn v. State, 202 S.W.3d 106, 115 (Tenn.
       2006).

Harris, 301 S.W.3d at 145. In order to determine whether due process concerns require a
tolling of the statute of limitations, “a court must weigh the petitioner’s interest in obtaining
a hearing to present a later-arising ground for relief against the State’s interest in preventing
stale and groundless claims.” Id. (citing Workman, 41 S.W.3d at 103). In weighing these
interests, courts should use the following test:

       (1) determine when the limitations period would normally have begun to run;

       (2) determine whether the grounds for relief actually arose after the limitations
       period would normally have commenced; and

       (3) if the grounds are “later-arising,” determine if, under the facts of the case,
       a strict application of the limitations period would effectively deny the
       petitioner a reasonable opportunity to present the claim.

Id. (citing Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995)).

        In applying this test, we must first determine when the limitations period would
normally have begun to run. The judgments in this case were entered on April 16, 2004, and
the statute of limitations would have begun to run thirty days later on May 16. Therefore,
the one-year statute of limitations would have expired on May 16, 2005. The petitioner did
not file his petition for a writ of error coram nobis until February 17, 2011, almost six years
after the statute lapsed.

        Second, we must determine whether the grounds for relief arose after the statute of
limitations would normally have commenced. The petitioner’s grounds for relief, the alleged
double jeopardy violation, arose when he was prosecuted in this case for the Bedford County
burglaries. Furthermore, the petitioner’s police statement indicates he knew at the time of

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his arrest that the offenses were committed in both Bedford and Marshall Counties and that
he committed them as part of the same spree. Although the petitioner asserts that the
grounds for relief arose only once he became aware of the double jeopardy doctrine, this
court has previously stated that “ignorance [of the law] does not create a due process avenue
of relief.” Gerald Wayne Carter v. State, No. W2008-00652-R3-PC, 2008 WL 4922710, at
*2 (Tenn. Crim. App., at Jackson, Nov. 13, 2008); cf. Guillermo Matiaz Juan v. State, No.
03C01-9708-CR-00318, 1999 WL 76453, at *1-2 (Tenn. Crim. App., at Knoxville, Feb. 18,
1999) (holding that ignorance of law does not justify tolling the post-conviction statute of
limitations), perm. app. denied (Tenn. July 12, 1999). The petitioner’s grounds for relief,
therefore, arose before the limitations period would normally have commenced. In light of
this determination, we need not consider whether a strict application of the statute of
limitations would deny the petitioner a reasonable opportunity to present his claim. The
statute of limitations barred his petition.

        Notwithstanding our conclusion that the petition was filed outside the applicable
statute of limitations, we also agree with the State that the petition failed to assert subsequent
or newly discovered evidence, which is required for a writ of error coram nobis. See T.C.A.
§ 40-26-105(b). Instead, the petitioner asserts only in his appellate brief that newly
discovered evidence of alleged inadequacies in the State’s disclosure of his prior conviction
is sufficient to support his petition. He argues, “[T]he information revealing the criminal
episode was not produced by the State and therefore not known to defense counsel at the trial
level. This omission likely caused [the petitioner] to be sentenced again for the same crime
in another county, thus violation [sic] [the petitioner]’s Due Process protections.” The
alleged “omission” to which the petitioner refers is that the date listed on the discovery form
beside his Marshall County offense is the conviction date, July 9, 2003, rather than the
offense date, March 10-12, 2003.2 Initially, we note that the petitioner has waived this issue
for failing to include it in his petition. See State v. Turner, 919 S.W.2d 346, 356-57 (Tenn.
Crim. App. 1995) (“A party may not raise an issue for the first time in the appellate court.”).
Waiver aside, we conclude that the discovery form cannot constitute newly discovered
evidence. “To be considered ‘newly discovered,’ the evidence must have been unknown to
the defendant at the time of the proceedings giving rise to his conviction.” Wlodarz, 2012
WL 581210, at *12 (citing Harris, 301 S.W.3d at 160 (Koch., J., concurring)). The petitioner
had seen the form at the time of his guilty plea. Furthermore, the petitioner knew before he
pled guilty the dates on which he committed the offenses and would have been able to
identify any error on the discovery form. Any alleged error on the form regarding the dates
of the offenses, therefore, cannot be considered newly discovered evidence for the purposes



        2
           The judgment forms for the Marshall County offenses do not appear in the record. We rely on the
petitioner’s pro se petition for the fact that the offenses occurred on March 10-12 and that the conviction date
is July 9.

                                                      -6-
of pursuing a coram nobis petition. Accordingly, we conclude that the trial court properly
denied the petition on this basis.

        Finally, we agree with the State that the petitioner’s argument regarding double
jeopardy violations is inappropriate for a writ of error coram nobis. This alleged error could
have been litigated in the trial court before the plea and on direct appeal. As a result, it is not
an appropriate issue for a writ of error coram nobis. See T.C.A. § 40-26-105(b) (“The relief
obtainable by this proceeding shall be confined to errors dehors the record and to matters that
were not or could not have been litigated on the trial of the case, on a motion for new trial,
on appeal in the nature of a writ of error, on writ of error, or, in a habeas corpus
proceeding.”). The State further asserts that all claims based on violations of constitutional
rights, such as the instant double jeopardy claim, are not cognizable under coram nobis
proceedings because they amount to errors of law rather than errors of fact. This argument,
however, sweeps too broadly, as some constitutional violations are cognizable under a writ
of error coram nobis. See Freshwater v. State, 160 S.W.3d 548, 554-56 (Tenn. Crim. App.
2004) (holding that alleged constitutional Brady violations that were not and could not have
been litigated earlier were cognizable in a coram nobis proceeding). But see Jeffrey Scott
Miles v. State, No. 03C01-9903-CR-00103, 2000 WL 2647, at *2 (Tenn. Crim. App., at
Knoxville, Jan. 4, 2000) (holding that claims of constitutional due process error are not
cognizable under a writ of error coram nobis). Here, it is sufficient to adhere to the statutory
principle that coram nobis recognizes claims that “were not or could not have been litigated”
at an earlier proceeding. T.C.A. § 40-26-105(b). Consequently, the petition was properly
dismissed.

                                        CONCLUSION

       Upon review, we affirm the coram nobis court’s dismissal of the petition.


                                                      ___________________________________
                                                      CAMILLE R. McMULLEN, JUDGE




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