        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE


                KEVIN T. SAULTER v. STATE OF TENNESSEE

            Direct Appeal from the Criminal Court for Davidson County
                   No. 99-D-2638      Cheryl Blackburn, Judge



                 No. M2012-02373-CCA-R3-PC - Filed May 28, 2013


This matter is before the Court upon the State’s motion to affirm the judgment of the trial
court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals. The Petitioner, Kevin T. Saulter, appeals the trial court’s dismissal of his
petition for writ of error coram nobis and a motion to reconsider the denial of his petition
for post-conviction relief. Upon a review of the record, we are persuaded that the lower
court was correct that the Petitioner is not entitled to relief. This case meets the criteria
for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.
Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
           Pursuant to Rule 20, Rule of the Court of Criminal Appeals

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH
and J EFFREY S. B IVINS, JJ., joined.

Kevin T. Saulter, Talladega, Alabama, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn,
Assistant District Attorney General, for the appellee, State of Tennessee.

                              MEMORANDUM OPINION

       The record reflects that the Petitioner is currently incarcerated for several
convictions and is currently serving a sentence in a federal prison in Alabama for an
offense unrelated to the charges in this case. On September 19, 2011, the Petitioner filed
a petition for a writ of error coram nobis, requesting an expedited hearing. In that
petition, he contended that his judgment of conviction entered against him on or about
July 14, 2000, in case number 99-D-2638, was void on constitutional grounds and that it
was currently being used to enhanced his federal sentence as it qualified him as a
“habitual offender.” As a basis for granting relief, he argued that the counsel who
represented him during his guilty plea was ineffective for failing to move to dismiss the
case when the State’s material witness failed to appear at the guilty plea hearing. He
further contended that his guilty plea was not knowingly and voluntarily entered because:
(1) counsel’s assistance was ineffective; (2) the trial court did not ensure he understood
his rights; and (3) the trial court failed to address him on the record to determine whether
there was a factual basis for his plea. Based on these allegations, the Petitioner asked the
trial court to expunge his record and vacate his sentence.

       On November 17, 2011, the trial court entered an order denying the motion as
time-barred and without merit. The trial court provided a detailed explanation of the
history of the case:

              November 19, 1999, Petitioner entered his guilty plea. Pursuant to
       the guilty plea, Petitioner pled guilty to one count of aggravated assault
       (Count 1) for a sentence of 4 years as a Range 1 Offender, suspended to
       probation. The Special Conditions portion of the Judgment form states that
       conditions of probation apply and for the first year Petitioner will be on
       intensive probation. Petitioner also pled guilty to felony weapon possession
       for a 2 year sentence, suspended to probation, to be served concurrently
       with the sentence imposed for Count 1. Count 2 was retired per the plea
       agreement.

              On September 20, 2000, Petitioner came to court for a probation
       violation hearing, represented by retained counsel. This PV was retired.

              Then on November 13, 2002, Petitioner came to court for a second
       probation violation hearing: Petitioner elected to waive this hearing,
       conceding the violation. The Court sustained the probation violation and
       ordered Petitioner to serve 30 days at 100% day-for-day and then be placed
       back on probation for 3 years.

              Approximately two years later, a third probation violation warrant
       was obtained. The hearing was continued multiple times and was held on
       January 28, 2005. After Petitioner waived his hearing, [t]he Court sustained
       the probation violation, placing Petitioner’s sentence [in] to . . . effect for 5
       years as a Range 1 Offender at 30% release eligibility.



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              On September 19, 2011, Petitioner filed a writ of error coram nobis.
       In the first paragraph, Petitioner states he is seeking this Court to expunge
       and vacate his conviction and sentence because it is constitutionally void
       and is currently enhancing his federal sentence as a habitual offender.

       After thoroughly discussing the applicable law, the trial court first found that the
Petitioner’s petition for a writ of error coram nobis was not timely filed. The trial court
further found that, even if the petition had been timely filed, the Petitioner failed to state a
cognizable claim for a writ of error coram nobis. The trial court noted that because the
Petitioner was convicted pursuant to a guilty plea rather than a trial, a petition for writ of
error coram nobis was not an appropriate avenue of relief in the Petitioner’s case.
Second, the Petitioner had not identified any newly discovered evidence to establish his
entitlement to relief. Instead, the petition centered around a post-conviction claim, which
was untimely pursuant to the Post-Conviction Procedure Act in that more than ten years
had passed since the Petitioner originally entered his plea and more than six years had
passed since his community corrections sentence was placed into effect after his third
probation violation warrant.

       On December 27, 2011, the Petitioner filed a motion to reconsider the denial of his
request for coram nobis relief, arguing that the trial court overlooked the Petitioner’s
argument of “actual innocence.”

       On February 12, 2012, the coram nobis court denied the Petitioner’s motion to
reconsider.

       On March 30, 2012, the Petitioner filed an untimely notice of appeal.

                                         II. Analysis

        On appeal, the Petitioner contends due process requires that he be permitted to
litigate his claims of actual innocence. He cursorily asserts that he “was not guilty of
‘Aggravated Assault’ and that the conviction should not be left on the books to be used
against him.” He states that he “never even ‘intended’ to assault anyone in any way, he
just simply fired warning shots in the general direction of the vehicle that was being used
as a weapon against him at his own residence, after he requested on numerous occasions
that the attacker leave.” He contends that the statute of limitations should be tolled based
upon equitable considerations, considering that his aggravated assault conviction is being
used to enhance his federal sentence. The State counters that the coram nobis court
properly dismissed the petition because the petition was untimely filed and lacked merit
as a petition for writ of error coram nobis and was untimely as a petition for post-
conviction relief. The State further notes that the Petitioner failed to timely appeal. The
State asks this Court to affirm the lower court’s judgment pursuant to Rule 20 of the
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Rules of the Court of Criminal Appeals.

       Tennessee Code Annotated section 40-26-105 (2012) provides:

               There is hereby made available to convicted defendants in criminal
       cases a proceeding in the nature of a writ of error coram nobis, to be
       governed by the same rules and procedure applicable to the writ of error
       coram nobis in civil cases, except insofar as inconsistent herewith . . . .
       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 are litigated at the trial if the judge determines that such
       evidence may have resulted in a different judgment, had it been presented at
       trial.

       It is well-established that the 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). Generally, a decision whether to grant a writ
rests within the sound discretion of the coram nobis court. See State v. Hart, 991 S.W.2d
371, 375 (Tenn. Crim. App. 1995). We, therefore, review for abuse of discretion. See
State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

        A petition for a writ of error coram nobis must be filed within one year of the
judgment becoming final in the trial court. T.C.A. § 27-7-103. This statute of limitations
“is computed from the date the judgment of the trial court becomes final, either thirty
days after its entry in the trial court if no post-trial motions are filed or upon entry of an
order disposing of a timely filed post-trial motion.” Harris v. State, 301 S.W.3d 141, 144
(Tenn. 2010); see Mixon, 983 S.W.2d at 670 (“[W]e reject the contention . . . that the
statute does not begin to run until the conclusion of the appeal as of right proceedings.”)).
In the present case, the judgment became final in August of 2000. The Petitioner did not
file a petition for writ of error coram nobis until September 11, 2011, almost eleven years
later.

        The one-year statute of limitations for a petition for writ of error coram nobis may
be tolled on due process grounds if a petition seeks relief based upon newly discovered
evidence of actual innocence. Harris, 301 S.W.3d at 145. In determining whether the
statute should be tolled, the court must balance the petitioner’s interest in having a
hearing with the State’s interest in preventing a claim that is stale and groundless. Id.
Generally, “before a state may terminate a claim for failure to comply with . . . 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). The Burford rule requires three steps:
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       (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.

Sands v. State, 903 S.W.2d 299, 301 (Tenn. 1995).

        The Petitioner contends that he is entitled to coram nobis relief because he “never
even ‘intended’ to assault anyone in any way, he just simply fired warning shots in the
general direction of the vehicle that was being used as a weapon against him at his own
residence, after he requested on numerous occasions that the attacker leave.” He notes
that his trial counsel was ineffective. We conclude that the Petitioner has failed to
establish that the application of the statute of limitations to bar his claim prevents him
from having his claim heard in a meaningful time or in a meaningful manner. We
conclude that the principles of due process do not require the tolling of the statute of
limitations.

       We further conclude that the Petitioner’s claims regarding ineffective assistance of
counsel are not timely. See T.C.A. § 40-30-102 (2012) (stating an incarcerated individual
must file a petition for post-conviction relief “within one (1) year of the date of the final
action of the highest state appellate court to which an appeal is taken or, if no appeal is
taken, within one (1) year of the date on which the judgment became final.”).

      Upon due consideration of the pleadings, the record, and the applicable law, this
Court concludes that the petition was properly dismissed. Accordingly, the State’s
motion is granted. The judgment of the coram nobis court is affirmed in accordance with
Rule 20, Rule of the Court of Criminal Appeals.

                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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