        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs April 29, 2009

               STEPHEN WLODARZ v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Hawkins County
                     No. 07CR0470    John F. Dugger, Jr., Judge




                   No. E2008-02179-CCA-R3-CO -Filed May 19, 2010


After entering “best interest” guilty pleas in order to avoid a potential death penalty
conviction, Petitioner, Stephen Wlodarz, filed a petition for a writ of error coram nobis. The
Hawkins County Criminal Court denied the petition. On appeal, Petitioner asserts that the
trial court erred in finding there was no newly discovered evidence and that Petitioner failed
to demonstrate that his pleas were not knowingly and voluntarily entered. We affirm.


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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON ,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

William Louis Ricker, Greeneville, Tennessee, for the appellant, Stephen Wlodarz.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; C. Berkeley Bell, Jr., District Attorney General; and J. Douglas Godbee,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                       I. Background

       Facing a capital murder prosecution for a July 2000 shoot-out with law enforcement
officers, Petitioner entered “best interest” pleas under North Carolina v. Alford, 400 U.S. 25
(1970). On September 18, 2001, Petitioner pled guilty to charges of first degree premeditated
murder, attempted first degree premeditated murder, two counts of aggravated assault, and
one count of manufacturing a Schedule VI controlled substance. He was sentenced to a total
effective sentence of life without parole. Less than a year later, he filed a petition for post-
conviction relief, which was denied. This court affirmed that decision. Steven Bernard
Wlodarz v. State, No. E2002-02798-CCA-R3-PC, 2003 WL 22868267 (Tenn. Crim. App.
at Knoxville, Dec. 3, 2003) (“Wlodarz I”). Our opinion summarized the events leading to
Petitioner’s prosecution:

       [T]he record reflects that on July 13, 2000, police officers were dispatched to
       the scene of a home burglary on Short Road near Rogersville, Tennessee.
       When they arrived, a witness gave a description of the suspect, which matched
       the petitioner. Officers went to the petitioner’s home and confronted him, and
       the petitioner pulled out a shotgun and ordered the officers off his property.
       The officers left the scene; obtained arrest warrants against the petitioner for
       attempted aggravated burglary, vandalism, and two counts of aggravated
       assault; and returned to the petitioner’s home. The petitioner barricaded
       himself inside, and a tactical unit was called. After several hours, the unit tried
       to force the petitioner out of his house by shooting tear gas canisters into it.
       During the melee, the victim was shot once in the head.

Id. at *1.

        On December 17, 2007, Petitioner filed the present petition for a writ of error coram
nobis, alleging that the State deceived him into believing it had sent ballistic evidence to the
Federal Bureau of Investigation (FBI) for analysis. He claimed that the State did not actually
send the evidence and that the State’s deception caused him to enter a guilty plea. According
to Petitioner, shortly after he filed his coram nobis petition, the FBI discovered documents
showing that the State did indeed send the ballistic evidence and that the tests were
conducted before his guilty plea in 2001. The tests concluded that the bullet fragments
believed to have killed the victim could not be positively matched to the gun recovered from
Petitioner’s house. Therefore, at the coram nobis hearing, Petitioner’s argument changed.
He argued that the test results were dated prior to his guilty pleas, March 19, 2001, and June
28, 2001, respectively, and that he was deceived into pleading guilty by the State’s
withholding exculpatory evidence from him. Petitioner testified that he had not seen these
documents prior to his pleas and that he only became aware of them in February 2008.

       The reports were entered as exhibits during Petitioner’s testimony at the coram nobis
hearing. According to Petitioner’s interpretation of the documents, the fragments that killed
the victim did not match the bullet from the weapon Petitioner fired during the shoot-out.
Specifically, the documents include the results of Inductively Coupled Plasma-Atomic
Emission Spectroscopy tests conducted on various pieces of evidence recovered from the
scene. Most of the pieces of evidence were lead bullet fragments. The record indicates that
one test demonstrated that the lead bullet fragments recovered from the victim’s body “differ

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in composition” from the lead core of the bullet loaded into a gun recovered from Petitioner’s
house. The other test concluded that the fragments recovered from the victim were
“analytically indistinguishable to the lead portion of the bullet loaded” in a weapon found in
Petitioner’s truck.

       Petitioner was the only witness to attempt to interpret the documents. The State
argued that the exhibit sticker on the March 19, 2001 report indicated the document was in
the exhibit book that all parties possessed prior to Petitioner’s pleas.

        At the conclusion of the hearing, the coram nobis court denied the petition, finding
that the evidence to which Petitioner pointed was not “subsequently or newly discovered”
within the meaning of the coram nobis statute, Tenn. Code Ann. § 40-26-105(b), and that,
regardless, it did not undermine the legitimacy of his Alford pleas. In its order, the coram
nobis court first concluded that the petition was untimely under the statute of limitations.
Nevertheless, it found that due process required that the statute of limitations be tolled so the
court could decide the merits. Regardless, the court found that Petitioner had not
demonstrated the existence of new evidence that may have led to a different result.
Specifically, the coram nobis court noted that Petitioner’s trial counsel filed a motion on July
24, 2001, seeking to have tests conducted on the bullet fragments found at the scene. The
motion states:

               There have been no conclusive matches between bullet fragments found
       at the scene of this alleged offense and those found in the body of [the victim].
       However, fragments have been found.

              As the court knows, several fragments have been sent to the FBI in
       order to attempt to find matches between the two groups.

              On July 18, 2001, the defense participated in a physical examination of
       most of the evidence in this case. Part of the evidence displayed included
       bullet fragments taken from the kitchen of [Petitioner’s] home. These
       fragments have not been tested.

               Obviously, the state’s theory is that the fatal shots to [the victim] were
       made by a weapon fired by [Petitioner]. Yet, given the fact that no conclusive
       comparisons have been made of bullet fragments, the defense submits that
       those fragments found at the scene should be compared to the fragments which
       entered [the victim’s] body. This is, potentially, extremely exculpatory
       evidence. That is, the fragments found inside the home were not fired by
       [Petitioner]. [Petitioner’s] concern is based upon several issues. Most

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       importantly, [Petitioner] would show the court that [t]he physical evidence in
       this case clearly demonstrates that a barrage of shots were fired in and around
       [Petitioner’s] home during this episode. Most of the shots fired were by law
       enforcement officers.

             Wherefore, [Petitioner] request[s] this Court to order that all fragments
       recovered in this case be tested against those found in the body of [the victim].

The coram nobis court noted that the trial court granted Petitioner’s motion on July 27, 2001,
and ordered the tests. The coram nobis court explained that the motion and order
demonstrated that the bullet fragment issue “was clearly known by the defense,” and, given
Petitioner’s high level of intelligence and understanding of the matter, he “would clearly
understand . . . this particular motion.” Thus, while the coram nobis court gave very little
weight to the exhibit sticker affixed to one of the reports, it gave “great weight” to the
motion. That motion, the coram nobis court noted, clearly demonstrated Petitioner knew that
no bullet fragment had been conclusively matched to his weapon. Consequently, the coram
nobis court found that the two reports were not newly discovered evidence within the
meaning of the coram nobis statute.

         In addition, the coram nobis court held that, even if the reports were new evidence,
it was not persuaded that the report invalidated Petitioner’s pleas. It reasoned that, because
Petitioner entered best interest pleas, he did not necessarily agree with all the evidence, but
he still accepted guilt in exchange for avoiding a potential death sentence. Given Petitioner’s
intelligence and awareness of the issues, the coram nobis court concluded, the additional
evidence did not show that his pleas were not knowingly and voluntarily entered. This
appeal followed.

                                        II. Analysis

        The writ of error coram nobis is a post-conviction mechanism that has a long history
in the common law and the State of Tennessee, see, e.g., State v. Vasques, 221 S.W.3d 514,
524-26 (Tenn. 2007), and is now codified in Tennessee Code Annotated section 40-26-105.
The writ “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). By its terms, the statute
is “confined” to cases in which there are errors outside the record and to matters that were
not previously litigated. Tenn. Code Ann. § 40-26-105(b). Where, as here, the case involves
a matter that has been previously litigated, the writ will not lie unless the Petitioner
demonstrates that he was without fault in failing to present the evidence and that the evidence
“may have resulted in a different judgment.” Id.



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       Our supreme court recently outlined the procedure that a trial court considering a
petition for a writ of error coram nobis is to follow:

       [T]he trial judge must first consider the newly discovered evidence and be
       reasonably well satisfied with its veracity. If the defendant is without fault in
       the sense that the exercise of reasonable diligence would not have led to a
       timely discovery of the new information, the trial judge must then consider
       both the evidence at trial and that offered at the coram nobis proceeding in
       order to determine whether the new evidence may have led to a different
       result.

Vasques, 221 S.W.3d at 527 (quotation marks and emphasis omitted). In determining
whether the new information may have led to a different result, the question before the court
is “whether a reasonable basis exists for concluding that had the evidence been presented at
trial, the result of the proceeding might have been different.” Id. (quotation marks omitted).
However, there are limits to the types of evidence that may warrant the issuance of a writ of
error coram nobis. See, e.g., State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).
Aside from the fact that the evidence must be both admissible and material to the issues
raised in the petition,

       [a]s a general rule, subsequently or newly discovered evidence which is simply
       cumulative to other evidence in the record or serves no other purpose than to
       contradict or impeach the evidence adduced during the course of the trial will
       not justify the granting of a petition . . . when the evidence . . . would not have
       resulted in a different judgment.

Id. (citations omitted).

       In the context of a guilty plea,“in order for a writ to issue, the appellant [has] to
present newly discovered evidence which would show that his plea was not voluntarily or
knowingly entered.” Newsome v. State, 995 S.W.2d 129, 134. (Tenn. Crim. App. 1998).
Thus, the coram nobis court must consider the impact of the newly discovered evidence on
the validity of the petitioner’s plea.

       Generally, a decision whether to grant a writ rests within the sound discretion of the
coram nobis court. See Hart, 911 S.W.2d at 375. We therefore review for abuse of
discretion. See State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

       The record reflects that the coram nobis court did not abuse its discretion in denying
the petition. Petitioner has failed to point to “new” evidence within the meaning of the

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coram nobis statute. As noted above, the writ is available upon the showing of errors outside
of the record or “matters that were not or could not have been litigated on the trial of the
case.” Tenn. Code Ann. § 40-26-105(b) (emphasis added); see also Workman, 111 S.W.3d
at 19. The record is clear that test results were, or at least could have been, litigated at trial.
The defense knew about the inconclusive test results prior to Petitioner’s plea.

        Moreover, the record reflects that the Petitioner raised similar complaints in his post-
conviction petition. Trial counsel testified at the post-conviction hearing that he had the
reports in his possession before Petitioner changed his pleas, although it was possible that
one report was still outstanding. Trial counsel specifically testified that the reports he had
prior to Petitioner’s pleas indicated that “the fragments matched another gun found in the
petitioner’s house that was not fired by the petitioner.” Wlodarz I, No. E2002-02798-CCA-
R3-PC, 2003 WL 22868267, at *3. Trial counsel’s testimony was corroborated by the exhibit
sticker on the March 19, 2001, report. The testimony was also corroborated by the July 24,
2001, motion, which the coram nobis court gave “great weight.” In that motion, the defense
specifically addressed the inconclusive test results that the defense already had and
specifically requested “that all fragments recovered in this case be tested against those found
in the body of [the victim].” Such evidence, the motion noted, could be “extremely
exculpatory evidence.” Because the motion was granted, to the extent the defense did not
already have these specific reports in hand, it knew that more testing would be forthcoming.
Petitioner argues that the motion shows that trial counsel was “obviously” unaware of the
two “new” reports. However, that conclusion is rebutted by trial counsel’s post-conviction
testimony that the reports he possessed at the time matched the fatal shot to a different gun.

        In short, the motion demonstrates that the Petitioner was well-aware of the
inconclusive test results prior to his pleas, and the defense was, as trial counsel testified at
the post-conviction hearing, prepared to cross-examine the State’s witnesses about this matter
“extensively.” Indeed, the defense was aware of the report suggesting that a different gun
fired the fatal shot. These reports are therefore not “new” within the meaning of the coram
nobis statute. See Jerry Britt v. State, No. E2004-01276-CCA-R3-PC, 2004 WL 2941154,
at *4 (Tenn. Crim. App. at Knoxville, Dec. 20, 2004) (concluding that awareness of
conflicting evidence at the time of plea means that later evidence confirming the conflict is
not “new” for coram nobis purposes); see also Reginol L. Waters v. State, No. M2006-
01687-CCA-R3-CO, 2008 WL 366148, at *5 (Tenn. Crim. App. at Nashville, Jan. 16, 2008)
(concluding that the errors were not “new” because they were both known and subject to
prior litigation).

        Petitioner testified that he did not see the reports until February 2008, and the coram
nobis court accepted that testimony as true. Regardless, that was the basis for Petitioner’s
earlier post-conviction petition. See Wlodarz I, No. E2002-02798-CCA-R3-PC, 2003 WL

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22868267, at *4. Petitioner was unable to meet the burden for his post-conviction petition,
and we will not re-litigate that issue now.

                                      III. Conclusion

        Based upon review of the record and the parties’ briefs, we affirm the judgment of the
trial court.


                                                   ___________________________________
                                                   NORMA McGEE OGLE, JUDGE




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