        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs October 9, 2012

                ROGER T. JOHNSON v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                    No. 94-B-1113    J. Randall Wyatt, Jr., Judge


               No. M2012-00845-CCA-R3-CO - Filed February 14, 2013


The petitioner, Roger T. Johnson, appeals the Davidson County Criminal Court’s summary
dismissal of his pro se petition for a writ of error coram nobis. The petitioner maintains that
the dismissal was error because newly discovered evidence reveals that his guilty pleas were
the result of fraud; therefore, his pleas were not knowingly and voluntarily entered. Upon
review, we affirm the judgment of the coram nobis court.

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 ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Roger T. Johnson, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Lacy Wilber, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                   I. Factual Background

       On December 7, 1994, the petitioner pled guilty to first degree murder and second
degree murder based upon the 1994 deaths of Patrice Phelps and her unborn child. The
petitioner received consecutive sentences of life imprisonment and thirty years, respectively.
Subsequently, the thirty-year sentence for second degree murder was modified to twenty-five
years and eight months.

       Thereafter, the petitioner filed a petition for post-conviction relief, alleging ineffective
assistance of counsel. The post-conviction court denied the petition, and, on appeal, this
court affirmed the denial. Roger Terry Johnson v. State, No. 01C01-9705-CR-00172, 1998
WL 458101, at *1 (Tenn. Crim. App. at Nashville, Aug. 7, 1998).

       Subsequently, the petitioner repeatedly pursued habeas corpus relief, filing four
petitions for a writ of habeas corpus. First, on June 18, 2002, the petitioner filed a pro se
petition, alleging that his plea agreement was breached by the trial court’s amendment of the
judgment, rendering his conviction void. See Roger T. Johnson v. State, No. M2002-02902-
CCA-R3-CO, 2004 WL 443971, at *1 (Tenn. Crim. App. at Nashville, Mar. 5, 2004). The
habeas corpus court denied the petition, and, on appeal, this court affirmed the denial
pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Id.

        The petitioner filed his second habeas corpus petition in March 2006, raising
essentially the same grounds. The petition was dismissed, and no appeal was pursued from
that dismissal. See Roger T. Johnson v. Wayne Brandon, Warden, No. M2007-00182-CCA-
R3-HC, 2007 WL 3275274, at *1 (Tenn. Crim. App. at Nashville, Nov. 6, 2007).

        In July 2006, the petitioner filed a third habeas corpus petition, once again raising
issues regarding the trial court’s amendment of the judgment of conviction. Id. The habeas
corpus court dismissed the petition for failure to state a cognizable claim for habeas corpus
relief, and, on appeal, this court affirmed the dismissal. Id. at *5.

       In his fourth habeas corpus petition, the petitioner maintained that the trial court
exceeded its jurisdiction by amending the judgment and imposing a sentence that was not
provided for in the plea agreement. See Roger T. Johnson v. Ricky Bell, Warden, No.
M2011-00945-CCA-R3-HC, 2012 WL 683105, at *5 (Tenn. Crim. App. at Nashville, Feb.
27, 2012). The habeas corpus court dismissed the petition, and this court affirmed the
decision on direct appeal, concluding that the issues raised by the petitioner had been
previously determined. Id.

       Thereafter, on February 21, 2012, the petitioner filed the instant petition for a writ of
error coram nobis. The petitioner averred that on February 16, 2011, he received
correspondence from the “Director of Clinical Programs and professor of Law, The
University of Tennessee College of Law, Innocence and Wrongful Convictions Clinic,”
which contained “newly discovered exculpatory evidence.” He contended that the new
evidence was a guilty plea petition, bearing the signatures of only the petitioner and counsel.
The petitioner asserted that this petition was not the same petition reviewed with the
petitioner in court during the guilty plea hearing. The petitioner maintained that if he had
known that the petition “was not the petition canvassed in open court,” he would have
objected and proceeded to trial.

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         Attached to the coram nobis petition was a February 11, 2011 letter from Benjamin
Barton, the Director of Clinical Programs and a professor at the University of Tennessee
College of Law. In the letter, Barton stated that the petitioner had previously requested that
the Tennessee Innocence Project (TIP) investigate his case. Barton informed the petitioner
that the TIP was no longer in operation and that the Innocence Clinic at the College of Law
could not accept his case. The letter reflected that Barton had enclosed the petitioner’s
“materials.” Among the enclosed materials was a plea agreement dated December 7, 1994,
stating that the petitioner was pleading guilty to first degree murder and receiving a sentence
of life imprisonment. The agreement further stated that the petitioner was pleading guilty to
second degree murder and receiving a Range II sentence of 25.8 years, which was the
sentence ultimately imposed by the trial court. The agreement was signed by the petitioner
and his counsel.

        The coram nobis court dismissed the petition without appointing counsel or
conducting an evidentiary hearing. The court found that the petition was not filed within the
statute of limitations period for coram nobis claims. The court stated that even if due process
required tolling, the petition was without merit. The court noted that the petitioner
acknowledged that he signed the document and was aware of its existence. Further, the court
held that the evidence was not exculpatory in that it did not prove the petitioner’s innocence
of the crimes, and, in fact, it was inculpatory because was an admission of the petitioner’s
guilt.

        On March 22, 2012, the petitioner filed a motion, requesting that the court reconsider
its decision. On April 4, the court issued an order, denying the motion.

       On appeal, the petitioner challenges the denial of his petition for a writ of error coram
nobis. He maintains that the “newly discovered” plea agreement establishes that his plea was
induced by fraud, arguing that the sentence announced in open court was not the same as the
sentence he agreed to in the “newly discovered” plea agreement.

                                         II. Analysis

       Initially, we will address the coram nobis court’s holding that the petition was filed
outside the one-year statute of limitation. Tenn. Code Ann. § 27-7-103. The limitations
period began to run thirty days after the entry of his guilty plea in 1994. See State v.
Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996). Therefore, the limitations period expired
long before the petitioner filed his petition for writ of error coram nobis.

       Regardless, we note that 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.

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Vasques, 221 S.W.3d 514, 524-26 (Tenn. 2007). It is now codified in Tennessee Code
Annotated section 40-26-105(a) and (b), which 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 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 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 errors exist outside the record and to matters that were
not previously litigated. Tenn. Code Ann. § 40-26-105(b). Where 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.

        Our supreme court has outlined the procedure that a coram nobis 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. 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. (quoting State v. Roberto Vasques, No.
M2004-00166-CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn. Crim. App. at Nashville, Oct.

                                               -4-
7, 2005)). However, there are limits to the types of evidence that may warrant the issuance
of a writ of error coram nobis. See 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); see
also Wlodarz v. State, 361 S.W.3d 490, 501 (Tenn. 2012). Thus, the coram nobis court must
consider the impact of the newly discovered evidence on the validity of the petitioner’s plea.
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.

        As the coram nobis court found, the petitioner failed to provide any new evidence of
actual innocence within the meaning of the coram nobis statute. Instead, he provided a plea
agreement dated December 7, 1994, which acknowledged his guilt and bore his signature,
indicating his awareness of the evidence years before he filed the petition for a writ of error
coram nobis. Moreover, the petitioner has exhaustively litigated his claim that the trial court
erred by amending the judgment of conviction to reflect a Range II sentence of 25.8 years
following the entry of his guilty pleas. This court has repeatedly concluded that the trial court
had jurisdiction to amend the judgment and that the petitioner’s claim was without merit. See
Roger T. Johnson, No. M2011-00945-CCA-R3-HC, 2012 WL 683105, at *5; Roger T.
Johnson, No. M2007-00182-CCA-R3-HC, 2007 WL 3275274, at *5. Accordingly, we
conclude that the coram nobis court did not abuse its discretion in dismissing the petition.




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                                     III. Conclusion

      In sum, we conclude that the coram nobis court did not er by dismissing the petition.
The judgment of the coram nobis court is affirmed.


                                                  _________________________________
                                                  NORMA McGEE OGLE, JUDGE




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