        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       July 23, 2014 Session

       STATE OF TENNESSEE v. THOMAS EDWARD KOTEWA
                 Appeal from the Criminal Court for Anderson County
                    No. B2C00067        Donald R. Elledge, Judge




          No. E2014-00430-CCA-R3-ENC - FILED - SEPTEMBER 11, 2014




J AMES C URWOOD W ITT, J R., J., concurring.

              I write separately in concurring with the majority because some aspects of the
case are worth explaining futher.

               In assessing whether the petitioner has framed a case for a due process tolling
of the coram nobis statute of limitations, we see that the petition, even as amended by
counsel, does not specify when and by what means the petitioner discovered the claim of
affiant John D. Carter that, during the investigation of the homicide, Mr. Carter gave a
statement to police that would have supported a claim of self-defense. Thus, the state of the
record does not enable this court to discern whether the application of the statute of
limitations afforded the petitioner a “‘reasonable opportunity to assert a claim in a
meaningful time and manner,’” Workman v. State, 41 S.W.3d 100, 102 (Tenn. 2001) (quoting
Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)), or if it did not, whether the petitioner’s
“‘reasonable opportunity after the expiration of the limitations period to present his claim in
a meaningful time and manner’” expired before he filed the petition, Workman, 41 S.W.3d
at 103-04 (quoting Williams v. State, 44 S.W.3d 464 (Tenn. 2001)). In other words, we
cannot tell, despite the petitioner’s conclusory allegations, whether the delay of
approximately five years in filing a timely petition for writ of error coram nobis is essentially
reasonable.

               I point out that, were the facts more fully exposed, the demarcation of a
meaningful time and manner for filing the claim might well be informed by the petitioner’s
apparently immediate awareness of John D. Carter’s proximity to the shooting. Mr. Carter’s
affidavit says that a number of named individuals including the petitioner and the victim
were in Mr. Carter’s apartment immediately prior to the shooting. In Mr. Carter’s account,
the petitioner left the apartment, and the victim and Thurman Bates followed them after Mr.
Bates expressed his intent to rob the petitioner. The shooting occurred in short order outside
Mr. Carter’s apartment although Mr. Carter did not actually witness the shooting. Based
upon this account, the petitioner must have known from the outset that Mr. Carter witnessed
events that preceded the shooting; yet, we cannot assess the use of that knowledge.

                In reviewing an issue of whether principles of due process require the
circumvention of an otherwise applicable statute of limitations, our supreme court has
instructed the courts to weigh “both the governmental interests involved and the private
interests affected by the official action.” Burford v. State, 845 S.W.2d 204, 207 (Tenn.1992).
Clearly the State has an interest in settling criminal convictions, and a defendant has an
interest in his conviction’s compliance with principles of due process. Now, in the present
case, although the petitioner was convicted of a homicide, the conviction resulted from a
guilty plea. Even though our supreme court has told the courts that the coram nobis statute
may apply to attack guilty-pleaded convictions, see Wlodarz v. State, 361 S.W.3d 490 (Tenn.
2012), I believe that the weighing calculus shifts somewhat in favor of the State in most
guilty-pleaded convictions. In many of these situations, the State may forever relinquish a
contemporary readiness to go to trial in exchange for the finality of a conviction. Based upon
the State’s readiness to convict, a defendant often eschews trial as a means of lessening his
or her exposure to punishment. All in all, the present petitioner’s interest in avoiding the bar
of the statute of limitations is not as compelling as that of others the courts have reviewed.




                                                    JAMES CURWOOD WITT, JR., JUDGE




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