        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

               MICHAEL W. SMITH v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                  Nos. 9608877, 9608880 Arthur T. Bennett, Judge




              No. W2012-01073-CCA-R3-PC - Filed December 11, 2012


The Petitioner, Michael W. Smith, appeals the Shelby County Criminal Court’s denial of his
pro se petition for post-conviction relief. The State has filed a motion requesting that this
Court affirm the post-conviction court’s judgment pursuant to Rule 20 of the Rules of the
Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm
the judgment of the post-conviction court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which C AMILLE R. M CM ULLEN
and R OGER A. P AGE, JJ., joined.

Michael W. Smith, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Senior Counsel,
for the Appellee, State of Tennessee.

                              MEMORANDUM OPINION

        On March 18, 1997, the Petitioner entered best interest guilty pleas to two counts of
rape, two counts of aggravated burglary, and five misdemeanor offenses. See Michael Wade
Smith v. State, No. W1999-01817-CCA-R3-PC, 2000 Tenn. Crim. App. LEXIS 835 (Tenn.
Crim. App., at Jackson, Oct. 23, 2000). The Petitioner received concurrent sentences of ten
years for each rape conviction, six years for each aggravated burglary conviction, and eleven
months, twenty-nine days for each misdemeanor conviction, for an effective sentence of ten
years incarceration. The Petitioner then sought post-conviction relief. This court held that
because the second rape offense and the aggravated burglary offenses were committed while
the Petitioner was on bond for the initial charges, the plea agreement violated Tennessee
Code Annotated section 40-20-111(b), which requires that the sentence for a felony
committed while on bail be served consecutively to the sentence for the initial felony charge.
Michael Wade Smith, 2000 Tenn. Crim. App. LEXIS 835, at **6-8. This court remanded
the case to the trial court with instructions that the Petitioner be allowed to withdraw his
guilty pleas. Id. at **8-9.

       On April 29, 2003, the Petitioner entered pleas pursuant to California v. Alford, 400
U.S.25 (1970), to one count of rape and one count of attempted rape in exchange for
consecutive sentences of eight years at 100% for the rape conviction and three years at 30%
for the attempted rape conviction, for an effective sentence of eleven years incarceration.
On May 12, 2004, the Petitioner filed a petition for post-conviction relief alleging that he
received ineffective assistance of counsel and that his plea was unknowing and involuntary.
The post-conviction court denied relief, and this court affirmed the post-conviction court’s
judgment on appeal. See Michael W. Smith v. State, W2005-00246-CCA-R3-PC, 2005
Tenn. Crim. App. LEXIS 1275 (Tenn. Crim. App., at Jackson, Dec. 14, 2005), perm. app.
denied (Tenn. Apr. 24, 2006).

       The Petitioner subsequently filed a second petition for post-conviction relief. The
petition states that the Petitioner gave the petition to prison authorities for mailing on April
24, 2011, but the petition was not filed in the post-conviction court until February 2, 2012.
The Petitioner asserted that the State withheld exculpatory evidence that would have proven
his innocence. He maintained that the State withheld evidence that a document “purporting
a ‘match’ between [his] DNA and the DNA obtained from the crimes” had been falsified.
The State filed a motion to dismiss asserting that the petition was barred pursuant to
Tennessee Code Annotated section 40-30-102 as a subsequent post-conviction petition. On
April 24, 2012, the trial court entered an order granting the State’s motion and dismissing the
Petitioner’s petition. This appeal followed.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal,
we are bound by the post-conviction court’s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). The Post-Conviction Procedure Act “contemplates” only one petition
for relief, and a petition may not file more than one petition “attacking a single judgment.”
Tenn. Code Ann. § 40-30-102(c). If a previous petition is resolved on the merits by a court
of competent jurisdiction, a “subsequent petition shall be summarily dismissed.” Id.
Because the Petitioner’s first post-conviction petition was resolved on the merits by a court
of competent jurisdiction, the post-conviction court properly dismissed the Petitioner’s
subsequent petition.

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       Even if we interpret the Petitioner’s pleading as a motion to reopen the first post-
conviction petition, he is not entitled to relief. A petitioner may move to reopen the first
post-conviction petition only if the motion is based (1) on a constitutional right that was not
recognized at the time of trial, (2) on new scientific evidence establishing the petitioner’s
innocence, or (3) on a sentence enhanced based on a previous conviction that was found to
be invalid. Tenn. Code Ann. § 40-30-117(a)(1)-(3). If the motion to reopen is denied, the
petitioner shall have thirty days to file an application in this court seeking permission to
appeal. Tenn. Code Ann. § 40-30-117(c) (2011). The application shall include copies of all
documents that the parties filed in the trial court and the order denying the motion. Id.

       A notice of appeal may be treated as an application for permission to appeal if it
includes “sufficient substance that it may be effectively treated as an application for
permission to appeal.” Graham v. State, 90 S.W.3d 687, 691 (Tenn. 2002). Generally, the
application must include “the date and judgment from which the petitioner seeks review, the
issue which the petitioner seeks to raise, and the reasons why the appellate court should grant
review.” Id. When the petitioner fails to follow the statutory requirements seeking review
of a denial of a motion to reopen, this court is without jurisdiction to consider the appeal.
See John R. Green v. State, No. W2011-01637-CCA-R3-PC, 2012 Tenn. Crim. App. LEXIS
416, at *11 (Tenn. Crim. App., at Jackson, June 19, 2012).

        The notice of appeal filed by the Petitioner fails to meet all of the requirements of an
application for permission to appeal the denial of a motion to reopen. The notice does not
state the issues for review or the reasons for relief. The Petitioner failed to attach the
required documents to his notice, including the DNA report about which the Petitioner
complains. The DNA report is not otherwise included in the appellate record. We, therefore,
conclude that even if we view the Petitioner’s petition as a motion to reopen post-conviction
proceedings, the Petitioner failed to properly seek review of the post-conviction court’s
denial of the motion.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding without a jury and such judgment
or action is not a determination of guilt, and the evidence does not preponderate against the
finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that this case
satisfies the criteria of Rule 20. Accordingly, it is ordered that the State’s motion is granted.
The judgment of the post-conviction court is affirmed in accordance with Rule 20, Rules of
the Court of Criminal Appeals.




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      _________________________________
      ALAN E. GLENN, JUDGE




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