        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 12, 2015

          CHARLES WAYNE DALTON v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Lincoln County
                    No. S0800040    Forest A. Durard, Jr., Judge



                No. M2014-02156-CCA-R3-ECN – Filed May 5, 2016



The Petitioner, Charles Wayne Dalton, filed a petition for writ of error coram nobis,
seeking relief from his convictions of two counts of especially aggravated kidnapping and
two counts of aggravated kidnapping. The Petitioner contended that he entered guilty
pleas and forfeited his right to appeal without knowing that he would be required to be on
the sexual offender registry for life. The trial court denied relief, and the Petitioner
appeals. Upon review, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. CAMILLE R. MCMULLEN, J., filed a concurring opinion.

Melissa L. Thomas, Fayetteville, Tennessee, for the Appellant, Charles Wayne Dalton.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Robert J. Carter, District Attorney General; and Ann L. Filer, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

      This court previously set out the factual background of this case as follows:

                    The indictment against [the Petitioner] included
             fourteen counts of theft of property valued at $1,000 or more
             but less than $10,000, eight counts of theft of property valued
               at $500 or more but less than $1,000, eleven counts of
               aggravated burglary, two counts of evading arrest, two counts
               of aggravated kidnapping, two counts of especially
               aggravated kidnapping, one count of vandalism, one count of
               reckless endangerment, one count of driving with a suspended
               license, and one count of aggravated assault. The trial court
               severed counts thirty-one through forty-three from the
               remaining counts, and a jury convicted petitioner of those
               thirteen counts. The counts for which a jury convicted [the
               Petitioner] included vandalism, evading arrest, reckless
               endangerment, driving on a suspended license, aggravated
               assault, aggravated kidnapping, and especially aggravated
               kidnapping. [The] Petitioner was also convicted by a jury of
               one count of aggravated burglary and one count of theft.

                      The trial court set [the Petitioner‟s] sentencing hearing
               on the counts that were tried for May 5, 2009. On the day of
               the sentencing hearing, [the Petitioner] and the State entered
               an agreement by which [the Petitioner] agreed to plead guilty
               to the thirty remaining counts and receive a total effective
               sentence of twenty-five years at 100% for all forty-three
               counts. As part of the agreement, [the Petitioner] waived his
               right to appeal his conviction for counts thirty-one through
               forty-three.

Charles Wayne Dalton v. State, No. M2011-00949-CCA-R3-PC, 2012 WL 1591825, at
*1 (Tenn. Crim. App. at Nashville, May 4, 2012).

        Subsequently, on April 21, 2010, the Petitioner filed a petition for post-conviction
relief, alleging “that trial counsel was ineffective for not properly explaining all of the
rights that [the] Petitioner waived as a result of the plea agreement.” Id. On March 18,
2011, the post-conviction court denied the petition, and on appeal, this court affirmed the
denial. Id.

       Thereafter, on June 25, 2013, the Petitioner filed a petition for writ of error coram
nobis, asserting that when he entered his guilty pleas, he did not know that he would be
required to register as a sexual offender as a result of his convictions.1 The Petitioner

1
  Tennessee Code Annotated section 40-39-202(24) (2006) provides that a “[v]iolent sexual offender” is a
person who has been convicted of a violent sexual offense as defined in subdivision (25). Subdivision
(25) provides that aggravated kidnapping where the victim is a minor and especially aggravated
kidnapping where the victim is a minor are “[v]iolent sexual offense[s].” Tenn. Code Ann. ' 40-39-
202(25)(H), (I) (2006). Tennessee Code Annotated section 40-39-203 (2006) provides, generally, the
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acknowledged that his petition was not timely but maintained that due process required
that the statute of limitation be tolled because of newly discovered evidence. He
contended that he found out he would have to register as a sexual offender when he was
approached on June 26, 2012, to provide information for the registry. On September 13,
2013, the State filed a response, contending that the petition should be denied as being
time-barred.

       On January 21, 2014, the trial court entered an agreed order. The order stated that
the petition for writ of error coram nobis would be treated as a motion to amend the
judgment pursuant to Tennessee Rule of Criminal Procedure 36. The agreed order stated

                   [t]hat the State of Tennessee and [the] Petitioner agree that
                   the Petitioner, although he pled gulty to two counts of
                   Aggravated Kidnapping in Counts numbered 37 and 38 . . .
                   and two counts of Especially Aggravated Kidnapping . . . ,
                   [he] should not be placed on the Tennessee Sex Offender
                   Registry for those offenses, and for the [Petitioner] to be
                   placed on the Tennessee Sex Offender Registry is a mistake
                   with respect to Rule 36 of the [Tennessee Rules of Criminal
                   Procedure]. The Petitioner did not commit any sort of sexual
                   offensive behavior in relation to [the foregoing offenses].

The agreed order provided that the Petitioner would be removed from the sexual offender
registry.

       On February 27, 2014, the State filed a petition to vacate the agreed order,
contending that the parties did not have the authority to agree to remove the Petitioner
from the sexual offender registry. On March 25, 2014, the trial court entered an order
vacating the January 21, 2014 order.

       Thereafter, the Petitioner filed a brief in support of his petition for writ of error
coram nobis, reiterating the grounds for relief alleged in his petition. The State filed a
brief in opposition, stating that the writ of error coram nobis was not the appropriate
mechanism for the relief requested and that, even if coram nobis relief could be granted,
the petition was filed more than one year after the judgment became final and was
therefore barred by the statute of limitations.

      The record reflects that the trial court held a hearing on the matter on September 8,
2014.2 The same day, the court issued an order in which it found that the Petitioner was

requirements of a sexual offender with respect to the registry.
2
    The appellate record does not contain a transcript of this hearing.
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convicted by a jury of the offenses that triggered the need to register as a sexual offender,
namely two counts of especially aggravated kidnapping involving minors. The court
further found that the registry requirement was “not evidence and would not have
produced any different result at trial.” The court further found that none of the offenses
to which the Petitioner pled guilty required that he register as a sexual offender. The
court stated:

              The [Petitioner] is not required to be on Community
              Supervision for Life and, therefore, the failure of the trial
              court, assuming there was a duty to do so under these facts, to
              advise the [Petitioner] of the [sexual offender registry] was
              not a direct and punitive consequence of his plea which
              would warrant the same being set aside.

The court cited Ward v. State, 315 S.W.3d 461, 472 (Tenn. 2010), which states that
“while the registration requirement is undoubtedly a definite, immediate, and largely
automatic consequence of a conviction of a sexual offense or violent sexual offense, it
does not have an effect on the length, manner, or service of the defendant‟s punishment.”
Finally, the court found that the Petitioner could have presented his claim during the post-
conviction proceedings but did not. Based upon the foregoing, the trial court denied the
petition.

       On September 9, 2014, the parties entered a stipulation to the facts as recounted in
this court‟s opinion regarding the post-conviction proceedings. Additionally, the parties
stipulated as follows:

              [1] That at the time the [P]etitioner entered his agreement
              with the State before the Court on May 5, 2009, the Court, the
              State nor [the P]etitioner‟s counsel did make or previously
              make any mention to [the Petitioner] of his requirement to
              register as a violent sex offender for life as required by his
              convictions for two counts of especially aggravated
              kidnapping and two counts of aggravated kidnapping,
              pursuant to T.C.A. ' 40-39-202(25)(H)[,](I) and ' 40-39-
              207(f)(1)(B).

              [2] The State does not dispute that [the Petitioner] had no
              knowledge at the time of the plea agreement of the
              requirement to be on the violent sex offender registry.

              [3] The State does not dispute that the [Petitioner] remained
              unaware of the violent sex offender requirement until June
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               26, 2012, when Tennessee Department of Corrections
               personnel approached him to gain information for the violent
               sex offender registry, that his convictions for two counts of
               especially aggravated kidnapping and two counts of
               aggravated kidnapping, required him to register for life as a
               violent sex offender.

                                          II. Analysis

       The writ of error coram nobis, which originated in common law five centuries ago,
“„allowed a trial court to reopen and correct its judgment upon discovery of a substantial
factual error not appearing in the record which, if known at the time of judgment, would
have prevented the judgment from being pronounced.‟” State v. Wlodarz,3 361 S.W.3d
490, 496-97 (Tenn. 2012) (quoting State v. Mixon, 983 S.W.2d 661, 666-67 (Tenn.
1999)). The writ, as first codified in Tennessee in 1858, was applicable to civil cases. Id.
at 498. In 1955, a statutory version of the writ of error coram nobis was enacted, making
the writ also applicable to criminal proceedings. Id. In general, the writ “is an
extraordinary procedural remedy . . . [that] fills only a slight gap into which few cases
fall.” Mixon, 983 S.W.2d at 672.

       Currently, the writ is codified in Tennessee Code Annotated section 40-26-105:

               The relief obtainable by this proceeding shall be confined to
               errors dehors the record and to matters that were not or could
               not have been litigated on the trial of the case, on a motion for
               a new trial, on appeal in the nature of a writ of error, on writ
               of error, or in a habeas corpus proceeding. 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.

Our supreme court has held that a conviction pursuant to a guilty plea falls within a broad
interpretation of a “trial” for the purposes of the aforementioned statute. Wlodarz, 361
S.W.3d at 503.
3
  We note that our supreme court recently granted a Rule 11 application for permission to appeal an
opinion of this court in which the supreme court directed the parties to address whether it should
reconsider its opinion in Wlodarz. Clark Derrick Frazier v. State, No. M2014-02374-SC-R11-ECN
(Tenn. Oct. 16, 2015) (order).
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       Our supreme court 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.

State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). 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 proceedings 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. 7, 2005)). 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). Further, 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 trial 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 trial court. See Hart, 911
S.W.2d at 375.

       A writ of error coram nobis must be filed within one year after the judgment
becomes final in the trial court. Tenn. Code Ann. ' 27-7-103. Clearly, the instant
petition was filed well beyond the one-year statute of limitations. Nevertheless, the one-
year statute of limitations may be tolled on due process grounds if a petition seeks relief
                                            -6-
based upon newly discovered evidence of actual innocence. Wilson v. State, 367 S.W.3d
229, 234 (Tenn. 2012).

        Our supreme court has stated that “[i]n determining whether tolling of the statute
is proper, the court is required to balance the petitioner‟s interest in having a hearing with
the interest of the State in preventing a claim that is stale and groundless.” Id. In
general, “„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.‟” Id. (quoting
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). Our supreme court described the
three steps of the “Burford rule” as follows:

              “(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.”

Id. (quoting Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995)). “Whether due process
considerations require tolling of a statute of limitations is a mixed question of law and
fact, which we review de novo with no presumption of correctness.” State v. Harris, 301
S.W.3d 141, 145 (Tenn. 2010).

       In the Petitioner‟s brief supporting his petition for writ of error coram nobis, he
asked that “the trial court set aside his plea agreement in this case, based on his lack of
knowledge of the punishment he subjected himself to at the time he entered his guilty
pleas and with an agreed upon sentence and allow petitioner an appeal as of right to the
jury verdict in the counts which were tried.” In the trial court and on appeal, the
Petitioner stated that he “wishe[d] only to be given the right to appeal his convictions for
which a jury found him guilty.”

        Initially, we agree with the trial court that the convictions that mandated the
Petitioner‟s compliance with the sexual offender registry were not “evidence” of actual
innocence that would have changed the course of trial. Therefore, the trial court found
that the statute of limitation should not be tolled; again, we agree.

        Further, regarding whether the grounds for relief actually arose after the
limitations period would normally have commenced, we note that since 2006, the
Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and
Tracking Act has included aggravated kidnapping and especially aggravated kidnapping
                                             -7-
as “sexual offenses.” Tenn. Code Ann. ' 40-39-202(25)(H), (I) (2006). Accordingly, the
issue did not arise after the limitations period, and, even though he claims he was not told
about the registry, the exercise of reasonable diligence would have led to a timely
discovery of the information. See Wilson, 367 S.W.3d at 234; Vasques, 221 S.W.3d at
527.

        Moreover, we note that in Ward v. State, 315 S.W.3d 461, 475 (Tenn. 2010), our
supreme court determined that a “sentence of lifetime community supervision is a direct
and punitive consequence of which a defendant must be informed in order to enter a
knowing and voluntary guilty plea.” However, in examining whether a defendant‟s not
being advised that he would be required to register as a sexual offender for life rendered
his guilty pleas involuntary and unknowing, the court noted that “neither our federal nor
state constitution requires that an accused be apprised of every possible or contingent
consequence of pleading guilty before entering a valid guilty plea. Courts are
constitutionally required to notify defendants of only the direct consequences—not the
collateral consequences—of a guilty plea.” Id. at 466-67. The court observed that
“Tennessee‟s sexual offender registration act was first adopted in 1994[.]” Id. at 468. In
creating the act, “[t]he General Assembly clearly indicated its intent that the registration
act was a remedial and regulatory measure rather than a punitive measure.” Id. at 469.
Because “the registration requirements imposed by the sex offender registration act are
nonpunitive[,] . . . they are therefore a collateral consequence of a guilty plea.” Id. at
472. The court concluded that “while the registration requirement is undoubtedly a
definite, immediate, and largely automatic consequence of a conviction of a sexual
offense or violent sexual offense, it does not have an effect on the length, manner, or
service of the defendant‟s punishment.” Id. at 472. Therefore, the court concluded that a
“trial court‟s failure to advise [a defendant] of the sex offender registration requirement
does not render [a defendant‟s] guilty plea constitutionally invalid.” Id. Ergo, as the trial
court found, the failure to advise the Petitioner of the sexual registration requirement
would not have made his guilty plea, in which he waived the right to appeal the
convictions that triggered the requirement, constitutionally invalid.

                                     III. Conclusion

       Based upon the foregoing, we affirm the judgment of the trial court.



                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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