                                                                                        02/13/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 10, 2017

            TORNITA N. CRENSHAW v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2007-A-591    Steve R. Dozier, Judge
                     ___________________________________

                           No. M2016-01045-CCA-R3-ECN
                       ___________________________________

In 2008, a jury found the Petitioner, Tornita N. Crenshaw, guilty of two counts of
aggravated robbery, one count of aggravated burglary, one count of especially aggravated
kidnapping, and one count of coercion of a witness. The jury also convicted three co-
defendants related to these offenses. On joint direct appeal, this Court affirmed the
Petitioner’s convictions. See State v. Lance Sandifer, Stephon Dante Cunningham,
Tornita Crenshaw, & Glenard Thorne, No. M2008-02849-CCA-R3-CD, 2010 WL
5343202, at *1 (Tenn. Crim. App., at Nashville, Dec. 21, 2010), perm. app. denied (Tenn.
May 26, 2011). On April 11, 2016, the Petitioner filed a petition for a writ of error coram
nobis alleging numerous errors. The trial court issued an order on April 25, 2016,
dismissing the petition as time-barred. We affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Tornita N. Crenshaw, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and Rachel M. Sobrero, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                            I. Facts and Procedural History


      A Davidson County jury convicted the Petitioner of two counts of aggravated
robbery, one count of aggravated burglary, one count of especially aggravated
kidnapping, and one count of coercion of a witness, and the trial court sentenced her to an
effective sentence of twenty-three years. The case arose out of the Petitioner and her co-
defendants breaking into the victims’ residence in November 2006. The victims had a
recording studio in the residence, and the Petitioner and co-defendants, Lance Sandifer,
Stephon Dante Cunningham, and Glenard Thorne, stole the equipment and sexually
assaulted both victims while in the residence. On direct appeal, this Court summarized
the Petitioner’s participation while in the victims’ house as follows:

      Throughout the sexual assaults, Sandifer was brandishing a weapon, and
      Appellants were carrying recording equipment and various items out of the
      apartment. Appellants were trading the weapons back and forth amongst
      themselves. While she was being raped, A.B.[1] stated that [the Petitioner]
      came into the room and said, “Damn, you guys have her naked.” [The
      Petitioner] smirked as she spoke. [The Petitioner] also pointed a gun at
      A.B.’s head during the rapes and demanded R.N.’s car and alternatively
      A.B.’s car. A.B. stated that the three other Appellants were laughing and
      joking about her situation while they carried the recording equipment out to
      the cars in the parking lot.

      When A.B. returned to the living room from changing her clothes, R.N.
      was tied to a chair. R.N. testified that Appellants tied him to the chair with
      electrical cord. Sandifer and Cunningham were beating R.N. [The
      Petitioner] forced A.B. to strike R.N.

      Thorne asked A.B. if she wanted to leave with them. Because A.B. was
      fearful that Appellants would kill her if she stayed behind, she asked where
      they were going. [The Petitioner], who was holding a gun at the time,
      stated that A.B. was coming with them. Cunningham and [the Petitioner]
      led A.B. to her own car and placed her in the backseat. When A.B. left the
      apartment with Cunningham and [the Petitioner], R.N. was still tied to the
      chair. R.N. overheard Sandifer and Thorne arguing about whether to shoot
      him. R.N. was able to work his way out of the electrical cord and ran out of
      a back door in the apartment. Shortly thereafter, Thorne accidentally shot
      himself in the foot when he put the gun into the waistband of his pants.
      While Cunningham, [the Petitioner], and A.B. were leaving the apartment,
      A.B. heard the gunshot and thought that Sandifer and Thorne had shot R.N.

See State v. Lance Sandifer, Stephon Dante Cunningham, Tornita Crenshaw, & Glenard
Thorne, No. M2008-02849-CCA-R3-CD, 2010 WL 5343202, at *1 (Tenn. Crim. App., at
Nashville, Dec. 21, 2010), perm. app. denied (Tenn. May 26, 2011). Co-defendant

      1
          In order to protect the privacy of the victims this Court referenced them by their initials.
                                                 -2-
Cunningham and the Petitioner held A.B. against her will while Thorne and Sandifer
went to the hospital seeking treatment for Thorne’s self-inflicted gunshot wound. Co-
defendant Cunningham and the Petitioner forced the victim to use her credit card to pay
for a hotel room that night and forced her to use her ATM to access money for them the
following day before ultimately releasing A.B. Id. On appellate review, this Court
affirmed all of the defendants’ convictions and sentences. Id.

         The Petitioner, pro se, filed a petition for writ of error coram nobis on April 11,
2016. She raised numerous claims including: her attorney advised her to withdraw her
post-conviction petition because the State had agreed to drop the kidnapping charge, she
was not present at her sentencing hearing and thus her due process rights were violated,
her case was not severed as her attorney requested, her police interview was conducted
without the permission of her foster parents and was coerced, the trial court improperly
used her prior arrest history to enhance her sentence, two trial witnesses committed
perjury or contradicted themselves, her case should not have been transferred from
juvenile court to criminal court, and she should have been provided with a copy of the
trial transcript because she is indigent.

       After review of the petition, the trial court filed an order denying relief. In its
order dated, April 25, 2016, the trial court made the following findings:

                Here, the Petitioner’s motion was filed outside of the one (1) year
       statute of limitations and is therefore time-barred. The Court finds that due
       process considerations do not preclude the application of the limitations
       period. In addition, before the [P]etitioner is entitled to relief based upon
       newly discovered evidence, it must be established, and the trial court must
       find, that the subsequently or newly discovered evidence “may have
       resulted in a different judgment had it been presented at the trial.” Tenn.
       Code Ann. § 40-26-105. However, the Court respectfully finds that all of
       the issues the [P]etitioner describes do not fall within the realm of newly
       discovered evidence, and were or could have been litigated at the trial of
       this case, or on the motion for new trial, or on appeal. Further, absent the
       issues that were litigated, none of the specified evidence alleged in the
       petition would have resulted in a different judgment had it been presented
       at trial.

(Citation omitted). It is from this judgment that the Petitioner now appeals.

                                       II. Analysis



                                           -3-
        On appeal, the Petitioner argues that the trial court erred when it dismissed her
petition for a writ of error coram nobis because newly discovered evidence entitles her to
relief. The Petitioner submits that the newly discovered evidence in his case includes
consecutive sentencing despite her age at the time of the offense, the absence of parental
presence during her police interview, and her attorney’s deficient representation. The
State responds that the trial court correctly dismissed the Petitioner’s claim as untimely
because neither the evidence the Petitioner claims existed during the limitations period
nor the stated grounds for relief constitute “newly discovered evidence.” We agree with
the State.

       Tennessee Code Annotated section 40-26-105 (2012) 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 are litigated at the trial if the judge determines that such
       evidence may have resulted in a different judgment, had it been presented at
       trial.

It is well-established that the writ of error coram nobis “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). Generally, a decision whether to grant a writ rests within
the sound discretion of the coram nobis court. See State v. Hart, 991 S.W.2d 371, 375
(Tenn. Crim. App. 1995). We, therefore, review for abuse of discretion. See State v.
Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

        A petition for a writ of error coram nobis must be filed within one year of the
judgment becoming final in the trial court. T.C.A. § 27-7-103. This statute of limitations
“is computed from the date the judgment of the trial court becomes final, either thirty
days after its entry in the trial court if no post-trial motions are filed or upon entry of an
order disposing of a timely filed post-trial motion.” Harris v. State, 301 S.W.3d 141, 144
(Tenn. 2010); see Mixon, 983 S.W.2d at 670 (“[W]e reject the contention . . . that the
statute does not begin to run until the conclusion of the appeal as of right proceedings.”).
In the present case, the judgment became final in June of 2007. The Petitioner did not
file this petition for writ of error coram nobis until April 11, 2016, more than eight years
later.

                                            -4-
        The one-year statute of limitations for a petition for writ of error coram nobis may
be tolled on due process grounds if a petition seeks relief based upon newly discovered
evidence of actual innocence. Harris, 301 S.W.3d at 145. In determining whether the
statute should be tolled, the court must balance a petitioner’s interest in having a hearing
with the State’s interest in preventing a claim that is stale and groundless. Id. Generally,
“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.” Burford v.
State, 845 S.W.2d 204, 208 (Tenn. 1992). The Burford rule requires three steps:

               (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.

Sands v. State, 903 S.W.2d 299, 301 (Tenn. 1995). As a general rule, the claim at issue
must not have existed during the limitations period to trigger due process consideration.
Seals v. State, 23 S .W.3d 272 (Tenn. 2000). Discovery of or ignorance to the existence
of a claim does not create a “later-arising” claim. See Brown v. State, 928 S.W.2d 453,
456 (Tenn. Crim. App. 1996); Passarella v. State, 891 S.W.2d 619, 635 (Tenn. Crim.
App. 1994).

       None of the Petitioner’s claims are “later-arising” because the grounds for relief
existed at the time of the Petitioner’s trial. The Petitioner identifies nothing in the record
that was not known to her at the time of trial or shortly thereafter. All of the Petitioner’s
allegations could have been litigated at the trial of this matter or in a post-conviction
proceeding; therefore, the Petitioner has failed to show that her claims are “later-arising.”
As to the Petitioner’s claims that her attorney was ineffective, we note that ineffective
assistance of counsel is not a cognizable coram nobis claim. See Domingo Ponce v. State
of Tennessee, No. M2004-02257-CCA-R3-CO, 2005 WL 1303125, at *3 (Tenn. Crim.
App. May 31, 2005) (stating that ineffective assistance of counsel is not an appropriate
ground for relief pursuant to a writ of error coram nobis), no perm. app. filed.

       Because the Petitioner’s claim is not “later-arising,” we do not address the third
step in the analysis, namely the reasonableness of the delay. See Sands, 903 S.W.2d at
301. The Petitioner has failed to demonstrate that the statute of limitations should be
tolled in this case; therefore, we conclude that the trial court properly dismissed his
untimely petition for coram nobis relief. See id. The Petitioner is not entitled to relief.

                                            -5-
                                  III. Conclusion

     Based upon the foregoing reasoning and authorities, we affirm the trial court’s
judgment.


                                              _________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




                                        -6-
