        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 7, 2012

                 ODELL SHELTON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 08-02912    James C. Beasley, Jr., Judge


               No. W2012-00617-CCA-R3-CO - Filed November 8, 2012


Petitioner, Odell Shelton, seeks relief via a writ of error coram nobis from his plea agreement
that resulted in a conviction of aggravated assault and a sentence of ten years. He claims that
the trial court improperly sentenced him as a multiple (Range II) offender and erroneously
relied upon a presentence report in denying his request for a suspended sentence. Petitioner
asserts that the trial court’s reliance on the presentence report is “newly discovered
evidence.” The coram nobis court summarily dismissed the petition. Discerning no basis for
coram nobis relief, we affirm.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
N ORMA M CG EE O GLE, JJ., joined.

Odell Shelton, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Meredith DeVault, Senior
Counsel, for the appellee, State of Tennessee.




                                         OPINION

                                    I. Procedural History

       On April 29, 2008, a Shelby County grand jury indicted petitioner for two counts of
aggravated assault. He entered a guilty plea on March 9, 2009, to one count of aggravated
assault, and the trial court imposed the agreed-upon sentence of ten years as a Range II
offender at thirty-five percent release eligibility. The trial court denied petitioner’s request
for probation. As a factual basis for the plea, the State recited the following:

               Had this matter gone to trial[,] the [S]tate would have shown [that] on
        February the 1st of 2006, officers responded to a domestic violence
        disturbance call at 12012 Faxon, in Shelby County, Tennessee. Officers met
        with the victim, Ms. Crissie Sharp, who advised her boyfriend/suspect [ ] had
        assaulted her.

               She stated that her [sic] and her seven-year-old son were riding in the
        vehicle with Mr. Shelton, [and] he became angry. Mr. Shelton stopped the
        vehicle and started hitting the victim. The victim got out and ran[,] and the
        defendant picked up a brick from some yard, hit the victim with the brick[,]
        and also hit the victim with a piece of wood.

                 The victim suffered cuts and a broken arm. She was transported to the
        Med.

       On January 4, 2012,1 petitioner filed a petition for writ of error coram nobis. The trial
court summarily dismissed the petition on January 30, 2012.

                                                II. Analysis

                                         A. Standard of Review

         The decision to grant or deny a petition for writ of error coram nobis on its merits is
left to the sound discretion of the trial court. Harris v. State, 301 S.W.3d 141, 144 (Tenn.
2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). A trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases
its decision on a clearly erroneous assessment of the evidence, or employs reasoning that
causes an injustice to the complaining party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.
2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)). The writ of error coram
nobis is an “extraordinary procedural remedy . . . into which few cases fall.” State v. Mixon,
983 S.W.2d 661, 672 (Tenn. 1999). Our legislature has limited the relief available through
the writ:



        1
          Although the petition was date-stamped by the clerk’s office on January 11, 2012, papers filed
on behalf of a pro se petitioner incarcerated in a correctional facility are deemed filed on the date petitioner
delivered to the appropriate individual at the correctional facility. See Sup. Ct. R. 28, § 2(G).

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               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 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.

Tenn. Code Ann. § 40-26-105(b) (Supp. 2011). To demonstrate he is entitled to coram nobis
relief, petitioner must clear several procedural hurdles.

        First, the petition for writ of error coram nobis must relate: (1) the grounds and the
nature of the newly discovered evidence; (2) why the admissibility of the newly discovered
evidence may have resulted in a different judgment had the evidence been admitted at the
previous trial; (3) the petitioner was without fault in failing to present the newly discovered
evidence at the appropriate time; and (4) the relief sought by the petitioner. Freshwater v.
State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 1995) (citing State v. Hart, 911 S.W.2d 371,
374-75 (Tenn. Crim. App. 1995)).

        Next, a petition for writ of error coram nobis must generally be filed within one year
after the judgment becomes final. Tenn. Code Ann. § 27-7-103 (2000). When a petition is
filed outside of the statute of limitations, the coram nobis court must determine whether due
process requires tolling. Harris, 301 S.W.3d at 145. In doing so, the “court must weigh the
petitioner’s interest in obtaining a hearing to present a later-arising ground for relief against
the State’s interest in preventing stale and groundless claims.” Id. (citing Workman v. State,
41 S.W.3d 100, 103 (Tenn. 2001)). A court should utilize the following three-step analysis
to balance the competing interests:

       (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.



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Id. (quoting Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995)).

                                   B. Petitioner’s Claims

        In sum, petitioner claims that the State failed to follow the mandates of Tennessee
Code Annotated section 40-35-202(a) and Tennessee Rule of Criminal Procedure 12.3. He
maintains that his increased offender status equated to an enhanced punishment for which
the State should have filed a notice of intent and that the State either failed to give the
requisite notice or the notice was inadequate. He also makes several assertions with regard
to the trial court’s reliance on the presentence report.

        We apply the three-part test of Harris in reviewing this petition, which was filed
outside of the one-year limitations period, to determine whether due process requires tolling
of the statute of limitations. See Harris, 301 S.W.3d at 145. The first factor requires us to
determine when the limitations period began to run. Id. Petitioner entered his guilty plea on
March 9, 2009, and the trial court entered the judgment on March 30, 2009. Petitioner filed
his petition for writ of error coram nobis on January 4, 2012, well after the expiration of the
limitations period.

        Our next inquiry is whether the grounds for relief actually arose after the limitations
period commenced. Id. Petitioner claims error with respect to the guilty plea process. He
claims that the State improperly enhanced his sentence without proper notice by asking the
trial court to sentence him as a Range II offender. He claims that the trial court improperly
relied on the presentence report. He further claims that he was not aware that the trial court
would review a presentence report in determining his petition for a suspended sentence
(probation).

       At the plea hearing, the trial court informed petitioner:

              In indictment 08-02912, Odell Shelton, on your plea of guilty to
       aggravated assault, a class “C” felony, it is the judgment of the Court that you
       be confined for ten years, as a range two, multiple offender and that you pay
       the cost in the matter, for all of which mittimus and execution issue.

              I will delay execution until March 30[.] [W]e will have a hearing on
       that day to determine if you are eligible for probation. You need to make sure
       that you go the probation office and get interviewed so that I have a report for
       that day.




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              If you don’t go get interviewed and I don’t get a report, because you
       failed to go get interviewed, I am going to revoke your bond, do you
       understand?

Petitioner answered, “Yes, sir.” The trial court emphasized, “That is your responsibility to
get that taken care of. Do you understand?” Again, petitioner answered, “Yes, sir.”

        All of these claims were discovered or discoverable during or immediately after the
March 2009 hearings. When petitioner entered his guilty plea, he knew he was being
sentenced as a Range II offender and assented to that offender status. Petitioner signed the
plea agreement offered by the State, which clearly classified him as a Range II offender. The
trial court recited in open court that petitioner would be sentenced as a Range II offender.
Any claim that the State failed to give proper notice of its intent to increase petitioner’s
offender status was known to petitioner on March 9, 2009, at the very latest. Nonetheless,
he agreed to the range and signed the plea agreement.

        Petitioner’s claims with regard to the presentence report were also made known to him
on March 9, 2009, when the trial court advised him that it would review a presentence report
in determining petitioner’s application for a suspended sentence and instructed him to report
to the probation office to facilitate preparation of said report. Petitioner indicated at the plea
hearing that he understood the judge’s instruction. He cannot now claim that he was not
aware that the trial court would utilize a presentence report. Any assertion that the trial court
erroneously relied on a presentence report became viable on March 30, 2009, the date on
which the trial court considered the presentence report in denying petitioner’s application for
probation. Thus, petitioner’s claims are not “later-arising.”

        It is noteworthy that petitioner’s first inquiry to the trial court and the district attorney
general’s office seeking records and transcripts was dated July 14, 2011, more than two years
after he entered his guilty plea. He did not attempt to obtain supporting documentation for
his petition for writ of error coram nobis until well after the limitations period had expired.
Due process does not require tolling of the statute of limitations in this case.

                                         CONCLUSION

       Following a thorough review of the record and the briefs of the parties, we discern no
error and affirm the judgment of the coram nobis court.

                                                       _________________________________
                                                       ROGER A. PAGE, JUDGE



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