        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  June 12, 2012 Session

                 TONY CHANDLER v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
        Nos. 0404275, 0303760, 0207053, 0402966   W. Otis Higgs, Jr., Judge




                 No. W2011-02034-CCA-R3-PC - Filed August 1, 2012


In 2005, the Petitioner, Tony Chandler, pled guilty to two counts of aggravated burglary, two
counts of theft under $500, two counts of aggravated robbery, evading arrest in a motor
vehicle, and burglary. For these convictions, the trial court sentenced him to an effective
sentence of sixteen years. In 2011, the Petitioner filed a petition for post-conviction relief
and for a writ of error coram nobis. The State filed a motion to dismiss because the petition
was untimely filed. The post-conviction court dismissed the petition, finding that the petition
was untimely filed. On appeal, the Petitioner contends the post-conviction court erred when
it dismissed his petition without a hearing. Following our review of the record and the law,
we affirm the post-conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J EFFREY S. B IVINS
and R OGER A. P AGE, JJ., joined.

Randall B. Tolley, Memphis, Tennessee for the appellant, Tony Chandler.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Katie Ratton, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                        OPINION
                             I. Facts and Procedural History

       On February 7, 2005, the Petitioner entered a “best interest” plea of guilty to eight
counts, which stemmed from four different indictments. The following is a summary of the
Petitioner’s convictions and sentences in each of the four indictments:
 Indictment Number       Offense Date            Convicted Offense       Sentence

 02-07053                November 9, 2001        Aggravated              3 years
                                                 Burglary

                                                 Theft under $500        11 months, 29 days

                                                 Theft under $500        11 months, 29 days

 04-02966                November 15, 2001       Burglary                2 years

 03-03760                February 19, 2003       Aggravated              8 years
                                                 Robbery

                                                 Aggravated              8 years
                                                 Robbery

                                                 Evading arrest in a     1 year
                                                 motor vehicle

 04-04275                December 24, 2003       Aggravated              3 years
                                                 Burglary

The trial court ordered the sentences in each count of each indictment to run concurrently with
one another, but ordered the effective sentence for each of the indictments to run
consecutively, for an effective sentence of sixteen years. The trial court placed the Petitioner
on community corrections for the service of his sentence. On May 27, 2008, the trial court
revoked the Petitioner’s community corrections sentence and ordered the Petitioner to serve
his sixteen-year sentence in prison.

        On April 21, 2011, the Petitioner filed a petition seeking both post-conviction relief
and a writ of error coram nobis. Attached to the petition was a letter dated August 23, 2010,
from Kevin Isabell, who claimed responsibility for the crimes committed on November 9 and
15, 2001. Also attached to the petition was a notarized statement dated December 20, 2004,
from the victim of the December 24, 2003 aggravated robbery, indicating that the victim did
not believe the Petitioner committed the crime and his desire to “drop[ ] all charges.” Two
affidavits dated August 20, 2010, and signed by the Petitioner’s mother and Sa’de Evans
stated that they witnessed the victim sign the affidavit and then the victim’s affidavit was
delivered to and received by the Petitioner’s attorney “immediately.”

      The final two attachments are identical undated affidavits signed by Darius Harshaw
and Sa’de Evans. Each document reads as follows:

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       I went to the law Office of [Counsel] and made an audio recorded statement
       on behalf of defendant Tony Chandler to assist in proving his innocence on an
       aggravated robbery case #03-03760 before he accepted any plea.

       I was further advised by defense counsel [ ] that any information, I provide
       would only be used to minimize Tony Chandler’s sentence in any offered
       guilty plea.

       [Counsel] advised me not to reveal the statement or interview to the defendant
       Tony Chandler, due to his mental health, educational back ground and an
       intent to pursue trial and risk consecutive trials by the state.


        The State responded to the Petition on August 10, 2011, by filing a motion to dismiss
the petition because it was filed beyond the statute of limitations. The post-conviction court
held a hearing on the State’s motion to dismiss, where neither party offered any proof. The
State argued that the petition seeking post-conviction relief and also seeking a writ of error
coram nobis should be dismissed as untimely. The Petitioner argued that due process required
the tolling of the statute of limitations because of newly discovered evidence.

       The post-conviction court took the motion under advisement and issued an order on
September 9, 2011, granting the State’s motion to dismiss, finding that the petition for post-
conviction relief and a writ of error coram nobis was time-barred. The post-conviction court’s
order stated:

       The [P]etitioner entered pleas of guilty to the above four indictments on
       January 10, 2005. A petition for post conviction relief must be filed within
       one year from the date of when the judgment became final. T.C.A. 40-30-
       102(a). In addition, a [petition for a] Writ of Error Coram Nobis must be filed
       within one year from the date of when the judgment became final. Judgment
       become final thirty days after a guilty plea is entered. State v. Green, 106
       S.W.3d 646 (Tenn. 2003). The [P]etitioner filed this matter on April 21,
       2011, over six years after the judgments became final.

              The Court therefore denies the [P]etitioner’s untimely petition for post
       conviction relief and denies the [P]etitioner’s untimely [petition for a] writ of
       error coram nobis.



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It is from this judgment that the Petitioner now appeals.

                                          II. Analysis

       On appeal, the Petitioner contends that the post-conviction court should have held an
evidentiary hearing to determine whether due process required that the statute of limitations
be tolled. The State responds that the trial court properly denied relief based upon the
expiration of the statute of limitations. We agree with the State.

       A person in custody under a sentence of a trial court of this state must petition for
post-conviction relief within one year of the date of the final action of the highest state
appellate court to which an appeal is taken, or if no appeal is taken, within one year from the
date on which the judgment becomes final. See T.C.A. § 40-30-102(a) (2006). If the petition
is not filed within one year, consideration of the petition by the post-conviction court is
barred. Id.

        There are, however, exceptions to the statute of limitations. Tennessee Code
Annotated section 40-30-102 provides that a petition may be filed outside the one-year
limitations period if:

       (1) The claim in the petition is based upon a final ruling of an appellate court
       establishing a constitutional right that was not recognized as existing at the
       time of trial, if retrospective application of that right is required. The petition
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States supreme court establishing a constitutional right that
       was not recognized as existing at the time of trial;

       (2) The claim in the petition is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the petition seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence, and
       the previous conviction has subsequently been held to be invalid, in which case
       the petition must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid.

T.C.A. § 40-30-102(b) (2006). In addition to the statutory exceptions to the statute of
limitations, due process principles may, in limited circumstances, require tolling of the

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post-conviction statute of limitations. See Seals v. State, 23 S.W.3d 272 (Tenn. 2000);
Burford v. State, 845 S.W.2d 204 (Tenn. 1992). When a petitioner seeks tolling of the
limitations period on the basis of due process, however, he is obliged “to include allegations
of fact in the petition establishing . . . tolling of the statutory period,” and the “[f]ailure to
include sufficient factual allegations . . . will result in dismissal.” State v. Nix, 40 S.W.3d 459,
464 (Tenn. 2001).

      In Sands v. State, our Supreme Court laid out a three-step process for determining
whether due process requires the tolling of the statute of limitations:

       (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. In making this final determination, courts
       should carefully weigh the petitioner’s liberty interest in “collaterally attacking
       constitutional violations occurring during the conviction process,” against the
       State’s interest in preventing the litigation of “stale and fraudulent claims.”

903 S.W.2d 297, 301 (Tenn. 1995) (citations omitted).

        As a general rule, the claim at issue must not have existed during the limitations period
to trigger due process consideration. Seals, 23 S.W.3d at 277. 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).

        Coram nobis claims are also subject to a one-year statute of limitations. T.C.A. § 27-7-
103. Our Supreme Court has recognized that principles of due process may toll the writ of
error coram nobis statute of limitations where the Petitioner’s liberty interest in raising a later-
arising issue outweighs the State’s finality interest embodied in the statute. Workman v State,
41 S.W.3d 100, 103 (Tenn. 2001). When considering issues involving the tolling of the
statute of limitations based on due process considerations, the same analysis is used in post-
conviction claims and writ of error coram nobis claims. Sands, 903 S.W.2d at 301.
Therefore, we address the Petitioner’s claims under his petition cumulatively.

        In this case, the Petitioner alleged in his petition that principles of due process required
tolling the statute of limitations for his untimely petition because the attached affidavits were
unknown to the Petitioner at the time of his guilty plea and, therefore, his guilty pleas were

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involuntary. These allegations, however, are not sufficient to establish that the Petitioner is
entitled to a tolling of the statute of limitations.

        The Petitioner offers three sets of affidavits that address the convictions for three of
the indictments. The notarized statement from the victim is dated December 20, 2004, which
was before the Petitioner pled guilty on February 7, 2005. The Petitioner’s mother and cousin
signed affidavits indicating their knowledge of the victim’s 2004 affidavit and immediate
delivery of the affidavit to the Petitioner’s attorney. This evidence is not “later-arising,” as
the affidavit existed and had been presented by the Petitioner’s family to his attorney at the
time of the Petitioner’s conviction. Thus, the Petitioner could have raised this allegation at
any time during the applicable one-year statute of limitations.

       The other affidavit, signed August 23, 2010, by Kevin Isabell states that Isabell
committed the November 9, 2001 burglary. Even though the affidavit is dated after the
Petitioner’s guilty plea on February 7, 2005, this allegation too is not “later-arising” for the
purposes of tolling the statute of limitations. This Court has previously held that “a
subsequent third party confession does not affect the voluntariness of a guilty plea.”
Newsome v. State, 995 S.W.2d 129, 134 (Tenn. Crim. App. 1998). The Newsome Court
reasoned as follows:

       By pleading guilty, the appellant admitted his factual guilt and waived his right
       to confront his accusers. See, e.g., People v. Jackson, 163 Misc.2d 224, 620
       N.Y.S.2d 240, 241 (N.Y. Co. Ct. 1994). He may not seek, after the judgment
       has become final, to later recant his admission as to those facts by an allegation
       that a third party has confessed. Moreover, a third party confession is not so
       much “newly discovered evidence” as it is “newly disclosed” to the court. See
       Travis v. State, [776 So.2d 819, 846 (Ala. Crim. App. 1997)].

Id. The Petitioner knew at the time he entered his guilty plea whether he was guilty of the
November 9, 2001burglary. He had every opportunity to maintain his innocence but chose
to admit guilt to committing the burglary. Furthermore, nothing prevented the Petitioner from
raising challenges to the voluntariness of his plea or the effectiveness of his representation
within the one-year statute of limitations.

       The final two identical affidavits signed by Sa’de Evans and Darius Harshaw entirely
omit any information on the content of the statements and how those statements would have
exculpated the Petitioner. As we previously mentioned, the “[f]ailure to include sufficient
factual allegations . . . will result in dismissal.” Nix, 40 S.W.3d at 464 (citations omitted).
Furthermore, although undated, the affidavits indicate that the recorded statements were made
before the Petitioner pled guilty. Thus, this evidence was not unknown and could have been

                                               -6-
presented at any time during the applicable statute of limitations period.

        Because the Petitioner’s claims are 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 his case;
therefore we conclude that the post-conviction court properly dismissed his untimely petition
for post-conviction relief and for error coram nobis relief. See id. The Petitioner is, therefore,
not entitled to relief.

                                        II. Conclusion

       Based upon the foregoing reasoning and authorities, we affirm the post-conviction
court’s dismissal of the Petitioner’s petition.




                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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