                                                                                         02/16/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 8, 2016

           KENNETH DALE SANDERS v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Grundy County
                      No. 3081     Thomas W. Graham, Judge


                            No. M2016-00756-CCA-R3-ECN


The pro se petitioner, Kenneth Dale Sanders, appeals the summary dismissal of his
petition for writ of error coram nobis. Following our review, we affirm the summary
dismissal of the petition as time-barred pursuant to Rule 20, Rules of the Court of
Criminal Appeals.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT W. WEDEMEYER, J., joined.

Kenneth Dale Sanders, Ashland, Kentucky, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
James M. Taylor, District Attorney General; and David L. Shinn, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                              MEMORANDUM OPINION

        This case involves the petitioner’s challenge to his 1997 guilty plea conviction for
possession of marijuana with the intent to sell, which, according to the petitioner, was
used by the federal court to enhance his sentence for a subsequent federal drug
conviction. On May 14, 1997, the petitioner pled guilty to possession of marijuana with
the intent to sell, a Class E felony, and was sentenced to two years on community
corrections. State v. Kenneth D. Sanders, No. M2014-01689-CCA-R3-CD, 2015 WL
6501229, at *1 (Tenn. Crim. App. Oct. 28, 2015). On December 13, 2013, the petitioner
filed a motion to “vacate his guilty plea and/or motion to alter and amend the judgment,”
which the trial court treated as a motion for post-conviction relief, “alleging that he
received ineffective assistance of counsel during his guilty plea proceedings.” Id. The
trial court denied the motion, noting that it was barred by the statute of limitations for
post-conviction relief. The trial court also denied the petitioner’s subsequent motion to
reconsider. Id.

        On appeal, the petitioner raised claims of actual innocence, the trial court’s lack of
subject matter jurisdiction, illegal sentence, unknowing and unintelligent guilty plea, and
deprivation of the rights guaranteed him by the Sixth and Fourteenth Amendments. Id. at
*2. This court concluded that all of the petitioner’s claims, with the exception of his
claim of ineffective assistance of counsel during the guilty plea proceedings, were waived
due to his failure to raise them in his motion to vacate his guilty plea. Id. We further
concluded that the petitioner’s notice of appeal was untimely and that there was nothing
in the record to show that his late-filed notice of appeal should be waived in the interest
of justice. Id. at *3. Accordingly, we affirmed the judgment of the trial court. Id.

       On February 2, 2016, the petitioner filed the coram nobis petition at issue in this
case in which he raised the same claims he raised in his earlier appeal: (1) that he was
actually innocent of the crime because the facts showed that his intent with the marijuana,
which he alleges he found in a “fence row,” was not to sell it but to either destroy it or
turn it over to the police; (2) that the trial court lacked subject matter jurisdiction to
accept his guilty plea because of the lack of evidence of the intent element of the crime;
(3) that he received an illegal sentence because the trial court was without jurisdiction to
sentence him due to the lack of evidence of his intent; (4) that his guilty plea was
unknowing and involuntary due to the ineffective assistance of his counsel, who failed to
properly investigate the facts and the law; and (5) that he was denied the effective
assistance of counsel due to counsel’s failure to properly investigate and advise him
regarding the plea.

       The State responded with a motion to dismiss in which it asserted that the petition
was barred by the statute of limitations and failed to state a colorable claim for relief. On
March 17, 2016, the coram nobis court entered an order granting the State’s motion to
dismiss, finding that the petition was barred by the statute of limitations and that the
issues raised by the petitioner had “already been addressed and reviewed and found to be
without merit.” Thereafter, the petitioner filed a timely appeal to this court.

      A writ of error coram nobis is an extraordinary remedy by which the court may
provide relief from a judgment under only narrow and limited circumstances. State v.
Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). Tennessee Code Annotated section 40-26-
105 provides this remedy to criminal defendants:

       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
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       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. The issue shall be tried by the court without the intervention of a
       jury, and if the decision be in favor of the petitioner, the judgment
       complained of shall be set aside and the defendant shall be granted a new
       trial in that cause.

Tenn. Code Ann. § 40-26-105(b), (c) (2012).

       Our supreme court has stated the standard of review as “whether a reasonable
basis exists for concluding that had the evidence been presented at trial, the result of the
proceedings might have been different.” State v. Vasques, 221 S.W.3d 514, 525-28
(Tenn. 2007) (citation omitted).

       Coram nobis claims are subject to a one-year statute of limitations. Tenn. Code
Ann. § 27-7-103. The one-year statute of limitations, may, however, be tolled on due
process grounds if the petitioner seeks relief based upon newly discovered evidence of
actual innocence. Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012). The issue of
whether a claim is barred by an applicable statute of limitations is a question of law,
which this court reviews de novo. See id.

        The error coram nobis petition was filed well beyond the one-year statute of
limitations, and, thus, is untimely. The petitioner’s argument that there was no evidence
of his intent to sell the marijuana does not constitute “newly discovered evidence of
actual innocence” that would warrant the tolling of the statute of limitations on due
process grounds. We, therefore, affirm the summary dismissal of the petition as time-
barred.

       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, the judgment of the
trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal
Appeals.

                                                  ________________________________
                                                  ALAN E. GLENN, JUDGE

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