        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs December 2, 2014

    MARCUS TERRY aka MARCUS BENSON aka TORIAN BENSON v.
                   STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                        No. W97-01085      Chris Craft, Judge


              No. W2014-00684-CCA-R3-ECN - Filed December 30, 2014


The pro se petitioner, Marcus Terry aka Marcus Benson aka Torian Benson, appeals the
summary dismissal of his petition for writ of error coram nobis, which petition challenged
his 1997 Shelby County Criminal Court guilty-pleaded conviction of escape. Discerning no
error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R. and R OGER A. P AGE, JJ., joined.

Marcus Terry aka Marcus Benson aka Torian Benson, Henning, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Caitlin Smith, Assistant Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

              On December 11, 1997, the petitioner pleaded guilty to one count of escape
from felony incarceration, and the trial court imposed a sentence of four years to be served
consecutively to six prior convictions, which included a conviction of vehicular homicide.
The petitioner did not file a direct appeal.

                On January 23, 2014, the petitioner filed a petition for writ of error coram nobis
alleging that, because he had escaped from a hospital rather than a penal institution, he had
not committed the offense of escape and that his trial counsel was ineffective for failing to
disclose that discrepancy. On February 3, 2014, the coram nobis court summarily dismissed
the petition, finding that the claim was time-barred and that, even if it had been timely filed,
the petition did not allege newly discovered evidence. The court continued as follows:

              The Criminal Information to which [the petitioner] plead[ed]
              guilty charged that he escaped “from the Shelby County Jail
              located in Shelby County, Tennessee, while serving a sentence
              for Vehicular Homicide, a felony . . . .” In his petition, he
              admits that he was taken from the Shelby County Jail by Shelby
              County Deputy Jailers to the Regional Medical Center to be
              treated for a head injury, and while there he escaped from the
              handcuffs and leg irons securing him to his bed by means of a
              handcuff key rubber-banded to his penis. His complaint is that
              the Regional Medical Center is not the Shelby County Jail, and
              that his attorney was ineffective in not disclosing to him that the
              information charged escape from the jail, not the hospital (the
              newly discovered “evidence.”)[.] His discovery of the wording
              of the charging instrument is not newly discovered evidence.
              Further, the Shelby County Jail is composed of more than one
              facility in Shelby County, including a facility for women and the
              secure Shelby County Jail facility at the Regional Medical
              Center (the Shelby County hospital), where the jail houses
              numerous prisoners who have both acute and chronic illness.
              He escaped from that Shelby County jail facility. If the
              petitioner would have demanded a trial rather than enter a plea
              of guilty, the State would have called a witness who would have
              testified that the facility from which the petitioner escaped was
              in fact a branch of the Shelby County jail, a penal institution
              where prisoners were housed.

                In this timely appeal, the petitioner contests the summary dismissal of his
petition, again contending that the “newly discovered evidence” that he had pleaded guilty
to escape from a penal institution when he had, in fact, escaped from a hospital entitled him
to a new trial and that the coram nobis court erred by deeming the petition time-barred when
the State had failed to raise the affirmative defense of the statute of limitations. The State
asserts that the coram nobis court properly dismissed the petition for failure to state a
cognizable ground for relief.

               A writ of error coram nobis is an “extraordinary procedural remedy,” filling
only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn.
1999) (citation omitted). Coram nobis relief is provided for in criminal cases by statute:



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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
              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.

T.C.A. § 40-26-105(b) (2006); see State v. Vasques, 221 S.W.3d 514, 525-28 (Tenn. 2007)
(describing 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’”) (citation omitted). The decision to grant or deny coram nobis relief rests within
the sound discretion of the trial court. Vasques, 221 S.W.3d at 527-28.

               “The writ of error [coram nobis] may be had within one (1) year after the
judgment becomes final by petition presented to the judge at chambers or in open court, who
may order it to operate as a supersedeas or not.” T.C.A. § 27-7-103 (2000); State v. Mixon,
983 S.W.2d 661, 670 (Tenn. 1999) (holding that a petition for a writ of error coram nobis is
untimely unless it is brought within one year of the entry of the trial court’s “final,” or last,
order; the time for filing is not extended by the pursuit of a timely direct appeal). In coram
nobis cases, however, the statute of limitations is an affirmative defense that must be raised
by the State in the trial court. See Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003) (citing
Sands v. State, 903 S.W.2d 297, 299 (Tenn. 1995)).

               In the instant case, the coram nobis court should not have dismissed the petition
based on timeliness because the State had not yet responded to the petition and pleaded the
affirmative defense of the statute of limitations. See Harris, 102 S.W.3d at 593. That being
said, the petition does not avail the petitioner of coram nobis relief because he failed to
identify any newly discovered evidence. We agree with the coram nobis court that the
petitioner’s “discovery of the wording of the charging instrument” does not amount to newly
discovered evidence and that, in any event, the petitioner’s escape from the Regional Medical
Center while incarcerated rather than a direct escape from the Shelby County jail is a
distinction without a difference. The petitioner is effectively attempting to attack the
sufficiency of the convicting evidence, and such an attack is not justiciable in a coram nobis
petition.



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Accordingly, the judgment of the coram nobis court is affirmed.

                                   _________________________________
                                   JAMES CURWOOD WITT, JR., JUDGE




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