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

             GREGORY L. HATTON v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Giles County
                        No. 16104 David L. Allen, Judge
                     ___________________________________

              No. M2015-01830-CCA-R3-PC – Filed September 6, 2016
                     ___________________________________

Petitioner, Gregory L. Hatton, pleaded guilty on July 18, 1977, to armed robbery, first
degree burglary, two counts of simple kidnapping, assault with intent to commit murder,
grand larceny, and rape in the Giles County Circuit Court. The offenses in this case
occurred in Maury County, and Petitioner‟s brief states that a motion for a change of
venue had been filed in 1977. Maury and Giles County are in the same judicial district.
The trial court imposed an effective sentence of life plus thirty years. Gregory Hatton v.
State, No. M2000-00756-CCA-R3-PC, 2001 WL 567845 (Tenn. Crim. App. May 25,
2001). He filed a request pursuant to the Post-Conviction DNA Analysis Act of 2001
seeking testing of any physical evidence in his case. The post-conviction court
summarily denied relief based upon affidavits from the relevant authorities stating that no
physical evidence remained for testing. Upon review, we affirm the judgment of the
post-conviction court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Gregory L. Hatton, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Brent A. Cooper, District Attorney General; and Jonathan Davis, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

Background

       After pleading guilty Petitioner filed a motion for new trial, on February 19, 1981,
challenging the validity of his guilty pleas. The trial court treated the motion as a petition
for post-conviction relief, appointed counsel, and held an evidentiary hearing. At the
conclusion of the hearing, the trial court found that the guilty pleas were knowingly and
voluntarily made. This court affirmed the trial court‟s decision on appeal. Id. (citing
State v. Gregory Hatton, No. 81-275-III (Tenn. Crim. App., at Nashville, Aug. 13,
1982)). On October 21, 1994, Petitioner filed a second petition for post-conviction relief.
The trial court appointed counsel, and two amended petitions were filed by Petitioner.
Hatton, 2001 WL 567845, at *1. The trial court denied the petition concluding that is was
barred by the three-year statute of limitations. This court affirmed the trial court‟s
decision. This court also found that Petitioner‟s claim that his pleas were involuntarily
entered was previously determined and that his claim of ineffective assistance of counsel
was waived. Id. at *2.

        Petitioner filed a petition for writ of habeas corpus in 1996 arguing that his rape
conviction was void because the indictment failed to allege the mens rea of the crime.
The trial court denied the petition, and this court affirmed the denial. Gregory L. Hatton
v. State, No. 02C01-9611-CC-00407, 1997 WL 68357 (Tenn. Crim. App. Feb. 20, 1997).

       Petitioner filed a petition for post-conviction DNA analysis on February 15, 2013.
On December 2, 2013, Petitioner filed a request for discovery of items that could be
tested for DNA. In response to Petitioner‟s request, various prosecuting authorities
responded that they had no physical or blood evidence from Petitioner‟s case. In a letter
filed on August 6, 2014, the Federal Bureau of Investigation (FBI) stated that evidence
was turned over to the Columbia Police Department. The Tennessee Bureau of
Investigation (TBI) indicated that it had no relevant evidence in Petitioner‟s case.
William Doelle, an officer with the Maury County Drug Task Force, filed an affidavit
indicating that he had searched the files at the Columbia Police Department, the Maury
County Sheriff‟s Department, and the Maury County Courthouse, but found no physical
evidence related to Petitioner‟s case. Ashley Blair, a paralegal with the Giles County
District Attorney‟s Office, filed an affidavit stating that all records of Petitioner‟s case
located in possession of the district attorney‟s office had been destroyed. Assistant
District Attorney General Larry Nickell also sent a letter indicating that items collected in
Petitioner‟s case were sent to the FBI for examination “thirty-seven (37) years ago” and
then returned to the various agencies that sent the evidence. Mr. Nickell detailed the
lengthy process involved in the search for the evidence, and then noted that no files
relating to petitioner‟s case could be located. He also pointed out in the letter that
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Petitioner‟s fingerprints were found at the scene in 1977, and Petitioner confessed to all
of the charges except the rape. Additionally, Giles County Circuit Court Clerk Crystal
Greene filed an affidavit stating that there was no physical evidence in Petitioner‟s court
files.

       The post-conviction court appointed counsel to represent Petitioner on his petition
for post-conviction DNA analysis, and on May 18, 2015, Petitioner filed a second pro se
request for discovery. The post-conviction court later allowed counsel to withdraw from
Petitioner‟s case. In an order dated August 25, 2015, the post-conviction court
summarily dismissed the petition for post-conviction DNA analysis. The court found that
there was no evidence still in existence upon which DNA analysis could be conducted.
The court further explained that a search of records from the FBI, TBI, Columbia Police
Department, Maury County Sheriff‟s Department, the District Attorney‟s Office, and the
Giles County Clerk‟s Office failed to yield any physical or blood evidence relating to
Petitioner‟s case.

Analysis

       Petitioner argues that the post-conviction court erred by summarily dismissing his
petition for post-conviction DNA analysis. However, we find that the court properly
dismissed the petition.

       Tennessee Code Annotated sections 40-30-301-313 (2012), The Post-Conviction
DNA Analysis Act of 2001, establishes the right of a defendant convicted of certain
offenses including first degree murder, second degree murder, aggravated rape, rape,
aggravated sexual battery or rape of a child to petition for the DNA analysis of “any
evidence that is in the possession or control of the prosecution, law enforcement,
laboratory, or court, and that is related to the investigation or prosecution that resulted in
the judgment of conviction and that may contain biological evidence.” T.C.A. § 40-30-
303.

        In order to obtain DNA testing under the Post-Conviction DNA Analysis Act,
Petitioner must satisfy the standards set forth in either Section 304 or 305 of the Act.
Section 304 mandates testing where the post-conviction court finds:

        (1) A reasonable probability exists that the petitioner would not have
            been prosecuted or convicted if exculpatory results had been
            obtained through DNA analysis;

        (2) The evidence is still in existence and in such a condition that DNA
            analysis may be conducted;
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        (3) The evidence was never previously subjected to DNA analysis, or
            was not subjected to the analysis that is now requested which could
            resolve an issue not resolved by previous analysis; and

        (4) The application for analysis is made for the purpose of demonstrating
        innocence and not to unreasonably delay the execution of sentence or
        administration of justice.

T.C.A. § 40-30-304(1)-(4) (2012).

       A presumption exists that the evidence yielded by a DNA analysis would be
favorable to the petitioner, and a court may order a DNA analysis if a petitioner has met
each of the conditions set forth in Section 305 of the Act. See Eddie Lee Murphy, Sr. v.
State, No. M2015-01258-CCA-R3-PC, 2016 WL 520583, at *2 (Tenn. Crim. App. Feb.
10, 2016). Section 305 also provides that the post-conviction court may in its discretion
order DNA analysis if

        (1) A reasonable probability exists that analysis of the evidence will
           produce DNA results that would have rendered the petitioner‟s
           verdict or sentence more favorable if the results had been available at
           the proceeding leading to the judgment of conviction;

        (2) The evidence is still in existence and in such a condition that DNA
           analysis may be conducted;


        (3) The evidence was never previously subjected to DNA analysis, or
           was not subjected to the analysis that is now requested which could
           resolve an issue not resolved by previous analysis; and

        (4) The application for analysis was made for the purpose of
           demonstrating innocence and not to unreasonably delay the execution
           of sentence or administration of justice.

Tenn. Code Ann. § 40-30-305 (1)-(4)(2012). The post-conviction court is afforded
considerable discretion in determining whether to grant a petitioner relief under the Act,
and the scope of appellate review is limited. See Sedley Alley v. State, No. W2004-
01204-CCA-R3-PD, 2004 WL 1196095, at *3 (Tenn. Crim. App. May 26, 2004). DNA
testing must be ordered if a “reasonable probability exists that the petitioner would not
have been prosecuted or convicted if exculpatory results had been obtained[.]” Id. § 40-
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30-304(1) (2014). A petitioner must prove all four conditions in order to obtain relief. See
State v. Powers, 343 S.W.3d 36, 48 (Tenn.2011). The failure to prove any one of the four
criteria is fatal to a petitioner‟s claim. William D. Buford v. State, No. M2002-02180-
CCA-R3-PC, 2003 WL 1937110, at *6 (Tenn. Crim. App., April 24, 2003).

       In this case, Petitioner cannot meet the second factor of section 304 or 305
because there is no evidence in existence on which to perform a DNA analysis. As
pointed out by the post-conviction court, a search of records from the FBI, TBI,
Columbia Police Department, Maury County Sheriff‟s Office, the District Attorney‟s
Office, and the Giles County Circuit Court Clerk‟s Office failed to yield any physical or
blood evidence relating to Petitioner‟s case as outlined in the affidavits and letters
submitted to the court. The letter to the post-conviction court from Larry Nickell of the
Giles County District Attorney‟s Office detailed the efforts to locate any physical
evidence in Petitioner‟s case. For this reason alone, the trial court properly dismissed the
petition for post-conviction DNA analysis. See Johnny Phelps v. State, E2005-02405-
CCA-R3-PC, 2006 WL 2328661, at *3 (Tenn. Crim. App. Aug. 11, 2006)(upholding the
denial of the petition for post-conviction DNA analysis where the State specifically
“outlined the steps of this investigation,” including conversations with local law
enforcement and the TBI, and states that it had been “unable to locate any biological
evidence.”).

       Additionally, Petitioner asserts that the State had a duty to preserve the physical
evidence for testing. However, this court has refused to extend the holding in State v.
Ferguson, 2 S.W.3d 912 (Tenn. 1999) to cases brought under The Post-Conviction DNA
Analysis Act of 2001 where a petitioner‟s convictions predated implementation of the
Act. In this case, Petitioner‟s convictions occurred in 1977 well before the Act was
implemented. See State v. Terrance Wilks, No. W2014-02304-CCA-R3-PC, 2015 WL
5719926, at *5 (Tenn. Crim. App. Sept. 30, 2015); Tommy Nunley v. State, No. W2003-
02940-CCA-R3-PC. 2006 WL, at *6 n. 3(Tenn. Crim. App. Jan. 6, 2006); and Edward
Thompson v. State, No. E2003-01089-CCA-R3-PC, 2004 W: 911279, at *2 (Tenn. Crim.
App. Apr. 29, 2004).       “These cases reflect the sound policy that it would be „an
unreasonable burden on the State to forever preserve each article of evidence collected in
every investigation on the chance that it may later be called upon for further analysis.‟”
Wilks, Id. (Citing Ashad R.A. Muhammad Ali v. State, No. M2005-01137-CCA-R3-PC,
2006 WL 1626652, at *3 (Tenn. Crim. App. June 2, 2006).

       Based on the record, we affirm the judgment of the post-conviction court.


                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE
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