                                                                                           09/27/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 14, 2017 Session

       RONALD CHRISTOPHER HAYES v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Jackson County
                     No. 09-CR-20       Brody N. Kane, Judge
                      ___________________________________

                           No. M2016-01094-CCA-R3-ECN
                       ___________________________________


In 2010, the Petitioner entered a “best interest” plea to second degree murder and was
sentenced to a term of twenty-five years. On April 5, 2016, the Petitioner filed a petition
for a writ of error coram nobis, alleging that newly discovered evidence exists. On May
5, 2016, the trial court issued an order denying the petition as time-barred. The Petitioner
appeals, arguing that the trial court erred by failing to toll the statute of limitations. We
affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, J. joined. CAMILLE R. MCMULLEN, J., concurs in result only.

Douglas A Trant, Knoxville, Tennessee, for the appellant, Ronald Christopher Hayes.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Ian D. Bratton,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       In 2009, a Jackson County grand jury indicted the Petitioner for felony murder,
second degree murder, and especially aggravated child abuse for his role in the death of
his live-in girlfriend’s infant child, the victim. On April 13, 2010, by agreement of the
parties, the Petitioner entered a “best interest” plea of guilty to second degree murder and
an agreed sentence of twenty-five years was imposed. The remaining charges were
dismissed.
       In April 2016, the Petitioner filed a petition for a writ of error coram nobis,
alleging newly discovered evidence in the form of an affidavit containing “substantial
and credible information” that the victim’s mother, Brandi Castle, had inflicted injuries
on another child, M.R.C.,1 born on May 15, 2012. The affidavit was signed by Nicole
Crockett. In the affidavit, Ms. Crockett explains that, shortly after her marriage to
“Pletz,” she received a phone call from Ms. Castle demanding child support for M.R.C.,
who Ms. Castle claimed was “Pletz’s” biological child. After DNA testing confirmed the
allegation, the Crocketts began visiting with M.R.C. when allowed and paying child
support. The affidavit details numerous alleged lies Ms. Castle told, Ms. Castle’s evasive
behavior, odd bruising on M.R.C., and neglect of the children the Crocketts witnessed
while in Ms. Castle’s home. The affidavit concludes with the following observations:

       After having a chance to reflect and review the information as well as the
       new information and pictures from the past, my husband and I are
       convinced there is a pattern of a child abuse, lack of supervision, poor
       parental judgement [sic], and we truly have doubts of [the Petitioner]’s
       involvement in the case of [the victim]. With that being said, our doubts of
       [the Petitioner] involvement resides on facts of the past pictures before [the
       Petitioner] knew [Ms. Castle] showing bruising and marks on [the victim]
       that are extremely similar to [M.R.C.]’s marks. Sadly there are the pictures
       of [the victim]’s autopsy pictures that were able to be viewed and compared
       that measure the same size and patterns of [M.R.C.]’s bruises/marks. It
       truly seems as though [Ms. Castle] has slipped through another situation to
       where the children are the victims.

      On May 25, 2016, the trial court issued an ordered denying the petition as
untimely. It is from this judgment that the Petitioner now appeals.

                                               II. Analysis

        On appeal, the Petitioner argues that the trial court erred when it dismissed his
petition for a writ of error coram nobis because newly discovered evidence entitles him to
relief. The Petitioner submits that he could not have filed his petition within the one-year
statute of limitations because the evidence did not become discoverable until 2015. The
State responds that the trial court correctly dismissed the Petitioner’s claim as untimely,
and the stated grounds for relief do not constitute “newly discovered evidence.”

       Tennessee Code Annotated section 40-26-105 (2012) provides:


       1
           It is the policy of this court to refer to minors by their initials only.
                                                    -2-
               There is hereby made available to convicted defendants in criminal
       cases a proceeding in the nature of a writ of error coram nobis, to be
       governed by the same rules and procedure applicable to the writ of error
       coram nobis in civil cases, except insofar as inconsistent herewith. . . .
       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 are litigated at the trial if the judge determines that such
       evidence may have resulted in a different judgment, had it been presented at
       trial.

It is well-established that the writ of error coram nobis “is an extraordinary procedural
remedy . . . [that] fills only a slight gap into which few cases fall.” State v. Mixon, 983
S.W.2d 661, 672 (Tenn. 1999). Generally, a decision whether to grant a writ rests within
the sound discretion of the coram nobis court. See State v. Hart, 991 S.W.2d 371, 375
(Tenn. Crim. App. 1995). We, therefore, review for abuse of discretion. See State v.
Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

       A petition for a writ of error coram nobis must be filed within one year of the
judgment becoming final in the trial court. T.C.A. § 27-7-103. This statute of limitations
“is computed from the date the judgment of the trial court becomes final, either thirty
days after its entry in the trial court if no post-trial motions are filed or upon entry of an
order disposing of a timely filed post-trial motion.” Harris v. State, 301 S.W.3d 141, 144
(Tenn. 2010); see Mixon, 983 S.W.2d at 670 (“[W]e reject the contention . . . that the
statute does not begin to run until the conclusion of the appeal as of right proceedings.”).
In the present case, the judgment became final in May 2010. The Petitioner did not file
this petition for a writ of error coram nobis until April 5, 2016, more than five years later.

        The one-year statute of limitations for a petition for writ of error coram nobis may
be tolled on due process grounds if a petition seeks relief based upon newly discovered
evidence of actual innocence. Harris, 301 S.W.3d at 145. In determining whether the
statute should be tolled, the court must balance a petitioner’s interest in having a hearing
with the State’s interest in preventing a claim that is stale and groundless. Id. Generally,
“before a state may terminate a claim for failure to comply with . . . statutes of
limitations, due process requires that potential litigants be provided an opportunity for the
presentation of claims at a meaningful time and in a meaningful manner.” Burford v.
State, 845 S.W.2d 204, 208 (Tenn. 1992). The Burford rule requires three steps:

               (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
                                            -3-
       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.

Sands v. State, 903 S.W.2d 299, 301 (Tenn. 1995). As a general rule, the claim at issue
must not have existed during the limitations period to trigger due process consideration.
Seals v. State, 23 S .W.3d 272 (Tenn. 2000). 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).

        As an initial matter, the writ of error coram nobis is unavailable to attack the
Petitioner’s guilty-pleaded convictions. Frazier v. State, 495 S.W.3d 246, 248 (Tenn.
2016). (holding “that a guilty plea may not be collaterally attacked pursuant to the coram
nobis statute”). The Frazier court held that the language of error coram nobis statute in
Tennessee clearly refers to newly discovered evidence relating to matters which were
litigated at trial. Frazier states that the plain and ordinary meaning of the term “litigated
on [or at] the trial” in the context of criminal prosecutions refers to a contested
proceeding involving the submission of evidence to a fact-finder who then must assess
and weigh the proof in light of the applicable law and arrive at a verdict of guilt or
acquittal. The Frazier court held that a guilty plea proceeding is a non-adversarial
proceeding to which the error coram nobis statute is simply inapplicable.

       In this case, however, we have a “best interest” or Alford plea. The Frazier court,
in a footnote, addressed situations involving Alford pleas as follows:

       Although uncommon, criminal defendants also may plead guilty while
       maintaining that they did not commit the crime charged. Such pleas are
       often referred to as “Alford pleas” based on the United States Supreme
       Court case, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
       162 (1970). In Alford, our nation’s high court held that a defendant who
       professed his innocence could nonetheless enter a constitutionally valid
       guilty plea when the defendant “intelligently concludes that his interests
       require entry of a guilty plea.” Id. at 37, 91 S.Ct. 160. Our Rules of
       Criminal Procedure refer to such pleas as “nolo contendere” pleas. Tenn.
       R. Crim. P. 11(a)(2); see also State v. Crowe, 168 S.W.3d 731, 743 (Tenn.
       2005). While we recognize that a criminal defendant who enters an Alford
       plea may have a stronger public policy argument than other criminal
       defendants for the right to seek error coram nobis relief, the issue remains
       one of a policy judgment which is within the province of the legislature, not
       this Court.
                                            -4-
Frazier, 495 S.W.3d at 250, n. 1. In our view, although the Frazier case does not involve
an Alford plea, based on the last sentence in the Frazier footnote, our Supreme Court
would apply the same reasoning it employed in Frazier to hold that a writ of error coram
nobis is not available to a petitioner who enters an Alford plea. An Alford plea
proceeding is neither contested nor adversarial. It is logical that if a guilty plea hearing
does not constitute a trial for the purposes of the error coram nobis statute, then neither
does an Alford plea hearing.

        Moreover, the affidavit submitted by the Petitioner does not constitute newly
discovered evidence. The evidence of M.R.C.’s abuse is not “newly discovered,” rather
it is evidence that did not exist at the time the Petitioner entered his Alford plea. M.R.C.
was not born until 2012, well after the Petitioner’s 2009 indictment and 2010 guilty plea.
As it relates to an allegation of Ms. Castle’s poor parenting, the record indicates that the
Petitioner was aware of Ms. Castle’s parenting through his relationship with her.2
Evidence that Ms. Castle continued to fail to properly care for her subsequently born
children is not “newly discovered” evidence nor is it evidence of the Petitioner’s actual
innocence. As such, we can not conclude that due process considerations require a
tolling of the statute of limitations in this case. Therefore we agree with the trial court’s
conclusion that the petition in this case is untimely. Accordingly, we conclude that the
trial court did not abuse its discretion in summarily denying the petition for writ of error
coram nobis.

                                      III. Conclusion

Based upon the foregoing reasoning and authorities, we affirm the trial court’s judgment.


                                               ____________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




       2
         We note that Ms. Castle was indicted on charges of aggravated child abuse at the same
time the Petitioner was indicted.
                                            -5-
