                                                                                         07/07/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 17, 2017

               RANDALL TURNER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hamilton County
                   No. 236894, 278379      Don W. Poole, Judge
                     ___________________________________

                            No. E2016-01969-CCA-R3-PC
                       ___________________________________


The Petitioner, Randall Turner, filed a motion to reopen his post-conviction petition in
which he challenged his guilty pleas to first degree murder, aggravated kidnapping, and
two counts of aggravated robbery and his effective sentence of life imprisonment without
the possibility of parole. The post-conviction court denied the motion, and the Petitioner
subsequently filed two motions to rehear, both of which the post-conviction court denied.
The Petitioner filed a notice of appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure. Upon reviewing the record and the applicable law, we dismiss the
appeal.

              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Randall Turner, Henning, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; and Neal Pinkston, District Attorney General, for the appellee, State of
Tennessee.

                                       OPINION

                              PROCEDURAL HISTORY

       In 2001, the Petitioner pled guilty to first degree murder, aggravated kidnapping,
and two counts of aggravated robbery and received an effective sentence of life
imprisonment without the possibility of parole. In June 2001, the Petitioner filed a pro se
petition for post-conviction relief. Following the appointment of counsel and the filing of
an amended petition, the Petitioner filed a motion to dismiss his petition, asserting that he
no longer wished to pursue post-conviction relief. On February 6, 2003, the post-
conviction court dismissed the petition.

        In 2010, the Petitioner filed a pro se “Motion to Vacate Convictions,” which the
trial court denied. On appeal, this court considered the motion as a post-conviction relief
petition and held that the petition was untimely. See Randall Turner v. State, No. E2011-
00110-CCA-R3-PC, 2011 WL 2416927, at *1-2 (Tenn. Crim. App. June 13, 2011). The
Petitioner then filed a petition for writ of habeas corpus, which the habeas corpus court
denied, and this court affirmed the habeas corpus court’s judgment on appeal. See
Randall Turner v. Bruce Westbrooks, Warden, No. E2012-00093-CCA-R3-HC, 2012 WL
5258266, at *1 (Tenn. Crim. App. Oct. 24, 2012).

        In December 2012, the Petitioner filed a “Petition” in which he alleged that he was
actually innocent of the offenses and that he was coerced into pleading guilty as a result
of trial counsel’s conspiring with state officials. Randall Turner v. State, No. E2013-
01515-CCA-R3-PC, 2014 WL 1018213, at *1 (Tenn. Crim. App. Mar. 17, 2014). He
also sought recusal of the judge presiding over the post-conviction court. Id. The post-
conviction court entered an order denying the recusal request and dismissing the petition.
Id. The Petitioner filed multiple other pleadings, including a motion to reconsider. Id.
The post-conviction court filed a subsequent order considering the Petitioner’s pleadings
as petitions for post-conviction relief and denied the petitions as untimely. Id. at *2. On
appeal, this court affirmed the dismissal of the petitions, concluding that the post-
conviction petitions, which contained substantially the same issues as the 2010 petition,
were untimely. Id.

       The Petitioner subsequently filed a post-conviction petition in which he sought
DNA testing of evidence pursuant to the Post-Conviction DNA Analysis Act of 2001.
Randall Turner v. State, No. E2013-01565-CCA-R3-PC, 2014 WL 1369903, at *1 (Tenn.
Crim. App. Apr. 7, 2014). The post-conviction denied the petition, and this court
affirmed the post-conviction court’s judgment on appeal. Id.

        On June 1, 2016, the Petitioner filed a “Motion to Re-Open Post-Conviction
Petition to Correct Manifest Injustice.” The Petitioner argued that trial counsel, the State,
and the trial court conspired to compel his guilty pleas by postponing decisions on his
motion to suppress evidence and his motion to dismiss and that the pleas resulted in a
sentence that violated the Eighth Amendment of the United States Constitution. The
Petitioner also argued that he was effectively deprived of counsel due to trial counsel’s
failure to inform the trial court that the Petitioner filed a malpractice action against trial
counsel. On June 6, 2016, the post-conviction court entered an order in which it
considered the Petitioner’s motion as a post-conviction relief petition and denied the
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petition as untimely. The post-conviction court stated that the Petitioner had thirty days
from the entry of the order to file a notice of appeal.

       On July 26, 2016, the Petitioner filed a “Motion to Reconsider” in which he
repeated his claims filed in his previously filed motion. He also sought to revoke his
2003 waiver of post-conviction claims. He stated that the motion to reconsider was
untimely because the trial court clerk failed to forward the post-conviction court’s order
to him and requested that the trial court clerk be found in contempt. The Petitioner
maintained that he did not receive the post-conviction court’s order until July 18, 2016.
On August 3, 2016, the post-conviction court entered an order denying the Petitioner’s
motion to hold the trial court clerk in contempt. The post-conviction court treated the
motion to reconsider as a motion to revoke the waiver of post-conviction proceedings and
denied the motion.

       The Petitioner filed another “Motion to Reconsider” in which he challenged the
constitutionality of the one-year statute of limitations for post-conviction petitions. He
also requested that the trial court appoint a mental health professional to evaluate him.
On September 12, 2016, the trial court denied the Petitioner’s motion to reconsider. On
September 27, 2016, the Petitioner filed a notice of appeal pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure in which he stated that he was appealing the trial
court’s “September 13, 2016” order.

                                       ANALYSIS

        On appeal, the Petitioner contends that (1) trial counsel, the State, and the trial
court employed a method to compel his guilty plea that resulted in a sentence that
violated the Eighth Amendment of the United States Constitution; (2) he was effectively
deprived of counsel due to trial counsel’s failure to inform the trial court that the
Petitioner filed a malpractice action against trial counsel; (3) the one-year statute of
limitations for filing a post-conviction petition is unconstitutional; and (4) the post-
conviction judge should have recused himself from entertaining the motion to reopen.

       According to the Petitioner’s notice of appeal, he is appealing the trial court’s
order from September 13, 2016. We note that the trial court denied the Petitioner’s
motion to reconsider on September 12, 2016. To the extent that the Petitioner is
appealing the denial of his motion to reconsider, we have held that a petitioner does not
have an appeal as of right pursuant to Tennessee Rule of Appellate Procedure 3(b) from
the denial of a motion to reconsider relief. John Ivory v. State, No. W2015-00636-CCA-
R3-PC, 2015 WL 6873474, at *2 (Tenn. Crim. App. Nov. 9, 2015).



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       We note that the Petitioner filed a motion to reopen his post-conviction petition
but that the post-conviction court considered the motion as an original petition for post-
conviction relief. Accordingly, we will consider the Petitioner’s pleading as both a
motion to reopen and a post-conviction relief petition in determining whether we have
jurisdiction to decide the issues raised on appeal.

                                    A. Motion to Reopen

       To the extent that the Petitioner seeks relief from the denial of his motion to
reopen his post-conviction petition, we recognize that a petitioner likewise does not have
an appeal as of right from a post-conviction court’s denial of a motion to reopen a post-
conviction petition under Tennessee Rule of Appellate Procedure 3(b). See Matthew
Dixon v. State, No. W2015-00130-CCA-R3-PC, 2015 WL 6166604, at *5 (Tenn. Crim.
App. Oct. 21, 2015). Rather, a petitioner has thirty days to file an application for
permission to appeal in this court, attaching copies of all documents filed by the parties
and the post-conviction court’s order. T.C.A. § 40-30-117(c). When a petitioner fails to
follow the statutory requirements for seeking review of a denial of a motion to reopen,
this court is without jurisdiction to consider the appeal. Matthew Dixon, 2015 WL
6166604, at *5 (citing Mario Gates v. State, No. W2002-02873-CCA-R3-PC, 2003 WL
23100815, at *2 (Tenn. Crim. App. Dec. 31, 2003); John Harold Williams, Jr. v. State,
No. W1999-01731-CCA-R3-PC, 2000 WL 303432, at *1 (Tenn. Crim. App. Mar. 23,
2000)).

        The Petitioner, however, failed to file an application for permission to appeal in
this court. Rather, the Petitioner filed a motion to reconsider in the post-conviction court.
Neither Tennessee Code Annotated section 40-30-117 nor Tennessee Supreme Court
Rule 28, section 10(B) provide that the thirty-day time period for filing an application for
permission to appeal in this court may be tolled by the filing of a motion to reconsider.
The Petitioner eventually filed a notice of appeal. While a notice of appeal may be
construed as an application for permission to appeal, it must “contain sufficient substance
that it may be effectively treated as an application for permission to appeal,” including
“the date and judgment from which the petitioner seeks review, the issue which the
petitioner seeks to raise, and the reasons why the appellate court should grant review.”
Graham v. State, 90 S.W.3d 687, 691 (Tenn. 2002). The Petitioner’s notice of appeal
was not filed within thirty days of entry of the post-conviction court’s order denying the
motion and did not include sufficient substance to be treated as an application for
permission to appeal. The notice did not state the issues for review or the reasons to
support the Petitioner’s claim for relief, and the Petitioner did not attach the required
documents to the filing. Accordingly, the Petitioner failed to properly seek review of the
post-conviction court’s denial of the motion to reopen, and we lack jurisdiction to review
the appeal of the motion to reopen the post-conviction petition.
                                            -4-
                           B. Petition for Post-Conviction Relief

        The post-conviction court, however, treated the Petitioner’s motion as an original
petition for post-conviction relief. Even if we were to treat the Petitioner’s motion as a
petition for post-conviction relief, we would still be required to dismiss the appeal. The
Petitioner stated in pleadings filed in the post-conviction court that he did not receive the
court’s June 6, 2016 order until July 18. Rather than file a notice of appeal upon
receiving the order, the Petitioner filed multiple motions to reconsider. This court has
recognized that “a motion to reconsider does not toll the thirty-day filing period for an
appeal from an order denying post-conviction relief.” John Ivory, 2015 WL 6873474, at
*2 (citing Michael Joe Boyd v. State, No. W1999-01981-CCA-R3-PC, 1999 WL
33261797, at *6 (Dec. 21, 1999); Sherman McDowell v. State, No. 62, 1991 WL 139727,
at *2 (Tenn. Crim. App. July 31, 1991)). The Petitioner did not file a notice of appeal
until September 27, 2016, more than three months after the post-conviction court entered
its order denying post-conviction relief.

        Tennessee Rule of Appellate Procedure 4(a) provides that “in all criminal cases
the ‘notice of appeal’ document is not jurisdictional and the filing of such document may
be waived in the interest of justice.” “‘In determining whether waiver is appropriate, this
court will consider the nature of the issues presented for review, the reasons for and the
length of the delay in seeking relief, and any other relevant factors present in the
particular case.’” State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007)
(quoting State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL
3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005)). “Waiver is not automatic and should
only occur when ‘the interest of justice’ mandates waiver. If this court were to
summarily grant a waiver whenever confronted with untimely notices, the thirty-day
requirement of Tennessee Rule of Appellate Procedure 4(a) would be rendered a legal
fiction.” Id. (citing Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL
63950, at *1 (Tenn. Crim. App. Feb. 13, 1996)).

        The Petitioner has not explained why he waited more than three months after entry
of the post-conviction court’s order before filing a notice of appeal or how waiving the
thirty-day deadline serves the interest of justice. The Petitioner has sought post-
conviction relief on multiple occasions, and this court has held that the petitions were
untimely filed and that the post-conviction court properly dismissed the petitions. See
Randall Turner, 2011 WL 2416927, at * 1-2; Randall Turner, 2014 WL 1018213, at *1-
2. We conclude that the interest of justice does not require waiving the untimely filing of
the Petitioner’s notice of appeal from the post-conviction court’s dismissal of the
Petitioner’s claims a petition for post-conviction relief.



                                            -5-
                            CONCLUSION

Based on the foregoing, we dismiss the appeal.



                                    ____________________________________
                                    JOHN EVERETT WILLIAMS, JUDGE




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