         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 23, 2003

                 JERRY LEE COWAN v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Blount County
                         No. C-7085 D. Kelly Thomas, Jr., Judge



                                  No. E2003-00652-CCA-R3-PC
                                       December 15, 2003

The petitioner, Jerry Lee Cowan, seeks appellate review of the Blount County Circuit Court’s denial
of his motion to reopen his 1992 post-conviction relief petition. Finding no merit in the appeal, we
affirm the lower court’s judgment.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

Jerry Lee Cowan, Pro Se.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and
James Michael Taylor, District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                On May 2, 1991, in response to the petitioner’s guilty plea, the Blount County Circuit
Court entered a judgment convicting the petitioner of second degree murder and sentencing him to
serve 35 years as a multiple offender in the Department of Correction. On October 16, 1992, the
petitioner filed a petition for post-conviction relief. On April 12, 1993, the post-conviction court
entered an order allowing the petitioner to withdraw his petition. On February 28, 2003, the
petitioner moved to reopen his 1992 post-conviction petition.

                 The motion to reopen alleged that newly discovered evidence that the victim died as
a result of medical malpractice would show that he is actually innocent of the homicide. The motion
reveals that the petitioner shoved the victim, his three-year-old stepson. The child sustained injuries
when he fell as a result of the petitioner’s shove. The petitioner claimed that during the course of
medical treatment for the child’s injuries, the victim lapsed into a coma. The child ultimately died
when his family terminated life support measures. Further, the petitioner alleged in his motion to
reopen that his trial counsel was aware, and failed to disclose, that medical malpractice resulted in
the victim’s death. Based upon this claim, he posited that his guilty plea was unknowing,
involuntary, and the result of ineffective assistance of counsel. He also alleged that counsel failed
to inform him that he would be denied parole upon attaining his release eligibility of 35 percent.
Finally, he alleged that the first degree murder indictment by which he was charged was defective
because it failed to allege the date of the offense.

               On March 7, 2003, the post-conviction court found that the motion “fails to set forth
any factual basis that supports reopening the petition pursuant to T.C.A. [section] 40-30-217.” The
court denied the motion to reopen.

               On March 17, 2003, the petitioner filed a notice of appeal.

               Tennessee Code Annotated section 40-30-117 provides:

                        (a) A petitioner may file a motion in the trial court to reopen
               the first post-conviction petition only if the following applies:

                       (1) The claim in the motion is based upon a final ruling of an
               appellate court establishing a constitutional right that was not
               recognized as existing at the time of trial, if retrospective application
               of that right is required. Such motion must be filed within one (1)
               year of the ruling of the highest state appellate court or the United
               States supreme court establishing a constitutional right that was not
               recognized as existing at the time of trial; or

                      (2) The claim in the motion is based upon new scientific
               evidence establishing that such petitioner is actually innocent of the
               offense or offenses for which the petitioner was convicted; or

                       (3) The claim asserted in the motion seeks relief from a
               sentence that was enhanced because of a previous conviction and
               such conviction in the case in which the claim is asserted was not a
               guilty plea with an agreed sentence, and the previous conviction has
               subsequently been held to be invalid, in which case the motion must
               be filed within one (1) year of the finality of the ruling holding the
               previous conviction to be invalid; and

                       (4) It appears that the facts underlying the claim, if true, would
               establish by clear and convincing evidence that the petitioner is
               entitled to have the conviction set aside or the sentence reduced.

                      (b) The motion must set out the factual basis underlying its
               claims and must be supported by affidavit. The factual information


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                set out in the affidavit shall be limited to information which, if
                offered at an evidentiary hearing, would be admissible through the
                testimony of the affiant under the rules of evidence. The motion shall
                be denied unless the factual allegations, if true, meet the requirements
                of subsection (a). If the court grants the motion, the procedure, relief
                and appellate provisions of this part shall apply.

Tenn. Code Ann. § 40-30-117(a), (b) (2003).

                 Appellate review of the denial of a motion to reopen a petition for post-conviction
relief is also governed by statute, rather than by the Rules of Appellate Procedure:

                If the motion [to reopen] is denied, the petitioner shall have ten (10)
                days to file an application in the court of criminal appeals seeking
                permission to appeal. The application shall be accompanied by
                copies of all the documents filed by both parties in the trial court and
                the order denying the motion. The state shall have ten (10) days to
                respond. The court of criminal appeals shall not grant the application
                unless it appears that the trial court abused its discretion in denying
                the motion. If it determines that the trial court did so abuse its
                discretion, the court of criminal appeals shall remand the matter to the
                trial court for further proceedings.

 Tenn. Code Ann. § 40-30-117(c) (2003) (emphasis added). “In order to obtain appellate review of
the trial court’s order, a petitioner must comply with the statutory requirements. The Rules of
Appellate Procedure do not provide for an appeal as of right in these cases.” John Harold Williams,
Jr. v. State, No. W1999-01731-CCA-R3-PC (Tenn. Crim. App., Jackson, Mar. 23, 2000) (order),
perm. app. denied (Tenn. 2000); see William Lee Drumbarger v. State, No. M1999-01444-CCA-R3-
PC, slip op. at 2 n.1 (Tenn. Crim. App., Nashville, Dec. 7, 1999) (Rules of Appellate Procedure not
applicable to application for permission to appeal the denial of motion to reopen post-conviction
proceeding).

                The petitioner’s notice of appeal, although filed within ten days of the entry of the
order denying the motion to reopen, does not comply with the statutory requirement of an application
for permission to appeal. For this reason alone, the appeal is subject to dismissal; however, as a
dispensation to the petitioner, we have considered whether we should treat the notice of appeal and
the petitioner’s brief as a de facto application for permission to appeal. In so doing, we are
compelled to agree with the post-conviction court that the claims contained in the motion to reopen
do not fit within the permissive rubrics of Code section 40-30-117(a).

                Although the petitioner claims that his homicide charge is baseless because the victim
died as a result of medical malpractice, we fail to see how that claim, as alleged and as articulated
in the petitioner’s brief, qualifies as new scientific evidence that the petitioner is actually innocent.


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Apparently, the current scientific knowledge about the victim’s death was available at the time of
death or shortly thereafter, and furthermore, the claim does not address the legal conundrum that the
petitioner is liable for the victim’s death despite the contribution of any unfortunate malpractice by
medical personnel. See Gray v. State, 194 Tenn. 234, 244, 250 S.W.2d 86, 90-91 (1952) (“To
warrant the escape of the person inflicting the injury from responsibility for the killing, the
subsequent neglect or mismanagement must have been the sole cause of death.”); Odeneal v. State,
128 Tenn. 60, 68, 157 S.W. 419, 421 (1913) (“One who unlawfully inflicts a dangerous wound upon
another is held for the consequences flowing from such injury, whether the sequence be direct or
through the operation of intermediate agencies dependent upon and arising out of the original cause.
One of these dependent occurrences is the necessity of surgical aid, which may eventuate as the
immediate cause of death.”). Thus, the conclusory allegations of the motion to reopen fail to
illustrate that the petitioner is actually innocent of the conviction offense.

                The petitioner’s claim that the indictment is infirm is not cognizable in the de facto
application for permission to appeal. The indictment is not included in the motion or in the appellate
record as a whole, and it is not before us for review. Furthermore, the claimed deficiencies of the
indictment do not appear to fit within any of the permissive rubrics of Code section 40-30-117(a).

                 Finally, we have reviewed the transcript of the petitioner’s May 1, 1991 plea
submission hearing that was filed in the post-conviction court on January 25, 1993, and was included
within the appellate record. The transcript reveals that the petitioner entered a best-interests plea of
guilty to second degree murder as a means of avoiding a potential penalty for first degree murder.
The trial court engaged the petitioner in a full review of his rights and options, and the transcript
reflects that the petitioner actively waived his rights and assented to the plea and the stipulated
penalty. Furthermore, the court thoroughly explained to the petitioner the meaning of release
eligibility and that ultimately the release date would depend upon the administrative decision of the
Department of Correction. The petitioner acknowledged his understanding of the statutory release
eligibility scheme.

               Accordingly, we discern no basis for granting permission to appeal. We note that,
in his motion and brief, the petitioner acknowledges that he filed the 2003 motion to reopen after he
was denied parole. We also note that although the petitioner withdrew his initial post-conviction
petition on April 12, 1993, he had until May 2, 1994 to re-file a petition for post-conviction relief.
See Tenn. Code Ann. § 40-30-102 (1990) (amended 1995) (establishing a three-year statute of
limitations). We remind the petitioner that the state has a valid and preeminent interest in the finality
of criminal convictions. State ex rel Stewart v. McWherter, 857 S.W.2d 875, 877 (Tenn. Crim. App.
1992). For this reason, “[t]ime is of the essence of the right to file a petition for post-conviction
relief or motion to reopen established by [the post-conviction] chapter. . . .” Tenn. Code Ann. §
40-30-102(a) (2003).

               Discerning no basis for granting an appeal in this cause, we deny the de facto
application and dismiss the appeal.



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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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