        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs September 25, 2001

                   JOSEPH HOUGH v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Hamblen County
                         No. 96-CR-008 James E. Beckner, Judge



                                 No. E2000-02653-CCA-R3-PC
                                        October 9, 2001

The petitioner’s first post-conviction petition was dismissed in 1996, the petitioner, apparently,
having been released from custody before the hearing and not appearing at the hearing to testify.
Back in custody, at some point, he filed in 2000 a motion to reopen his petition, which was denied.
He then filed an untimely appeal from that dismissal and proceeded, on appeal, as if the motion had
been granted and the issues were those raised in his 1996 petition. Based upon our review, we
conclude that the appeal should be dismissed because it was untimely.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOE G.
RILEY, JJ., joined.

Joseph Hough, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; C. Berkeley Bell, District Attorney General; and Victor J. Vaughn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                           DISCUSSION
        The petitioner, Joseph Hough, was convicted of one count of theft of property over $1000
but less than $10,000 and three counts of theft of property valued at $500 or less, receiving
sentences, respectively, of three years and six months and eleven months and twenty-nine days, the
sentences to be served concurrently. The convictions were affirmed by this court on direct appeal
in State v. Joseph Hough, No. 03C01-9404-CR-00143, 1995 WL 358070 (Tenn. Crim. App. June
13, 1995). He filed a pro se petition for post-conviction relief on January 10, 1996, alleging
ineffective assistance of counsel, as well as other matters. The public defender was appointed to
represent him, and the matter was set for hearing on March 15, 1996. According to an order entered
by the post-conviction court on July 19, 1996, the hearing, apparently, was reset on several
occasions, with a notice, and then a notice by certified mail, being sent to the petitioner to advise him
of the resetting. The order recites that “Defendant was released from the Department of Correction
and went directly to Georgia.” The post-conviction court dismissed the petition on July 19, 1996.

        The next action in the matter occurred when the petitioner filed a motion to reopen his post-
conviction petition. Although the record does not reflect the date upon which this motion was filed,
it appears that it occurred in late May 2000, the motion bearing the notary seal of May 26, 2000. In
the motion, a chronology, apparently in the petitioner’s handwriting, not explaining why he failed
to appear at the July 1996 hearing on his original petition, claimed that in November 1996, he was
involved in a “wreck”; in September 1997, he was “release[d]”; and on June 12, 1998, he was
apparently rearrested.

       In his motion to reopen, as the new scientific evidence establishing his actual innocence, the
following ground was given: “The original document I sign with detective Kilgore - has X on the
sides. The information could be included as the Brady material.” The petitioner alleges that he
became aware of this evidence in March 2000, when he “started researching Tenn Jury Instruction
Rule book.” He then stated that the new evidence established his actual innocence, because
Tennessee Pattern Jury Instruction 42.20 - Inference of Stolen Property, apparently would have
allowed the jury to find that he “bought the items honestly.”

        The motion to reopen was denied on June 23, 2000, and the petitioner then sent a notice of
appeal to the Hamblen County Criminal Court on August 16, 2000, according to the certificate of
service, the file-stamped date of the petition being August 22, 2000.

         On appeal, the petitioner does not argue why his petition to reopen should have been granted
but, instead, proceeds as if the appeal is from the dismissal of his original post-conviction petition,
the dismissal occurring in 1996, setting out, as the issues on appeal, whether he should have been
granted post-conviction relief, whether he was denied effective assistance of counsel, and whether
the trial court erred in allowing a document into evidence.

       The circumstances under which a previously dismissed post-conviction petition may be
reopened are set out in Tennessee Code Annotated Section 40-30-217:

                         (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-
                      (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
               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.

                       (c) If the motion 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.

       The petitioner has not presented scientific evidence showing his actual innocence or alleged
any other of the statutory reasons for reopening a petition for post-conviction relief. Instead, he has
rehashed on appeal, from the portion of the form motion for the detailing of such evidence,
complaints about the evidence allowed during his trial. Thus, since he made no showing of scientific
proof of his actual innocence, or even alleged its existence or any of the other statutory bases for
reopening, the post-conviction court was correct in denying his motion to reopen. Even if it had


                                                  -3-
been incorrect, however, the petitioner’s appeal of the dismissal was untimely, for an appeal from
such a dismissal must be made within ten days of the dismissal order. See Tenn. Code Ann. § 40-30-
217(c). The petitioner’s appeal, made approximately sixty days later, was untimely and should be
dismissed.

                                        CONCLUSION

       Based upon the foregoing authorities and reasoning, the appeal is dismissed.




                                                     ___________________________________
                                                     ALAN E. GLENN, JUDGE




                                               -4-
