         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

                 JIMMY TOWNSEND v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. B-87143 W. Otis Higgs, Jr., Judge


                   No. W2008-02242-CCA-R3-CO - Filed August 18, 2009


        The Petitioner, Jimmy Townsend, appeals the trial court’s denial of his petition for coram
nobis relief. The State has filed a motion requesting that this court affirm the trial court’s denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the State’s
motion is meritorious. Accordingly, we grant the State’s motion and affirm the judgment of the trial
court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
                  Pursuant to Rule 20 of the Court of Criminal Appeals

CAMILLE R. MCMULLEN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.

Jimmy Townsend, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Leslie E. Price, for the appellee, State of
Tennessee.

                                   MEMORANDUM OPINION

         In 1983, the petitioner pled guilty to selling a controlled substance and unlawful possession
of a controlled substance with intent to sell and deliver. He received a maximum sentence of four
years in confinement, to be served concurrently to other unrelated cases. Almost twenty-five years
after his conviction, the petitioner filed a “motion for writ of error coram nobis or in the alternative
withdraw guilty plea,” arguing that he was not properly advised of the consequences of his guilty
plea and that he was improperly denied the opportunity to address the court for leniency during
sentencing. The Criminal Court for Shelby County dismissed the petitioner’s writ of error coram
nobis because it was filed outside the statute of limitations, without any factual merit, and failed to
state a claim that would entitle him to relief.

        The petitioner now appeals the dismissal of his motion for writ of error coram nobis and re-
submits the same arguments that were presented to the trial court. Consequently, the State has filed
a motion requesting that this court affirm the trial court’s dismissal of relief pursuant to Rule 20,
Rules of the Tennessee Court of Criminal Appeals. The State asserts that the petition is time-barred
and fails to raise a cognizable claim for coram nobis relief. We agree with the State.
        Relief by petition for writ of error coram nobis is provided for in Tennessee Code Annotated
section 40-26-105. The statute provides, in pertinent part:

               The relief obtainable by this proceeding shall be confined to errors dehors the
       record and to matters that were not or could not have been litigated on the trial of the
       case, on a motion for new trial, on appeal in the nature of a writ of error, on writ of
       error, or in a habeas corpus proceeding. 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 were litigated at the trial if the judge determines that such
       evidence may have resulted in a different judgment, had it been presented at the trial.
       The issue shall be tried by the court without the intervention of a jury, and if the
       decision be in favor of the petitioner, the judgment complained of shall be set aside
       and the defendant shall be granted a new trial in that cause.

T.C.A. § 40-26-105 (b) and (c).

      When the petition addresses newly or subsequently discovered evidence, the evidence must
be admissible under the rules of evidence and material to an issue raised in the petition. Hart, 911
S.W.2d at 375. The petition must state:

               (1) the grounds and the nature of the newly discovered evidence;
               (2) why the admissibility of the newly discovered evidence may have resulted in a
               different judgment had the evidence been admitted at the previous trial;
               (3) the petitioner was without fault in failing to present the newly discovered
               evidence at the appropriate time; and
               (4) the relief sought by the petitioner.

Newsome v. State, 995 S.W.2d 129, 133 (Tenn.Crim.App.1998) (citing Hart, 911 S.W.2d at 374-75).
Moreover, the decision to grant or deny a petition for writ of error coram nobis on the ground of
newly discovered evidence rests within the sound discretion of the trial court. Hart, 911 S.W.2d at
375; see T.C.A. § 40-26-105. Finally, the writ of error coram nobis is an “extraordinary procedural
remedy,” filling only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672
(Tenn. 1999). The “purpose of this remedy ‘is to bring to the attention of the court some fact
unknown to the court, which if known would have resulted in a different judgment.’” State v. Hart,
911 S.W.2d 371, 374 (Tenn. Crim. App. 1995) (quoting State ex rel. Carlson v. State, 407 S.W.2d
16, 167 (Tenn. 1966)).

        The statute of limitations for a writ of error coram nobis is one year from the date the
judgment becomes final in the trial court. T.C.A.§§ 27-7-103, 40-26-105; Mixon, 983 S.W.2d at
671. A judgment becomes final, for purposes of coram nobis relief, thirty days after the entry of the
judgment in the trial court if no post-trial motion is filed. Mixon, 983 S.W.2d at 670. Here, the
petitioner pled guilty on October 30, 1983, did not file any post-trial motions, and did not file his
petition for writ of error coram nobis until April 9, 2008. The State filed a motion to dismiss arguing
the petition was untimely and failed to state a claim for relief. The trial court summarily dismissed
the petition, finding that the petition was filed outside of the one-year statute of limitations
applicable to coram nobis proceedings and that the petitioner’s issues were without merit. The

                                                 -2-
petitioner does not provide an explanation for the over twenty-year delay in filing the petition for
writ of error coram nobis in this case and does not implicate any due process concerns that would
require the statue of limitations to be tolled. See Workman v. State, 41 S.W.3d 100, 103 (Tenn.
2001) (holding that due process concerns may require that the statute of limitations for filing a
petition for writ of error coram nobis be tolled). Accordingly, the petition is time barred.

        Notwithstanding our above conclusion, the petition fails to assert subsequent or newly
discovered evidence, as required for a writ of error coram nobis. Here, the petitioner’s issues
include: “(1) whether the plea of guilty should be set aside because it was the product of false
assurances that the prosecutor would recommend consolidation of sentences; (2) whether the plea
should be set aside because the court below fail[ed] to inform appellant of applicable mandatory
minimum maximum penalty and special parole term and supervise[d] relief; and (3) whether the
appellant was denied an opportunity to address the court for leniency during his sentencing toward
punishment[.]” In the petitioner’s first issue, he argues that he was coerced into pleading guilty
because he was told that he would receive a consolidated sentence. In his second issue, he argues
that his plea should be set aside because the trial court failed to advise him of his “mandatory
minimum penalty and special parol term and supervise relief.” In his third issue, he argues that the
record and sentencing transcript will show that the trial court “silenced [him] after he made an
attempt to address the court with mitigation toward punishment . . .” None of the petitioner’s claims
present “subsequently or newly discovered evidence ... [which] may have resulted in a different
judgment, had [they] been presented at trial.” Even if we were inclined to consider the issues raised
by the petitioner, we are unable to do so because he failed to include transcripts of the guilty plea
colloquy and the sentencing hearing for our review in this appeal. See T.R.A.P. 24; T.C.A. §
40-35-210(b) (“It is the duty of the defendant to prepare a fair, accurate, and complete record on
appeal to enable meaningful appellate review. Failure to include the transcript of the guilty plea
hearing in the record prohibits the court’s conducting a full de novo review of the sentence[.]”).
Accordingly, we conclude that the trial court properly denied the motion for writ of error coram
nobis.

        When an opinion would have no precedential value, the Court of Criminal Appeals may
affirm the judgment or action of the trial court by memorandum opinion when the judgment is
rendered or the action taken in a proceeding without a jury and such judgment or action is not a
determination of guilt, and the evidence does not preponderate against the finding of the trial judge.
See Tenn. R. Ct. Crim. App. 20. We conclude that this case satisfies the criteria of Rule 20.
Accordingly, it is ordered that the State’s motion is granted. The judgment of the trial court is
affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.



                                                       ______________________________
                                                       CAMILLE R. McMULLEN, JUDGE




                                                 -3-
