        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 18, 2011

             JOE CLARK MITCHELL v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court of Maury County
                  No. 311-12 et al.  Robert L. Holloway, Jr., Judge




               No. M2011-00688-CCA-R3-CO - Filed December 20, 2011


The Petitioner, Joe Clark Mitchell, was convicted in 1986 of multiple offenses following a
violent crime spree against two women. On March 8, 2011, the Petitioner filed a pro se writ
of error coram nobis alleging the existence of newly discovered evidence. Specifically, the
Petitioner alleged that, in 2010, his trial judge was “found guilty of illegally expunging” the
criminal records of convicted felons in exchange for a fee. The Petitioner also alleged that
because he “did not have sufficient funds to pay for a legal sentence,” he received a sentence
that was “illegal and void.” Lastly, the Petitioner alleged that his trial judge improperly
sentenced him as a persistent offender. Without holding an evidentiary hearing, the coram
nobis court summarily dismissed the petition. On appeal, the Petitioner argues that the coram
nobis court erred by dismissing his petition without a hearing. After a careful review of the
record, we affirm the judgment of the coram nobis court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J.,
and J OHN E VERETT W ILLIAMS, J., joined.

Joe Clark Mitchell, Only, Tennessee, appellant pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Lacy E. Wilber, Assistant Attorney
General; T. Michael Bottoms, District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                            Factual & Procedural Background

      The Petitioner was convicted by a jury in 1986 of two counts of aggravated assault,
two counts of armed robbery, two counts of aggravated kidnapping, one count of arson, one
count of first degree burglary, and two counts of aggravated rape. State v. Joe Clark
Mitchell, No. 87-152-III, 1988 WL 32362, at *1 (Tenn. Crim. App. Apr. 7, 1988), perm. app.
denied, (Tenn. June 27, 1988). As this Court detailed in its prior opinion on direct appeal:

               All of defendant’s convictions arose out of a single crime spree during
       which two women, one quite elderly, were terrorized for several hours. One
       of the victims testified that as she was leaving her friend’s house, a man started
       towards her across the lawn. He hit her several times with a large stick, and
       he was armed with a gun and a hunting knife. He forced both women into the
       house, used duct tape to tape their ankles, arms, mouths, and eyes. He stole
       their jewelry and ransacked the house. He used a knife to cut the clothes off
       the testifying witness and raped her. Then he set fire to the house. He carried
       both women to a car, drove around for several hours, stopping at one point to
       rape the witness one more time. He eventually abandoned the car and the
       women, and they were able to free themselves and walk for help.

Id.

       On direct appeal, this Court affirmed the trial court’s judgment in all respects except
that one of the aggravated rape counts was reduced to simple rape. Id. Our decision left the
Petitioner with an effective sentence of three consecutive life sentences plus thirteen years.
Id.

        The Petitioner sought post-conviction relief. Both the trial court and this Court denied
post-conviction relief. See Joe Clark Mitchell v. State, No. 01-C-01-9007-CC-00158, 1991
WL 1351 (Tenn. Crim. App. Jan. 11, 1991), perm. app. denied, (Tenn. Apr. 15, 1991). The
Petitioner since has filed multiple writs of habeas corpus, which have each been denied. The
Petitioner’s lengthy procedural history in the appellate courts of this State was set out in
detail in this Court’s prior opinion following the dismissal of his most recent writ of habeas
corpus. Joe Clark Mitchell v. Fortner, No. M2010-00269-CCA-R3-HC, 2010 WL 3516166,
at *1-3 (Tenn. Crim. App. Sept. 9, 2010), perm. app. denied, (Tenn. Feb. 16, 2011).

       On March 8, 2011, the Petitioner filed the present writ of error coram nobis in which
he raised three issues. First, the Petitioner alleged that newly discovered evidence had

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surfaced that his trial judge had been found guilty of illegally expunging the criminal records
of two convicted felons in exchange for a fee. Second, the Petitioner alleged that his trial
judge did not follow the applicable law in rendering his sentence and that the Petitioner
received his sentence only because he “did not have sufficient funds to pay for a legal
sentence.” Third, the Petitioner alleged that the trial judge “intentionally sentenced the
[P]etitioner as a persistent offender in direct contravention of T.C.A. § 40-35-106(a)(1)
(1982).”

      In an affidavit in support of his petition, the Petitioner averred, in pertinent part, as
follows:

        3.) I now know that my Criminal Trial/Sentencing Judge . . . on or about
        October 13, 2010[,] was finally charged for illegally expunging/wiping the
        records clean for convicted-felons that was [sic] financially able to pay him
        under the table for his valuable services.

        4.) I am competent to testify that prior to or/at the time of my trial and
        sentencing, that I was financially unable to pay [the trial judge] to wipe my
        record clean prior to sentencing so that I could be sentenced as a range I
        offender, unlike ‘convicted felons’ [name redacted] and [name redacted] to
        name a few!

               Nor was I able to pay [the trial judge] to sentence me within the bounds
        of Tennessee Statutory Law for which if called as a witness in the above
        captioned action I will testify to the same[.]

(Emphases in original).

       The coram nobis court summarily dismissed the petition by order entered March 9,
2011. The order of dismissal was entered before the State filed its response.1 Addressing
the Petitioner’s first issue, the coram nobis court reasoned that the two cases cited by the
Petitioner in which his trial judge expunged certain felons’ criminal records were not
factually related to the Petitioner’s case. The coram nobis court noted that both orders of
expungement were signed over twenty years after the Petitioner was sentenced. Moreover,
according to the coram nobis court, the only similarity between those cases and the
Petitioner’s was that the orders of expungement had been signed by the same trial judge who


        1
          Thus, the State did not have an opportunity to raise the statute of limitations as an affirmative
defense. Although the State raises the statute of limitations issue in its appellate brief, we will not address
this issue because it was not raised before the trial court.

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sentenced the Petitioner. Regarding the Petitioner’s second and third issues, the coram nobis
court concluded that the Petitioner failed to cite any “additional ‘newly discovered
evidence’” in support of these issues. The coram nobis court stated that it found “no
allegation, claim or proof of any newly discovered evidence which could have had an
influence in [the Petitioner’s] case or which related to matters litigated at the trial.” The
court concluded that the petition “is totally and completely without any merit whatsoever and
is frivolous.”

       The Petitioner timely appeals, asserting that the coram nobis court erred by dismissing
his writ of error coram nobis without holding an evidentiary hearing.

                                          Analysis

      A writ of error coram nobis is statutorily available to a defendant convicted in a
criminal prosecution. Tenn. Code Ann. § 40-26-105(a) (Supp. 2010). The statute provides
that:

       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.

Tenn. Code Ann. § 40-26-105(b) (Supp. 2010).

         “The writ of error coram nobis is an extraordinary remedy known more for its denial
than its approval.” State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). The remedy is
designed to fill “only a slight gap into which few cases fall.” Id. at 672. Before granting
relief, the trial court must be “reasonably well satisfied” with the veracity of the newly
discovered evidence and determine that the defendant is “without fault” in timely discovering
such evidence. State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). The trial court must
then review the evidence presented at trial and at the coram nobis proceeding and determine
“whether a reasonable basis exists for concluding that had the [new] evidence been presented
at trial, the result of the proceedings might have been different.” Id.

       Our Supreme Court has recognized that “coram nobis claims are not easily resolved
on the face of the petition and often require a hearing.” Harris v. State, 102 S.W.3d 587, 593
(Tenn. 2003). However, an evidentiary hearing is not statutorily required in every case. See
Alonzo Felix Andres Juan v. State, No. E2010-02147-CCA-R3-CD, 2011 WL 2693535, at

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*6 (Tenn. Crim. App. July 12, 2011), perm. app. denied, (Tenn. Oct. 18, 2011) (citations
omitted). This Court previously has explained that:

       Similar to habeas corpus hearings, coram nobis evidentiary hearings are not
       mandated by statute in every case as the petitioner argues. Specifically, a
       “habeas corpus petition may be dismissed without a hearing, and without the
       appointment of counsel for a hearing” if the petition does not allege facts
       showing that the petitioner is entitled to relief. State ex rel. Edmondson v.
       Henderson, 220 Tenn. 605, 421 S.W.2d 635, 636 (Tenn. 1967) (citing State ex
       rel. Byrd v. Bomar, 214 Tenn. 476, 381 S.W.2d 280 (Tenn. 1964)). Likewise,
       a coram nobis petition must state a claim for coram nobis relief and satisfy the
       threshold statutory requirements before the court holds an evidentiary hearing
       to determine whether the petitioner is entitled to coram nobis relief.

Id. (quoting Richard Hale Austin v. State, No. W2005–02591–CCA–R3–CO, 2006 WL
3626332, at *5 (Tenn. Crim. App., Jackson, Dec. 13, 2006)); see also Harris v. State, 301
S.W.3d 141, 153-54 (Tenn. 2010) (Koch, J., concurring).

       The decision whether to grant or deny a petition for writ of error coram nobis lies
within the discretionary authority of the trial court. Vasques, 221 S.W.3d at 527-28.
Consequently, we review such a decision for an abuse of discretion. State v. Workman, 111
S.W.3d 10, 18 (Tenn. Crim. App. 2002). An appellate court will find an abuse of discretion
“only when the trial court applied incorrect legal standards, reached an illogical conclusion,
based its decision on a clearly erroneous assessment of the evidence, or employed reasoning
that causes an injustice to the complaining party.” State v. Banks, 271 S.W.3d 90, 116
(Tenn. 2008) (citing Konvalinka v. Chattanooga–Hamilton Cnty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008)).

       After a thorough review of the record, we conclude that the coram nobis court did not
abuse its discretion in denying the Petitioner’s writ of error coram nobis without holding an
evidentiary hearing. On its face, the Petitioner’s writ of error coram nobis does not state a
claim for relief. The Petitioner’s claim that his trial judge expunged the criminal records of
two other felons is simply not germane to his case. In the first place, this does not constitute
newly discovered evidence because it is not evidence at all. The orders of expungement have
absolutely no bearing on the Petitioner’s guilt or innocence. They obviously do not relate to
matters that were litigated at his trial. Moreover, nothing the Petitioner alleges, if proven
true, would have resulted in a different judgment. The orders of expungement were entered
over twenty years after the Petitioner was convicted and were entered in separate criminal
proceedings against separate defendants whose cases were wholly unrelated to the
Petitioner’s.

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       We also agree with the coram nobis court that the Petitioner’s second and third issues,
which are both related to sentencing, do not allege the existence of newly discovered
evidence. Consequently, the Petitioner is not entitled to relief on these issues. Accordingly,
we affirm the judgment of the coram nobis court.




                                                   _________________________________
                                                   JEFFREY S. BIVINS, JUDGE




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