         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 5, 2007

              CHESTER FLOYD COLE v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Madison County
                          No. C-04-69    Roy B. Morgan, Jr., Judge



                     No. W2006-02138-CCA-R3-PC - Filed June 26, 2007


The petitioner, Chester Floyd Cole, appeals the denial of his motion to reopen his post-conviction
petition, arguing that newly discovered evidence of his rape victim’s medical examination would
have altered the outcome of his trial. Following our review, we dismiss the appeal.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and J.C.
MCLIN , JJ., joined.

Chester Floyd Cole, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Al Earls, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                             OPINION

                                               FACTS

        This case involves the petitioner’s conviction for rape of a child based on his April 1995 rape
of his stepdaughter, who was nine years old at the time of the offense. The victim, however, was
fifteen years old on March 15, 2000, the date that she first reported to the police that the petitioner
had been sexually abusing her since she was five years old. As a result of the victim’s revelations,
the Madison County Grand Jury indicted the petitioner on several counts of rape and rape of a child.
One count of rape of a child was severed from the other counts in the indictment, and the petitioner
was subsequently convicted by a Madison County jury of that offense. The State’s proof at trial
included the testimony of the then-sixteen-year-old victim as well as that of the victim’s brother, who
witnessed the April 1995 rape. See State v. Chester Floyd Cole, No. W2001-02871-CCA-R3-CD,
2002 WL 31895730, at *1 (Tenn. Crim. App. Dec. 31, 2002), perm. to appeal denied (Tenn. May
19, 2003). This court affirmed the conviction on appeal, but remanded for resentencing based on the
trial court’s failure to apply the pre-July 1995 sentencing guidelines when determining the
petitioner’s sentence. Id.

        In a later case involving the same victim, the petitioner was convicted by a Madison County
jury of incest and misdemeanor assault. Our direct appeal opinion in that case gives a synopsis of
the proceedings against the petitioner:

               This case relates to the defendant’s conduct with his step-daughter. The
       record reflects that a Madison County Grand Jury originally returned an indictment
       on September 5, 2000, charging the defendant with five counts of rape and two
       counts of rape of a child. Each offense occurred on a different date and was based
       on separate facts. The parties agreed to sever one count of rape of a child from the
       other six counts of the indictment and to proceed to trial on that count. The
       defendant was convicted of rape of a child and the trial court sentenced him to
       twenty-five years. On appeal, this court affirmed the defendant’s conviction but
       reduced his sentence to twenty-two years. See State v. Chester Floyd Cole,
       W2001-02871-CCA-R3-CD, Madison County (Tenn. Crim. App. Dec. 13, 2001).
       On April 1, 2002, a Madison County Grand Jury returned a superseding indictment,
       charging the defendant with the five untried counts of rape, the one untried count of
       rape of a child, and six corresponding counts of incest. The parties agreed to sever
       one count of rape and one count of incest and proceed to trial only on those counts.
       The state thereafter moved for a continuance, which the trial court denied, prompting
       the state to submit a nolle prosequi order of dismissal, which the trial court granted.
       On March 3, 2003, a Madison County Grand Jury again returned an indictment
       against the defendant, charging him with four of the five original counts of rape and
       four corresponding counts of incest. After the trial court denied the defendant’s
       motion to dismiss the incest counts, the parties agreed to sever one count of rape and
       a corresponding count of incest and proceed to trial. At the trial, the jury found the
       defendant not guilty of rape but guilty of the lesser included offense of Class B
       misdemeanor assault and of incest.

State v. Chester Floyd Cole, No. W2004-01200-CCA-R3-CD, 2005 WL 1541858, at *1 (Tenn.
Crim. App. June 30, 2005), perm. to appeal denied (Tenn. Nov. 28, 2005).

        On May 19, 2004, the petitioner filed a pro se petition for post-conviction relief from his
conviction for rape of a child in which he alleged various instances of ineffective assistance of
counsel. State v. Chester Floyd Cole, No. W2004-02463-CCA-R3-PC, 2005 WL 1656831, at *1
(Tenn. Crim. App. July 15, 2005), perm. to appeal denied (Tenn. Dec. 5, 2005). Subsequently, post-
conviction counsel was appointed, an amended petition filed, and an evidentiary hearing held. Id.
At the conclusion of the hearing, the post-conviction court dismissed the petition. Id. The petitioner
then appealed to this court, arguing that his trial counsel was ineffective for failing to adequately
communicate with him and for failing to call requested witnesses at trial. Id. Following our review,
we affirmed the dismissal of the petition. Id. at *5.


                                                 -2-
         On June 14, 2006, the petitioner filed a pro se motion to reopen his post-conviction petition.
Counsel was subsequently appointed to assist the petitioner, and a brief evidentiary hearing was held
on September 11, 2006. At that hearing, the petitioner acknowledged that all five of the grounds he
raised in his pro se motion revolved around his central allegation that the prosecutor withheld
exculpatory evidence, consisting of the victim’s medical examination, from his trial for rape of a
child. Specifically, the petitioner alleged that the State withheld the results of the victim’s March
15, 2000, physical examination by Dr. William Willis at Jackson General Hospital, which revealed
that the victim showed no signs of physical injury or abuse on March 15, 2000, despite her allegation
that the petitioner had forcibly raped her the previous day.

         The petitioner testified that his trial counsel did not provide him with discovery and that the
first time he saw a copy of the victim’s medical report was after this court granted his motion to
obtain the records associated with his case. Thereafter, he promptly filed his motion to reopen the
post-conviction proceedings. He believed that the outcome of his trial would have been different
had the jury seen the medical report. On cross-examination, the petitioner acknowledged he
admitted at his second trial that he had sexual intercourse with the victim but only after she was
fifteen years old. He said he was not aware that the indictments returned in the case listed the
victim’s “rape kit” in connection with the list of witnesses to be subpoenaed by the State.

        The trial court orally denied the petitioner’s motion at the conclusion of the hearing, and on
October 2, 2006, the petitioner filed a pro se notice of appeal in the Circuit Court of Madison
County. On November 1, 2006, the trial court’s written order denying the motion was entered. This
order states, in pertinent part:

       [T]he Court finds that the [petitioner] has failed to show by clear and convincing evidence
       he is entitled to the relief he requests. Specifically, the Court finds that:

       1. There has been no state or federal constitutional right created since this
          Petitioner’s conviction that entitles him to the relief he seeks.

       2. The medical records that the Petitioner refers to in his petition are not new
          scientific evidence.

       3. The medical records that the Petitioner refers to in his petition were available at
          trial and were disclosed to the Petitioner prior to trial.

       4. The medical records that the Petitioner refers to in his petition do not prove his
          actual innocence and are not exculpatory.

                                             ANALYSIS

       On appeal, the petitioner argues, among other things, that the victim’s medical report was
exculpatory evidence, which the prosecutor deliberately failed to disclose at his rape of a child trial.


                                                  -3-
The State responds that the petitioner’s appeal must be dismissed due to his failure to follow the
procedural requirements for appealing the denial of a motion to reopen a post-conviction petition.
In the alternative, the State argues that the post-conviction court properly denied the motion on the
basis that there were no grounds to reopen the post-conviction petition. We agree with the State.

       In order to obtain appellate review of the trial court’s denial of a motion to reopen a post-
conviction petition, a petitioner must comply with Tennessee Code Annotated section 40-30-117(c),
which provides as follows:

            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 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) (2006). A petitioner’s failure to comply with these statutory
requirements deprives this court of jurisdiction over the case. Mario Gates v. State, No.
W2002-02873-CCA-R3-PC, 2003 WL 23100815, at *2 (Tenn. Crim. App. Dec. 31, 2003). Here,
the petitioner has failed to comply with the statutory requirements for appellate review of the trial
court’s ruling. He filed his notice of appeal on October 2, 2006, more than ten days after the trial
court’s September 11, 2006, oral ruling from the bench, and before the November 1, 2006, entry of
the trial court’s written order denying the motion. Consequently, his application failed to contain
the trial court’s order denying the motion. It also failed to contain copies of the documents filed by
the parties in the trial court, and the application was filed in the wrong court. Accordingly, we are
without jurisdiction to entertain this appeal.

         Even if the petitioner had complied with the statutory requirements, he would not be entitled
to relief in this case. Tennessee Code Annotated section 40-30-117 provides that a petitioner may
file a motion in the trial court to reopen his first post-conviction petition only in limited
circumstances, including if “[t]he claim in the motion is based upon new scientific evidence
establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner
was convicted[.]” Tenn. Code Ann. § 40-30-117(a)(2). It must appear 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.” Tenn. Code Ann. § 40-30-117(a)(4). The
petitioner bases his claim for relief on the victim’s rape kit, which was available to him at the time
of his rape of a child trial. Moreover, the information contained in the report, that the victim showed
no signs of physical injury or abuse at her March 15, 2000, rape examination, does not establish the
petitioner’s innocence of the rape of child offense, which was based on an act that occurred in April
1995. As such, the trial court properly denied the petitioner’s motion to reopen the post-conviction
petition.


                                                   -4-
                                        CONCLUSION

        Following our review, we dismiss the petitioner’s appeal for lack of jurisdiction over the
case.

                                                     ___________________________________
                                                     ALAN E. GLENN, JUDGE




                                               -5-
