                                                                                           02/27/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs January 18, 2017

                  GLORIA HOUSE v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hamilton County
                      No. 211691    Barry A. Steelman, Judge


                              No. E2016-01259-CCA-R3-PC


The petitioner, Gloria House, appeals the summary dismissal of her motion to reopen her
petition for post-conviction relief or, in the alternative, petition for writ of error coram
nobis, which pleading challenged her 1993 convictions of nine counts of aggravated
burglary, three counts of felony theft, and seven counts of misdemeanor theft. Discerning
no error, we affirm the summary dismissal of the petition.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Gloria House, Henning, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Lacy Wilbur, Assistant
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               During her 1993 bench trial, the petitioner pleaded guilty to two counts of
aggravated burglary, two counts of felony theft, and five counts of misdemeanor theft.
Gloria House v. State, No. 03C01-9802-CR-00069 (Tenn. Crim. App., Knoxville, Jan.
27, 1999). The trial court convicted the petitioner of the remaining seven counts of
aggravated burglary, one count of felony theft, and two counts of misdemeanor theft.
The trial court imposed a Range III, total effective sentence of 42 years’ incarceration to
be served consecutively to the petitioner’s previous nine-year sentence. See id. The
petitioner did not appeal her convictions or sentence and, instead, filed a petition for post-
conviction relief in July 1996. The post-conviction court dismissed the petition as time
barred, and this court affirmed the dismissal. See id.
               At some point, the petitioner filed an unsuccessful motion to reopen her
time barred petition for post-conviction relief, which motion alleged that the petitioner
had been deprived of the effective assistance of counsel. State v. Gloria House, No.
E2002-00439-CCA-R28-PC (Tenn. Crim. App., Knoxville, May 22, 2002) (Order). This
court affirmed the denial of the petitioner’s first motion to reopen, finding that the motion
was time barred and that the petitioner had failed to allege any facts that would prevent
the strict application of the statute of limitations. See id.

               On March 1, 2016, the petitioner filed the pleading at issue in this case,
which she styled as a motion to reopen her petition for post-conviction relief or, in the
alternative, a petition for writ of error coram nobis. The petitioner alleged that she had
acquired newly discovered evidence to support her previously-alleged claims of
ineffective assistance of counsel. She claimed that documents she received from the
Board of Professional Responsibility of the Supreme Court of Tennessee (“BPR”)
established that trial counsel’s deficient performance violated principles of due process.
The petitioner appended to her petition her correspondence with the BPR.

                On March 22, 2016, the trial court entered an order summarily denying the
petition. The court found that, as a second motion to reopen the petitioner’s petition for
post-conviction relief, the pleading failed to allege cognizable grounds for reopening the
petition, that the grounds alleged had been previously determined in the petitioner’s first
motion to reopen, and that the petitioner had failed to establish that principles of due
process precluded the strict application of the statute of limitations in her case. The court
found that the petitioner had failed to allege any grounds for coram nobis relief, noting
that the petitioner’s “new” evidence was restricted to her claims for post-conviction relief
and that the petitioner was aware of all the allegedly new evidence prior to filing her first,
time-barred petition for post-conviction relief. In its order, the trial court admonished the
petitioner that she had 30 days within which to file an application for permission to
appeal the denial of her motion to reopen her petition for post-conviction relief and 30
days within which to perfect an appeal of the denial of her claim to coram nobis relief.

               On June 13, 2016, the petitioner sent a notice of her intent to file a notice of
appeal after an attorney completed a review of the record. On July 5, 2016, the petitioner
filed a pro se notice of appeal in the trial court.

              As the State correctly points out, the petitioner has failed to satisfy the
statutory requirements for perfecting an appeal of the denial of her motion to reopen her
post-conviction petition. “[A]n appeal from the denial of a motion to reopen is a
discretionary appeal, not an appeal as of right.” Fletcher v. State, 951 S.W.2d 378, 382
(Tenn. 1997); see also Tenn. R. App. P. 3(b). The process for appealing the denial of a
motion to reopen is outlined in Code section 40-30-117, which provides that, upon denial
                                              -2-
of a motion to reopen a post-conviction petition, “the petitioner shall have thirty (30)
days to file an application in the court of criminal appeals seeking permission to appeal.”
T.C.A. § 40-30-117(c) (emphasis added). Although a pleading styled “‘notice of appeal,’
. . . may be effectively treated as an application for permission to appeal,” it must
nevertheless comply with the requirements of Code section 40-30-117(c). Graham v.
State, 90 S.W.3d 687, 691 (Tenn. 2002). Because the petitioner failed to file an
application for permission to appeal in this court, choosing instead to file a notice of
appeal with the clerk of the lower court, we are without jurisdiction to review the denial
of her motion to reopen her petition.

               With regard to the petitioner’s claim that the trial court erred by denying
coram nobis relief, we note that the petitioner initially sent a letter indicating her intent to
appeal the trial court’s May 22, 2016 order on June 13, 2016. She did not actually file a
notice of appeal until July 5, 2016. Arguably, the petitioner’s appeal is untimely. That
being said, the notice of appeal document is not jurisdictional in criminal cases and may
be waived in the interests of justice. See Tenn. R. App. P. 4(a).

              The petitioner claimed entitlement to coram nobis relief on grounds that she
had obtained newly discovered evidence in the form of information obtained from the
BPR in support of her previous claim of ineffective assistance of counsel. The State
contends that the trial court properly denied the petition for writ of error coram nobis
because the petitioner failed to allege any newly discovered evidence that touches upon
the question of her guilt or innocence.

             A 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) (citation omitted). Coram nobis relief is provided for in criminal cases by
statute:

              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
              a 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.
                                              -3-
T.C.A. § 40-26-105(b) (2006); see State v. Vasques, 221 S.W.3d 514, 525-28 (Tenn.
2007) (describing standard of review as “‘whether a reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceedings
might have been different’” (citation omitted)).

               As an initial matter, the writ of error coram nobis is unavailable to attack
the petitioner’s guilty-pleaded convictions. Frazier v. State, 495 S.W.3d 246, 248 (Tenn.
2016) (holding “that a guilty plea may not be collaterally attacked pursuant to the coram
nobis statute”). Moreover, the evidence propounded by the petitioner relates only to her
post-conviction claim of ineffective assistance of counsel. The writ of error coram nobis
is available only to address the impact of “newly discovered evidence relating to matters
which were litigated at the trial.” T.C.A. § 40-26-105; see also Frazier, 495 S.W.3d at
250 (“The plain and ordinary meaning of the term ‘litigated on [or at] the trial’ in the
context of criminal prosecutions refers to a contested proceeding involving the
submission of evidence to a fact-finder who then must assess and weigh the proof in light
of the applicable law and arrive at a verdict of guilt or acquittal.” (emphasis added)). In
consequence, the trial court did not err by summarily dismissing the petition for writ of
error coram nobis.

             Accordingly, we affirm the judgment of the trial court.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




                                            -4-
