        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 5, 2012

          JUNIOR LENRO SMOTHERS v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Madison County
                       No. C-11-260     Roger A. Page, Judge




              No. W2011-02684-CCA-R3-PC - Filed December 13, 2012


Petitioner, Junior Lenro Smothers, filed a pro se petition for writ of error coram nobis
(“coram nobis petition”) in the Madison County Circuit Court attacking his two convictions
for aggravated statutory rape and one conviction for delivery of a schedule II controlled
substance. The coram nobis trial court summarily dismissed the petition without an
evidentiary hearing. Petitioner appeals, and we reverse the judgment of the trial court in part,
affirm in part, and remand for further proceedings.

                      Tenn. R. App. P. 3 Appeal as of Right;
 Judgment of the Circuit Court Reversed in Part, Affirmed in Part, and Remanded

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

Junior Lenro Smothers, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; James G. Woodall, District Attorney General; and Al Earls, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

       On May 14, 2008, in Madison County Circuit Court case number 08-40 Petitioner
entered “best interest” guilty pleas, pursuant to a negotiated plea agreement, to three
offenses: Count 1, aggravated statutory rape of an individual we identify as “A”; Count 2,
aggravated statutory rape of an individual we identify as “B”; and Count 14, delivery of a
schedule II controlled substance. Petitioner received a sentence of four years for each
aggravated statutory rape conviction and a sentence of six years for the drug conviction. All
sentences were ordered to be served consecutively for an effective sentence of 14 years.

       On October 7, 2011, Petitioner filed his coram nobis petition with the basis for relief
being recently discovered purported recantations made by victims A and B. The victim we
identify as B signed an affidavit on August 4, 2011, in which she stated in pertinent part:

        1. I was the alleged victim in the crimes alleged against Mr. Junior Lenro
        Smothers [Petitioner].

        2. I never have had any type of sexual relations, intercourse, or otherwise
        with Mr. Junior Lenro Smothers [Petitioner].

      Victim A did not sign an affidavit. Petitioner attached a printed copy of a social
network communication purportedly between Victim A and another person. The purported
communication by Victim A, according to the petition, exonerates Petitioner of the charge
in Count 1.

        The State filed a motion to dismiss the coram nobis petition because: (1) it was filed
outside the applicable one year statute of limitations; (2) a guilty plea cannot be attacked by
a petition for writ of error coram nobis; and (3) the court “should not place any significant
weight on the alleged recantation.” The State attached to its motion copies of incriminating
statements made by both victims, and also a copy of Petitioner’s statement to law
enforcement in which Petitioner confessed to multiple sexual penetrations of the victims.

       The trial court’s order dismissing the petition without an evidentiary hearing was
based on three grounds: (1) the petition was filed outside the one year statute of limitations,
see Tenn. Code Ann. § 27-7-103; (2) the writ of error coram nobis cannot be used to attack
a conviction based on a guilty plea; and (3) as concluded by the coram nobis court,
“Petitioner admitted guilt in his statements. The materials submitted by the Petitioner do not
adequately contradict the statements.”

       We conclude that Petitioner is not entitled to relief on appeal as to the conviction in
Count 14 of case number 08-40 for delivery of a schedule II controlled substance. The
purported newly discovered evidence has absolutely nothing to do with this conviction.
Likewise, Petitioner is not entitled to relief on appeal for the conviction of aggravated
statutory rape in Count 1 of case number 08-40 related to victim A. Victim A did not sign
an affidavit recanting any part of her prior statement(s), and the alleged unsworn social
network communication by victim A in this case does not rise to the level of evidence
necessary to support coram nobis relief, even if true. It does not name Petitioner, though it

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references someone who was Petitioner’s age, 67 years old, at the relevant time. The social
network communication is between two persons who use the monikers of “Autumns
Mommy” and “Candy Eyes.” The whole series of multiple communications occurred
between March 22, 2010, at 10:28 p.m. and March 24, 2010, at 4:21 a.m., and can best be
described as a very antagonistic exchange of insults and vulgarities. In it, the person who is
allegedly Victim A includes the comments, “he has never done anything to me he only tried
he didn’t get the time becuz [sic] of me . . . he was 67 . . . .” These vague references,
unsworn to and in the context given, do not support proceeding with a hearing as to Count
1. See Harris v. State, 301 S.W.3d 141, 153-54 (Tenn. 2010) (Koch, J., concurring) (“While
there are certainly petitions for a writ of error coram nobis that cannot be easily resolved on
the face of the petition alone . . . trial courts need only conduct evidentiary hearings when
they are essential.”) (citing Larry W. Yackle, Postconviction Remedies § 1:10 (2009)).

       We will now address the issue regarding summary dismissal of the petition as to the
conviction for aggravated statutory rape of Victim B as alleged in Count 2 of case number
08-40.

       The coram nobis court’s order summarily dismissing the petition was filed November
17, 2011, seven days after the State’s motion to dismiss was filed. In a letter from Petitioner
to the coram nobis court dated November 28, 2011, Petitioner stated that he had never
received the “response” filed by the State and asked the court to withdraw its order of
dismissal and allow Petitioner time to reply. The coram nobis court entered an order on
December 5, 2011, denying Petitioner’s request for the coram nobis court to reconsider its
previous order dismissing the petition.

       Included in the appellate record is a handwritten statement, purportedly signed by
Petitioner, that asserts he was threatened and forced to sign his statement, and that he was not
advised of his rights before he signed the document. He further stated that the statement in
fact was the words of Sgt. Michael Doran (law enforcement officer) and not Petitioner.

       In his petition for coram nobis relief, Petitioner alleged that the statute of limitations
should be tolled “so as to not offend due process requirements, since the newly discovered
evidence was unknown during the one year limitation period.” Petitioner alleged that the
recantation evidence was not discovered until April 3, 2011. In its order of dismissal, the
coram nobis court did not address Petitioner’s claim that the statute of limitations should
have been tolled on due process grounds.

       In light of our supreme court’s recent decision in Wlodarz v. State, 361 S.W.3d 490
(Tenn. 2012), the coram nobis court’s basis to dismiss the petition because it attacked a guilty
plea was not appropriate. In its motion to dismiss, the State acknowledged that “the issue of

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whether a guilty plea can be challenged by the writ of error coram nobis is currently
[pending] before the Tennessee Supreme Court” in Wlodarz. In Wlodarz the supreme court
held that guilty pleas can be attacked pursuant to the coram nobis statute. Id. at 503.

        In Arthur W. Stamey, III v. State, No. E2008-01061-CCA-R3-PC, 2009 WL 102940
(Tenn. Crim. App. Jan. 12, 2009), perm. app. denied (Tenn. June 17, 2010), the petitioner
in a coram nobis proceeding attacked his conviction of aggravated sexual battery which was
the result of a guilty plea. The petitioner filed his petition beyond the one year statute of
limitations for coram nobis proceedings set forth in Tennessee Code Annotated section 27-7-
103 (2000), but alleged that newly discovered, exculpatory evidence was not discovered by
him until more than three years after his guilty plea. The exculpatory evidence consisted of
statements given by the alleged victim to an interviewer at a Child Advocacy Center, and the
statements had not been provided by the State to the petitioner prior to his guilty plea. In
Arthur W. Stamey, III, the coram nobis trial court summarily dismissed the petition without
making findings regarding the petitioner’s due process tolling claim. Id. at *3. This Court
in Arthur W. Stamey, III, held

                Because the petitioner alleged grounds that, if true, would require the
        tolling of the coram nobis statute of limitations, the coram nobis court
        should not have dismissed the petition as time-barred in the absence of any
        findings regarding the petitioner’s due process tolling claim. Further,
        because the evidence advanced by the petitioner is not otherwise barred
        from consideration in a coram nobis proceeding, summary dismissal was
        not otherwise warranted. In consequence, the judgment of the coram nobis
        court is reversed, and the case is remanded for a hearing to determine
        whether due process principles require the tolling of the statute of
        limitations in this case. Specifically, the coram nobis court should
        determine whether the State withheld the statements at issue as the
        petitioner alleges and, if so, whether the bar of the statute of limitations
        would deprive the petitioner of the opportunity to present his claims at a
        meaningful time and in a meaningful manner.

Id.

       Thus, the coram nobis trial court erred in this case by summarily dismissing the
petition on the statute of limitations issue.

      Finally, the coram nobis court erred by dismissing the petition based upon a finding,
without evidence having been admitted at a hearing, that Petitioner’s statement to law
enforcement was not adequately contradicted by the recantation affidavit of Victim B. This

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is especially relevant in this case because the coram nobis court summarily dismissed the
petition without allowing Petitioner to respond to the State’s motion to dismiss.

        In consideration of the entire record, we conclude Petitioner is entitled to a hearing
on his petition as to the conviction in Count 2 of case number 08-40. The coram nobis
court’s order summarily dismissing the petition as to this count is reversed; this cause is
remanded to the trial court for a hearing to determine whether due process principles require
tolling of the statute of limitations as to Count 2. In the event the statute of limitations must
be tolled, the trial court shall have an evidentiary hearing on the merits of the petition as to
Count 2. The trial court shall first determine if Petitioner is entitled to the appointment of
counsel as per his request in the petition. Otherwise, as to the conviction in Count 1 for
aggravated statutory rape and in Count 14 for delivery of a schedule II controlled substance,
the summary dismissal of the petition for coram nobis relief is affirmed.

                                       CONCLUSION

       The judgment of the coram nobis court summarily dismissing the petition as to Count
2 of case number 08-40 is reversed and this case is remanded to the coram nobis trial court
for proceedings consistent with this opinion. As to Counts 1 and 14 of case number 08-40,
the judgment of the coram nobis court is affirmed.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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