         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 11, 2005

                 KENNETH B. WHITE v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. P-27672    Joseph B. Dailey, Judge



                  No. W2004-00653-CCA-R3-CO - Filed February 17, 2005


The petitioner challenges the trial court’s denial of a delayed appeal by which to present his petition
for writ of error coram nobis. Upon review of the record, we conclude that the petitioner’s due
process right to appeal was not violated simply because he failed to take action to secure
representation. The record reflects that the petitioner was not declared indigent and that the onus in
obtaining representation rested with him. His coram nobis petition was outside the applicable statute
of limitations and was properly dismissed. We affirm.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and J.C.
MCLIN , JJ., joined.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Theresa McCusker and Steven Jones, Assistant
District Attorneys General, for the appellant, State of Tennessee.

James E. Thomas (on appeal) and Lee Gerald (at trial), Memphis, Tennessee, for the appellee,
Kenneth B. White.

                                             OPINION

                                    Facts and Procedural History

        The petitioner, Kenneth B. White, was convicted by a jury of vehicular homicide on January
29, 1999. He was sentenced to twelve years as a Range I, standard offender. He then filed a motion
for new trial, which was denied by the trial court. Four and a half years later, the petitioner filed a
pro se petition for writ of error coram nobis. The trial court subsequently appointed counsel, and
an amended petition was filed. Following two hearings to determine the appropriateness of a
delayed appeal, the trial court denied the petition. The petitioner now appeals to this Court, averring
that the trial court erred in denying the petition because his due process right to appeal was violated
when trial counsel failed to appeal his case after the petitioner requested that he do so.

        During the hearing on the motion for new trial, trial counsel questioned the petitioner on his
desire to appeal. The petitioner was initially questioned regarding his income stemming from Social
Security disability. In response, the petitioner stated that he received $800 a month in disability, but
stated that he “wasn’t sure” if he would continue to receive the check once incarcerated. Further,
the petitioner responded affirmatively when asked if counsel had informed him of the right to appeal
and of the costs that would be involved. When asked if he wanted to pursue an appeal, the petitioner
responded,
        Well, Your Honor, at this time I’m not concerned about getting it appealed. I just
        really want to go to my destination and go to the Department of Corrections at the
        nearest convenience so that I can start doing some time that I’ve been granted and
        that I may received [sic] some alcohol and drug program treatment.
At that point, the court noted its concern that the petitioner’s statements might be construed as a
waiver of his appeal. Upon further questioning by counsel, the petitioner stated that he did not
intend to waive his right to appeal by his earlier statement and that he wanted to appeal. On cross-
examination, the petitioner admitted that he received approximately $300 each month as income
from an annuity, in addition to his disability payment, for a total of $1100 in monthly total income.

        In denying the motion for new trial, the trial court found that it could not appoint counsel to
the petitioner due to the amount of his monthly income. The court further noted that even if his
disability check was discontinued, the annuity payment alone would be sufficient to make
incremental payments on the petitioner’s legal costs. The court also rejected trial counsel’s request
that the court order the funds paid toward to the costs of appeal, noting that, “[the representation is]
something between you and him as to whether or not he’s going to go forward with his appeal and
whether he’s willing to take his money that he’s receiving and pay for that.” Finally, the court
denied counsel’s motion to withdraw.

        Some four and a half years later, on September 10, 2003, the petitioner filed a pro se petition
for writ of error coram nobis, alleging that the proximate cause of the victim’s death was a defective
“T-top” hatch on her automobile. He further stated that he believed the State knew of these defects
but failed to inform him of them at the time of trial. He further explained the delay in his petition
by stating that he had only recently learned that trial counsel had failed to file an appeal on his
behalf. The State responded on October 1, 2003, demanding proof of the allegations contained in
the petition and requesting that the trial court appoint counsel to review the petition and file an
amended petition if necessary. The trial court appointed counsel to the petitioner that same day.

         On December 10, 2003, newly appointed counsel filed an amended motion styled “motion
to file out of time motion for error coram nobis.” In the motion, the petitioner stated that he made
his desire to appeal known during the hearing on his motion for new trial and in a conversation he
had with counsel following the hearing. However, counsel failed to file the appeal.



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        On December 15, 2003, a hearing was held to determine whether or not the petitioner should
be granted a delayed appeal by which to present his claims. Upon hearing arguments from both
counsel, the trial court determined that a full hearing was necessary to determine whether or not the
petitioner’s due process right to appeal had been violated by trial counsel’s failure to file an appeal
on the petitioner’s behalf. The trial court also requested that amended pleadings be filed to allege
with more specificity the claims sought to be presented.

         In his amended motion, the petitioner argued that strict application of the statute of
limitations would deny him due process. He further stated that if it was discovered that the petitioner
was unable to pay, it was counsel’s duty to inform the court of that fact. The State responded that
the petitioner failed to assert that an agreement had been reached to pursue the appeal. Rather, the
State argued, the petitioner merely asserted that he stated his desire to appeal during the motion for
new trial hearing. Further, the State averred that, according to the transcript from the motion for new
trial, the trial court did not declare the petitioner indigent, noted the time constraints on the appeal,
and indicated that it was the petitioner’s responsibility to make arrangements with counsel regarding
representation.

         On January 16, 2004, a full hearing was held in which both the petitioner and trial counsel
testified. On direct examination, the petitioner stated that, following the hearing on the motion for
new trial, he expressed to trial counsel his desire to go forward with an appeal. He further stated
that, although he was unable to pay counsel at that time, it was his understanding that the appeal
would go forward and would be filed by counsel. On cross-examination, the petitioner admitted that
he had a monthly income of $1100 at the time of the motion for new trial. He further testified that
he told counsel he would pay him “the best way [he] could,” but admitted that he never spoke to
counsel again after that conversation and never made a payment to him. The petitioner also admitted
that he was made aware of the appeal deadlines by both the trial court and counsel. On re-direct, the
petitioner stated that his disability check was discontinued after he was retained in state custody and
that he was unsure as to whether he still received the annuity check.

        Trial counsel then testified that he discussed with the petitioner his right to appeal, the fee
involved, and the time constraints on filing. Counsel further stated that the petitioner indicated
before the motion for new trial that he did not want to appeal the case. Moreover, he stated that after
the motion for new trial, the petitioner reiterated that he did not want to spend any more money
pursuing his appeal and that he wished to serve the sentence issued. Finally, counsel stated that after
their meeting following the motion for new trial, he heard nothing further from the petitioner or his
family. On cross-examination, counsel admitted that he did not ask the petitioner to sign an affidavit
indicating that he did not wish to pursue an appeal.

        Following the hearing, the court credited the testimony of trial counsel and found that the
petitioner waived his right to appeal. The court noted that the petitioner was advised by the trial
court of his right to appeal, the time limits involved, the need to hire an attorney, and that he was not
entitled to the appointment of an attorney because of his income. The court further noted that the
petitioner made no effort to retain another attorney or purchase the transcript. Furthermore, while


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the court acknowledged that no written waiver was signed, it concluded that all issues normally
addressed in a waiver were discussed fully at the hearing on the motion for new trial.

         The court also found that the petitioner did not allege that he received any assurances the
appeal would be filed. To the contrary, trial counsel made it known that he did not want to be
financially responsible for the appeal if the petitioner did not pay, and it appeared from the testimony
that the petitioner did not desire to spend any more money on his case. The court concluded that trial
counsel had no responsibility for the appeal after the petitioner failed to take steps to ensure
representation. On appeal, the petitioner contends that the trial court erred in denying his delayed
appeal. The State avers that the post-conviction court erred in not dismissing the petition as outside
the statute of limitations; alternatively, it asserts that the court properly denied the delayed appeal.

                                                Analysis

         Trial courts may grant a criminal defendant a new trial following a judgment of conviction
under limited circumstances through the extraordinary remedy offered by a writ of error coram nobis.
Tenn. Code Ann. § 40-26-105; State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). A writ of error
coram nobis may be granted where the defendant establishes the existence of newly discovered
evidence relating to matters litigated at trial if the defendant shows he was without fault in failing
to present the evidence at the proper time and if the judge determines the evidence may have resulted
in a different judgment had it been presented to the jury. Tenn. Code Ann. § 40-26-105; Mixon, 983
S.W.2d at 668. Finally, the one-year coram nobis statute of limitations begins to run either thirty
days after the entry of judgment, if no post-trial motion is filed, or upon entry of an order disposing
the post-trial motion, if filed. Mixon, 983 S.W.2d at 661.

         In the present case, the petitioner avers that the coram nobis statute of limitations should be
tolled due to a violation of due process. We note, as did the post-conviction court, that the petitioner
was advised of his right to an appeal, his responsibility in obtaining counsel, and the time limitations
in filing an appeal. Further, the petitioner admitted that he failed to contact trial counsel or make a
payment toward his appeal after their conversation following the hearing on the motion for new trial.
Finally, the petitioner fails to allege that he received assurance that his appeal would be filed by trial
counsel. The court made it clear that the onus in obtaining counsel rested with the petitioner, due
to his income and his lack of financial responsibility. We therefore conclude that the petitioner’s due
process right to appeal was not violated simply because he failed to take action in securing
representation for his appeal. As such, we hold that the petitioner was outside the applicable statute
of limitations for coram nobis relief and that the petition was properly dismissed. We affirm the
judgment of the trial court.




                                                         ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE


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