             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                           JANUARY 1998 SESSION
                                                      September 25, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

TIMOTHY BICKERS, THOMAS           )    No. 03C01-9706-CR-00218
CARTER, and GREGORY HEDGES,       )
                                  )
      Appellants                  )
                                  )    GREENE COUNTY
V.                                )
                                  )    HON. JAMES E. BECKNER,
STATE OF TENNESSEE,               )    JUDGE
                                  )
      Appellee.                   )    (Post-Conviction)
                                  )
                                  )


For the Appellants:                    For the Appellee:

Lionel R. Barrett                      John Knox Walkup
222 Second Avenue                      Attorney General and Reporter
Suite 418
Nashville, TN 37201                    Peter M. Coughlan
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493


                                       C. Berkeley Bell, Jr.
                                       District Attorney General
                                       109 S. Main Street
                                       Suite 501
                                       Greeneville, TN 37743




OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                                       OPINION


         The appellants, Timothy Bickers, Thomas Carter, and Gregory Hedges,1 appeal

as of right the dismissal in the Greene County Criminal Court of their petitions for post-

conviction relief. The trial court granted their motions to reopen, but found that the

petitions were barred by the statute of limitations and that the ground for relief was

waived. Although we conclude that the trial court erred in granting the motions to

reopen, we nevertheless affirm the trial court’s judgment dismissing the petitions for

post-conviction relief.

         Appellants were convicted in 1985 of seven offenses arising out of the

aggravated kidnapping and aggravated robbery of a bank manager and his wife.

Appellants Bickers and Carter received eighty (80) year sentences and appellant

Hedges was sentenced to ninety-six (96) years. The convictions and sentences were

affirmed by this Court on direct appeal. State v. Gregory A. Hedges, Thomas D.

Carter, and Timothy Bickers, No. 252 (Tenn. Crim. App. at Knoxville, April 15, 1987),

perm. app. denied (Tenn. 1987). Appellants’ subsequently filed separate post-

conviction petitions, which were denied by the trial court. This Court affirmed the

denials of relief in Bickers’ and Carter’s cases. See Timothy Thomas Bickers v. State,

No. 03C01-9311-CR-00361 (Tenn. Crim. App. at Knoxville, January 10, 1995), perm.

app. denied (Tenn. 1995); Thomas D. Carter v. State, No. 03C01-9203-CR-69 (Tenn.

Crim. App. at Knoxville, December 17, 1992), perm. app. denied (Tenn. 1993). A

panel of this Court vacated Hedges’ grand larceny conviction, but affirmed the trial

court in all other respects. Gregory Hedges v. State, No. 03C01-9112-CR-00379

(Tenn. Crim. App. at Knoxville, March 10, 1993), perm. app. denied (Tenn. 1993).




         1
          App ellant s initia ted th ese proc eed ings individ ually by f iling se para te m otion s to re ope n the ir
prior post-conviction proceedings. After the trial court dismissed their post-conviction petitions, they
proc eed ed jo intly. As a res ult, we have treate d the cas e as o ne ap pea l.

                                                             2
        On March 26, 1997, appellants filed motions to reopen their previous post-

conviction petitions, accompanied by writs of error coram nobis. 2 Appellants alleged

due process violations at their trial based upon the district attorney’s failure to disclose

a plea agreement with accomplice Janie Riddle, who was the State’s primary witness.

The trial court entered a preliminary order granting the motions to reopen, but

summarily dismissed the petitions without holding an evidentiary hearing. The trial

court denied relief because the statute of limitations had expired for both writs of error

coram nobis and the Post-Conviction Act. The trial court further found that the ground

for relief was easily discoverable, if not known to petitioners, prior to the first petitions

and, therefore, were waived because none of the appellants raised the issue at that

time.

        Appellants contend that the trial court erred in ruling that the ground for relief

had been waived. They assert that they did not learn of the concealed plea bargain

with Riddle until well after their first petitions for post-conviction relief had been

litigated. Therefore, they argue the ground may not be considered waived when they

were unaware it existed. We find it unnecessary to address appellants’ argument

because the dispositive issue is whether the trial court properly granted the motions to

reopen.

         As the basis to reopen the previous petitions, each appellant submitted “that

the facts underlying the claim, if true, would establish by clear and convincing

evidence that the Petitioner is entitled to have the convictions set aside and to be

granted a new trial.” In granting the motion, the trial court stated that the motion

alleged facts which, if proven by the applicable standard of proof, would afford the

petitioner a basis for reopening the petition. An examination of the applicable statute




        2
         The motions to reopen stated that the basis for relief was “set forth in the attached Petition for
Writ of Error Coram Nobis/Petition for Post-Conviction Relief.” While asserting the allegations in that
man ner doe s not co mply with th e statute, it do es not alte r our dete rmina tion on the m otions to re open.
Ten n. Co de A nn. § 40-3 0-21 7(b) (199 7) (s tating that m otion shou ld be a cco mp anied by affid avit
containing the factual basis underlying the claims).

                                                        3
reveals that appellants and the trial court relied upon an improper ground to reopen

the petitions.

       The Post-Conviction Act of 1995 sets forth limited circumstances in which a

motion to reopen may be granted. Under Tennessee Code Annotated section 40-30-

217, a motion to reopen may be filed when:

       (1) the claim in the motion is based upon a final ruling of an appellate
       court establishing a constitutional right that was not recognized as
       existing at the time of trial, if retrospective application of that right is
       required. Such motion must be filed within one (1) year of the ruling of
       the highest state appellate court or the United States supreme court
       establishing a constitutional right that was not recognized as existing at
       the time of trial; or

       (2) the claim in the motion is based upon new scientific evidence
       establishing that such petitioner is actually innocent of the offense or
       offenses for which the petitioner was convicted; or

       (3) the claim asserted in the motion seeks relief from a sentence that
       was enhanced because of a previous conviction and such conviction in
       the case in which the claim is asserted was not a guilty plea with an
       agreed sentence, and the previous conviction has subsequently been
       held to be invalid, in which case the motion must be filed within one (1)
       year of the finality of the ruling holding the previous conviction to be
       invalid; and

       (4) it appears 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.

The motion should be denied without a hearing unless it contains factual allegations

that meet one of the enumerated statutory circumstances. Tenn. Code Ann. §40-30-

217(b). See also Fletcher v. State, 951 S.W.2d 378, 380 (Tenn. 1997).

       The clear language of the statute reflects that only those events set out in the

first three subsections qualify as a basis for reopening a petition. The ground

asserted must meet the “clear and convincing” standard set forth in subsection (4).

Donald Wayne Easley v. State, No. 01C01-9609-CC-00407 (Tenn. Crim. App. at

Nashville, November 6, 1997), perm. app. denied (Tenn. 1998). Therefore, facts

described in either statutory ground (1), (2), or (3) must exist and the facts underlying

that ground must establish by clear and convincing evidence that the petitioner is



                                             4
entitled to have the conviction set aside. Subsection (4) of the statute is joined to the

preceding three grounds by the conjunctive “and;” it does not exist as an independent

ground for relief. As a result, the trial court erred in reopening the petitions based on

subsection (4) since the appellants failed to assert facts to support one of the three

statutory circumstances.

       Appellants’ allegations of prosecutorial misconduct do not satisfy any of the

circumstances contemplated by the statute. Appellants have not made a showing of a

new constitutional rule requiring retrospective application, new scientific evidence, or

that a previous conviction used for sentence enhancement has been set aside. In the

absence of facts to support one of the three statutory requirements, we deny

appellants’ motions to reopen their previous post-conviction petitions.



                                                 _______________________________
                                                 William M. Barker, Special Judge


CONCUR:


____________________________
Gary R. Wade, Presiding Judge


____________________________
Joseph M. Tipton, Judge




                                            5
