         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs October 27, 2009

            MICHAEL JOSEPH GRANT v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Bradley County
                        No. 08-585    Carroll L. Ross, Judge




                  No. E2009-00311-CCA-R3-PC - Filed March 18, 2010


The petitioner, Michael Joseph Grant, appeals the summary dismissal of his petition for writ of error
coram nobis. The petitioner claims the trial court should have held an evidentiary hearing and
allowed evidence of witness statements that would have impacted the outcome of the proceedings.
We conclude the writ of error coram nobis upon this record is not available to the petitioner
because he pled guilty. The summary dismissal is affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., joined. JAMES C URWOOD W ITT, J R., J., not participating.

Michael Joseph Grant, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Robert Steve Bebb, District Attorney General; and A. Wayne Carter, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        On October 8, 2007, the petitioner entered a plea of guilty to one count of aggravated
burglary and one count of theft for which he received an effective four-year suspended
sentence. On January 31, 2008, the petitioner was taken into custody for violation of
probation. On March 3, 2008, his probation was revoked. Shortly thereafter, the petitioner’s
paramour contacted one of the State’s witnesses, Kenneth Croft, who later executed a written
statement claiming that the investigating detective misled him when he signed a statement
for the police accusing the petitioner of the crime. The alleged statement also claimed that
Mr. Croft did not know the petitioner when he gave his statement to the police.
        The petitioner filed a pro se petition for post-conviction relief on June 4, 2008. The
petition was dismissed without a hearing on July 11, 2008. The petitioner filed a notice of
appeal on August 11, 2008, and filed for a stay of his appeal to file a petition for writ of error
coram nobis relief on September 29, 2008. This court denied his motion for a stay of appeal.
The petitioner filed his petition for error coram nobis on October 1, 2008. In his petition for
relief, he argued that he was in possession of subsequently discovered evidence in the form
of statements by two of the State’s witnesses, Kenneth and Lynn Croft, which alleged that
the detective who investigated his case “used deceptive methods to manufacture statements.”
He further alleged that the detective committed aggravated perjury in front of the grand jury
to obtain the underlying indictments. The State filed an answer to the error coram nobis
petition on November 17, 2008, and argued that the petitioner waived his right to error coram
nobis relief because he entered a plea of guilty. The petitioner claims he did not receive the
State’s answer although a certificate of service was executed. The trial court dismissed the
error coram nobis petition on December 10, 2008. On January 7, 2009, the petitioner filed
a motion for relief of final judgment pursuant to Tennessee Rules of Civil Procedure 60.02,
which was thereafter dismissed. On February 11, 2009, he filed a notice of appeal. The
petitioner claims that he received a copy of the court’s record on April 27, 2009, at which
time he saw the State’s answer to his petition for writ of error coram nobis for the first time.
On December 1, 2009, this court granted the petitioner post-conviction relief and remanded
his post-conviction appeal for appointment of counsel and an evidentiary hearing. Michael
J. Grant v. State, No. E2008-02161-CCA-R3-PC, 2009 Tenn. Crim. App. LEXIS 974, at *1
(Tenn. Crim. App. at Knoxville, Dec. 1, 2009).

                                            Analysis

       In this appeal, the petitioner argues that the error coram nobis court improperly
dismissed his petition without granting him an evidentiary hearing. He contends that he
should have been allowed to present his alleged newly discovered evidence, the testimony
of Kenneth and Lynn Croft. The State makes a two pronged response to the petitioner’s
argument. First, the State argues that the petitioner’s appeal should be dismissed as untimely.
Second, the State contends that error coram nobis relief is not available for a conviction
entered by a guilty plea.

       A writ of error coram nobis is available to a defendant in a criminal prosecution.
T.C.A. § 40-26-105 (1997); State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995),
perm. to appeal denied (Tenn. 1995). However, the writ is an exceedingly narrow remedy
appropriate only when an issue was not addressed or could not have been addressed at trial
because it was somehow hidden or unknown, and had it been known to the court, it would
have prevented the rendition of the judgment. T. C. A. § 40-26-105; Hart, 911 S.W.2d at
374. Hence, the writ will lie for subsequently or newly discovered evidence if the petition

                                               -2-
relates: (1) the grounds and the nature of the newly discovered evidence; (2) why the
admissibility of the newly discovered evidence may have resulted in a different judgment had
the evidence been admitted at the previous trial; (3) the petitioner was without fault in failing
to present the newly discovered evidence at the appropriate time; and (4) the relief sought by
the petitioner. Hart, 911 S.W.2d at 374.

        The record reflects that the petitioner has been active in filing various motions,
petitions, and appeals during his incarceration. The trial court dismissed the petitioner’s
request for a writ of error coram nobis on December 10, 2008. On January 7, 2009, the
petitioner filed a motion for relief from judgment under Rule 60.02 of the Tennessee Rules
of Civil Procedure, not a notice of appeal. The motion for relief from judgment was denied
on January 12, 2009. He did not file a notice of appeal from the December 10, 2008,
judgment until February 11, 2009. The State argues that his notice of appeal was not timely
and should be dismissed because a motion for relief from judgment under Tennessee Rule
of Civil Procedure 60.02 is not a motion that tolls the time for filing a notice of appeal. See
Tenn. R. App. P. 4(b), (c). We will waive the timeliness requirement in the interest of
justice, though we agree with the State that the motion for relief from judgment does not
waive the timeliness requirement.

        In Newsome v. State, 995 S.W.2d 129, 133 (Tenn. Crim. App. 1998), this court
addressed whether a defendant convicted by guilty plea may set aside the plea through an
error coram nobis petition. This court concluded that a defendant who entered a plea of
guilty could seek error coram nobis relief on the limited basis that the plea was unknowing
or involuntary. To succeed, the petitioner must “present newly discovered evidence which
would show that his plea was not voluntarily or knowingly entered.” Id. at 134. “An
otherwise valid guilty plea does not become involuntary merely because it is induced by the
defendant’s desire to limit the possible maximum penalty to less than that authorized if there
is a jury trial.” Id. The defendant’s own admission is that he entered a plea of guilty
because the assistant district attorney gave him a plea offer of four years and said that he
would seek a ten-year-sentence if they went to trial. The defendant has not met his burden
of demonstrating that his plea was entered involuntarily or unknowingly. Therefore, he does
not meet the narrow standard for error coram nobis relief as set forth in Newsome.

       Further review of Tennessee Code Annotated section 40-26-105 indicates that error
coram nobis relief lies only “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.” T. C. A. § 40-26-105.
The language of the statute suggests that a defendant who avoids trial by pleading guilty
cannot necessarily meet this standard.



                                               -3-
                                      Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment from the
error coram nobis court.




                                                ___________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




                                          -4-
