                                                                                        11/02/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs May 22, 2018

          O’DELL TAYLOR WISDOM v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Sullivan County
                 No. S59091, S57413       James Goodwin, Judge
                     ___________________________________

                            No. E2017-02336-CCA-R3-PC
                       ___________________________________

Petitioner, O’Dell Taylor Wisdom, appeals from the summary dismissal of his pro se
pleading in which he alleges that his convictions for failure to appear and contempt
violate the prohibition against double jeopardy. We affirm the judgment of the trial
court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

O’Dell Taylor Wisdom, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Barry Staubus, District Attorney General; and Gene Perrin, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

      Petitioner, O’Dell Taylor Wisdom, pled guilty on July 28, 2011, to failure to
appear at the Sullivan County Jail to serve his eight-year effective sentence for three
convictions involving the sale of cocaine within 1,000 feet of a school. He received a
sentence of five years at forty-five percent to be served in the Tennessee Department of
Correction. Petitioner also pled guilty to contempt of court for failure to report and was
sentenced to ten days, to be served on probation and concurrently with the five-year
sentence for failure to appear.

       On November 20, 2017, Petitioner filed a pro se “Petition for Writ of Error,”
alleging that his dual convictions for failure to appear and contempt constituted double
jeopardy. The trial court treated the petition as a petition for writ of error coram nobis
and summarily dismissed it. The trial court concluded:

        Petitioner alleges that double jeopardy was violated because he pled
        guilty to failure to appear and contempt of court due to an allegation that
        he failed to report to the jail on a specific date and time as ordered by the
        court. Petitioner does not allege any newly discovered evidence as
        required for writ of error coram nobis.

On appeal, the State asserts that the claim does not qualify as a proper claim for a petition
for writ of error coram nobis and that even if it did qualify, it is time-barred. The State
further argues that although the “Petition for Writ of Error” could have been treated as a
petition for post-conviction relief, it is likewise time-barred, and the issue has been
previously determined by this court on appeal. We agree. We note that in his reply brief,
Petitioner asserts that his “Petition for Writ of Error” is neither a “Writ of Error Coram
Nobis” nor a “Petition for Post-conviction Relief.” Regardless of the pleading, Petitioner
is not entitled to any relief based upon the claim that he has made.

        A writ of error coram nobis is a very limited remedy which allows a petitioner the
opportunity to present newly discovered evidence “which may have resulted in a different
verdict if heard by the jury at trial.” Workman v. State, 41 S.W.3d 100, 103 (Tenn.
2001); see also State v. Mixon, 983 S.W.2d 661 (Tenn. 1999). The remedy is limited “to
matters that were not or could not be litigated on the trial of the case, on a motion for new
trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus
proceeding.” T.C.A. § 40-26-105(b). Examples of newly discovered evidence include a
victim’s recanted testimony or physical evidence which casts doubts on the guilt of the
Petitioner. Workman, 41 S.W.3d at 101; State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim.
App. 2001); State v. Hart, 911 S.W.2d 371 (Tenn. Crim. App. 1995). The supreme court
has stated the following concerning the standard to be applied when a trial court reviews
a petition for writ of error coram nobis:

        [T]he trial judge must first consider the newly discovered evidence and
        be “reasonably well satisfied” with its veracity. If the defendant is
        “without fault” in the sense that the exercise of reasonable diligence
        would not have led to a timely discovery of the new information, the trial
        judge must then consider both the evidence at trial and that offered at the
        coram nobis proceeding in order to determine whether the new evidence
        may have led to a different result.

State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). Whether to grant or deny a petition
for writ of error coram nobis rests within the sound discretion of the trial court. Id. at
527-28.


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       A petition for writ of error coram nobis must be dismissed as untimely filed unless
filed within one (1) year of the date on which the petitioner’s judgment of conviction
became final in the trial court. Mixon, 983 S.W.2d at 670. The only exception to this is
when due process requires a tolling of the statute of limitations. Workman, 41 S.W.3d at
103.

       A post-conviction petition must be brought within one year of the date of the final
action of the appellate court (if an appeal is taken) or within one year of the date the
judgment becomes final, and failure to file within the limitations period bars relief and
removes the case from the court’s jurisdiction. T.C.A. § 40-30-102(a). A petition for
post-conviction relief shall be dismissed where “the facts alleged, taken as true, fail to
show that the petitioner is entitled to relief or fail to show that the claims for relief have
not been waived or previously determined.” T.C.A. § 40-30-106(f); see Cauthern v.
State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004) (“When a claim has been
previously determined, it cannot form the basis for post-conviction relief.”).


        Notwithstanding the untimeliness of a petition for writ of error coram nobis or a
petition for post-conviction relief in this case, Petitioner is not entitled to relief based on a
tolling of the statute of limitations. He does not allege any newly discovered evidence for
a petition for writ of error coram nobis or a petition for post-conviction relief. Moreover,
double jeopardy claims are inappropriate for a writ of error coram nobis. Toney Jason
Hale v. State, No. M2011-01992-CA-R3-CO, 2012 WL 1895951, at *5 (Tenn. Crim.
App. May 23, 2012)(“This alleged error could have been litigated in the trial court before
the plea and on direct appeal”).

       Finally, as for a petition for post-conviction relief, this claim has already been
raised by Petitioner in a petition for writ of habeas corpus. On appeal, this court held:

        However, the contempt offense and failure to appear conviction were not
        part of the same guilty plea agreement, other than the agreement about
        the alignment of sentences. The Petitioner’s guilty plea to the three
        felony drug convictions occurred before his actions precipitating the
        convictions for failure to appear and contempt. The Petitioner
        essentially entered into three separate plea agreements, all pleas being
        entered on different dates.

        In State v. Franklin, this court held that a guilty plea waives a claim of
        merger on double jeopardy grounds and that Rule 37(b)(2) of the
        Tennessee Rules of Criminal Procedure required a defendant to
        explicitly reserve a claim of merger prior to pleading guilty. Franklin,
        919 S.W.2d 362, 368 (Tenn. Crim. App. 1995); see also Cecil Eugene
        Brannan v. State, No. M2002-00628-CCA-R3-CD, 2003 WL 1868648,

                                              -3-
        at *3 (Tenn. Crim. App. Apr. 11, 2003). Additionally, in State v.
        Rhodes, this court relied on the United States Supreme Court decision of
        Menna v. New York, 423 U.S. 61, 62 (1975), and determined that a guilty
        plea does not automatically waive a double jeopardy claim when it is
        apparent from the record that the claim was raised before the trial court.
        Rhodes, 917 S.W.2d 708, 710-11 (Tenn. Crim. App. 1995). Nowhere is
        it evident from the record that the Petitioner raised a double jeopardy
        argument before the trial court. See State v. Ronald Woods, Jr., No.
        W2009-02580-CCA-R3-CD, 2010 WL 4117165, at *4-5 (Tenn. Crim.
        App. Oct. 20, 2010) (holding that double jeopardy claim was waived
        because nothing in the record showed that there was any attempt to
        preserve this issue before the trial court).

Odell Wisdom v. Lee, No. E2016-01737-CCA-R3-HC, 2017 WL 991910, at *3
(Tenn. Crim. App. Mar. 14, 2017).

       After fully reviewing the record, we agree that Petitioner’s double jeopardy claim
is not proper for a petition for writ of error coram nobis nor is it proper for a petition for
post-conviction relief as it has been previously determined by this court.

        As mentioned above, Petitioner is insistent that his petition for “Writ of Error” is
not a petition for writ of error coram nobis and not a petition for post-conviction relief.
Accepting his assertion as correct, the trial court’s summary dismissal of the petition was
appropriate. There is no recognized avenue for relief by “petition for writ of error.”
Furthermore, under Petitioner’s expressed theory for relief, the rules of appellate
procedure do not provide for an appeal as of right from dismissal of a “petition for writ of
error.” T.R.A.P. 3(b)( Rule 3(b) contemplates an appeal from a judgment of conviction,
from an order denying or revoking probation, or “ an order or judgment entered pursuant
to Rule 36 or Rule 36.1, Tennessee Rules of Criminal Procedure, from a final judgment
in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding, from a
final order on a request for expunction, and from the denial of a motion to withdraw a
guilty plea . . .”).

      We have chosen to review Petitioner’s appeal, as the trial court did, to see if the
claim meets requirements for any cognizable claim to entitle him to relief. For the
reasons stated above, the petition fails to do so.

                                      CONCLUSION

        Accordingly, the judgment of the trial court is affirmed.


                                    ____________________________________________
                                    THOMAS T. WOODALL, JUDGE
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