        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 January 28, 2014 Session

                  DAVID HEARING v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Greene County
                      No. 11CR191     Thomas J. Wright, Judge


                No. E2013-00640-CCA-R3-ECN-FILED-JUNE 3, 2014


The petitioner, David Hearing, filed a petition for a writ of error coram nobis, seeking relief
from his two convictions of felony murder and the accompanying life sentences. The coram
nobis court denied relief, and the petitioner appeals. Upon review, we affirm the judgment
of the coram nobis court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and J EFFREY S. B IVINS, JJ., joined.

Joseph O. McAfee, Greeneville, Tennessee, for the appellant, David Hearing.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; C.
Berkeley Bell, District Attorney General; and Connie Trobaugh, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

        The petitioner was one of a group of people charged with two counts of felony
murder, as a result of the shooting deaths of Ance “Pete” Pratt and his wife, Rebecca Pratt,
at their home during the perpetration of an aggravated burglary. See David Hearing v. State,
No. E2009-02430-CCA-R3-PC, 2010 Tenn. Crim. App. LEXIS 829, 2010 WL 3837535, at
*1-2 (Knoxville, Oct. 4, 2010); David Wayne Hearing v. State, No. E2006-00362-CCA-R3-
PC, 2006 Tenn. Crim. App. LEXIS 997, at *2 (Knoxville, Oct. 24, 2006). The State filed
a notice of intent to seek the death penalty. See Hearing, No. E2009-02430-CCA-R3-PC,
2010 Tenn. Crim. App. LEXIS 829, at *2. On September 2, 2005, the petitioner pled guilty
to the charged offenses in exchange for concurrent sentences of life imprisonment. Id.

       Since entering his guilty pleas, the petitioner has unsuccessfully pursued multiple
avenues of relief. Initially, he filed a motion to withdraw his pleas because his trial counsel
had misrepresented the length of his sentences; the motion was denied, and the denial was
affirmed on appeal. See id.; David Wayne Hearing v. State, No. E2007-00778-CCA-R3-PC,
2008 Tenn. Crim. App. LEXIS 105, at *1 (Knoxville, Feb. 22, 2008); Hearing, No. E2006-
00362-CCA-R3-PC, 2006 Tenn. Crim. App. LEXIS 997, at *2. Subsequently, the petitioner
pursued post-conviction relief on the basis of the ineffective assistance of counsel and was
again denied relief. Hearing, No. E2009-02430-CCA-R3-PC, 2010 Tenn. Crim. App.
LEXIS 829, at *1. Next, the petitioner attempted to obtain habeas corpus relief to no avail.
David Hearing v. David Mills, Warden, No. W2011-01226-CCA-R3-PC, 2012 Tenn. Crim.
App. LEXIS 135, at *1-3 (Jackson, February 28, 2012).

        Thereafter, on May 27, 2011, the petitioner filed a “Petition for a Writ of Certiorari
or in the Alternative a Petition for Writ of Error Coram Nobis,” which is the subject of the
instant case. The petitioner stated that the trial court’s Rule 12 report1 contained evidence
that was never conveyed to him prior to his guilty pleas. The petitioner acknowledged that
his petition was untimely but alleged that the statute of limitations should be tolled on due
process grounds. He stated that he did not learn of the Rule 12 report until November 17,
2010, when he was provided a copy by his post-conviction counsel. The petitioner contended
that the newly discovered evidence “may establish actual innocence.” He further alleged that
the evidence in the Rule 12 report may have affected the voluntariness of his plea and that
if he had known of the information, he might have been more inclined to go to trial.

       At the hearing on the petition, the petitioner testified that he was represented by post-
conviction counsel from 2008 until October 2012. On November 17, 2012, the petitioner
received from counsel a package of materials, which included the Rule 12 report. The
petitioner filed the petition for a writ of error coram nobis approximately six months later.


       1
           Our supreme court has explained:

                 Tennessee Supreme Court Rule 12 requires a standardized report to be
                 completed in all cases in which the defendant is convicted of first degree
                 murder, including cases remanded by the appellate court for retrial or
                 resentencing. This requirement also applies to cases in which a defendant
                 pleads guilty to first degree murder. Rule 12 reports are returned to the
                 Clerk of the Supreme Court. A database of Rule 12 reports is available on
                 CD-ROM.

State v. Pruitt, 415 S.W.3d 180, 213 n.21 (Tenn. 2013).

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       The petitioner said that the contents of the report surprised him. Specifically, the
report reflected that “‘[t]he victims were bound, gagged and held hostage for several hours
before being shot.’” The report also reflected that a pathologist had testified the victims were
tortured because they “bled out,” did not die from a single wound, and had many superficial
wounds. The petitioner said that no pathologist testified on his behalf. The report further
named three co-defendants, namely Hugh Williams, Michael Sellers, and LaTonya Crockett.
The petitioner said that he had never heard of these individuals.

        On cross-examination, the petitioner acknowledged that he was charged with first
degree murder committed during the perpetration of an aggravated burglary. The petitioner
asserted that the victims had purchased marijuana from him and that he was at the victims’
residence for only thirty minutes on the day of the offense. He said that he was at the home
from 7:30 p.m. to 8:03 p.m., in order to collect the money he was owed. The petitioner
denied that the victims were bound and gagged while he was at the residence and maintained
that the victims were alive when he left.

       The petitioner conceded that a .45 caliber pistol was found in his truck and that testing
determined the bullets found in the victims’ bodies were fired from that gun; however, he
maintained that no fingerprints were found on the gun. The petitioner said that his cellular
telephone records from the day of the offense reflected that he made a call from Tennessee
at 3:11 p.m. and at 11:12 p.m., from Virginia at 8:48 p.m. and at 10:28 p.m., and from North
Carolina at 12:43 a.m. According to the petitioner, the records confirm the route he followed
when he left the victims’ house. He acknowledged, however, that the victims’ residence was
located near the Virginia state line and that there were “multiple cell towers, Tennessee,
Virginia, . . . and you can ping off any of them.”

       The petitioner said that at his guilty plea hearing, the trial court asked the State for the
factual basis for the pleas, and the State responded, “‘We will submit that later.’” He
contended that the only factual basis that was submitted later was the Rule 12 report. He
complained that the facts in the Rule 12 report were not the facts “submitted” to him when
he pled guilty. The petitioner acknowledged that at the guilty plea hearing, defense counsel
waived a formal presentation of the evidence and stipulated that most of the evidence was
presented at pretrial hearings, conferences, and in the statements of co-defendants.

       The petitioner said that he was willing to plead guilty to first degree murder in
exchange for a sentence of fifty-one years to be served at thirty percent. In the alternative,
he was willing to enter a guilty plea to facilitation of first degree murder. The State asked
the petitioner if he was actually innocent, and he responded, “To a plea bargain is whether
you’re innocent or just in the interest is irrelevant with the facts that had they been held


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hostage, I would be willing to go to trial, yes, sir.”

        On redirect, the petitioner said that a receipt from Cox Market, which was located
twelve to seventeen minutes from the victims’ house, showed that the victims left the market
at 7:12 p.m. The petitioner’s cellular telephone records indicated that he made a call from
Virginia at 8:48 p.m. The petitioner alleged that, at a minimum, the drive from the victims’
house to Virginia took forty-five minutes. He contended, therefore, that he could not have
participated for hours in the restraint and torture of the victims. The petitioner acknowledged
that he had faced the death penalty; nevertheless, he said that if he had known the “evidence
that’s alluded to in the Rule 12 report,” it would have affected his decision whether to plead
guilty or to go to trial.

        Virginia Gass, Judge John Dugger’s secretary, testified that at the time of the
petitioner’s guilty pleas, she was the secretary for Judge James E. Beckner. Ms. Gass said
that she prepared the Rule 12 report for Judge Beckner to sign. She said that blank copies
of the report were given to the defense and the State. They were to complete the forms and
return them to Ms. Gass. Upon receipt of the forms, the trial court compiled the answers, and
Ms. Gass then typed the answers. Subsequently, Ms. Gass discovered that she had
inadvertently “cut and paste[d]” answers from the Rule 12 report for the Donnie Joe Hensley
case onto the petitioner’s Rule 12 report. Specifically, the co-defendants named in the
petitioner’s Rule 12 report, namely Williams, Sellers, and Crockett, were Hensley’s co-
defendants and had no relation to the petitioner’s case. Additionally, the references to torture
and to the testimony of a pathologist were also from the Hensley case. Ms. Gass said that
after she typed the petitioner’s Rule 12 report, it was not submitted to either the State or the
defense for review.

        On cross-examination, Ms. Gass acknowledged that Hensley’s Rule 12 report did not
reflect that the victims were held, bound, and gagged for hours before being shot; therefore,
that error was not caused by “cut and paste.” She explained that the statement that the
victims were bound, gagged, and held hostage was taken from the form filled out by the
State. She said that the “cut and paste” errors were in the sections of the report dealing with
the accomplices and the pathologist.

        Teddy Collingsworth, a criminal investigator for the District Attorney General’s
Office, testified that he investigated the shooting death of Ance and Becky Pratt, which
occurred on May 24, 2001. He said that the receipt from Cox and Wright Market was found
at the Pratts’ residence. The market was about seventeen miles from the victims’ residence,
and the drive would take approximately twenty minutes. Collingsworth interviewed the
proprietor of the market and learned that the time noted on the receipt was not accurate. He
explained that the timing was “off” by “[a]pproximately an hour.” In other words, it was


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“too fast,” and “when it says 7 it was 6.” As a result, the State decided not to use the
proprietor as a witness. Collinsworth said that the drive from the victims’ residence to
Virginia would take approximately twenty-five minutes.

       As exhibits to the hearing, the State submitted the statements of the petitioner’s co-
defendants: Hilario Cardenas, Donald Ray Jones, and Jose Rivas. In each of the statements,
the co-defendants said that the petitioner participated in binding and shooting the victims and
burglarizing their house. The statements further reflected that after leaving the victims’
residence, the perpetrators went from Tennessee to Virginia and then to North Carolina. As
an additional exhibit, the State submitted a letter to the petitioner from trial counsel, which
was written on July 28, 2005, prior to the petitioner’s guilty plea hearing. In the letter, trial
counsel stated:

              [T]he cell phone records corroborate your involvement. Our
              attack on the cell phone records is to argue that others borrowed
              your cell phone and made the calls. As you know, the cell
              phone records track the path that was taken from Tennessee to
              Virginia down through North Carolina on the way to Louisiana.
              This would corroborate Leah and Gus’ testimony, if he were to
              testify that this is the path taken after the murders. This would
              corroborate Leah’s testimony that you called her and advised her
              of your whereabouts.

        The coram nobis court held that due process required the tolling of the statute of
limitations and denied the State’s motion to dismiss. The court found that the references to
accomplices and a pathologist in the Rule 12 report were errors that were inadvertently made
when the report was prepared. Accordingly, the court found that those references could have
easily been discovered and were not newly discovered evidence. Additionally, the court said:

              I don’t think that you would have done anything different if you
              had had the Rule 12 report information regarding the allegation
              that the deceased victims were held for hours at the time you
              entered your plea.

                     Further, I don’t think that it’s evidence. That report is not
              evidence and although it raises – raised issues there is not any
              proof before the Court that the people that were the victims of
              the murder were or weren’t held hostage for several hours.

The court also stated, “I don’t think it makes any difference whether it was hours or minutes


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because if it’s a felony murder, it’s a felony murder whether you were the actual guy with the
gun or not.” The court said that the State had overwhelming evidence of the petitioner’s
guilt, which was the reason the petitioner decided to plead guilty and avoid the death penalty.
Accordingly, the court denied the error coram nobis petition. On appeal, the petitioner
challenges this ruling.

                                        II. Analysis

        The writ of error coram nobis, which originated in common law five centuries ago,
“‘allowed a trial court to reopen and correct its judgment upon discovery of a substantial
factual error not appearing in the record which, if known at the time of judgment, would have
prevented the judgment from being pronounced.’” State v. Wlodarz, 361 S.W.3d 490, 496-
97 (Tenn. 2012) (quoting State v. Mixon, 983 S.W.2d 661, 666-67 (Tenn. 1999)). The writ,
as first codified in Tennessee in 1858, was applicable to civil cases. Id. at 498. In 1955, a
statutory version of the writ of error coram nobis was enacted, making the writ also
applicable to criminal proceedings. Id. In general, the writ “is an extraordinary procedural
remedy . . . [that] fills only a slight gap into which few cases fall.” Mixon, 983 S.W.2d at
672.

       Currently, the writ is codified in Tennessee Code Annotated section 40-26-105:

              The relief obtainable by this proceeding shall be confined to
              errors dehors the record and to matters that were not or could
              not have been litigated on the trial of the case, on a motion for
              a new trial, on appeal in the nature of a writ of error, on writ of
              error, or in a habeas corpus proceeding. Upon a showing by the
              defendant that the defendant was without fault in failing to
              present certain evidence at the proper time, a writ of error coram
              nobis will lie 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.

Our supreme court has held that a conviction pursuant to a guilty plea falls within a broad
interpretation of a “trial” for the purposes of the aforementioned statute. Wlodarz, 361
S.W.3d at 503.

       Our supreme court outlined the procedure that a trial court considering a petition for
a writ of error coram nobis is to follow:



                                              -6-
              [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). In determining whether the new
information may have led to a different result, the question before the court is “‘whether a
reasonable basis exists for concluding that had the evidence been presented at trial, the result
of the proceedings might have been different.’” Id. (quoting State v. Roberto Vasques, No.
M2004-00166-CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn. Crim. App. at Nashville, Oct.
7, 2005)). However, there are limits to the types of evidence that may warrant the issuance
of a writ of error coram nobis. See, e.g., State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim.
App. 1995). Aside from the fact that the evidence must be both admissible and material to
the issues raised in the petition,

              [a]s a general rule, subsequently or newly discovered evidence
              which is simply cumulative to other evidence in the record or
              serves no other purpose than to contradict or impeach the
              evidence adduced during the course of the trial will not justify
              the granting of a petition . . . when the evidence . . . would not
              have resulted in a different judgment.

Id. (citations omitted). Generally, a decision whether to grant a writ of error coram nobis
rests within the sound discretion of the trial court. Id.

        A writ of error coram nobis must be filed within one year after the judgment becomes
final in the trial court. Tenn. Code Ann. §27-7-103. Clearly, the instant petition was filed
well beyond the one-year statute of limitations. Nevertheless, the one-year statute of
limitations may be tolled on due process grounds if a petition seeks relief based upon newly
discovered evidence of actual innocence. Wilson v. State, 367 S.W.3d 229, 234 (Tenn.
2012).

       Our supreme court has stated, “In determining whether tolling of the statute is proper,
the court is required to balance the petitioner’s interest in having a hearing with the interest
of the State in preventing a claim that is stale and groundless.” Id. In general, “‘before a
state may terminate a claim for failure to comply with . . . statutes of limitations, due process


                                               -7-
requires that potential litigants be provided an opportunity for the presentation of claims at
a meaningful time and in a meaningful manner.’” Id. (quoting Burford v. State, 845 S.W.2d
204, 208 (Tenn. 1992)). Our supreme court described the three steps of the “Burford rule”
as follows:

              “(1) determine when the limitations period would normally have
              begun to run; (2) determine whether the grounds for relief
              actually arose after the limitations period would normally have
              commenced; and (3) if the grounds are ‘later-arising,’ determine
              if, under the facts of the case, a strict application of the
              limitations period would effectively deny the petitioner a
              reasonable opportunity to present the claim.”

Id. (quoting Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995)). “Whether due process
considerations require tolling of a statute of limitations is a mixed question of law and fact,
which we review de novo with no presumption of correctness.” State v. Harris, 301 S.W.3d
141, 145 (Tenn. 2010).

        The coram nobis court found that the statute of limitations should be tolled and that
the petitioner timely filed his petition after receiving the Rule 12 report. As we have noted,
the purpose of a Rule 12 report is to assist in reviewing proportionality in death penalty cases
and is compiled following the conclusion of the trial. The petitioner concedes that the Rule
12 report is not evidence; however, he asserts that the facts in the report would lead to new
evidence. We disagree. The proof at the hearing reflected that the report had been available
to the petitioner since it was completed on October 11, 2005. The information in the report
that the petitioner contends is “newly discovered” included the names of accomplices and
facts regarding the testimony of a pathologist about the torture of the victims before their
deaths. As the coram nobis court found, the information in the report concerning
accomplices and a pathologist was not correct and resulted from a mistake that was explained
by the judge’s assistant. Therefore, the report was not “newly discovered evidence” that
would entitle the petitioner to coram nobis relief.

                                       III. Conclusion

      In sum, we conclude that the coram nobis court did not err by denying the petitioner
coram nobis relief. Therefore, we affirm the judgment of the coram nobis court.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE


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