        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 16, 2014

            RICHARD LYNN NORTON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Greene County
                     No. 13CR535     John F. Dugger, Jr., Judge


              No. E2014-01033-CCA-R3-ECN - Filed September 25, 2014


According to petitioner, Richard Lynn Norton, in 1990, he pleaded guilty to escape and to
a violation of the Motor Vehicle Habitual Offenders Act. Subsequently, he filed the instant
petition for writ of error coram nobis in 2013, claiming that the Tennessee Supreme Court’s
decision in State v. Walls, 62 S.W.3d 119 (Tenn. 2001), constitutes newly discovered
evidence that renders his escape conviction void. The coram nobis court summarily
dismissed the petition. Following our review, we affirm the judgment of the coram nobis
court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
R OBERT H. M ONTGOMERY, J R., JJ., joined.

Richard Lynn Norton, Russellville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Ritchie Dale
Collins, Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       Petitioner filed the instant petition for writ of error coram nobis on September 23,
2013. The coram nobis court entered its order denying the petition on May 16, 2014.
Petitioner filed a timely notice of appeal on May 28, 2014.

       In this appeal, petitioner argues that State v. Walls, in which the Tennessee Supreme
Court stated that “flight from the rear of a police patrol car does not constitute escape from
a penal institution under Tenn. Code Ann. § 39-16-605,” constitutes newly discovered
evidence. State v. Walls, 62 S.W.3d 119, 123 (Tenn. 2001). He argues that Walls renders
his escape conviction void because his conviction was based on his “running around a police
car in handcuffs.” However, petitioner has failed to attach his indictment, any relevant
transcripts, or his judgments of conviction to establish the factual basis underlying his
convictions. Petitioner also argues that the coram nobis court erred by summarily dismissing
his petition without appointing counsel and conducting an evidentiary hearing.

        The decision to grant or deny a petition for writ of error coram nobis on its merits is
left to the sound discretion of the trial court. Harris v. State, 301 S.W.3d 141, 144 (Tenn.
2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). A trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases
its decision on a clearly erroneous assessment of the evidence, or employs reasoning that
causes an injustice to the complaining party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.
2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)). The writ of error coram
nobis is an “extraordinary procedural remedy . . . into which few cases fall.” State v. Mixon,
983 S.W.2d 661, 672 (Tenn. 1999). Our legislature has limited the relief available through
the writ:

               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 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.

Tenn. Code Ann. § 40-26-105(b). To demonstrate he is entitled to coram nobis relief,
petitioner must clear several procedural hurdles.

        First, the petition for writ of error coram nobis must relate: (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. Freshwater v.
State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 1995) (citing State v. Hart, 911 S.W.2d 371,
374-75 (Tenn. Crim. App. 1995)).




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        Next, a petition for writ of error coram nobis must generally be filed within one year
after the judgment becomes final. Tenn. Code Ann. § 27-7-103. When a petition is filed
outside of the statute of limitations, the coram nobis court must determine whether due
process requires tolling. Harris v. State, 301 S.W.3d 141, 145 (Tenn. 2010). In doing so,
the “court must weigh the petitioner’s interest in obtaining a hearing to present a later-arising
ground for relief against the State’s interest in preventing stale and groundless claims.” Id.
(citing Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001)). A court should utilize the
following three-step analysis to balance the competing interests:

        (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)).

        Petitioner argued that there was no statute of limitations for his claim because his
judgment is void;1 however, the State raised the statute of limitations as a bar on petitioner’s
claim. The coram nobis court denied the petition as time-barred, finding that “approximately
twenty-four (24) years have passed since Petitioner entered his plea to Escape” and
determining that the statute of limitations had not been tolled. Initially, we note that
limitations period expired in 1991,2 one year after petitioner’s guilty plea was final.
Petitioner filed his petition for writ of error coram nobis on September 23, 2013; therefore,
it was filed well outside the one-year statute of limitations. Based on the record before this
court, the staleness of petitioner’s claim, and the other available remedies for void



        1
          It appears that petitioner conflates error coram nobis relief based on newly discovered evidence,
for which there is a one-year statute of limitations, with habeas corpus relief for void judgments and/or
procedural relief for illegal sentences under Tennessee Rule of Criminal Procedure 36.1, for which there are
no statutes of limitation. Petitioner has only sought coram nobis relief; therefore, we will not address habeas
corpus or procedural relief.
        2
           While petitioner has failed to attach a copy of the final judgment or a transcript of his guilty plea
submission hearing, both the TOMIS report attached to the petition and the coram nobis court’s order state
that petitioner’s plea was entered on February 6, 1990.

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convictions, we conclude that petitioner has not shown that due process should toll the
application of the statute of limitations.

        Furthermore, even if tolling of the one-year statute of limitation were to apply, a
defendant must still be “reasonably diligent in discovering the new evidence” and presenting
the claim. Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012) (citations omitted). Petitioner
failed to exercise this due diligence because Walls was published in 2001, yet petitioner did
not discover the Walls decision until September 19, 2013, and did not challenge his
conviction until September 23, 2013. Therefore, the coram nobis court properly dismissed
the petition as time-barred.

       In addition, even if the petition were not time-barred, we cannot reach the merits of
petitioner’s argument regarding the application of Walls because petitioner failed to include
either the indictment or the transcript of his guilty plea submission hearing to prove the
circumstances underlying his conviction. Without such information, it is impossible for this
court to determine if Walls applies to appellant’s conviction. “Where the record is
incomplete and does not contain a transcript of the proceedings relevant to an issue presented
for review, or portions of the record upon which the party relies, an appellate court is
precluded from considering the issue.” State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn.
1993) (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)).

       Petitioner simply has not raised viable claims of new evidence that required the coram
nobis court to appoint counsel and to conduct an evidentiary hearing. See Harris, 301
S.W.3d at 153-54 (Koch, J., concurring). The coram nobis court did not abuse its discretion
in summarily dismissing the petition without an evidentiary hearing.

                                      CONCLUSION

       Upon review of the record and the prevailing legal authorities, we affirm the judgment
of the coram nobis court.

                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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