         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs February 3, 2009

                 EDWARD P. PORTER v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                            No. 96-D-1919    Steve Dozier, Judge



                      No. M2008-00375-CCA-R3-CO - Filed April 21, 2009


The petitioner, Edward P. Porter, appeals the Davidson County Criminal Court’s summary dismissal
of his petition for writ of error coram nobis. The petitioner pled guilty in 1998 to possession with
intent to sell over .5 grams of cocaine, a Class B felony, and was sentenced to eight years in the
Department of Correction. In 2007, the petitioner filed the instant petition, alleging that he was
being restrained by an illegal sentence. The trial court summarily dismissed the petition because it
was filed outside the statute of limitations and because it failed to state a cognizable claim. On
appeal, the petitioner contends that the court erred in determining that the petition was time-barred,
asserting that the one-year statute of limitations is not applicable and that his assertion of an illegal
sentence in violation of Tennessee Rule of Criminal Procedure 32 establishes a cognizable claim for
relief. Following review of the record, we find no error and affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which J.C. MCLIN and CAMILLE
R. MCMULLEN , JJ., joined.

Edward P. Porter, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; Victor S.
(Torry) Johnson, III, District Attorney General; and Pamela S. Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                         Procedural History

        On October 1, 1996, the petitioner was indicted by a Davidson County grand jury for
possession of a controlled substance, cocaine, with intent to sell or deliver; possession of a
prohibited weapon; suspended drivers’ license; and two counts of evading arrest. According to the
petitioner’s assertion, he was arrested on May 3, 1995, in a separate case and, while released on
bond, committed the instant offense. However, we are unable to ascertain that from the record
provided to us. The petitioner did include documentation in the record which establishes that he was
arrested for a drug offense on May 3, 1995, in a separate Davidson County case. However, no
disposition date or release date can be ascertained from the information we have been provided.

        In the instant case, pursuant to a negotiated plea agreement, the petitioner pled guilty on
February 20, 1998, to one count of possession with intent to sell over .5 grams of cocaine and
received an eight-year sentence in the Department of Correction. From the judgment, it is clear that
the sentence was ordered to be served concurrently with a Coffee County sentence, but nothing is
contained in the record with regard to that conviction or sentence.

        More than nine years later, on September 12, 2007, the petitioner filed the instant petition
for writ of error coram nobis, alleging that his conviction in this case was being used to enhance a
sentence imposed by the United States District Court. He asserted, for the first time, that the
conviction is illegal as it was imposed in violation of Rule 32 of the Rules of Criminal Procedure,
which provides for mandatory consecutive sentences if a defendant commits a felony while on bail
for a separate offense and is convicted of both offenses. See Tenn. R. Crim. P. 32(c)(3)(C). He
further challenged the conviction, contending that it was imposed in violation of his right to the
effective assistance of counsel, his right to due process of law, and Rule 11 of the Tennessee Rules
of Criminal Procedure. Finally, he asserted that the plea agreement was invalid, depriving the trial
court of jurisdiction to accept the plea.

        On September 20, 2007, the trial court summarily dismissed the petition by written order,
finding that it was barred by the one-year statute of limitations and that it failed to state a cognizable
claim for coram nobis relief. Subsequently, on November 6, 2007, the petitioner filed a “Supplement
Pursuant to Writ Error Coram Nobis,” challenging yet another Davidson County conviction. On that
same date, the petitioner also filed a “Motion for Reconsideration and Judicial Notice Pursuant to
Writ Error Coram Nobis.” On January 10, 2008, the trial court filed a written order dismissing the
motions. The petitioner filed a notice of appeal on February 12, 2008.

                                                Analysis

        On appeal, the petitioner asserts that the trial court erred in summarily dismissing his petition
as time-barred because the statute of limitations is not applicable. He further asserts that he received
ineffective assistance of counsel, that his guilty plea entered in 1996 was not a knowing and
voluntary plea, and that the court did not have jurisdiction to accept the plea. He again reiterates his
contention that the sentence itself is illegal because he was given concurrent sentences in violation
of Rule 32 and because of a change in the drug law in 1992, which he claims should have resulted
in a lesser sentence.

        Initially, we must address the petitioner’s notice of appeal, which was not timely filed in this
case. Tennessee Rules of Appellate Procedure 4(a) provides that a notice of appeal as of right be
filed with the trial court clerk within thirty days after entry of the judgment being appealed. In this


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case, the trial court’s order was filed on September 20, 2007. Thus, because no action was taken by
the petitioner, the judgment of the trial court became final on October 20, 2007. See State v. Mixon,
983 S.W.2d 661, 670 (holding that a judgment becomes final in the trial court thirty days after its
entry if no post-trial motions are filed). As such, the trial court did not have jurisdiction to rule upon
the two motions filed by the petitioner in November 2007. Thus, it cannot be disputed that the
petitioner’s February 12, 2008 notice of appeal was not timely filed. However, “in all criminal cases
the ‘notice of appeal’ document is not jurisdictional and the filing of such document may be waived
in the interest of justice.” Tenn. R. App. P. 4(a). The appellate court to which the appeal is taken
“shall be the court that determines whether such a waiver is in the interest of justice.” Id. In this
case, because the record is sufficient to adequately dispose of the issues, we conclude that waiver
in the interest of justice is appropriate.

         The writ of error coram nobis is an “extraordinary remedy,” filling only a “slight gap into
which few cases fall.” Id. at 672. The “purpose of this remedy ‘is to bring to the attention of the
court some fact unknown to the court, which if known would have resulted in a different judgment.’”
State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). Indeed, the coram nobis statute states:

        Upon a showing by the [petitioner] that the [petitioner] 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 trial.

T.C.A. § 40-26-105(b) (2006). The decision to grant or deny a petition for writ of error coram nobis
rests within the sound discretion of the trial court. T.C.A. § 40-26-105; see also State v. Hart, 911
S.W.2d 371, 375 (Tenn. Crim. App. 1998).

        The writ of error coram nobis may be had within one year after the judgment becomes final
by petition presented to the trial court. T.C.A. § 27-7-103 (2006). However, principles of due
process may preclude the use of the statute of limitations to bar a claim in coram nobis. Workman
v. State, 41 S.W.3d 100, 103 (Tenn. 2001). “[B]efore a state may terminate a claim for failure to
comply with procedural requirement such as statutes of limitations, due process requires that
potential litigants be provided an opportunity for the presentation of claims at a meaningful time and
in a meaningful manner.” Id. at 102 (quoting Burford v. State, 845 S.W.2d 204 (Tenn. 1992)).
Thus, principles of due process may intercede when, “under the circumstances of a particular case,
application of the statute [of limitations] may not afford a reasonable opportunity to have the claimed
issue heard and decided.” Burford, 845 S.W.2d at 208.

         In summarily dismissing the petition, the trial court found that it was time-barred by the
statute of limitations and that it failed to state a cognizable claim. After reviewing the record, we
agree. None of the claims raised by the petitioner are the types which are proper for error coram
nobis relief. The petitioner asserts no newly discovered evidence or facts not known to the trial court
at the time of his plea. The only “new” fact asserted by the petitioner is that his conviction was used


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to enhance a later federal sentence. Even if established, which we noted in our recitation of the facts
that the petitioner has failed to do, the alleged constitutional infirmities and rule violations existed
at the time of the plea and would have more properly been challenged in a post-conviction or habeas
corpus petition. The petitioner has offered no explanation for the nine-year lapse in his challenge
of these issues. Thus, while due process may excuse an untimely filing, the petitioner has failed to
establish his entitlement to such due process considerations on these facts.

                                          CONCLUSION

        Based upon the foregoing, the Davidson County Criminal Court’s summary dismissal of the
petition for writ of error coram nobis is affirmed.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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