         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 22, 2004

                 COREY KENNERLY v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Franklin County
                              No. 8782   J. Curtis Smith, Judge



                   No. M2003-00489-CCA-R3-PC - Filed November 5, 2004


The Appellant, Corey Kennerly, is currently serving concurrent sentences of life imprisonment and
twenty years, as a result of his guilty pleas to first degree murder and aggravated robbery. Kennerly
has filed a petition pursuant to the Post-Conviction DNA Analysis Act of 2001 requesting DNA
analysis of evidence that resulted in his convictions. The trial court granted Kennerly’s petition and
ordered that DNA analysis be performed at state expense. After Kennerly was advised by the
forensic laboratory that the DNA analysis was unfavorable, he moved to voluntarily dismiss his
petition without prejudice. The trial court ruled that voluntary dismissal of the petition was not
authorized by the Act and dismissed the petition upon its merits. Kennerly appeals this ruling. After
review, we find no error and affirm.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

J. Mark Stewart, Winchester, Tennessee, for the Appellant, Corey Kennerly.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H.
Findley, Assistant Attorney General; Steven M. Blount, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                             OPINION

                                        Procedural History

       On October 28, 1996, the Appellant pled guilty to first degree felony murder and especially
aggravated robbery. As provided by the plea agreement, the Appellant was sentenced to concurrent
sentences of life imprisonment for first degree murder and twenty years for especially aggravated
robbery. No direct appeal was taken, but a denial of post-conviction relief was affirmed by this court
on appeal. Corey Adams Kennerly v. State, No. 01C01-9806-CC-00252 (Tenn. Crim. App. at
Nashville, Apr. 29, 1999).

        On August 9, 2001, the Appellant, proceeding pro se, filed a motion to reopen his prior post-
conviction petition pursuant to the Post-Conviction DNA Analysis Act of 2001.1 He asserted that
DNA testing of the vaginal swabs collected from the deceased victim during the investigation would
prove that he was innocent of aggravated rape, which was the crime underlying his conviction for
felony murder. Counsel was appointed, and an amended petition was filed on February 19, 2002.
After a hearing, the trial court granted the Appellant’s request to have DNA testing performed. At
the Appellant’s request, the testing was done in a California lab at state expense.

        At the next scheduled hearing, the State advised the trial court that the DNA tests results had
been returned and that they were unfavorable to the Appellant.2 Based upon this information,
Appellant’s counsel, at the Appellant’s request, moved to withdraw his pending motion for DNA
analysis without prejudice. The State objected to the Appellant’s motion to withdraw, noting, among
other reasons, that $5,500.00 had already been expended by the State in conducting DNA testing.


        The trial court informed the parties that it would take the motion to withdraw under
advisement but wanted to proceed with any proof in the case. The State rested based upon the results
of the DNA test, and the Appellant stated that he had no proof to present. On February 11, 2003,
the trial court ordered dismissal of the Appellant’s action seeking DNA analysis, finding that
Tennessee Code Annotated section 40-30-312 (2003) required dismissal with prejudice if the results
were unfavorable to the petitioner. This appeal followed.

                                                       Analysis

        The issue before us on appeal is whether a petitioner may voluntarily dismiss his or her
petition for DNA analysis after the completion of forensic DNA testing, but prior to the adjudication
of the petition on the merits.

        In dismissing the petition with prejudice, the trial court relied upon Tennessee Code
Annotated section 40-30-312, which provides that “[i]f the results of the post-conviction DNA
analysis are not favorable to the petitioner, the court shall dismiss the petition and make such further
orders as may be appropriate.” Moreover, the trial court observed:


         1
          For instructional purposes, we would note that the Appellant’s filing of a “Motion to Reopen Post-Conviction
Petition” was incorrect. The action should have been presented as a petition for DNA analysis. See Tenn. Code Ann.
§ 40-30-303 (2003).

         2
         Specifically, the test results established: “ 5. These findings fail to support Corey Kennerly’s claims of factual
innocence in the rape and murder of Mary Sharp.” Moreover, the results revealed that the Appellant’s DNA matched
the DNA samples (semen) recovered from the victim, and the statistical likelihood that an unrelated person chosen at
random from the Black population could have the same DNA profile as the Appellant was “1/56 billion.”

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         Obviously with the strategy that if the results were unfavorable, as they were
         unfavorable, then [the Appellant] could avoid the ramifications of that by dismissing
         his petition. However, I find that 40-30-312 requires that if the analysis is not
         favorable to the petitioner and here the DNA analysis was not favorable to [the
         Appellant] then this Court must dismiss the petition as the words of the statute read.

         In arguing that the trial court’s ruling was erroneous, the Appellant relies upon our supreme
court’s holding in Williams v. State, 831 S.W.2d 281 (Tenn. 1992), “for persuasive authority that the
Defendant may withdraw a post-conviction petition for relief without prejudice to the Petitioner’s
right to refile, absent bad faith on the part of the Defendant.” We find this argument misplaced.
Initially, we would note that the holding in Williams “concern[ed] the effect of a voluntary
withdrawal of a petition for post-conviction relief under T.C.A. 40-30-115(a).” Williams, 831
S.W.2d at 282. This statutory provision was repealed with the adoption of the Post-Conviction
Procedure Act of 1995 and is now codified at Tennessee Code Annotated section 40-30-109(c)
(2003). Tennessee Code Annotated section 40-30-109(c) provides: “The petitioner may withdraw
a petition at any time prior to the hearing without prejudice to any rights to refile, but the withdrawn
petition shall not toll the statute of limitations set forth in § 40-30-102.”

        The Post-Conviction DNA Analysis Act of 2001, which is found in Part 3 of the Post-
Conviction Act, encompasses, as the name implies, only DNA analysis and the procedural
requirements for obtaining analysis results. Thus, a petition filed under Part 3 does not constitute
a petition for general post-conviction relief, as it is not a collateral attack on the judgment of
conviction. As the statute directs, if the laboratory results are not favorable to the petitioner, the
petition shall be dismissed. Tenn. Code Ann. § 40-30-312. If the results are favorable, the trial court
shall order a hearing and enter such orders as is required or permitted by “the rules of criminal
procedure3 or part 1 of this chapter.” Id.

         Part 1 of the Post-Conviction Procedure Act prescribes the general provisions of the Act and
establishes when a prisoner may petition for post-conviction relief. The Act expressly provides that
a petition may be filed beyond the one-year statute of limitations when:

                 (2) The claim in the petition is based upon new scientific evidence
         establishing that such petitioner is actually innocent of the offense or offenses for
         which the petitioner was convicted;

                  ...

                (c) This part contemplates the filing of only one (1) petition for post-
         conviction relief. In no event may more than one (1) petition for post-conviction


         3
           For example, the Rules of Criminal Procedure would permit, under Rule 11(e), disposition of the case pursuant
to a plea agreement, and Rule 48 would permit dismissal of the indictment by the State and by the Court. Tenn. R. Crim.
P. 48 (a), (b).

                                                          -3-
         relief be filed attacking a single judgment. . . . A petitioner may move to reopen a
         post-conviction proceeding that has been concluded, under the limited circumstances
         set out in § 40-30-117.4

Tenn. Code Ann. § 40-30-102 (b)(2), (c) (2003).

        Thus, the provisions of the DNA Analysis Act are simply an adjunct to the filing of a petition
or a motion to reopen the first post-conviction petition under the general provision of Part 1 of the
Post-Conviction Procedure Act. Because our supreme court’s holding in Williams addressed a post-
conviction petition under Part 1, it has no application to a petition for DNA analysis under Part 3.
Accordingly, we conclude that based upon the statutory provisions of Tennessee Code Annotated
section 40-30-312, a petitioner may not voluntarily dismiss his petition after the biological evidence
has been submitted for forensic DNA analysis.

                                                  CONCLUSION

       Based upon the foregoing, we affirm the decision of the Franklin County Circuit Court
dismissing the Appellant’s post-conviction petition for DNA analysis on the merits.




                                                                 ___________________________________
                                                                 DAVID G. HAYES, JUDGE




         4
            Tennessee Code Annotated section § 40-30-117 provides when a petitioner may file a motion to reopen the
first post-conviction petition, including when “The claim in the motion is based upon new scientific evidence establishing
that such petitioner is actually innocent of the offense or offenses for which the petitioner was convicted.” Tenn. Code
Ann. § 40-30-117(a)(2) (2003). A motion to reopen should be filed only under the limited circumstances set out in
Tennessee Code Annotated section 40-30-117. Tenn. Sup. Ct. R 28 app. D.

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