        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 25, 2015


             COREY ALAN BENNETT v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                       No. 102947     Bobby R. McGee, Judge




                 No. E2014-01637-CCA-R3-PC-FILED-JUNE 29, 2015



The petitioner, Corey Alan Bennett, appeals the dismissal of his petition for post-conviction
relief without the opportunity to present evidence at a hearing. The petitioner pled guilty to
two counts of attempted especially aggravated sexual exploitation of a minor and four counts
of aggravated stalking. Pursuant to the plea agreement, he received a ten-year Range I
sentence in the Department of Correction. The petitioner filed an untimely post-conviction
petition asserting an involuntary guilty plea based on the ineffective assistance of counsel and
newly discovered evidence in the form of recanted testimony of a witness. He contends that
the post-conviction court erred in its summary dismissal because due process requires that
he be afforded a hearing. Following review of the record, we affirm the dismissal of the
petition.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and R OBERT L. H OLLOWAY, J R., JJ., joined.

Bailey M. Harned, Knoxville, Tennessee, for the appellant, Corey Alan Bennett.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Charme Allen, District Attorney General; and Eric Counts, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION
                          Factual Background and Procedural History


       According to the petitioner, he was indicted for “13 counts of especially aggravated
sexual exploitation of a minor, 1 count of aggravated sexual exploitation of a minor, 4 counts
of aggravated stalking, and 1 count of contributing to unruly behavior.” In 2012, the
petitioner pled guilty to two counts of attempted especially aggravated sexual exploitation
of a minor and four counts of aggravated stalking with the remaining charges being
dismissed.1 The agreement provided for a ten-year sentence as a Range I offender with the
manner of service to be determined by the trial court. After reviewing the evidence
presented, the court ordered the petitioner to serve his sentence in the Department of
Correction on October 12, 2012. No direct appeal was taken.

       Although the record is not clear when, at some point the petitioner timely filed for
post-conviction relief and was represented by counsel. It appears that at the hearing on the
matter, the petitioner voluntarily moved for dismissal of the petition. The petition did raise
issues of ineffective assistance of counsel and an involuntary guilty plea.

       Subsequently, on January 9, 2014, the petitioner filed a pro se petition for post-
conviction relief alleging an involuntary guilty plea due to the ineffective assistance of
counsel. On March 6, the post-conviction court appointed counsel to the indigent petitioner.
A second pro se petition for post-conviction relief was filed on April 3, 2014. In the petition,
the petitioner alleged that his former counsel had dismissed his initial petition for relief
without his consent. The ground for relief checked on the form petition was ineffective
assistance of counsel. In addition, the petitioner also asserted that his plea was not
knowingly and voluntarily entered and that the convictions were based on evidence obtained
pursuant to an unconstitutional search and seizure.

        On May 6, 2014, the petitioner filed a Motion for Dismissal of Counsel asserting a
fatal conflict of interest based on post-conviction counsel’s failure to correspond with the


        1
          There is some confusion in the record as to what charges the petitioner pled guilty to. In his brief,
he indicates he pled to “especially aggravated sexual exploitation of a minor, aggravated sexual exploitation
of a minor, aggravated stalking, and contributing to unruly behavior.” In his petition, he states he pled to two
counts of attempted aggravated sexual exploitation of a minor and four counts of aggravated stalking. The
technical record indicates he was convicted of two counts of attempted especially aggravated sexual
exploitation of a minor and stalking arising from five different docket numbers. In its brief, the State states
the petitioner pled to two counts of attempted aggravated sexual exploitation of a minor and four counts of
aggravated stalking. Copies of the plea agreement or the judgments of conviction are not included in the
record. Nonetheless, we review the petitioner’s issue as his actual conviction offenses are not relevant to
the issue raised.

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petitioner in preparation for the case, failure to represent the petitioner in a sufficient manner
to guarantee him due process, and the cumulative effect of these errors. On the same day,
the petitioner also filed multiple motions with the court including, among others, motions for
discovery, suppression, to receive pre-trial disposition of motions filed, and to dismiss any
further prosecution of the case.

       On June 13, 2014, an amended petition for post-conviction relief was filed by post-
conviction counsel on the petitioner’s behalf. The petition asserted an involuntary and
unknowing guilty plea, stating that the petitioner did not understand the nature and
consequences of the plea agreement because: (1) he was led to believe he would receive a
sentence of probation; and (2) he would have been denied effective assistance of counsel had
he chosen to proceed to trial, a conclusion made by the petitioner based upon trial counsel’s
actions and preparation prior to trial. As a separate ground for relief, the petition asserted
that one of the stalking victims in the case had changed the substance of what would have
been her testimony if he had proceeded to trial.

       The following statement was also included in the petition in regard to the original
timely-filed petition for relief:

       Petitioner has filed a prior petition for post-conviction relief (in addition to his
       pro-se petition in this case) and has previously properly presented these claims
       to a court. The Petitioner contends that the statute of limitations for his post-
       conviction claim should be tolled and this petition be regarded as timely
       because a portion of his claim for relief arose after the statute of limitations
       expired.

       A hearing was scheduled on the matter for June 26, 2014. As an initial matter counsel
for the petitioner conceded that two pending petitions for habeas corpus relief should be
dismissed as they were not well-taken. The court also dismissed the petitioner’s pro se
petitions for relief, stating that pro se materials were not to be considered because the
petitioner was represented by counsel.

        At that point, the State made an oral motion to dismiss the post-conviction petition.
The State noted that the petition was not timely filed and further that all the issues for relief,
except that of the alleged change in testimony of one victim, had been presented to the court
in the prior post-conviction hearing on the original petition. The State also noted that, at the
prior hearing, prior to the voluntary dismissal by the petitioner, he was informed “that he got
a great deal.” The State continued and stated that:

       The State is aware of the horrific childhood that [the petitioner] had, and that’s

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       why he got the deal that he did based on this charge. He got ten years when
       it could’ve been far, far more reaching. But at that time when he was
       represented, . . . he came in to the Court and said, “I’m waiving my right to this
       PCR, accept what’s going on, we’re voluntarily dismissing it, and I waive my
       right to appeal,” and all the words that he needed to say, and at that time it was
       over.

The post-conviction court then asked the petitioner’s counsel if there were any new claims
made in the instant petition which were not made in the 2013 petition. Counsel replied the
only addition was that the petitioner was now asserting that one of the victims of the
aggravated stalking conviction was changing her testimony from what it would have been
had she testified at trial.

       In summarily dismissing the petition, the post-conviction court noted:

              [The differing testimony of the victim] would be in the nature of a writ
       of error coram nobis and that’s not filed here. It would not be proper for post-
       conviction relief.

              At this point then, granted that there is no other issues presented in this
       petition that were not presented in the petition that’s already been heard by the
       Court and dismissed, this Court would find that he did withdraw that petition,
       that petition was dismissed, and that is a final decision of this Court, and this
       is simply a reiteration of what’s already been dismissed, therefore, the Court
       does dismiss this amended petition for post conviction relief.

             If he wants to pursue the new evidence issue, that’s a writ of error
       coram nobis and I’m sure he can talk to somebody in prison and find out about
       that.

On August 19, 2014, the petitioner filed a pro se Motion to Reopen Post-Conviction Petition.
As a basis for relief, he asserted that an appellate court has issued a final ruling establishing
a constitutional right that was not available at the time of trial. Specifically, but without
citation to a specific case, he relied upon a law prohibiting law enforcement from searching
a cell phone without a warrant. As a second ground, he asserted newly discovered scientific
evidence which established his actual innocence. The evidence involved a video and phone
technology specialist who apparently would say that one of the parties on a particular phone
conversation was not who she had previously been identified as. On September 30, 2014,
the post-conviction court entered an order dismissing the motion because the original post-
conviction petition to which the motion referred was currently on appeal with this court.

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       Notice of appeal was filed August 19, 2014, with regard to the dismissal of the
petition for post-conviction relief. The petitioner acknowledges on appeal that the appeal
was not timely filed.

                                                  Analysis

        As an initial matter in this appeal, this court must first address the petitioner’s
untimely filing of the notice of appeal document. There is no dispute that the notice was in
fact not timely filed, but the petitioner urges the court to waive the untimely filing because
of events out of his control. Specifically, in the facts section of his brief, the petitioner
contends that his attempts to contact his counsel in order to initiate an appeal “were waylaid
by the mail room at Riverbend Maximum Security Institute.” He asserts that the dates on his
letters to his attorney differ from the mail room markings. The petitioner argues that,
because the events resulting in the late-filing were beyond his control, waiver is proper.

        Rule 4(e) of the Tennessee Rules of Appellate Procedure states that the notice of
appeal “shall be filed . . . within 30 days after the date of entry of the judgment appealed
from[.]” Again, that did not occur in this case as the petition was dismissed on June 26,
2014, and notice of appeal was not filed until August 19, 2014. However, this court may
waive the requirement of a timely notice of appeal in the interest of justice. Rule 4(a) states
that “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). “In
determining whether waiver is appropriate, this court will consider the nature of the issues
presented for review, the reasons for and the length of the delay in seeking relief, and any
other relevant factors presented in the particular case.” State v. Markettus L. Broyld, No.
M2005-00209-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005).
Waiver is not automatic and should only occur when “the interest of justice” mandates
waiver. State v. Sands, 767 S.W.2d 157, 158 (Tenn. 1989). This court has stated that if it
were to summarily grant a waiver whenever confronted with untimely notices, the thirty-day
requirement of Tennessee Rule of Appellate Procedure 4(a) would be rendered a legal
fiction. Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 63950, at *1
(Tenn. Crim. App. Feb. 13, 1996).2

        2
           As pointed out by the State, the “mailbox rule,” which provides that a filing prepared by a pro se
litigant shall be timely “if the paper was delivered to the appropriate individual at the correctional facility
within the time fixed for filing.” Tenn. R. Crim. P. 4(d). First, the petitioner has failed to provide
documentation as to the date he provided the notice of appeal document to the appropriate individual at the
prison. The “Certificate of Service” on the notice of appeal provides that he forwarded a copy of his notice
of appeal to his attorney on July 20, 2014. Moreover, the petitioner’s argument centers around letters he sent
to his attorney, not the notice of appeal itself. The “mailbox rule” applies to “filings,” not letters sent to an
                                                                                                  (continued...)

                                                      -5-
        After review of the relevant factors, we conclude that the interest of justice in this case
mandates our review. The petitioner has asserted that he attempted to communicate with his
attorney regarding the notice of appeal. The length of the delay was only slightly longer than
a month, not enough of a time delay to place an undue burden on the State to defend the case.
Moreover, we also review the case in the interest of finality. The State noted at the hearing
that the petitioner was continually filing new petitions and motions in the case, even going
so far as to communicate with the sheriff’s department and the distric attorney general’s
office. Thus, we review to ensure that the case reaches conclusion.

        The petitioner contends that the post-conviction court erred in summarily dismissing
his petition for relief. However, a reading of his argument fails to specify why he believes
the decision was error. In fact, the argument appears to be merely a restatement of relevant
facts. The argument, in its entirety, is as follows:

               In the present case there was no evidentiary hearing on the merits of the
        petition for post-conviction relief. The matter was dismissed as being time-
        barred. The petition raised issues of ineffective assistance [of] counsel and
        evidence of a material fact not previously heard by the court that could result
        in vacating of the conviction. The petitioner was unaware of the
        complainant’s change of testimony at the time of the dismissal of his original
        petition for post-conviction relief. When he became aware of this
        development the Petitioner zealously pursued his post-conviction remedies.

               The Petitioner contends that his guilty plea was a result of his
        ineffective counsel. He further contends that the newly discovered evidence
        regarding the testimony of one of the victim’s would have a material effect on
        his decision to enter a guilty plea.

The petitioner does cite to Burford v. State, 845 S.W.2d 204, 209 (Tenn. 1992), which
provides that the statute of limitations in a post-conviction proceeding may be tolled if due
process requires, such as where the claims for relief arise after expiration of the statute of
limitations. We assume that the petitioner is claiming that due process requires tolling in his
case.

      On appeal, this court will review a post-conviction court’s conclusions of law de novo
with no presumption of correctness. Fields v. State, 40 S.W.3d 450,457 (Tenn. 2001).
Again, there is no dispute in this case that the petition was filed outside the one-year


        2
            (...continued)
attorney.

                                                -6-
applicable statute of limitations. See T.C.A. § 40-30-102(a) (2010). The petitioner has
simply put forth no argument that mandates due process toll the statute of limitations in this
case.

        A petitioner is entitled to only one petition for post-conviction relief. T.C.A. § 40-30-
102(c). In this case, the petitioner was afforded that opportunity and raised the issues of
ineffective assistance of counsel and the voluntariness of his guilty plea. That he chose to
dismiss that petition does not now entitle him to re-litigate those issues raised. They existed
prior to the expiration of the statute of limitations, as evidenced by their inclusion in the prior
petition, and should have been litigated fully at that point. Despite his efforts to argue to the
contrary, the issues in the prior post-conviction petition may not be re-litigated now or in the
future. They have been determined.

        The only way in which the petitioner may reach back to his original petition is through
a motion to reopen the original petition, and, even then, only the new issues raised will be
addressed. We note that the petitioner did in fact file such a motion in this case, but it was
dismissed because of the pending appeal in this case. Moreover, we note that instances in
which a petition for post-conviction relief may be reopened are limited. The rule provides
that a petitioner may file such motion only if the following applies:

       (1) The claim in the motion is based upon a final ruling of an appellant court
       establishing a constitutional right that was not recognized as existing at the
       time of trial, if retrospective application of that right is required. The motion
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States [S]upreme [C]ourt establishing a constitutional right
       that was not recognized as existing at the time of trial; or
       (2) The claim in the motion is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or
        (3) The claim aspect in the motion seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence, and
       the previous conviction has subsequently been held to be invalid, in which case
       the motion must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid; and
       (4) It appears that the facts underlying the claim, if true, would establish by
       clear and convincing evidence that the petitioner is entitled to have the
       conviction set aside or the sentence reduced.

T.C.A. § 40-30-117(a)(1)-(4). On appeal, the petitioner refers to newly discovered evidence

                                                -7-
only in regard to the recanted testimony of one of the victims. That clearly does not fit under
the parameters set out as grounds for filing a motion to reopen his original post-conviction
petition.

        With regard to the allegedly newly discovered evidence of the recantation of a
witness’s statement, the post-conviction court correctly noted that the proper forum to
address such an issue was in a petition for writ of error coram nobis. This writ 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.” State v. Workman, 41 S.W.3d 100, 103
(Tenn. 2001). The remedy is limited “to matters that were not and 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. 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.

        Based upon this law, the issue of the changed testimony from one of the victims was
not proper for post-conviction relief. Rather, the issue should have been addressed by filing
a petition for the writ of error coram nobis. However, the petitioner should be aware that the
veracity of the newly discovered evidence must be determined by the coram nobis court,
which must also determine whether the evidence might have affected the decision to plead
guilty. Additionally, coram nobis relief is also subject to a statute of limitations. Thus, even
though this court and the post-conviction have noted that the petitioner may file a petition for
writ of error coram nobis, we make clear that we are not holding that he is automatically
entitled to relief.

                                       CONCLUSION

        Based upon the foregoing, the summary dismissal of the petition for post-conviction
relief is affirmed.




                                                    _________________________________

                                                    JOHN EVERETT WILLIAMS, JUDGE




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