        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE

            ANTONIO J. BEASLEY, SR. v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                      No. 278920     Barry A. Steelman, Judge


                 No. E2011-00787-CCA-R3-PC - Filed August 19, 2011


The Petitioner, Antonio J. Beasley, Sr., appeals the Hamilton County Criminal Court’s
dismissal of his petition for error coram nobis relief from his 1989 conviction for grand
larceny and his 1990 convictions for possession of cocaine and attempted arson. He claims
his convictions should be vacated because trial counsel and the trial court did not inform him
that his convictions could be used to enhance future sentences, thus rendering his guilty pleas
involuntary and unintelligent. The State has moved this court to dismiss the Petitioner’s
appeal as untimely, or, in the alternative, affirm the trial court by memorandum opinion
pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The State’s motion for
a memorandum opinion is granted, and the judgment of the trial court is affirmed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
           Pursuant to Rule 20, Rules of the Court of Criminal Appeals

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Antonio J. Beasley, Sr., Bruceton Mills, West Virginia, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State
of Tennessee.
                             MEMORANDUM OPINION

        The record reflects that on May 5, 1989, the Petitioner pled guilty to grand larceny and
that on June 22, 1990, the Petitioner pled guilty to possession of cocaine and attempted arson.
Nothing in the record indicates that the Petitioner appealed his convictions. The Petitioner
filed a previous petition for writ of error coram nobis in 2007, and this court affirmed the
trial court’s summary dismissal of the writ because the 2007 petition was barred by
Tennessee Code Annotated section 27-7-103 (2000) because it was untimely. See Antonio
J. Beasley, Sr. v. State, No. E2007-01795-CCA-R3-PC, Hamilton County (Tenn. Crim. App.
Mar. 26, 2008). On January 26, 2011, the Petitioner filed the instant petition for writ of error
coram nobis, which the trial court summarily dismissed after determining that the Petitioner
failed to state a cognizable claim for relief. The trial court quoted this court’s previous
statement in Edward P. Porter v. State, No. M2008-00375-CCA-R3-CO, Davidson County,
slip op. at 3-4 (Tenn. Crim. App. April 21, 2009):

              [The Petitioner] asserts that . . . his guilty plea entered in 1996
              was not a knowing and voluntary plea . . . .

              ...

              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 to enhance a
              later federal sentence. Even if established . . . 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.

This appeal followed.

        With regard to the State’s claim that the Petitioner’s appeal should be dismissed
because it was untimely, Rule 4 of the Tennessee Rules of Appellate Procedure requires a
party to file a notice of appeal within thirty days “after the date of entry of the judgment
appealed from.” T.R.A.P. 4(a). The timely filing of a notice of appeal is not a prerequisite
to the jurisdiction of this court. Id. In the interest of justice, we may waive the notice of
appeal and proceed to analyze the issues raised by the parties. Although the Petitioner filed
his notice of appeal on March 21, 2011, forty-six days after the trial court entered its
judgment on February 3, 2011, we waive the pro se Petitioner’s notice of appeal.



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       Tennessee Code Annotated section 40-26-105(b) states:

              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.

T.C.A. § 40-26-105(b) (2010); see State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App.
1995). The decision to grant or deny such a writ rests within the sound discretion of the trial
court. Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010). A petition for writ of error coram
nobis must be filed within one year of the date the judgment becomes final in the trial court.
T.C.A. § 27-7-103; State v. Mixon, 983 S.W.2d 661, 663 (Tenn. 1999); State v. Ratliff, 71
S.W.3d 291, 295 (Tenn. Crim. App. 2001). Despite the one-year statute of limitations, due
process may require tolling of the limitations period if a petitioner seeks relief based upon
newly discovered evidence of actual innocence. Harris, 301 S.W.3d at 145; Workman v.
State, 41 S.W.3d 100, 101 (Tenn. 2001).

       The record reflects that the Petitioner’s writ of error coram nobis was filed on January
26, 2011, more than twenty years after the judgments of the trial court became final. The
Petitioner has not established that there is any newly discovered evidence that was not known
to the trial court at the time of his plea or that due process requires consideration of his
untimely petition. We conclude that the Petitioner’s motion was untimely and barred by
Tennessee Code Annotated section 27-7-103 and that the Petitioner has not stated a proper
claim for coram nobis relief.

       The State’s motion for a memorandum opinion is granted. The opinion provides no
precedential value; the proceeding occurred before the trial court without a jury; the action
was not a determination of guilt; the evidence does not preponderate against the trial court’s
findings; and no error of law is apparent on the record. See Tenn. Ct. Crim. App. R.
20(1)(a), (2). The judgment of the trial court is affirmed in accordance with Rule 20, Rules
of the Court of Criminal Appeals.


                                              _____________________________________
                                              JOSEPH M. TIPTON , PRESIDING JUDGE




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