IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 15, 2012

KEVIN DeWITT FORD v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2001-A-600, 601 Cheryl Blackburn, Judge

No. M2011-02105-CCA-R3-CO - Filed October 1, 2012

On January 18, 2011, Petitioner, Kevin DeWitt Ford, filed a pro se petition for writ of error

coram nobis. He subsequently submitted two amended petitions, also pro se. Petitioner

attacked seven convictions in the Davidson County Criminal Court for aggravated robbery.

Petitioner pled guilty to the offenses but reserved for appeal a certified question of law. On

appeal, this court affirmed the convictions. State of Tennessee v. Kevin DeWitt Ford and

Clifford Sylvester Wright, No. M2003-00957-CCA-R3-CD, 2005 WL 677280 (Tenn. Crim.

App. Mar. 23, 2005) perm. app. denied, (Tenn. Oct. 24, 2005). Petitioner’s post-conviction

relief petition was denied by the trial court. This Court affirmed. Kevin DeWitt Ford v. State

of Tennessee, No. M2007-01727-CCA-R3-PC, 2009 WL 564226 (Tenn. Crim. App. Mar.

5, 2009) perm. app. denied (Tenn. June 15, 2009). The coram nobis court dismissed the

petition, as amended, without an evidentiary hearing, on two bases. First, the petition was

filed outside the applicable statue of limitations. Second, even if the petition had been timely

field, it did not state a cognizable claim for a writ of error coram nobis. We affirm the

judgment of the coram nobis court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

PJ., and NORMA MCGEE OGLE, J., joined.

Kevin DeWitt Ford, Only, Tennessee, pro se.

Robert E. Cooper,Jr., Attorney General and Reporter;Jeffrey D. Zentner, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General, and Bret Gunn, Assistant

District Attorney General, for the appellee, State of Tennessee.
OPINION

On March 27, 2003, Petitioner pled guilty to the following aggravated robberies, as

set forth in the indictments:

Indictment Count Date of Offense Victim

2001-A-600 3 May 15, 2000 Christopher A. Jayne

2001-A-600 4 November 4, 2000 Joseph Lamont Vannoy

2001-A-601 7 December 20, 1999 Mary Dusk

2001-A-601 12 April 19, 2000 Kevin Cobb

2001-A-601 28 June 11, 2000 Teresa Alaboudi

2001-A-601 30 June 12, 2000 Kelly Harrell

2001-A-601 43 September 6, 2000 Linda Gail King

Petitioner received a sentence of ten years for each conviction. There was some

consecutive sentencing involved which resulted in a total effective sentence of fifty years.

Indictment number 2001-A-600 had four counts and indictment number 2001-A-601 had

sixty counts. As part of the plea agreement, all counts to which Petitioner did not plead

guilty were either dismissed or retired. As is shown above, all of the convictions for

aggravated robbery were for offenses which occurred on different dates with different

victims involved.

In Petitioner’s pleadings in the coram nobis trial court, and in his brief on appeal,

Petitioner alleges a plethora of legal arguments and conclusions, but ultimately the focus of

his attack on the convictions relates to the indictments. The four issues presented by

Petitioner in his brief, in his wording, are set forth as follows:

I. The trial court erred in not allowing Appellant’s writ of error to lie

pursuant to Tenn. Code Ann. § 40-26-105(a) and (b)

II. The trial court factual findings are erroneous and in direct

contravention with the Tennessee Supreme Court and the [ ] Court

of [Criminal] Appeals factual findings, regarding a multiplicitous

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indictment and the protection of the double jeopardy clause of the

[United States Constitution] 5 Amendment

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III. Appellant Ford’s claimed issue of the multiplicitous indictment

required an opportunity to be heard; and the vacating of the

conviction(s) and sentence(s) pursuant to Tenn. R. Crim. P. 52(b)

plain error rule

IV. The trial court abused its authority and violated the Davidson County

local rules of court in its order filed on August 29, 2001

All of Petitioner’s claims for relief on appeal are dependent upon the validity of his

claim that he is entitled to statutory coram nobis relief because his rights guaranteed under

the United States Constitution were violated when he was led to plead guilty to multiplicitous

indictments. In his petition for coram nobis relief, Petitioner asserts that his rights under all

of the first ten amendments to the Constitution (including, specifically his Second

Amendment right to bear arms) were violated by the multiplicitous indictments.

Petitioner’s reasoning in his argument can best be relayed by quoting from his brief

on appeal:

Appellant Ford filed his initial Writ of Error Coram Nobis Petition

. . . in the Criminal Court of Davidson County, Tennessee, after a Prison

Legal Aid had informed him that his INDICTMENTS [sic] are

MULTIPLICITOUS [sic] and that his conviction(s) and judgment(s) are

VOID [sic] under MULTIPLICITY [sic] of the Double Jeopardy Clause

under the U.S.C. 5 Amendment and Article I § 9 of the Tennessee

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Constitution.

* * *

The trial court and Appellant’s trial attorney allowed him to plead

guilty in open court to multiple counts of a Multiplicitous Indictment under

case numbers 2001-A-600 and 601 for the same statutory offense of T.C.A.

§ 39-13-402 Aggravated Robbery on March 27, 2003. The trial court and

Appellant’s trial attorney failed to inform him of the right in open court to

be free and protected from DOUBLE JEOPARDY [sic] under the U.S.C.

5 Amendment and Tenn. Const. Art. I § 9.

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* * *

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In both indictments, the aggravated robberies were predicated on the

same statutory offenses of T.C.A. § 39-13-402 Aggravated Robbery. In

other words the state was required to prove the exact same elements in

regards to both indictments, thus exposing Appellant to the possibility of

multiple punishment for the same statutory offense of Tenn. Code Ann. §

39-13-402 Aggravated Robbery and leaving the Appellant unprotected

against double jeopardy. . . . “A multiplicitous indictment violates double

jeopardy principles by giving the jury more than one opportunity to convict

the defendant for the same offense.”

Due to the insufficiency/multiplicity of the indictment, the Appellant

was sentence[d] to seven (7), ten (10) year sentences to run consecutive.

[sic] In other words the Appellant was convicted in five [sic] different

counts for the same offense of T.C.A. 39-13-402 Aggravated Robbery.

* * *

Here the acts of the Appellant clearly met the definition of a

continuing crime, thus, Appellant violated one statutory provision [sic] of

T.C.A. 39-13-402 Aggravated Robbery and the Appellant’s multiplicitous

argument must prevail.

In order to justify tolling of the one year statute of limitations for filing a corum nobis

petition, Petitioner alleged in his petition that he obtained “new evidence” of the violation

of his constitutional rights to be protected from multiplicitous indictments. He specifically

alleged that he did not become aware of the “evidence” of the Constitutional violation “until

January 4, 2011 at 1:39 p.m.”

Analysis

We will collectively address Petitioner’s first three designated issues on appeal.

Tennessee Code Annotated section 40-26-105 provides as follows regarding the writ of error

coram nobis in criminal proceedings:

40-26-105. Writ of error coram nobis.

(a) There is made available to convicted defendants in criminal cases a

proceeding in the nature of a writ of error coram nobis, to be governed by the

same rules and procedure applicable to the writ of error coram nobis in civil

cases, except insofar as inconsistent herewith. Notice of the suing out of the

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writ shall be served on the district attorney general. No judge shall have

authority to order the writ to operate as a supersedeas. The court shall have

authority to order the person having custody of the petitioner to produce the

petitioner in court for the hearing of the proceeding.

(b) 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 a 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.

(Emphasis added).

As recently explained by our Supreme Court, “the burden of proof on a petitioner for

the grant of coram nobis relief is indeed heavy. The statute confines review to errors outside

of the record. . . .” Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012) (emphasis added).

Obviously, the purported issue of “multiplicitous indictments” is not “outside of the

record.” Furthermore, Petitioner’s assertion that the legal argument that the indictments

were multiplicitous is “evidence” is also misplaced. A legal theory for relief is not

“evidence” as contemplated by the error coram nobis statute.

Finally, the convictions attacked by Petitioner are not the result of multiplicitous

indictments. In State v. Phillips, 924 S.W.2d 662 (Tenn. 1996), our supreme court defined

multiplicitous indictments as follows:

Multiplicity concernsthe division of conduct into discrete offenses, creating

several offenses out of a single offense.[ ] Several general principles

determine whether offenses are “stacked” so as to be multiplicitous:

1. A single offense may not be divided into separate parts;

generally, a single wrongful act may not furnish the basis for

more than one criminal prosecution;[ ]

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2. If each offense charged requires proof of a fact not required

in proving the other, the offenses are not multiplicitous; [6]

and

3. Where time and location separate and distinguish the

commission of the offenses, the offenses cannot be said to

have arisen out of a single wrongful act.[ ]

Id., at 665 (footnotes omitted).

As noted above, each aggravated robbery for which Petitioner was convicted occurred

on a different date, against a different victim. These were seven separate wrongful acts, each

requiring proof of a victim different from all other wrongful acts, and the time of the offenses

separated and distinguished the commission of the offenses.

As to Petitioner’s meritless issue that the coram nobis court erred by failing to follow

its own local rule of court and grant his petition because the State did not file a responsive

pleading, we note that the rule applies in civil cases as to motions. It does not, and could not,

apply to grant default judgment against the State in a coram nobis proceeding in order to set

aside felony convictions based solely upon the State’s failure to file a responsive pleading.

See Tenn. R. Civ. P. 55.04. Petitioner was not entitled to any relief in the coram nobis trial

court and thus is not entitled to relief on appeal.

CONCLUSION

The judgment of the coram nobis court is affirmed.

_________________________________________

THOMAS T. WOODALL, JUDGE

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