### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE July 16, 2002 Session
GREGORY THOMP SON v. RICKY BEL L, WARDEN Direct Appeal from the Circuit Court for C offee County No. 31,213 L. Craig Johnson, Judge

No. M2001-02460-CCA-OT-CO - Filed August 15, 2002

Ap pellant, Gregory Thompson, was convicted for the first degre e murder of Brenda Lane. T h e murder occurred on January 1, 1985. The jury imposed the dea th penalty. Our supreme court affirmed the conviction and sentence of death. Statev. Thompson , 768 S.W.2d 239 (Tenn. 1989). Appell ant subsequently filed a petition for post-conviction relief. The petition was denied b y th e trial court, andthe trial court’s denial was subsequently affirmed by our Court. Thompson v . State , 958 S.W.2d 156 (Tenn. Crim. App. 1997). Later, in 2001, Appellant filed a petition for writ of error coram nobis, which the trial court dismissed without an evidentiary hearing because it wa s filed after expiration of the ap

plicable one-yea r statute of limitati ons. This a

ppeal fo ll ow ed. We affirm the judgment o f the tria

l court. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med.
T HOMAS T. W OODALL , J., delive red the o pinion of t

he court , in which J. C URWOOD W ITT and A LAN E. G LENN , JJ., joined. Marjorie A. Bristol, Nashville, Tennessee, for the appellant, Gre gory Thompson.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, As sistant Att

orney Ge neral; C. Michael La yne, District Attorn ey Gene ral; and Chris Ver non, Assis tant Distr

ict Attorn ey Gene ral, for the appellee, State of Tennessee.
OPINION
In his petition for writ of error c oram nobis, App ellant as serts tha t “new e vidence ” of his mental incapacity exists which would have resulted in a differe nt judgment if the jury had bee n aware of the evide nce at the time of h

is trial. D efenda

nt bases t his theor y on a peti

tion filed in the Chancery Court of Davidson County, with the State of Tennessee Department of Correc tion as p etitioner , seeking to have a conservator appointed for A ppellant. The Department of Correction asserted that the appointment of a conservator was for the limited purpose of providing conse nt for-2-

Appellant to “receive med ical an d psychiatric treatment, including the forcible administration of medications if the conservator finds that such is necessary.”
The co ns ervatorship petition, filed by the State Attorney General repre senting the Department

of Correction, alleged in p e rtinent part that Appellant was in need of protection and assistance by reason of an illness which rendered him “pre sent ly disable d.” The c onserva torship petition fu rt her alleged that Dr. Casey Arney, Appellant’s tre ating psychiatrist, had diagnosed Appellant a s suffering from “a long history of Bipolar Disorder and psychotic symptoms.” No furth er quantific ation of th

e time per

iod of App ellant’s mental dis ability wa s made in th e conservatorship petition.
The conservatorship petition was filed March 14, 2001, almost sixteen years after Appellant was convicted of first degree murder and se ntenced to death. Dr. Arney’s letter in su pport of the appointment

of a conservator, which was sworn to in the presence of a notary public, is dated January 19, 2001. During Appellant’s trial and post-conviction proceedings, theState contested all assertions by Appellan

t that his me

ntal cond ition was a

valid def ense to the crime for which he was charged, and/or that his me

ntal cond ition was a

mitigating factor as to the sentencing. See State v. Thompson , 768 S.W.2d 239 , 248-49 ( Tenn. 198 9); Thompson v . State , 958 S.W.2d 156, 164- 65 (Tenn . Crim. App. 1997). In the opinion of this Court in the post-conviction case, our Court noted that Appellant was diagnosed with “bipolar disorder, schizo affective disorde r or schizophrenia” since his incarceration for the murder of Brenda Lane. Thompson , 958 S.W.2d at 164. Although Appellant, in his petition and in his brief on appeal, renews allegations of ineff ective assistance of

counsel at trial, the crux of his argument in the present coram nobis petition is based on a claim tha t the State has since reversed its position and now agrees that Appellant has a debilitating mental illness.
The purported “new ev idenc e” in this case, which consists of Dr. Arney’s sworn letter supp orting the appoi ntment of a conserv ator, doe s not suppor t Appella nt’s asse rtion th at he wa s suffering from any mental disability at the time of the criminal offense for which he was convicted or at the time of his trial. Likewise, the Department of Correction’s petition for ap po intment of a conser v ator

does not, in and of itself, constitute “evidence,” new or old. Hillhave n Corp. v. St

ate ex rel. Manor Care, Inc. , 565 S.W.2d 210, 212 (Tenn.1978) (allegations in pleadings do no t constitute evidence of the facts averre d); State v. Dykes , 803 S.W.2d 150, 255 (Tenn. Crim. App. 1990). Neither

does the c onserva

torship pe

tit ion consti tute a concession by the State Attorney Ge neral that Appellant was mentally disabled at the time of the criminal offense or a t the time o f Appellan t’s trial.
The relief b y petition f

or writ of error c oram nobi s is provid ed for in Tenness ee Co d e Annotated section 4 0-26-105 . As previously note d by our Cou rt, “[t] he purpo se of

this reme dy ‘is to bring to

the attention of the [trial] 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 (Ten n. Crim. App. 1995) (quoting State ex r

el. Carls on v. State , 407 S.W.2d 165, 167 (Tenn. 1996)).-3-

Tennessee Code Annotated se ction 27- 7-103 pro vides a st atute of limi ta tions of one year after the judgme

nt become s final f

or fili ng a petition for writ of error coram nobis. In State v. Mixon , 983 S.W. 2d 661 (Tenn. 1999), our supreme court clarified that the pe tition must be filed within one year of the date that the judgment became final in the trial court. Id. at 670. A judgment is final in the trial court thirty days after entry of the judgment if no post-trial motions are filed, and, if a post-trial motion is filed, the judgment is final upon entry of an order disposing of the post-trial motion. Id.
There is no question that Appellant’s petition for writ of error coram nobis was filed outside of the applica

ble statute of limitations. It was filed more than fifteen years after the judgment became final in the trial court. However, in Workman v. State , 41 S.W.3d 100 (Tenn. 2001), our supreme court held that the constitutional rights of due process may require tolling of the statute of limitations in a proceeding where a petition for writ of error coram nobis has been filed. Id. at 103. Workman involved a capital case wherein the pe titioner argued th at certain late-discovered evidenc e, i.e., a previously unavailable x-ray and the rec anted testimony of a crucial witness, would show that he was actually innocent of the crime for which he was convicted. In State v. Ratliff , 71 S.W.3d 291 (Tenn. Crim. App. 2001), our Court appliedthe holding in Workmanto a conviction in a non-capital case. The defendant in Ratliff was convicted of rape of a child and sentenced to serve twenty-four years in the Department of Correction. The judgment became fina l on December

7, 1998. He filed a petition for wr it of e rror coram nobis on December 21, 1999, fourte en days outside of the applica ble statute of l imitations. The “new evidence” was a lleged to be a total recantation of the testimony by the vic tim . Our cou rt noted that the great weight of evidence against the de fendant came from the testimony of the victim at trial. In November 1999, within the statute of limitations , the victim and her mother

had contacted the prosecutor’s office to discuss the fact that the victim had given false testimony at defendant’s trial. Our Court held that, under the circumstances presented in Ratliff , due process precluded a summary dismissal of the petition for writ of er ror coram no bis based upon the expiration of the statute of limitations. Id. at 298.
The case sub judice is distinguishable from both Workman and Ratliff

. First o f all, the “newly discovered

evidence” asserted by Appellant in this case does not purpor tto show his “actual innocence” of the cr

ime for w hich he w as convicted. No r does it constitute mitigating evidence regarding his sentence. As noted above, assertions by a party in a plea ding are not “evidence.” Furthermore, Dr. Arney’s letter, written more than fifteen years af ter the commission of the criminal offense, does not e

ven asse rt that Ap pellant h ad any me

ntal illne ss at the time of the commission of the offense. Finally, as reflected in th is court’ s opinion in

Appellant’s post-conviction proceeding, there was evid

ence, a t least as early a

t 1995, tha

t Appella nt’s menta

l illness developed

subsequent to his incarceration.
The crux of Appellant’s petition is that he should be granted a

hearing because the State of Tennessee, thr ou ghout the t rial proc eedings a

nd direc t appeal s thereo f, and thr oughout the

postconviction proceedings, successfully argued that Appellant did not have a mental illness which would constitute a defense to the crime or a mitigating factor for sentencing. Appellant argues that the State now concedes that Appellant has a mental illness. The only conclusion that can be-4-

logically drawn f rom the c onserva

torship pe

tition, how ever, is that the Sta te Attorn ey Gene

ral, representing the Department of Correction, asserts that Appellant was in need of a conservator for the limited purpose of giving consent to medical and psychiatric treatment in March 2001. This does notconstitute “newly discovered evidence” within the par ameters for

relief p rovided b y the writ

of error coram no bis; neither does due process require a tolling of the applica ble statut e of limita tions. The judgment of the trial court is therefore affirme d.
CONCLUSION
For the fo regoing r easons, w e AFFIRM the

judgment o f the tria

l court.

____________________________________ THOMAS T. WOODALL, JUDGE