IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 27, 2004

JERRY BRITT v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Hamblen County

Nos. 97CR213, 96CR207, 96CR172 James E. Beckner, Judge

No. E2004-01276-CCA-R3-PC - Filed December 20, 2004

The petitioner, Jerry Britt, entered Alford pleas in 1996 to three counts of attempted rape of a child

and guilty pleas to one count of possession with intent to sell or deliver a Schedule II controlled

substance, one count of possession with intent to sell or deliver a Schedule IV controlled substance,

and six counts of delivery of a Schedule II controlled substance, and received an effective sentence

as a Range I, standard offender of forty-eight years in the Department of Correction. He appeals the

dismissal of his petition for writ of error coram nobis, arguing that the trial court should have granted

him relief based on newly discovered evidence, the victim’s recantation testimony. Following our

review, we affirm the order of the trial court dismissing the petition. 

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JERRY L. SMITH and J. C. MCLIN,

JJ., joined.

P. Richard Talley, Dandridge, Tennessee, for the appellant, Jerry Britt.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; and

C. Berkeley Bell, District Attorney General, for the appellee, State of Tennessee. 

OPINION

PROCEDURAL HISTORY

This is the petitioner’s third time before this court, and his extensive procedural history has

been succinctly set out in two previous decisions. See Jerry Britt v. State, No. E2001-00864-CCAR3-PC, 2002 WL 31126638 (Tenn. Crim. App. Sept. 26, 2002), perm. to appeal denied (Tenn. Jan.

27, 2003); Jerry E. Britt v. State, No. 03C01-9806-CR-00208, 1999 WL 359000 (Tenn. Crim. App.

June 4, 1999). 
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On August 26, 1997, the petitioner timely filed a pro se petition for post-conviction relief,

contending, as this court earlier described, “primarily that he was denied effective assistance of

counsel at his guilty plea hearing because he was not advised specifically of the consequences of his

guilty plea.” Jerry E. Britt, 1999 WL 359000, at *1. The post-conviction court dismissed this

petition on March 30, 1998, without a hearing. On appeal, this court remanded the case for the

petitioner to “have new counsel appointed and . . . be given an evidentiary hearing so that he will

have the opportunity to try to prove his allegation that his original trial counsel did not properly

investigate his case, as well as any other allegation that new counsel may determine is appropriate.”

Id. at *2. 

Subsequent to the remand, the petitioner filed an amended post-conviction petition, asserting

that “he received ineffective assistance of counsel when he entered his pleas; that his counsel’s

deficient performance rendered his guilty pleas unknowing and involuntary; and that he should be

granted post-conviction relief because of newly discovered evidence.” Jerry Britt, 2002 WL

31126638, at *1. On March 16, 2001, the post-conviction court conducted an evidentiary hearing,

at which the victim testified, recanting her accusation of sexual abuse made before the petitioner’s

pleas of guilt. Afterthe hearing, the post-conviction court again dismissed the petition and this court

affirmed the decision, concluding that the petitioner “received effective assistance of counsel and

that he entered his plea knowingly, voluntarily, and intelligently.” Id. at *13. We further concluded

that “the [p]etitioner [was] not entitled to post-conviction relief on the basis of newly discovery

evidence,” id. at *14, disagreeing with the petitioner’s claim that the victim’s recantation was newly

discovered evidence:

[A]s the State correctly points out, newly discovered evidence is not

generally an appropriate ground for relief under the Post-Conviction

Procedure Act. See William H. Necessary, Jr., v. State, No.

03C01-9601-CC-00009, 1999 Tenn. Crim. App. LEXIS 246, at

**17-18 (Tenn. Crim. App., Knoxville, Mar. 16, 1999); Randy Hicks

v. State, No. 03C01-9608-CR-00296, 1998 Tenn. Crim. App. LEXIS

253 at **8-9 (Tenn. Crim. App., Knoxville, Mar. 3, 1998). More

specifically, this Court has held that "recanted testimony amounts to

no more than a request to relitigate the sufficiency of the evidence at

trial and is not a proper subject of post-conviction relief." Teresa

Deion Smith Harris v. State, No. W2000-02611-CCA-R3-PC, 2001

Tenn. Crim. App. LEXIS 604, at *3 (Tenn. Crim. App., Jackson, June

13, 2001).

Id. 

Following this court’s affirmance of the dismissal of the amended petition for post-conviction

relief, the petitioner filed a petition for writ of error coram nobis on January 21, 2003, arguing that

the victim’s recantation testimony at the evidentiary hearing constituted newly discovered evidence,

requiring the trial court to set aside his guilty pleas. An exhibit to the petition was the entire

transcript from the March 16, 2001, evidentiary hearing. On April 29, 2004, the trial court, without
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holding a hearing on the coram nobis petition and relying on the transcript of the evidentiary hearing,

dismissed the petition. The petitioner appeals this dismissal. 

ANALYSIS

The trial court dismissed this petition because it both was untimely and without merit. We

concur with both of those determinations, as we will explain.

A writ of error coram nobis is an extraordinary remedy by which the trial court may provide

relief from a judgment under narrow and limited circumstances. State v. Mixon, 983 S.W.2d 661,

666 (Tenn. 1999). The remedy is available by statute to a criminal defendant in Tennessee. See

Tenn. Code Ann. § 40-26-105 (2003). This statute provides, in pertinent part:

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. The issue shall be tried by the

court without the intervention of a jury, and if the decision be

in favor ofthe petitioner, the judgment complained of shall be

set aside and the defendant shall be granted a new trial in that

cause. 

Id. Recanted testimony may qualify as newly discovered evidence. Mixon, 983 S.W.2d at 672. A

new trial should be granted on the basis of newly discovered recanted testimony, however, only if:

(1) the trial court is reasonably well satisfied that the testimony given

by the material witness was false and the new testimony is true; (2)

the defendant was reasonably diligent in discovering the new

evidence, or was surprised by the false testimony, or was unable to

know of the falsity of the testimony until after the trial; and (3) the

jury might have reached a different conclusion had the truth been

told. 

Id. at 673 n.17 (citations omitted). The decision to grant or deny a petition for writ of error coram

nobis based on newly discovered evidence lies within the sound discretion of the trial court. See

Tenn. Code Ann. § 40-26-105 (2003); State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).

The petitioner argues the post-conviction court erred in holding that the victim’s recantation

testimony at the post-conviction evidentiary hearing did not constitute newly discovered evidence.

Specifically, he asserts that the victim’s inconsistent statements, even if known to him prior to his
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guilty pleas, constitute newly discovered evidence because they did not suggest that she would later

recant. He argues it was only after he entered into a plea agreement that “anyone was aware that the

[victim’s] allegations were not true.” We will review these claims. 

It is clear from the post-conviction transcript that both the petitioner and his trial counsel

were aware, prior to the petitioner’s guilty pleas, that the victim had made inconsistent statements

concerning her allegations against the petitioner. Trial counsel testified at the post-conviction

hearing that the victim “made conflicting statements, yes sir. And I -- I was prepared to crossexamine her on those. And, certainly, [the petitioner] was aware of these . . . conflicting statements.”

In fact, the petitioner agreed during cross-examination at the post-conviction hearing that he, too,

was aware of the victim’s inconsistent statements: 

Q. You knew, also, that . . . [the victim] had been giving [the

district attorney] trouble in the investigation of the prosecution?

A. I know what [trial counsel] told me.

Q. And what did he tell you?

A. That [the victim] had changed – she’d changed her story and

her testimonies wasn’t [sic] matching up.

Q. So you knew that was a problem before you pled guilty, that

the state was having trouble even with [the victim]?

A. No, sir. I didn’t know it was trouble for the state. I knew it

was – I thought it would help us. So, yeah, in a way I guess I thought

it was damaging for the state. Yes, sir.

Q. Okay. So it’s not really newly discovered evidence. When

you went to trial and you pled guilty, the fact is – 

A. I know that her changing her story wasn’t new[ly] discovered

evidence. Her testifying – that the sex did not happen was newly

discovered evidence.

The victim’s testimony from the post-conviction hearing was summarized by this court when

we affirmed the post-conviction court’s dismissal of the petition following the hearing: 

The victim of the attempted rape of a child charges also

testified at the post-conviction hearing. She stated that at the time of

the hearing, she was seventeen years old and that at the time of the

crimes, she was twelve years old. She testified that in 1996, she
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alleged that she and the Petitioner had engaged in sexual intercourse

on more than one occasion. She reported that neither counsel for the

Petitioner nor any lawyer employed by counsel interviewed her about

the allegations. The victim maintained that if counsel had

interviewed her, she would have told him "the truth . . . . [t]hat

nothing had ever happened." She stated that by this, she meant that

she never engaged in sexual intercourse with the Petitioner. The

victim explained, "It's going to sound crazy, but I was jealous,

because [the Petitioner] was getting all the attention from my mom.

And I was sitting here thinking, and I thought, Maybe I can do

something about it, and make him go to jail, and I could get all her

attention; she'd be focused on me and nobody else." The victim

admitted that she had slept in a bed with her mother and the

Petitioner, but denied that any sexual contact occurred. In addition,

the victim admitted that she had alleged that her father had sexually

abused her while she was with him in Oregon, but she maintained that

the allegations concerning her father were true. She testified that the

allegations against her father "got her back to Tennessee with [her]

mom," and she stated that she "figured if [she said] that again, [she]

could get what [she] wanted like [she] did before." The victim also

maintained that had she been called to testify at the Petitioner's trial,

she would have testified that she and the Petitioner did not engage in

sexual intercourse.

On cross-examination, the victim testified that she made the

tape-recorded telephone call to the Petitioner because she "was trying

to confuse him, trick him into saying what he did . . . ." She claimed

that she told a doctor and a detective who questioned her about the

case that she had not had sexual intercourse with the petitioner. She

could not recall whether she reported this information before or after

the petitioner became incarcerated.

Jerry Britt, 2002 WL 31126638, at **5-6. 

On appeal, this court concurred that the victim’stestimony at the post-conviction hearing did

not constitute newly discovered evidence: 

[A]s previously noted, the trial court discredited the victim’s

recantation at the post-conviction hearing. The trial court also made

the following findings concerning the victim’s recantation: 

[Counsel], in discussing the evidence, said that

he asked [the] prosecutor if . . . the victim . . . had
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retracted [the allegations against the Petitioner]. And

his testimony was: When I was having that

transcribed, . . . [the victim] had made the statement

that she lied. That it did not happen.

. . . .

It's just not newly discovered evidence. All of

the things about her testimony, or potential testimony

back then were known at this time. Nothing new has

been discovered now. . . . When she . . . changed her

mind and testified differently on several occasions

about different things, [she] put everybody on notice

. . . that her testimony could be anything from very

strong for conviction, to exoneration. But that was

not a chance that anybody wanted to take. 

Id. at *14.

The petition for writ of error coram nobis, as did the amended post-conviction petition,

argued that the recantation testimony was newly discovered evidence. In its order denying coram

nobis relief, the trial court found, as it had following the evidentiary hearing for the amended postconviction petition, that the victim’s recantation was not newly discovered evidence:

The most significant problem for the petitioner is that the

victim’s alleged recantation is not newly discovered evidence.

The victim’s statements about what happened have always

been inconsistent. . . . She had recanted before the guilty plea.

During the al[l]ocution of the guilty plea[,] it was brought out that the

victim had said on some occasions that the petitioner had not done the

things he was accused of. All of these things were known to the

petitioner at time the plea was entered. The alleged recantation is not

newly discovered evidence. 

Further, this issue was raised in the post conviction petition

and this court ruled then that the recantation was not newly

discovered evidence. This petitioner was afforded a meaningful

opportunity to present the recantation issue and due process

requirements were satisfied. 
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The petitioner has presented the same claim in a petition for post-conviction relief and a

petition for writ of error coram nobis that the victim’s statement at the evidentiary hearing, she was

not sexually abused by the defendant, is newly discovered evidence entitling him to relief. As the

post-conviction court succinctly explained, when the defendant pled guilty, he and his attorney knew

the victim had made conflicting statements as to what had occurred, including at least one claim that

the petitioner had not committed the acts she had accused him of. Knowing this, the petitioner

elected to plead guilty; and, the fact that the victim is again saying that the abuse did not occur is not

newly discovered evidence. We concurred with this analysis affirming the dismissal of the amended

petition for post-conviction relief and continue to agree. The petitioner has not presented newly

discovered evidence; and, thus, his coram nobis petition is without merit.

Even if we accepted, arguendo, that the victim’s recantation does constitute newly discovered

evidence, the petitioner has an added burden because he pled guilty. There are three reasons a guilty

plea can be set aside:

“(1) for any fair and just reason before the sentence is imposed,

Tenn. R. Crim. P. 32(f);

(2) to correct manifest injustice after sentence but before the

judgment becomes final, Tenn. R. Crim. P. (32)(f);

(3) once the judgment isfinal, if the plea was not entered voluntarily,

intelligently, and knowingly, or was obtained through the abridgment

of any right guaranteed by the United States or Tennessee

Constitutions, State v. Mackey, 553 S.W.2d 337, 340-341 (Tenn.

1977); Tenn. Code Ann. § 40-30-203.”

Newsome v. State, 995 S.W.2d 129, 133 (Tenn. Crim. App. 1998) (quoting State v. Antonio

Demonte Lyons, No. 01C01-9508-CR-00263, 1997 WL 469501, at *6 (Tenn. Crim. App. Aug. 15,

1997)). This court has previously explained that when a conviction stems from a guilty plea, "in

order for a writ [of error coram nobis] to issue, the [petitioner] would have to present newly

discovered evidence which would show that his plea was not voluntarily or knowingly entered." Id.

at 134. The fact that the petitioner entered a best interest Alford plea does not change his burden or

our analysis. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162

(1970) (holding the standard for a "best interest" or Alford plea is "whether the plea represents a

voluntary and intelligent choice among the alternative courses of action open to the defendant").

This court previously has concurred with the finding of the post-conviction court following

the evidentiary hearing that the petitioner’s guilty pleas were knowing and voluntary:

As previously stated, we conclude that the Petitioner received

the effective assistance of counsel, and therefore we conclude that the

Petitioner was adequately informed when he entered his plea. Not
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only did counsel inform the Petitioner of potential pitfalls were he to

proceed to trial, but the trial court also informed the Petitioner at the

plea proceeding that "if [he pled] guilty to the attempt to commit rape

of a child [charges], [he] probably [would be required] to serve most

of that sentence without being released on [the] release eligibility

date." At the conclusion of the post-conviction hearing, the trial court

found that the Petitioner received effective assistance of counsel and

that he therefore entered his plea knowingly, voluntarily, and

intelligently. The evidence contained in the record before us does not

preponderate against that finding.

Jerry Britt, 2002 WL 31126638, at *13. The petitioner argues that if he had known about the

recantation before his guilty pleas, it would have resulted in a different judgment at trial. As the

court previously noted in the post-conviction hearing findings, the victim’s testimony at trial could

have been “anything from very strong for conviction, to exoneration. But that was not a chance that

anybody wanted to take.” Id. at *14. The petitioner is not entitled to habeas corpus relief because

he has changed his mind as to the pleas of guilty:

[I]f the plea agreement was negotiated in good faith, there are no

allegations of fraud or misfeasance, and, in all other regards, the plea

agreement was entered into voluntarily and knowingly, [a defendant]

cannot [later] complain of that which he had willingly bargained for

previously. A petition for the writ of error coram nobis is not

intended to relieve a party of its own negligence, ignorance, or change

of mind.

 Newsome, 995 S.W.2d at 134. 

Finally, the State argues that the trial court should have specifically found the petitioner’s

petition was barred by the statute of limitations, rather than simply finding the petition was “not

timely filed.” The statute of limitations for seeking a writ of error coram nobis is one year from the

date the judgment becomes final in the trial court. See Tenn. Code Ann. §§ 40-26-105, 27-7-103;

Mixon, 983 S.W.2d at 671. The petitioner concedes his petition was filed outside the one-year

statute of limitations but nonetheless argues that due process considerations, as set forth in Workman

v. State, 41 S.W.3d 100 (Tenn. 2001), and State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim. App. 2001),

require that the statute of limitations be tolled in his case. We respectfully disagree.

In Workman, our supreme court held that due process required the tolling of the one-year

statute of limitations where a petitioner in a capital case sought a writ of error coram nobis based on

newly discovered exculpatory evidence, concluding that the petitioner's "interest in obtaining a

hearing to present newly discovered evidence that may establish actual innocence of a capital offense

far outweighs any governmental interest in preventing the litigation of stale claims." 41 S.W.3d at

103. Similarly, this court held in Ratliff that due process required that the statute of limitations for
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bringing a writ of coram nobis be tolled in a noncapital case where the petitioner had newly

discovered evidence in the form of a victim’s recantation. 71 S.W.3d at 297-98.

Unlike the situations presented in Ratliff and Workman, the evidence the petitioner is relying

on in this case is not newly discovered and, in fact, he knew at the time of his pleas of guilty the

victim had made at least one statement exonerating him. Knowing this, the petitioner made knowing

and voluntary pleas of guilty and subsequently presented an untimely and unmeritorious claim of

newly discovered evidence. We conclude, therefore, that due process does not require the tolling

of the statute of limitations.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the order of the trial court

dismissing the petition.

___________________________________ 

ALAN E. GLENN, JUDGE