IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 27, 2013 Session

CHARLES W. ELSEA, JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 236972 Don W. Poole, Judge

No. E2012-01661-CCA-R3-PC - Filed March 28, 2013

The Petitioner, Charles W. Elsea, Jr., appeals the trial court’s denial of his motion to reopen

his post-conviction proceedings. However, because the Petitioner failed to comply with the

requirements in Tennessee Supreme Court Rule 28 section 10 for seeking discretionary

review of the denial of his motion, this court has no jurisdiction in this case. Accordingly,

the appeal is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Case Dismissed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

Douglas A. Trant, Knoxville, Tennessee, for the appellant, Charles W. Elsea, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Assistant Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On October 10, 1997, the Petitioner was convicted by a jury of first degree murder,

aggravated robbery, and setting fire to personal property. He was given an effective sentence

of life imprisonment. See State v. Charles W. Elsea, Jr., No. 03C01-9901-CR-00031, 1999

WL 1034721 (Tenn. Crim. App. Nov. 15, 1999), perm. app. denied (Tenn. June 26, 2000).

The Petitioner filed for post-conviction relief from these convictions, and after an evidentiary

hearing on several issues, he was denied relief on September 4, 2002. The denial was

affirmed by this court. State v. Charles W. Elsea, Jr., No. E2003-00091-CCA-R3-PC, 2003

WL 21523193 (Tenn. Crim. App. July 7, 2003), perm. app. denied (Tenn. Oct. 27, 2003).
In 2011, the Petitioner filed an application for permission to appeal from an order of the

Criminal Court for Hamilton County denying his first motion to reopen his prior postconviction proceedings, alleging that his sentence was enhanced because of a prior

conviction that was subsequently invalidated. This court concluded that the Petitioner’s

motion to reopen and his application for permission to appeal were insufficient on their face

to support the relief requested because the documents contained no information or facts to

support the Petitioner’s claim, and the appeal was denied. State v. Charles W. Elsea, Jr., No.

E2011-01328-CCA-R28-PC (Tenn. Crim. App. July 1, 2011) (permission to appeal trial

court’s denial of motion to reopen post-conviction proceedings denied, case dismissed).

On June 11, 2012, the Petitioner filed another motion to reopen his post-conviction

proceedings, alleging that two Supreme Court cases, Lafler v. Cooper, . . . , 132 S. Ct. 1376

(2012) and Missouri v. Frye, . . . , 132 S. Ct. 1399 (2012), established a constitutional right

that was not recognized as existing at the time of trial but is now required to be applied in his

case. He explained that Frye held that “defense counsel has a duty to communicate formal

offers from the prosecution to accept the plea on the terms and conditions that may be

favorable to the accused” and that his trial counsel’s failure to “discuss the State’s plea

offer” with him denied him the effective assistance of counsel. The trial court denied the

Petitioner’s motion to reopen, explaining that even if Lafler and Frye “do establish a new

retroactively-applicable, constitutional right, they establish it only with respect to formal plea

offers”; the Petitioner’s motion “merely alleges that trial counsel did not convey to the

defendant the prosecutor’s wish to negotiate.” The Petitioner appealed to this court.

ANALYSIS

The Petitioner appeals to this court requesting relief from an order of the Criminal

Court for Hamilton County denying his motion to reopen his prior post-conviction

proceeding. See Tenn. Code Ann. § 40-30-117(c); see also Tenn. S. Ct. R. 28, § 10(B). The

State responds that the application should be denied because the Petitioner did not comply

with the Tennessee Supreme Court Rule 28 requirements for appealing the denial of a motion

to re-open his first post-conviction relief petition and, alternatively, because the basis for

reopening the post-conviction petition cited in the motion did not meet the requirements set

forth in Tennessee Code Annotated section 40-30-117(a).

We note that the Petitioner filed a notice of appeal as of right – rather than an

application for permission to appeal required under Tennessee Supreme Court Rule 28 – on

August 6, 2012, requesting our review of the post-conviction court’s denial of his motion to

reopen his petition. See Tenn. R. App. P. 3; see also Tenn. S. Ct. R. 28, § 10(B). Therefore,

we must first determine whether this court has jurisdiction to address the issue on appeal.

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Tennessee Supreme Court Rule 28 governs appeals from the post-conviction court’s

denial of a motion to re-open post-conviction proceedings. It states, in relevant part, “A

petitioner whose motion to reopen is denied shall have thirty (30) days to seek permission

to appeal by filing an application, accompanied by the order denying the motion, in the Court

of Criminal Appeals.” Tenn. S. Ct. R. 28, § 10(B). The application must also be

accompanied by copies of all the documents filed by both parties in the trial court. See Tenn.

Code Ann. § 40-30-117(c).

A petitioner has no appeal as of right from a lower court’s denial of his motion to

reopen a post-conviction petition. Tenn. R. App. P. 3; Timothy Roberson v. State, No.

1

W2007-00230-CCA-R3-PC, 2007 WL 3286681, at *9 (Tenn. Crim. App. Nov.7, 2007),

perm. app. denied (Tenn. Apr. 14, 2008); Miko T. Burl v. State, No.

W2005-01640-CCA-R3-PC, 2006 WL 3371395, at *1 (Tenn. Crim. App. Nov. 17, 2006);

see also Tenn. R. App. P. 3. However, our supreme court has determined that a notice of

appeal may be construed as an application for permission to appeal a denial of a motion to

reopen a petition for post-conviction relief if it “contain[s] sufficient substance that it may

be effectively treated as an application for permission to appeal.” See State v. Graham, 90

S.W.3d 687, 691 (Tenn. 2002). The court noted that “[i]n general, the contents of an

application for appeal must include (1) the date and judgment from which the petitionerseeks

review, (2) the issue which the petitioner seeks to raise, and (3) the reasons why the appellate

court should grant review.” Id.

Here, however, the Petitioner’s notice of appeal does not contain sufficientsubstance.

The notice of appeal simply states, “Comes the Petitioner, Charles, W. Elsea, Jr., by and

through counsel, Douglas A. Trant, to give notice of his appeal to the Court of Criminal

Appeals of the adverse judgment of the trial court denying his post-conviction petition

entered on July 19, 2012.” It does not include the issue the Petitioner seeks to raise or the

reasons why the appellate court should grant review, nor reference the post-conviction

court’s order denying the Petitioner’s motion to reopen, the substance required for it to be

effectively treated as an application for permission to appeal. See id. In fact, the notice of

appeal appears, in title and in substance, to be a Rule 3, appeal as of right, notice of appeal.

See Tenn. R. App. P. 3(f). We also note that the Petitioner filed his notice of appeal in the

trial court and not this court as required pursuant to Rule 28. See Tenn. S. Ct. R. 28, § 10(B).

Therefore, because the Petitioner failed to substantially comply with the procedural

requirements outlined in Tennessee Supreme Court Rule 28, we lack jurisdiction to address

the merits of the appeal.

A notice of appeal is the document filed to pursue an appeal as of right, pursuant to Rule 3. 1

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CONCLUSION

Accordingly, the Petitioner’s request to appeal from an order of the Criminal Court

for Hamilton County denying his motion to reopen his prior post-conviction proceeding is

DENIED, and the case is dismissed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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