### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs S eptem

ber 23, 200 3
JERRY LEE COWAN

v. STATE OF TEN NESSEE
Appeal from the Circuit Court for Blount County No. C-7085 D. Kelly Thomas, Jr., Judge

No. E2003-00652-CCA-R3-PC December 15, 2003

The petitione

r, Jerry Lee Cowan, se eks appe

llate review o f the Blo

unt County

Circuit Court’s denial of his motion to reopen his 1992 post-con viction re lief petition. Find

ing no me rit in the appeal, we affirm t he lower court’s judgmen

t. Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AV ID H. W ELLES and R OBER T W. W EDEMEYER , JJ., joined. Jerry L ee Cowan, Pro Se.

Paul G. Summers, A

ttorney Genera l & Repor ter; John H. Bledsoe , Assistan t Attorne y General ; and James Michael Taylor, District Attorne y Gener al, for the Appellee, State of Tennessee.
OPINION

On May 2, 1991, in

response to the petitioner’s guilty plea, the Blount Cou

nty Circuit Courtentered a

judgment convicting the petitioner of second deg ree murder

and sente ncing h im to
serv e 35 years a s a multiple offender in the Department of Correction. On October 16, 1992, t h e petitioner filed a petition for post-conviction r elief. On April 12, 1993, the post-conviction court entered an order allowin g the petit ioner to withdraw his petition. On February 28, 2003, the petitioner moved to reopen his 1992 post-conviction petition.

The motion to reopen alleged that newly discovered evidence

that the victim died as
a result of medical malpractice would show that he is actually innocent of the homicide. The motion reveal s that the petitione

r shoved t he victim, his three-y ear-old stepson. The child sustained injuries when he fell as a result of the petiti oner’s s hove. The petitione r claime d that dur

ing the c ourse

of medical treatment for the child’s injuries, the victim lapsed into a coma. The child ultimately died when his f

amily terminat ed life su pport mea sures. F

urther, the petiti oner all eged in his motion to reopen that his trial cou

nsel was a

ware, a nd faile d to disclo se, that medical mal practic e resulted in-2-

the victim’s d

eath. B ased upo n th is claim, he pos ited t hat hi s guil ty plea was unkno wing, involuntary, and the

result of ineffective assistance of counsel. He also alleged that counsel failed to infor m him that h e woul d be de nied p arole u pon at taini ng his release el igibility of 35 per cent. Finally, he a

lleged that the first degree murder indictment by which he was charged

was defective because it failed to allege the date of the offense.

On March 7, 2003, the post-conviction court found that the motion “fails to set forth any factual basis that supports reopening thepetition pursuant to T.C.A. [section] 40-30-217.” The court denied the motion to reopen.

On Marc h 17, 2003, the petiti oner filed a notice of appea l.

Tenness ee Code A

nnotated section 4 0-30-117 provides : (a) A petitioner may

filea motion in the trial court to reopen the first post-con viction pe tition only

if the following a

pplies:
(1) The claim in the motion is based upon a final ruling of an appella te court establishing a constitutional right that was not recognized

as existing at the time of

trial, if retrospective application of that rig ht is required. Such motio n must be filed within one (1) year of the ruling of thehighest st ate appellate court or the United States supreme court establishing a constitutionalright that was not recognized as existing at the time of trial; or
(2) The claim in the motion is base d upon new scientif ic evidence establishing that such petitioner

is actually innocent of the offense or offenses for which the pe titioner was convicted; or (3) T he claim asserted in the motion seeks relief fr om a sentence that was enhanced because of a previous conviction and such convicti on in the c ase in wh ich the c la im is asserte d was not a guilty plea with an agreed sentenc e, and the previous conviction has subseque ntly been held to be invali d, in whic h case th e motion mus t be fi le d w it hi n o ne (1 ) ye a r of the finality of the ruling holding the previous conviction to be invalid; and
(4) It appear s that the f

acts underly

ing the c laim, if tr

ue, would establis h by c lear an d convinc ing evid ence tha t the petit

ioner is entitled to have the conviction set aside or the sentence reduc ed. (b) The moti on m ust set out t he fact ual basis underly

ing its claims and must be supportedby affida vit. The factual information-3- set out in the affidavit shall be limited to i nfo rmation w hich, if offered at an evi dentiar

y he arin g, w ould be admissible through the testimonyof the affiant under the rules of evide nce. The motion sha

ll be denied un

less the f actual a llegat ions, if true, meet

the requ irements of subsection (a). If the c ourt grants the motion, the procedure, relief
an d a pp el la te pr ov is io ns of th is pa rt sh al l a pp ly. Tenn. Code Ann. § 40-30-117(a), (b) (2003).

Appellat e review o f the den

ial o f a mo tion to reopen a petition for post-conviction relief is also governed by statute, rather than by

the Rules of Appellate Procedure:

If the motion [to reopen] is denied, the petitioner shall have ten (10) da ys to file an application in the cou rt of cri minal app eals seeking permission to appeal . The application shall be accompanied by copies of all the documents filed by both parties in the trial court and the order denying the motion . The state s hal l have te n (10) da ys t o respond. The cour

t of crimi nal appe als shallnot grant the application unless it appears that the trial court abu sed its discretion in denying the motion. If it determines that the trial cour t did so abus e its discretion, the court of criminal appeals shall remand the matter to the trial cou rt for fu rther pr oceedin gs.
Ten n. C ode Ann . § 4 0-3 0-1 17( c) ( 200 3) ( emp has is add ed) . “In order to obtain appellate review of t he trial cou

rt’s orde r, a petitioner mus t comply with the st

atutory require ments. The

Rules o f Appellat e Procedu re do not p

rovide f or an app eal as of

right in these cases.” John Haro ld Williams, Jr. v. State , No. W1999-01731-CCA-R3-PC (Tenn. Crim. App., Jackson, Mar. 23, 2000) (o rder) , perm. app. denied

(Tenn. 2 000); see William Lee Drumbarger v. St a te , No. M1999-01444-CCA-R3- PC, slip op. at 2 n.1 (Tenn. Crim. App., Nashville, Dec. 7, 1999) (Rules of Appellate Procedure not applica ble to applic ation for

permissio n to appea

l the deni a l of mo tion to reopen post-conviction proceeding).

The petitioner’s notice of appeal, although filed withi n ten day s o f the entry of the order deny ing the m otion to reopen, does not comply with the statutory require

ment of an application for pe rmissi on to appe al. For t his reas on alone, the appe al is subje ct to dismis sal; howe ver, as a dispensation to the petitione r, we ha ve consid ered wh ether we should treat the notice of appeal and the petitioner’s brief as a de f acto applicat ion for permission to appeal. In so doing, w e are compelled to agree with the post-conviction court tha t the claims contained in the motion to reopen do not fit within the permissive rubrics of Code section 40-30-117(a).

Alth ough the petitioner claims that his homicide charge is baseless bec ause the victi m died as a result of medical malpractice, we f ail to see how that

claim, as alleged and as articulated in the petitioner’s brief, qualifies as newscientif ic evide nce that the petiti oner is a

ctually innocent

.-4-

Ap pa re nt ly, the current scientific knowledge a bout the victim’s death was available at the time of death or shortly thereafter, and furthermore, the claim does not address the legal conundrum that the petitioner is liable for the victim’s d eath despite the contribution of any unf ortunate malpractice by medical personnel. See Gray v. State , 194 Tenn. 234, 244, 250 S.W.2d 86, 90-91 (19 52) (“T o warrant th e e sc ap e o f t he pe rs on in fl ic ti ng th e i nj ur y f ro m responsibility for the killing, the subsequent

neglect or mismanagement must have been the sole cause of death.” ); Odeneal v. State, 128 Tenn. 60, 68, 157 S.W. 419, 421 (1913) (“One who unlawfully inflicts a dang erous wound upon another is held for the consequences flowing from such injury , whether the sequence be direct or throu gh the operation of intermediate agenc ies dependent upon and arising out of the original cause. One of these dependent occurrence s is the necessity of surg ical aid, which m ay eve ntuate a s the immediate

cause of death.”). Thus, the con clusory allega tions of the

motion to re open fai l to illustrate that the petitioner is actually innoce nt of the conviction offense.

The petitione

r’s claim that the indictmen t is infirm is not cognizable in the de facto application for per

mission to a

ppeal. T he indict ment is not included in the motion or in the a ppellate record as a whole, and it

is not before us for review. Furthermore , the claimed deficiencies of the indictment do not appear

to fit within any of the per

missive rubrics of Code section 40-30-117(a).

Fi na ll y, we have reviewed the transc ript of the petitioner’s May 1, 1991 plea submission hearing that was filed in the post-conviction court on January 25, 1993, and was included within the appellate record. The transcr ipt reveals that

the petitioner entered a best-interests plea of guilty to second

degre e murder

as a means of avoiding a potenti al penal

ty for first degree murder. The trial court engaged the pe titioner in a full rev ie w of his rights and options, and the transcript reflec ts that the p etitioner actively waived h

is rights a

nd assented to the plea and the stipulated pe na lt y. Furthermore, the court thoroughly explained to the pet

itioner th e meanin g of re

lease eligibil ity and that ultimately the release

date would depend upon the administrative decision of the Department

of Correction. The petitioner acknowledged his understanding of the statutory releas e eligibility scheme.

Ac co rd in gl y, we discern no basis for grant ing permissio n to appea

l. We note th at, in his motion and brief, the petitioner acknowledges that he

filed the 2003 motion to reopen after he
was denied parole. We also note that although the p e titioner withdrew his initial post-conviction petition on April 12, 1993, he had until May 2, 1994 to re- file a petition for post-conviction relief. See Tenn. Code Ann. § 40-30-102 (1990) (amended 1995) (e stablishing a three-year statute of limitations). We remind the petitione r that the state ha s a

valid and preeminent inter

est in the f inality of criminal convictions. State ex rel Stewart v. McWhe rter , 857 S.W.2d 875, 877 (Tenn. Crim. App. 1992). For this reason, “[t]ime i s of the e ss ence of the right to file a petition for post-conviction relief or motion to reopen established by [the post-conviction] chapter

. . . .” Tenn. Code Ann. § 40-30-102(a) (2003).

Discerni ng no basi s for granting an appea l in this cause, we deny the de facto application and dismiss the appeal.-5- ___________________________________ JAMES CURWOOD WITT, JR., JUDGE