07/07/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 17, 2017

RANDALL TURNER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 236894, 278379 Don W. Poole, Judge

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No. E2016-01969-CCA-R3-PC

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The Petitioner, Randall Turner, filed a motion to reopen his post-conviction petition in 

which he challenged his guilty pleas to first degree murder, aggravated kidnapping, and 

two counts of aggravated robbery and his effective sentence of life imprisonment without 

the possibility of parole. The post-conviction court denied the motion, and the Petitioner 

subsequently filed two motions to rehear, both of which the post-conviction court denied. 

The Petitioner filed a notice of appeal pursuant to Rule 3 of the Tennessee Rules of 

Appellate Procedure. Upon reviewing the record and the applicable law, we dismiss the 

appeal.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Randall Turner, Henning, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant 

Attorney General; and Neal Pinkston, District Attorney General, for the appellee, State of 

Tennessee.

OPINION

PROCEDURAL HISTORY

In 2001, the Petitioner pled guilty to first degree murder, aggravated kidnapping, 

and two counts of aggravated robbery and received an effective sentence of life 

imprisonment without the possibility of parole. In June 2001, the Petitioner filed a pro se 

petition for post-conviction relief. Following the appointment of counsel and the filing of 
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an amended petition, the Petitioner filed a motion to dismiss his petition, asserting that he 

no longer wished to pursue post-conviction relief. On February 6, 2003, the postconviction court dismissed the petition.

In 2010, the Petitioner filed a pro se “Motion to Vacate Convictions,” which the 

trial court denied. On appeal, this court considered the motion as a post-conviction relief 

petition and held that the petition was untimely. See Randall Turner v. State, No. E2011-

00110-CCA-R3-PC, 2011 WL 2416927, at *1-2 (Tenn. Crim. App. June 13, 2011). The 

Petitioner then filed a petition for writ of habeas corpus, which the habeas corpus court 

denied, and this court affirmed the habeas corpus court’s judgment on appeal. See 

Randall Turner v. Bruce Westbrooks, Warden, No. E2012-00093-CCA-R3-HC, 2012 WL 

5258266, at *1 (Tenn. Crim. App. Oct. 24, 2012).

In December 2012, the Petitioner filed a “Petition” in which he alleged that he was 

actually innocent of the offenses and that he was coerced into pleading guilty as a result 

of trial counsel’s conspiring with state officials. Randall Turner v. State, No. E2013-

01515-CCA-R3-PC, 2014 WL 1018213, at *1 (Tenn. Crim. App. Mar. 17, 2014). He 

also sought recusal of the judge presiding over the post-conviction court. Id. The postconviction court entered an order denying the recusal request and dismissing the petition. 

Id. The Petitioner filed multiple other pleadings, including a motion to reconsider. Id. 

The post-conviction court filed a subsequent order considering the Petitioner’s pleadings 

as petitions for post-conviction relief and denied the petitions as untimely. Id. at *2. On 

appeal, this court affirmed the dismissal of the petitions, concluding that the postconviction petitions, which contained substantially the same issues as the 2010 petition,

were untimely. Id.

The Petitioner subsequently filed a post-conviction petition in which he sought 

DNA testing of evidence pursuant to the Post-Conviction DNA Analysis Act of 2001. 

Randall Turner v. State, No. E2013-01565-CCA-R3-PC, 2014 WL 1369903, at *1 (Tenn. 

Crim. App. Apr. 7, 2014). The post-conviction denied the petition, and this court 

affirmed the post-conviction court’s judgment on appeal. Id.

On June 1, 2016, the Petitioner filed a “Motion to Re-Open Post-Conviction 

Petition to Correct Manifest Injustice.” The Petitioner argued that trial counsel, the State, 

and the trial court conspired to compel his guilty pleas by postponing decisions on his 

motion to suppress evidence and his motion to dismiss and that the pleas resulted in a 

sentence that violated the Eighth Amendment of the United States Constitution. The 

Petitioner also argued that he was effectively deprived of counsel due to trial counsel’s 

failure to inform the trial court that the Petitioner filed a malpractice action against trial 

counsel. On June 6, 2016, the post-conviction court entered an order in which it 

considered the Petitioner’s motion as a post-conviction relief petition and denied the 
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petition as untimely. The post-conviction court stated that the Petitioner had thirty days 

from the entry of the order to file a notice of appeal.

On July 26, 2016, the Petitioner filed a “Motion to Reconsider” in which he

repeated his claims filed in his previously filed motion. He also sought to revoke his 

2003 waiver of post-conviction claims. He stated that the motion to reconsider was 

untimely because the trial court clerk failed to forward the post-conviction court’s order 

to him and requested that the trial court clerk be found in contempt. The Petitioner 

maintained that he did not receive the post-conviction court’s order until July 18, 2016. 

On August 3, 2016, the post-conviction court entered an order denying the Petitioner’s 

motion to hold the trial court clerk in contempt. The post-conviction court treated the 

motion to reconsider as a motion to revoke the waiver of post-conviction proceedings and 

denied the motion. 

The Petitioner filed another “Motion to Reconsider” in which he challenged the 

constitutionality of the one-year statute of limitations for post-conviction petitions. He 

also requested that the trial court appoint a mental health professional to evaluate him. 

On September 12, 2016, the trial court denied the Petitioner’s motion to reconsider. On 

September 27, 2016, the Petitioner filed a notice of appeal pursuant to Rule 3 of the 

Tennessee Rules of Appellate Procedure in which he stated that he was appealing the trial 

court’s “September 13, 2016” order.

ANALYSIS

On appeal, the Petitioner contends that (1) trial counsel, the State, and the trial 

court employed a method to compel his guilty plea that resulted in a sentence that 

violated the Eighth Amendment of the United States Constitution; (2) he was effectively 

deprived of counsel due to trial counsel’s failure to inform the trial court that the 

Petitioner filed a malpractice action against trial counsel; (3) the one-year statute of 

limitations for filing a post-conviction petition is unconstitutional; and (4) the postconviction judge should have recused himself from entertaining the motion to reopen. 

According to the Petitioner’s notice of appeal, he is appealing the trial court’s 

order from September 13, 2016. We note that the trial court denied the Petitioner’s 

motion to reconsider on September 12, 2016. To the extent that the Petitioner is 

appealing the denial of his motion to reconsider, we have held that a petitioner does not 

have an appeal as of right pursuant to Tennessee Rule of Appellate Procedure 3(b) from 

the denial of a motion to reconsider relief. John Ivory v. State, No. W2015-00636-CCAR3-PC, 2015 WL 6873474, at *2 (Tenn. Crim. App. Nov. 9, 2015). 
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We note that the Petitioner filed a motion to reopen his post-conviction petition 

but that the post-conviction court considered the motion as an original petition for postconviction relief. Accordingly, we will consider the Petitioner’s pleading as both a 

motion to reopen and a post-conviction relief petition in determining whether we have 

jurisdiction to decide the issues raised on appeal.

A. Motion to Reopen 

To the extent that the Petitioner seeks relief from the denial of his motion to 

reopen his post-conviction petition, we recognize that a petitioner likewise does not have 

an appeal as of right from a post-conviction court’s denial of a motion to reopen a postconviction petition under Tennessee Rule of Appellate Procedure 3(b). See Matthew 

Dixon v. State, No. W2015-00130-CCA-R3-PC, 2015 WL 6166604, at *5 (Tenn. Crim. 

App. Oct. 21, 2015). Rather, a petitioner has thirty days to file an application for 

permission to appeal in this court, attaching copies of all documents filed by the parties 

and the post-conviction court’s order. T.C.A. § 40-30-117(c). When a petitioner fails to 

follow the statutory requirements for seeking review of a denial of a motion to reopen, 

this court is without jurisdiction to consider the appeal. Matthew Dixon, 2015 WL 

6166604, at *5 (citing Mario Gates v. State, No. W2002-02873-CCA-R3-PC, 2003 WL

23100815, at *2 (Tenn. Crim. App. Dec. 31, 2003); John Harold Williams, Jr. v. State, 

No. W1999-01731-CCA-R3-PC, 2000 WL 303432, at *1 (Tenn. Crim. App. Mar. 23, 

2000)). 

The Petitioner, however, failed to file an application for permission to appeal in 

this court. Rather, the Petitioner filed a motion to reconsider in the post-conviction court. 

Neither Tennessee Code Annotated section 40-30-117 nor Tennessee Supreme Court 

Rule 28, section 10(B) provide that the thirty-day time period for filing an application for 

permission to appeal in this court may be tolled by the filing of a motion to reconsider. 

The Petitioner eventually filed a notice of appeal. While a notice of appeal may be 

construed as an application for permission to appeal, it must “contain sufficient substance 

that it may be effectively treated as an application for permission to appeal,” including 

“the date and judgment from which the petitioner seeks review, the issue which the 

petitioner seeks to raise, and the reasons why the appellate court should grant review.” 

Graham v. State, 90 S.W.3d 687, 691 (Tenn. 2002). The Petitioner’s notice of appeal 

was not filed within thirty days of entry of the post-conviction court’s order denying the 

motion and did not include sufficient substance to be treated as an application for

permission to appeal. The notice did not state the issues for review or the reasons to 

support the Petitioner’s claim for relief, and the Petitioner did not attach the required 

documents to the filing. Accordingly, the Petitioner failed to properly seek review of the 

post-conviction court’s denial of the motion to reopen, and we lack jurisdiction to review 

the appeal of the motion to reopen the post-conviction petition.
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B. Petition for Post-Conviction Relief

The post-conviction court, however, treated the Petitioner’s motion as an original

petition for post-conviction relief. Even if we were to treat the Petitioner’s motion as a 

petition for post-conviction relief, we would still be required to dismiss the appeal. The 

Petitioner stated in pleadings filed in the post-conviction court that he did not receive the 

court’s June 6, 2016 order until July 18. Rather than file a notice of appeal upon 

receiving the order, the Petitioner filed multiple motions to reconsider. This court has 

recognized that “a motion to reconsider does not toll the thirty-day filing period for an 

appeal from an order denying post-conviction relief.” John Ivory, 2015 WL 6873474, at 

*2 (citing Michael Joe Boyd v. State, No. W1999-01981-CCA-R3-PC, 1999 WL 

33261797, at *6 (Dec. 21, 1999); Sherman McDowell v. State, No. 62, 1991 WL 139727, 

at *2 (Tenn. Crim. App. July 31, 1991)). The Petitioner did not file a notice of appeal 

until September 27, 2016, more than three months after the post-conviction court entered 

its order denying post-conviction relief. 

Tennessee Rule of Appellate Procedure 4(a) provides that “in all criminal cases 

the ‘notice of appeal’ document is not jurisdictional and the filing of such document may 

be waived in the interest of justice.” “‘In determining whether waiver is appropriate, this 

court will consider the nature of the issues presented for review, the reasons for and the 

length of the delay in seeking relief, and any other relevant factors present in the 

particular case.’” State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007) 

(quoting State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL

3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005)). “Waiver is not automatic and should 

only occur when ‘the interest of justice’ mandates waiver. If this court were to 

summarily grant a waiver whenever confronted with untimely notices, the thirty-day 

requirement of Tennessee Rule of Appellate Procedure 4(a) would be rendered a legal 

fiction.” Id. (citing Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 

63950, at *1 (Tenn. Crim. App. Feb. 13, 1996)). 

The Petitioner has not explained why he waited more than three months after entry 

of the post-conviction court’s order before filing a notice of appeal or how waiving the 

thirty-day deadline serves the interest of justice. The Petitioner has sought postconviction relief on multiple occasions, and this court has held that the petitions were 

untimely filed and that the post-conviction court properly dismissed the petitions. See

Randall Turner, 2011 WL 2416927, at * 1-2; Randall Turner, 2014 WL 1018213, at *1-

2. We conclude that the interest of justice does not require waiving the untimely filing of 

the Petitioner’s notice of appeal from the post-conviction court’s dismissal of the 

Petitioner’s claims a petition for post-conviction relief.
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CONCLUSION

Based on the foregoing, we dismiss the appeal.

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 JOHN EVERETT WILLIAMS, JUDGE