# FILED
March 3, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1997 SESSION

RANDY HIC KS, ) ) Appellant, ) C.C.A. No. 03C01-9608-CR
- 0029 6 ) vs. ) McMinn County ) STATE OF TENN ESSEE, ) Hon. Mayo L. Mashb urn, Judge ) Appellee. ) (Motion for New Trial , Motion ) for Writ of Error Coram Nobis, ) Post Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE: RANDY HICKS JOHN KNOX WALKUP Pro Se Attorney General & Repor ter N.E.C.C. P.O. Box 5000 PETER M. COUGHLAN Mountain City, TN 37683 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 JERRY N. ESTES District Attorney General Washington Ave. Athens, TN 37303

OPINION FILED: ____________________

AFFIRMED
CURWOOD WITT, JUDGE1 In fairness to Hicks, it is worth noting that these allegations are based

upon the same affidavit he submitted in support of his motion in the low er court, in which a witness

claims to have giv

en false testimony inculpati ng the petitioner so that the witness would be released from jail as promised by "the officials." He has simply attempted to add an addi tional legal theory to this case. OPINION Randy Hicks appeals the McM inn County Criminal Court's summary dismissal of his "Motion for New Trial Based on Newly Discovered Evidence Rule 22, FRCrP." The lower court considered this "motion" under the law applicable to motions for new trial, petitions for writ of error coram nobis, and petitions for post conviction relief, found it without merit, and summarily dism i ssed Hicks's claim without conducting a hearing. Hicks's underlying conviction is for criminal facilitation of first degree murder, for w hich he is serving a 25 year sentence. State v. Hicks , 835 S.W.2d 32 (Tenn. Crim. App . 1992). In his pro se appellate brief, Hicks nev er d i rectlyattacks the lower cour t's denial of his "motion," but he doe s raise several issues relati ng to th e admiss ion of evidenc e, denial of a severance and the sufficie ncy of the convicting evidence at his trial. He also filed with his pro se appellate brief a document entitled Petiti on for Writ of Error Coram Nobis, in which he alleges that the district attorney knowingly and willfully submitted false evidence in his trial. 1 Having painstakingly reviewed the record and Hicks's brief, we affirm the trial court's summary dismissal of the claim. Lik ewise, we find the petitionfiled in this court proper for dismissal.

I

Hicks filed his action below alleging one of the state's key wi tnesses testifie d falsely at trial because the witness was promised release from jail i n exchange for his testimony. An affidav it of the witness was filed as an ex hibit to Hicks's motion filed with the trial c ourt. Hicks does not allege that any government agentactually encouraged th e witness to testify fal sely, and the affiant claims that he was promised freedom if he testified "in court," not if he testified falsely in court. The substance of the affidavit is that Hicks was not involved in the brutal killing of LeckNunley or in facilit

ation of Nunley's murder. The affiant further claims he would2 According to an allega tion in the notice of appeal, Hi cks did not receive a copy of the trial court's order dismissing the motion for new trial until February 22, 1996.

3 For reasons unknown to us , Hicks has chosen not to us e his opportunity to be heard in this court to present this issue, w hich is an appropriate one for our consideration. We judicially know from examination of the records of this court that Hicks has filed several actions which are generally indicative of his immense dissatisfaction with the original proceedings in which he receiv ed his conviction. In the interest of bringing finality to an issue w

hich would be properly

before us had Hicks raised it in his pro se brief, we elect to addres s the propriety of the lower court's dismi ssal in this case. See Tenn. R. App. P. 13(b)(1) (consideration of issue not pr esented for review all owed in discretion of appel late court where such will prevent needless l itigation). But cf . Tenn. R. App. P. 13, Advisory Comm'n Comments to Subdivision (b) ("It is intended that this discretion be sparingly exercised."). 3 not have testified to

the contrary if he had known Hicks would be convicted and if he had not been promised release from j ail. It appears from th e record that the affiant is Hicks's brother.

Several dates are necessary for an understanding of this case. The supremecourt denied Hi cks's peti tion for permission to appeal hi s conviction on June 8, 1992. Hicks alleges he received the

affidavit described above on August 20, 1992. Hicks initiated this action on April 7, 1995. The trial court dismissed his claim on February 7, 1996. Hi cks filed a motion seeking t o withdraw

his motion for
new trial and petition for writ of error coramnobis in the trial court on February 14, 1996. 2 The trial court, ha ving alread y ruled on t he motio n Hicks sou ght to withd raw, dismissed the motion. Hick s filed his notice of appeal on Mar ch 25, 1996.

We begin with recognition that Hicks tardily filed his notice of appeal. However, in the interest of justice, we have elected to waive this prerequisite to our review. See Tenn. R. App. P. 4(a). Notw ithstanding, we decli ne t o address th e issues Hicks raises for t he fi rst time on appeal. See State v. Butler , 789 S.W.2d 898, 902 (Tenn. 1990). Instead, we confine our inquiry solely to the proprie ty of the trial cour t's action i n dismissi ng Hicks' s claim. 3

We fi nd that Hi cks's claim was pr operly dismissed w

hether considered
as a motion for new trial, moti on for writ of er ror coram no bis, or petition for post4 Because we resolve th is issue by f inding it p rocedura lly barred, we

express no opinion about the propriety of relief throug h the writ of error cor am nobis for the claim Hicks presents. See generally Tenn. Code Ann. § 40-26-105 (1997). See Rowe v. State , 498 S.W.2d 322 (Tenn. 1973) (writ of error coram nobis generally does not lie to attack trial t estimony, including on grounds of perjury).

5 Hicks's motion, though not presented as a post convic tion petition, was filed within the applicabl e statute of limitations for post c onviction actions. See Tenn. Code Ann. § 40-30-102 (1990) (repealed 19 95). 4 conviction relief.

First, as the lower

court correctlyfound, Hicks's motion was untimely if considered as a motion for new trial. See Tenn. R. App. P. 33(b) (motion for new trial to be made within 30 days of date the order of sentence is entered). Hicks filed his motion almos

t three yea rs after the s upreme court declined review of his case. The order of sentenc e would ha ve been entered well before this final action by the supreme court.

Second, Hicks's motion in the court below is untimel y as a motion for writ of error coram nobis. See Tenn. Code Ann. § 40-26-105 (1997);Tenn. Code Ann. § 27-7-103(1980) (writ may issue within one year after the judgment bec omes final). Again, Hicks filed thi s action well after the ex piration of the statute of limitationsfor obtaining this type of r elief. 4 The lower court corr ectly disposed of Hicks's claim on this

basis.

Third, Hicks's motion is not appropr iate for post con victi on reli ef. 5 We begin our discussion with acknowledgment that the tr ial court took theunusual step of summarily dismissing Hicks's claim prio r to the appointment of counsel. Under the Post Conviction Proc edure Act as it existed prior to amendment in 1995, a pro se petition which was

not in proper form could not be di smissed for that reason until the court gave the petiti on er a reas onable opportunity, wi th the assistance of counsel, t o file a n amended petition. Tenn. Code Ann. § 40- 30-107 (1990) (amended 1995). In this case however, Hicks's "motion," though lacking s ome of the information required of post conviction petiti ons by former Code section 40-30-6 Though we have not co nsidered it in our de termina tion of t his issue , we

find it noteworthy that H icks has never req uested the assistance of counsel at any stage of this p roceeding. 5 104, thoroughly stated Hicks's grie vance, outlined the factual basis, and i ncluded exhibitssupporting his claim. Thus, it w as in the prescribed form, at l east as to the statementof the claim itself. Further, the basis of the trial court's dismi ssal was based upon the lack

of merit of the claim, not technical noncompliance w ith section 40-30-104. This unusual situation all owed the trial court to consider whether Hicks had presented a colorable clai m, and finding he had not, to dismis s it for failure to state a claim without the necessity for amendment of the petition with the assistance of counsel. 6 Thus, we believe the tri al court was within the statutory framework in dismissing the petition at this junctur e. Accord Earl Crawf ord, Jr. v. State , No. 03C01-9610-CR-00385, slip op. at 3 (Tenn. Crim. App., Knoxv ille, July 29, 1997) ("[T]he prerequisite to the panopl y of rights and protecti ons that Tennessee statutes provide for post conviction petitioners is that the pro se pe tition must a llege a colorable claim."), pet. for perm. ap p. filed (Tenn. Sept. 29, 1997); Jessee Arthur M oore v. State , No. 123 (Tenn. Crim. App., Knox ville, Nov. 19, 1990

) (Wade, J., dissenting), perm. app. d enied ( Tenn. 1991); Givens v. State , 702 S.W.2d 578 (Tenn. Crim. App. 1985).

Having found the court's action was procedu rally allowed, we move on to the propriety

of the dismissal itself. As a basic princ iple, post conviction relief is available in Tennessee only where a conviction or sentenc e is void or voidable due to abridgment of the defendant's constitutional rights . Tenn. Code Ann. § 40- 30-105 (1990) (repealed 199 5). A claim of newly disc overed evidence, standi ng alone, does not meet this threshol d. See George Massey v.State , No. 1121, slip op. at 6 (Tenn. Crim. App., Knoxv ille, Nov. 5, 1987); see also Herrera v. Collins , 506 U.S. 390, 400, 113 S. Ct. 853 , 860 ( 1993) (federal habeas corpus proceeding). "[T]he mere conclusion that the petitio ner di d not receive a fair tri al without the benefit of this a llegedly exc ulpatory testimony does not conver t this claim into a constitutional one." George Massey , slip op. at 6 (newly discovered witness whose6

testimony

would exculpate petitioner, key state wi tnes s who will change her tr ial testimony

so that it is now exculpatory of petitioner, and state wi tness who invoked Fifth Amendment privilege a t trial is now w

illing to offer exculpato ry testimony).

Claims of "newly discover

ed evidence" raised in pos t con vict ion actions are quite often no more than attempts to relitigate the sufficienc y of the convictingevidence in a collateral proceeding

. George Massey , slip op. at 6. The quest ion of wheth er a challenge to the sufficienc y of the evidence is a pr oper subject for post-conviction review is a subje ct of so me debate in this state. Compare, e.g. , Rhoden v. State , 816 S.W.2d 56, 61 (Tenn. Crim. App. 1991) (sufficiency question not proper subject of post-convicti on review) with John Wayne Slate v. State , No. 03C01-9201-CR-00014 (Tenn. Crim. App., Knoxvill e, Apr . 27, 1994) (s uf ficiency of evidence rev iew is proper on post-conviction review under Jackson v. Virginia , 44 3 U.S. 307, 99 S. Ct. 2781 (1979)), perm. app. denied concurring in results onl y (Tenn. 1 994). Although the Supreme Court said in Jackson v. Virginiathat the sufficiency of the evidence is an issue of constitutional dimension for purposes of coll ateral review, it limited that holding in Herrera v. Collinsto evidence of record. Thus, ne wly discover ed evidence is exclu ded. Herrera , 506 U.S. at 402, 113 S. Ct. at 861. As a result, Hicks's claim must fail as a post conviction action

.

In reaching our conclusi ons that Hicks has failed to timely file a claim forrelief in the form of a motion for new trial or motion for writ of error coram nobis and that he likewise has fail ed to state grounds for relief cognizable under the prior version of the Po st Convict ion Proce dure Act, we acknowledge the seemingly harsh nature of our result. Howev er, as the Supreme Court rec ognized in Herrera , t he traditional method for

addressing actualinnocence based upon newly discovered evidence which is procedural ly ba rred fro m the cou rts is thro ugh execut ive clemenc y. Herrera , 506 U.S. at 411-12, 113 S. Ct. at 866. If Hicks has not alr eady p urs ued that option, it is avai lable to him. See Tenn. Code Ann. §§ 40-27-101 to7

-109 (1997).

II

Finally, we are left with the i ssue of the petition for writ of er ror coram nobis that Hicks filed with his appellatebrief. This petition was filed over four

years afterHicks's judgment became final via the supreme court's denial of permission to appeal. The petition is not proper for our consideration because th is court hasonly appellate jurisdiction. Tenn. Code Ann. § 16-5-108 (1994); see also Randy Hicks
v. State , No. 03C01-9601-CC-00419 ( Tenn. Crim. App. , Knoxvi lle, Jan. 4, 1996) (order of Wade, J., dismissing another petition for writ of error coram nobis originally filed by Hicks in this court). Even if this court had original jurisdictio n o ver this petition, Hicks is untimely in his r equest for the writ of

error coram nobis. See Tenn. Code Ann. § 40-26-105 (1997); Tenn. Code Ann . § 27-7-103 (1980).

In conclusion, the trial court's dismissal of Hicks' claim is af firmed. Likewise, his petiti on for writ of error cor am nobis filed in this court i s dismissed.

____________

________________

____ _ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ JOSEPH B. JONES, PRESIDIN G JUDGE

_______________________________ PAUL G. SUMMERS, JUD GE