# FILED

September 25, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

TIMOTHY BICKERS, THOMAS ) No. 03C01-9706-CR-00218 CARTER, and GREGORY HED GES, ) ) Appellants ) ) GREENE COU NTY V. ) ) HON. JAMES E. BECKNER, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction) ) )
For the Appellants: For the Appellee: Lionel R. Barrett John Knox Walkup 222 Second Avenue Attorney General and Repor ter Suite 418 Nashville, TN 37201 Peter M. Coughlan Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493
C. Berkeley Bell, Jr. District Attorney General 109 S. Main Street Suite 501 Greeneville, TN 37743

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Judge1 App ellant s initia ted th ese proc eed ings individ ually by f iling se para te m otion s to re ope n the ir prior post

-convict ion proceedi ngs. After the tri al court d ismissed thei r post-convi ction pet iti ons, they proc eed ed jo intly. As a res ult, we have treate d the cas e as o ne ap pea l. 2 OPINION
The appellants, Timothy Bickers, Thomas Carter, and Gregory Hedges, 1 appeal as of right the dismissal in the Greene County Cri minal Court of their petition s for postconviction relief. The tr ial court granted their

motions to reopen, but found that the petitions were barred by the statute of limitations and that the ground for relief w as waived. Although w

e conclude that the trial cou rt erred in granting the motions to reopen, we nevertheles s affirm the trial court’s j udgment dismissing the peti tions for post-conviction reli ef. Appellants were conv

icted in 1985 of seven offenses aris ing out of the aggravated kidnapping and aggravated robber y of a bank manager and his w ife. Appellants Bickers and Car ter received eighty

(80) year sentences and appellant Hedges was sentenced to ninety-six (96) years. The convictions and sentences were affirmed by this Court on dir ect appeal. State v. Gregory A. Hedges, Thomas D. Carter, and Timothy Bickers , No. 252 (Tenn. Crim. App. at Knoxville, April 15, 1987), perm. app. denied (Tenn. 1987). Appellants’ subs equently filed separate postconviction petitions, which were denied by the trial court. This C

ourt affirmed the denials of relief in Bickers ’ and Carter’s cases. See Timothy Thomas Bickers v. State , No. 03C01-9311-CR-00361 (Tenn. Crim. App. at Knoxvi lle, January 10, 1995), perm. app. denied (Tenn. 1995); Thomas D. Carter v. State , No. 03C01-9203-CR-69 ( Tenn. Crim. App. at Knoxvi lle, December 17, 1992), perm. app. denied (Tenn. 1993). A panel of this Court vacated H edges’ grand larceny conviction, but affirmed the tr ial court in all other respec ts. Gregory Hedges v. State , No. 03C01-9112-CR-00379 (Tenn. Crim. App. at Knoxv ille, March 10, 1993), perm. app. denied (Tenn. 1993).2 The motions to reopen st ated that

the basis f

or reli ef was “set for

th in t he attached Pet iti on for Writ of Error Coram Nobis/Pet iti on for Post-Convi ction Reli ef.” While assert ing the al legati ons in that man ner doe s not co mply with th e statute, it do es not alte r our dete rmina tion on the m otions to re open. Ten n. Co de A nn. § 40-3 0-21 7(b) (199 7) (s tating that m otion shou ld be a cco mp anied by affid avit containing the factual basis underlying the claims). 3 On March 26, 1997, appellants fil ed motions to reopen their previous postconviction petitions, accompanied by writs of error coram nobis. 2 Appellants alleged due process violations at their trial based upon the district attorney’s failure to disclose a plea agreement with acc omplice Janie Riddle, w ho was the State’s primar y witness. The trial court entered a pre liminary order gr anting the motions to reopen, but summarily dismissed the petitions without holdi ng an evidentiary h earing. The trial court denied relief because the s tatute of limitations had expi red for both writs of err or coram nobis and the Post-Conv iction Act. The trial cour t further found that the ground for relief was easily

discoverable, if not know n to petitioners, prior t

o the first petitions and, therefore, were wai ved because none of the appellants r aised the issue at that time. Appellants contend that the tri al court erred in ruli ng that the ground for reli ef had been waived. They assert that they did not learn of the concealed plea b argain with Riddle until w

ell after their first petit ions for post-convicti on relief had been litigated. Therefore, they argue the ground may not be considered waived

when they were unaware it ex

isted. We find it unnecessary to address appellants’ argument because the dispositive i ssue is whether the tr ial court properly granted the motions to reopen. As the basis to reopen the prev ious petitions, each appellant submitted “that the facts underlying the c laim, if true, would establ ish by clear and conv incing evidence that the Petitioner is entitled to have the c onvictions set aside and to be granted a new trial. ” In granting the moti on, the trial court stated that the motion alleged facts which, if proven by the applicabl e standard of proof, would afford the petitioner a basis for reopeni ng the petition. An exami nation of the applicable statute4

reveals that appellants a nd the trial court reli ed upon an improper ground to r eopen the petitions. The Post-Conviction Act of 1995 sets forth limited circums tances in which a motion to reopen may be grante d. Under Tennessee Code Annotated sec tion 40-30- 217, a motion to reopen may be filed when: (1) the claim in the motion i s based upon a final ruling of an appellate court establishing a co nstitutional right that was not recogniz

ed as existing at the time of trial, if retrospective application of that right is required. Such motion must be filed within one (1) y ear of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as ex

isting at the time of trial; or (2) the claim in the motion is based upon new scientific evidence establishing that such pet itioner is actually innocent of the offense or offenses for which the petitioner was convicted; or (3) the claim asserted i n the motion seeks relief from a sente nce that was enhanced because of a previous conviction and such conviction in the case in which the cl aim is asserted was not a guilty plea wi th an agreed sentence, and the prev ious conviction has subs equently been held to be invalid, in w

hich case the motion must be filed w ithin one (1) year of the finality of the ru ling holding the prev ious conviction to be invalid; and (4) it appears that the facts underlying the claim, if true, would establish by clear an d convinci ng evidenc e that th e petitio ner is ent itled to h ave the conviction set aside or the sentence reduced. The motion should be denied without a hearing unless it c ontains factual allegations that meet one of the enumerated statutory circumstances. Tenn. Code Ann. §40-30- 217(b). See also Fletcher v. State , 951 S.W.2d 378, 38 0 (Tenn. 1997). The clear language of the statut e reflects that only those ev ents set out in the first three subsections q ualify as a basis for reopeni ng a petition. The ground asserted must meet the “clear and convincing” standar d set forth in subsection (4)

. Donald Wayne Easley v. State , No. 01C01-9609-CC-00407 ( Tenn. Crim. App. at Nashville, November

6, 1997), perm. app. denied (Tenn. 1998). Therefore, facts described in either statut ory ground (1), (

2), or (3) must exis

t and the facts underlying that ground must establish by clear and convincing evidence that the petitioner is5

entitled to have the conv iction set aside. Subsecti on (4) of the statute is joined to the preceding three grounds by the conjunctive “

and;” it does not exist a s an independent ground for relief. As a res ult, the trial court er red in reopening the petiti ons based on subsection (4) since the appellants failed to assert facts to support one of the three statutory circumstances. Appellants’ allegations

of prosecutorial misconduct do not satisfy any of the circum stances

contempl ated by

the stat ute. Appellants have no t made a s howing

of a new constitutional rul e requiring retros pective application, new scientific evidence, or that a previous convi ction used for sentence enhancement has been set aside. In the absence of facts to support one of the three s tatutory requirements,we deny appellants’ motions to reopen th eir previous post-c onviction petitions.

_______________________________ William M. Barker, Specia l Judge

CONCUR:

____________________________ Gary R. Wad e, Presiding Judge

____________________________ Joseph M. Tipto n, Judge