### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs Sep te m be r 1, 2 00 9

GARY E. ALDRIDGE v. J AMES FORTNE R, WARDEN, and

STATE OF TENNESS EE

Appeal f rom the Circ uit Court for Hickman County No. 08-5049C Jam es Mar tin, Jud ge

No. M2009- 00477-CCA -R3-HC - F iled Septem ber 30, 2009

The petitioner, Gar

y E. Aldridg e, was convicted in 1997 of one count of ag g rava ted kidnapping
, two counts of ag g rava ted rape , one count of rape , and two counts of simple assault, all perpe trated upon his estrang ed wife. The trial court imposed an eff ective sentenc e of six ty y ear s, with a sentenc e of
sevente en months and twenty -nine day s to be serve d consec utively

. The judgme nts w ere aff irmed

on direc t appea l, and our supreme court denied permission to appea l. State v. Gar y Eug ene Aldridg e, No. 01C01-9802-CC-00075, 1999 WL 632299, at *1 (Tenn. Crim. App. Aug . 19, 1999), per m. to appea l denied (Tenn. J an. 31, 2000). Subsequently
, the petitioner beg an a series of post-conviction filings. This appea l resulted from the dismiss al of his fourth petition for writ of habea s corpus. The State arg ues that the notice of appea l w as untimely and, there fore
, the appea l should be dismiss ed. We ag ree and dismiss the appea l.

Tenn. R. App . P . 3 Appeal as of Right; Appeal Dism issed

A L A N E. G L E N N , J
., delivere d the opinion of the court, in which D A V I D H. W E L L E S and C A M I L L E R. M C M U L L E N , J J ., joined.

Gar y E. Aldridg e, Only , Tenne ssee, Pro Se.

Robert E. Cooper, J r. , At t o rn ey Gene ral and Reporter ; and L eslie E. Price, Assistant Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

F ACTS

I n the direc t appea l of the petitioner’s convictions, this court observe d that “the [petit ioner’s] prese ntation of the issues is clouded by his waf fling arg ument.” I d. at *5. The same descr iption is true for our re view of the petitioner’s four th try for ha beas c orpus re lief, which, w ith attachments,t otals 244 pag es. The fac ts, which resulted in the petitioner’s convictions, wer e set out on d i re ct

appea l:

I n May of 1996, Etta Mae Aldridg e trave led from Monterre y , Califo rnia to the [petit ioner’s] residenc e in Hickman County to visit and, appar ently
, to d i s cuss their prospec ts for marria g e. The [petit ioner] and Etta Mae had known eac h other for approximatel y two y ear s and had eng ag ed in a long- distance rela tionship via the telephone. On J une 23, 1996, the [petit ioner] and Etta Mae Aldridg e wer e marrie d. Two wee ks later, Etta’s children joined her in Tenne ssee. By Aug ust that same y ear , the couple beg an experiencing marital problems. The couple separ ated and Etta went to Arka nsas to live with rela tives. On October 20, 1996, Etta returne d to Tenne ssee to rec oncile with the [petitioner].

On November 1, 1996, the [ petitioner] and Ett a traveled t o t heir respec tive place s of employ

ment toge ther, they share d lunch, and r eturne d home tog ether that evening

. The [petit ioner] was in a g ood mood and every t h i n g s eeme d "f

ine" at dinner. Dur ing their meal, the [petitioner] asked Etta if she ha d an af fair w hile she

was living in A rkansa s. Etta denied any extramarital liaison. H er de nial infuriated the [petit ioner] who overturne d the dinner table and backha nded Etta acr oss the fac e. He called her a “b i t ch ” and a “liar.” The [petit ioner] forc ed Etta into the couple' s bedroom, wher e he disrobed. He then “doubled” his leather belt and beg an beating Etta upon her leg s. Wh i l e being beaten, he informed her t hat “he was gonna teac h [her] to lie and to chea

t.” When the [petit ioner] finally ce ased his beating
, he observe d the bruises he had inflicted on his w ife. He apolog ized to her, told he r he loved her, and informed her that he would never hurt h er aga i n

. The couple later eng ag ed in sexual intercourse

.

On Novembe r 15, 1996, Etta picked up her final pay chec k from her former employ er and completed some err ands. She then picked up the [petit ioner] from his place of employ

ment later that afte rnoon. On the drive home, the [petit ioner] started
y elling at Etta about spending her pay chec k. The topic then chang ed from money to “the g uy s from Ar

kansas that [Etta] suppos edly had an a ffa ir with.” Althoug h she, ag ain, denied the alleg ation, the [petit ioner] “ backha nded” her in the fac e. He then instructed her to drive onto a dirt road. Etta pleade d with the [petit ioner] not to hurt her. He responde d that “[they ] wer e g oing to settle it once and for all.” Etta stopped the vehicle and obey ed the [petit ioner ’s ] co m m and to “g et out” of the car

. The [petit ioner] then “starte d hitting [her] with his fist double handed.” The hitting was followed wi t h a beating with his belt. He threa tened that “he felt like just killing [her] and throwing [her] into the river.” Etta beg g ed him to stop for the sake of the children. The [petit ioner] then instructed Etta to g et in the passeng er side of the car

. Stil l enra g ed, he then drove to another location. He stopped the car and ag ain order ed her out of the car

. “[H]e beat [her] some more,” threw her on the hood of the

car , and beg an to choke her. He exclaimed that “he wanted the truth and i f [she]

-2-wasn’t going to tell the truth, he wa s g oing to be at i t out of [ her].” The [petit ioner]

wra pped his belt around her neck and started choking h er

. When he rele ased his hold, Etta fell to the g round. He then place d his hand in his pocket and told Etta that “he felt like putting a bullet in [her] head.” The [petit ioner’s] ang er subsided and he told Etta to g et back in the car

. On the way home, howeve r, he ag ai n b ac k h an ded her, g iving her a “bloody nose.” The victim suffe red two black ey es, a bloody nose, and a sw ollen lip from this incident.

On Thanksg iving Day
, Etta decide d to leave the [petit ioner]. That evening
, she left their home and, acc ompan i ed by her children, went to a motel. The fo l l o wing day
, she went to a women' s shelter. The Hickman County Sheriff' s Depa rtment was informed of the November 1 and November 15 assaults and char g es

wer e filed ag ai n s t t h e [petit ioner]. Sometime during the m onth of Decembe r, Ett a contac ted an attorney to initiate divorce proce eding s ag ain s t t h e [ petitioner]. On Dec ember 9, 1996, an order of protec tion issued from the Hickman County Gene ral Sessi o n s C o urt enjoining the [petit ioner] from abusing
, threa tening to abuse, or committing any acts of violence upon Et t a. De s p i t e this order of protec tion, Etta encounte red the [petit ioner] a t the home of a mutual f

riend, Peg g y Mitchell, during the ear ly part of J anuar

y

. The [petit ioner] told Etta that “he s t ar t ed wanting to be with [her] ag ain” and that he was “sorr y and that [t hey ] could work things out.” Consequently
, Etta “we nt with him to his home wher e [t hey ] made love that night.”

On J anuar

y 14, 1997, Etta Mae Aldridg e filed a complaint of divorce in the Hickman County Chance ry Court alleg ing irrec oncilable differ ence s and inappropria te marital conduct. The complaint alleg ed that the couple last resided in the same house hold on November 28, 1996.

Be tween 11:00 and 12:00 p.m. on J anuar y 18, the [petit ioner] arr ived at Etta’s apar tment wanting to talk with her. The [petit ioner] attempted to persua de Etta to leave the apar

tment with him so they could talk in private

. E t t a resisted. The [petit ioner] then quietly war ned h er t h at if she did not acc ompany him, “he would shoot [her] and then [her] kids.” Etta retrie ved her coat and told her twenty -one y ear old da ug hter Dawn to dial “911.” I t was later reve aled that Dawn did not place the telephone c all until the following morning

.

On the way to the [petit ioner’s] house, he reminded E t t a that he had previously war

ned her, “i f h e didn't g et to take Cindy home with him on Wednesday ,” “[Etta’s] life wouldn’t be worth two cents.” Etta pleade d for him not
to harm her. He responde d, “Oh, I ’m not g oing to hur t y ou, I ’m g oing to kill y ou.” He added that “he would g ive [her] two cho i ce s , ei t h er a .357 or a .44.” Shortly there afte r, they arr ived at the [petit ioner’s] house and went inside. The [petit ioner] then advised Etta that “[they ] could do it [ h er ] wa y o r his way ” and he beg an

-3-questioning her about her aff airs in Arka

nsas. When she denied having an aff air, he hit her in the fa ce.

And then he g rabbe d [her] .

. . by the arm, then we went into the bedr oom and he shut the door, a nd I tried to g rab a statute and it fell o u t o f my hand, and then he g rabbe d me by this arm and he pick ed m e u p and he shoved m e aga inst the wall. Then he took his hand and he choked me and I starte d fig hting him back, I started k i ck i n g and fig hting him back, and then I fell to the floor and he started choking me some more and I started kicking him try ing to g et him off of me.

And then he picked me up and he threw me acr oss the bed and I hit a night stand and I cut my ear , and I knocked over the night stand and a lamp and broke it and he told me to sit it back up, so I did. And then he-

--- -g rabbe d me ag ain and he told me to take of f my clothes,

so I took them off and we went into the bathroom and the water pipes had broken, so he raised the back of the toilet a nd he dipped a towel and he washe d my fac e

. . . and I thought may be he wasn' t go ing to hurt me any

more.

. . . And t hen we went back i nto the bedroom and he start ed hitting me ag ain and he threw me on the bed a nd he starte d choking

m e, so I scra tched him and he let g o, and then he kept hold i n g m e down and I twisted his penis and he ripped my underw ear at the same time.

. . . .

He forc ibly had [vagina l] sex with me. I told him no, but he did any way

.

. . . .

He made me roll over and he put some liquid, it smelled like cher ries, on me a

nd he [put it ] . . . on m y

anal a rea

.

. . . .

And then he ha d forc ed sex with me there.

. . . .

-4-I asked him to quit and he wouldn’t. I kept try ing to g et awa

y , but I couldn’t.

. . . .

I t hurt. I can’ t describe how bad it hurt.

. . . .

He told me that all white tra sh, white whore s liked it.

. . . .

I g ot dr essed, he said he wa nted to g o to a friend’ s house

. . . to Peg g y Mitchell’s house.

. . . We w ent there beca use Gar y said he wanted to have a three some and that she liked women. So when we g ot there G ary

sat in the rec liner. . . .

So Gar y pulled me down in his lap and he raised my denim skirt

. . . I had o n high knee boots

. . . and he didn’t let me put my underw ear

back on.

. . . .

An d he pulled my skirt up and he showed Peg g y

-- an d h e asked he r how would she like to g et a hold of tha t.

. . . . [P eg g y responde d] ‘I t looks rea l g ood, Gar y , but I don’t think

so tonight. I don’t fee l w ell.’ So Ga ry put my skirt back down . .

. . we lef t.

. . . . [W hen we g ot back to his house] [ w]e had sex ag ain. . . .

. . . [H] e wa

nted to have or al sex.

. . . .

I d i d n ’t want to do any

thing with him. I just wanted to go home.

-5-. . . . We had vag inal sex and then we we nt to sleep.

The next mornin g, the [petit ioner] told Etta he loved her and that he was sorry . The c ouple then “just made love ag ain.” He asked her if she wa nted to stay
at the house with him. She declined his offe r. L ater , the [petit ioner] war ned Etta that if she t old any one about what happene d he would beat her and then ki ll her. Early the next afternoon, be fore returning her home, the [petit ioner] told Etta that he wa s “proud of her be cause she had put up a g ood fig ht.”

I d. at **1-3 (f

ootnotes omitt ed).

Subsequent l y , t h e petitioner bega n a series of pro se filings: (1) a 2000 petition for post- 1 conviction relief

, al l eging ineffe ctive assistance of counsel and denial of the petitioner’s rig ht to t est ify
, which was dismiss ed by the post-conviction court and aff irmed on appea l, Gar

y Eu gen e Aldridg e v. State, No. M 2001-02452-CCA-R3-PC, 2002 W L 31598841, at *1 (Tenn. Crim. App. Nov. 1 9
, 2 0 0 2 ); (2) a 2003 petition for writ of habea s corpus, alleg ing that the indictments wer e invalid, which the trial court dismiss ed, and the dismiss al was aff irmed on appea l, Gar

y E. Aldridg e

v. State, No

. M 2 003-00703-CCA-R3-HC, 2004 WL 2346144, at *1 (Tenn. Crim. App. Oct. 19, 2004); (3) a 2005 petition for writ of habea s corpus, alleg ing that a jury had not deter mined all fac ts upon which his sentenc ing ha d been ba sed, the imposit ion of consec utive sentenc es was c ruel a nd unusual punishment, the fac t he was marrie d to the victim prec luded his being prosec uted for rape , the trial court violated his right ag ainst self-inc rimination, and an amendment to the indictment violated his rig ht to a g ran d j u ry ad j udication. The petition was dismiss ed by the trial court, the dismiss al was aff

irmed on appea l, and permission to appea l was denied. Gar y E. Aldridg e v. State, No. M2005-01861-CCA-R3-HC, 2006 WL 1132073, at *1 (Tenn. Crim. App. Apr. 28, 2006), perm. to appea l denied (Tenn. Nov. 27, 2006); and (4) a 2007 petition for writ of habea s corpus, alleg ing that the indictment was defe ctive and, as a result, he was being illega lly detained. The trial court dismiss ed this petition, and the dismiss al was aff irmed on appea l. Gar

y Aldridg e v. State, No. M2007-01268-CCA-R3-HC, 2007 WL 4232920, at *1 (Te nn. Crim. App. Dec. 3, 2007)

.

The prese nt appea l resulted from the dismiss al of the fourth petition for writ of habea s corpus filed by the petitioner, whic h was filed in 2008 a nd contende d that the petitioner’s sentenc es we re void beca use he wa s not awa

rded jail cre dits as require d; that the petitioner was sentenc ed in the wrong offe nder classifica tion; that the court err ed in order ing that cer tain of his sentenc es be serve d

consec utively ; and that the court did not have the authority to issue an amende d judgme nt. The trial
court dismiss ed this petition on Augu s t 1 3
, 2008. The petitioner then filed a motion to alter or amend the judgme nt, which was denied on Fe bruar y 10, 2009, and this appea l was filed on Fe bruar y 18, 2009.

I t i s u n c l e a r f

r o m t h e r e c o r d a s t o t h e d a t e t h i s p e t i t i o n w a s f i l e d
, b u t t h e p o s t

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o r t h e p e t i t i o n e r o n A u g u s t 3 1
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.
-6-ANALYSIS

Pursuant to Tenne ssee Rule of Appellate Procedur e 3(b), a petitioner may appea l as of rig ht from the final judgme nt of the habea s corpus proce eding

. The notice of appea l shall be filed within thirty day s afte r the date of entry of the judgme nt. Tenn. R. App. P. 4(a)

. Rule 4(a) further provides, howeve r, that in a ll c riminal case s the notice of appea l is not j urisdictional and may be waived “in the intere st of justice.”

I n this matter, a s we ha ve set out, af ter the tria l court dism issed his fourth petiti on for writ of habe as cor

pus, the petitioner did not file a notice of appea l but, inst ead, a motion to reconsider. As t h i s court has explained, the fil ing of such does not toll the t hirty -day period withi n whi ch t h e notice of a

ppeal must be filed:

Pursuant to Tenne ssee Rules of Appellate Procedur e 4(a)
, a notice of appea l “shall be fi l ed wi th and rece ived by the clerk of t he trial court withi n 30 day s afte r the date of entry of the judgme nt appea led from[.] ” There are cer tain motions that toll the time for filing the notice of appea l. Tenn. R. App. P. 4(c)

. Howeve r, a motion to

rec onsider is not among the specifie d motions that toll the thirty -d ay require ment. State v. L ock, 839 S.W .2d 436, 440 (Tenn. Crim. App. 1992) (citing State v. Bilbre y , 816 S.W .2d 71, 74 (Tenn. Crim. App. 1991)). Fur thermore
, this court has noted that

our rules of criminal proce dure do not pr ovide for a motion to rehe ar or rec onsider. State v. Ry an, 756 S.W.2d 284, 285 n. 2 (Tenn. Crim. App. 1988).

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

Thus, the petitioner had thirty day s to a ppeal from the trial court’s dismissal of his pe tition

on Aug ust 13, 2008. Appar ently
, he believed that he did not have to file a notice of appea l until afte r the trial court ruled on his motion to rec onsider. As explained by Rockwell, howeve r, this was not the case , and his notice of appea l was untimely by six months. We have revie wed the issues raised in the petition for writ of habea s corpus which, with attachme nts, totals 244 pag es, as we l l as h i s reply to the State’s motion to dismiss

. We note that the petitioner did not addre ss in any fashion the untimeliness of his notice of appea l, althoug h raised by the State. We c onclude that the interest of justi ce d o es n o t require our waiving the untimely filing of the notice of appea l to consider the petitioner’s c laims. See State v. Marke ttus L

. Br oy ld, N o. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Te nn. Crim. App. Dec. 27, 2005)

.

-7-CONCLUSION

Ba sed upon the fore g oing authorities and rea soning, we conclude that the interest of justice does not require our waiving the defe ndant’s failure to file a timely appea l and, there fore
, the appea l is dismi ssed.

___________________________________ AL AN E. GL ENN, JUDGE

-8-