Court of Criminal Appeals of Tennessee, Nashville
from the Criminal Court for Davidson County No. 2008-B-1760
Monte Watkins, Judge
trial court summarily dismissed the Appellant's
"motion for new trial or evidentiary hearing on the
grounds of ineffective assistance of counsel." The trial
court properly treated the pleading as a subsequent petition
seeking post-conviction relief and denied the same without a
hearing. The trial court's ruling is hereby affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Trial Court
Affirmed Pursuant to Court of Criminal Appeals Rule 20
Richard C. Strong, Nashville, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter, for
the appellee, State of Tennessee.
W. Wedemeyer, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J. and Robert L. Holloway, Jr.,
W. WEDEMEYER, JUDGE
Appellant is appealing the denial of his "motion for new
trial or evidentiary hearing on the grounds of ineffective
assistance of counsel." The record has been filed.
Appointed counsel now moves this Court to withdraw pursuant
to Court of Criminal Appeals Rule 22. Counsel contends this
appeal is frivolous under Anders v. California, 386
U.S. 738 (1967). Having reviewed the entire record on appeal,
including counsel's motion to withdraw and the
accompanying Anders brief, as well as the
Appellant's pro se response, the Court agrees
that this appeal is frivolous.
2009, the Appellant pleaded guilty to rape and received an
agreed-upon twelve year sentence. The Appellant subsequently
sought post-conviction relief claiming that his guilty plea
was not knowing and voluntary because he received ineffective
assistance of counsel. The trial court denied the petition
and this Court affirmed that denial on appeal. Harvey
Taylor v. State, No. M2012-01228-CCA-R3-PC, 2013 WL
655699 (Tenn. Crim. App., Feb. 21, 2013), perm. to app.
denied, (Tenn., Aug. 14, 2013). The Appellant's
first attempt to reopen his post-conviction petition failed.
Harvey E. Taylor v. State, No. M2014-01315-CCA-R3-PC
(Tenn. Crim. App., July 28, 2014) (Order). The Appellant was
also unsuccessful in his pursuit of error coram nobis relief
during which he alleged the existence of newly discovered
exculpatory evidence. Harvey Taylor v. State,
M2014-00541-CCA-R3-ECN, 2015 WL 1242958 (Tenn. Crim. App.,
Mar. 16, 2015).
denying the pro se "motion for new trial or
evidentiary hearing, " the trial court concluded:
Petitioner continues to allege ineffective assistance of
counsel based on evidence that was not introduced. Petitioner
entered a guilty plea and did not proceed to trial.
Furthermore, this is also the petitioner's second
petition for post-conviction relief in this case. The Court
resolved the merits of the petitioner's allegations on
the first petition filed in this case which was also affirmed
by the Criminal Court [sic] of Appeals.
Post-Conviction Procedure Act contemplates the filing of only
one petition for post-conviction relief. Tenn. Code Ann.
§ 40-30-102(c). The statute directs trial courts to
summarily dismiss any subsequent petition when a prior
petition was resolved on its merits. Id. Because the
Appellant in this case received a full hearing and appeal on
his original petition, the trial court properly dismissed the
the Act also provides a means for reopening previously filed
petitions, the types of claims which may be raised in a
motion to reopen are limited. See Tenn. Code. Ann.
§ 40-30-117. Relief will only be granted in a motion to
reopen if the claim is based upon (1) a final ruling of an
appellate court establishing a constitutional right not
previously recognized at the time of trial, if retrospective
application is required, (2) new scientific evidence
establishing that the petitioner is actually innocent of the
crime, or (3) if the claim seeks relief from a sentence that
was enhanced because of a previous conviction which has
subsequently been invalidated. § 40-30-117(a).
Furthermore, the facts underlying the claim, if true, must
establish by clear and convincing evidence that the
petitioner is entitled to have his or her conviction set
aside or his or her sentence reduced. Id. None of
the claims asserted by the Appellant in his most recent
pleading qualify to reopen his previous petition. Again, as
the trial court stated, and confirmed by counsel on appeal,
the Appellant simply wishes to re-litigate his ineffective
assistance of counsel claim.
the Appellant was attempting to again reopen his petition by
filing the "motion for new trial or evidentiary hearing,
" the Appellant was required to seek permission to
appeal the trial court's ruling on that pleading. Tenn.
Code Ann. § 40-30-117(c); see also Tenn. Sup.
Ct. R. 28, §10(B). The Rules of Appellate Procedure do
not provide for an appeal as of right upon the denial of a
motion to reopen. See Tenn. R. App. P. 3(b). After
the trial court summarily dismissed his pleading, the
Appellant filed a notice of appeal. It is unclear from the
record why, but the trial court subsequently appointed
counsel to represent the Appellant in the instant appeal.
Although our supreme court has held that a "notice of
appeal" may suffice as an application for permission to
appeal under the terms of the statute, the notice must be
timely filed in this Court in order to substantially
comply with the statutory filing requirements. See Graham
v. State, 90 S.W.3d 687, 691 (Tenn. 2002). The Appellant
filed his notice of appeal in the trial court and a record
was subsequently prepared and transmitted on appeal. The
filing of the notice of ...