Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 8, 2016
from the Circuit Court for Grundy County No. 3081 Thomas W.
se petitioner, Kenneth Dale Sanders, appeals the summary
dismissal of his petition for writ of error coram nobis.
Following our review, we affirm the summary dismissal of the
petition as time-barred pursuant to Rule 20, Rules of the
Court of Criminal Appeals.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed Pursuant to Rule 20, Rules of the Court of
Kenneth Dale Sanders, Ashland, Kentucky, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; James M. Taylor, District Attorney
General; and David L. Shinn, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
E. Glenn, J., delivered the opinion of the court, in which
Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
E. GLENN, JUDGE.
case involves the petitioner's challenge to his 1997
guilty plea conviction for possession of marijuana with the
intent to sell, which, according to the petitioner, was used
by the federal court to enhance his sentence for a subsequent
federal drug conviction. On May 14, 1997, the petitioner pled
guilty to possession of marijuana with the intent to sell, a
Class E felony, and was sentenced to two years on community
corrections. State v. Kenneth D. Sanders, No.
M2014-01689-CCA-R3-CD, 2015 WL 6501229, at *1 (Tenn. Crim.
App. Oct. 28, 2015). On December 13, 2013, the petitioner
filed a motion to "vacate his guilty plea and/or motion
to alter and amend the judgment, " which the trial court
treated as a motion for post-conviction relief,
"alleging that he received ineffective assistance of
counsel during his guilty plea proceedings."
Id. The trial court denied the motion, noting that
it was barred by the statute of limitations for
post-conviction relief. The trial court also denied the
petitioner's subsequent motion to reconsider.
appeal, the petitioner raised claims of actual innocence, the
trial court's lack of subject matter jurisdiction,
illegal sentence, unknowing and unintelligent guilty plea,
and deprivation of the rights guaranteed him by the Sixth and
Fourteenth Amendments. Id. at *2. This court
concluded that all of the petitioner's claims, with the
exception of his claim of ineffective assistance of counsel
during the guilty plea proceedings, were waived due to his
failure to raise them in his motion to vacate his guilty
plea. Id. We further concluded that the
petitioner's notice of appeal was untimely and that there
was nothing in the record to show that his late-filed notice
of appeal should be waived in the interest of justice.
Id. at *3. Accordingly, we affirmed the judgment of
the trial court. Id.
February 2, 2016, the petitioner filed the coram nobis
petition at issue in this case in which he raised the same
claims he raised in his earlier appeal: (1) that he was
actually innocent of the crime because the facts showed that
his intent with the marijuana, which he alleges he found in a
"fence row, " was not to sell it but to either
destroy it or turn it over to the police; (2) that the trial
court lacked subject matter jurisdiction to accept his guilty
plea because of the lack of evidence of the intent element of
the crime; (3) that he received an illegal sentence because
the trial court was without jurisdiction to sentence him due
to the lack of evidence of his intent; (4) that his guilty
plea was unknowing and involuntary due to the ineffective
assistance of his counsel, who failed to properly investigate
the facts and the law; and (5) that he was denied the
effective assistance of counsel due to counsel's failure
to properly investigate and advise him regarding the plea.
State responded with a motion to dismiss in which it asserted
that the petition was barred by the statute of limitations
and failed to state a colorable claim for relief. On March
17, 2016, the coram nobis court entered an order granting the
State's motion to dismiss, finding that the petition was
barred by the statute of limitations and that the issues
raised by the petitioner had "already been addressed and
reviewed and found to be without merit." Thereafter, the
petitioner filed a timely appeal to this court.
of error coram nobis is an extraordinary remedy by which the
court may provide relief from a judgment under only narrow
and limited circumstances. State v. Mixon, 983
S.W.2d 661, 666 (Tenn. 1999). Tennessee Code Annotated
section 40-26-105 provides this remedy to criminal
Upon a showing by the defendant that the defendant was
without fault in failing to present certain evidence at the
proper time, a writ of error coram nobis will lie for
subsequently or newly discovered evidence relating to matters
which were litigated at the trial if the judge determines
that such evidence may have resulted in a different judgment,
had it been presented at the trial. The issue shall be tried
by the court without the intervention of a jury, and if the
decision be in favor of ...