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State v. Wolfe

Court of Criminal Appeals of Tennessee, Jackson

March 22, 2017

STATE OF TENNESSEE
v.
TONY WOLFE

          Assigned on Briefs at Knoxville January 18, 2017

         Appeal from the Criminal Court for Shelby County No. 05-00559 J. Robert Carter, Jr., Judge

         The Petitioner, Tony Wolfe, appeals from the Shelby County Criminal Court's denial of his motion to reopen his post-conviction petition on the basis of newly discovered scientific mental health evidence. He contends that the post-conviction court erred in denying his motion without conducting a hearing on the merits. Because the Petitioner has no appeal as of right from the denial of a motion to reopen and did not follow the procedure required for seeking permission to appeal, we dismiss the appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Kyle Mothershead, Nashville, Tennessee, for the appellant, Tony Wolfe.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Amy Weirich, District Attorney General; for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Petitioner was convicted of first degree premeditated murder. See State v. Tony Wolfe, No. W2008-01243-CCA-R3-CD, 2009 WL 1025871 (Tenn. Crim. App. Apr. 8, 2009) (Wolfe I), perm. app. denied (Tenn. Sept. 28, 2009). His petition for post-conviction relief alleged that he received the ineffective assistance of counsel. The post-conviction court denied relief, and this court affirmed its judgment. Tony Wolfe v. State (Wolfe II), No. W2012-00611-CCA-R3-PC, 2013 WL 5488574, at *1, 8 (Tenn. Crim. App. Sept. 30, 2013), perm. app. denied (Tenn. Feb. 11, 2014). The Tennessee Supreme Court denied the Petitioner's application for permission to appeal on February 11, 2014. Id.

         On March 2, 2016, the Petitioner filed his motion to reopen the post-conviction matter, alleging "newly discovered scientific mental health evidence" related to his diagnosis of post-traumatic stress disorder (PTSD). He alleged that he first received the diagnosis following a December 9, 2014 evaluation at the Tennessee Department of Correction (TDOC) Deberry Special Needs Facility and that the diagnosis was again provided in a February 2016 report from Dr. Pamela Auble, both of which occurred after the supreme court denied review of his post-conviction appeal. The Petitioner acknowledged that he had raised the claim in his previous post-conviction petition but that he had been unable to prove prejudice because post-conviction counsel did not have him evaluated by a forensic psychologist before the post-conviction hearing. He claimed that evidence of PTSD could have been used at his trial to negate the premeditation element of first-degree murder. He attached Dr. Auble's report and additional TDOC mental health records in support of his allegations.

         The post-conviction court found that mental health evaluations and a PTSD diagnosis were not "newly discovered type of evidence or newly arising science" and that even if the allegations were viewed in the light most favorable to the Petitioner, they did not establish the Petitioner's actual innocence of the offense because the 2016 psychologist's report opined that the Petitioner actions could have been the "product of excitement and passion." The court concluded that for these reasons, Tennessee Code Annotated section 40-30-117(a), pertaining to the limited situations in which a petitioner may reopen his petition for post-conviction relief, did not apply. The court denied relief on this basis. This appeal followed.

         The Petitioner contends that the post-conviction court erred in summarily denying his motion to reopen. The State counters that the Petitioner's appeal is improper because no appeal as of right exists from the denial of a motion to reopen a post-conviction petition and that he failed to follow the statutory procedure for seeking permission to appeal to this court. The State contends that, in any event, the Petitioner's allegations that he was suffering from PTSD failed to demonstrate actual innocence. In his reply brief, the Petitioner acknowledges his error in failing to seek permission to appeal but asks this court to consider the merits of his appeal in the interests of justice.

         Post-conviction relief is available "when the conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." T.C.A. § 40-30-103 (2012). After a post-conviction petition has been adjudicated,

(a) A petitioner may file a motion in the trial court to reopen the first post-conviction petition only if ...

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