Assigned on Briefs August 1, 2017
from the Circuit Court for Lauderdale County No. 6943 Joseph
Brooke Whitaker, appeals the Lauderdale County Circuit
Court's dismissal of her petition for writ of habeas
corpus. Because we determine that Petitioner has failed to
file a timely notice of appeal or provide a reason as to why
the timely filing of the notice of appeal should be waived,
the appeal is dismissed.
Whitaker, Henning, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; Michael Dunavant,
District Attorney General, for the appellee, State of
Timothy L. Easter, J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert W. Wedemeyer, JJ.,
TIMOTHY L. EASTER, JUDGE
and Procedural Background
nine years ago, Petitioner participated in the rape of a
fellow inmate in the Bedford County Jail. See State v.
Brooke Lee Whitaker, No. M2009-02449-CCA-R3-CD, 2011 WL
2176511, at *1 (Tenn. Crim. App. May 31, 2011), perm.
app. denied (Tenn. Sept. 21, 2011). Following
negotiations with the State, Petitioner pleaded guilty to one
count of rape, and the trial court sentenced her to serve
twelve years in confinement. Id. On direct appeal,
this Court affirmed the judgment of the trial court.
Id. at *3. Petitioner filed for post-conviction
relief, arguing that she received ineffective assistance of
counsel, that her guilty plea was unknowing and involuntary,
and that her trial counsel had a conflict of interest.
See Brooke Lee Whitaker v. State, No.
M2013-00919-CCA-R3-PC, 2014 WL 2553441, at *1 (Tenn. Crim.
App. June, 42014), perm. app. denied (Tenn. Sept.
22, 2014). This Court affirmed the post-conviction
court's denial of relief. Id. at *12. Petitioner
then filed a motion under Tennessee Rule of Criminal
Procedure 36.1 for the correction of an illegal sentence,
arguing that "her sentence is illegal because the trial
court failed to advise her that she would be subject to
community supervision for life." State v. Brooke Lee
Whitaker, No. M2015-01853-CCA-R3-CD, 2016 WL 4547991, at
*1 (Tenn. Crim. App. Aug. 31, 2016), no perm. app.
filed. Petitioner argued that Tennessee Rule of Criminal
Procedure 11 and Ward v. State, 315 S.W.3d 461
(Tenn. 2010), rendered her sentence illegal. Id. The
trial court dismissed Petitioner's 36.1 motion, and this
Court affirmed the dismissal, holding that Ward does
not require retroactive application and that Petitioner's
sentence was legal. 2016 WL 4547991, at *2.
November 18, 2016, Petitioner filed a petition for a writ of
habeas corpus. Once again, Petitioner argued that her
sentence was illegal pursuant to Tennessee Rule of Criminal
Procedure 11 and Ward because the trial court did
not inform her that she would be subject to community
supervision for life. The habeas corpus court filed an order
denying her petition on November 29, 2017.
January 3, 2017, Petitioner filed an unsigned notice of her
a habeas corpus court's judgment becomes final thirty
days after the entry of the judgment unless a notice of
appeal is filed." State v. Carl T. Jones,
M2011-00878-CCA-R3-CD, 2011 WL 5573579, at *1 (Tenn. Crim.
App. Nov. 15, 2011) (citing Tenn. R. App. P. 4(a)), perm.
app. denied (Tenn. Apr. 11, 2012). Under Tennessee Rule
of Appellate Procedure 4(a), the notice of appeal must be
filed "within 30 days after the date of entry of the
judgment appealed from." However, Rule 4(a) also states
that "in all criminal cases the 'notice of
appeal' document is not jurisdictional and the filing of
such document may be waived in the interest of justice."
A petitioner bears the responsibility to properly perfect his
appeal or to demonstrate that the "interests of
justice" merit waiver of an untimely filed notice of
appeal. Carl T. Jones, 2011 WL 5573579, at *1
(citing Tenn. R. App. P. 4(a)).
case, the habeas corpus court entered its judgment on
November 29, 2016. Petitioner did not file her notice of
appeal until January 3, 2017. Thus, Petitioner's notice
of appeal was filed more than 30 days from the entry of the
judgment of the habeas corpus court. Petitioner's notice
of appeal was untimely, and she has not requested a waiver
nor has she offered any explanation as to why this Court
should excuse the untimely filing. Rather, Petitioner ignored
the untimeliness of her notice of appeal and stated in her
brief that "[a] timely Notice of Appeal was
filed[.]" Thereby, she has presented no basis upon which
this Court may find that the "interests of justice"
merit a waiver of the untimely filed notice of appeal.
See State v. Rockwell, 280 S.W.3d 212, 214 (Tenn.
Crim. App. 2007) ("If this [C]ourt were to summarily
grant a waiver whenever confronted with untimely notices, the
thirty-day requirement of Tennessee Rule of Appellate
Procedure 4(a) would be rendered a legal fiction.").
Moreover, this exact claim of an illegal sentence was
previously litigated in Petitioner's Rule 36.1 motion and
subsequent appeal, and ...