Brooke Whitaker v. Trinity Minter, Warden ( 2017 )

09/08/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 1, 2017
BROOKE WHITAKER v. TRINITY MINTER, WARDEN
Appeal from the Circuit Court for Lauderdale County
No. 6943 Joseph Walker, Judge
___________________________________
No. W2017-00127-CCA-R3-HC
___________________________________
Petitioner, 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.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.
Brooke 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
Tennessee.
OPINION
Factual and Procedural Background
Over 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, 4 2014), 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.
On 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.
On January 3, 2017, Petitioner filed an unsigned notice of her appeal.
Analysis
“Ordinarily, 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)).
In this 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
-2-
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 the doctrine of collateral estoppel prevents us from
revisiting the issue. See Alicia Shayne Lovera v. State, No. W2014-00794-CCA-R3-HC,
2014 WL 7432893, at *2-3 (Tenn. Crim. App. Dec. 30, 2014), perm. app. denied (Tenn.
May 18, 2015). Accordingly, the appeal is dismissed.
_________________________________
TIMOTHY L. EASTER, JUDGE
-3-