Marcus Terry aka Marcus Benson aka Torian Benson v. State of Tennessee ( 2014 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs December 2, 2014
    MARCUS TERRY aka MARCUS BENSON aka TORIAN BENSON v.
    STATE OF TENNESSEE
    Appeal from the Criminal Court for Shelby County
    No. W97-01085      Chris Craft, Judge
    No. W2014-00684-CCA-R3-ECN - Filed December 30, 2014
    The pro se petitioner, Marcus Terry aka Marcus Benson aka Torian Benson, appeals the
    summary dismissal of his petition for writ of error coram nobis, which petition challenged
    his 1997 Shelby County Criminal Court guilty-pleaded conviction of escape. Discerning no
    error, we affirm.
    Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
    J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
    T HOMAS, J R. and R OGER A. P AGE, JJ., joined.
    Marcus Terry aka Marcus Benson aka Torian Benson, Henning, Tennessee, pro se.
    Herbert H. Slatery III, Attorney General and Reporter; and Caitlin Smith, Assistant Attorney
    General, for the appellee, State of Tennessee.
    OPINION
    On December 11, 1997, the petitioner pleaded guilty to one count of escape
    from felony incarceration, and the trial court imposed a sentence of four years to be served
    consecutively to six prior convictions, which included a conviction of vehicular homicide.
    The petitioner did not file a direct appeal.
    On January 23, 2014, the petitioner filed a petition for writ of error coram nobis
    alleging that, because he had escaped from a hospital rather than a penal institution, he had
    not committed the offense of escape and that his trial counsel was ineffective for failing to
    disclose that discrepancy. On February 3, 2014, the coram nobis court summarily dismissed
    the petition, finding that the claim was time-barred and that, even if it had been timely filed,
    the petition did not allege newly discovered evidence. The court continued as follows:
    The Criminal Information to which [the petitioner] plead[ed]
    guilty charged that he escaped “from the Shelby County Jail
    located in Shelby County, Tennessee, while serving a sentence
    for Vehicular Homicide, a felony . . . .” In his petition, he
    admits that he was taken from the Shelby County Jail by Shelby
    County Deputy Jailers to the Regional Medical Center to be
    treated for a head injury, and while there he escaped from the
    handcuffs and leg irons securing him to his bed by means of a
    handcuff key rubber-banded to his penis. His complaint is that
    the Regional Medical Center is not the Shelby County Jail, and
    that his attorney was ineffective in not disclosing to him that the
    information charged escape from the jail, not the hospital (the
    newly discovered “evidence.”)[.] His discovery of the wording
    of the charging instrument is not newly discovered evidence.
    Further, the Shelby County Jail is composed of more than one
    facility in Shelby County, including a facility for women and the
    secure Shelby County Jail facility at the Regional Medical
    Center (the Shelby County hospital), where the jail houses
    numerous prisoners who have both acute and chronic illness.
    He escaped from that Shelby County jail facility. If the
    petitioner would have demanded a trial rather than enter a plea
    of guilty, the State would have called a witness who would have
    testified that the facility from which the petitioner escaped was
    in fact a branch of the Shelby County jail, a penal institution
    where prisoners were housed.
    In this timely appeal, the petitioner contests the summary dismissal of his
    petition, again contending that the “newly discovered evidence” that he had pleaded guilty
    to escape from a penal institution when he had, in fact, escaped from a hospital entitled him
    to a new trial and that the coram nobis court erred by deeming the petition time-barred when
    the State had failed to raise the affirmative defense of the statute of limitations. The State
    asserts that the coram nobis court properly dismissed the petition for failure to state a
    cognizable ground for relief.
    A writ of error coram nobis is an “extraordinary procedural remedy,” filling
    only a “slight gap into which few cases fall.” State v. Mixon, 
    983 S.W.2d 661
    , 672 (Tenn.
    1999) (citation omitted). Coram nobis relief is provided for in criminal cases by statute:
    -2-
    The relief obtainable by this proceeding shall be confined to
    errors dehors the record and to matters that were not or could
    not have been litigated on the trial of the case, on a motion for
    a new trial, on appeal in the nature of a writ of error, on writ of
    error, or in a habeas corpus proceeding. 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.
    T.C.A. § 40-26-105(b) (2006); see State v. Vasques, 
    221 S.W.3d 514
    , 525-28 (Tenn. 2007)
    (describing standard of review as “‘whether a reasonable basis exists for concluding that had
    the evidence been presented at trial, the result of the proceedings might have been
    different’”) (citation omitted). The decision to grant or deny coram nobis relief rests within
    the sound discretion of the trial court. 
    Vasques, 221 S.W.3d at 527-28
    .
    “The writ of error [coram nobis] may be had within one (1) year after the
    judgment becomes final by petition presented to the judge at chambers or in open court, who
    may order it to operate as a supersedeas or not.” T.C.A. § 27-7-103 (2000); State v. Mixon,
    
    983 S.W.2d 661
    , 670 (Tenn. 1999) (holding that a petition for a writ of error coram nobis is
    untimely unless it is brought within one year of the entry of the trial court’s “final,” or last,
    order; the time for filing is not extended by the pursuit of a timely direct appeal). In coram
    nobis cases, however, the statute of limitations is an affirmative defense that must be raised
    by the State in the trial court. See Harris v. State, 
    102 S.W.3d 587
    , 593 (Tenn. 2003) (citing
    Sands v. State, 
    903 S.W.2d 297
    , 299 (Tenn. 1995)).
    In the instant case, the coram nobis court should not have dismissed the petition
    based on timeliness because the State had not yet responded to the petition and pleaded the
    affirmative defense of the statute of limitations. See 
    Harris, 102 S.W.3d at 593
    . That being
    said, the petition does not avail the petitioner of coram nobis relief because he failed to
    identify any newly discovered evidence. We agree with the coram nobis court that the
    petitioner’s “discovery of the wording of the charging instrument” does not amount to newly
    discovered evidence and that, in any event, the petitioner’s escape from the Regional Medical
    Center while incarcerated rather than a direct escape from the Shelby County jail is a
    distinction without a difference. The petitioner is effectively attempting to attack the
    sufficiency of the convicting evidence, and such an attack is not justiciable in a coram nobis
    petition.
    -3-
    Accordingly, the judgment of the coram nobis court is affirmed.
    _________________________________
    JAMES CURWOOD WITT, JR., JUDGE
    -4-
    

Document Info

Docket Number: W2014-00684-CCA-R3-ECN

Judges: Judge James Curwood Witt Jr.

Filed Date: 12/30/2014

Precedential Status: Precedential

Modified Date: 12/31/2014