Domingo Ponce v. State of Tennessee ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 11, 2005
DOMINGO PONCE v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Marshall County
No. 16234 Charles Lee, Judge
No. M2004-02257-CCA-R3-CO - Filed May 31, 2005
The Petitioner, Domingo Ponce, filed a petition for writ of error coram nobis, which the trial court
summarily dismissed. On appeal, the Petitioner contends that the trial court erred when it dismissed
his petition. Finding no reversible error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.
Domingo Ponce, pro se, Tiptonville, Tennessee.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
On July 29, 2003, the Petitioner pled guilty to one count of kidnapping, and the trial court
sentenced him to four years in prison. On August 16, 2004, the Petitioner filed a petition for writ
of error coram nobis, alleging that his plea was involuntarily entered and that he received ineffective
assistance of counsel. The Petitioner alleged that his counsel lied to him by telling him that he would
be allowed to remain in the country after the completion of his sentence, when, in fact, he was going
to be deported. Further, the Defendant alleged that the State withheld from the Defendant a
statement from the kidnapping victim, who was also the Defendant’s girlfriend, which would have
impacted the Defendant’s decision to enter a guilty plea. The trial court dismissed the petition
stating that “on it[s] face the writ doesn’t allege any newly discovered evidence.” It is from this
judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that the trial court erred because: (1) his trial counsel
“explicitly promis[ed]” him that he could “go home” within a few months; (2) the State threatened
that the Petitioner would spend life in prison if he failed to enter a guilty plea; (3) he was not
provided an interpreter; (4) the state failed to provide him exculpatory evidence; (5) he was not given
proper jail credits; (6) his counsel was ineffective; and (7) the cumulative effect of these errors
created a manifest injustice.
Under certain circumstances, a criminal defendant may file for a writ of error coram nobis.
Tenn. Code Ann. § 40-26-105 (2003). A writ of error coram nobis is an extraordinary remedy by
which the trial court may provide relief from a judgment under narrow and limited circumstances.
State v. Mixon, 983 S.W.2d 661, 666 (Tenn.1999). This remedy is available only when an unknown
issue was neither addressed, nor able to be addressed, at trial and may have resulted in a different
judgment. Tenn. Code Ann. § 40-26-105, State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App.
1995). The remedy is available by statute to a criminal defendant in Tennessee. See Tenn. Code
Ann. § 40-26-105. This statute provides, in pertinent part:
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 the petitioner, the
judgment complained of shall be set aside and the defendant shall be granted a new
trial in that cause.
When the petition addresses newly or subsequently discovered evidence, the evidence must be
admissible under the rules of evidence and material to an issue raised in the petition. Hart, 911
S.W.2d at 375. The petition must state:
(1) the grounds and the nature of the newly discovered evidence;
(2) why the admissibility of the newly discovered evidence may have resulted in
a different judgment had the evidence been admitted at the previous trial;
(3) the petitioner was without fault in failing to present the newly discovered
evidence at the appropriate time; and
(4) the relief sought by the petitioner.
Newsome v. State, 995 S.W.2d 129, 133 (Tenn. Crim. App. 1998) (citing Hart, 911 S.W.2d at 374-
75). Moreover, the decision to grant or deny a petition for writ of error coram nobis on the ground
of newly discovered evidence rests within the sound discretion of the trial court. Hart, 911 S.W.2d
at 375; see Tenn. Code Ann. § 40-26-105.
-2-
In the case under submission, we conclude that the trial court did not abuse its discretion
when it dismissed the Petitioner’s petition. Again, we note that the Petitioner must show that the
he lacked fault in failing to present certain evidence at the proper time. In the petition, the Petitioner
must state “ the grounds and nature of the newly discovered evidence [and] . . . why the admissibility
of the newly discovered evidence may have resulted in a different judgment had the evidence been
admitted at the previous trial.” Further, he must state why he was not at fault for presenting these
issues at the time of the trial or guilty plea hearing. The Petitioner asserts that: (1) his trial counsel
“explicitly promis[ed]” him that he could “go home” within a few months; (2) the State threatened
that the Petitioner would spend life in prison if he failed to enter a guilty plea; (3) he was not
provided an interpreter; (4) the state failed to provide him exculpatory evidence, (5) he was not given
proper jail credits; (6) his counsel was ineffective; and (7) the cumulative effect of these errors
created a manifest injustice. Initially we note that the Petitioner has provided no citations to the
record to support his arguments. Rule 10(b) of the Rules of this Court provides as follows: “Issues
which are not supported by argument, citation to authorities, or appropriate references to the record
will be treated as waived in this court.” Even if not waived, the issues are without merit.
The Petitioner has not provided a transcript of the guilty plea hearing, so we are unable to
examine the questions asked of the Petitioner prior to entering his plea. Under these circumstances,
we must conclude that the trial court did not abuse its discretion when it found that the Petitioner was
not entitled to relief on issues (1) and (2). As to issue (3), the Petitioner asserts that the trial court
failed to provide him an interpreter. This is not an appropriate ground for relief pursuant to a writ
of error coram nobis. 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
Petitioner’s inability to understand English does not qualify as “newly discovered evidence relating
to matters which were ligated.” Furthermore, it is clear from the record that the Petitioner, who is
acting pro se, is capable of writing grammatically correct and complex filings, some of which are
handwritten.
Regarding issue (4), the Petitioner asserts that the State failed to provide him exculpatory
evidence. He points to statements from the alleged victim and states “these statements had high
probative value in determining whether to so enter a plea or go to trial.” The trial court, again, did
not abuse its discretion when it found that the Petitioner was not entitled to relief on this ground.
First, the Petitioner does not attach the statements, and the statements are not in the record. Also,
the Petitioner failed to provide the contents of the statements and failed to assert how these
statements may have resulted in a different judgment.
Issue (5) regarding proper jail credits and issue (6) regarding the ineffective assistance of
counsel are not appropriate grounds for relief pursuant to a writ of error coram nobis.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the judgment of
-3-
the trial court.
___________________________________
ROBERT W. WEDEMEYER, JUDGE
-4-