Randall Allen Cantrell v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST SESSION, 1999 September 9, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
RANDALL ALLEN CANTRELL, )
) No. 01C01-9902-CR-00050
Appellant, )
) SUMNER COUNTY
vs. )
) Hon. Jane W. Wheatcraft, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
For the Appellant: For the Appellee:
Randall Allen Cantrell, Pro Se Paul G. Summers
Reg. #14900-075 Attorney General and Reporter
F.C.I. Manchester
P. O. Box 4000 Elizabeth B. Marney
Manchester, KY 40962 Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
OPINION FILED:
AFFIRMED
David G. Hayes, Judge
OPINION
The appellant, Randall Allen Cantrell, appeals the order of the Sumner
County Criminal Court dismissing his pro se petition for post-conviction relief. In this
appeal, the appellant raises multiple issues which collectively challenge the trial
court’s summary dismissal of the petition as being time-barred.1
As alleged in the appellant’s petition for post-conviction relief, during the
spring term of 1989, a Sumner County Grand Jury returned an indictment against
the appellant, charging him with nine counts of concealing stolen property and
possession of marijuana. On November 30, 1989, the case proceeded to trial
where a jury found the appellant guilty of two counts of concealing stolen property
and one count of possession of marijuana. The appellant was found not guilty of
the remaining six counts. The trial court, on March 2, 1990, sentenced the appellant
to an effective sentence of six years. No direct appeal was taken.2
Subsequently, on April 22, 1996, the appellant pled guilty in the federal
district court for the Middle District of Tennessee to seven drug-related offenses.
Pursuant to federal sentencing guidelines, the appellant’s Tennessee state
convictions were used to enhance the sentences resulting from his subsequent
federal convictions.3 The appellant is presently incarcerated at the Federal
Correctional Institution in Manchester, Kentucky.
1
Specifically, the appellant contends that the trial court erred by (1) not appointing counsel
prior to dismissing the petition; (2) not directing the State to provide the record in this case; and
(3) dismissing the petition without ruling on the merits.
2
On F ebru ary 4, 1 991 , the a ppe llant w as pa roled . He w as dis cha rged from paro le on J uly
9, 1995.
3
In accordance with Federal Sentencing Guidelines, the appellant received five criminal
history points for his Tennessee convictions as well as for the fact that the federal offenses we re
com mitted w hile on paro le for the T ennes see co nvictions. See gene rally 28 U.S.C.A. § 994(a)
(We st 1993); Federal Sentencing G uidelines §§ 4A1.2 (1995).
2
On February 9, 1998, the appellant filed a pro se petition for post-conviction
relief alleging : (1) the fine imposed by the trial court was excessive; (2) the court
erroneously admitted evidence of the appellant’s prior conviction; (3) the appellant
was denied the opportunity to present mitigating factors at the sentencing hearing;
(4) the court erred by failing to advise the appellant of his right to appeal; 4 and (5)
the court erred by failing to ask the appellant if he wished to make a statement on
his own behalf.5 On March 11, 1998, the trial court dismissed the petition as being
time-barred.
The appellant's convictions became final on April 2, 1990. Thus, under the
Post-Conviction Act in effect at that time, the appellant had until April 2, 1993, in
which to file a post-conviction petition. Tenn. Code Ann. § 40-30-102 (repealed
1995). The appellant did not file the instant petition until February 9, 1998, well
outside the applicable limitations period. See generally Carter v. State, 952 S.W.2d
417, 418 (Tenn.1997). Moreover, the appellant has failed to assert any claim that
would qualify as an exception to the statute of limitations. See Tenn. Code Ann. §
40-30-202 (1997). Summary dismissal of a pro se post-conviction petition filed
beyond the three (3) year statute of limitations has been affirmed on numerous
occasions, even without appointment of counsel. See Tenn. Code Ann. § 40-30-
206(b) (1997). See, e.g., Frederick v. State, 906 S.W.2d 927, 930 (Tenn. Crim.
App. 1993); Edward Earl Jones v. State, No. 02C01-9607-CR-00226 (Tenn. Crim.
App. at Jackson, Aug. 27, 1997), perm. to appeal denied, (Tenn. Dec. 8, 1997).
Accordingly, summary dismissal of the appellant’s petition was proper.
4
We note that the appellant’s petition alleges only that the trial court failed to advise him of
his right to appeal, while the appellant’s brief submitted to this court expands this issue to include
that h is cou nse l was ineff ective for fa iling to a dvise him of his right to direc t app eal.
5
The appellant also contends that he was denied effective assistance of counsel
regarding his federal convictions because counsel failed to advise him that his Tennessee
convictions could be used to enhance his federal sentence. This issue is cognizable in a petition
for a federal writ of habeas corpus. Counsel’s alleged ineffectiveness does not in any way affect
the appe llant’s Ten nesse e convic tions or se ntence s.
3
In addition to finding the petition time-barred, we note that non-constitutional
error cannot be addressed under the Post-Conviction Procedure Act. See Tenn.
Code Ann. § 40-30-203 (1997). Only one of the claims listed in the appellant’s pro
se petition alleges an abridgement of a constitutional right, i.e., denial of right to
direct appeal, which is now barred by the statute of limitations. 6 See also Tenn.
Code Ann. § 40-30-213 (1997). Thus, even had the petition not been time-barred,
the majority of the appellant’s claims were not cognizable in a post-conviction
petition.7
Finally, the appellant contends that, even if his petition was time-barred under
the Post-Conviction Procedure Act, the petition could have been heard under Tenn.
Code Ann. § 40-26-105 (1997). We find this argument misplaced. The writ of error
coram nobis is an exceedingly narrow remedy appropriate only when an issue was
not addressed or could not have been addressed at trial because it was somehow
hidden or unknown and would have prevented the rendition of the judgment had it
been known to the court. See Tenn. Code Ann. § 40-26-105; State v. Hart, 911
S.W.2d 371, 374 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995).
Moreover, the writ will only issue one year after the judgment becomes final. Tenn.
Code Ann. § 27-7-103 (1980). Accordingly, relief through application for issuance of
this writ is not available to the appellant.
For the reasons discussed herein, the judgment of the trial court dismissing
the appellant’s petition for post-conviction relief is affirmed.
6
There is no constitutional right to appeal, but where appellate review is provided by
statute, the procee dings m ust com port with co nstitutional sta ndards of due p rocess . State v.
Gilles pie, 898 S.W .2d 738, 741 (Tenn.Crim .App.1994) (citations omitted).
7
A majority of the appellant’s allegations challenge the sentence imposed by the trial
court. “There is no appellate review of the sentence in a post-conviction or habeas corpus
proceeding.” See Tenn. Code A nn. § 40-35-401 (1997).
4
____________________________________
DAVID G. HAYES, Judge
CONCUR:
________________________________________
JOE G. RILEY, Judge
________________________________________
L. T. LAFFERTY, Senior Judge
5