Bickers v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
September 25, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
TIMOTHY BICKERS, THOMAS ) No. 03C01-9706-CR-00218
CARTER, and GREGORY HEDGES, )
)
Appellants )
) GREENE COUNTY
V. )
) HON. JAMES E. BECKNER,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
)
)
For the Appellants: For the Appellee:
Lionel R. Barrett John Knox Walkup
222 Second Avenue Attorney General and Reporter
Suite 418
Nashville, TN 37201 Peter M. Coughlan
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
C. Berkeley Bell, Jr.
District Attorney General
109 S. Main Street
Suite 501
Greeneville, TN 37743
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge
OPINION
The appellants, Timothy Bickers, Thomas Carter, and Gregory Hedges,1 appeal
as of right the dismissal in the Greene County Criminal Court of their petitions for post-
conviction relief. The trial court granted their motions to reopen, but found that the
petitions were barred by the statute of limitations and that the ground for relief was
waived. Although we conclude that the trial court erred in granting the motions to
reopen, we nevertheless affirm the trial court’s judgment dismissing the petitions for
post-conviction relief.
Appellants were convicted in 1985 of seven offenses arising out of the
aggravated kidnapping and aggravated robbery of a bank manager and his wife.
Appellants Bickers and Carter received eighty (80) year sentences and appellant
Hedges was sentenced to ninety-six (96) years. The convictions and sentences were
affirmed by this Court on direct appeal. State v. Gregory A. Hedges, Thomas D.
Carter, and Timothy Bickers, No. 252 (Tenn. Crim. App. at Knoxville, April 15, 1987),
perm. app. denied (Tenn. 1987). Appellants’ subsequently filed separate post-
conviction petitions, which were denied by the trial court. This Court affirmed the
denials of relief in Bickers’ and Carter’s cases. See Timothy Thomas Bickers v. State,
No. 03C01-9311-CR-00361 (Tenn. Crim. App. at Knoxville, January 10, 1995), perm.
app. denied (Tenn. 1995); Thomas D. Carter v. State, No. 03C01-9203-CR-69 (Tenn.
Crim. App. at Knoxville, December 17, 1992), perm. app. denied (Tenn. 1993). A
panel of this Court vacated Hedges’ grand larceny conviction, but affirmed the trial
court in all other respects. Gregory Hedges v. State, No. 03C01-9112-CR-00379
(Tenn. Crim. App. at Knoxville, March 10, 1993), perm. app. denied (Tenn. 1993).
1
App ellant s initia ted th ese proc eed ings individ ually by f iling se para te m otion s to re ope n the ir
prior post-conviction proceedings. After the trial court dismissed their post-conviction petitions, they
proc eed ed jo intly. As a res ult, we have treate d the cas e as o ne ap pea l.
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On March 26, 1997, appellants filed motions to reopen their previous post-
conviction petitions, accompanied by writs of error coram nobis. 2 Appellants alleged
due process violations at their trial based upon the district attorney’s failure to disclose
a plea agreement with accomplice Janie Riddle, who was the State’s primary witness.
The trial court entered a preliminary order granting the motions to reopen, but
summarily dismissed the petitions without holding an evidentiary hearing. The trial
court denied relief because the statute of limitations had expired for both writs of error
coram nobis and the Post-Conviction Act. The trial court further found that the ground
for relief was easily discoverable, if not known to petitioners, prior to the first petitions
and, therefore, were waived because none of the appellants raised the issue at that
time.
Appellants contend that the trial court erred in ruling that the ground for relief
had been waived. They assert that they did not learn of the concealed plea bargain
with Riddle until well after their first petitions for post-conviction relief had been
litigated. Therefore, they argue the ground may not be considered waived when they
were unaware it existed. We find it unnecessary to address appellants’ argument
because the dispositive issue is whether the trial court properly granted the motions to
reopen.
As the basis to reopen the previous petitions, each appellant submitted “that
the facts underlying the claim, if true, would establish by clear and convincing
evidence that the Petitioner is entitled to have the convictions set aside and to be
granted a new trial.” In granting the motion, the trial court stated that the motion
alleged facts which, if proven by the applicable standard of proof, would afford the
petitioner a basis for reopening the petition. An examination of the applicable statute
2
The motions to reopen stated that the basis for relief was “set forth in the attached Petition for
Writ of Error Coram Nobis/Petition for Post-Conviction Relief.” While asserting the allegations in that
man ner doe s not co mply with th e statute, it do es not alte r our dete rmina tion on the m otions to re open.
Ten n. Co de A nn. § 40-3 0-21 7(b) (199 7) (s tating that m otion shou ld be a cco mp anied by affid avit
containing the factual basis underlying the claims).
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reveals that appellants and the trial court relied upon an improper ground to reopen
the petitions.
The Post-Conviction Act of 1995 sets forth limited circumstances in which a
motion to reopen may be granted. Under Tennessee Code Annotated section 40-30-
217, a motion to reopen may be filed when:
(1) the claim in the motion is based upon a final ruling of an appellate
court establishing a constitutional right that was not recognized as
existing at the time of trial, if retrospective application of that right is
required. Such motion must be filed within one (1) year of the ruling of
the highest state appellate court or the United States supreme court
establishing a constitutional right that was not recognized as existing at
the time of trial; or
(2) the claim in the motion is based upon new scientific evidence
establishing that such petitioner is actually innocent of the offense or
offenses for which the petitioner was convicted; or
(3) the claim asserted in the motion seeks relief from a sentence that
was enhanced because of a previous conviction and such conviction in
the case in which the claim is asserted was not a guilty plea with an
agreed sentence, and the previous conviction has subsequently been
held to be invalid, in which case the motion must be filed within one (1)
year of the finality of the ruling holding the previous conviction to be
invalid; and
(4) it appears that the facts underlying the claim, if true, would establish
by clear and convincing evidence that the petitioner is entitled to have
the conviction set aside or the sentence reduced.
The motion should be denied without a hearing unless it contains factual allegations
that meet one of the enumerated statutory circumstances. Tenn. Code Ann. §40-30-
217(b). See also Fletcher v. State, 951 S.W.2d 378, 380 (Tenn. 1997).
The clear language of the statute reflects that only those events set out in the
first three subsections qualify as a basis for reopening a petition. The ground
asserted must meet the “clear and convincing” standard set forth in subsection (4).
Donald Wayne Easley v. State, No. 01C01-9609-CC-00407 (Tenn. Crim. App. at
Nashville, November 6, 1997), perm. app. denied (Tenn. 1998). Therefore, facts
described in either statutory ground (1), (2), or (3) must exist and the facts underlying
that ground must establish by clear and convincing evidence that the petitioner is
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entitled to have the conviction set aside. Subsection (4) of the statute is joined to the
preceding three grounds by the conjunctive “and;” it does not exist as an independent
ground for relief. As a result, the trial court erred in reopening the petitions based on
subsection (4) since the appellants failed to assert facts to support one of the three
statutory circumstances.
Appellants’ allegations of prosecutorial misconduct do not satisfy any of the
circumstances contemplated by the statute. Appellants have not made a showing of a
new constitutional rule requiring retrospective application, new scientific evidence, or
that a previous conviction used for sentence enhancement has been set aside. In the
absence of facts to support one of the three statutory requirements, we deny
appellants’ motions to reopen their previous post-conviction petitions.
_______________________________
William M. Barker, Special Judge
CONCUR:
____________________________
Gary R. Wade, Presiding Judge
____________________________
Joseph M. Tipton, Judge
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