Willie Seay v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
December 8, 1998
Cecil W. Crowson
Appellate Court Clerk
WILLIE ROBERT SEAY, )
) NO. 01C01-9712-CR-00570
Appellant, )
) WILSON COUNTY
VS. )
) HON. J. O. BOND,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIE ROBERT SEAY, Pro Se JOHN KNOX WALKUP
#141848 Attorney General and Reporter
Unit 6-A-102
Riverbend Maximum Security Prison CLINTON J. MORGAN
7475 Cockrill Bend Industrial Road Assistant Attorney General
Nashville, TN 37209-1010 Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
TOM P. THOMPSON, JR.
District Attorney General
DAVID DURHAM
Assistant District Attorney General
111 Cherry Street
Lebanon, TN 37087-3609
OPINION FILED:
APPEAL DISMISSED
JOE G. RILEY,
JUDGE
OPINION
The petitioner, Willie Robert Seay, appeals the trial court’s summary
dismissal of his petition for post-conviction relief. The petitioner claims the trial
court erred in dismissing his petition for post-conviction relief and presents the
following issues for review:
(1) whether the evidence presented at trial was
sufficient to support his convictions;
(2) whether trial counsel was deficient in stipulating
that the substance sold by the petitioner was cocaine;
(3) whether trial counsel was ineffective in stipulating
as to the amount of cocaine sold; and
(4) whether trial counsel was ineffective in stipulating
“that the drugs alleged to have been sold by the
defendant existed.”
As explained in detail below, the petitioner has waived consideration of these
issues because he failed to timely file notice of appeal. However, were the
issues not considered waived, we note the issues presented were previously
determined on direct appeal.
PROCEDURAL HISTORY
The petitioner was convicted by a jury in 1994 on two (2) counts of the
sale of cocaine over ½ gram, Class B felonies. Those convictions were affirmed
by this Court on direct appeal. State v. Willie Robert Seay, C.C.A. No. 01C01-
9506-CC-00162, Wilson County (Tenn. Crim. App. filed February 23, 1996, at
Nashville). The Tennessee Supreme Court subsequently denied permission to
appeal.
The petitioner timely filed a pro se petition for post-conviction relief on
April 4, 1997. The trial court dismissed the petition May 8, 1997, for failure to
present a colorable claim, finding the issues having been previously determined
2
on direct appeal. The petitioner filed a notice of appeal on October 1, 1997.
DISPOSITION
Firstly, the notice of appeal from the dismissal of the post-conviction
petition was not timely filed. A notice of appeal is required to be filed within thirty
(30) days of the date of the entry of judgment or order from which relief is
sought. Tenn. R. App. P. 4(a). The petitioner filed his notice over four (4)
months after entry of the trial court’s order. 1 The appeal is time-barred and
should be dismissed.
Secondly, the grounds for relief in this appeal were “previously
determined” by a court of competent jurisdiction. See Tenn. Code Ann. § 40-30-
206(h). As sufficiency of the evidence and ineffective assistance of counsel
were expressly raised and decided on direct appeal, they have been “previously
determined.” See House v. State, 911 S.W.2d 705, 711 (Tenn. 1995).
Accordingly, the appeal is DISMISSED.
1
Tenn. R. App. P. 4(a) does authorize our waiver of the requirement of
timely filing “in the interest of justice.” However, as the petitioner’s issues were
previously determined on direct appeal, the interest of justice does not require
waiver of timely filing. Furthermore, no reason for the untimely filing has been
advanced by petitioner. See State v. Ted Ray Brannan, C.C.A. No. 01C01-9704-
CC-00148, Franklin County (Tenn. Crim. App. filed May 15, 1998, at Nashville).
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_________________________
JOE G. RILEY, JUDGE
CONCUR:
_____________________________
PAUL G. SUMMERS, JUDGE
_____________________________
L.T. LAFFERTY, SENIOR JUDGE
4