Marcus Johnson v. State of Tennessee

06/26/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCUS JOHNSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 107042 Steven Wayne Sword, Judge
No. E2016-00758-CCA-R3-PC
The pro se Petitioner, Marcus Johnson, appeals as of right from the Knox County
Criminal Court’s order summarily denying his petition for post-conviction relief. The
State has filed a motion requesting that this court affirm the trial court’s denial of relief
pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following
our review, we conclude that the State’s motion is well-taken and affirm the judgment of
the Knox County Criminal Court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Marcus Johnson, Pikeville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney Genera; Charme D. Allen, District Attorney General, for the appellee, State of
Tennessee.
MEMORANDUM OPINION
On April 7, 2011, the Petitioner pleaded guilty to one count of sale of cocaine and
received an agreed sentence of 10 years to be served on probation. In December 2011,
the trial court revoked his probation and ordered him to serve his sentence in
confinement. This court affirmed the revocation on appeal. State v. Marcus Terrell
Johnson, No. E2012-00015-CCA-R3-CD, 2012 WL 3651129 (Tenn. Crim. App. Aug.
27, 2012), perm. app. denied (Tenn. Nov. 27, 2012). The Petitioner then filed an
untimely petition for post-conviction relief, the denial of which was affirmed on appeal.
Marcus Johnson v. State, No. E2013-01464-CCA-R3-PC, 2014 WL 1118018 (Tenn.
Crim. App. Mar. 20, 2014), perm. app. denied (Tenn. June 24, 2014).
In January 2016, the Petitioner filed a second petition for post-conviction relief
alleging various constitutional violations including the ineffective assistance of counsel
and an involuntary guilty plea. On January 12, 2016, the trial court summarily dismissed
the petition. The Petitioner filed an untimely notice of appeal on April 6, 2016.
Initially, the State argues that this appeal should be dismissed due to an untimely
filed notice of appeal. We acknowledge that the pro se Petitioner experienced
considerable confusion because he was proceeding on appeal with several cases
simultaneously. Therefore, we conclude that the timely filing of the notice of appeal
should be waived in this matter. Tenn. R. App. P. 4(a).
Turning now to the substantive claim of the propriety of the trial court’s summary
dismissal, we note that the Post-Conviction Procedure Act contemplates the filing of only
one petition for post-conviction relief and provides for the summary dismissal of a
subsequent petition if a previous petition has been filed and resolved on the merits. Tenn.
Code Ann. § 40-30-102(c). The Petitioner filed a previous petition for post-conviction
relief, the denial of which this court affirmed in 2014. Accordingly, the Petitioner is
barred from filing a second petition. Furthermore, the allegations in the petition would
not warrant treating the pleading as a motion to reopen a prior petition for post-conviction
relief. See Tenn. Code Ann. § 40-30-117(a). Therefore, the trial court was obliged to
dismiss summarily the petition for post-conviction relief.
Accordingly, we affirm the judgment of the Knox County Criminal Court pursuant
to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.
_________________________________
NORMA MCGEE OGLE, JUDGE
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