Steven Tucker v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 1, 2015
STEVEN TUCKER v. STATE OF TENNESSEE
Appeal from the Circuit Court for Lauderdale County
No. 8716 Joe H. Walker, III, Judge
No. W2015-00241-CCA-R3-PC - Filed October 9, 2015
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Petitioner, Steven Tucker, was convicted of theft of property valued at $1,000 or more
but less than $10,000, a Class D felony, and was sentenced to twelve years as a career
offender. State v. Steven Van Tucker, No. W2010-01943-CCA-R3-CD, 2012 WL
1478774, at *1 (Tenn. Crim. App. Apr. 25, 2012). This court affirmed his convictions on
direct appeal. Id. Petitioner subsequently filed a petition for post-conviction relief, and
he now appeals the post-conviction court‟s denial of relief. Petitioner argues that his
Fourth Amendment rights were violated when law enforcement entered a home, which
did not belong to petitioner, with only an arrest warrant for the petitioner and that his trial
counsel was ineffective for failing to challenge the search. Following our thorough
review of the record, the parties‟ briefs, and the applicable law, we dismiss petitioner‟s
appeal as untimely.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
ROGER A. PAGE, J., delivered the opinion of the Court, in which JAMES CURWOOD WITT,
JR., and TIMOTHY L. EASTER, JJ., joined.
Billy G. Burk, District Public Defender; and David S. Stockton, Assistant District Public
Defender, for the Appellant, Steven Van Tucker.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
D. Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts from Trial
The evidence at trial showed that an unoccupied home was burglarized and that
the furniture had been removed. Steven Van Tucker, 2012 WL 1478774, at *1-2. Police
officers contacted two local furniture stores that bought and sold used furniture and found
a dining room set at Furniture Unlimited. Id. at *1. The store owner then provided law
enforcement with the carbon copy of the check made out to petitioner that the owner had
used to pay petitioner for the furniture. Id. The owner also told law enforcement that
petitioner had been driving a black Chevrolet Avalanche. Id. This court on direct appeal
stated:
[The investigator] ascertained [petitioner‟s] address and had a warrant
issued for [petitioner‟s] arrest. He went to the apartment where [petitioner]
lived with Aisha Jones, [petitioner‟s] co-defendant, and spoke to the
landlord, Raymond Proctor. Ms. Jones arrived and gave her consent for [the
investigator] to search the apartment. When [the investigator] entered the
apartment, he observed “a house full of furniture that fit the description of
the [missing] furniture . . . .
Id. at *1. As a result of this incident, petitioner was convicted of theft of property valued
at $1,000 or more but less than $10,000. Id. Petitioner subsequently filed a petition for
post-conviction relief, and he now appeals the post-conviction court‟s denial of relief.
II. Analysis
Petitioner argues that his Fourth Amendment rights were violated when law
enforcement entered a home, which did not belong to petitioner, with only an arrest
warrant and that his trial counsel was ineffective for failing to challenge the search. The
State responds that petitioner has forfeited review of his claims by filing his notice of
appeal nearly nine months late. We agree with the State.
Tennessee Rule of Appellate Procedure 4(a) states that a “notice of appeal
required by Rule 3 shall be filed with and received by the clerk of the trial court within 30
days after the date of entry of the judgment appealed from.” In this case, the post-
conviction court filed its order on April 14, 2014. Therefore, petitioner should have filed
his notice of appeal within thirty days of April 14, 2014. However, petitioner filed his
notice of appeal on February 9, 2015, nearly nine months late.
Tennessee Rule of Appellate Procedure (4)(a) provides that “in all criminal cases
the „notice of appeal‟ document is not jurisdictional and the filing of such document may
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be waived in the interest of justice. The appropriate appellate court shall be the court that
determines whether such a waiver is in the interest of justice.” “„In determining whether
waiver is appropriate, this court will consider the nature of the issues presented for
review, the reasons for and the length of the delay in seeking relief, and any other
relevant factors presented in the particular case.‟” State v. Rockwell, 280 S.W.3d 212,
214 (Tenn. Crim. App. 2007) (quoting State v. Markettus L. Broyld, No. M2005-00299-
CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005)). However,
waiver is not automatic. “If this court were to summarily grant a waiver whenever
confronted with untimely notices, the thirty-day requirement of Tennessee Rule of
Appellate Procedure 4(a) would be rendered a legal fiction.” Id. (citing Michelle Pierre
Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 63950, at *1 (Tenn. Crim. App. Feb.
13, 1996)). In this case, there is nothing in the record to show that petitioner requested
permission to file an untimely appeal or that he provided any explanation for his
untimeliness. In fact, petitioner has failed to even acknowledge that his notice of appeal
was untimely. Therefore, we conclude that the interests of justice do not necessitate
review of petitioner‟s claims, and we dismiss petitioner‟s appeal as untimely.
CONCLUSION
Based on the parties‟ briefs, the record, and the applicable law, we dismiss
petitioner‟s appeal.
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ROGER A. PAGE, JUDGE
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