Charles Orlando Fields v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 6, 2014
CHARLES ORLANDO FIELDS v. STATE OF TENNESSEE
Appeal from the Circuit Court for Obion County
No. 3-03 William B. Acree, Jr., Judge
No. W2013-02516-CCA-R3-PC - Filed August 13, 2014
The pro se petitioner, Charles Orlando Fields, appeals the denial of his motion to reopen his
post-conviction petition. Because he failed to comply with the statutory requirements for
seeking review of a dismissal of a motion to reopen a post-conviction petition, we dismiss
the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
C AMILLE R. M CM ULLEN, J., joined.
Charles Orlando Fields, Mountain City, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; and Thomas A. Thomas, District Attorney General, for the appellee, State
of Tennessee.
OPINION
FACTS and PROCEDURAL HISTORY
In 2000, the petitioner, following an earlier mistrial, was convicted by an Obion
County Circuit Court jury of selling and distributing one-half gram or more of cocaine within
one thousand feet of a school zone, a Class A felony. After merging the distributing
conviction into the sale conviction, the trial court sentenced him as a Range II, multiple
offender to thirty-three years in the Department of Correction. This court subsequently
affirmed the conviction and sentence. See State v. Charles Orlando Fields, No. W2001-
00124-CCA-R3-CD, 2002 WL 1558575, at *1 (Tenn. Crim. App. Jan. 2, 2002); Charles
Orlando Fields v. State, No. W2003-02051-CCA-R3-PC, 2004 WL 1405012, at *1 (Tenn.
Crim. App. June 23, 2004), perm. app. denied (Tenn. Dec. 20, 2004). At the conclusion of
the trial, the petitioner’s retained counsel was allowed to withdraw from representation and
the trial court appointed different counsel, the petitioner’s attorney from his first trial, who
represented the petitioner at the sentencing hearing and in the motion for new trial. See id.
at *3. According to the testimony of appointed counsel at the post-conviction evidentiary
hearing, a contract public defender represented the petitioner on direct appeal. Id.
The petitioner raised a claim of ineffective assistance of counsel in his motion for new
trial, but failed to raise the trial court’s denial of that claim as an issue in his direct appeal.
Id. at *2. He later filed a petition for post-conviction relief, again raising a claim of
ineffective assistance of counsel. The post-conviction court denied the petition on the
grounds that the claim was waived. This court affirmed the judgement of the post-conviction
court, and our supreme court denied his application for permission to appeal. Id. at *1.
On September 6, 2013, the petitioner filed a motion to reopen his post-conviction
petition alleging newly discovered scientific evidence establishing his innocence of the
crime. Specifically, he asserted that the evidence would show that appointed counsel “made
a perjuring statement in [c]ourt at [p]etitioner’s [p]ost-[c]onviction [h]earing when he stated
that he was not the [p]etitioner’s counsel on [d]irect [a]ppeal.” On September 20, 2013, the
post-conviction court entered an order denying the motion on the basis that it failed to state
a ground that would entitle the petitioner to relief.
On October 3, 2013, the petitioner filed a “Notice” in the Obion County Circuit Court
in which he requested a thirty-day extension of time in order to file a motion to “alter and
amend the petition.” On October 15, 2013, the petitioner filed a “Notice of Appeal” in the
Obion County Circuit Court in which he stated that he was appealing to the Court of
Criminal Appeals the trial court’s denial of his motion to reopen his post-conviction petition.
Finally, on November 4, 2013, the petitioner filed in the Obion County Circuit Court an
amended “Notice of Appeal” stating that he was appealing the trial court’s denial of his
motion to reopen his post-conviction petition pursuant to “Public Records Act[] of Newly
discovered evidence.” The “Notice of Appeal” contained no other information regarding his
claim.
ANALYSIS
The State argues that the appeal is not properly before this court because the petitioner
failed to comply with the statutory requirements for seeking review of a denial of a motion
to reopen a post-conviction petition. The State further argues that the motion was properly
dismissed by the post-conviction court because the petitioner failed to allege a ground upon
which a motion to reopen should be granted. We agree.
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A petitioner has no appeal as of right from a lower court’s denial of his motion to
reopen a post-conviction petition. See Tenn. R. App. P. 3(b); Mack Transou v. State, No.
W2010-01313-CCA-R3-PC, 2011 WL 1220398, at *2 (Tenn. Crim. App. Mar. 31, 2011),
perm. app. denied (Tenn. July 15, 2011); Timothy Roberson v. State, No.
W2007-00230-CCA-R3-PC, 2007 WL 3286681, at *9 (Tenn. Crim. App. Nov. 7, 2007),
perm. app. denied (Tenn. Apr. 14, 2008); Miko T. Burl v. State, No.
W2005-01640-CCA-R3-PC, 2006 WL 3371395, at *1 (Tenn. Crim. App. Nov. 17, 2006).
The statute governing motions to reopen post-conviction petitions provides that “[i]f the
motion is denied, the petitioner shall have thirty (30) days to file an application in the court
of criminal appeals seeking permission to appeal. The application shall be accompanied by
copies of all the documents filed by both parties in the trial court and the order denying the
motion.” Tenn. Code Ann. § 40-30-117(c) (2010); see also Tenn. Sup. Ct. R. 28, § 10(B);
Graham v. State, 90 S.W.3d 687, 689 (Tenn. 2002) (“Accordingly, Tenn. Code Ann. §
40-30-217(c) outlines four requirements for an appeal from a motion to reopen to be
considered: (1) the timeliness of filing, (2) the place of filing, (3) the application to be filed,
and (4) the attachments to the application.”).
The petitioner filed a notice of appeal in the trial court rather than an application for
permission to appeal to this court. Although a notice of appeal may be construed as an
application for permission to appeal if it “contain[s] sufficient substance that it may be
effectively treated as an application for permission to appeal,” see Graham, 90 S.W.3d at 691,
we conclude that the petitioner’s “Notice of Appeal,” which did not include attachments of
the documents filed by the parties, the trial court’s order, or any specifics regarding the issue
the petitioner was attempting to raise, does not contain sufficient substance to be effectively
treated as an application for permission to appeal. Moreover, even if the petitioner had
complied with the procedural requirements, we would affirm the dismissal of the motion, as
the petitioner’s claim that his retained counsel perjured himself at the evidentiary hearing does
not constitute newly discovered scientific evidence establishing the petitioner’s actual
innocence of the offense. See Tenn. Code Ann. § 40-30-117(a)(2).
CONCLUSION
Because the petitioner failed to comply with the statutory requirements for seeking
discretionary review of the denial of his motion to reopen the post-conviction petition, we lack
jurisdiction in this case. Accordingly, the appeal is dismissed.
_________________________________
ALAN E. GLENN, JUDGE
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