Glenn D. Gold v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 18, 2002
GLENN D. GOLD v. STATE OF TENNESSEE
Appeal from the Circuit Court for Montgomery County
Nos. 029207, 029387, and 030610 John H. Gasaway, III, Judge
No. M2001-02759-CCA-R3-CO - Filed December 20, 2002
Glenn D. Gold1 appeals from the Montgomery County Circuit Court’s dismissal of his pro se petition
in which he seeks post-conviction, habeas corpus, and coram nobis relief. Because his attempts to
receive post-conviction and coram nobis relief are untimely and his attempt for habeas corpus relief
does not state a claim cognizable in that type of action, we affirm the lower court.
Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODA LL,
J., joined. ROBERT W. WEDEMEYER , J., not participating.
Glenn D. Gold, Pro Se.
Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney
General; John Carney, District Attorney General; and Jennifer L. Smith, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
According to the pro se petition filed in this case, the petitioner is serving a federal
sentence of life plus five years for various federal drug and firearm offenses. The petitioner’s federal
sentence was enhanced based upon prior state convictions. Although the petitioner has not included
some of the judgments for his prior state convictions in the record, he alleges they are as follows:
(1) Misdemeanor assault, May 8, 1989, sentence of eleven months, 29 days;
(2) Simple possession, May 25, 1990, no sentence specified;2
(3) Attempted sale of controlled substance, January 14, 1992, four years; and
1
At least one of the petitioner’s convictions is under the name Glendale Gold.
2
A federal presentence report contained in the record indicates an eleven-month, 29-d ay sentence for this
conviction.
(4) Delivery of controlled substance, November 23, 1992, four years.
The petitioner seeks relief from these convictions on various bases. First, he claims
that his guilty pleas were in violation of his Fifth and Fourteenth Amendment rights because he was
not advised of his constitutional rights prior to entering the pleas. Particularly, he is aggrieved that
he was not advised of the possibility of future federal sentence enhancement based upon these state
convictions. Second, he claims that two of the indictments are insufficient because they do not
allege a quantity of drugs. These allegations pertain to the two 1992 drug convictions. Finally, he
complains that he was not provided the effective assistance of counsel in the guilty plea proceedings
in that counsel failed to advise him in each instance of his constitutional rights.
Upon receiving the petition, the lower court summarily dismissed it without a hearing
and without making any findings as to the basis of the dismissal. The petitioner thereafter filed this
appeal.
The issue before us is whether the lower court’s summary dismissal was proper. For
the reasons that follow, we hold that it was.
To the extent that the petition seeks relief from a void or voidable judgment under
the auspices of the Post-Conviction Procedures Act, it is untimely. Actions thereunder must be
brought within one year of the affected judgment’s finality. See Tenn. Code Ann. § 40-30-202(a)
(1997). Although there are certain exceptions to the statute of limitations, the petitioner has not
demonstrated that he is entitled to otherwise untimely consideration of his claims. See id. § 40-30-
202(b) (1997); see also id. § 40-30-201 (1997) (Compiler’s Notes); Joy Nelson v. State, No. W1999-
01885-CCA-R3-PC (Tenn. Crim. App., Jackson, Dec. 20, 1999).
Likewise, to the extent that the petitioner seeks the benefit of a writ of error coram
nobis, his claim is time barred. The statute of limitations for that form of relief is likewise one year
from a judgment’s finality. See Tenn. Code Ann. § 27-7-103 (2000). Moreover, the petitioner has
not demonstrated the applicability of any basis upon which he might be excused from the statute of
limitations bar. See generally Workman v. State, 41 S.W.3d 100 (Tenn. 2001) (due process may toll
statute of limitations where petitioner facing death penalty seeks to present claim of newly
discovered evidence). Additionally, we are compelled to note that none of the issues raised by the
petitioner falls within the general framework for coram nobis relief. See generally Tenn. Code Ann.
§ 40-26-105 (1997) (writ of error coram nobis available for “subsequently or newly discovered
evidence relating to matters which were litigated at the trial”) (emphasis added).
The only remaining avenue for relief, then, is by petition for writ of habeas corpus.
The writ addresses detentions that result from void judgments or expired sentences. See Archer v.
State, 851 S.W.2d 157, 164 (Tenn. 1993). The only claim that the petitioner has raised which might
potentially warrant habeas corpus relief is that of the sufficiency of the indictments in the two 1992
drug cases. The claim of a void indictment is an attack upon the trial court’s jurisdiction and is
justiciable in an action for habeas corpus relief. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000);
-2-
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998) (habeas corpus relief appropriate if
indictment is so deficient as to deprive trial court of jurisdiction). Our review is de novo. Hart, 21
S.W.3d at 903 (“whether to grant the petition [for habeas corpus relief] is a question of law that we
review de novo”); State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (question of law reviewed on
appeal de novo).
Unfortunately for the petitioner, his claim must fail. In State v. Pettus, 986 S.W.2d
540 (Tenn. 1999), our supreme court rejected a similar claim of a defendant who pleaded guilty to
Class B felony cocaine possession pursuant to an indictment that failed to specify the quantity
possessed. When the defendant’s Community Corrections sentence was later revoked, he then
claimed that because the indictment had not alleged the quantity possessed, his Class B sentence was
illegal. Id. at 542. He posited that he could be punished for possessing no more than the quantity
required for a Class C felony, a Class C felony being the least offense proscribed by the relevant
statute. Id. In rejecting the defendant’s claim, the supreme court relied upon well-settled law
regarding the effect of guilty pleas on defects and irregularities in the charging instrument. See id.In the words of the court, “[T]he voluntary entry of an informed and counseled guilty plea constitutes
an admission of all facts necessary to convict and waives all non-jurisdictional defects and
constitutional irregularities which may have existed prior to the entry of the guilty plea.” Id. The
court found this law controlling of the defendant’s challenge to the legality of his sentence. Id.; see
also State v. Ralph Cedrick Allen, No. 01C01-9612-CC-00538 (Tenn. Crim. App., Nashville, Mar.
5, 1998).
We believe this law is equally controlling of the petitioner’s attempt to obtain habeas
corpus relief in the instant case. By the petitioner’s own admission, his drug convictions resulted
from his guilty pleas. His allegations further reveal that he was represented by counsel on these
offenses. By entry of his guilty pleas, he admitted the facts required to support a conviction and
waived all non-jurisdictional defects and irregularities in the charges.3 Pursuant to Pettus, any
irregularities in the complained-of indictments were not jurisdictional. Having chosen the guilty
pleas, petitioner cannot now complain that the indictments did not specify the amount of drugs
possessed.
For all of these reasons, we affirm the lower court’s dismissal of the petition.
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
3
The transcripts of the petitioner’s guilty pleas are not contained in the record. However, signed guilty plea
agree ments and o rders accepting the guilty pleas are part of the technical reco rd.
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