Coker v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 24, 1998
• Docket: 03C01-9611-CR-00437
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 March 24, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

ROCKY LEE COKER, ) C.C.A. NO. 03C01-9611-CR-00437 ) Appe llant, ) ) HAMILTON COUNTY V. ) ) ) HON. DOUGLAS E. MEYER, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-C ONVIC TION)

FOR THE APPELLANT: FOR THE APPELLEE:

ROC KY LE E CO KER , pro se JOHN KNOX WALKUP #1080 69, ST SRC F, Unit 6 Attorney General & Reporter Route 4, Box 600 Pikeville, TN 37367 MARVIN E. CLEMENTS, JR. Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

WILLIAM COX District Attorn ey Ge neral 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION

The Petitioner, Rocky Lee Coker, appeals from the order dismissing his pro

se petition for post-conviction relief in the Criminal Court for Hamilton County. The

trial court found that Pe titioner’s grounds for relief have been previously determined

or waived, and that Petitioner did not allege any ground for relief which was created

or arose after his prior p ost-co nviction petition s were heard . In this a ppea l,

Petitioner contends tha t the trial c ourt er red in d ismiss ing his petition on the basis

of Tennessee Code Annotated section 40-30-202(a) and on the trial court’s failure

to allow Pe titioner to am end his p etition or to su bmit pro of. We affirm the judgment

of the trial cou rt.

Petitioner pled guilty to aggravated assault on January 5, 1979 and was

convicted of felonious consp iracy to comm it an illegal act c apable of destroy ing life

or property and felonious possession of explosives in 1981. Petitioner filed a direct

appeal from his 1981 convictions, and both convictions were affirmed. Petitioner

then filed petitions for post-conviction relief on both the 1979 and 1981 convictions

on the basis of an involuntary guilty plea, ineffective assistance of counsel and

prosecutorial misconduct. The trial court denied relief on the 1979 conviction but

granted a new trial on the 1981 convictions. A panel of this court then reversed the

grant of a new trial and affirmed the denial of the post-conviction relief for the 1979

conviction. See Coke r v. State, 911 S.W.2d 357 (Tenn. Crim. App. 1 995). O n Apr il

29, 1996, Petitioner filed a second petition for post-conviction relief, and, following

preliminary review, the trial court dismissed the petition. It is this dismissal that

Petitione r appea ls to our co urt.

-2- “In post conviction relief proceedings the petitioner has the burden of proving

the allegations in his petition by a preponderance of the evidence .” McBee v. State,

655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of

the trial cou rt in hea rings “are conclusive on appeal unless the evidence

preponderates against the judgme nt.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.

Crim. App . 1983).

At the time of Petitioner’s 1979 and 1981 convictions, Tennessee Code

Annotated section 40-30-102 was not yet in effect. After the Post-Conviction Act

came into effect on July 1, 1986, Petitioner had a three (3) year period to file a post-

conviction petition. Tenn. Code Ann. § 40-30-102 (repealed 1995). The statute of

limitatio n expired on July 1, 198 9 for both conviction s. See Abston v. State, 749

S.W .2d 487 (Tenn . Crim. A pp. 198 8).

In 1995, the legislature reduced the statutory period for filing post-conviction

petitions from three (3) years to one (1) year. Tenn. Code Ann. § 40-30-202(a)

(1997 Repl.). Petitioner claims that under the new provisions of the Post-Conviction

Procedures Act, he has an additional one (1) year period to file his post-conviction

petition. In a recen t case, our supreme court held that the 1995 Post-Conviction

Procedures Act was intended to restrict the time and opportunity to see k post-

conviction relief and was not intended to allow additional time for petitioners whose

claims were alre ady barre d by the p rior statute o f limitations. Carter v. S tate, 952

S.W .2d 417 (Tenn . 1997). T his issue has no merit.

In addition, the trial court dismissed the petition on the grounds that

Petitioner’s grounds for relief had been previously determined or waived. Tenn.

-3- Code Ann. § 40-30-206(b) an d (g). In add ition to the trial co urt’s determ ination, a

panel of this cou rt has p reviou sly dec ided th at Petitio ner’s plea was knowingly and

volunta rily entered and that there was no prejudice resulting from any deficie ncy in

the perform ance o f Petitioner’s trial co unsel. Coker, 911 S.W.2d at 363-371.

Petitioner has not put forth any evidence which preponderates against the findings

of the trial court or demonstrated any grounds for relief which arose or was created

after his first petition for post-conviction relief was heard. Tenn. Code Ann. § 40-30-

206(g)(1 ). This issu e has n o merit.

After a review of the record and the applicable law, we affirm the judgment of

the trial cou rt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ WILLIAM B. ACREE, JR., Judge

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