Willie Seay v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9712-CR-00570
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED NOVEMBER 1998 SESSION December 8, 1998

Cecil W. Crowson Appellate Court Clerk WILLIE ROBERT SEAY, ) ) NO. 01C01-9712-CR-00570 Appellant, ) ) WILSON COUNTY VS. ) ) HON. J. O. BOND, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIE ROBERT SEAY, Pro Se JOHN KNOX WALKUP #141848 Attorney General and Reporter Unit 6-A-102 Riverbend Maximum Security Prison CLINTON J. MORGAN 7475 Cockrill Bend Industrial Road Assistant Attorney General Nashville, TN 37209-1010 Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

TOM P. THOMPSON, JR. District Attorney General

DAVID DURHAM Assistant District Attorney General 111 Cherry Street Lebanon, TN 37087-3609

OPINION FILED:

APPEAL DISMISSED

JOE G. RILEY, JUDGE OPINION

The petitioner, Willie Robert Seay, appeals the trial court’s summary

dismissal of his petition for post-conviction relief. The petitioner claims the trial

court erred in dismissing his petition for post-conviction relief and presents the

following issues for review:

(1) whether the evidence presented at trial was sufficient to support his convictions;

(2) whether trial counsel was deficient in stipulating that the substance sold by the petitioner was cocaine;

(3) whether trial counsel was ineffective in stipulating as to the amount of cocaine sold; and

(4) whether trial counsel was ineffective in stipulating “that the drugs alleged to have been sold by the defendant existed.”

As explained in detail below, the petitioner has waived consideration of these

issues because he failed to timely file notice of appeal. However, were the

issues not considered waived, we note the issues presented were previously

determined on direct appeal.

PROCEDURAL HISTORY

The petitioner was convicted by a jury in 1994 on two (2) counts of the

sale of cocaine over ½ gram, Class B felonies. Those convictions were affirmed

by this Court on direct appeal. State v. Willie Robert Seay, C.C.A. No. 01C01-

9506-CC-00162, Wilson County (Tenn. Crim. App. filed February 23, 1996, at

Nashville). The Tennessee Supreme Court subsequently denied permission to

appeal.

The petitioner timely filed a pro se petition for post-conviction relief on

April 4, 1997. The trial court dismissed the petition May 8, 1997, for failure to

present a colorable claim, finding the issues having been previously determined

2 on direct appeal. The petitioner filed a notice of appeal on October 1, 1997.

DISPOSITION

Firstly, the notice of appeal from the dismissal of the post-conviction

petition was not timely filed. A notice of appeal is required to be filed within thirty

(30) days of the date of the entry of judgment or order from which relief is

sought. Tenn. R. App. P. 4(a). The petitioner filed his notice over four (4)

months after entry of the trial court’s order. 1 The appeal is time-barred and

should be dismissed.

Secondly, the grounds for relief in this appeal were “previously

determined” by a court of competent jurisdiction. See Tenn. Code Ann. § 40-30-

206(h). As sufficiency of the evidence and ineffective assistance of counsel

were expressly raised and decided on direct appeal, they have been “previously

determined.” See House v. State, 911 S.W.2d 705, 711 (Tenn. 1995).

Accordingly, the appeal is DISMISSED.

1 Tenn. R. App. P. 4(a) does authorize our waiver of the requirement of timely filing “in the interest of justice.” However, as the petitioner’s issues were previously determined on direct appeal, the interest of justice does not require waiver of timely filing. Furthermore, no reason for the untimely filing has been advanced by petitioner. See State v. Ted Ray Brannan, C.C.A. No. 01C01-9704- CC-00148, Franklin County (Tenn. Crim. App. filed May 15, 1998, at Nashville).

3 _________________________ JOE G. RILEY, JUDGE

CONCUR:

_____________________________ PAUL G. SUMMERS, JUDGE

_____________________________ L.T. LAFFERTY, SENIOR JUDGE