John Ivory v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 6, 2015

JOHN IVORY v. STATE OF TENNESSEE

Appeal from the Circuit Court for Gibson County

No. 18429 Clayburn L. Peeples, Judge

No. W2015-00636-CCA-R3-PC - Filed November 9, 2015

Following the apparent denial of his petition for post-conviction relief, the Petitioner,

John Ivory, filed a pro se motion to reconsider the denial of relief, which the post-

conviction court denied without a hearing. On appeal, the Petitioner argues that the trial

court erred in denying his motion to reconsider the denial of post-conviction relief.

Because the Petitioner does not have an appeal as of right from the denial of such motion,

we dismiss the appeal.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

John Ivory, Yazoo City, Mississippi, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;

Garry G. Brown, District Attorney General; and Hillary Lawler Parham, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

The record in this case is extremely sparse. In his brief, the Petitioner asserts that

he entered a guilty plea in 2010 to one count of “[p]ossessing and [s]elling cocaine.”1 He

claims that he entered this guilty plea, despite the fact that he was innocent of the charge,

after his attorney informed him that the confidential informant who testified against him

at his preliminary hearing likely would provide the same false testimony against him at

trial. The Petitioner asserts that he subsequently filed a post-conviction petition,

attacking this conviction based on a claim of actual innocence. He claims the post-

1

No direct appeal was filed for this conviction.

conviction court erroneously denied relief on the basis that his petition was time-barred,

despite his showing of actual innocence, which violated the United States Supreme

Court‟s decision in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013). See McQuiggin, 133

S. Ct. at 1931-34 (holding that a showing of actual innocence can overcome the one-year

statute of limitations for federal habeas corpus petitions filed under the Antiterrorism and

Effective Death Penalty Act of 1996). Significantly, neither the post-conviction petition

nor the order denying post-conviction relief is included in the appellate record. On

March 12, 2015, the Petitioner filed a pro se motion to reconsider the denial of post-

conviction relief, asserting that the post-conviction court erred in dismissing his post-

conviction petition as time-barred in its February 19, 2015 order. Citing McQuiggin, the

Petitioner argued that the post-conviction court erroneously relied on the one-year statute

of limitations in denying him post-conviction relief after he made a convincing actual

innocence claim. On March 24, 2015, the post-conviction court entered an order denying

the motion to reconsider without a hearing. On April 2, 2015, the Petitioner filed his

notice of appeal, which stated that he was appealing “the Court‟s March 23, 2015 Order

denying [his] Motion for Reconsideration of the dismissal of [his] Petition for Post-

Conviction Relief.” On April 7, 2015, the court, after having lost jurisdiction of the case

pursuant to the filing of the notice of appeal, nevertheless entered a second order stating

that it was denying the Petitioner‟s motion to reconsider based on the motion and the

record as a whole.2 The Petitioner‟s motion to reconsider, the two orders denying the

motion, and the notice of appeal are the only documents included in the technical record

on appeal.

ANALYSIS

The Petitioner states in his brief that his appeal is of right from the denial of his

motion to reconsider. To briefly summarize the procedural history of this case, the

Petitioner asserts that the post-conviction court entered an order denying post-conviction

relief on February 19, 2015. Instead of filing a notice of appeal regarding the denial of

post-conviction relief, the Petitioner, on March 12, 2015, filed a motion to reconsider the

denial of post-conviction relief. On March 24, 2015, the post-conviction court entered an

order dismissing the Petitioner‟s motion to reconsider. On April 2, 2015, the Petitioner

filed a notice of appeal from the March 24, 2015 order denying his motion to reconsider.

On April 7, 2015, the court entered a second order denying the motion to reconsider.

We note that a petitioner does not have an appeal as of right from the denial of a

motion to reconsider relief from judgment. Pursuant to Tennessee Rule of Appellate

Procedure 3(b), a criminal defendant has an appeal as of right in the following situations:

2

No explanation for the entry of this second order is apparent from the record.

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[A]n appeal as of right by a defendant lies from any judgment of conviction

entered by a trial court from which an appeal lies to the Supreme Court or

Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a plea of

guilty or nolo contendere, if the defendant entered into a plea agreement but

explicitly reserved the right to appeal a certified question of law dispositive

of the case pursuant to and in compliance with the requirements of Rule

37(b)(2)(A) or (D) of the Tennessee Rules of Criminal Procedure, or if the

defendant seeks review of the sentence and there was no plea agreement

concerning the sentence, or if the issues presented for review were not

waived as a matter of law by the plea of guilty or nolo contendere and if

such issues are apparent from the record of the proceedings already had.

The defendant may also appeal as of right from an order denying or

revoking probation, an order or judgment entered pursuant to Rule 36 or

Rule 36.1, Tennessee Rules of Criminal Procedure, from a final judgment

in a criminal contempt, habeas corpus, extradition, or post-conviction

proceeding, and from a final order on a request for expunction.

Tenn. R. App. P. 3(b) (emphasis added); see also T.C.A. § 40-30-116 (“The order

granting or denying relief under this part shall be deemed a final judgment, and an appeal

may be taken to the court of criminal appeals in the manner prescribed by the Tennessee

Rules of Appellate Procedure.” (emphasis added)); Michael Joe Boyd v. State, No.

W1999-01981-CCA-R3-PC, 1999 WL 33261797, at *5 (Tenn. Crim. App. Dec. 21,

1999) (citing Tony Craig Woods v. State, No. 01C01-9606-CR-00238, 1997 WL 602865,

at *2 (Tenn. Crim. App., at Nashville, Sept. 30, 1997)) (“[A] motion for reconsideration

is not expressly authorized in a post-conviction procedures proceeding”); State v. Ryan,

756 S.W.2d 284, 285 n.2 (Tenn. Crim. App. 1988) (“[T]here is no provision in the

Tennessee Rules of Criminal Procedure for a „petition to reconsider‟ or a „petition to

rehear.‟” (citation omitted)).

We also note that a motion to reconsider does not toll the thirty-day filing period

for an appeal from an order denying post-conviction relief. See Michael Joe Boyd, 1999

WL 33261797, at *6; Sherman McDowell v. State, No. 62, 1991 WL 139727, at *2

(Tenn. Crim. App., at Jackson, July 31, 1991). A motion to reconsider is not one of the

specified motions in Tennessee Rule of Appellate Procedure 4(c). See Tenn. R. App. P.

4(c) (“In a criminal action, if a timely motion or petition under the Tennessee Rules of

Criminal Procedure is filed in the trial court by the defendant: (1) under Rule 29(c) for a

judgment of acquittal; (2) under Rule 32(a) for a suspended sentence; (3) under Rule

32(f) for withdrawal of a plea of guilty; (4) under Rule 33(a) for a new trial; or (5) under

Rule 34 for arrest of judgment, the time for appeal for all parties shall run from entry of

the order denying a new trial or granting or denying any other such motion or petition.”).

In fact, “no post-judgment motions are permitted to suspend the running of the appeal

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time from the entry of the judgment in a post-conviction proceeding.” Michael Joe Boyd,

1999 WL 33261797, at *6 (citing State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App.

1992)). By the Petitioner‟s own timeline, the order denying him post-conviction relief

was entered on February 19, 2015. Because his motion to reconsider did nothing to toll

the thirty-day filing period, the order denying post-conviction relief would appear to have

become final on March 23, 2015.

Tennessee Rule of Appellate Procedure 4(a) states that “the 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 . . . .” However, this rule also

states that “in all criminal cases the „notice of appeal‟ document is not jurisdictional and

the filing of such document may be waived in the interest of justice.” Tenn. R. App. P.

4(a); see State v. Scales, 767 S.W.2d 157, 158 (Tenn. 1989) (“For purposes of Rule 4(a),

Tenn. R. App. P., post-conviction proceedings are criminal in nature and the notice of

appeal may be waived „in the interest of justice.‟”). We note that “„[i]n 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)). “Waiver is

not automatic and should only occur when „the interest of justice‟ mandates waiver. 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., at Nashville, Feb. 13, 1996)).

Here, the Petitioner filed a notice of appeal on April 2, 2015, almost two weeks

after the order denying post-conviction relief apparently became final. As we previously

noted, this court has the authority to waive “in the interest of justice” the timely filing of

the Petitioner‟s notice of appeal. See Tenn. R. App. P. 4(a). However, the Petitioner has

not explained why he did not ensure that his post-conviction petition and the order

denying post-conviction relief were included in the record on appeal or why he did not

file his notice of appeal within thirty days of the order denying post-conviction relief. In

addition, he has not clarified how waiving the thirty-day deadline serves the interest of

justice. After considering the nature of the issues presented for review by the Petitioner,

we determine that the interest of justice does not necessitate a review of the Petitioner‟s

claims. See T.C.A. §§ 40-30-106(b) (requiring a trial court to summarily dismiss a post-

conviction petition if it plainly appears on the face of the petition that it was filed outside

the one-year statute of limitations), 40-30-102(b) (delineating the three exceptions to the

one-year statute of limitations for post-conviction relief). Therefore, the appeal is

dismissed.

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CONCLUSION

Based on the aforementioned authorities and reasoning, the appeal is dismissed.

_________________________________

CAMILLE R. McMULLEN, JUDGE

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