Tornita N. Crenshaw v. State of Tennessee

02/13/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 10, 2017

TORNITA N. CRENSHAW v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2007-A-591 Steve R. Dozier, Judge

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No. M2016-01045-CCA-R3-ECN

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In 2008, a jury found the Petitioner, Tornita N. Crenshaw, guilty of two counts of

aggravated robbery, one count of aggravated burglary, one count of especially aggravated

kidnapping, and one count of coercion of a witness. The jury also convicted three co-

defendants related to these offenses. On joint direct appeal, this Court affirmed the

Petitioner’s convictions. See State v. Lance Sandifer, Stephon Dante Cunningham,

Tornita Crenshaw, & Glenard Thorne, No. M2008-02849-CCA-R3-CD, 2010 WL

5343202, at *1 (Tenn. Crim. App., at Nashville, Dec. 21, 2010), perm. app. denied (Tenn.

May 26, 2011). On April 11, 2016, the Petitioner filed a petition for a writ of error coram

nobis alleging numerous errors. The trial court issued an order on April 25, 2016,

dismissing the petition as time-barred. We affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.

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

Tornita N. Crenshaw, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior

Counsel; Glenn R. Funk, District Attorney General; and Rachel M. Sobrero, Assistant

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

OPINION

I. Facts and Procedural History

A Davidson County jury convicted the Petitioner of two counts of aggravated

robbery, one count of aggravated burglary, one count of especially aggravated

kidnapping, and one count of coercion of a witness, and the trial court sentenced her to an

effective sentence of twenty-three years. The case arose out of the Petitioner and her co-

defendants breaking into the victims’ residence in November 2006. The victims had a

recording studio in the residence, and the Petitioner and co-defendants, Lance Sandifer,

Stephon Dante Cunningham, and Glenard Thorne, stole the equipment and sexually

assaulted both victims while in the residence. On direct appeal, this Court summarized

the Petitioner’s participation while in the victims’ house as follows:

Throughout the sexual assaults, Sandifer was brandishing a weapon, and

Appellants were carrying recording equipment and various items out of the

apartment. Appellants were trading the weapons back and forth amongst

themselves. While she was being raped, A.B.[1] stated that [the Petitioner]

came into the room and said, “Damn, you guys have her naked.” [The

Petitioner] smirked as she spoke. [The Petitioner] also pointed a gun at

A.B.’s head during the rapes and demanded R.N.’s car and alternatively

A.B.’s car. A.B. stated that the three other Appellants were laughing and

joking about her situation while they carried the recording equipment out to

the cars in the parking lot.

When A.B. returned to the living room from changing her clothes, R.N.

was tied to a chair. R.N. testified that Appellants tied him to the chair with

electrical cord. Sandifer and Cunningham were beating R.N. [The

Petitioner] forced A.B. to strike R.N.

Thorne asked A.B. if she wanted to leave with them. Because A.B. was

fearful that Appellants would kill her if she stayed behind, she asked where

they were going. [The Petitioner], who was holding a gun at the time,

stated that A.B. was coming with them. Cunningham and [the Petitioner]

led A.B. to her own car and placed her in the backseat. When A.B. left the

apartment with Cunningham and [the Petitioner], R.N. was still tied to the

chair. R.N. overheard Sandifer and Thorne arguing about whether to shoot

him. R.N. was able to work his way out of the electrical cord and ran out of

a back door in the apartment. Shortly thereafter, Thorne accidentally shot

himself in the foot when he put the gun into the waistband of his pants.

While Cunningham, [the Petitioner], and A.B. were leaving the apartment,

A.B. heard the gunshot and thought that Sandifer and Thorne had shot R.N.

See State v. Lance Sandifer, Stephon Dante Cunningham, Tornita Crenshaw, & Glenard

Thorne, No. M2008-02849-CCA-R3-CD, 2010 WL 5343202, at *1 (Tenn. Crim. App., at

Nashville, Dec. 21, 2010), perm. app. denied (Tenn. May 26, 2011). Co-defendant

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In order to protect the privacy of the victims this Court referenced them by their initials.

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Cunningham and the Petitioner held A.B. against her will while Thorne and Sandifer

went to the hospital seeking treatment for Thorne’s self-inflicted gunshot wound. Co-

defendant Cunningham and the Petitioner forced the victim to use her credit card to pay

for a hotel room that night and forced her to use her ATM to access money for them the

following day before ultimately releasing A.B. Id. On appellate review, this Court

affirmed all of the defendants’ convictions and sentences. Id.

The Petitioner, pro se, filed a petition for writ of error coram nobis on April 11,

2016. She raised numerous claims including: her attorney advised her to withdraw her

post-conviction petition because the State had agreed to drop the kidnapping charge, she

was not present at her sentencing hearing and thus her due process rights were violated,

her case was not severed as her attorney requested, her police interview was conducted

without the permission of her foster parents and was coerced, the trial court improperly

used her prior arrest history to enhance her sentence, two trial witnesses committed

perjury or contradicted themselves, her case should not have been transferred from

juvenile court to criminal court, and she should have been provided with a copy of the

trial transcript because she is indigent.

After review of the petition, the trial court filed an order denying relief. In its

order dated, April 25, 2016, the trial court made the following findings:

Here, the Petitioner’s motion was filed outside of the one (1) year

statute of limitations and is therefore time-barred. The Court finds that due

process considerations do not preclude the application of the limitations

period. In addition, before the [P]etitioner is entitled to relief based upon

newly discovered evidence, it must be established, and the trial court must

find, that the subsequently or newly discovered evidence “may have

resulted in a different judgment had it been presented at the trial.” Tenn.

Code Ann. § 40-26-105. However, the Court respectfully finds that all of

the issues the [P]etitioner describes do not fall within the realm of newly

discovered evidence, and were or could have been litigated at the trial of

this case, or on the motion for new trial, or on appeal. Further, absent the

issues that were litigated, none of the specified evidence alleged in the

petition would have resulted in a different judgment had it been presented

at trial.

(Citation omitted). It is from this judgment that the Petitioner now appeals.

II. Analysis

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On appeal, the Petitioner argues that the trial court erred when it dismissed her

petition for a writ of error coram nobis because newly discovered evidence entitles her to

relief. The Petitioner submits that the newly discovered evidence in his case includes

consecutive sentencing despite her age at the time of the offense, the absence of parental

presence during her police interview, and her attorney’s deficient representation. The

State responds that the trial court correctly dismissed the Petitioner’s claim as untimely

because neither the evidence the Petitioner claims existed during the limitations period

nor the stated grounds for relief constitute “newly discovered evidence.” We agree with

the State.

Tennessee Code Annotated section 40-26-105 (2012) provides:

There is hereby made available to convicted defendants in criminal

cases a proceeding in the nature of a writ of error coram nobis, to be

governed by the same rules and procedure applicable to the writ of error

coram nobis in civil cases, except insofar as inconsistent herewith. . . .

Upon a showing by the defendant that the defendant was without fault in

failing to present certain evidence at the proper time, a writ of error coram

nobis will lie for subsequently or newly discovered evidence relating to

matters which are litigated at the trial if the judge determines that such

evidence may have resulted in a different judgment, had it been presented at

trial.

It is well-established that the writ of error coram nobis “is an extraordinary procedural

remedy . . . [that] fills only a slight gap into which few cases fall.” State v. Mixon, 983

S.W.2d 661, 672 (Tenn. 1999). Generally, a decision whether to grant a writ rests within

the sound discretion of the coram nobis court. See State v. Hart, 991 S.W.2d 371, 375

(Tenn. Crim. App. 1995). We, therefore, review for abuse of discretion. See State v.

Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

A petition for a writ of error coram nobis must be filed within one year of the

judgment becoming final in the trial court. T.C.A. § 27-7-103. This statute of limitations

“is computed from the date the judgment of the trial court becomes final, either thirty

days after its entry in the trial court if no post-trial motions are filed or upon entry of an

order disposing of a timely filed post-trial motion.” Harris v. State, 301 S.W.3d 141, 144

(Tenn. 2010); see Mixon, 983 S.W.2d at 670 (“[W]e reject the contention . . . that the

statute does not begin to run until the conclusion of the appeal as of right proceedings.”).

In the present case, the judgment became final in June of 2007. The Petitioner did not

file this petition for writ of error coram nobis until April 11, 2016, more than eight years

later.

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The one-year statute of limitations for a petition for writ of error coram nobis may

be tolled on due process grounds if a petition seeks relief based upon newly discovered

evidence of actual innocence. Harris, 301 S.W.3d at 145. In determining whether the

statute should be tolled, the court must balance a petitioner’s interest in having a hearing

with the State’s interest in preventing a claim that is stale and groundless. Id. Generally,

“before a state may terminate a claim for failure to comply with . . . statutes of

limitations, due process requires that potential litigants be provided an opportunity for the

presentation of claims at a meaningful time and in a meaningful manner.” Burford v.

State, 845 S.W.2d 204, 208 (Tenn. 1992). The Burford rule requires three steps:

(1) determine when the limitations period would normally have

begun to run; (2) determine whether the grounds for relief actually arose

after the limitations period would normally have commenced; and (3) if the

grounds are “later arising,” determine if, under the facts of the case, a strict

application of the limitations period would effectively deny the petitioner a

reasonable opportunity to present the claim.

Sands v. State, 903 S.W.2d 299, 301 (Tenn. 1995). As a general rule, the claim at issue

must not have existed during the limitations period to trigger due process consideration.

Seals v. State, 23 S .W.3d 272 (Tenn. 2000). Discovery of or ignorance to the existence

of a claim does not create a “later-arising” claim. See Brown v. State, 928 S.W.2d 453,

456 (Tenn. Crim. App. 1996); Passarella v. State, 891 S.W.2d 619, 635 (Tenn. Crim.

App. 1994).

None of the Petitioner’s claims are “later-arising” because the grounds for relief

existed at the time of the Petitioner’s trial. The Petitioner identifies nothing in the record

that was not known to her at the time of trial or shortly thereafter. All of the Petitioner’s

allegations could have been litigated at the trial of this matter or in a post-conviction

proceeding; therefore, the Petitioner has failed to show that her claims are “later-arising.”

As to the Petitioner’s claims that her attorney was ineffective, we note that ineffective

assistance of counsel is not a cognizable coram nobis claim. See Domingo Ponce v. State

of Tennessee, No. M2004-02257-CCA-R3-CO, 2005 WL 1303125, at *3 (Tenn. Crim.

App. May 31, 2005) (stating that ineffective assistance of counsel is not an appropriate

ground for relief pursuant to a writ of error coram nobis), no perm. app. filed.

Because the Petitioner’s claim is not “later-arising,” we do not address the third

step in the analysis, namely the reasonableness of the delay. See Sands, 903 S.W.2d at

301. The Petitioner has failed to demonstrate that the statute of limitations should be

tolled in this case; therefore, we conclude that the trial court properly dismissed his

untimely petition for coram nobis relief. See id. The Petitioner is not entitled to relief.

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III. Conclusion

Based upon the foregoing reasoning and authorities, we affirm the trial court’s

judgment.

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ROBERT W. WEDEMEYER, JUDGE

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