Donaldson v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1997 SESSION
February 18, 1998
Cecil W. Crowson
MAURICE DONALDSON ) Appellate Court Clerk
) NO. 01C01-9611-CR-00463
Appellant, )
) DAVIDSON COUNTY
v. )
) Hon. Thomas H. Shriver
STATE OF TENNESSEE )
) (Post-Conviction)
Appellee )
)
For the Appellant For the Appellee
Henry R. Allison, III John Knox Walkup
500 Church Street Attorney General & Reporter
Fifth Floor
Nashville, TN. 37219 Daryl J. Brand
Assistant Attorney General
2nd Floor Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243-0493
Victor S. Johnson, III
District Attorney General
Thomas B. Thurman
Deputy District Attorney General
Washington Square, Ste 500
222 Second Avenue North
Nashville, TN. 37201-1649
OPINION FILED:___________________
AFFIRMED PURSUANT TO RULE 20
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Maurice Donaldson, appeals the Davidson County Criminal
Court’s denial of his motion to reopen his post-conviction petition. He treats this
appeal as one of right and he asks this Court to remand his case to the trial court for
an evidentiary hearing. We find that the trial court did not abuse its discretion in
denying appellant’s motion to reopen and we dismiss the appeal pursuant to Rule 20
of the Tennessee Court of Criminal Appeals.
The appellant is currently serving three concurrent life sentences as a habitual
criminal following convictions in 1988 of armed robbery and two counts of assault with
intent to commit first degree murder. His convictions and sentences were affirmed by
this Court on direct appeal. See State v. James Larry Polk and Maurice Donaldson,
No. 88-262-111 (Tenn. Crim. App. at Nashville, Nov. 22, 1989), per. app. denied
(Tenn. 1990).
In 1990, the appellant filed a petition for post-conviction relief alleging
ineffective assistance of counsel. The trial court dismissed his petition and we upheld
that decision on appeal. See Maurice Donaldson v. State, No. 01C01-9304-CR-00129
(Tenn. Crim. App. at Nashville, Mar. 10, 1995), per. app. denied (Tenn. 1995). The
appellant filed a motion to reopen his post-conviction petition on January 8, 1996,
challenging the reasonable doubt jury instruction and the ineffective assistance of his
trial counsel.1 The trial court denied the motion upon finding that the appellant’s claim
was without merit and barred by the statute of limitations.
The appellant contends that the trial court erred by dismissing the motion and
failing to grant an evidentiary hearing.
This issue is without merit.
1
The S tate petitione d the trial cou rt to treat app ellant’s m otion as a secon d petition for p ost-
conviction relief. We note that any post-conviction petition filed by the appellant on January 6, 1996,
would ha ve been time-ba rred by the th ree year s tatute of lim itations. See Tenn. Code Ann. § 40-30-102(Repl. 1995). The limitations period began March 5, 1990, when the supreme court denied permission
to appeal from this Court’s decision in Donaldson, No. 88-262-111 (Ten n. Crim. App. at Nashville, Nov.
22, 1989 ).
2
Initially, we will address the State’s contention that the appellant did not follow
the proper procedure for appealing the trial court’s order. The appellant filed his
motion to reopen the post-conviction petition under the Post Conviction Procedure Act
of 1995.2 Tennessee Code Annotated section 40-30-217 (Supp. 1995) governs that
motion and sets forth the appellate procedure as follows:
(c) If the motion is denied, the petitioner shall have ten (10) days to file
an application in the court of criminal appeals seeking permission to
appeal. The application shall be accompanied by copies of all the
documents filed by both parties in the trial court and the order denying
the motion. The state shall have ten (10) days to respond. The court of
criminal appeals shall not grant the application unless it appears that the
trial court abused its discretion in denying the motion. If it determines
that the trial court abused its discretion, the court of criminal appeals
shall remand the matter to the trial court for further proceedings.
Under that provision, the appellant was required to file an application in this
Court seeking permission to appeal. 3 The appellant instead filed a notice of appeal
and has treated this proceeding as an appeal of right. Although we find that appellant
failed to comply with the procedure set forth in section 40-30-217(c), we will
nevertheless review the case to determine whether the trial court abused its discretion
in denying appellant’s motion.
Under Tennessee Code Annotated section 40-30-217(a), a petitioner may file a
motion to reopen his first post-conviction petition only if the following applies:
(1) The claim in the motion is based upon a final ruling of an appellate
court establishing a constitutional right that was not recognized as
existing at the time of trial, if retrospective application of that right is
required. Such motion must be filed within one (1) hear of the ruling of
the highest state appellate court or the United States supreme court
establishing a constitutional right that was no recognized as existing at
the time of trial; or
(2) The claim in the motion is based upon new scientific evidence
establishing that such petitioner is actually innocent of the offense or
2
See Tenn. Pub. Act 207, § 3 (1995) (providing that the Act shall govern “any motions which
may be filed after this date to reopen petitions for post-conviction relief which were concluded prior to the
effective d ate of this a ct).
3
This Court has previously held that the application for permission to appeal under section 40-
30-217 (c) close ly parallels the pr ocess under R ule 10 of th e Ten nesse e Rules of Appe llate Proce dure.
See Georg e McG hee v. Sta te, No. 02-C-01-9607-CR-00213 (Tenn. Crim. App. at Jackson, Sept. 30,
1996), per. app. denied (Tenn . 1997).
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offenses for which the petitioner was convicted; or
(3) The claim asserted in the motion seeks relief from a sentence that
was enhanced because of a previous conviction and such conviction in
the case in which the claim is asserted was not a guilty plea with an
agreed sentence, and the previous conviction has subsequently been
held to be invalid, in which case the motion must be filed within one (1)
year of the finality of the ruling holding the previous conviction to be
invalid; and
(4) It appears that the facts underlying the claim, if true, would establish
by clear and convincing evidence that the petitioner is entitled to have
the conviction set aside or the sentence reduced.
We find that the appellant’s motion to reopen his post-conviction petition did not
state a cognizable claim under Tennessee Code Annotated section 40-30-217(a).
The substance of his motion is to challenge the “reasonable doubt” jury instruction and
the alleged ineffective assistance of his trial counsel.
This Court has previously determined that a challenge to the reasonable doubt
jury instruction is not a basis for reopening a prior post-conviction petition. See
Thomas Hebron v. State, No. 01C01-9512-CC-00416 (Tenn. Crim. App. at Nashville,
Oct. 17, 1996), per. app. denied (Tenn. 1997). Moreover, the appellant’s contention
that his trial counsel was ineffective is simply not recognized under section 40-30-217.
We conclude that the trial court did not abuse its discretion in denying the
appellant’s motion to reopen his post-conviction petition. The appellant’s appeal is
denied and dismissed pursuant to Rule 20 of the Tennessee Court of Criminal
Appeals.
____________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
___________________________
JOE B. JONES, Presiding Judge
___________________________
JOE G. RILEY, JUDGE
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