08/04/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 20, 2017
CHARLES PHILLIP MAXWELL v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2008-D-3374 Monte D. Watkins, Judge
No. M2016-02380-CCA-R3-ECN
The Petitioner, Charles Phillip Maxwell, appeals the Davidson County Criminal Court’s
denial of his petition for a writ of error coram nobis from his driving with a suspended
license conviction and his thirty-day sentence, which was suspended to probation after
twenty-four hours in confinement. The Petitioner contends that the court erred by
denying relief and improperly ordered him to pay court costs associated with his petition.
We affirm the judgment of the coram nobis court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN, J., joined. TIMOTHY L. EASTER, J., not participating.
Charles Phillip Maxwell, Nashville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Glenn Funk, District Attorney General; and Roger D. Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
This case relates to a traffic stop during which the Petitioner was issued a citation
for driving a motor vehicle when his license was suspended. State v. Charles Phillip
Maxwell, No. M2009-02323-CCA-R3-CD, 2011 WL 345872 (Tenn. Crim. App. Feb. 1,
2011), perm. app. denied (Tenn. May 26, 2011). The Petitioner appealed, and in its
opinion affirming the conviction, this court summarized the facts as follows:
Officer Coleman Womack of the Metro Nashville Police Department
testified that on March 5, 2008, he was assigned to the traffic division and
was traveling on Bell road in Davidson County when he observed the
Defendant not wearing a seatbelt. The Defendant was driving a 1987 black
Chevrolet Celebrity. Officer Womack stopped the Defendant and asked for
his driver’s license. The Defendant told him that he did not have a driver’s
license. Officer Womack “ran a status check” on the Defendant for “his
driver’s license status” and learned that the Defendant’s driver’s license had
been suspended. Officer Womack gave the Defendant a citation and
instructed the Defendant to pull into a Kroger parking lot and have
someone drive him home.
On cross-examination, Officer Womack admitted that he initially
drafted a citation for “driver’s license required.” Officer Womack testified
that after he learned that the Defendant’s license had been suspended, he
corrected the citation before giving the citation to the Defendant. Officer
Womack explained that the computer had been slow and that sometimes “it
takes a minute to come back.” Officer Womack testified that even though
the status check revealed that the Defendant’s license had been suspended,
it was possible that the Defendant had never actually applied for a driver’s
license. He explained that if the Defendant had been stopped and cited for
not having a driver’s license, the department may have assigned the
Defendant a driver’s license number in order to document that the
Defendant’s privilege to drive had been suspended. However, he could not
testify as to whether that had occurred in the Defendant’s case because the
records merely reflected that the Defendant's license had been suspended.
Kenneth Wade Birdwell of the Tennessee Department of Safety
testified that he was the director of the financial responsibility office, which
maintained the driving records in Tennessee. Mr. Birdwell testified that the
Defendant’s driver’s license had been suspended and that his status had not
been changed on March 5, 2008. Mr. Birdwell stated that according to the
records maintained by the department, the Defendant applied for a driver’s
license and that a license was issued to the Defendant on August 31, 1989.
On cross-examination, Mr. Birdwell admitted that he was only able to
testify that the identifying information contained in the documents matched
the Defendant, not that the Defendant was actually the person referenced in
the records. Mr. Birdwell also testified that a person’s privilege to drive
may be suspended even if a person did not have an actual driver’s license.
Id. at *1.
The Petitioner included in his error coram nobis petition and in an appendix to his
appellate brief a petition for post-conviction relief, which he purports to have filed with
the court. However, the petition does not reflect a post-conviction court filed stamp. The
post-conviction petition alleged that appellate counsel provided ineffective assistance
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because counsel did not raise allegations disputing the trial court’s jurisdiction and the
validity of the driver’s license laws. The Petitioner stated that he was denied relief after
an evidentiary hearing. It does not appear that the Petitioner sought appellate review
from the post-conviction court.
On February 11, 2016, the Petitioner filed the instant petition for a writ of error
coram nobis, alleging that the trial court judge and his appellate counsel “conspired
against” him. He alleged that counsel was a “plant” by the trial judge, who instructed
counsel not to communicate with the Petitioner. He argued that counsel “refused to
present . . . supervisory controllers of [his] ‘appeal’ any brief of any preserved issues on
appeal . . . to include, multiple valid defenses in law and fact[.]” He accused the trial
judge of violating his “fundamental right to counsel . . . for any ‘pretrial’ defense filings .
. . and to allow time for . . . counsel to review and prepare for the purported case.” He
alleged that the trial judge refused to remove counsel from his case and that counsel
provided “intentionally defective, ineffective, and negligent counsel for [the] appeal.”
Relative to newly discovered evidence, the Petitioner alleged in his petition that on
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“10 day of the second month of the year A.D. two thousand sixteen,” he learned that
appellate counsel’s “acts represented a pattern of conspiratorial acts for which she was
caught and suspended from her practice as counsel in her nonsovereign BAR
Association[.]” The Petitioner referenced a Tennessee Board of Professional
Responsibility notice in which the supreme court suspended counsel’s law license for one
year but allowed counsel to serve the suspension on probation and to continue practicing
law as long as counsel satisfied certain conditions.
The Petitioner argued the following:
Said facts constitute error of violation of counsel (and various defense
issues preserved) which are errors dehors the record and matters that
were not or could not have been litigated on the trial of the case, on
appeal in the nature of a writ of error proceedings; denied and without
counsel [he] did all possible to prevent the above for all of which, this
petition is warranted.
The coram nobis court appointed counsel to represent the Petitioner, and
approximately one month later, the Petitioner filed a pro se document entitled,
“CORRECTION OF THE RECORD.” In relevant part, the Petitioner alleged that his
appointed counsel had “refused to act, or is incapable of acting effectively as counsel,”
and “does not understand the Constitution of the State of Tennessee 1870 to include,
Article I, Section 9 and the term ‘counsel’ thereof; as well as, its statement that both the
accused and counsel can be heard.” Appointed counsel sought permission to withdraw
from his representation, and the coram nobis court granted the motion and appointed
subsequent counsel. Less than one month later, subsequent counsel, likewise, sought
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permission to withdraw as counsel of record, stating that counsel could not “advance the
position that [the Petitioner] wishes to argue without violating the Tennessee Rules of
Professional Conduct” and that counsel “does not have to be subjected to insults
regarding his person, profession, and professionalism during the course of the
representation.” In response, the Petitioner filed a pro se document entitled, “Notice and
Demand,” in which the Petitioner “demand[ed]” that subsequent counsel be removed
from his case as a result of counsel’s ineffectiveness and that he receive the “aid of
counsel” from another attorney. The coram nobis court permitted subsequent counsel to
withdraw from the case and continued the case in an effort to allow the Petitioner time to
identify an attorney the Petitioner would find acceptable. The court stated that it would
appoint such an attorney to represent the Petitioner. The record does not reflect what, if
anything, occurred at the next scheduled court date.
In any event, the coram nobis court entered an order denying relief. The court
determined that the Petitioner’s allegation was that he received the ineffective assistance
of counsel. Although the court’s order states that the “proof and argument presented at
the hearing do not provide any new evidence that a different judgment would have
resulted,” the trial court clerk’s response to this court’s order to supplement the record
with the hearing transcript reflects that no hearing was held. In its order denying coram
nobis relief, the court determined that the Petitioner did not present newly discovered
evidence as a basis for his petition. This appeal followed.
The Petitioner contends that the coram nobis court erred by denying relief. He
argues that his right to appeal his conviction was violated by appellate counsel’s
ineffective assistance. He argues counsel failed to raise and pursue valid preserved
appeal issues, depriving him of his right to appeal. He also contends that the court
improperly ordered him to pay the court costs associated with his petition.
Tennessee Code Annotated section 40-26-105(b) (2012) provides that coram nobis
relief is available in criminal cases as follows:
The relief obtainable by this proceeding shall be confined to errors dehors
the record and to matters that were not or could not have been litigated on
the trial of the case, on a motion for a new trial, on appeal in the nature of a
writ of error, on writ of error, or in a habeas corpus proceeding. 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
were litigated at the trial if the judge determines that such evidence may
have resulted in a different judgment, had it been presented at the trial.
Unlike the grounds for reopening a post-conviction petition, the grounds for
seeking a writ of error coram nobis are not limited to specific categories. Harris v. State,
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102 S.W.3d 587, 592 (Tenn. 2003). Coram nobis claims may be based upon any “newly
discovered evidence relating to matters litigated at trial” so long as the petitioner
establishes that he or she was “without fault in failing to present the evidence at the
proper time.” Id. at 592-93. In a coram nobis proceeding, the court first must consider
the newly discovered evidence and be “reasonably well satisfied with its veracity.” State
v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). If the defendant is without fault because
the exercise of reasonable diligence would not have led to a timely discovery of the new
information, the court must examine both the evidence presented at the trial and during
the coram nobis proceedings to determine whether the new evidence may have led to a
different result. Id. The decision to grant or deny coram nobis relief rests within the
sound discretion of the court. Id. at 527-28.
The Petitioner’s allegations are not cognizable for error coram nobis relief.
Ineffective assistance of counsel claims, even if based upon newly discovered
professional displinary notices, are proper for post-conviction petitions. We note that it
appears, based upon the Petitioner’s assertions in his coram nobis petition and in his
appellate brief, that he alleged counsel’s ineffective assistance in an unsuccessful post-
conviction petition. Based upon the Petitioner’s assertions, this issue of appellate
counsel’s effectiveness has been previously determined. See T.C.A. § 40-30-106(f), (g)
(2012). Likwise, the Petitioner’s argument that he was denied his right to appeal his
conviction because of counsel’s ineffectiveness is appropriate for post-conviction relief,
not error coram nobis relief. The record does not reflect that the Petitioner obtained
newly discovered evidence as contemplated by our statutes related to his conviction for
driving a motor vehicle when his license was suspended. Therefore, the Petitioner is not
entitled to relief.
Relative to the Petitioner’s contention that the coram nobis court improperly
ordered him to pay the court costs associated with his petition, the Petitioner does not
present any argument supporting his contention and does not address it in the issues
section of his appellate brief. “Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived[.]” Tenn. Ct.
Crim. App. R. 10(b). Therefore, the issue is waived.
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ROBERT H. MONTGOMERY, JR., JUDGE
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