IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 23, 2001
STATE OF TENNESSEE v. GEORGE E. RATLIFF
Consolidated Direct Appeal from the Criminal Court for Washington County
No. 23301 Lynn W. Brown, Judge
No. E1999-01214-CCA-R3-CD
August 27, 2001
The defendant, George E. Ratliff, was convicted by a jury of rape of a child. In this consolidated
appeal, Defendant alleges various errors by the trial court, challenges his sentence, and appeals the
dismissal of his petition for writ of error coram nobis on the ground of untimely filing. After a
review of the record and applicable law, we reverse the trial court’s summary dismissal of the
petition for writ of error coram nobis based on the recent decision of our supreme court in Workman
v. State, 41 S.W.3d 100 (Tenn. 2001). We remand this matter to the trial court for a hearing on the
merits of the petition for writ of error coram nobis. Pursuant to State v. Mixon, 983 S.W.2d 661
(Tenn. 1999), appellate proceedings on Defendant’s appeal as of right from his conviction are stayed,
pending the trial court’s ruling on the error coram nobis petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed in Part:
Order Dismissing Petition for Writ of Error Coram Nobis is Reversed and the Petition is
Remanded for an Evidentiary Hearing; Further Appellate Proceedings are Stayed.
THOMAS T. WOODALL , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
ROBERT W. WEDEMEYER , J., joined.
Steve McEwen, Mountain City, Tennessee (on appeal); and David F. Bautista, District Public
Defender; Jeffrey C. Kelly, Assistant Public Defender; and Deborah Huskins, Assistant Public
Defender, Johnson City, Tennessee (at trial), for the appellant, George E. Ratliff.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; Steve Finney, Assistant District Attorney General;
Lisa Rice, Assistant District Attorney General; Victor Vaughn, Assistant District Attorney General;
and Janet Hardin, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Defendant was sentenced as a Range I offender to serve twenty-four years in the Tennessee
Department of Correction for his conviction. On December 7, 1998, the trial court conducted a
hearing on Defendant’s motion for a new trial. At the conclusion of the hearing, the trial court
denied Defendant’s motion for new trial and entered an order to that effect the same day.
Defendant filed a timely notice of appeal challenging his conviction and sentence on
December 15, 1998. Slightly more than a year later, on December 21, 1999, Defendant filed a
petition for writ of error coram nobis based on the fact that the victim had recently recanted her
testimony. The trial court summarily dismissed the petition because it was filed fourteen days past
the expiration of the applicable one-year statute of limitations. Pursuant to an order from this Court
dated September 8, 2000, Defendant’s appeal from the dismissal of his petition for writ of error
coram nobis and his pending appeal as of right from his conviction were consolidated to form the
instant appeal to this Court.
I. FACTUAL BACKGROUND
Defendant was indicted and later convicted for sexually penetrating his six-year-old daughter,
S.B., during the summer of 1996. (The victim shall be referred to herein by her initials.) Defendant
and the victim’s mother, Rebecca Jones, were in the process of dissolving their seven-year marriage
at that time, and the custody of S.B. was a hotly contested issue between them. S.B. spent every
other weekend with Defendant, who resided alone in a small building on his parents’ property. His
parents, sister, and her two children lived nearby in the main house. During S.B.’s weekends with
Defendant, she slept in the house with the other children except for two episodes where S.B. had
head lice. Because the risk of infecting her cousins was too great, on these two occasions she slept
in the small building with Defendant, who claimed that he gave S.B. his bed and slept alone on the
recliner chair.
For the most part, S.B. appeared to enjoy visiting Defendant and playing with her cousins.
One weekend in September, however, S.B. told her mother, Jones, that she did not want to see
Defendant. S.B. testified at trial that this was because she had just learned about “good touches” and
“bad touches” from her guidance counselor at school. The counselor told the children that if they
should ever experience a bad touch, they were to tell their parents. Consequently, S.B. informed
Jones that Defendant had recently touched her between her legs and put his hand “inside of her
private” but she did not know that this was wrong until she learned so at school. S.B. also testified
concerning the way the elastic on her panties would snap back and hit her when Defendant removed
his hand. S.B. claimed that Defendant threatened to kill her mother and grandmother if she ever told
anyone about what he had done to her.
After hearing S.B.’s story on September 14, 1996, Jones reported the incident to the police.
Shortly thereafter, Gary Lee Wiseman, an officer with the Washington County Sheriff’s Department,
came to the house to speak with S.B. Wiseman testified at trial that he did not attempt to acquire
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an explicit statement from S.B. during his initial meeting with her, but called the Department of
Children’s Services (“DCS”) for assistance because they are more adept at dealing with children.
Rita Parris, a DCS caseworker, interviewed S.B. on September 26, 1996, and testified at trial that
S.B. had informed her that Defendant touched her “inside her privates” nine times in one evening
during the previous summer but he did not hurt her.
Parris referred S.B. to Dr. Martin Olsen, a licensed obstetrician and gynecologist, who
testified that he examined S.B. on October 31, 1996. When Dr. Olsen asked S.B. why she came to
see him, she responded, “Daddy touched me where he wasn’t supposed to.” According to Dr.
Olsen’s findings, the rectum showed no signs of trauma, but a colposcopic evaluation of the hymen
revealed an injury which the doctor described as a “cleft at 6 o’clock.” The doctor testified that this
type of injury is consistent with sexual abuse because something must travel past both the labia
majora and the labia minora and then penetrate the vagina to physically contact the hymenal ring--
jumping up and down, riding horseback, and falling off a bike will not accomplish this. Further,
because hymenal injuries usually cause the victim some pain, they are seldom self-inflicted.
However, Cherie Ratliff Morris, Defendant’s sister, who helped take care of S.B. when she visited,
testified that she witnessed something peculiar while S.B. was bathing with her cousins.
Specifically, S.B. had shoved the leg of a Barbie doll into her “pee-pee.” Morris was unable to
estimate how much of the leg was inside of S.B., but she claimed that none of the doll’s foot was
visible. Morris did not take S.B. to see a doctor, but cautioned her not to put dolls inside of her
anymore and then told Jones what had happened.
Officer Wiseman received Dr. Olsen’s medical report on November 6, 1996. On December
12, 1996, he filed charges against Defendant based on the victim’s statement and medical report.
When questioned at trial as to why three months transpired from the date Wiseman received the
initial report of S.B.’s abuse to the date he filed charges against Defendant, Wiseman explained that
it is not uncommon for some time to pass between the first report of sexual abuse and arrest of a
suspect. Various factors can influence the time frame for filing an indictment, including immediate
danger to the victim and the Sheriff’s Department’s current case load. Wiseman testified that, in this
particular case, he had been working on a double homicide, which takes precedence over non-urgent
matters. Moreover, in cases of sexual abuse, medical reports must be completely evaluated. He
explained that it is often advantageous, to both the accused and the police department, to wait before
bringing charges and observe whether the victim’s story remains consistent throughout the interview
process and counseling sessions. In sum, Wiseman stated that he is seldom in a hurry to arrest a
suspect unless the victim is in danger.
At his trial, Defendant testified that he had a good relationship with S.B. However, he also
claimed that her statements concerning what he did to her were untruthful. Defendant maintained
that S.B.’s allegations of sexual abuse were part of a conspiracy against him, contrived by Jones and
her mother, to prevent him from obtaining custody of S.B. Defendant also claimed that after he filed
for temporary custody in July 1996, Jones warned him that she would do whatever was necessary
to keep Defendant from taking her child.
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II. ANALYSIS
Defendant contends that the trial court’s dismissal of his petition for writ of error coram
nobis on the ground of untimely filing violated his constitutional rights to due process. The State
responds that state law clearly requires that a petition for writ of error coram nobis not filed within
the one-year statute of limitations be dismissed as untimely.
First, we note that a petition for writ of error coram nobis ordinarily will be filed while an
appeal is pending, because filing must occur within one year of the date a judgment becomes final
in the trial court to be considered “timely.” See Tenn. Code Ann. § 27-7-103 (1997); State v.
Mixon, 983 S.W.2d 661, 671 (Tenn. 1999). Therefore, when a defendant files his petition for writ
of error coram nobis in the trial court during the pendency of an appeal, he should
contemporaneously file a motion requesting that the appellate proceedings be stayed pending the trial
court’s decision on that writ. See id. at 672. Here, Defendant did not file a motion to stay the
appellate proceeding. However, in light of our ruling and to promote judicial economy, we grant
Defendant a stay of appellate proceedings with regard to the direct appeal of his conviction.
We further note that the supreme court has clarified several procedural issues which have
arisen relating to the operation of the writ of error coram nobis in criminal proceedings. Mixon, 983
S.W.2d at 668-73. Among other things, the supreme court held that in cases where the trial court
grants a defendant a new trial based on his or her petition for writ of error coram nobis, and the State
appeals, the appellate court should first consider the issues relating to the coram nobis proceeding.
Id. at 672. If the trial court’s decision is affirmed, the issues raised in the defendant’s appeal as of
right become moot. By contrast, where the trial court denies the petition for writ of error coram
nobis and the defendant appeals, the appellate court must first address the issues raised in the
defendant’s appeal as of right. Id. If the appellate court determines that a new trial is required as
a result of one or more of those issues, it need not address the issues raised in the coram nobis
appeal. The supreme court recognized that coram nobis is an extraordinary procedural remedy and
that, because it “fills only a slight gap into which few cases fall,” it is appropriate that an appellate
court consider whether relief is available pursuant to the writ only after it has determined that none
of the issues raised in a defendant’s appeal as of right warrant a new trial. Id.
Here, the trial court did not deny Defendant’s petition for writ of error coram nobis as a result
of a decision based on the merits of his case, but summarily dismissed his petition based on untimely
filing. The procedure outlined in Mixon provides that appellate proceedings on a defendant’s appeal
as of right should be stayed pending the trial court’s decision on the defendant’s petition for writ of
error coram nobis and, thereafter, any appeal from the trial court’s decision on the petition is to be
consolidated with the defendant’s pending appeal as of right. Id. (citing Tenn. R. App. P. 16(b)).
Consequently, until the trial court renders a decision on Defendant’s petition based on the merits of
his claim, under Mixon, appellate proceedings should be stayed. For reasons which follow, we find
that the procedural time bar would violate Defendant’s right to constitutional due process and,
therefore, the statute of limitations does not apply here. Thus, Defendant is entitled to a hearing on
his petition for writ of error coram nobis so that the trial court may properly evaluate his claim.
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Following a hearing on the merits, the State or Defendant may appeal the trial court’s decision, and
this Court will then proceed according to the guidelines in Mixon discussed supra.
The State points out that the precise question whether the dismissal of a coram nobis petition,
based on failure to file within the applicable statute of limitations, violates a defendant’s due process
rights was previously considered by this Court in Seymour Hayes, III v. State, No. 03C01-9902-CR-
00066, Hamilton County (Tenn. Crim. App., Knoxville, May 20, 1999) perm. to app. denied (Tenn.
1999). This Court upheld the constitutionality of the time bar. However, this opinion was filed
before our supreme court decided Workman v. State, 41 S.W.3d 100 (Tenn. 2001), a case which
requires us to reverse the trial court’s dismissal of Defendant’s petition for writ of error coram nobis
and remand the issue to the trial court for a hearing on the merits.
In Workman, the Tennessee Supreme Court granted application to appeal a case in which the
petitioner was denied a hearing on his petition for writ of error coram nobis because the statute of
limitations for filing had passed. Workman sought his writ based on claims that new evidence,
unavailable during his trial, would show that he was actually innocent of capital murder. The
supreme court found that, in a variety of contexts, due process may require tolling of an applicable
statute of limitations. Id. at 103. The Workman court relied, in part, on the due process
considerations discussed in Burford v. State, 845 S.W.2d 204 (Tenn. 1992). Id. at 102. Specifically,
the Burford court recognized that “before a state may terminate a claim for failure to comply with
procedural requirements such as 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” and that, “under the circumstances of a particular case, application of the statute may not
afford a reasonable opportunity to have the claimed issue heard and decided.” Id. (quoting Burford,
845 S.W.2d at 208). In determining what sort of opportunity is “reasonable,” the court concluded
that “[i]dentification of the precise dictates of due process requires consideration of both the
governmental interests involved and the private interests affected by the official action . . . .” Id.
The private interest at stake in Burford was the accused’s opportunity to attack his conviction and
incarceration on the grounds that he was deprived of a constitutional right; the governmental interest
represented by the statute of limitations was the prevention of stale and groundless claims. Id. After
weighing the competing interests, the court in Burford determined that the accused’s interest in
mounting a constitutional attack upon his conviction and incarceration outweighed the State’s
interest in preventing the litigation of stale and groundless claims.
After the court in Workman weighed the governmental interests involved against the private
interests affected by the official action, it decided that, if the procedural time bar was applied,
Workman could have been put to death without receiving an opportunity to have the merits of his
claim evaluated by a court of this state. Id. at 103. In other words, due process precludes application
of the statute of limitations to bar consideration of a petition for writ of error coram nobis in cases
where the defendant’s interest in obtaining a hearing to present newly discovered evidence, which
may establish actual innocence, far outweighs any governmental interest in preventing the litigation
of stale claims. Id. The supreme court concluded that Workman was entitled to a hearing to evaluate
the claims contained in his petition for writ of error coram nobis, notwithstanding the fact that he
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filed his petition thirteen months after discovering the newly discovered evidence. Id. In
considering the delay, the court remarked that the time within which Workman’s petition was filed
did not exceed the reasonable opportunity afforded by due process, especially in cases such as
Workman’s where the evidence in issue may show actual innocence of a capital offense. Id. at 103-
104.
Contrary to Workman, Defendant’s case does not involve a capital offense. Yet a sentence
of twenty-four years, without eligibility for release, is a sufficiently significant period of time to
warrant similar treatment for purposes of due process analysis. Relevant to Defendant’s sentence,
we note the judgment form indicates that Defendant was sentenced as a “Standard 30% Range I”
offender. However, Tennessee Code Annotated section 40-35-501(i)(1) provides that “[t]here shall
be no release eligibility for a person committing an offense, on or after July 1, 1995, that is
enumerated in subsection (2),” which includes rape of a child, and that “[s]uch person shall serve
one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and
retained.” Tenn. Code Ann. § 40-35-501(i)(1), (2) (1997). In the event the trial court denies
Defendant’s coram nobis petition, the judgment should be amended to reflect the proper release
eligibility status regarding his sentence.
Returning to the due process issue, we observe that Defendant, similarly to the defendant in
Workman, has raised serious questions regarding whether he, in fact, sexually abused his daughter.
The great weight of evidence against him came from the testimony of the victim, who has allegedly
since recanted. The record reveals that toward the end of November 1999, the victim and her mother
contacted the attorney general’s office to discuss the fact that the victim gave false testimony at
Defendant’s trial. The one-year statute of limitations on the filing of Defendant’s petition for writ
of error coram nobis expired on December 7, 1999, and he filed his petition fourteen days later, on
December 21, 1999. The small delay in filing may or may be not attributable to the fault of
Defendant and/or his attorneys. This issue, inter alia, should be decided by the trial court during a
hearing to fully evaluate the strength of Defendant’s claim in accordance with the legal rules set out
for error coram nobis proceedings and recanted testimony. See Mixon, 983 S.W.2d at 672-73 n.17
(the supreme court affirmed the holding of this Court enunciating the correct standard to be applied
by trial courts in determining whether a new trial should be granted upon the basis of newly
discovered recanted testimony).
In fairness to the trial court, we are mindful that, under prior law, a petition for a writ of error
coram nobis which was not filed within one year of the date on which the judgment of conviction
became final was summarily dismissed as untimely. Id. at 670; Sands v. State, 903 S.W.2d 297, 299
(Tenn. 1995); see also Newsome v. State, 995 S.W.2d 129, 133 (Tenn. Crim. App. 1998). However,
in accordance with the supreme court’s decision in Workman, we find that Defendant’s interest in
obtaining a hearing on his claim outweighs the governmental interest embodied in the statute of
limitations. Based on this finding, and because an evaluation of his claim may also reveal newly
discovered evidence which shows actual innocence of the offense, we conclude that due process
precludes summary dismissal of this claim based upon a statutory time bar.
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A new trial should be granted upon the basis of newly discovered recanted testimony only
if (1) the trial court is reasonably well satisfied that the testimony given by the material witness was
false and the new testimony is true; (2) the defendant was reasonably diligent in discovering the new
evidence, or was surprised by the false testimony, or was unable to know of the falsity of the
testimony until after the trial; and (3) the jury might have reached a different conclusion had the truth
been told. Mixon, 983 S.W.2d at 673 n.17. At the upcoming hearing on his petition for writ of error
coram nobis, Defendant will have the opportunity to establish the above criteria. If he makes this
showing, and convinces the trial court that the witnesses who testify in support of his claim are
credible, he will be entitled to a new trial.
III. CONCLUSION
For the forgoing reasons, we find that due process requires tolling of the applicable statute
of limitations under Workman v. State, 41 S.W.3d 100 (Tenn. 2001). Accordingly, we reverse the
trial court’s summary dismissal of Defendant’s writ of error coram nobis on the grounds that it was
untimely filed, and remand this issue to the trial court for a hearing on the merits of that petition.
Pursuant to State v. Mixon, 983 S.W.2d 661 (Tenn. 1999), appellate proceedings on Defendant’s
appeal as of right from his conviction are stayed pending the trial court’s decision on the coram nobis
petition. As a result of the stay, Defendant’s appeal as of right is removed from this Court’s docket.
The case will be redocketed, if necessary, following the trial court’s disposition of the petition for
writ of error coram nobis, pursuant to the procedures detailed in Mixon.
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THOMAS T. WOODALL, JUDGE
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