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Cowan v. State12/15/2003
these dependent occurrences is the necessity of surgical aid, which may eventuate as the immediate cause of death."). Thus, the conclusory allegations of the motion to reopen fail to illustrate that the petitioner is actually innocent of the conviction offense.
The petitioner's claim that the indictment is infirm is not cognizable in the de facto application for permission to appeal. The indictment is not included in the motion or in the appellate record as a whole, and it is not before us for review. Furthermore, the claimed deficiencies of the indictment do not appear to fit within any of the permissive rubrics of Code section 40-30-117(a).
Finally, we have reviewed the transcript of the petitioner's May 1, 1991 plea submission hearing that was filed in the post- conviction court on January 25, 1993, and was included within the appellate record. The transcript reveals that the petitioner entered a best-interests plea of guilty to second degree murder as a means of avoiding a potential penalty for first degree murder. The trial court engaged the petitioner in a full review of his rights and options, and the transcript reflects that the petitioner actively waived his rights and assented to the plea and the stipulated penalty. Furthermore, the court thoroughly explained to the petitioner the meaning of release eligibility and that ultimately the release date would depend upon the administrative decision of the Department of Correction. The petitioner acknowledged his understanding of the statutory release eligibility scheme.
Accordingly, we discern no basis for granting permission to appeal. We note that, in his motion and brief, the petitioner acknowledges that he filed the 2003 motion to reopen after he was denied parole. We also note that although the petitioner withdrew his initial post-conviction petition on April 12, 1993, he had until May 2, 1994 to re-file a petition for post-conviction relief. See Tenn. Code Ann. § 40-30-102 (1990) (amended 1995) (establishing a three-year statute of limitations). We remind the petitioner that the state has a valid and preeminent interest in the finality of criminal convictions. State ex rel Stewart v. McWherter, 857 S.W.2d 875, 877 (Tenn. Crim. App. 1992). For this reason, " ime is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by [the post-conviction] chapter. . . ." Tenn. Code Ann. § 40-30-102(a) (2003).
Discerning no basis for granting an appeal in this cause, we deny the de facto application and dismiss the appeal.
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