Ricky Lee Nelson a/k/a Russell Wellington v. State of Tennessee

Citation: Not availableDocket: W2012-00045-CCA-R3-PC

Court: Court of Criminal Appeals of Tennessee; March 25, 2013; Tennessee; State Appellate Court

Original Court Document: View Document

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Ricky Lee Nelson, also known as Russell Wellington, appeals the Shelby County Criminal Court's denial to reopen his post-conviction proceedings. The Tennessee Court of Criminal Appeals finds that Nelson did not meet the statutory requirements necessary for his appeal, resulting in a lack of jurisdiction to hear the case. Therefore, the appeal is dismissed. 

The court outlines the procedural history, noting that Nelson was previously convicted of aggravated rape, aggravated robbery, and second-degree burglary, receiving a thirty-five-year sentence. His convictions were affirmed on appeal. The facts of the case reveal that Nelson committed these crimes in February 1989, using a butcher knife against the victim and later being identified by both the victim and her daughter during the trial. 

Nelson has previously sought post-conviction relief and DNA testing, claiming ineffective assistance of counsel for not pursuing DNA testing at his request. Both his post-conviction relief and DNA testing motions were denied, with subsequent appeals affirming those denials. In 2010, he filed another motion for DNA testing related to the knife, which was also denied after a non-evidentiary hearing. This history highlights the ongoing legal challenges faced by Nelson as he attempts to contest his convictions.

On May 6, 2011, the petitioner filed a motion to reopen his post-conviction proceeding, arguing that his convictions for aggravated robbery and second-degree burglary constituted double jeopardy and that a prior conviction was improperly used to enhance his sentences. The trial court incorrectly held an evidentiary hearing, as the motion did not meet the statutory criteria under Tenn. Code Ann. Section 40-30-117(b) and should have been dismissed. During the October 27, 2011 hearing, the petitioner claimed that the trial court illegally enhanced his sentences without jury determination of applicable enhancement factors. He contested the trial court's finding of a "previous history of criminal convictions," asserting that prior charges had been expunged. However, he acknowledged that lesser-included convictions remained on his record. The petitioner argued that his convictions violated double jeopardy, suggesting that he could not rob and burglarize the same house simultaneously, despite acknowledging that the crimes had different elements.

The post-conviction court subsequently denied the motion, affirming that the trial court correctly sentenced the petitioner under the 1989 Sentencing Act and that the petitioner failed to provide evidence that the convictions used for sentence enhancement had been overturned. Additionally, the court ruled that the double jeopardy claim should have been raised earlier in the legal process. The petitioner then filed an appeal against the denial of his motion to reopen. On appeal, he contended that the post-conviction court erred in its ruling, specifically regarding the sole reliance on the 1989 Sentencing Act for sentencing. The State argued for dismissal of the appeal, asserting that the petitioner did not adhere to the statutory requirements for appealing a denial of a motion to reopen, as outlined in Tenn. Code Ann. 40-30-117(c), which necessitates filing within thirty days of the lower court’s ruling.

An appeal from the denial of a motion to reopen is considered a discretionary appeal under Tennessee law, rather than an appeal as of right. To seek permission to appeal, an applicant must submit copies of all trial court documents and the order denying the motion, as stated in Tenn. Code Ann. § 40-30-117(c). The Tennessee Supreme Court permits a 'notice of appeal' to serve as an application for permission, provided it includes the date and judgment under review, the issues to be raised, and justification for granting the appeal. Failure to comply with these requirements results in a lack of jurisdiction for the appellate court. In this case, the petitioner did not adhere to the statutory requirements by filing a notice of appeal with the trial court clerk instead of an application with the Court of Criminal Appeals, leading to a jurisdictional dismissal. Additionally, the petitioner raised claims of double jeopardy and improper sentence enhancement in his motion to reopen but seemingly abandoned these arguments on appeal, which were not addressed due to the lack of presentation. Since the timeframe for filing an application for appeal was extended to thirty days as of May 27, 2011, and the petitioner failed to timely present his sentence issue, he has waived that review. Consequently, the appeal is dismissed.