Don Wesley McMillen v. State of Tennessee ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 3, 2004
DON WESLEY MCMILLEN v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Coffee County
No. 29, 712 John W. Rollins, Judge
No. M2003-00879-CCA-R3-PC - Filed May 10, 2004
The petitioner, Don Wesley McMillen, entered a plea of guilty to two (2) counts of attempted rape
of a child in May of 1998. In exchange for the guilty pleas, the petitioner received concurrent,
seventeen-year sentences at 35% as a Range II Offender. The petitioner timely filed a petition for
post-conviction relief arguing that he received ineffective assistance of counsel and that his guilty
plea was not knowing or voluntary because the trial court violated the provisions of State v. Mackey,
553 S.W.2d 337 (Tenn. 1977). The trial court denied the petition following an evidentiary hearing
and this appeal followed. We affirm the dismissal of the post-conviction petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed
JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES, and THOMAS T.
WOODALL, JJ., joined.
Roger J. Bean, Tullahoma, Tennessee, for the appellant, Don Wesley McMillen.
Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Mickey Layne, District Attorney General; and Doug Aaron, Assistant District Attorney General, for
the appellee, State of Tennessee.
OPINION
Factual Background
On May 22, 1998, the petitioner pled guilty to two counts of attempted rape of a child.
Pursuant to settlement with the State, several of the charges were dismissed or reduced in exchange
for the guilty pleas. As a result, the petitioner received concurrent, seventeen-year sentences at 35%
as a Range II Offender. During the plea hearing, the prosecutor stated that if the case had gone to
trial, the State would have proven that the victim, a child under the age of thirteen, would have
testified that from August to November of 1997, the petitioner was living with her family and
“penetrated her vaginal cavity on two different occasions.”
The petitioner then filed a petition for post-conviction relief alleging that trial counsel was
ineffective for not thoroughly investigating the matter, failing to interview several people, and failing
to file a discovery motion; and that his guilty plea was not knowing or voluntary.
Post-Conviction Hearing
An evidentiary hearing was held on the post-conviction petition on February 6, 2003. The
trial court dismissed the petition after hearing testimony from various individuals, including trial
counsel, the petitioner, an investigator from the Public Defender’s office, the police officers involved
in the investigation, the doctor that treated the victim, the nurse that treated the victim, and several
others.
The evidence at the hearing consisted of the following. The petitioner testified that, at the
time of the hearing, he was forty-five years old and had only a seventh grade education. The
petitioner later received his GED. He admitted to a prior conviction on a similar charge of rape of
a child in Florida, but claimed that he was beaten and forced into making a false statement admitting
his guilt.
After the petitioner was arrested, the Public Defender was appointed to represent him. He
claims that he only spoke with trial counsel four times prior to the entry of his guilty plea, for a total
of about four hours and that he spoke with Dale Conn, the investigator in the Public Defender’s
office, on five or six different occasions. The petitioner testified that he gave Mr. Conn both oral
and written requests of matters that he wished trial counsel to pursue in his defense.
The petitioner testified at length as to how he felt trial counsel’s representation was
ineffective. He complained about trial counsel’s failure to file a discovery motion, even though the
petitioner was aware of the “open file” policy that existed between the Public Defender’s office and
the District Attorney’s office. Further, the petitioner claimed that he felt compelled to file a pro se
discovery petition, but that Mr. Conn had it “squashed.” The petitioner claimed that counsel failed
to interview numerous witnesses, including: George Teal, the neighbor of the victim who allegedly
would have testified that the victim was trying to blackmail the petitioner; Dot Qualls, the treating
nurse at Coffee County Medical Center; Mike “Ace” Killian, a person who allegedly would have
testified that the victim was not afraid of the petitioner as she claimed; Dr. Rao Chunduru, the
treating physician at Coffee County Medical Center who could have testified regarding the result of
tests performed on the victim to determine whether she had a sexually transmitted disease; Kenny
Gipson; and the victim’s family. The petitioner complained about trial counsel’s failure to interview
the victim for the purpose of challenging her inconsistent statements. The petitioner claimed that
he and trial counsel never discussed the merits of the case, the likelihood of conviction, possible
defenses, or the elements of the crimes he was charged with.
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The petitioner testified that essentially, he wanted trial counsel to investigate the
inconsistencies in statements made by the victim and wanted tests for sexually transmitted diseases
performed on both himself and the victim. He claimed that trial counsel’s failure to honor his
requests led to a failure by trial counsel to build a defense and the entry of an unknowing and
involuntary guilty plea.
Trial counsel testified that his case activity sheet shows that either he or Mr. Conn met with
the petitioner at least ten times prior to the entry of the guilty plea and that some conversations,
which occurred while trial counsel was at the jail visiting other clients, were not reflected on the
sheet. The case activity sheet indicates that he spoke extensively with the petitioner about his case.
Trial counsel explained that he did not file a discovery motion in the petitioner’s case because
the district attorney general has an “open file” policy. He stated that he reviewed the entire file on
more than one occasion. Trial counsel rebutted the petitioner’s claims that he did not interview any
witnesses. He testified that he interviewed the victim at the general sessions stage of the case and
discussed the inconsistencies in the various statements that she had made. He also remembered that
either he or Mr. Conn interviewed Dot Qualls, the treating nurse.1
Trial counsel admitted that he did not interview the treating physician, Dr. Rao Chunduru.
He felt that such an interview was unnecessary because the victim’s medical records and doctor’s
notes were part of the case file, and nothing contained in those records required an interview for
follow-up. In fact, trial counsel specifically recalled that nothing in the medical records indicated
the presence of a sexually transmitted disease as the petitioner claimed. Trial counsel did not
interview the victim’s father or siblings because he learned through his investigation that much of
what these individuals would have testified to would have been hearsay.
Trial counsel testified that he interviewed Officer Wilma Thomas of the Manchester Police
Department in conjunction with the preparation of the petitioner’s defense. Officer Thomas, in turn,
testified that she recalled speaking with trial counsel on one occasion, but that she could not
remember the extent of the discussion.
The petitioner’s criminal record was provided to trial counsel by the FBI. It indicated that
the petitioner had a prior conviction in Florida for a similar offense and that the petitioner operated
under several aliases. The petitioner also had a “fondling charge.” Trial counsel testified that he
discussed with the petitioner the implications of his criminal record should it be admitted at trial and
the standard for admissibility that the trial court would utilize regarding the Florida conviction. Trial
counsel also remembered telling the petitioner that he thought the chances for conviction were great
and that the sentence for rape of a child as a Range I Offender was fifteen to twenty-five years.
Specifically, as to the plea bargain, trial counsel read from his own notes that on May 25, just prior
to the entry of the plea, he:
1
Dot Qualls did not remember speaking with anyone regarding the case except for the night that the victim was
brought to the hospital.
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met with the defendant at jail. Went over the plea bargain. Discussed the facts of the
case, possible defenses, range of punishment, waiver of rights, enhancement. I
explained to the defendant that I felt he would be found guilty, and he would serve
85 percent of the sentence, that under the plea bargain the State offered he would not.
He still wants to take deal. Explained what would happen at court, all of which he
understood.
Further, trial counsel’s notes indicate that the petitioner was provided with copies of all of the
applicable statutes, a copy of the sentencing range chart, a copy of the rights which would be waived
upon the entry of the guilty plea, and a copy of the case file. The petitioner signed for his receipt of
that information.
Dale Conn, an investigator for the Public Defender’s office, also testified at the post-
conviction hearing. During the investigation, Mr. Conn admits that he requested the victim’s test
results from the hospital, but that the plea was entered before the test results were obtained. Further,
he admits that he did not interview any of the victim’s family members or neighbors. He did not
recall if the petitioner specifically requested these interviews. Mr. Conn stated that he sat down with
the petitioner to review his file and told petitioner that “things were not the best.” Mr. Conn recalled
that the petitioner’s main objective was to get his sentence out of the 100% release eligibility
bracket.
At the conclusion of the hearing, the trial court denied the petition. On appeal, the post-
conviction petition seeks review of the following issues: (1) whether the petitioner received
ineffective assistance of counsel; and (2) whether the guilty plea was made knowingly,
understandingly, and voluntarily.
Post-Conviction Standard of Review
The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).
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Ineffective Assistance of Counsel
When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.
Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).
In the case herein, the petitioner argues on appeal that he was denied effective assistance of
counsel because counsel failed to prepare any defense, failed to interview the victim and other
witnesses, relied only on an FBI criminal history report as evidence of the petitioner’s prior record,
and failed to file a discovery motion. Specifically, the petitioner contends that trial counsel’s failure
to do these things forced him to plead guilty because he did not think he would receive a fair trial
otherwise. The State counters that the record refutes the petitioner’s claim that counsel’s
performance was deficient.
After listening to the testimony at the post-conviction hearing, the trial court determined that
the petitioner failed to demonstrate by clear and convincing evidence that counsel performed
deficiently as there was “no evidence in the record that the public defender’s representation . . . [fell]
below” the applicable standard.
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In order for the petitioner to prevail herein, he must show, by clear and convincing evidence,
that his attorney failed to properly advise him of the possible consequences of his plea and that trial
counsel’s failure to do so resulted in prejudice. Once a guilty plea has been entered, effectiveness
of counsel is relevant only to the extent that it affects the voluntariness of the plea. In this respect,
such claims of ineffective assistance necessarily implicate the principle that guilty pleas be
voluntarily and intelligently made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North
Carolina v. Alford, 400 U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the
effectiveness of counsel, the petitioner must demonstrate that counsel’s representation fell below the
range of competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936.
Under Strickland v. Washington, 466 U.S. at 687, the petitioner must establish (1) deficient
representation and (2) prejudice resulting from the deficiency. However, in the context of a guilty
plea, to satisfy the second prong of Strickland, the petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim.
App. 1997).
The record does not preponderate against the finding that trial counsel was effective. Implicit
in the post-conviction court’s findings and conclusions was that the court accredited the testimony
of trial counsel rather than that of the petitioner. “[Q]uestions of credibility of the witnesses, the
weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted
to the trial judge as the trier of fact.” State v. Odum, 928 S.W.2d 18, 23 (Tenn. 1996).
The trial court accepted as true the testimony of trial counsel concerning the circumstances
of the plea and the conversations leading up to that decision, including the fact that there were
numerous meetings between the petitioner and either trial counsel or Mr. Conn in which the merits
of the case and any plausible defenses were discussed. Further, the case activity sheet, as testified
to by trial counsel, indicated that the petitioner met with trial counsel and discussed the plea at length
just several days prior to its entry. At that time, there was no indication that the petitioner wanted
a trial. The petitioner even signed an acknowledgment indicating that he had received a copy of the
applicable statutes, the sentencing range chart, and a statement of what rights he was waiving by
pleading guilty. Further, the petitioner’s own testimony at the plea hearing indicates that he was
advised by his attorney of the elements of the crime, the State’s burden of proof, and any defenses
that were available. The record also shows that there was an “open file” policy at the district
attorney’s office, that counsel had complete access to the petitioner’s file, and that he reviewed it on
several occasions prior to the entry of the guilty plea. Additionally, while trial counsel relied upon
an FBI report to learn of the petitioner’s criminal record, there is no evidence in the record before
this Court that the FBI report was incorrect or that the admission of records from Florida would have
somehow affected the petitioner’s case. Finally, while trial counsel admits that he did not interview
the litany of witnesses the petitioner deemed essential, he interviewed those persons he felt necessary
and proper to prepare the petitioner’s defense and in preparation for the guilty plea hearing.
As stated previously, this Court affords the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
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against the court’s findings. After a de novo review, we conclude that the evidence in the record
does not preponderate against the trial court’s decision that trial counsel was effective.
Voluntary and Knowing Guilty Plea
The second issue raised by the petitioner in this post-conviction appeal questions the knowing
and voluntary nature of his guilty plea. The petitioner maintains that the trial court violated the
mandates established in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), and later adopted in Rule
11(c) of the Tennessee Rules of Criminal Procedure, by failing to: (1) inquire whether the petitioner
understood the mandatory minimum and maximum penalties; (2) advise the petitioner of his right
to plead not guilty and persist in that plea; and (3) advise the petitioner that if he plead guilty, the
court could ask him certain questions under oath and those answers could be used against him in a
prosecution for perjury if those statements were false. As a result, he argues that his guilty plea was
not knowing or voluntary. The State argues that “violations of the mandates established in Mackey
are not cognizable during post-conviction proceedings.”
When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.” Alford, 400
U.S. at 30. The court reviewing the voluntariness of a guilty plea must look to the totality of the
circumstances. See State v. Turner, 191 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also
Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Specifically, a reviewing
court must consider “the relative intelligence of the defendant; the degree of his familiarity with
criminal proceedings; whether he was represented by competent counsel and had the opportunity to
confer with counsel about the options available to him; the extent of advice from counsel and the
court concerning the charges against him; and the reasons for his decision to plead guilty, including
a desire to avoid a greater penalty that might result from a jury trial. Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993).
A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Id. at 904. The trial court must determine if the guilty plea is “knowing”
by questioning the defendant to make sure he fully understands the plea and its consequences. State
v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999); Blankenship, 858 S .W.2d at 904.
In Boykin v. Alabama, the United States Supreme Court held that an accused’s guilty plea
must be voluntarily, knowingly, and understandingly entered before a conviction resting upon a
guilty plea may comply with due process. 395 U.S. 238 (1969). In Boykin, the Supreme Court
stated that a guilty plea constituted a waiver of various rights and that it would not presume a waiver
of the following federal constitutional rights from a silent record: (1) the privilege against
compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s
accusers. Id. at 242. Thus, Boykin placed a premium on a showing in the record of a sufficient
waiver of these specified rights.
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Exercising “its supervisory power to [e]nsure that the courts of this State afford fairness and
justice to defendants in criminal cases,” our Supreme Court developed stricter standards than those
mandated by the Boykin decision in State v. Mackey, 553 S.W.2d 337, 340-41 (Tenn. 1977),
superseded on other grounds by Tenn. R. Crim. P. 37(b) & Tenn. R. App. P. 3(b). Mackey requires
that trial judges accepting pleas of guilty in criminal cases substantially adhere to the following
procedure:
[T]he court must address the defendant personally in open court and inform him of,
and determine that he understands, the following:
(1) The nature of the charge to which the plea is offered, and the mandatory
minimum penalty provided by law, if any, and the maximum possible penalty
provided by law; and, if applicable, that a different or additional punishment may
result by reason of his prior convictions or other factors which may be established in
the present action after the entry of his plea; and
(2) If the defendant is not represented by an attorney, that he has a right to be
represented by an attorney at every stage of the proceeding against him, and if
necessary, one will be appointed to represent him; and
(3) That he has a right to plead not guilty or to persist in that plea if it has already
been made, and, that he has the right to be tried by a jury and at that trial has the right
to the assistance of counsel, the right to confront and cross-examine witnesses against
him, and the right not to be compelled to incriminate himself; and
(4) That if he pleads guilty, there will not be a further trial of any kind except to
determine the sentence so that by pleading guilty he waives the right to a trial; and
(5) That if he pleads guilty, the court or the state may ask him questions about the
offense to which he has pleaded, and if he answers these questions under oath, on the
record, and in the presence of counsel, his answers may later be used against him in
a prosecution for perjury or false statement, and, further, that, upon the sentencing
hearing, evidence of any prior convictions may be presented to the judge or jury for
their consideration in determining punishment.
Id. at 341. The Mackey court also stated:
The court shall not accept a plea of guilty without first, by addressing the defendant
personally in open court, determining that the plea is voluntary and not the result of
force or threats or of promises apart from a plea agreement. The court shall also
inquire as to whether the defendant’s willingness to plead guilty results from prior
discussions between the District Attorney General and the defendant or his attorney.
Id. The Mackey requirements have been adopted into Rule 11 of the Tennessee Rules of Criminal
Procedure.
However, some of the mandated Mackey advice is not required by Boykin, but represents a
supervisory pronouncement of the Court. State v. Prince, 781 S.W.2d 846, 852-53 (Tenn. 1989).
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“[A]ny other requirement of Mackey in excess of Boykin is not based upon any constitutional
provision, federal or state. It follows, that any omissions, not required in Boykin may be relied upon
on direct appeal in appropriate cases but such omissions have no validity on the first or any
subsequent post-conviction proceeding.” Id. at 853. Courts of this state have consistently held that
Mackey advice which is not required by Boykin is not constitutionally based and, therefore, is not
cognizable in a petition for post-conviction relief. See, e.g., Johnson v. State, 834 S.W.2d 922, 925
(Tenn.1992); State v. Neal, 810 S.W.2d 131 (Tenn.1991), overruled in part on other grounds by
Blankenship, 858 S.W.2d at 902; Prince, 781 S.W.2d at 853; Hicks v. State, 983 S.W.2d 240, 247
n.10 (Tenn. Crim. App. 1998); Sneed v. State, 942 S.W.2d 567, 568-69 (Tenn. Crim. App. 1996);
Bryan v. State, 848 S.W.2d 72, 75 (Tenn. Crim. App. 1992); Teague v. State, 789 S.W.2d 916, 917
(Tenn. Crim. App.1990).
The colloquy between the petitioner and the trial court at the plea hearing indicates that the
trial court asked the petitioner if the plea was freely and voluntarily made; if he had been informed
of the elements of the crime, burden of proof, and defenses; and if he understood: (1) the nature of
the charges against him; (2) that by pleading guilty he was giving up the right to a trial by jury; (3)
that by pleading guilty he was giving up the right to confront witnesses; and (4) that by pleading
guilty he was giving up the right to self-incrimination. In other words, the trial court satisfied the
requirements of Boykin. After questioning the petitioner about the rights he was relinquishing by
pleading guilty, the following exchange took place:
THE COURT: Are you pleading guilty, Mr. McMillen, because in truth you are
guilty and for no other reason?
THE DEFENDANT: (Pausing)
THE COURT: Now you’re hesitating. If you want a trial, Mr. McMillen, I’ll give
you a trial.
THE DEFENDANT: Well, it’s under my assumption, sir, if I may say something
openly here, that I don’t feel that I will get a fair, unbiased trial in this county.
THE COURT: Well, I don’t know why your feelings are that way, but your lawyer
can certainly address them to me. What I’m telling you is, I have to have a response
in the positive to that, or else, I’ll set this case for trial and try it. I’m not trying to
pressure you. I’ll do everything in my power to see that you get a fair trial.
THE DEFENDANT: I’m guilty, I guess.
THE COURT: Well, the question simply is this, are you pleading guilty because in
truth, you are guilty and for no other reason? Anything less than “yes,” and we’re
going to trial. I’m not trying to force you into anything, Mr. McMillen. You have
an absolute right to a trial by jury.
THE DEFENDANT: Yes, sir.
THE COURT: I find this defendant knowingly and voluntarily enters into the plea
negotiation.
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After the trial court accepted the plea, the petitioner stated that he took “responsibility to [sic] some
of the actions, some of the crime,” but went on to give a lengthy explanation as to why he thought
he was not guilty and why he thought other people might be guilty.
In the case herein, the petitioner’s complaints about his guilty plea are based upon the non-
constitutional elements of Mackey in excess of the requirements of Boykin. The post-conviction
judge, also the presiding judge at the plea hearing, admitted that the full Mackey requirements were
not met but found nonetheless that the petitioner had entered a knowing and voluntary guilty plea.
Further, the post-conviction court found that the petitioner had failed to show prejudice as a result
of the omissions.
While it does appear that the trial court failed to comply with the Mackey and Rule 11(c)
requirements, the critical inquiry is whether the Petitioner had knowledge of certain rights and
waived those rights knowingly and voluntarily. As set out above, the mandates of Mackey are not
constitutionally based. The trial court complied with Boykin by advising the petitioner that he had
a right to a jury trial, that he had a right to confront the witnesses against him and that he had a right
not to incriminate himself. The trial court went to great lengths to insure that the petitioner was
entering the guilty plea because he was, in fact, guilty by questioning him thoroughly when the
petitioner hesitated after being asked if he was pleading guilty because he was, in fact, guilty. Relief
may be given in a post-conviction hearing only if a conviction is void or voidable because of a
violation of a constitutional right. See Tenn. Code Ann. § 40-30-103. The petitioner herein has
failed to prove that a constitutional right has been violated as the mandates of Mackey have no
constitutional basis. Thus, the petitioner’s allegations are not cognizable under the Post Conviction
Procedure Act and are without merit.
Conclusion
For the foregoing reasons, we conclude that none of the petitioner’s claims merit relief.
Accordingly, the judgment of the post-conviction court is affirmed.
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JERRY L. SMITH, JUDGE
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