Robert Senick v. State ( 2010 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
December 3, 1998
SEPTEMBER 1998 SESSION
Cecil W. Crowson
Appellate Court Clerk
ROBERT SENICK, )
)
Appellant, ) C.C.A. No. 01C01-9711-CR-00550
)
vs. ) DeKalb County
)
STATE OF TENNESSEE, ) Hon. Leon Burns, Jr., Judge
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
HARVEY DOUGLAS THOMAS JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
3367 Phillips Cemetery Rd.
Algood, TN 38506 DARYL J. BRAND
Senior Counsel for the State
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
WILLIAM EDWARD GIBSON
District Attorney General
ANTHONY J. CRAIGHEAD
Asst. District Attorney General
145 S. Jefferson St.
Cookeville, TN 38501
OPINION FILED:________________
AFFIRMED - RULE 20
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The petitioner, Robert Senick, appeals the DeKalb County Criminal
Court's denial of his petition for post-conviction relief. Senick is currently serving an
effective seven year sentence in the Department of Correction for the crimes of
possession with intent to deliver or sell over ten pounds of marijuana and
conspiracy to possess with intent to deliver or sell over ten pounds of marijuana.
See State v. Robert Senick, No. 01C01-9409-CR-00312 (Tenn. Crim. App.,
Nashville, Sept. 22, 1995), perm. app. dismissed (Tenn. 1996). In his post-
conviction petition, he (1) challenged the constitutionality of the reasonable doubt
jury instruction given at his trial, (2) alleged his trial attorney deprived him of his right
to not to testify against himself, (3) claimed his trial attorney was ineffective for
failing to raise an issue on appeal, (4) alleged he was deprived of a fair trial by
comments made during voir dire by a prospective juror, and (5) claimed he was
deprived of due process by the trial court's failure to fulfill its duties as the thirteenth
juror. The trial court found each of the issues without merit. In this appeal, we find
no error of law requiring reversal, and thus we affirm the judgment pursuant to Rule
20, Rules of the Court of Criminal Appeals.
The Post-Conviction Procedure Act provides, "There is a rebuttable
presumption that a ground for relief not raised before a court of competent
jurisdiction in which the ground could have been presented is waived." Tenn. Code
Ann. § 40-30-210(f) (1997); see also Tenn. Code Ann. § 40-30-206(g) (1997);
House v. State, 911 S.W.2d 705, 706 (Tenn. 1995), cert. denied, 517 U.S. 1193,
116 S. Ct. 1685 (1996). In the case at bar, issues (1) and (5) are ones which could
have been presented on direct appeal but were not. Moreover, the petitioner made
no allegation and offered no proof why these issues were not pursued on direct
appeal. See Tenn. Code Ann. § 40-30-204(e) (1997). As such, these issues have
been waived.
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It is also well-settled law in the area of post-conviction practice that
issues which were previously determined in earlier proceedings are not subject to
relitigation. Tenn. Code Ann. § 40-30-206(f); see, e.g., Daniel B. Taylor v. State,
No. 02C01-9703-CR-00091, slip op. at 5-6 (Tenn. Crim. App., Jackson, Mar. 18,
1998). Issue (4) was presented on direct appeal as a dual attack on the trial court's
failure to grant a change of venue and failure to declare a mistrial. We found
Senick's argument for change of venue without merit and his mistrial issue waived
for failure to cite authority in his brief. See Robert Senick, slip op. at 5-7. As such,
issue (4) has been previously determined.
A post-conviction petitioner must prove his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997). The court below
considered the evidence presented at the post-conviction hearing and made
thorough and thoughtful findings of fact and conclusions of law which were adverse
to the positions advanced by the petitioner in issues (2) and (3). We are bound by
the trial court's findings of fact and conclusions of law unless the evidence of record
preponderates against the judgment. Black v. State, 794 S.W.2d 752, 755 (Tenn.
1990). The evidence in the case at bar does not so preponderate.
In sum, we find no error of law requiring reversal. The judgment of the
trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
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_______________________________
GARY R. WADE, PRESIDING JUDGE
_______________________________
THOMAS T. WOODALL, JUDGE
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