Corey Adams Kennerly v. State ( 1999 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE              FILED
    APRIL SESSION, 1999          April 29, 1999
    Cecil W. Crowson
    COREY ADAMS KENNERLY, )                            Appellate Court Clerk
    C.C.A. NO. 01C01-9806-CC-00252
    )
    Appe llant,       )
    )
    )             FRANKLIN COUNTY
    VS.                   )
    )             HON. J. CURTIS SMITH,
    STATE OF TENNESSEE,   )             JUDGE
    )
    Appellee.         )             (Post-Conviction)
    ON APPEAL FROM THE JUDGMENT OF THE
    CIRCUIT COURT OF FRANKLIN COUNTY
    FOR THE APPELLANT:                  FOR THE APPELLEE:
    FLOY D DO N DA VIS                  JOHN KNOX WALKUP
    201 Firs t Avenu e, N.W .           Attorney General and Reporter
    Win cheste r, TN 37 398
    KIM R. HELPER
    Assistant Attorney General
    425 Fifth Avenu e North
    Nashville, TN 37243-0493
    J. MICHAEL TAYLOR
    District Attorney General
    STEVEN M. BLOUNT
    Assistant District Attorney General
    1002 East Main Street
    Decherd, TN 37324
    OPINION FILED ________________________
    AFFIRMED
    DAVID H. WELLES, JUDGE
    OPINION
    The Defe ndan t, Core y Ada ms K enne rly, app eals th e trial co urt’s denial of
    his petition for post-conviction relief. On October 28, 1996, Defendant pleaded
    guilty to first degree felony murder and especially aggravated robbery. Pursuant
    to the plea agreement, the trial court sen tenced Defen dant to life imprisonment
    with the possibility of parole for felony murd er and twenty years fo r espe cially
    aggrava ted robb ery, to be se rved con current to his life sente nce.
    On January 13, 1997, Defendant filed a pro se petition for post-conviction
    relief, which he later amended.1 Following a post-conviction evidentiary hearing,
    the trial court denied relief, and Defendant appealed. In this appeal, Defendant
    raises three assignm ents of error for review: (1) th e trial co urt failed to com ply
    with Tennessee Rule of Criminal Procedure 11(d), and as a re sult, his plea was
    not entered voluntarily; (2) the trial court erred by overruling his motion to dismiss
    his attorneys of record; and (3) he suffered the ineffective assistance of counsel
    becau se cou nsel failed to reques t a chang e of venu e.
    I.
    In his half-page argument to this Court, Defendant alleges that the trial
    court “failed to advise him o f certain of his constitutional rights and statutory
    rights,” citing to Boykin v. Alabama, 
    395 U.S. 238
     (1969), and State v. Mackey,
    
    553 S.W.2d 337
     (Tenn. 1977). A thorough review of the plea hearing transcript
    revea ls that Defendant’s hearing could perhaps serve as a model for trial judges
    1
    Although the court had appointed counsel at that time, Defendant filed this amended
    petition pro se.
    -2-
    to follow when accepting guilty pleas. The trial judge in this case placed the
    utmost importance on Defendant’s understanding of the proceedings, including
    the prote ctions affo rded by th e United States a nd Te nness ee Co nstitutions.
    In his brief, Defendant specifies only one right which he contends was not
    but should have been given. He states, “The Court failed to advise him that he
    had a specific right to a chan ge of ven ue . . . .” Defendant has not cited, nor can
    this Court locate, any authority tending to show that the trial court ha s a duty to
    inform criminal defendants of a right to chan ge ven ue. Th erefor e, this iss ue is
    both waived a nd witho ut merit. We conclude that the trial court properly ensured
    the knowing and voluntary nature of Defendant’s plea.
    II.
    In his second issue, Defendant alleges that the trial court erred by denying
    his motion to dismiss his attorne ys of reco rd. How ever, as th e State p oints out,
    Defendant has waived this issue by failing to provide any argument in his brief on
    appea l to this Cou rt.
    III.
    Finally, Defendant argues that he suffered the ineffective assistance of
    counsel prior to his guilty plea. Gleaning his argument from the statement of
    facts contained in his brief, it appears that this issue has tw o pron gs: (1) h is
    counsel failed to advise him of his constitutional rights, including the right to plead
    -3-
    not guilty and procee d to trial; and (2) his coun sel failed to inform him that his
    case could have b een mo ved to a location o ther than Fran klin or Grundy C ounty.
    It is more than apparent from the transcript of the guilty plea that Defendant
    was aware of his constitutional rights, including the right to plead not guilty and
    proceed to trial. T herefo re, eve n if his counsel had been deficient in this respe ct,
    Defendant could not fulfill his burden to s how he w as prejudiced by the
    deficiency.    Furthermore, his pretrial counsel testified at the post-conviction
    hearing that the decision not to request a change of venue was made after the
    issue was fully discussed with Defendant prior to the plea. Defendant testified
    at his plea hearing that he ha d no diss atisfaction w ith his pretrial c ounse l.
    The trial judge en tered a th orough mem orandu m opin ion den ying pos t-
    conviction relief. The ev idence clearly sup ports the trial judge’s find ings. Based
    upon a thorough reading of the record, the briefs of the parties, and the law
    governing the issue s prese nted for re view, we a ffirm the jud gmen t of the trial
    court.
    ____________________________________
    DAVID H. WELLES, JUDGE
    -4-
    CONCUR:
    ___________________________________
    JOHN H. PEAY, JUDGE
    __________________________________
    JAMES CURWOOD WITT, JR.
    -5-
    

Document Info

Docket Number: 01C01-9806-CC-00252

Filed Date: 4/29/1999

Precedential Status: Precedential

Modified Date: 10/30/2014