State of Tennessee v. Cedrick Stampley

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
APRIL 1998 SESSION
November 4, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
CEDRIC STAMPLEY, ) No. 02C01-9707-CR-00288
)
Appellant, )
) SHELBY COUNTY
V. )
) HON. JOHN P. COLTON, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
)
)
For the Appellant: For the Appellee:
Cedric Stampley, Pro Se John Knox Walkup
4018 Mountain Terrace Attorney General and Reporter
Memphis, TN 38127
Peter M. Coughlan
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
C. Alanda Horne
Assistant District Attorney
201 Poplar Street, Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Special Judge
OPINION
The appellant, Cedric Stampley, appeals as of right the denial in the Shelby
County Criminal Court of his petition for post-conviction relief. The trial court
dismissed appellant’s pro se petition without the appointment of counsel and without
an evidentiary hearing. On appeal, appellant argues that the trial court erred in
summarily dismissing his petition. We affirm the judgment of the trial court.
Appellant was convicted of attempted first degree murder in 1994 and received
a sentence of 23 years. On direct appeal, this Court affirmed his conviction and
sentence. State v. Cedric Stampley, No. 02C01-9409-CR-00208 (Tenn. Crim. App. at
Jackson, August 16, 1996), perm. app. denied (Tenn. 1997). Appellant filed the
instant petition on April 8, 1997. He alleged four grounds for relief: (1) denial of
assistance of counsel by the trial court in permitting him to proceed pro se at trial and
on appeal without ensuring a voluntary and knowing waiver of counsel; (2) a defective
indictment for failure to contain sufficient factual allegations; (3) denial of due process
by the trial court’s failure to instruct the jury on lesser included offenses; and (4) an
excessive sentence given the evidence and law.
The post-conviction court entered a preliminary order and denied the petition
without holding an evidentiary hearing. Before dismissing the petition, however, the
trial court reviewed the transcript of the hearing on defendant’s motion to proceed pro
se and found that appellant was properly advised of his right to waive counsel. In
addition, the post-conviction court held that the appellant had waived any claims for
relief based upon defects in the indictment and errors in failing to charge on lesser
offenses by not raising those issues on appeal. Nevertheless, it concluded that the
indictment properly informed the defendant of the nature and cause of the accusation
against him. Finally, the post-conviction court found that instructions on the lesser
offenses of voluntary manslaughter and criminally negligent homicide were not
warranted by the proof at trial.
2
We are unpersuaded by much of appellant’s authority because it relates to
procedure under the now-repealed Post-Conviction Procedure Act. See Tenn. Code
Ann. §§40-30-101 - 124 (repealed 1995). In contrast, the current Post-Conviction
Procedure Act contains more stringent standards and requires closer scrutiny of post-
conviction petitions by the trial court. Blair v. State, 969 S.W.2d 423, 425 (Tenn. Crim.
App. 1997), perm. app. denied (Tenn. 1998).
Under Tennessee Code Annotated section 40-30-206, the trial court is required
to preliminarily review the factual allegations in a post-conviction petition along with all
files, records, transcripts, and correspondence relating to the judgment under attack.
If the claims have been waived or previously determined, or if the facts alleged fail to
show that appellant is entitled to relief, the petition must be dismissed. Tenn. Code
Ann. §40-30-206(f) (1997) (emphasis added).
The post-conviction court properly determined that appellant’s claim regarding
the failure to charge lesser offenses was waived for failing to raise it on direct appeal.
See Tenn. Code Ann. §40-30-206(g) (1997). Although not addressed by the trial
court, appellant’s challenge to his sentence has been previously determined because
it was raised on direct appeal. See Tenn. Code Ann. §40-30-206(h) (1997). Any
additional grounds in that regard upon which appellant now seeks to challenge the
sentence have been waived. Because appellant’s petition failed to assert facts to
demonstrate why these claims are not waived or previously determined, dismissal was
appropriate. See Tenn. Sup. Ct. R. 28, §5(F).
We disagree, however, with the trial court’s conclusion that the appellant
waived his claim for relief based upon a defective indictment by not raising the issue
on direct appeal. Since the sufficiency of an indictment is jurisdictional in nature, the
issue was not untimely raised in the post-conviction petition. See Dennis Dykes v.
Billy Compton, Warden, No. 02S01-9711-CC-00105 (Tenn. at Jackson, September
21, 1998) (holding that sufficiency of an indictment may be raised in habeas corpus
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petition). Nevertheless, we find, as did the trial court, that the indictment in this case
did contain sufficient facts so as to adequately inform the appellant of the nature and
cause of the accusation against him. The appellant is not entitled to post-conviction
relief on this ground.
With regard to appellant’s waiver of counsel, the record demonstrates that the
trial court followed the proper procedure in allowing the appellant to waive counsel and
represent himself. Before a trial court may accept a written waiver of counsel, 1 the
trial court must advise the accused of the right to counsel at every stage of the
proceedings. Tenn. R. Crim. P. 44(a). In determining whether there has been a
competent and intelligent waiver, the trial court must inquire into the background,
experience, and conduct of the accused. Id.
The transcript in the record before us reflects that the trial court determined
that appellant completed high school and also some courses at broadcasting school.
Appellant stated he could read and write without difficulty. He affirmed that he had
reviewed the rules of procedure and the law relative to the charge pending against
him. Appellant stated that he understood the charge against him and knew that he
was bound by the same procedural rules as a lawyer. Appellant had no questions
about representing himself and disregarded the trial court’s recommendation to keep
his court-appointed lawyer. The trial court found that appellant was literate,
competent, and aware of the charge and what he was facing. Therefore, it ruled that
appellant freely and voluntarily waived his right to counsel.
Although the trial court granted appellant’s request to represent himself, it
required court-appointed counsel to remain as elbow counsel and ensured that
appellant had access to an investigator from the public defender’s office. The trial
court took more than the necessary steps to ensure that appellant knowingly and
1
Appellant’s petition states that he filed a motion to proceed pro se, which qualifies as a written
waiver. State v. Go odw in, 909 S.W .2d 35, 39 (Tenn. Crim . App. 1995).
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intelligently waived his right to counsel at the trial level. See State v. Goodwin, 909
S.W.2d 35, 41 (Tenn. Crim. App. 1995).
Appellant also argues that the record does not contain a waiver of his right to
appellate counsel. According to appellant, at the conclusion of the sentencing
hearing, the trial court inquired as to whether appellant wanted to continue
representing himself. Appellant argues that the trial court did not again make the
necessary inquiries to ensure his waiver was knowing and intelligent. However,
appellant asserts no facts in the petition to demonstrate that his circumstances had
changed so that the earlier waiver had become invalid. Cf. State v. Gillespie, 898
S.W.2d 738, 741-42 (Tenn. Crim. App. 1994) (remanding appeal for appointment of
counsel where record failed to demonstrate that trial court made the required inquiry
for waiver of counsel). In the absence of specific factual allegations, it is proper for
the post-conviction court to dismiss the claim. Tenn. Sup. Ct. R. 28, §5(F).
Our review of the record indicates that the post-conviction court’s findings were
correct. It is clear from the record that an evidentiary hearing was unnecessary to
resolve appellant’s claims. We affirm the trial court’s judgment summarily dismissing
appellant’s petition.
_______________________________
William M. Barker, Special Judge
CONCUR:
____________________________
David G. Hayes, Judge
____________________________
Joe G. Riley, Judge
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