State v. Reginald Mabone

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION FILED
March 26, 1998
REGINALD S. MABONE, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
APPELLANT, )
) No. 02-C-01-9705-CR-00181
)
) Shelby County
v. )
) Honorable W . Fred Axley, Judge
)
) (Post-Conviction Relief)
STATE OF TENNESSEE, )
)
APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
Brett B. Stein John Knox Walkup
Attorney at Law Attorney General & Reporter
236 Adams Avenue 425 Fifth Avenue, North
Memphis, TN 38103 Nashville, TN 37243-0497
Elizabeth T. Ryan
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Rhea Cliff
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
OPINION FILED:____________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Reginald S. Mabone (petitioner), appeals as of right from a judgment
of the trial court dismissing his post-conviction action following an evidentiary hearing. In
this court, the petitioner contends he is entitled to post-conviction relief because (a) the
assistant district attorney general read the indictment at the commencement of his trial, (b)
the language contained in the reasonable doubt instruction given to the jury violated the
Sixth and Fourteenth Amendments, and (c) his sentence was enhanced by convictions
predicated upon guilty pleas which were constitutionally infirm. After a thorough review of
the record, the briefs submitted by the parties, and the law governing the issues presented
for review, it is the opinion of this court that the judgment of the trial court should be
affirmed.
The record reflects the assistant district attorney general read the indictment after
the jury had been sworn. The petitioner then entered his not guilty plea. The parties were
then afforded the opportunity to make opening statements. The petitioner argues that
allowing the assistant district attorney general to read the indictment in the presence of the
jury violated the Sixth and Fourteenth Amendments to the United States Constitution.
However, the petitioner concedes “this Court has never . . . held that such procedure
violates the defendant’s constitutional right of being presumed innocent.” The State of
Tennessee (state) contends this ground has been waived.
The petitioner is not entitled to relief on this ground. First, it is not rooted in either
the United States Constitution or the Tennessee Constitution. Tenn. Code Ann. § 40-30-
105 (repealed 1995) provided:
Relief under this chapter shall be granted when the conviction
or sentence is void or voidable because of the abridgement in
any way of any right guaranteed by the constitution of this state
or the Constitution of the United States, including a right that
was not recognized as existing at the time of the trial if either
constitution requires retrospective application of that right.
Second, this ground has been waived. The petitioner did not raise this issue in his motion
for a new trial or in his appeal as of right. Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2)
(repealed 1995) stated:
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A ground for relief is “waived” if the petitioner knowingly and
understandingly failed to present it for determination in any
proceeding before a court of competent jurisdiction in which
the ground could have been presented.
There is a rebuttable presumption that a ground for relief not
raised in any such proceeding which was held was waived.
In this case, the petitioner has not attempted to rebut the presumption of waiver.
This issue is without merit.
The ground alleging the reasonable doubt instruction was unconstitutional has been
waived. The petitioner did not object to the giving of the instruction, failed to include this
ground in his motion for a new trial, and failed to raise it in his appeal as of right. Tenn.
Code Ann. § 40-30-112(b)(1) and (b)(2) (repealed 1995). Moreover, the appellate courts
of this state have consistently ruled that like or similar reasonable doubt instructions do not
offend either the United States Constitution or the Tennessee Constitution. See Carter v.
State, 958 S.W.2d 620, - - - (Tenn. 1997); State v. Nichols, 877 S.W.2d 722, 734 (Tenn.
1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); State v.
Sexton, 917 S.W.2d 263, 265-66 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d
364, 366 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Hallock, 875 S.W.2d
285, 293-94 (Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994).
This issue is without merit.
The attempt to resurrect the convictions used to enhance the sentence imposed by
the trial court on the ground the convictions were predicated upon constitutionally infirm
guilty pleas is barred by the statute of limitations. Tenn. Code Ann. § 40-30-102 (repealed
1995). The guilty pleas were entered on May 17, 1978, January 19, 1981, and June 21,
1988. The petitioner instituted this suit on October 25, 1993. Moreover, even if this issue
was not barred by the statute of limitations, this court could not reach the merits of the
issue. The record does not contain the petition to enter the guilty pleas or the order
permitting the entry of the pleas.
This issue is without merit.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
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CONCUR:
______________________________________
GARY R. WADE, JUDGE
______________________________________
JERRY L. SMITH, JUDGE
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