State v. Wilbur Kerney

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1997 SESSION
FILED
January 22, 1998
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
APPELLEE, )
) No. 02-C-01-9608-CC-00264
)
) Weakley County
v. )
) William B. Acree, Jr., Judge
)
) (Sentencing)
WILBUR A. KERNEY, AKA )
WILBUR ALLEN MINOR, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Pamela J. Drewery John Knox Walkup
Attorney at Law Attorney General & Reporter
1008 West Forrest 500 Charlotte Avenue
Jackson, TN 38301 Nashville, TN 37243-0497
Sarah M. Branch
Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
Thomas A. Thomas
District Attorney General
P.O. Box 218
Union City, TN 38225
OPINION FILED:_______________________________
AFFIRMED PURSUANT TO RULE 20
Joe B. Jones, Presiding Judge
OPINION
The appellant, Wilbur A. Kerney, also known as Wilbur Allen Minor (defendant),
appeals as of right from a judgment of the trial court summarily denying his motion for a
reduction or modification of his sentence pursuant to Rule 35, Tennessee Rules of Criminal
Procedure. In this court, the defendant presents three issues for review. He contends (1)
the affidavit of complaint was fatally defective,1 (2) his sentence is subject to reduction or
modification,2 and (3) the trial court erred in refusing to grant him a hearing on his motion
to stay, vacate, and remand the bind-over order. 3 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 pursuant
to Rule 20, Rules of Tennessee Court of Criminal Appeals.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
1
The entry of a guilty plea, which is voluntarily, understandingly and intelligently
entered, constitutes a waiver of all procedural and constitutional defects in the proceedings
that occurred prior to the entry of plea. See State v. Turner, 919 S.W.2d 346, 354 n.39
(Tenn. Crim. App. 1995), per. app. denied (Tenn. 1996). This is true regarding matters
pertaining to the preliminary hearing stage of the proceedings. See Bland v. State, 2 Tenn.
Crim. App. 77, 81, 451 S.W.2d 699, 701 (1969), cert. denied (Tenn. 1970). Moreover, the
defendant does not challenge the constitutionality of the indictment which was returned in
this cause.
2
A trial court may in the exercise of its discretion refuse a request for a hearing on
a Rule 35, Tennessee Rules of Criminal Procedure motion. The trial court did not abuse
its discretion in this matter. The motion failed to state sufficient grounds on the face of the
document to warrant a hearing. The defendant entered a plea of guilty pursuant to a plea
bargain agreement, which contained an agreed upon sentence.
3
See footnote 1.
2
CONCUR:
______________________________________
JERRY L. SMITH, JUDGE
______________________________________
CURWOOD WITT, JUDGE
3