# FILED

November 4, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON APRIL 1998 SESSION

CEDRIC STAMPLEY, ) No. 02C01-9707-CR-00288 ) Appellant, ) ) SHELBY COU NTY V. ) ) HON. JOHN P. COLTON, J R., 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 Repor ter Memphis, TN 38127 Peter M. Coughlan Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493

William L. Gibbons District Attorney General C. Alanda Horne Assistant District A

ttorney 201 Poplar Street, Suite 301 Memphis, TN 38103

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Specia l Judge2 OPINION The appellant, Cedric Stampley , appeals as of right the denia l in the Shelby County Criminal Court of his petition for post-conviction relief. The trial court dismissed appellant’s pro se petition without the appoi ntment 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 convic

ted of attempted first degree murder in 1994 and received a sentence of 23 years. On dir ect appeal, this Court affirmed hi s 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 gr ounds for relief: (1) denial of assistance of counsel by the trial court in permitti ng him to proceed pro se at trial and on appea l without e nsuring a vo luntary an d knowing wai ver of cou nsel; (2) a defecti ve indictment for failure to contain suff icient factual allegations; (3) denial of due process by the trial court’s

failure to instruct the jur y on lesser included offenses; and (4) an excessive s entence given the e vidence a nd law. The post-conviction court entered a preliminary o rder and denied the petition without holding an ev

identiary hearing. Before dismissing the petiti on, however, the trial court review

ed the transcript of the hearing on defendant’s motion to proceed pro
se and found that appellant was prope rly advised of his r ight to waive coun sel. In addition, the post-convic tion court held that the appell ant had waived any claims for relief based upon defects in the indi ctment and errors in failing to charge on lesser offenses by not raising those issues on appeal. Never theless, it concluded that the indictment properly infor med the defendant of the nature and cause of the accus ation against him. Finally , the post-conviction c ourt found that instructions on t he lesser offenses of voluntary manslaught er and criminally neg ligent homicide were not warranted by the proof at trial.3 We are unpersuaded by much of appellant’s authority because it relates t o procedure under the now-r epealed Post-Conviction Procedure Act. See Tenn. Code Ann. §§40-30-101 - 124 (repealed 1995). In contrast, the cur rent Post-Conviction Procedure Act contains more s tringent standards and req uires closer scruti ny of postconviction 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 secti on 40-30-206, the trial cour t is required to preliminarily review the factual allegations in a post-conviction petition along with all files, records, transcr

ipts, and correspondence rel ating to the judgment under at tack. If the claims have been wai ved or previously

determined, or if the facts alleg ed fail to show that appellant is ent itled 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 regar ding the failure to charge less er offenses was waived for failing to raise it on direct appeal. See Tenn. Code Ann. §40-30-206(g) (1997). Although not addres sed by the trial court, appellant’s challenge to his sentence has been previously determined b ecause it was raised on dir

ect appeal. See Tenn. Code Ann. §40-30-206(h) (1 997). Any additional grounds in that regard upon which appel lant now seeks to chall enge the sentence have been waiv ed. Because appellant’s petiti on failed to assert facts to demonstrate why these cl aims are not waived or previously determi ned, dismissal was appropriate. See Tenn. Sup. Ct. R. 28, §5(F). We disagree, however, with the trial court’s concl usion that the appellant waived his claim for

relief based upon a defective in dictment by not raising the issue on direct appeal. Since the s ufficiency of an indictment is j urisdictional in nature, the issue was not untimely raised in the post-conv iction petition. See Dennis Dyke s v. Billy Compton, Warden , No. 02S01-9711-CC-00105 ( Tenn. at Jackson, September 21, 1998) (holding that suffici ency of an indictment may be r aised in habeas corpus1 Appellant ’s peti tion states that he fil ed a motion to pro ceed pro se , which qual ifies a s a writt en waiver. State v. Go odw in , 909 S.W .2d 35, 39 (Tenn. Crim . App. 1995). 4 petition). Nevertheless, we find, as did the trial court, that the indictment in this case did contain sufficient facts so as t o adequately inform the appell ant of the nature and cause of the accusation against him. The appellant is not entitl ed to post-conviction relief on this ground. With regard to appellant’s waiv er of counsel, the record demonstr ates that the trial court followed t he proper procedure in all owing the appellant to w aive counsel and represent himself. Before a trial court may accept a written waiver of counsel, 1 the trial court must advi se the accused of the right to counsel at every stag e of the proceedings. Tenn. R. Cr im. P. 44(a). In determining whether there has been a competent and intelligent w aiver, the trial cour

t must inquire into the background, experience, and conduct of the ac cused. Id. The transcript in the recor d before us reflects that the tri al court determined that appellant completed high school and also some co urses 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 under stood the charge against him and knew that he was bound by the same proc edural rules as a law

yer. Appellant had no que stions about representing himself and di sregarded the trial cou rt’s recommendation to keep his court-appointed law yer. The trial court found that appellant was liter ate, competent, and aware of the charg e and what he was facing . Therefore, it ruled that appellant freely and volu ntarily waiv ed 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 inv estigator from the public defender ’s office. The trial court took more than the necessar y steps to ensure that appel lant knowingly a nd5

intelligently w

aived his right to counsel at the trial lev el. See State v. Goodwin , 909 S.W.2d 35, 41 (Tenn. Crim. App. 1995). Appellant also argues that the record does not contain a w aiver of his right t

o appellate counsel. Accordi ng to appellant, at the concl usion of the sentencing hearing, the trial cour

t inquired as to whet her appellant wanted to conti nue representing himself. Appel lant 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 hi s circumstances had changed so that the earlier waiver had become inv alid. Cf. State v. Gillespie , 898 S.W.2d 738, 741-42 (Tenn. Crim. App. 1994) (remandi ng 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 al legations, it is proper for the post-conviction cour t 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 evident iary hearing w as unnecessary to resolve appellant’s claims. We affirm the trial court’s judgment summarily dismissing appellant’s petition.

_______________________________ William M. Barker, Specia l Judge

CONCUR:

____________________________ David G. Hayes, Ju dge

____________________________ Joe G. Riley, Judge