# FILED
October 16, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER SESSION, 1998

MARTIN THOMAS TERRELL, ) ) No. 02C01-9806-CC-00190 Appellant ) ) TIPTON COUNTY vs. ) ) Hon. Joseph H. Walker, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )

For the Appellant : For the Appellee : Martin Thomas Terrell , Pro Se John Knox Walkup Lauderdale County Correc tional Attorney General and Repor ter Complex, Site 1, P. O. Box 1000 Henning, TN 38041-1000 Clinton J. Morgan Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493

OPINION FILED: AFFIRMED

David G. Hay

es Judge1 The appellant ’s convictions stem from a singl e criminal e pisode which i nvolved a breaking and entering of a Pi ggly Wiggly grocery st

ore in Covi ngton, Tennessee. With a sledgeh amm er, the app ellant and a co-defe ndant or dered th e store m anage r to open the safe

. Responding to a cal l from a store employ ee and the ala rm on the safe, t he police ap prehended the appe llant, and he subse quently con fessed to his crim inal activity.

2 W e not e the appe llant ra ises addit ional is sue s with in his b rief no t con taine d with in his petition for po st-conv iction relief. He contes ts wheth er: 1) the trial jud ge was without au thority under Tenn. Code Ann. § 40- 30-205(b) to dismiss the pet iti on since the j udge presided at the tri al in which the conviction occurred; 2) the trial court failed to comply with the requirements of Reed v. State , 581 S.W .2d 145 ( Tenn . Crim. A pp. 1978 ), cert. deni ed , (Tenn. 1979).Issues not r aised in a petition for post-co nviction relief c annot be raised fo r the first tim e on app eal. See Pegues v. State , No. 02C01-9705-CR-00182 ( Tenn. Crim. App. at

Jackson, Apr. 6, 1998). Notwithstandi ng the appe llant’s misp laced relian ce upo n the law, the se issue s have b een wa ived. See Tenn. Code Ann. § 40-30 -210(f) (1997).

2 OPINION

The appellant, Martin Thomas Terrell, appea ls the dismissal of his pro se petition for post-convic

tion relief by the Tipton County Circuit Court.The appellant was convicted by a jury of aggravated kidnapping, burglary, and reckless endangerment 1 with the resulting sentences of fifteen years, ten years, and six years respectivel

y for each conviction. His conviction w as affirmed on direct appeal to this court challengi ng prosecutorial miscon duct and the sufficiency of the evidence only as it related to the offense of aggravat ed kidnapping. See State v. Terrell , No. 02C01-9701-CC-00001(Tenn. Crim. App. at Jackson, Au g. 15, 1997), perm. to appeal denied , (Tenn. Apr. 6, 1998). The appellant filed three pro-se petitions, without appointment of counsel, for post-convic tion relief on May 4, June 1, and June 3, 1998, collaterall y attacking each of his c onvictions in separate petitions.

Within these three petition s, 2 the appellant contends that his due process rights were vi olated because he was depri ved of a direct appeal for the bur glary and reckless endangerment conv ictions. Second, he aver s “that the Trial Judge fail ed to comply with the enti re Criminal Sentencing Reform Act of 1989", inter alia , by failing to identify and pro perly weigh enhanc ement and mitigating factors.Next, he3 In his pet iti on, the appel lant al leges, “[ t]he Stat

e did not of

fer to prov

e these all eged prior convicti ons by int roducing th e minutes of the Cour t rather the State embarked on a protracted an d confusing course se eking to establish its case by hav ing a FederalProbation Off icer Gerald Hunt to testify from inform ation con tained on or in a yellow jac ket con cerning som e prior ca ses.”

We note, however, the t rial co urt’s or der dismissing the appell ant’s pet iti on concludes otherwise f inding t hat “. . . severalwitnesses testifi ed. . . and [c]ert ified copies of pri or convict ions were subm itted and considered by the court, and adm itted as exhibits.” 3 challenges the manner by w hich the State introduced ev idence to support enhanced punishment. 3 The post-conviction cour t summarily dismissed his petition.

We affirm the decision of the post-conviction cou rt.

ANAL YSIS

Regarding the appellant’s deprivation of direct ap peal for both convictions of burglary and reckl ess endangerment, the post-conv iction court found, “he [appell ant] is in error as the matter was appealed to the Court of Criminal Appeals, and affirmed on appeal.” The record includ es a copy of the appellant’s di rect appeal. See Terrell , No. 02C01-9701-CC-00001 (“The defendant , Martin Thomas Terrell, appeals as of right a jury conviction of aggravated kidnapping, burglary, reckless endangerment with a deadly weapon, and driving

on a revoked or suspended license.”). Within this challenge the appellan t also contends “improper trickery tactics” were used by

the trial judge and attor ney general by faili ng to inform him of his Motion for a New Trial resulting in “p rejudice to the judicial process. ” Although the transcript of the trial proceedings is not included in the record, the order of the post-conviction court

dismissing the appellant ’s petition recites, “

a motion for new trial was filed and ov

erruled.”

At a post-conviction pr oceeding, the appellant bears the burden of establishing his all egations contained in the peti tion by clear and conv

incing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). Th ere is no proof in the record that remotely supports the appellant’s claim that he w as denied a direct appeal.4

Moreover, the evidenc

e contained in the record does not preponderate against the trial court’s judgment , and this court is bound by those findings on appeal. Davis v. State , 912 S.W.2d 689, 697 (Tenn. 1995). The appellant’s asse rtion of denial of due process is without merit.

With reference to the appellant’s second and thir d issues alleging s

entencing errors, our law pr

ovides that “[t]here is

no appellate review of the sentence in a postconviction . . . proceeding.” Tenn. Code Ann. § 40-35-401(a) (1997). Moreover, because the grounds alleged are procedural in nature, post-conviction relief is unavailable since the appel lant has failed to challenge that the sentence is void or voidable based upon a rig ht guaranteed by the Consti tution of Tennessee or the Constitution of the United States. Tenn. Code Ann. § 40-30-203 (1997). The fact that the appellant labels the alleged sentencing error as a “Procedural Due Process violation” which has resulted in “prejudice to the judicial process” will not transform this procedural error into a constitutional infri ngement. These issues are w ithout merit.

Based upon the foregoing, we affirm the post-conviction court’s sum mary dismissal of the petition for post -conviction under the pr ovisions of Tenn. Code Ann. § 40-30-206(f) (1997).

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:5

_________________________________________ JOHN H. PEAY, Judge

_________________________________________ L. T. LAFFERTY, Senior Judge