# FILED

August 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON AUGUST 1998 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9707-C C-00262 ) Appellee ) DYER COUN TY ) v. ) HON. J. STEVEN STAFFORD, ) JUDGE WILLIAM PAUL BOGUS, ) ) POST-CONVICTION RELIEF Defendant/Appellant )

FOR THE APPELLANT : FOR THE APPELLEE : William K. Randolph John Knox Walkup 120 N. Mill Street, Sui te 303 Attorney General & Repor ter P.O. Box 611 Dyersburg, TN 38025- 0611 Clinton J. Morgan 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493

OPINION FILED

AFFIRMED JOHN K. BYERS SENIOR JUDGE1 The defendant did not present the matter of the ineffectiveness of his trial

counsel as an issue for our r eview, and we see no reason to review this issue based on the record before us. Rule 13 (b) Tenn. R. App. P. -2- O P I N I O N The defendant, William Paul Bogus, appeals as of rig ht pursuant to Rule 3 of the Tennessee Rules of Appellate Proc edure from the denial of his petitionfor postconviction relief by

the Dyer County Ci rcuit Court. On May 9, 1994, the defendant was convicted of selling cocaine in a jury tr ial. He was sentenced as a Rang e II, multiple offender to eight y ears and fined $2,000. 00. The t rial court ordered t he defe ndant to serve this s entence consecut ive to his prio r sentences

and parole r

evocation. The trial c

ourt’s judg ment became final on May 9, 1994. The defendant filed a pro se petition for post-convic tion relief on November 1, 1996. The petition alleged that the defen dant was entitled to a new trial because his trial cou nsel was in effect ive 1 and because the trial court erred in not allowing him to represent himself at trial. A hearing on the petition w as held in the trial cour t on February 10, 1997. On March 13, 1997, the trial c ourt denied the defendant’s petition for post-conviction relief in an order wh ich set ou t its find ings of f act and co nclusion s of law. In this appeal, the defendant raises the issue that the denial of his petition for post-conviction relief is based on the error of not being allowed to represent himself at trial. The judgment of the trial court i s affirmed. The transcript shows that on December 21, 1993 a hearing was held during which the defendant asked the tri al judge to be allowed to represent himself at trial

. The trial judge engaged the defendant in a colloquy to determine the reasons why he wanted to represent himsel f. After hearing the defendant’s res ponses, the trial judge asked the defendant if he woul d agree to counsel being appointed for thirty-3-

days, at the end of which th e defendant could come back if he still wanted to represent himself. The defendan t agreed to work with the appointed counsel for a thirty day period an d never appeared before the tri al court during the tri al phase to complain about the appointment of counsel. At the post-conviction h earing, the defendant testified that he agreed to the trial judge’s appointment of counsel because he thought the appoi nted counsel would only serv

e as elbow counsel. On c ross-examination, the defendant a dmitted that he never brought the s ubject of self-representation up ag ain until he filed a motion for new trial after hi s conviction. The recor d also reveals that the defendant never raised the issue of self-representation in his d irect appeal to this Cour t. In a post-conviction pr

oceeding, the burden of proof rests upon the petitioner to prove his allegati ons by a preponderance of the ev idence. Sherrill v. State, 772 S.W.2d 60, 62 (Ten n. Crim. App. 1988). Furthermore, the findings of the trial court in a post-conviction hearing are conclusive on appeal unless the evidence preponderates against the ju dgment. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App. 1994). In denying the petition for post-conviction rel ief, the trial judge found that the defendant withdrew his r equest to represent himself w hen he agreed to work w ith the appointed counsel for thirty days and never rais

ed the request again duri ng the trial phase. See State v. Herrod, 754 S.W.2d 627, 629-630 (Tenn. Crim. App. 1988). After a thorough rev iew of the record, we agree with the trial judge that the defendant waived the right to represent himself. Tenn. Cod e. Ann. § 40-30-210(f). Furthermore, the evidence does not preponderate against t he judgment of the trial
court. The judgment of the trial court denying the defenda nt post-conviction relief is affirmed. The cost of this appeal is tax ed to the defendant.

John K. Byers, Sen ior Judge-4-

CONCUR:

David H. Wel les, Judge

Jerry L. Smith, Judge