FILED

August 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST 1998 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9707-CC-00262

)

Appellee ) DYER COUNTY

)

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, Suite 303 Attorney General & Reporter

P.O. Box 611

Dyersburg, TN 38025-0611 Clinton J. Morgan

425 Fifth Avenue North

2d Floor, Cordell Hull Building

Nashville, TN 37243-0493

OPINION FILED 

AFFIRMED

JOHN K. BYERS

SENIOR JUDGE
1

 The defendant did not present the matter of the ineffectiveness of his trial

counsel as an issue for our review, 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 right pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure from the denial of his petition for postconviction relief by the Dyer County Circuit Court. 

On May 9, 1994, the defendant was convicted of selling cocaine in a jury trial. 

He was sentenced as a Range II, multiple offender to eight years and fined

$2,000.00. The trial court ordered the defendant to serve this sentence consecutive

to his prior sentences and parole revocation. The trial court’s judgment became

final on May 9, 1994.

The defendant filed a pro se petition for post-conviction relief on November 1,

1996. The petition alleged that the defendant was entitled to a new trial because his

trial counsel was ineffective1

 and because the trial court erred in not allowing him to

represent himself at trial.

A hearing on the petition was held in the trial court on February 10, 1997. On

March 13, 1997, the trial court denied the defendant’s petition for post-conviction

relief in an order which set out its findings of fact and conclusions 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 is affirmed.

The transcript shows that on December 21, 1993 a hearing was held during

which the defendant asked the trial 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 himself. After hearing the defendant’s responses, the trial

judge asked the defendant if he would agree to counsel being appointed for thirty
-3-

days, at the end of which the defendant could come back if he still wanted to

represent himself. The defendant agreed to work with the appointed counsel for a

thirty day period and never appeared before the trial court during the trial phase to

complain about the appointment of counsel.

At the post-conviction hearing, the defendant testified that he agreed to the

trial judge’s appointment of counsel because he thought the appointed counsel

would only serve as elbow counsel. On cross-examination, the defendant admitted

that he never brought the subject of self-representation up again until he filed a

motion for new trial after his conviction. The record also reveals that the defendant

never raised the issue of self-representation in his direct appeal to this Court. 

In a post-conviction proceeding, the burden of proof rests upon the petitioner

to prove his allegations by a preponderance of the evidence. Sherrill v. State, 772

S.W.2d 60, 62 (Tenn. 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 judgment. 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 relief, the trial judge found that the

defendant withdrew his request to represent himself when he agreed to work with

the appointed counsel for thirty days and never raised the request again during the

trial phase. See State v. Herrod, 754 S.W.2d 627, 629-630 (Tenn. Crim. App.

1988). After a thorough review of the record, we agree with the trial judge that the

defendant waived the right to represent himself. Tenn. Code. Ann. § 40-30-210(f).

Furthermore, the evidence does not preponderate against the judgment of the trial

court. 

The judgment of the trial court denying the defendant post-conviction relief is

affirmed. The cost of this appeal is taxed to the defendant.

 

John K. Byers, Senior Judge
-4-

CONCUR:

 

David H. Welles, Judge

 

Jerry L. Smith, Judge