FILED

March 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH 1998 SESSION

REGINALD S. MABONE, )

)

APPELLANT, )

) No. 02-C-01-9705-CR-00181

)

) Shelby County

v. )

) Honorable W. Fred Axley, Judge

)

) (Post-Conviction Relief)

STATE OF TENNESSEE, )

)

 APPELLEE. )

FOR THE APPELLANT: FOR THE APPELLEE:

Brett B. Stein John Knox Walkup

Attorney at Law Attorney General & Reporter

236 Adams Avenue 425 Fifth Avenue, North

Memphis, TN 38103 Nashville, TN 37243-0497

Elizabeth T. Ryan

Assistant Attorney General

425 Fifth Avenue, North

Nashville, TN 37243-0493

William L. Gibbons

District Attorney General

201 Poplar Avenue, Suite 3-01

Memphis, TN 38103

Rhea Cliff

Assistant District Attorney General

201 Poplar Avenue, Suite 3-01

Memphis, TN 38103

OPINION FILED:____________________________

AFFIRMED

Joe B. Jones, Presiding Judge
2

O P I N I O N

The appellant, Reginald S. Mabone (petitioner), appeals as of right from a judgment

of the trial court dismissing his post-conviction action following an evidentiary hearing. In

this court, the petitioner contends he is entitled to post-conviction relief because (a) the

assistant district attorney general read the indictment at the commencement of his trial, (b)

the language contained in the reasonable doubt instruction given to the jury violated the

Sixth and Fourteenth Amendments, and (c) his sentence was enhanced by convictions

predicated upon guilty pleas which were constitutionally infirm. 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.

The record reflects the assistant district attorney general read the indictment after

the jury had been sworn. The petitioner then entered his not guilty plea. The parties were

then afforded the opportunity to make opening statements. The petitioner argues that

allowing the assistant district attorney general to read the indictment in the presence of the

jury violated the Sixth and Fourteenth Amendments to the United States Constitution.

However, the petitioner concedes “this Court has never . . . held that such procedure

violates the defendant’s constitutional right of being presumed innocent.” The State of

Tennessee (state) contends this ground has been waived.

The petitioner is not entitled to relief on this ground. First, it is not rooted in either

the United States Constitution or the Tennessee Constitution. Tenn. Code Ann. § 40-30-

105 (repealed 1995) provided:

Relief under this chapter shall be granted when the conviction

or sentence is void or voidable because of the abridgement in

any way of any right guaranteed by the constitution of this state

or the Constitution of the United States, including a right that

was not recognized as existing at the time of the trial if either

constitution requires retrospective application of that right.

Second, this ground has been waived. The petitioner did not raise this issue in his motion

for a new trial or in his appeal as of right. Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2)

(repealed 1995) stated:
3

A ground for relief is “waived” if the petitioner knowingly and

understandingly failed to present it for determination in any

proceeding before a court of competent jurisdiction in which

the ground could have been presented.

There is a rebuttable presumption that a ground for relief not

raised in any such proceeding which was held was waived.

In this case, the petitioner has not attempted to rebut the presumption of waiver.

This issue is without merit.

The ground alleging the reasonable doubt instruction was unconstitutional has been

waived. The petitioner did not object to the giving of the instruction, failed to include this

ground in his motion for a new trial, and failed to raise it in his appeal as of right. Tenn.

Code Ann. § 40-30-112(b)(1) and (b)(2) (repealed 1995). Moreover, the appellate courts

of this state have consistently ruled that like or similar reasonable doubt instructions do not

offend either the United States Constitution or the Tennessee Constitution. See Carter v.

State, 958 S.W.2d 620, - - - (Tenn. 1997); State v. Nichols, 877 S.W.2d 722, 734 (Tenn.

1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); State v.

Sexton, 917 S.W.2d 263, 265-66 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d

364, 366 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Hallock, 875 S.W.2d

285, 293-94 (Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994).

This issue is without merit.

The attempt to resurrect the convictions used to enhance the sentence imposed by

the trial court on the ground the convictions were predicated upon constitutionally infirm

guilty pleas is barred by the statute of limitations. Tenn. Code Ann. § 40-30-102 (repealed

1995). The guilty pleas were entered on May 17, 1978, January 19, 1981, and June 21,

1988. The petitioner instituted this suit on October 25, 1993. Moreover, even if this issue

was not barred by the statute of limitations, this court could not reach the merits of the

issue. The record does not contain the petition to enter the guilty pleas or the order

permitting the entry of the pleas.

This issue is without merit.

____________________________________________

 JOE B. JONES, PRESIDING JUDGE
4

CONCUR:

______________________________________

 GARY R. WADE, JUDGE

______________________________________

 JERRY L. SMITH, JUDGE