# FILED
March 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION

REGINALD S. MABONE, ) ) APPELLANT, )

) No. 02-C-01-9705-CR-0 0181 ) ) Shelby County v. ) ) Honorable W . Fred Axley, Judge ) ) (Post- Convic

tion Rel ief) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: Brett B. Stein John Knox Walkup Attorney at Law Attorney General & Repor ter 236 Adams Avenue 425 Fifth Avenue, North Memphis, TN 38103 Nashville, TN 37243-0497 Elizabeth T. Ryan Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Rhea Cl iff Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:____________________________
AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Reginald S. M abone (petitioner), appeals as of right from a judgment of the trial court dismissi ng his post-conviction action following an ev identiary hearing. In this cour t, the petitioner contends he i s entitled to post-convi ction relief because (a) the assistant district attorney

general read the indictment at the commencemen t of his trial, (b) the langua ge c ontained in the reasonable doubt i nstruction given to the jury violated the Sixth and Fourteenth Amend m ents, and (c) his sentence w as enhanced by convicti ons predicated upon guilty

pleas which were constitutionally infir m. After a thorough review of the record, thebriefs submitted by the parties, and the law governing the iss ues presented for review, i t is the opinion of this court that the judgment of the trial c ourt shoul d b e 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 openi ng statements. The petitioner argues that allowingthe assistant district attorney general to r

ead the indictment in the presenc e of the juryviolated the Sixth and Fourteenth Amendments to the United States Constitution. However, the petitioner concedes “this Co urt has ne ve r . . . held that such procedure violatesthe defendant’s constitutional r ight of being presumed innocent .” The State of Tennessee (state) contends this ground has been waiv ed. The petitioner is not entitl ed 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) provi ded:

Reliefunder this chapter shall be granted when the conv iction 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 S tates, including a rig ht that was not recognized as ex isting at the time of the tri al if either constitution requires retrospective applic ation 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 rig ht. Tenn. Code Ann. § 40-30-112(b)( 1) and (b)(2) (repealed 1995) stated:3 A ground for relief is “w aived” if the p etitione r knowingly and understandingly failed to present it for det ermin ation in any proceeding before a court of competent jurisdiction in which the ground could have been pr esented. There is a rebuttable presumpti on that a ground for relief not raised in any such proc eeding which was held was waived. In this case, the petitioner has not attempted to rebu t the presumption of waiver. This issue is without merit. The ground alleging the reasonable doubt instructio n was unconstitutional has been waived. The petitioner did not object to the giv ing of the instruction, failed to include this ground in his motion for a ne w trial, and failed to raise it i n his appeal as of right.Te nn . Code Ann. § 40-30-112(b)(1) and (b) (2) (repealed 1995). Moreov er, the appellate courts of this state have consistently ruled that like or similar reasonable dou bt instructions do not offend either the United States Co nstitution 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 imposedby the trial court on the gr ound the convictions w ere predicated upon consti tutio nally infirm guilty pleas is barred by the statute of limitations . Tenn. Code Ann. § 40-30-102 (re pealed 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 reac h the merits of the issue. The record does not contain the p etition to enter the guilty pleas or the order permitting the entry of the pleas. This issue is without merit.

_____________ ______________________ ________

_ JOE B. JONES, P RESIDING JUDGE4

CONCUR:

______________________________________ GARY R.WADE, JUDGE

______________________________________ JERRY L.SMITH, JUDGE