### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M arch 19, 2002
JOHN WAYNE SLAT E, SR. v. STA TE OF TENNESSEE
Appeal from the Circuit Court for Sevier County No. 2000-489 James B. Scott, Jr., Judge

No. E2001-01906-CCA-R3-PC May 8, 2002

The Defendant, John Wayne Slate, Sr., appe als the trial court’s summary dismissal of his second petition for

post-conviction relief. The Defendant contends the tria l court impr

operly dismissed h

is petition for post-conviction relief without an evidentiary he aring. W e affirm the trial court’s dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined.
Edward C. Miller, Dandridge, Tennessee, for the a ppellee, John Wayne Slate, Sr.

Paul G. Summers, Attorney Genera l and Repo

rter; Re nee W. T urner, A ssistant A

ttorney G eneral ; Al Schmutzer, Jr., District Attorney General; and Steven R. Hawkins and Char les Atchley, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

In 1989, the Defendant was convicted by a jury of first degree murder, attempted jail esc ape, and possessio n of a fir

ear m while incarcerated. For the first de gree murder conviction, the Defendant

was giv en a lif

e s entence enhanced by

five yea rs for the use of a firearm during the commission of the offense. The trial court imposed a three y ear consecutive sentence for the attempted jail escape and a five year c oncurrent sentence for possessing a firearm while incarcerated. The Defendant appealed his convictions and this Court affirmed the trial court’s judgment. See State
v. John W ay ne Slate , No. 101, 1989 Tenn. Crim. App. LEXI S 751, at * 11 (Knoxville, Nov. 1, 1989). The Defendant subsequently filed a petition for post-conviction relief which the trial court denied after an evidentiary hearing. The Defendant a ppealed the trial cour

t’s denial of

postconviction relief, and this Court determined that the evidence of deliber ation was insufficien t , reversed the first degree murder convic tion, and remanded the cause to the trial court for entry of

a judgment of conviction for second degree murder and resentencing. See John Wayne Slate v. State ,-2-

No. 03C01-9201-CR-00014, 1994 Tenn. Crim. App. LEXI S 261, at* 34 (Knoxville, April 27 , 199 4). On remand, the trial court imposed a sentence of twenty -five ye ars under the Sentencing Reform Act of 1989. The Defendant then appealed that sentenc e. This Court rev ersed a nd reman ded the c ause for resentencing due to the trial court’s fa ilure to calculate the Defendant’s sentenc e under both the 1989 and 1982 sentencing acts as required by Statev. Pearson , 858 S.W.2d 879, 880 (Tenn. 1993). See State v. John

Way ne Slate , No. 03C01-9511-CC-00352, 1996 Tenn. Crim. App. LEXI S 665, at
* 1 (Knoxville, Oct. 18, 1996). On remand, the trial court again imposed a sente nce of twenty -five yearsfo r second degree murder. The De fendant again appealed, a nd this Court modified the trial court’s sentence for the second deg ree murder to twenty -four ye ars. See State v. John Way ne Slate , No. 03C01-980

4-CC-0014 7, 1999 Te

nn. Crim. App. L

EXIS 156, at * 1 (Knoxville, Feb, 19, 1999) (perm. to app. denied July 19, 1999).

On June 23, 2000, the Defendant filed his second petition for post-conviction relief. Counsel
was appointed to represent the Defendant, an d an amended petition for post-conviction relief was filed. On June 29, 2001, the trial court dismissed the petition without an evidentiary hearing . It is from the trial court’s dismissal of the second petition for post-conviction relief that the Def endant now appe als.

The Post-Conviction Procedure Act states that [t]his part contemplates the filing of only one (1) petition for post-conviction relief. In no event may more

than one (1) petition for post-co nvictio n relief be filed attacking a si ngl e ju dgm ent . If a prior petition has been filed which was resolved on the meri ts by a court of

competent jurisdiction, any sec ond or subsequent petition shallbe summarily dismissed. A Petitioner may move to reope n a post-conviction proceeding that has been concluded, under the limited circ umstance s set out in [Tennessee Code Annotated section] 40-30-217.

Tenn. Code Ann. § 40-30-202(c). The Defendant ha s filed a pet i tion for post-conviction relief attacking his con

viction a nd his orig

inal judg ment. That

petition was resolved by this Court. See John Wayne

Slate v. Sta

te , No. 03C01-9201-CR-00014, 1994 Tenn. Crim. App. LEXI S 261, at* 34. Ac co rd in gl y, to the extent that the Defendant’s present petition challenges his conviction or original sentence, the petition was properly summar ily dismissed by

the trial court. See Tenn. Code Ann. § 40-30-202(c).

How ever, issues arising from the resentencing of the Defendant for second deg ree murde r and the appe al there

from hav e not bee

n addres sed in a pe

tition for post-con vic tio n relief, and are, therefore, the proper subject of the present petition. I n his petition for post-co nviction relief, the Defendant

claims tha t this Cour t should not have resentenced the Defendant; ra ther, this Court should have remanded thecase for a new sentencing hearing because the sentencing judg e did not fami liar ize himself with the record prior to sentencing, improperly considered

uncertified copies of convictions and dismiss ed char ges in se ntencing the Defe ndant, f ailed to consider all sentencing princip les, and failed to timely provide the Defendant with a copy

of the presentence r

eport

.-3-

Therefore, the quest

ion befor e th is Court is whether

the gro unds state d above p

resent a colorab le claim from which the Defendant is entitled to relief. See Tenn. Code Ann. § 40-30-206(d).

A colorab le claim

is one “that, if taken as true, in the light most favorable to the Defend ant, would entitle the Defendant to relief under the Post-Conviction Procedure Act.” Tenn. Sup. Ct. R. 28, § 2(H). Tennessee Code Annotated section 40-30-206( g) states that [a] ground for relief is waived if the De fendant personally

or through an attorney failed to present

it for determination in any pr oceeding before a

court of competent jurisdiction in which the ground could have been presente d . . .

All of the De

fendant ’s compla

ints conc erning

the trial c ourt’s resentencing of him could have pro perly been ra ised on dir

ect appe al to this Court, howe ver, the y w ere not. Accord

ingly , these issues have been waived, and the trial court did not err in summarily dismissing them. See T enn. Code Ann.§ 40-30-206(g); § 40-35-401(a) (the re is no appe

llate review of th

e sentence in a po stconviction or habeas corpus proceeding ).
In his pro se petition, the Defendant a lso alleged that he was denied effective assistance of
co unsel at his resentencing hearing . However, at the hearing on the pe tition for post-conviction relief, the Defendant

was represented by

the same attorney

who represented him at his resentencing hearin g. The Def

endant st ated on th

e recor d that he d

id not wish

to pu rs ue an y claims of ineffe c tiveness agains t counsel . The Def endant f urther s tated tha

t he was v ery

pleased with his attorney’srepresentation. The Def endant does notargue in this appeal that he is entitled to relief basedon the ineffective assistance of counsel. Acc ordingly, the D efendant has waived any claims of ineff ective assist ance of counsel concerning his sentencing hearing. See Tenn. Code Ann.§ 40-30- 206(g).

Becau se all of the Defendant’s claims have been wa ived, we conclude that the petition for post-conviction relief does not raise a colorable c laim, and, ther efore, the trial

court did not err in summarily dismissing the petition.

CONCLUSION Therefore, after a thorough review of the procedural history

and the record, we conclude that the trial court did not

err in summarily dismissing the petition. Acc ordingly, the judg ment of the trial court is AFFIRMED.

___________________________________ DAVID H. WELLES, JUDGE