Clenny v. State

• Decision Date: 09 November 1978
• Parties: Billy Glenn CLENNY, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 12

576 S.W.2d 12

Billy Glenn CLENNY, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee.

Nov. 9, 1978 Certiorari Denied by Supreme Court Dec. 18, 1978.

Hughie Ragan, Jackson, for appellant.

William M. Leech, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, George W. Hymers, Dist. Atty. Gen., Jackson, Howard F. Douglass, Asst. Dist. Atty. Gen., Lexington, for appellee.

OPINION

DWYER, Judge.

This is an appeal from the dismissal of appellant's post-conviction petition after an evidentiary hearing.

The appellant is incarcerated in the State Penitentiary serving a period of fifteen years imposed upon his plea of guilty on September 28, 1977, to committing the offense of rape. The appellant's assignments of error are these:

1. The trial court erred in overruling appellant's motion for post-conviction relief on the ground that there was racial and sexual discrimination in the selection of the foreman of the grand jury which indicted appellant.

2. The trial court erred in denying appellant's petition for post-conviction relief on the ground that appellant's guilty plea hearing did not conform with requirements enumerated in State v. Mackey, 553 S.W.2d 337 (Tenn.1977).

3. The trial court erred in denying appellant's petition for post-conviction relief on the ground that his guilty plea was not voluntary or intelligent.

We will discuss the first assignment of error which is predicated upon the fact that no female or black person has ever served as foreman of the Madison County Grand Jury. With no attack by motion or plea in abatement to the composition of the grand jury prior to appellant's entry of a guilty plea to the charge of rape, this assignment is without merit. State ex rel. Henderson v. Russell, 3 Tenn.Cr.App. 204, 459 S.W.2d 176 (1970); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Quoting from the latter authority at page 267, 93 S.Ct. at page 1608:

"When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standard set forth in McMann (V. Richardson, 397 U.S. 759, (90 S.Ct. 1441, 25 L.Ed.2d 763) (1970))."

Ancillary to the first assignment of error is the urging of the appellant that his statutory's failure to object to the selection process rendered his assistance not "within the range of competence demanded of attorneys in criminal cases." McMann, supra. In the absence of an allegation in his petition, coupled with an absence of any proof in support thereof at the hearing this assignment is without merit and is overruled.

The second assignment of error: It is appellant's contention that his guilty plea was not taken in conformity with State v. Mackey, supra. We evaluate this assignment under settled law that in a post-conviction proceeding the burden is on the petitioner to prove by a preponderance of the evidence the allegations in his petition. Bratton v. State, 477 S.W.2d 754 (Tenn.Cr.App.1971). It is also settled law that the trial judge's findings on questions of fact are to be given the weight of a jury's verdict and are conclusive on appeal unless the appellate court finds that the evidence preponderates against his judgment. Graves v. State, 512 S.W.2d 603 (Tenn.Cr.App.1973).

The guilty plea transcript was filed and marked as an exhibit at the hearing. A review of that transcript reveals that the trial court advised the appellant as to the range of punishment for the offense of rape, his rights to confrontation, to call witnesses, to a jury trial, and to appeal. It also reflects that appellant signed waiver forms as to all of these rights. The record further reveals that appellant entered his guilty plea contrary to the advice of his counsel, and when counsel informed the trial court that appellant was accepting the negotiated plea of the State contrary to his advice, the court then asked the appellant if it was still his desire to plead guilty, to which he received an affirmative answer. From our review of this record we are satisfied, as was the trial court at the hearing, that the guidelines in State v. Mackey, supra, were substantially complied with.

Appellant contends that he was not informed that his prior convictions could be used against him with reliance on State v. Mackey, supra. With waiver of a jury, and the court accepting the State's recommendation of fifteen years as punishment for the offense, appellant's reliance on Mackey is misplaced. This second assignment is accordingly overruled.

The third assignment of error: We note at the threshold, from a review of the record of the hearing sub judice appellant himself testified that his guilty plea was freely and voluntarily entered. It, however, appears from the hearing that appellant testified the State threatened to try him on the second count of the...