Corey Adams Kennerly v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 29, 1999
• Docket: 01C01-9806-CC-00252
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED APRIL SESSION, 1999 April 29, 1999

Cecil W. Crowson COREY ADAMS KENNERLY, ) Appellate Court Clerk C.C.A. NO. 01C01-9806-CC-00252 ) Appe llant, ) ) ) FRANKLIN COUNTY VS. ) ) HON. J. CURTIS SMITH, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF FRANKLIN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

FLOY D DO N DA VIS JOHN KNOX WALKUP 201 Firs t Avenu e, N.W . Attorney General and Reporter Win cheste r, TN 37 398 KIM R. HELPER Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493

J. MICHAEL TAYLOR District Attorney General

STEVEN M. BLOUNT Assistant District Attorney General 1002 East Main Street Decherd, TN 37324

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

The Defe ndan t, Core y Ada ms K enne rly, app eals th e trial co urt’s denial of

his petition for post-conviction relief. On October 28, 1996, Defendant pleaded

guilty to first degree felony murder and especially aggravated robbery. Pursuant

to the plea agreement, the trial court sen tenced Defen dant to life imprisonment

with the possibility of parole for felony murd er and twenty years fo r espe cially

aggrava ted robb ery, to be se rved con current to his life sente nce.

On January 13, 1997, Defendant filed a pro se petition for post-conviction

relief, which he later amended.1 Following a post-conviction evidentiary hearing,

the trial court denied relief, and Defendant appealed. In this appeal, Defendant

raises three assignm ents of error for review: (1) th e trial co urt failed to com ply

with Tennessee Rule of Criminal Procedure 11(d), and as a re sult, his plea was

not entered voluntarily; (2) the trial court erred by overruling his motion to dismiss

his attorneys of record; and (3) he suffered the ineffective assistance of counsel

becau se cou nsel failed to reques t a chang e of venu e.

I.

In his half-page argument to this Court, Defendant alleges that the trial

court “failed to advise him o f certain of his constitutional rights and statutory

rights,” citing to Boykin v. Alabama, 395 U.S. 238 (1969), and State v. Mackey,

553 S.W.2d 337 (Tenn. 1977). A thorough review of the plea hearing transcript

revea ls that Defendant’s hearing could perhaps serve as a model for trial judges

1 Although the court had appointed counsel at that time, Defendant filed this amended petition pro se.

-2- to follow when accepting guilty pleas. The trial judge in this case placed the

utmost importance on Defendant’s understanding of the proceedings, including

the prote ctions affo rded by th e United States a nd Te nness ee Co nstitutions.

In his brief, Defendant specifies only one right which he contends was not

but should have been given. He states, “The Court failed to advise him that he

had a specific right to a chan ge of ven ue . . . .” Defendant has not cited, nor can

this Court locate, any authority tending to show that the trial court ha s a duty to

inform criminal defendants of a right to chan ge ven ue. Th erefor e, this iss ue is

both waived a nd witho ut merit. We conclude that the trial court properly ensured

the knowing and voluntary nature of Defendant’s plea.

II.

In his second issue, Defendant alleges that the trial court erred by denying

his motion to dismiss his attorne ys of reco rd. How ever, as th e State p oints out,

Defendant has waived this issue by failing to provide any argument in his brief on

appea l to this Cou rt.

III.

Finally, Defendant argues that he suffered the ineffective assistance of

counsel prior to his guilty plea. Gleaning his argument from the statement of

facts contained in his brief, it appears that this issue has tw o pron gs: (1) h is

counsel failed to advise him of his constitutional rights, including the right to plead

-3- not guilty and procee d to trial; and (2) his coun sel failed to inform him that his

case could have b een mo ved to a location o ther than Fran klin or Grundy C ounty.

It is more than apparent from the transcript of the guilty plea that Defendant

was aware of his constitutional rights, including the right to plead not guilty and

proceed to trial. T herefo re, eve n if his counsel had been deficient in this respe ct,

Defendant could not fulfill his burden to s how he w as prejudiced by the

deficiency. Furthermore, his pretrial counsel testified at the post-conviction

hearing that the decision not to request a change of venue was made after the

issue was fully discussed with Defendant prior to the plea. Defendant testified

at his plea hearing that he ha d no diss atisfaction w ith his pretrial c ounse l.

The trial judge en tered a th orough mem orandu m opin ion den ying pos t-

conviction relief. The ev idence clearly sup ports the trial judge’s find ings. Based

upon a thorough reading of the record, the briefs of the parties, and the law

governing the issue s prese nted for re view, we a ffirm the jud gmen t of the trial

court.

____________________________________ DAVID H. WELLES, JUDGE

-4- CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

__________________________________ JAMES CURWOOD WITT, JR.

-5-