IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE August 12, 1999
Cecil Crowson, Jr. JANUARY 1999 SESSION Appellate C ourt Clerk
DARRELL FRITTS, * C.C.A. NO. 03C01-9803-CR-00116
APPELLANT, * MONROE COUNTY
VS. * Hon. Douglas A. Meyer, Judge
STATE OF TENNESSEE, * (Post-Conviction)
APPELLEE. *
For Appellant: For Appellee:
L. Darren Gibson John Knox Walkup Attorney for Appellant Attorney General and Reporter 735 Broad Street, Suite 700 450 James Robertson Parkway Chattanooga, TN 37402 Nashville, TN 37243-0493
Michael J. Fahey, II Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North, 2nd Floor Nashville, TN 37243
Jerry N. Estes District Attorney General 203 E. Madison Ave. Athens, TN 37303
OPINION FILED: ____________________
AFFIRMED
NORMA MCGEE OGLE, JUDGE OPINION
On May 27, 1994, the petitioner, Darrell Fritts, filed his second petition
for post-conviction relief in the Criminal Court of Monroe County. The trial court
appointed counsel and conducted a hearing on March 12, 1997.1 On September
25, 1997, the trial court entered an order denying the petition for post-conviction
relief. On appeal, the petitioner contends that his sentence violates the Ex Post
Facto clauses of the United States and Tennessee Constitutions.2 Moreover, the
petitioner argues that he should be granted a new sentencing hearing pursuant to
our supreme court’s decision in State v. Pearson, 858 S.W.2d 879 (Tenn. 1993).
Following a review of the record, we affirm the decision of the trial court.
On December 1, 1989, the petitioner was convicted by a jury in the
Monroe County Criminal Court of second degree murder. On January 19, 1990, the
trial court sentenced the petitioner as a Range I standard offender to twenty-five
years incarceration in the Tennessee Department of Correction. This court affirmed
his conviction on September 25, 1992. State v. Darrell Fritts, No. 132, 1992 WL
236152 (Tenn. Crim. App. at Knoxville), perm to appeal dismissed, (Tenn. 1993).
The petitioner did not challenge his sentence in his direct appeal.
On October 15, 1993, the petitioner, proceeding pro se, filed his first
petition for post-conviction relief, requesting a delayed appeal to the Tennessee
Supreme Court. The trial court conducted a hearing on May 23, 1994, and on May
27, 1994, denied the petitioner relief. The petitioner did not appeal the trial court’s
1 On April 11, 1997, the trial court allowed the petitioner to submit an amended petition for post-conviction relief to explain the grounds for relief he argued at the evidentiary hearing.
2 In his statement of facts, the petitioner briefly mentions ineffective assistance of counsel and unlaw ful clo sing argu me nts b y a spe cial pr ose cuto r but d oes not a rgue thes e issu es in t he bo dy of h is brief.
2 decision. Instead he filed the present petition.
At the post-conviction hearing, the petitioner’s primary issue was
whether a new sentencing hearing should be granted on the basis of Pearson, 858
S.W.2d 879. In Pearson, 858 S.W.2d at 884, our supreme court held that:
in order to comply with the ex post facto prohibitions of the U.S. and Tennessee Constitutions, trial court judges imposing sentences after the effective date of the 1989 statute, for crimes committed prior thereto, must calculate the appropriate sentence under both the 1982 statute and the 1989 statute, in their entirety, and then impose the lesser of the two.
Moreover, Tenn. Code Ann. § 40-35-117(b) (1990) provides that a defendant
sentenced on or after November 1, 1989 for an offense committed prior to the
enactment of the 1989 Criminal Sentencing Reform Act should be sentenced under
the 1989 Act, unless such is constitutionally barred. In conjunction therewith, Tenn.
Code Ann. § 39-11-112 (1990) provides that, if the legislature reduces the penalty
for an offense between the time of commission and the time of sentencing, a
defendant is entitled to the lesser penalty.
The petitioner committed the second degree murder prior to the
enactment of the 1989 Sentencing Act but was sentenced after its effective date. In
sentencing the petitioner, the trial court neglected to consider the 1982 Act and
merely sentenced the petitioner to twenty-five years pursuant to the 1989 Act.
Therefore, the Pearson rule potentially mandates a new sentencing hearing.
However, our inquiry does not stop here.
In order to obtain post-conviction relief, a petitioner must allege that his
conviction or sentence is void or voidable due to the abridgement of a constitutional
3 right. Tenn. Code Ann. § 40-30-105 (1990). A post-conviction 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. Tenn. Code Ann. § 40-30-112(b)(1) (1990);
House v. State, 911 S.W.2d 705, 713-14 (Tenn. 1995). There is a rebuttable
presumption that a ground for relief not raised in any such proceeding is waived.
Tenn. Code Ann. § 40-30-112(b)(2) (1990). Additionally, our courts have repeatedly
held that when a petitioner fails to present a ground for relief in his first post-
conviction proceeding, that ground is waived for purposes of any subsequent post-
conviction proceedings.3 As our supreme court stated long ago, “[t]here must be a
finality to all litigation, criminal as well as civil.” Arthur v. State, 483 S.W.2d 95, 97
(Tenn. 1972).
As previously noted, the petitioner filed his first petition for post-
conviction relief on October 15, 1993, requesting a delayed appeal to the
Tennessee Supreme Court. The Pearson decision was filed on June 14, 1993, and
was an available ground for relief. See Burford v. State, 845 S.W.2d 204 (Tenn.
1995). Therefore, as a result of his failure to raise the issue in his first petition for
post-conviction relief, the petitioner has waived any ex post facto challenge to his
sentence.
In any event, even if the petitioner’s ex post facto challenge is not
waived, we conclude that the trial court imposed the lesser of the two possible
sentences under the 1982 Act and the 1989 Act. We thereby reject the petitioner’s
3 Caruth ers v. State , 814 S.W .2d 64, 69 -70 (Te nn. Crim . App. 199 1); Sm ith v. State , No. 02C01-9801-C R-00018, 1998 W L 899362, at *4 (Tenn. Crim . App. at Jackson, Dec ember 28, 199 8); Colem an v. State , No. 02C01-9611-CR-00395, 1998 WL 858537, at *5 (Tenn. Crim. App. at Tucson, Dece mbe r 4, 1998 ); Caldwe ll v. State, No. 02C01-9711-CC-00446, 1998 WL 775685, at *3 (Tenn. Crim . App. at Ja ckso n, Nove mbe r 9, 1998 ); Mand ela v. State , No. 01C01-9610-CR-00459, 1998 WL 51113 3, at *7 (Te nn. Crim . App. at N ashville, Au gust 20 , 1998).
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE August 12, 1999
Cecil Crowson, Jr. JANUARY 1999 SESSION Appellate C ourt Clerk
DARRELL FRITTS, * C.C.A. NO. 03C01-9803-CR-00116
APPELLANT, * MONROE COUNTY
VS. * Hon. Douglas A. Meyer, Judge
STATE OF TENNESSEE, * (Post-Conviction)
APPELLEE. *
For Appellant: For Appellee:
L. Darren Gibson John Knox Walkup Attorney for Appellant Attorney General and Reporter 735 Broad Street, Suite 700 450 James Robertson Parkway Chattanooga, TN 37402 Nashville, TN 37243-0493
Michael J. Fahey, II Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North, 2nd Floor Nashville, TN 37243
Jerry N. Estes District Attorney General 203 E. Madison Ave. Athens, TN 37303
OPINION FILED: ____________________
AFFIRMED
NORMA MCGEE OGLE, JUDGE OPINION
On May 27, 1994, the petitioner, Darrell Fritts, filed his second petition
for post-conviction relief in the Criminal Court of Monroe County. The trial court
appointed counsel and conducted a hearing on March 12, 1997.1 On September
25, 1997, the trial court entered an order denying the petition for post-conviction
relief. On appeal, the petitioner contends that his sentence violates the Ex Post
Facto clauses of the United States and Tennessee Constitutions.2 Moreover, the
petitioner argues that he should be granted a new sentencing hearing pursuant to
our supreme court’s decision in State v. Pearson, 858 S.W.2d 879 (Tenn. 1993).
Following a review of the record, we affirm the decision of the trial court.
On December 1, 1989, the petitioner was convicted by a jury in the
Monroe County Criminal Court of second degree murder. On January 19, 1990, the
trial court sentenced the petitioner as a Range I standard offender to twenty-five
years incarceration in the Tennessee Department of Correction. This court affirmed
his conviction on September 25, 1992. State v. Darrell Fritts, No. 132, 1992 WL
236152 (Tenn. Crim. App. at Knoxville), perm to appeal dismissed, (Tenn. 1993).
The petitioner did not challenge his sentence in his direct appeal.
On October 15, 1993, the petitioner, proceeding pro se, filed his first
petition for post-conviction relief, requesting a delayed appeal to the Tennessee
Supreme Court. The trial court conducted a hearing on May 23, 1994, and on May
27, 1994, denied the petitioner relief. The petitioner did not appeal the trial court’s
1 On April 11, 1997, the trial court allowed the petitioner to submit an amended petition for post-conviction relief to explain the grounds for relief he argued at the evidentiary hearing.
2 In his statement of facts, the petitioner briefly mentions ineffective assistance of counsel and unlaw ful clo sing argu me nts b y a spe cial pr ose cuto r but d oes not a rgue thes e issu es in t he bo dy of h is brief.
2 decision. Instead he filed the present petition.
At the post-conviction hearing, the petitioner’s primary issue was
whether a new sentencing hearing should be granted on the basis of Pearson, 858
S.W.2d 879. In Pearson, 858 S.W.2d at 884, our supreme court held that:
in order to comply with the ex post facto prohibitions of the U.S. and Tennessee Constitutions, trial court judges imposing sentences after the effective date of the 1989 statute, for crimes committed prior thereto, must calculate the appropriate sentence under both the 1982 statute and the 1989 statute, in their entirety, and then impose the lesser of the two.
Moreover, Tenn. Code Ann. § 40-35-117(b) (1990) provides that a defendant
sentenced on or after November 1, 1989 for an offense committed prior to the
enactment of the 1989 Criminal Sentencing Reform Act should be sentenced under
the 1989 Act, unless such is constitutionally barred. In conjunction therewith, Tenn.
Code Ann. § 39-11-112 (1990) provides that, if the legislature reduces the penalty
for an offense between the time of commission and the time of sentencing, a
defendant is entitled to the lesser penalty.
The petitioner committed the second degree murder prior to the
enactment of the 1989 Sentencing Act but was sentenced after its effective date. In
sentencing the petitioner, the trial court neglected to consider the 1982 Act and
merely sentenced the petitioner to twenty-five years pursuant to the 1989 Act.
Therefore, the Pearson rule potentially mandates a new sentencing hearing.
However, our inquiry does not stop here.
In order to obtain post-conviction relief, a petitioner must allege that his
conviction or sentence is void or voidable due to the abridgement of a constitutional
3 right. Tenn. Code Ann. § 40-30-105 (1990). A post-conviction 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. Tenn. Code Ann. § 40-30-112(b)(1) (1990);
House v. State, 911 S.W.2d 705, 713-14 (Tenn. 1995). There is a rebuttable
presumption that a ground for relief not raised in any such proceeding is waived.
Tenn. Code Ann. § 40-30-112(b)(2) (1990). Additionally, our courts have repeatedly
held that when a petitioner fails to present a ground for relief in his first post-
conviction proceeding, that ground is waived for purposes of any subsequent post-
conviction proceedings.3 As our supreme court stated long ago, “[t]here must be a
finality to all litigation, criminal as well as civil.” Arthur v. State, 483 S.W.2d 95, 97
(Tenn. 1972).
As previously noted, the petitioner filed his first petition for post-
conviction relief on October 15, 1993, requesting a delayed appeal to the
Tennessee Supreme Court. The Pearson decision was filed on June 14, 1993, and
was an available ground for relief. See Burford v. State, 845 S.W.2d 204 (Tenn.
1995). Therefore, as a result of his failure to raise the issue in his first petition for
post-conviction relief, the petitioner has waived any ex post facto challenge to his
sentence.
In any event, even if the petitioner’s ex post facto challenge is not
waived, we conclude that the trial court imposed the lesser of the two possible
sentences under the 1982 Act and the 1989 Act. We thereby reject the petitioner’s
3 Caruth ers v. State , 814 S.W .2d 64, 69 -70 (Te nn. Crim . App. 199 1); Sm ith v. State , No. 02C01-9801-C R-00018, 1998 W L 899362, at *4 (Tenn. Crim . App. at Jackson, Dec ember 28, 199 8); Colem an v. State , No. 02C01-9611-CR-00395, 1998 WL 858537, at *5 (Tenn. Crim. App. at Tucson, Dece mbe r 4, 1998 ); Caldwe ll v. State, No. 02C01-9711-CC-00446, 1998 WL 775685, at *3 (Tenn. Crim . App. at Ja ckso n, Nove mbe r 9, 1998 ); Mand ela v. State , No. 01C01-9610-CR-00459, 1998 WL 51113 3, at *7 (Te nn. Crim . App. at N ashville, Au gust 20 , 1998).
4 argument that he could have received a lesser sentence under the 1982 Act
because he did not receive proper notice of the State’s intent to seek enhanced
punishment. See Tenn. Code Ann. § 40-35-202 (1990). 4 The petitioner failed to
object to the lack of notice at the 1990 sentencing hearing and in his first post
conviction proceeding and will not be heard to complain for the first time in these
proceedings.
The petitioner was convicted of second degree murder. Tenn. Code
Ann. § 39-2-211 (1982 Repl.) The punishment range extended from imprisonment
for a period of not less than ten years to life imprisonment. Tenn. Code Ann. § 39-
2-212 (1982 Repl.) Furthermore, due to his prior burglary convictions, the petitioner
would have qualified as a persistent offender under the 1982 Act. Tenn. Code Ann.
§ 40-35-106 (1982 Repl.) Accordingly, the petitioner’s minimum sentence under the
1982 Act would have been thirty-five years. See Tenn. Code Ann. § 40-35-106 and
-109 (1982 Repl.) Clearly, in receiving a twenty-five year sentence under the 1989
Act, the petitioner received the benefit of the lesser sentence.
Accordingly, we affirm the judgment of the trial court.
__________________________________
Norma McGee Ogle, Judge
CONCUR:
4 The State relies upon two enhancement factors. First, the State introduced evidence of the petitioner’s 1 985 bu rglary conv iction and h is 1986 b urglary of an autom obile con viction. See Tenn. Code Ann. § 40-35-114(1) (1990). Second, the State relied upon the petitioner’s use of a firearm in the com miss ion of his of fense. See Tenn . Code A nn. § 40- 35-114 (9) (199 0).
5 ______________________________
Gary R. Wade, Presiding Judge
_______________________________
John K. Byers, Senior Judge