Robert Senick v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9711-CR-00550
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE December 3, 1998 SEPTEMBER 1998 SESSION Cecil W. Crowson Appellate Court Clerk ROBERT SENICK, ) ) Appellant, ) C.C.A. No. 01C01-9711-CR-00550 ) vs. ) DeKalb County ) STATE OF TENNESSEE, ) Hon. Leon Burns, Jr., Judge ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

HARVEY DOUGLAS THOMAS JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 3367 Phillips Cemetery Rd. Algood, TN 38506 DARYL J. BRAND Senior Counsel for the State 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493

WILLIAM EDWARD GIBSON District Attorney General

ANTHONY J. CRAIGHEAD Asst. District Attorney General 145 S. Jefferson St. Cookeville, TN 38501

OPINION FILED:________________

AFFIRMED - RULE 20

JAMES CURWOOD WITT, JR., JUDGE OPINION

The petitioner, Robert Senick, appeals the DeKalb County Criminal

Court's denial of his petition for post-conviction relief. Senick is currently serving an

effective seven year sentence in the Department of Correction for the crimes of

possession with intent to deliver or sell over ten pounds of marijuana and

conspiracy to possess with intent to deliver or sell over ten pounds of marijuana.

See State v. Robert Senick, No. 01C01-9409-CR-00312 (Tenn. Crim. App.,

Nashville, Sept. 22, 1995), perm. app. dismissed (Tenn. 1996). In his post-

conviction petition, he (1) challenged the constitutionality of the reasonable doubt

jury instruction given at his trial, (2) alleged his trial attorney deprived him of his right

to not to testify against himself, (3) claimed his trial attorney was ineffective for

failing to raise an issue on appeal, (4) alleged he was deprived of a fair trial by

comments made during voir dire by a prospective juror, and (5) claimed he was

deprived of due process by the trial court's failure to fulfill its duties as the thirteenth

juror. The trial court found each of the issues without merit. In this appeal, we find

no error of law requiring reversal, and thus we affirm the judgment pursuant to Rule

20, Rules of the Court of Criminal Appeals.

The Post-Conviction Procedure Act provides, "There is a rebuttable

presumption that a ground for relief not raised before a court of competent

jurisdiction in which the ground could have been presented is waived." Tenn. Code

Ann. § 40-30-210(f) (1997); see also Tenn. Code Ann. § 40-30-206(g) (1997);

House v. State, 911 S.W.2d 705, 706 (Tenn. 1995), cert. denied, 517 U.S. 1193,

116 S. Ct. 1685 (1996). In the case at bar, issues (1) and (5) are ones which could

have been presented on direct appeal but were not. Moreover, the petitioner made

no allegation and offered no proof why these issues were not pursued on direct

appeal. See Tenn. Code Ann. § 40-30-204(e) (1997). As such, these issues have

been waived.

2 It is also well-settled law in the area of post-conviction practice that

issues which were previously determined in earlier proceedings are not subject to

relitigation. Tenn. Code Ann. § 40-30-206(f); see, e.g., Daniel B. Taylor v. State,

No. 02C01-9703-CR-00091, slip op. at 5-6 (Tenn. Crim. App., Jackson, Mar. 18,

1998). Issue (4) was presented on direct appeal as a dual attack on the trial court's

failure to grant a change of venue and failure to declare a mistrial. We found

Senick's argument for change of venue without merit and his mistrial issue waived

for failure to cite authority in his brief. See Robert Senick, slip op. at 5-7. As such,

issue (4) has been previously determined.

A post-conviction petitioner must prove his allegations by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997). The court below

considered the evidence presented at the post-conviction hearing and made

thorough and thoughtful findings of fact and conclusions of law which were adverse

to the positions advanced by the petitioner in issues (2) and (3). We are bound by

the trial court's findings of fact and conclusions of law unless the evidence of record

preponderates against the judgment. Black v. State, 794 S.W.2d 752, 755 (Tenn.

1990). The evidence in the case at bar does not so preponderate.

In sum, we find no error of law requiring reversal. The judgment of the

trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

3 _______________________________ GARY R. WADE, PRESIDING JUDGE

_______________________________ THOMAS T. WOODALL, JUDGE