State v. Ricky W. McElhaney

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 14, 1999
• Docket: 03C01-9804-CR-00162
• Status: Published

Opinion

\IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE October 14, 1999

JUNE 1999 SESSION Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, * C.C.A. # 03C01-9804-CR-00162

Appellee, * HAMILTON COUNTY

VS. * Honorable Rebecca Stern, Judge

RICKY W. McELHANEY, * (Post-Conviction--Burglary, Theft, Failure to Appear) Appellant. *

FOR THE APPELLANT: FOR THE APPELLEE:

RICKY W. McELHANEY MICHAEL E. MOORE Pro Se Solicitor General MCRCF-BMCX P.O. Box 2000 R. STEPHEN JOBE Wartburg, TN 37887 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIAMS, Judge OPINION

The petitioner, Ricky W. McElhaney, appeals from the Hamilton County

Criminal Court’s order denying this “Motion for Re-sentence or Dismiss Illegal

Sentence.” In 1993, the petitioner pled guilty to one county of burglary, two

counts of failure to appear (bond jumping), and one count of theft over $500. He

was sentenced as a Range III persistent offender to an effective term of twenty-

two years in the Department of Correction. The petitioner later filed a petition for

post-conviction relief, alleging ineffective assistance among other claims. The

trial court denied the requested relief and this Court affirmed that judgment. See

Ricky W. McElhaney v. State, C.C.A. No. 03C01-9710-CR-00431 (Tenn. Crim.

App. filed January 27, 1999, at Knoxville). Here, the trial court has denied the

petitioner’s motion because of lack of jurisdiction. W e agree with the trial court

and affirm the judgment.

BACKGROUND

The petitioner alleges that he was sentenced pursuant to a plea on June

29, 1993, and the sentences were illegally modified on November 27, 1996. The

record is void of any modification of his original plea agreement. The petitioner

further alleges that he did not understand the true nature of his sentences, that

he lacked “learning in the law,” and that his plea was never explained to him by

his attorney. Further, the petitioner complains that he should not have been

sentenced as a Range III persistent offender as he did not qualify as such.

Finally, the petitioner argues that three of the indictments charging him were

defective.

ANALYSIS

First, we note that this Court lacks jurisdiction to grant the requested relief

because the petitioner’s “Motion for Re-Sentence or Dismiss Illegal Sentence” is

not a proper means of invoking our review. See Tenn. R. App. P. 3(b). Second,

-2- the trial court dismissed the petitioner’s motion because it lacked jurisdiction to

hear said motion. Third, the petitioner has failed to cite any legal authority to

support his argument that the trial court or this Court has any jurisdiction to hear

his case or appeal. Therefore, pursuant to Rule 10b of the Tennessee Court of

Criminal Appeals, the petitioner has waived this issue on appeal. See State v.

Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997).

In the event we were inclined to grant a full review of the petitioner’s

appeal, we would nevertheless affirm the judgment of the trial court. Considering

the filing as a petition for post-conviction relief, it would be barred by the

applicable statute of limitations. See Tenn. Code Ann. § 40-38-202(a). Further,

the procedural history reveals that the petitioner previously filed a prior petition

for post-conviction relief, and he is not entitled to a second. See Ricky W.

McElhaney v. State, Hamilton County, C.C.A. 03C01-9710-CR-00431 (Tenn.

Crim. App. filed January 27, 1999, at Knoxville).

As relates to the petitioner’s allegation concerning the offender

classification, our Supreme Court has held that a knowing and voluntary guilty

plea waives any irregularity as to offender classification or release eligibility. See

Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997).

Finally, the petitioner contends that three of the indictments charging him

were defective. This type of claim resembles a writ of habeas corpus. However,

the petitioner’s motion does not satisfy the prerequisites for consideration as a

petition for a writ of habeas corpus. See Tenn. Code Ann. §§ 29-21-105, -107.

CONCLUSION

Accordingly, the trial court’s denial of the motion is AFFIRMED.

-3- _______________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

______________________________ JOHN H. PEAY, Judge

_______________________________ DAVID G. HAYES, Judge

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