State v. Ricky W. McElhaney ( 1999 )

\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,
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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.
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_______________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
______________________________
JOHN H. PEAY, Judge
_______________________________
DAVID G. HAYES, Judge
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