Jerry Marable v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1997 SESSION
December 18, 1997
Cecil W. Crowson
Appellate Court Clerk
JERRY WAYNE MARABLE, )
)
APPELLANT, )
) No. 01-C-01-9611-CC-00493
)
) Rutherford County
v. )
) J. S. Daniel, Judge
)
) (Post-Conviction Relief)
STATE OF TENNESSEE, )
)
APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
Jerry Wayne Marable, Pro Se John Knox Walkup
South Central Correctional Center Attorney General & Reporter
P.O. Box 279 500 Charlotte Avenue
Clifton, TN 38425-0279 Nashville, TN 37243-0497
(Appeal Only)
Clinton J. Morgan
Howard W. Wilson Counsel for the State
Attorney at Law 450 James Robertson Parkway
6 Public Square, North Nashville, TN 37243-0493
Murfreesboro, TN 37130
(Trial Court Only) William C. Whitesell, Jr.
District Attorney General
Justice Building, Third Floor
Murfreesboro, TN 37130
Paul A. Holcombe, III
Assistant District Attorney General
Justice Building, Third Floor
Murfreesboro, TN 37130
OPINION FILED:______________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Jerry Wayne Marable (petitioner), 1 appeals as of right from a
judgment of the trial court dismissing his action for post-conviction relief following an
evidentiary hearing. The trial court found the petitioner received the effective assistance
of counsel prior to and during the submission hearing, the petitioner’s plea of guilty was
understandingly, voluntarily, and intelligently entered, and the petitioner failed to establish
the District Attorney General’s Office engaged in prosecutorial misconduct. In this court,
the pro se brief filed by the petitioner does not delineate an issue presented for review. It
appears the petitioner asserts his innocence and claims he was denied his constitutional
right to the effective assistance of counsel.
The record reflects the defendant was charged with the rape of a child under the
age of thirteen. He was permitted to enter a plea of guilty to aggravated sexual battery and
was sentenced as a Range I standard offender to confinement for eight and one-half years
in the Department of Correction pursuant to a plea agreement. He advised the trial court
he was not guilty of the offense in question because the charge was fabricated. He further
stated he was entering the guilty plea for “my best interest for my family.” The trial court
refused to accept the plea unless the petitioner agreed there was a factual basis for his
plea. The petitioner agreed there was a factual basis for his plea.
The petitioner failed to establish by clear and convincing evidence he was denied
his constitutional right to the effective assistance of counsel. See Tenn. Code Ann. § 40-
30-210(f). He did not testify in support of his grounds. Moreover, the petitioner did not
establish the two-prong test established in Hill v. Lockart, 474 U.S. 52, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985). The submission hearing transcript reveals the petitioner was pleased
with the services of the attorneys who represented him. Counsel met with the petitioner
prior to the date he entered the guilty plea. Counsel revealed the information obtained,
provided the petitioner with copies of statements, and spent several hours explaining the
ramifications of a guilty plea. The trial court was extremely tolerant and patiently advised
1
The petitioner was indicted as “Jerry Wayne Marable A/K/A Jerry DeWayne
Marable.”
2
the petitioner of his rights. The court wanted to make sure the petitioner was in fact
understandingly, intelligently, and knowingly pleading guilty to the lesser included offense
of aggravated sexual battery.
This court is of the opinion the evidence contained in the record does not
preponderate against the findings of fact made by the trial court.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
WILLIAM M. BARKER, JUDGE
______________________________________
JOE G. RILEY, JUDGE
3