             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                                MARCH 1998 SESSION      FILED
                                                           March 26, 1998

REGINALD S. MABONE,                   )                 Cecil Crowson, Jr.
                                      )                 Appellate C ourt Clerk
                   APPELLANT,         )
                                      )    No. 02-C-01-9705-CR-00181
                                      )
                                      )    Shelby County
v.                                    )
                                      )    Honorable W . Fred Axley, Judge
                                      )
                                      )    (Post-Conviction Relief)
STATE OF TENNESSEE,                   )
                                      )
                    APPELLEE.         )



FOR THE APPELLANT:                         FOR THE APPELLEE:

Brett B. Stein                             John Knox Walkup
Attorney at Law                            Attorney General & Reporter
236 Adams Avenue                           425 Fifth Avenue, North
Memphis, TN 38103                          Nashville, TN 37243-0497

                                           Elizabeth T. Ryan
                                           Assistant Attorney General
                                           425 Fifth Avenue, North
                                           Nashville, TN 37243-0493

                                           William L. Gibbons
                                           District Attorney General
                                           201 Poplar Avenue, Suite 3-01
                                           Memphis, TN 38103

                                           Rhea Cliff
                                           Assistant District Attorney General
                                           201 Poplar Avenue, Suite 3-01
                                           Memphis, TN 38103




OPINION FILED:____________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Reginald S. Mabone (petitioner), appeals as of right from a judgment

of the trial court dismissing his post-conviction action following an evidentiary hearing. In

this court, the petitioner contends he is entitled to post-conviction relief because (a) the

assistant district attorney general read the indictment at the commencement of his trial, (b)

the language contained in the reasonable doubt instruction given to the jury violated the

Sixth and Fourteenth Amendments, and (c) his sentence was enhanced by convictions

predicated upon guilty pleas which were constitutionally infirm. After a thorough review of

the record, the briefs submitted by the parties, and the law governing the issues presented

for review, it is the opinion of this court that the judgment of the trial court should be

affirmed.

       The record reflects the assistant district attorney general read the indictment after

the jury had been sworn. The petitioner then entered his not guilty plea. The parties were

then afforded the opportunity to make opening statements.          The petitioner argues that

allowing the assistant district attorney general to read the indictment in the presence of the

jury violated the Sixth and Fourteenth Amendments to the United States Constitution.

However, the petitioner concedes “this Court has never . . . held that such procedure

violates the defendant’s constitutional right of being presumed innocent.” The State of

Tennessee (state) contends this ground has been waived.

       The petitioner is not entitled to relief on this ground. First, it is not rooted in either

the United States Constitution or the Tennessee Constitution. Tenn. Code Ann. § 40-30-

105 (repealed 1995) provided:


              Relief under this chapter shall be granted when the conviction
              or sentence is void or voidable because of the abridgement in
              any way of any right guaranteed by the constitution of this state
              or the Constitution of the United States, including a right that
              was not recognized as existing at the time of the trial if either
              constitution requires retrospective application of that right.


Second, this ground has been waived. The petitioner did not raise this issue in his motion

for a new trial or in his appeal as of right. Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2)

(repealed 1995) stated:

                                               2
              A 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.

              There is a rebuttable presumption that a ground for relief not
              raised in any such proceeding which was held was waived.


In this case, the petitioner has not attempted to rebut the presumption of waiver.

       This issue is without merit.

       The ground alleging the reasonable doubt instruction was unconstitutional has been

waived. The petitioner did not object to the giving of the instruction, failed to include this

ground in his motion for a new trial, and failed to raise it in his appeal as of right. Tenn.

Code Ann. § 40-30-112(b)(1) and (b)(2) (repealed 1995). Moreover, the appellate courts

of this state have consistently ruled that like or similar reasonable doubt instructions do not

offend either the United States Constitution or the Tennessee Constitution. See Carter v.

State, 958 S.W.2d 620, - - - (Tenn. 1997); State v. Nichols, 877 S.W.2d 722, 734 (Tenn.

1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); State v.

Sexton, 917 S.W.2d 263, 265-66 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d

364, 366 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Hallock, 875 S.W.2d

285, 293-94 (Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994).

       This issue is without merit.

       The attempt to resurrect the convictions used to enhance the sentence imposed by

the trial court on the ground the convictions were predicated upon constitutionally infirm

guilty pleas is barred by the statute of limitations. Tenn. Code Ann. § 40-30-102 (repealed

1995). The guilty pleas were entered on May 17, 1978, January 19, 1981, and June 21,

1988. The petitioner instituted this suit on October 25, 1993. Moreover, even if this issue

was not barred by the statute of limitations, this court could not reach the merits of the

issue. The record does not contain the petition to enter the guilty pleas or the order

permitting the entry of the pleas.

       This issue is without merit.



                                      ____________________________________________
                                            JOE B. JONES, PRESIDING JUDGE

                                              3
CONCUR:



______________________________________
        GARY R. WADE, JUDGE



______________________________________
        JERRY L. SMITH, JUDGE




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