         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                      FILED
                                AT KNOXVILLE                          July 2, 1999

                                                                   Cecil Crowson, Jr.
                           FEBRUARY SESS ION, 1999                 Appellate C ourt
                                                                       Clerk



JAY WILL KILBY,                 )    C.C.A. NO. 03C01-9801-CR-00040
                                )
      Appe llant,               )
                                )
                                )    KNOX COUNTY
VS.                             )
                                )    HON. RICHARD BAUMGARTNER
STATE OF TENNESSEE,             )    JUDGE
                                )
      Appellee.                 )    (Post-Co nviction Re lief)




FOR THE APPELLANT:                   FOR THE APPELLEE:

MARK E. STEPHENS                     JOHN KNOX WALKUP
District Public Defender             Attorney General and Reporter

PAU LA R . VOS S (on appe al)        ELLEN H. POLLACK
JOH N HA LST EAD (at trial)          Assistant Attorney General
Assistant Public Defender            425 Fifth Avenu e North
1209 Euclid Avenue                   Nashville, TN 37243
Knoxville, TN 37921
                                     RANDALL E. NICHOLS
                                     District Attorney General

                                     ROBERT L. JOLLEY
                                     Assistant District Attorney
                                     City-County Building
                                     Knoxville, TN 37902



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION

       On October 31 , 1991, App ellant Jay Will Kilby filed a petition for post-

conviction relief. On Ja nuary 15 , 1998, the post-con viction cou rt condu cted a

hearing on the petition. That same day, the post-conviction court dismissed the

petition. Appella nt challen ges the dismiss al of his petition for post-conviction

relief, raising the following issues:

       1) whether the post-conviction court erred when it found that the trial court
       prope rly imposed consecutive sentences for Appellant’s six underlying
       felony convictions following the reversal of Appe llant’s six habitual criminal
       convictions; and
       2) wheth er the p ost-co nviction court e rred w hen it found that the trial court
       prope rly allowed the State to file an amended notice of intent to seek
       enhanced punishment prior to resentencing.

After a review of the record, we affirm the judgment of the post-c onviction c ourt.



                                  I. BACKGROUND




       On September 30, 1987, Appellant pled guilty to three counts of first

degree burglary and three counts of grand larceny. Each of these counts was the

triggering offense for one of six charges of being a habitual criminal. Because

Appellant elected to have a jury tria l on the six coun ts of be ing a h abitua l crimin al,

the trial court deferred imposing sentence for the six convictions for the triggering

offenses. On O ctober 1 , 1987, a K nox Co unty jury con victed A ppella nt of all six

counts of being a habitual criminal. On November 12, 1987, the trial court

imposed six concurrent life sentences for the habitual criminal convictions. The

trial court im pose d thes e sen tence s witho ut imp osing sente nces for the s ix

triggering convic tions. T his Court subsequently upheld Appellant’s convictions

in State v. Kilby, 763 S.W .2d 389 (Te nn. Crim. Ap p. 1988).


                                            -2-
       On July 20, 1990, A ppellant filed a petition for pos t-conviction re lief in

which he challenged his habitual criminal convictions. On March 21, 1991, the

trial court set aside Appellant’s habitual criminal convictions and scheduled the

case for resentencing for the six triggering convictions. On March 26, 1991, the

State filed an amended notice of intent to seek enhanced punishment. The

record in dicates th at Appe llant did no t object to the amen ded no tice.



       The trial court conducted the resentencing hearing on May 6, 1991. That

same day, the trial co urt sente nced A ppellant a s a caree r offende r to fifteen years

for each of the three first degree burglary convictions and to ten years for each

of the three grand larceny conv ictions . The tr ial cou rt also o rdere d thes e six

sentences to run consecutively. Appellant filed notice of appeal on June 10,

1991. In his ap peal, Appellant contended that resentencing for the six triggering

conviction s violated p rinciples o f double je opardy.



       On October 31, 1991, while Appellant’s direct appeal was still pending,

Appe llant filed the pe tition for p ost-co nviction relief at is sue in this cas e. In this

petition, Appellant contended that his counsel was ineffective in failing to file a

direct appeal, that resentencing violated principles of double jeopardy, and that

he was the victim of judicial vindictiveness.



       This Cour t subs eque ntly con clude d that A ppella nt’s ap peal h ad no m erit

because the facts of the case did not implicate double jeopardy considerations.

State v. Jay Will Kilby, No. 03C01-9110-CR-00332, 1992 WL 97086, at *1–2

(Tenn. Crim. App., Knoxville, May 12, 1992). In so holding, this Court noted that




                                            -3-
Appellant “does n ot contes t the length , range, o r mann er of service of these

sentences . He contests th eir imposition.” Id., 1992 WL 97086, at *1.



       The post-conviction court conducted a hearing on the petition in this case

on January 15, 1998. At the conclusion of the hearing, the p ost-conviction cou rt

found that the ineffec tivenes s of co unse l claim was moot, that there w as am ple

evidence to support con secutive sentences, and that there was no evidence of

any judicia l vindictivene ss.



               II. IMPOSITION OF CONSECUTIVE SENTENCES




       Appellant contends that the post-conviction court erred when it found that

the trial court properly imposed six consecutive sentences for his underlying

felony convictions following the reversal of his six habitual criminal convictions.

Specifically, Appellant argues that consecutive sentencing is inappro priate

because it is the result of judicial vindictiveness.



       Initially, we note that Appellant has waived this issue. When Appellant filed

his petition for post-conviction relief, Tennessee Code Annotated section 40-30-

112 pro vided, in rele vant part:

       (1) A ground for relief is “waived” if the petitioner knowingly and
       unde rstand ingly failed to present it for determination in any proceeding
       before a court of competent jurisdiction in which the ground could h ave
       been p resente d.
       (2) There is a rebuttable presumption that a ground for relief n ot raise d in
       any suc h proce eding w hich wa s held wa s waived .

Tenn. Code Ann. § 40-30-112(b) (1990). The Tennessee Supreme Court has

held that “the rebuttable presumption of waiver is not overcome by an allegation


                                         -4-
that the petition er did n ot pers onally, k nowin gly, and unde rstand ingly fail to raise

a ground for relief.” Hous e v. State, 911 S.W .2d 705, 714 (Tenn.19 96). Rather,

“[w]aiver in the post-conviction context is to be determ ined by an ob jective

standard unde r which a petitio ner is b ound by the a ction o r inactio n of his

attorney.” Id. Clearly, Appellant’s claim of judicial vindictiveness was a vailable

when Appella nt filed his pre vious ap peal. In addition, App ellant has failed to

make any effort to rebut the presumption that he has waived this claim. However,

we conclude that Appellant is not entitled to relief even on the merits.1



         Appellant contends tha t he is a victim of judicial vindictiveness because

after the six habitual crimina l convictions for which h e received concurr ent life

sentences were set aside, the trial court imposed six consecutive sentences for

the underlying felony convictions. Essentially, Appellant claims that by imposing

consecu tive sentences, the trial court punished Appellant for exercising his right

to challenge his h abitual criminal convictions through the post-conviction process.



         In North Carolina v. Pearce, 395 U.S. 711, 724–25, 89 S.Ct. 2072, 2080,

23 L.Ed.2d 656 (1969), the United States Supreme Court held that it is a violation

of basic due process to punish a person because he has done what the law

plainly allows. T he Sup reme C ourt stated that the D ue Pro cess C lause of the

Fourteenth Amendmen t prevents increased sentences which are actually or likely

motivated by a vindictive desire to punish a de fendan t for the exe rcise of a




         1
          W e note tha t the State ra ised the d efense of waiver in its answe r to Appe llant’s petition for p ost-
conviction relief. However, for some inexplicable reason, neither the State nor the post-conviction court
addressed the waiver defense during the hearing on Appellant’s petition. Rather, both the State and the
cou rt add ress ed th e m erits o f App ellant ’s claim s. Th eref ore, w e also chos e to a ddre ss th e m erits o f this
claim .

                                                         -5-
statutory or proce dural right. Id., 395 U.S. at 723–24, 89 S.Ct. at 2080. T he

Pearce Court stated:

      Due process of law, then, requires that vindictiveness against a defendant
      for having successfully attacked his first conviction must play no part in the
      sentence he receives after a new trial. And since the fear of such
      vindictiveness may unconstitutionally deter a defendant’s exercise of the
      right to appeal or co llaterally attack his first conviction, due process also
      requires that a defendant be freed o f apprehen sion of such a retaliatory
      motivatio n on the part of the s entenc ing judge .

Id., 395 U.S. at 725, 89 S.Ct. at 2080. To prevent vindictiveness from entering

into the decision an d to alla y any fear on the part of a defendant that an

increased sentence is the product of vindictiveness, the Court fashioned a

proph ylactic rule that “whenever a judge imposes a more severe sentence upon

a defenda nt after a new tria l, the rea sons for his d oing s o mu st affirm atively

appea r.” Id., 395 U.S. at 726, 89 S.Ct. at 2081.         Otherwise, a presumption

arises that a greater sentence has been imposed for a vindictive purpose—a

presumption that must be rebutted by “‘objective information . . . justifying the

increased sentence.’” Texas v. McCullough, 475 U.S. 134, 142, 106 S.Ct. 976,

981, 89 L.Ed.2d 104 (1986) (quoting Unite d State s v. Go odwin , 457 U.S . 368,

374, 10 2 S.Ct. 2 485, 24 89, 73 L .Ed.2d 7 4 (1982 )).



      In Alabam a v. Sm ith, 490 U.S. 794, 109 S.Ct. 2201, 1021 L.Ed.2d 865

(1989), the Supreme Court limited the application of Pearce to circu msta nces in

which there is a “‘reasonable likelihood’ that the increase in sentence is the

product of actual vindictiveness on the part of the sentencing authority.” Id., 490

U.S. at 799, 109 S. Ct. at 2205. “Whe re there is no such reasonable likelihood,

the burden remains upon the defenda nt to prove actua l vindictiveness.” Id., 490

U.S. at 799, 109 S. Ct. at 2205.




                                         -6-
        We conclude that the record does not support Appellant’s allegation that

he is a victim of judicial vindictiveness. First, we note that Appellant did not

receive a longer sentence after resentencing. When Appellant was sentenced

in 1987 to six con current life sentences, the relevant statute provided that he

would be eligible for release after serving thirty years. Tenn. Code Ann. § 40-35-

501(f) (1982). When Appellant was resentenced in 1991 to a total sentence of

seventy-five years at 40% release eligibility,2 the effe ct was that Ap pellan t would

be eligible for release after serving thirty years. Thus, Appellant has not received

a longer sentence after resentencing.3 In add ition, we note th at even if the new

sentence could somehow be classified as a longer sentence, there is no

reaso nable likelihood that the increased sentence was the product of actual

vindictiveness on the part of the resentencing court. In this case, Judge John J.

Duncan, Jr., imposed the original sentences for the habitual criminal convictions.

A different judge, Judge Randall E. Nichols, imposed the new sentences for the

six underlying felony convictions. Thus, there is no reasonable likelihood that

Judge Nichols im posed the new senten ces ou t of actual vind ictiveness . See

State v. John L . Good win, III, No. 01C01-9601-CR-00013, 1997 WL 409484, at

*7 (Tenn. Crim. App., Nashville, July 23, 1997) (stating that because different



        2
           W e note that the statute in effect at the time of resentencing provided that release eligibility for a
career offende r occurr ed after s ervice of 6 0% of the sente nce less applicab le senten cing cre dits. See
Tenn. Code Ann. § 40-35-501(f) (1990). However, the resentencing court applied the statute in existence
at the time of the original sentencing that provided that release eligibility for a persistent offender occurred
after ser vice of 40 % of the senten ce. See Tenn. Code A nn. § 40-35-501(f) (1982).

        3
           Appellant contends that under W illiams v. Sta te, 503 S.W.2d 109 (Tenn. 1973), there is a
presumption of vindictiveness whenever consecutive sentencing is imposed for the first time upon
resente ncing. W hile we ag ree that Williams established a general rule that imposition of consecutive
senten ces for the first tim e at rese ntencing usually carrie s a pres ump tion of vindictive ness, see id. at
111–1 2, we do not agre e that Williams established a per se rule that imposition of consecutive sentences
for the first time at resentencing always carries a presumption of vindictiveness regardless of the unique
circumstances of each individual case. The Tennessee Supreme Court held in Williams that there was a
presumption of vindictiveness when consecutive sentences were imposed for the first time at resentencing
becau se the im position of conse cutive se ntencing tripled the tota l length of the defend ant’s sen tence. Id.
at 112. As previously stated, the trial court’s imposition of consecutive sentences in this case did not
increas e the total leng th of App ellant’s sen tence. T hus, Williams is clearly distinguishable from this case.

                                                     -7-
judges presided over the original sentencing hearing and the resentencing

hearing, “any risk of vindictiveness by the trial judge being confronted by

resentencing is nonexis tent”). The refore, the burden remain s on Ap pellant to

show that the new sentences were the product of actual vindictiveness.

Appellant has failed to identify any evidence that actual vindictiveness played any

part in resentencing4 and we can find nothing in the record that would su pport a

finding of a ctual vindic tiveness. T his issue has no merit. 5



               III. AMENDED NOTICE OF ENHANCEMENT FACTORS




         Appellant contends that the post-conviction court erred when it found that

the trial court properly allowed the State to file an amended notice of intent to

seek e nhanc ed pun ishme nt prior to A ppellant’s resente ncing.



         The record indicates that on February 9, 1987, the State filed a notice of

intent to see k enh ance d pun ishm ent tha t listed e leven o f Appe llant’s prior felony

convictions. Eight o f these listed co nviction s were vacate d in 1990, but Appellant

subsequently reentered guilty pleas for four of the vacated convictions in 1990.

On March 26, 1991, the State filed an amended notice of intent to seek enhanced


         4
         App ellant briefly a rgue s tha t the tr ial cou rt did n ot follo w the prop er sta tutor y guide lines w hen it
determined the length of Appe llant’s sentences and when it imposed consecutive sentencing. How ever,
Appellant cannot seek review of the length or manner of serving sentences in a post conviction
procee ding. See Andre a Jone s v. State , No. 0 2C0 1-96 03-C R-0 008 4, 19 97 W L 683 30, a t *1 (T enn . Crim .
App., Jackson, Feb . 20, 1997) (citing Tenn. Code Ann. § 40-35 -401(a) (1989)).

         5
           We note that in Appellant’s argument on this issue, he makes a somewhat vague allegation that
his trial counsel provided ineffective assistance of counsel by failing to object to consecutive sentencing
on judicial vindictiveness grounds. However, we have already determined that there is no proof that
judicial vindictiveness played any part in resentencing. When a petitioner seeks post-conviction relief on
the basis of ineffective assistance of counsel, he or she must first establish that the services rendered or
the advice given was below “the range of co mpetence demand ed of attorneys in criminal cases.” Baxter
v. Rose, 523 S.W .2d 9 30, 9 36 (T enn . 197 5). Se con d, he or sh e m ust s how that th e def icienc ies “a ctua lly
had an adverse effec t on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052,
2067– 68, 80 L.E d.2d 674 (1984). B ecaus e Appe llant’s judicial vind ictiveness argum ent has no m erit,
Appellan t’s trial couns el was no t deficient in fa iling to ma ke the a rgum ent in the trial co urt.

                                                         -8-
punish ment. The ame nded notice listed fifte en of A ppella nt’s felony convictions,

including the three convictions listed on the original notice that were never

vacated, the four convictions listed on the original notice that were later vacated

and then re entere d, and eight c onvictio ns tha t were n ot listed in the original

notice. Appellant essentially claims that because the State did not include eight

of these convictions in its original notice, Appellant was prevented from

conside ring them when h e decide d to plead gu ilty to the six underlying felonies

in this case in 1987.6



         Initially, we no te that A ppella nt has waived this issu e by failin g to raise it

in his previous appeal. Tenn . Code Ann. § 4 0-30-11 2(b) (199 0); House, 911

S.W.2d at 714. Clearly, Appellant’s claim that the trial court erroneously allowed

the filing of the amended notice of enhancement factors was available when

Appellant filed his p reviou s app eal. In addition, Appellant has failed to make any

effort to rebut the presumption that he has waived this issue.



         In addition to waiver, Appellant is not entitled to relief on this claim because

this claim is inappropriate for a post-conviction proceeding. Appellant contends

that the trial court erred when it allowed the State to file the amended notice

because Tennessee Code Annotated section 40-35-202 and Rule 12.3 of the

Tennessee Rules of Criminal Procedure require the State to give notice of intent

to seek enhanced punishment at least ten days before acceptance of a gu ilty



          6
            Appellant also contends that the trial court erroneously based its decision to classify him as a
care er of fend er on the fo ur co nvictio ns th at we re va cate d and reen tered after his co nvictio n for the s ix
offenses in this case. Specifically, Appellant contends that the four convictions were not “prior felony
con viction s” un der T enn ess ee C ode Ann otate d sec tion 4 0-35 -108 beca use they w ere n ot ree ntere d unt il
after the commission of the six offenses in this case in 1984. However, as noted by the post-conviction
cou rt, the am end ed no tice c onta ined e leven othe r prev ious felon y conv iction s tha t justif y the tria l cour t’s
finding tha t Appellan t was a c areer of fender .

                                                          -9-
plea or trial. 7 Specifically, Appellant contends that under section 40-35-202 and

Rule 12.3, the State should not have been allowed to file the amended notice

because it was not filed more th an ten days befo re he p led gu ilty to the s ix

underlying felonies in this case. However, in State v. Harris , 919 S.W.2d 323

(Tenn. 1996), the Tennessee Supreme Court stated that the notice requirement

of Rule 12.3 is not constitution ally man dated. Id. at 331. Post-conviction relief

is only available when a conviction or sentence is void or voidable because of the

abridgment of a constitutional right.                   Te nn. Code Ann. § 40-3 0-105 (199 0).

Because Appellant’s claim is not based on the alleged ab ridgme nt of a

constitutional right, this claim can not be asserted in a post-conviction

proceeding.8



         According ly, the post-conviction court’s dismissal of Appe llant’s p etition is

AFFIRMED.



                                              ____________________________________
                                              JERRY L. SMITH, JUDGE

         7
         Section 40-35-2 02 prov ides in relev ant part:
        If the district attorney general believes that a defendant should be sentenced as a multiple,
        persistent or career offender, the district attorney general shall file a statement thereof with the
        court an d defen se cou nsel not les s than ten (10) days before tria l or accep tance o f a guilty plea;
        provided, that notice may be waived by the defendant in writing with the consent of the district
        attorney general and the court accepting the plea. Such statement, which shall not be made
        known to the jury determining the guilt or innocence of the defendant on the primary offense, must
        set forth the nature of the prior felony convictions, the dates of the convictions and the identity of
        the cou rts of the c onvictions .
Tenn . Code A nn. § 40- 35-202 (a) (199 7). Sim ilarly, Rule 12.3 p rovides in re levant par t:
        W ritten statem ents of th e district attorn ey giving notice that the de fendan t should b e sente nced to
        an enhanced punishment, for an especially aggravated offense, and/or as a persistent offender
        shall be filed not less than ten (10) days prior to trial. If the notice is filed later than this time, the
        trial jud ge sh all gra nt the defe nda nt, up on m otion , a rea son able c ontin uan ce of the tria l.
Tenn. R. Crim . P. 12.3(a).

         8
          W e not e tha t App ellant claim ed bo th in his post -con viction petitio n and durin g the hear ing on his
petition that his trial counsel was ineffective in failing to object to the filing of the amended notice of intent
to seek enhan ced pu nishm ent. This claim w ould of co urse be cognizab le in a post-c onviction p roceed ing.
Howe ver, on ap peal, App ellant has n ot argue d that cou nsel was ineffective in this regar d. In fact,
App ellant ’s arg um ent a bou t the filin g of th e am end ed no tice o f enh anc em ent o nly m ake s one extre me ly
obscure reference to his trial counsel’s conduct. This obscure reference is completely insufficient to raise
the is sue of ine ffec tivene ss o f cou nse l on ap pea l.

                                                       -10-
CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
L.T. LAFFERTY, SENIOR JUDGE




                             -11-
