            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        OCTOBER SESSION, 1998

                                                                   FILED
MARTIN THOMAS TERRELL,            )                                 October 16, 1998
                                  )   No. 02C01-9806-CC-00190
      Appellant                   )                                Cecil Crowson, Jr.
                                                                   Appellate C ourt Clerk
                                  )   TIPTON COUNTY
vs.                               )
                                  )   Hon. Joseph H. Walker, Judge
STATE OF TENNESSEE,               )
                                  )   (Post-Conviction)
      Appellee                    )



For the Appellant:                    For the Appellee:

Martin Thomas Terrell, Pro Se         John Knox Walkup
Lauderdale County Correctional        Attorney General and Reporter
Complex, Site 1, P. O. Box 1000
Henning, TN 38041-1000                Clinton J. Morgan
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      425 Fifth Avenue North
                                      2d Floor, Cordell Hull Building
                                      Nashville, TN 37243-0493




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                    OPINION



         The appellant, Martin Thomas Terrell, appeals the dismissal of his pro se

petition for post-conviction relief by the Tipton County Circuit Court. The appellant

was convicted by a jury of aggravated kidnapping, burglary, and reckless

endangerment1 with the resulting sentences of fifteen years, ten years, and six

years respectively for each conviction. His conviction was affirmed on direct appeal

to this court challenging prosecutorial misconduct and the sufficiency of the

evidence only as it related to the offense of aggravated kidnapping. See State v.

Terrell, No. 02C01-9701-CC-00001(Tenn. Crim. App. at Jackson, Aug. 15, 1997),

perm. to appeal denied, (Tenn. Apr. 6, 1998). The appellant filed three pro-se

petitions, without appointment of counsel, for post-conviction relief on May 4, June

1, and June 3, 1998, collaterally attacking each of his convictions in separate

petitions.



         Within these three petitions,2 the appellant contends that his due process

rights were violated because he was deprived of a direct appeal for the burglary and

reckless endangerment convictions. Second, he avers “that the Trial Judge failed

to comply with the entire Criminal Sentencing Reform Act of 1989", inter alia, by

failing to identify and properly weigh enhancement and mitigating factors. Next, he


         1
          The appellant’s convictions stem from a single criminal episode which involved a
breaking and entering of a Piggly Wiggly grocery store in Covington, Tennessee. With a
sledgeh amm er, the app ellant and a co-defe ndant or dered th e store m anage r to open the safe .
Responding to a call from a store employee and the alarm on the safe, the police apprehended
the appe llant, and he subse quently con fessed to his crim inal activity.

         2
           W e not e the appe llant ra ises addit ional is sue s with in his b rief no t con taine d with in his
petition for po st-conv iction relief. He contes ts wheth er: 1) the trial jud ge was without au thority
under Tenn. Code Ann. § 40-30-205(b) to dismiss the petition since the judge presided at the trial
in which the conviction occurred; 2) the trial court failed to comply with the requirements of Reed
v. State , 581 S.W .2d 145 ( Tenn . Crim. A pp. 1978 ), cert. denied, (Tenn. 1979). Issues not raised
in a petition for post-co nviction relief c annot be raised fo r the first tim e on app eal. See Pegues v.
State , No. 02C01-9705-CR-00182 (Tenn. Crim. App. at Jackson, Apr. 6, 1998). Notwithstanding
the appe llant’s misp laced relian ce upo n the law, the se issue s have b een wa ived. See Tenn.
Code Ann. § 40-30 -210(f) (1997).




                                                       2
challenges the manner by which the State introduced evidence to support enhanced

punishment.3 The post-conviction court summarily dismissed his petition.



        We affirm the decision of the post-conviction court.



                                                ANALYSIS



        Regarding the appellant’s deprivation of direct appeal for both convictions of

burglary and reckless endangerment, the post-conviction court found, “he [appellant]

is in error as the matter was appealed to the Court of Criminal Appeals, and affirmed

on appeal.” The record includes a copy of the appellant’s direct appeal. See

Terrell, No. 02C01-9701-CC-00001 (“The defendant, Martin Thomas Terrell,

appeals as of right a jury conviction of aggravated kidnapping, burglary, reckless

endangerment with a deadly weapon, and driving on a revoked or suspended

license.”). Within this challenge the appellant also contends “improper trickery

tactics” were used by the trial judge and attorney general by failing to inform him of

his Motion for a New Trial resulting in “prejudice to the judicial process.” Although

the transcript of the trial proceedings is not included in the record, the order of the

post-conviction court dismissing the appellant’s petition recites, “a motion for new

trial was filed and overruled.”



         At a post-conviction proceeding, the appellant bears the burden of

establishing his allegations contained in the petition by clear and convincing

evidence. Tenn. Code Ann. § 40-30-210(f) (1997). There is no proof in the record

that remotely supports the appellant’s claim that he was denied a direct appeal.



        3
           In his petition, the appellant alleges, “[t]he State did not offer to prove these alleged prior
convictions by introducing the minutes of the Court rather the State embarked on a protracted and
confusing course seeking to establish its case by having a Federal Probation Officer Gerald Hunt
to testify from inform ation con tained on or in a yellow jac ket con cerning som e prior ca ses.”
          We note, however, the trial court’s order dismissing the appellant’s petition concludes
otherwise finding that “. . . several witnesses testified. . . and [c]ertified copies of prior convictions
were subm itted and considered by the court, and adm itted as exhibits.”

                                                    3
Moreover, the evidence contained in the record does not preponderate against the

trial court’s judgment, and this court is bound by those findings on appeal. Davis v.

State, 912 S.W.2d 689, 697 (Tenn. 1995). The appellant’s assertion of denial of

due process is without merit.



         With reference to the appellant’s second and third issues alleging sentencing

errors, our law provides that “[t]here is no appellate review of the sentence in a post-

conviction . . . proceeding.” Tenn. Code Ann. § 40-35-401(a) (1997). Moreover,

because the grounds alleged are procedural in nature, post-conviction relief is

unavailable since the appellant has failed to challenge that the sentence is void or

voidable based upon a right guaranteed by the Constitution of Tennessee or the

Constitution of the United States. Tenn. Code Ann. § 40-30-203 (1997). The fact

that the appellant labels the alleged sentencing error as a “Procedural Due Process

violation” which has resulted in “prejudice to the judicial process” will not transform

this procedural error into a constitutional infringement. These issues are without

merit.



         Based upon the foregoing, we affirm the post-conviction court’s summary

dismissal of the petition for post-conviction under the provisions of Tenn. Code Ann.

§ 40-30-206(f) (1997).




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:


                                          4
_________________________________________
JOHN H. PEAY, Judge



_________________________________________
L. T. LAFFERTY, Senior Judge




                               5
