             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON              FILED
                               APRIL 1998 SESSION
                                                           November 4, 1998

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

CEDRIC STAMPLEY,                      )    No. 02C01-9707-CR-00288
                                      )
      Appellant,                      )
                                      )    SHELBY COUNTY
V.                                    )
                                      )    HON. JOHN P. COLTON, JR.,
STATE OF TENNESSEE,                   )    JUDGE
                                      )
      Appellee.                       )    (Post-Conviction)
                                      )
                                      )


For the Appellant:                         For the Appellee:

Cedric Stampley, Pro Se                    John Knox Walkup
4018 Mountain Terrace                      Attorney General and Reporter
Memphis, TN 38127
                                           Peter M. Coughlan
                                           Assistant Attorney General
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493


                                           William L. Gibbons
                                           District Attorney General

                                           C. Alanda Horne
                                           Assistant District Attorney
                                           201 Poplar Street, Suite 301
                                           Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED


William M. Barker, Special Judge
                                         OPINION


       The appellant, Cedric Stampley, appeals as of right the denial in the Shelby

County Criminal Court of his petition for post-conviction relief. The trial court

dismissed appellant’s pro se petition without the appointment of counsel and without

an evidentiary hearing. On appeal, appellant argues that the trial court erred in

summarily dismissing his petition. We affirm the judgment of the trial court.

       Appellant was convicted of attempted first degree murder in 1994 and received

a sentence of 23 years. On direct appeal, this Court affirmed his conviction and

sentence. State v. Cedric Stampley, No. 02C01-9409-CR-00208 (Tenn. Crim. App. at

Jackson, August 16, 1996), perm. app. denied (Tenn. 1997). Appellant filed the

instant petition on April 8, 1997. He alleged four grounds for relief: (1) denial of

assistance of counsel by the trial court in permitting him to proceed pro se at trial and

on appeal without ensuring a voluntary and knowing waiver of counsel; (2) a defective

indictment for failure to contain sufficient factual allegations; (3) denial of due process

by the trial court’s failure to instruct the jury on lesser included offenses; and (4) an

excessive sentence given the evidence and law.

       The post-conviction court entered a preliminary order and denied the petition

without holding an evidentiary hearing. Before dismissing the petition, however, the

trial court reviewed the transcript of the hearing on defendant’s motion to proceed pro

se and found that appellant was properly advised of his right to waive counsel. In

addition, the post-conviction court held that the appellant had waived any claims for

relief based upon defects in the indictment and errors in failing to charge on lesser

offenses by not raising those issues on appeal. Nevertheless, it concluded that the

indictment properly informed the defendant of the nature and cause of the accusation

against him. Finally, the post-conviction court found that instructions on the lesser

offenses of voluntary manslaughter and criminally negligent homicide were not

warranted by the proof at trial.


                                             2
       We are unpersuaded by much of appellant’s authority because it relates to

procedure under the now-repealed Post-Conviction Procedure Act. See Tenn. Code

Ann. §§40-30-101 - 124 (repealed 1995). In contrast, the current Post-Conviction

Procedure Act contains more stringent standards and requires closer scrutiny of post-

conviction petitions by the trial court. Blair v. State, 969 S.W.2d 423, 425 (Tenn. Crim.

App. 1997), perm. app. denied (Tenn. 1998).

       Under Tennessee Code Annotated section 40-30-206, the trial court is required

to preliminarily review the factual allegations in a post-conviction petition along with all

files, records, transcripts, and correspondence relating to the judgment under attack.

If the claims have been waived or previously determined, or if the facts alleged fail to

show that appellant is entitled to relief, the petition must be dismissed. Tenn. Code

Ann. §40-30-206(f) (1997) (emphasis added).

       The post-conviction court properly determined that appellant’s claim regarding

the failure to charge lesser offenses was waived for failing to raise it on direct appeal.

See Tenn. Code Ann. §40-30-206(g) (1997). Although not addressed by the trial

court, appellant’s challenge to his sentence has been previously determined because

it was raised on direct appeal. See Tenn. Code Ann. §40-30-206(h) (1997). Any

additional grounds in that regard upon which appellant now seeks to challenge the

sentence have been waived. Because appellant’s petition failed to assert facts to

demonstrate why these claims are not waived or previously determined, dismissal was

appropriate. See Tenn. Sup. Ct. R. 28, §5(F).

       We disagree, however, with the trial court’s conclusion that the appellant

waived his claim for relief based upon a defective indictment by not raising the issue

on direct appeal. Since the sufficiency of an indictment is jurisdictional in nature, the

issue was not untimely raised in the post-conviction petition. See Dennis Dykes v.

Billy Compton, Warden, No. 02S01-9711-CC-00105 (Tenn. at Jackson, September

21, 1998) (holding that sufficiency of an indictment may be raised in habeas corpus



                                             3
petition). Nevertheless, we find, as did the trial court, that the indictment in this case

did contain sufficient facts so as to adequately inform the appellant of the nature and

cause of the accusation against him. The appellant is not entitled to post-conviction

relief on this ground.

        With regard to appellant’s waiver of counsel, the record demonstrates that the

trial court followed the proper procedure in allowing the appellant to waive counsel and

represent himself. Before a trial court may accept a written waiver of counsel, 1 the

trial court must advise the accused of the right to counsel at every stage of the

proceedings. Tenn. R. Crim. P. 44(a). In determining whether there has been a

competent and intelligent waiver, the trial court must inquire into the background,

experience, and conduct of the accused. Id.

        The transcript in the record before us reflects that the trial court determined

that appellant completed high school and also some courses at broadcasting school.

Appellant stated he could read and write without difficulty. He affirmed that he had

reviewed the rules of procedure and the law relative to the charge pending against

him. Appellant stated that he understood the charge against him and knew that he

was bound by the same procedural rules as a lawyer. Appellant had no questions

about representing himself and disregarded the trial court’s recommendation to keep

his court-appointed lawyer. The trial court found that appellant was literate,

competent, and aware of the charge and what he was facing. Therefore, it ruled that

appellant freely and voluntarily waived his right to counsel.

        Although the trial court granted appellant’s request to represent himself, it

required court-appointed counsel to remain as elbow counsel and ensured that

appellant had access to an investigator from the public defender’s office. The trial

court took more than the necessary steps to ensure that appellant knowingly and




        1
         Appellant’s petition states that he filed a motion to proceed pro se, which qualifies as a written
waiver. State v. Go odw in, 909 S.W .2d 35, 39 (Tenn. Crim . App. 1995).

                                                     4
intelligently waived his right to counsel at the trial level. See State v. Goodwin, 909

S.W.2d 35, 41 (Tenn. Crim. App. 1995).

       Appellant also argues that the record does not contain a waiver of his right to

appellate counsel. According to appellant, at the conclusion of the sentencing

hearing, the trial court inquired as to whether appellant wanted to continue

representing himself. Appellant argues that the trial court did not again make the

necessary inquiries to ensure his waiver was knowing and intelligent. However,

appellant asserts no facts in the petition to demonstrate that his circumstances had

changed so that the earlier waiver had become invalid. Cf. State v. Gillespie, 898

S.W.2d 738, 741-42 (Tenn. Crim. App. 1994) (remanding appeal for appointment of

counsel where record failed to demonstrate that trial court made the required inquiry

for waiver of counsel). In the absence of specific factual allegations, it is proper for

the post-conviction court to dismiss the claim. Tenn. Sup. Ct. R. 28, §5(F).

       Our review of the record indicates that the post-conviction court’s findings were

correct. It is clear from the record that an evidentiary hearing was unnecessary to

resolve appellant’s claims. We affirm the trial court’s judgment summarily dismissing

appellant’s petition.



                                                  _______________________________
                                                  William M. Barker, Special Judge


CONCUR:


____________________________
David G. Hayes, Judge


____________________________
Joe G. Riley, Judge




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