           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                     FILED
                                 AT KNOXVILLE                      August 12, 1999

                                                                  Cecil Crowson, Jr.
                              JANUARY 1999 SESSION                Appellate C ourt
                                                                      Clerk



DARRELL FRITTS,                  *    C.C.A. NO. 03C01-9803-CR-00116

      APPELLANT,                 *    MONROE COUNTY

VS.                              *    Hon. Douglas A. Meyer, Judge

STATE OF TENNESSEE,              *    (Post-Conviction)

      APPELLEE.                  *




For Appellant:                        For Appellee:

L. Darren Gibson                      John Knox Walkup
Attorney for Appellant                Attorney General and Reporter
735 Broad Street, Suite 700           450 James Robertson Parkway
Chattanooga, TN 37402                 Nashville, TN 37243-0493

                                      Michael J. Fahey, II
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      425 Fifth Avenue North, 2nd Floor
                                      Nashville, TN 37243

                                      Jerry N. Estes
                                      District Attorney General
                                      203 E. Madison Ave.
                                      Athens, TN 37303



OPINION FILED: ____________________



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                                     OPINION

                   On May 27, 1994, the petitioner, Darrell Fritts, filed his second petition

for post-conviction relief in the Criminal Court of Monroe County. The trial court

appointed counsel and conducted a hearing on March 12, 1997.1 On September

25, 1997, the trial court entered an order denying the petition for post-conviction

relief. On appeal, the petitioner contends that his sentence violates the Ex Post

Facto clauses of the United States and Tennessee Constitutions.2 Moreover, the

petitioner argues that he should be granted a new sentencing hearing pursuant to

our supreme court’s decision in State v. Pearson, 858 S.W.2d 879 (Tenn. 1993).

Following a review of the record, we affirm the decision of the trial court.



                   On December 1, 1989, the petitioner was convicted by a jury in the

Monroe County Criminal Court of second degree murder. On January 19, 1990, the

trial court sentenced the petitioner as a Range I standard offender to twenty-five

years incarceration in the Tennessee Department of Correction. This court affirmed

his conviction on September 25, 1992. State v. Darrell Fritts, No. 132, 1992 WL

236152 (Tenn. Crim. App. at Knoxville), perm to appeal dismissed, (Tenn. 1993).

The petitioner did not challenge his sentence in his direct appeal.



                   On October 15, 1993, the petitioner, proceeding pro se, filed his first

petition for post-conviction relief, requesting a delayed appeal to the Tennessee

Supreme Court. The trial court conducted a hearing on May 23, 1994, and on May

27, 1994, denied the petitioner relief. The petitioner did not appeal the trial court’s


         1
         On April 11, 1997, the trial court allowed the petitioner to submit an amended petition for
post-conviction relief to explain the grounds for relief he argued at the evidentiary hearing.

         2
           In his statement of facts, the petitioner briefly mentions ineffective assistance of counsel and
unlaw ful clo sing argu me nts b y a spe cial pr ose cuto r but d oes not a rgue thes e issu es in t he bo dy of h is
brief.

                                                          2
decision. Instead he filed the present petition.



              At the post-conviction hearing, the petitioner’s primary issue was

whether a new sentencing hearing should be granted on the basis of Pearson, 858

S.W.2d 879. In Pearson, 858 S.W.2d at 884, our supreme court held that:

              in order to comply with the ex post facto prohibitions of
              the U.S. and Tennessee Constitutions, trial court judges
              imposing sentences after the effective date of the 1989
              statute, for crimes committed prior thereto, must
              calculate the appropriate sentence under both the 1982
              statute and the 1989 statute, in their entirety, and then
              impose the lesser of the two.



Moreover, Tenn. Code Ann. § 40-35-117(b) (1990) provides that a defendant

sentenced on or after November 1, 1989 for an offense committed prior to the

enactment of the 1989 Criminal Sentencing Reform Act should be sentenced under

the 1989 Act, unless such is constitutionally barred. In conjunction therewith, Tenn.

Code Ann. § 39-11-112 (1990) provides that, if the legislature reduces the penalty

for an offense between the time of commission and the time of sentencing, a

defendant is entitled to the lesser penalty.



              The petitioner committed the second degree murder prior to the

enactment of the 1989 Sentencing Act but was sentenced after its effective date. In

sentencing the petitioner, the trial court neglected to consider the 1982 Act and

merely sentenced the petitioner to twenty-five years pursuant to the 1989 Act.

Therefore, the Pearson rule potentially mandates a new sentencing hearing.

However, our inquiry does not stop here.



              In order to obtain post-conviction relief, a petitioner must allege that his

conviction or sentence is void or voidable due to the abridgement of a constitutional


                                            3
right. Tenn. Code Ann. § 40-30-105 (1990). A post-conviction 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. Tenn. Code Ann. § 40-30-112(b)(1) (1990);

House v. State, 911 S.W.2d 705, 713-14 (Tenn. 1995). There is a rebuttable

presumption that a ground for relief not raised in any such proceeding is waived.

Tenn. Code Ann. § 40-30-112(b)(2) (1990). Additionally, our courts have repeatedly

held that when a petitioner fails to present a ground for relief in his first post-

conviction proceeding, that ground is waived for purposes of any subsequent post-

conviction proceedings.3 As our supreme court stated long ago, “[t]here must be a

finality to all litigation, criminal as well as civil.” Arthur v. State, 483 S.W.2d 95, 97

(Tenn. 1972).



                 As previously noted, the petitioner filed his first petition for post-

conviction relief on October 15, 1993, requesting a delayed appeal to the

Tennessee Supreme Court. The Pearson decision was filed on June 14, 1993, and

was an available ground for relief. See Burford v. State, 845 S.W.2d 204 (Tenn.

1995). Therefore, as a result of his failure to raise the issue in his first petition for

post-conviction relief, the petitioner has waived any ex post facto challenge to his

sentence.



                 In any event, even if the petitioner’s ex post facto challenge is not

waived, we conclude that the trial court imposed the lesser of the two possible

sentences under the 1982 Act and the 1989 Act. We thereby reject the petitioner’s


        3
          Caruth ers v. State , 814 S.W .2d 64, 69 -70 (Te nn. Crim . App. 199 1); Sm ith v. State , No.
02C01-9801-C R-00018, 1998 W L 899362, at *4 (Tenn. Crim . App. at Jackson, Dec ember 28, 199 8);
Colem an v. State , No. 02C01-9611-CR-00395, 1998 WL 858537, at *5 (Tenn. Crim. App. at Tucson,
Dece mbe r 4, 1998 ); Caldwe ll v. State, No. 02C01-9711-CC-00446, 1998 WL 775685, at *3 (Tenn.
Crim . App. at Ja ckso n, Nove mbe r 9, 1998 ); Mand ela v. State , No. 01C01-9610-CR-00459, 1998 WL
51113 3, at *7 (Te nn. Crim . App. at N ashville, Au gust 20 , 1998).

                                                     4
argument that he could have received a lesser sentence under the 1982 Act

because he did not receive proper notice of the State’s intent to seek enhanced

punishment. See Tenn. Code Ann. § 40-35-202 (1990). 4 The petitioner failed to

object to the lack of notice at the 1990 sentencing hearing and in his first post

conviction proceeding and will not be heard to complain for the first time in these

proceedings.



                 The petitioner was convicted of second degree murder. Tenn. Code

Ann. § 39-2-211 (1982 Repl.) The punishment range extended from imprisonment

for a period of not less than ten years to life imprisonment. Tenn. Code Ann. § 39-

2-212 (1982 Repl.) Furthermore, due to his prior burglary convictions, the petitioner

would have qualified as a persistent offender under the 1982 Act. Tenn. Code Ann.

§ 40-35-106 (1982 Repl.) Accordingly, the petitioner’s minimum sentence under the

1982 Act would have been thirty-five years. See Tenn. Code Ann. § 40-35-106 and

-109 (1982 Repl.) Clearly, in receiving a twenty-five year sentence under the 1989

Act, the petitioner received the benefit of the lesser sentence.



                 Accordingly, we affirm the judgment of the trial court.




                                                  __________________________________

                                                  Norma McGee Ogle, Judge



CONCUR:

        4
           The State relies upon two enhancement factors. First, the State introduced evidence of the
petitioner’s 1 985 bu rglary conv iction and h is 1986 b urglary of an autom obile con viction. See Tenn.
Code Ann. § 40-35-114(1) (1990). Second, the State relied upon the petitioner’s use of a firearm in the
com miss ion of his of fense. See Tenn . Code A nn. § 40- 35-114 (9) (199 0).

                                                    5
______________________________

Gary R. Wade, Presiding Judge



_______________________________

John K. Byers, Senior Judge




                                  6
