State of Tennessee v. Jerry McGaha

Petitioner, Jerry McGaha, pled guilty in the Cocke County Circuit Court to nine counts of rape of a child. He was sentenced to twenty-five years on each count. After imposing consecutive sentences, Petitioner received an effective sentence of fifty years. After his direct appeal to this Court, his effective sentence was reduced to forty-six years. State v. Jerry McGaha, No. E2001-01547-CCA-R3-CD, 2002 WL 499273, at *1 (Tenn. Crim. App., at Knoxville, Apr. 3, 2002). After a delayed appeal to the supreme court, which was achieved through the filing of a petition for post-conviction relief, Petitioner filed a subsequent petition for post-conviction relief arguing that trial counsel was ineffective for failing to raise the issue that the enhancement of his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000). The post-conviction court denied the petition. On appeal, Appellant argues that he was afforded ineffective assistance of counsel because trial counsel failed to raise Apprendi. We conclude that he must fail on this issue because at the time of the sentencing hearing our supreme court had held that Apprendi did not affect the Tennessee sentencing scheme. Therefore, trial counsel could not be ineffective for failing to raise the issue. Petitioner also argues that it was plain error for the trial court to not raise Apprendi. Because this issue was not a basis for relief included in his petition, this issue is waived. Therefore, we affirm the post-conviction court’s denial of the petition for post-conviction relief.