Lon v. Boyd

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9510-CC-00301
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED MARCH 1996 SESSION September 9, 1996

Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9510-CC-00301 ) ) Sullivan County v. ) ) Hon. Frank L. Slaughter, Judge ) JAMES A. BEAR, ) (Theft of property) ) Appellant. )

For the Appellant: For the Appellee:

Lon V. Boyd Charles W. Burson P.O. Box 723 Attorney General of Tennessee 154 Cherokee Street and Kingsport, TN 37660 Timothy F. Behan (On appeal) Assistant Attorney General of Tennessee 450 James Robertson Parkway Cary C. Taylor Nashville, TN 37243-0493 547 East Sullivan Street Kingsport, TN 37660 H. Greeley Wells, Jr. (At trial) District Attorney General and Teresa M. Smith Assistant District Attorney General P.O. Box 526 Blountville, TN 37617

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge

OPINION The defendant, James A. Bear, was convicted in the Sullivan County

Criminal Court upon his plea of guilty to theft of property valued at more than one

$1,000.00 but less than $10,000.00, a Class D felony. He was sentenced as a Range

II, multiple offender to four years to be served in the custody of the Department of

Correction. In this appeal as of right, he contends that the trial court erred in refusing to

allow him to withdraw his guilty plea. Based upon the record before us, we affirm the

trial court.

Although the record on appeal does not include a transcript of the

defendant’s April 1995 guilty plea hearing, it reflects that the case related to the

defendant receiving a check for $2,916.00 that was issued to his former employer by a

third party. The defendant endorsed and deposited the check into his personal

account. The record indicates that the defendant’s guilty plea was pursuant to an

agreement with the state and that the state would recommend a four-year sentence as

a Range II offender. A “probation hearing” was set for a later date.1

However, on the day of the probation hearing, the defendant filed a

motion to withdraw his guilty plea. In the motion, personally signed by him, the

defendant alleged that at the time of his guilty plea, he was going through a divorce

proceeding and was under heavy pressure and threats of a longer sentence.2 The trial

court stated that it would not hear the motion to withdraw at that time, but would

entertain a motion once a transcript of the guilty plea hearing had been prepared. The

defendant persisted in attempting to explain why he wanted to withdraw his guilty plea.

1 Although the record reflects that the defendant’s four-year sentence was im posed at the tim e of his guilty plea and that the issue of probation was deferred to a later date, we note that T.C.A. § 40-35-303(e) provides that the issue of probation is to be decided at the tim e of the sentencing hearing.

2 The defendant’s adult and juvenile records reflect a steady history of crim inal conduct from 1970 to the present including, but not lim ited to, bad checks (for exam ple, sixty-two counts in a 1977 case), car theft, credit card theft and fraud, forgery and em bezzlem ent. This record indicates that absent agreem ent, the defendant was realistically exposed upon conviction to a m axim um sentence of twelve years.

2 Ultimately, the trial court said it was going to deny the defendant’s motion based upon

its recollection that the defendant had entered his plea voluntarily, knowingly and

intelligently and upon its suspicions that the defendant was attempting to manipulate

the case by withdrawing the plea at such a late date. However, the trial court also

indicated that it would entertain a motion to reconsider if filed, indicating that the

defendant would receive a full hearing on the issue of his plea if he so desired. At the

end of the hearing, the trial court denied probation and allowed the defendant’s

previous attorney to withdraw. The defendant did not file a motion to reconsider, but

chose to appeal instead.

The defendant now argues that he did not enter his plea voluntarily and

was not fully aware of the consequences of his plea. He points to his former attorney

noting at the probation hearing that the defendant was rather reluctant to enter a guilty

plea. He asserts that the trial court should have set aside his guilty plea to “correct

manifest injustice.”

Pursuant to Rule 32(f), Tenn. R. Crim. P., a guilty plea may be withdrawn

before sentencing if a “fair and just reason” is shown and after sentencing “to correct

manifest injustice.”3 However, the decision to allow a withdrawal rests within the sound

discretion of the trial court and is not subject to reversal unless there is an abuse of

discretion. State v. Drake, 720 S.W.2d 798, 799 (Tenn. Crim. App. 1986). In this

respect, it was incumbent upon the defendant, as the appellant, to prepare “a transcript

of such part of the evidence or proceedings as is necessary to convey a fair, accurate

and complete account of what transpired with respect to those issues that are the

bases of appeal.” T.R.A.P. 24(b). Unfortunately, in the present case the failure of the

record to contain a transcript of the guilty plea hearing precludes us from conducting a

complete review of the trial court record relevant to the question of the defendant’s

3 Given the fact that the defendant was awaiting the trial court’s decision on the issue of probation, we view the presentence standard to have applied at the tim e of the trial court’s ruling.

3 request for withdrawal of his guilty plea. As a matter of policy when faced with an

incomplete record, we presume that the ruling of the trial court was correct upon the

complete record. See State v. Brown, 756 S.W.2d 700, 705 (Tenn. Crim. App. 1988).

The record on appeal reflects that the trial court relied heavily upon the

events disclosed during the guilty plea hearing. We are in no position to disagree with

its rulings under the record before us. Moreover, we conclude that the record before us

does not, by itself, justify giving the defendant the relief he seeks. The judgment of the

trial court is affirmed.

______________________________ Joseph M. Tipton, Judge

CONCUR:

___________________________ Paul G. Summers, Judge

___________________________ Charles Lee, Special Judge