Ronald Thomas v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED SEPTEMBE R SESSION, 1998 October 21, 1998

Cecil W. Crowson

Appellate Court Clerk

RONALD EARL THOMAS, ) C.C.A. NO. 01C01-9709-CR-00407 )

Appe llant, )

) DAVIDSON COUNTY

V. )

)

) HON. SETH NORMAN, JUDGE STATE OF TENNESSEE, )

)

Appellee. ) (POST-CONVICTION)

FOR THE APPELLANT: FOR THE APPELLEE:

TERRY J. CANADY JOHN KNOX WALKUP 211 Printer’s Alley Building Attorney General & Reporter Suite 400 Nashville, TN 37201 ELIZABETH B. MARNEY Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North

Nashville, TN 37243

VICTO R S. JO HNS ON, III District Attorney General

LILA STATOM

Assistant District Attorney General Washington Square

222 Second Avenue North, Suite 500 Nashville, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Petitioner, Ronald Earl Thomas, appeals the order of the Davidson Coun ty Criminal Court dismissing his petition for post-c onvictio n relief. In his sole issue on appe al, Petition er argu es tha t his ple a of gu ilty was in volunta ry beca use it was the product of prose cutoria l misco nduc t. W e affirm the trial c ourt’s dismissal of the petition.

A post-conviction hearing was held on October 18, 19 95, on Petition er’s cla im of prosecutorial misconduct, but it appears from the record that at least one additional hearing was also held. Specifically, the trial court refers to the testimony of Petitioner and Petitioner’s trial counsel in its July 30, 1997 Order denying Petitioner’s petition for post-conviction relief. How ever, the only testimo ny made part of this rec ord is that of Assistant Attorney General Nick Bailey given at the October 18, 1995 hearing. The trial court’s Order also reflects that Petitioner raised other issues in add ition to th e pros ecuto rial mis cond uct cla im raised here. The transcript of any post-conviction hearing, besides the one held October 18, 1995, is not included as part of the record on appeal. Even though the State does not address this matter, we note that the duty falls upon the Petitioner to prepare suc h a record and transcript n ecessa ry to conve y a fair, accu rate and comp lete account of what transpired relative to the issue(s) on appeal. Tenn. R. App. P. 24(b). In the absence of an appropriate record, we must presume that the trial cou rt's determination s are correct. See, e.g., State v. Meeks, 779 S.W.2d 394, 397 (T enn. Crim. A pp. 1988); State v. Beech, 744 S.W .2d 585, 588 (Tenn. Crim . App. 1987 ).

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As previously mentioned, the only testimony from the post-conviction hearing included in the record is that of Assistant District Attorn ey Gene ral Nick Bailey, and therefore, our review of the issue presented is lim ited to that testimony. General Bailey had been the orig inal pro secu tor in Pe titioner’s case, and he testified that he never told Petitioner that he would receive a sente nce o f at leas t 320 ye ars if Petitioner asse rted his innoc ence to mu ltiple co unts o f aggra vated child abuse. He testified that he did not speak with Petitioner directly but that he may have discussed what the poss ible expos ure wou ld have b een to the counts in the indictm ent with Petition er’s lawyer. In addition, General Bailey testified that he was present during part of Petitioner’s taped confession and that he had since listened to that taped confes sion and that it did not s ound ta mpere d with or alte red.

In post-conviction proceedings, a petitioner has the burden of proving his post-conviction allegations by a preponderance of the ev idence . McBe e v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). A trial court's findings of fact following a post-conviction hearing have the weight of a jury verdict. Bratton v. S tate, 477 S.W.2d 754, 756 (Tenn. Crim. App. 1971). On appe al, those findings are conclusive unless the evidence preponderates against the judgm ent. Butler v. Sta te, 789 S.W.2d 898, 89 9 (Ten n. 1990 ). With that standard of review in mind, we turn to the issue pre sented .

The only iss ue pre sente d in this appe al is fully refuted by the evidence before us. Assistant District Attorney General Bailey testified that he never told Petitioner that if he did not enter a plea of guilty he would receive at least 320 years in prison. General Bailey also testified that P etitioner’s taped confession was in no way tampered with or altered. If Petitioner offered evidence to the contrary at the

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hearing, it is not included in the record. Based on these facts, we find that Petitioner has failed to carry his burden that his plea of guilty was involuntary and was the result of prose cutorial m iscondu ct. Petitioner has made no showing that the po st- conviction court’s findin gs are inc onsisten t with the evid ence. See Butler, 789 S.W.2d at 900.

According ly, we affirm the trial c ourt’s dismissal of Petitioner’s petition for p ost-

conviction relief.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WA DE, Presiding Judge

___________________________________

J. CURWO OD W ITT, JR., Judge