Ronald Thomas v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 21, 1998
• Docket: 01C01-9709-CR-00407
• Status: Published

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 ).

-2- 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

-3- 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

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