State v. Chad Poole

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED JANUARY 2000 SESSION March 17, 2000

Cecil Crowson, Jr. Appellate Court Clerk CHAD DOUGLAS POOLE, * No. W1999-01518-CCA-R3-PC

Appellant, * HARDEMAN COUNTY

VS. * Hon. John Kerry Blackwood, Judge

STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID H. CRICHTON MICHAEL E. MOORE 111 West Market Street Solicitor General P. O. Box 651 Bolivar, TN 38008 CLINTON J. MORGAN Counsel for the State 425 Fifth Avenue North Nashville, TN 37243

ELIZABETH T. RICE District Attorney General

JAMES WALTER FREELAND, JR. and JERRY W. NORWOOD 302 Market Street Somerville, TN 38068

OPINION FILED: _______________

AFFIRMED PURSUANT TO RULE 20 JOHN EVERETT WILLIAMS, Judge ORDER

The petitioner, Chad Douglas Poole, appeals from the Hardeman County

Circuit Court’s order denying his petition for post-conviction relief. His petition

followed guilty pleas to especially aggravated robbery and other charges not related

to this appeal. For the especially aggravated robbery, he was sentenced to 21

years in the Department of Correction as a standard offender. In this appeal, he

challenges only the especially aggravated robbery conviction and presents only one

argument. He argues that his guilty plea to the especially aggravated robbery is

defective as it was entered unknowingly and involuntarily. After careful review, we

AFFIRM the trial court’s dismissal of the petition for post-conviction relief pursuant

to Tenn. Ct. Crim. R. App. 20.

The basis of the petitioner’s challenge to his plea to especially aggravated

robbery is that at the time of his plea he believed that his sentence would be 15

years. See e.g., State v. Mackey, 553 S.W.2d 337 (Tenn. 1997). He claims that

his counsel advised him that he would receive the minimum sentence, 15 years,

and absent counsel’s statement he would not have pled guilty. At the hearing,

petitioner testified to essentially that fact; however, counsel testified that he did not

advise petitioner that he would receive 15 years but, in fact, stated that the trial

judge may “hit him” on the especially aggravated robbery. The trial court

considered the testimony and found that: Counsel never told the petitioner that he

would receive a 15 year sentence.

We affirm this finding and the trial court’s ruling. First, from the record before

this Court, it appears that the petitioner has neglected to include the relevant guilty

plea papers, a transcript of the guilty plea hearing, and a transcript of the

-2- sentencing hearing. These documents are essential to our review and the failure

to include them in the record amounts to waiver of the issue. See Tenn. R. App. P.

24(b); State v. Draper, 800 S.W.2d 489 (Tenn. Crim. App. 1990); State v. Bennett,

798 S.W.2d 783 (Tenn. Crim. App. 1990). Second, the lone issue raised in the

petitioner’s brief is one hinging solely upon credibility. The trial court as the trier of

fact makes credibility determinations given that it alone is in the best position to

observe the witnesses. See State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We

therefore accord such determination substantial deference and find no error in this

case. The record before us, while incomplete, does not conflict with the trial court’s

finding.

Accordingly, we AFFIRM the trial court’s order dismissing the petition for

post-conviction relief.

_________________________________ JOHN EVERETT WILLIAMS, Judge

CONCUR:

________________________________ DAVID G. HAYES, Judge

_________________________________ ALAN E. GLENN, Judge

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