Joseph Brown v. State of Tennessee ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 15, 2005
JOSEPH BROWN v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. P-24735 W. Fred Axley, Judge
No. W2005-00250-CCA-R3-PC - Filed January 18, 2006
The petitioner, Joseph Brown, pled guilty in the Shelby County Criminal Court to facilitation of first
degree murder and two counts of especially aggravated kidnapping. The trial court sentenced him
to fifteen years for each conviction and ordered that the sentences be served concurrently.
Subsequently, the petitioner filed a petition for post-conviction relief, claiming that he did not
knowing, intelligently, and voluntarily enter his guilty pleas. The post-conviction court denied relief.
Upon review of the record and the parties’ briefs, we must dismiss the petitioner’s appeal for lack
of jurisdiction.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.
AND J.C. MC LIN , JJ., joined.
Travis B. Butler (on appeal) and Michael E. New (at trial), Memphis, Tennessee, for the appellant,
Joseph Brown.
Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Reginald Henderson, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The petitioner’s convictions arose from his role in the death of Marshall Shipp and the severe
beating of Ricky Aldridge, members of the Gangster Disciples in Memphis. The record reflects that
fifteen other Gangster Disciple members, including the petitioner, were indicted for crimes against
the victims. On February 28, 2000, the petitioner pled guilty to facilitation of first degree murder
and two counts of especially aggravated kidnapping and received concurrent, fifteen-year sentences
for each conviction. The trial court ordered the petitioner to serve the facilitation conviction at thirty
percent and ordered him to serve the kidnapping convictions as a violent offender at one hundred
percent. On March 1, 2001, the petitioner filed a pro se petition for post-conviction relief, claiming
that he received the ineffective assistance of trial counsel. The post-conviction court appointed
counsel, and counsel amended the petition, claiming that the petitioner also did not knowingly,
intelligently, and voluntarily enter his guilty pleas.
At the evidentiary hearing, the petitioner testified that his trial attorney told him that he would
serve all of his sentences at thirty percent and that if he had known he would have to serve his
aggravated kidnapping sentences at one hundred percent, he would not have pled guilty and would
have gone to trial. He acknowledged that during his guilty plea hearing, the State recommended that
he serve his especially aggravated kidnapping sentences at one hundred percent. He also
acknowledged that when the trial court asked him if he was pleading guilty freely and voluntarily,
he said, “Yes, sir.” The petitioner’s trial attorney testified that before the petitioner pled guilty, four
co-defendants went to trial, were convicted, and received sentences of life plus fifty years. Counsel
stated that he learned a lot from the co-defendants’ trial, that he was convinced the petitioner was
going to be convicted, and that he believed the petitioner would receive a sentence of life plus fifty
or seventy-five years. On the day the petitioner was scheduled to go to trial, counsel approached the
State and asked if the State would be interested in a plea, and the State made a plea offer. The
petitioner seemed pleased with the State’s offer, wanted to plead guilty, and had no misgivings about
pleading guilty.
At the conclusion of proof, the post-conviction court stated that the guilty plea hearing
transcript demonstrated that the petitioner knowingly and voluntarily pled guilty and concluded that
the petitioner was “fully aware of the effect of [his] guilty plea.” In a written order, the post-
conviction court elaborated on its oral denial of post-conviction relief, noting that the petitioner
answered yes to all of the trial court’s questions during the guilty plea hearing and did not indicate
during the hearing that he did not understand the charges or his sentences. The post-conviction court
also noted that in prior trials, the petitioner’s co-defendants had been convicted and received life
sentences and that the petitioner’s attorney was “aware of the [State’s] case and how any further
trials would likely result.”
II. Analysis
The petitioner claims that he did not knowingly, intelligently, and voluntarily enter his guilty
pleas because the trial court failed to inquire during the guilty plea hearing about whether he
understood the length of his sentences and his release eligibility. Moreover, he contends that the trial
court failed to inquire “as to whether the defendant’s willingness to plead guilty or nolo contendere
results from prior discussions between the district attorney general and the defendant or the
defendant’s attorney” as required by Tennessee Rule of Criminal Procedure 11(d). The State claims
that the petitioner has failed to show that this court has jurisdiction over his appeal. The State also
contends that the post-conviction court properly determined that the petitioner entered his guilty
pleas knowingly, intelligently, and voluntarily. We conclude that the petitioner’s appeal must be
dismissed for lack of jurisdiction.
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After the post-conviction court denied post-conviction relief, the petitioner filed a timely pro
se notice of appeal. In his pro se appellate brief, the petitioner claimed that he received the
ineffective assistance of counsel and complained that he was not being represented by counsel on
appeal. Joseph Brown v. State, W2002-03014-CCA-R3-PC, 2004 Tenn. Crim. App. LEXIS 128,
at **3-4 (Jackson, Feb. 11, 2004). This court held that the petitioner had a “statutory right to be
represented by counsel in the first tier appeal of his post-conviction petition,” vacated the post-
conviction court’s order denying the petition for post-conviction relief, ordered that counsel be
appointed for the petitioner, and ordered that the post-conviction court “reenter its order denying
post-conviction relief, with the time for the petitioner’s appeal beginning to run from the time of the
reentry of the order.” Id. at **4-6. The post-conviction court appointed counsel to represent the
petitioner, and the petitioner’s new attorney filed a second notice of appeal. According to the notice
of appeal, the trial court reentered it’s order denying post-conviction relief on January 25, 2005.
However, the petitioner failed to include the reentered order in the appellate record. The State claims
that because the second order is not in the record on appeal, “[n]othing in the technical record
indicates that the post-conviction court reentered its order denying post-conviction relief” and,
therefore, “there is nothing in the record to appeal from.” The State argues that this court should
dismiss the appeal for lack of jurisdiction.
A defendant may appeal as of right from a final judgment in a post-conviction proceeding.
Tenn. R. App. P. 3(b). It is the petitioner’s duty to make sure that a complete and accurate record
is before this court on appeal. See Thompson v. State, 958 S.W.2d 156, 164 (Tenn. Crim. App.
1997). In this case, the petitioner should have included the post-conviction court’s reentered order
denying post-conviction relief in the appellate record. See Tenn. R. App. P. 24(a). However, in the
interests of justice and judicial economy, we sua sponte ordered the post-conviction court to
supplement the record with its reentered order. See Tenn. R. App. P. 24(e). In a written response
to our order, the Shelby County Criminal Court Clerk’s Office reported that no reentered order had
been found.1 Without the reentered order, there is nothing in the record to show that the post-
conviction court denied post-conviction relief and that this court has jurisdiction over the petitioner’s
appeal.
1
The clerk’s office also reported that the assistant attorney general and the petitioner’s attorney had
searched their files and had been unable to find the reentered order, indicating to us that the post-conviction court
never reentered the order as this court directed. If that is the case, then upon the post-conviction court’s reentering
the order denying post-conviction relief, the petitioner can refile his notice of appeal with the time for the appeal
beginning to run from the time of the reentry of the order.
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III. Conclusion
Based upon the record and the parties’ briefs, we dismiss the petitioner’s appeal.
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NORMA McGEE OGLE, JUDGE
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