Ronald Thomas v. State ( 1998 )

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
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