State of Tennessee v. Billy Wayne Price ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE v. BILLY WAYNE PRICE
Direct Appeal from the Circuit Court for Gibson County
No. H 7132 Clayburn Peeples, Judge
No. W2007-02816-CCA-R3-CD - Filed September 8, 2008
The petitioner, Billy Wayne Price, pro se appeals the trial court’s denial of his petition to withdraw
his guilty plea. He pled guilty in 2003 for selling a Schedule II controlled substance and received
a ten-year sentence to be served on probation. His probation was subsequently revoked, and the
petitioner later filed his motion to withdraw his plea. After careful review, we conclude that the
petitioner has failed to provide a complete record on appeal by omitting a transcript of the guilty plea
hearing; therefore, the petitioner’s appeal is dismissed.
Tenn. R. App. P. 3; Appeal Dismissed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.
Billy Wayne Price, Henning, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
The petitioner appeals the trial court’s denial of his petition to withdraw his guilty plea. The
State has filed a motion to dismiss the appeal or, in the alternative, to affirm the judgment from the
trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals.
The State moves this court to dismiss the appeal on the grounds that the petitioner has failed to
provide the transcript of the guilty plea hearing.
In order for this court to review the trial court’s summary dismissal of the petitioner’s motion
to withdraw his guilty plea, a transcribed record of the guilty plea hearing is required.
In February 2003, the petitioner pled guilty to selling a Schedule II controlled substance in
an amount more than 0.5 grams and received a ten-year sentence to be served as a Range I, standard
offender. His sentence was to be served on probation, but probation was revoked on January 28,
2005. The petitioner filed a pro se petition to withdraw his guilty plea on October 22, 2007. The
trial court dismissed the petition by written order on December 6, 2007. Here, the petitioner argues
that the trial court should not have summarily dismissed his petition and contends that his guilty plea
was not voluntarily and intelligently entered because he believed he was receiving an eight-year
sentence instead of a ten-year sentence.
Tennessee Rule of Criminal Procedure 32(f) states that a plea of guilty may be withdrawn
under particular circumstances:
(1) Before Sentence Imposed.
Before the sentence is imposed, the court may grant a motion to withdraw a guilty
plea for any fair and just reason.
(2) After Sentence But Before Final Judgment.
After the sentence is imposed but before the judgment becomes final, the court
may set aside the judgment of conviction and permit the petitioner to withdraw
the plea to correct manifest injustice.
This petitioner had been sentenced at the time he sought to withdraw his plea of guilty and the
judgment. In State v. Green, 106 S.W.3d 646 (Tenn. 2003), the Tennessee Supreme Court held that
a judgment of conviction based on a guilty plea becomes final thirty days after acceptance of the plea
agreement and imposition of the sentence. This court has also previously concluded that the decision
whether to grant a motion to withdraw a guilty plea rests within the sound discretion of the trial
judge and is not subject to reversal, unless it clearly appears that there was an abuse of discretion.
State v. Drake, 720 S.W.2d 798 (Tenn. Crim. App. 1986).
The State argues, and we agree, that the petitioner has failed to present an adequate record
for our review. He asserts that he did not voluntarily and intelligently enter his plea but failed to
provide the transcript of the guilty plea hearing in the record on appeal. The appellant bears the
burden of preparing a complete record on appeal. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn.
1993). “Where the record is incomplete and does not contain a transcript of the proceedings relevant
to an issue presented for review, or portions of the record upon which the party relies, an appellate
court is precluded from reviewing the issue.” Ballard, 855 S.W.2d at 560-61; Tenn. R. App. P.
24(b).
The State requests that we consider that nothing in the record indicates the petitioner did not
know he would receive a sentence of ten years in exchange for his guilty plea. The petitioner signed
the guilty plea form and the probation order, which both reflect a ten-year sentence. There is no
indication of a “manifest injustice” that requires the setting aside of the petitioner’s guilty plea.
Accordingly, we dismiss the petitioner’s appeal.
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JOHN EVERETT WILLIAMS, JUDGE
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