IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1996 SESSION
September 9, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9510-CC-00301
)
) Sullivan County
v. )
) Hon. Frank L. Slaughter, Judge
)
JAMES A. BEAR, ) (Theft of property)
)
Appellant. )
For the Appellant: For the Appellee:
Lon V. Boyd Charles W. Burson
P.O. Box 723 Attorney General of Tennessee
154 Cherokee Street and
Kingsport, TN 37660 Timothy F. Behan
(On appeal) Assistant Attorney General of Tennessee
450 James Robertson Parkway
Cary C. Taylor Nashville, TN 37243-0493
547 East Sullivan Street
Kingsport, TN 37660 H. Greeley Wells, Jr.
(At trial) District Attorney General
and
Teresa M. Smith
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, James A. Bear, was convicted in the Sullivan County
Criminal Court upon his plea of guilty to theft of property valued at more than one
$1,000.00 but less than $10,000.00, a Class D felony. He was sentenced as a Range
II, multiple offender to four years to be served in the custody of the Department of
Correction. In this appeal as of right, he contends that the trial court erred in refusing to
allow him to withdraw his guilty plea. Based upon the record before us, we affirm the
trial court.
Although the record on appeal does not include a transcript of the
defendant’s April 1995 guilty plea hearing, it reflects that the case related to the
defendant receiving a check for $2,916.00 that was issued to his former employer by a
third party. The defendant endorsed and deposited the check into his personal
account. The record indicates that the defendant’s guilty plea was pursuant to an
agreement with the state and that the state would recommend a four-year sentence as
a Range II offender. A “probation hearing” was set for a later date.1
However, on the day of the probation hearing, the defendant filed a
motion to withdraw his guilty plea. In the motion, personally signed by him, the
defendant alleged that at the time of his guilty plea, he was going through a divorce
proceeding and was under heavy pressure and threats of a longer sentence.2 The trial
court stated that it would not hear the motion to withdraw at that time, but would
entertain a motion once a transcript of the guilty plea hearing had been prepared. The
defendant persisted in attempting to explain why he wanted to withdraw his guilty plea.
1
Although the record reflects that the defendant’s four-year sentence was im posed at the
tim e of his guilty plea and that the issue of probation was deferred to a later date, we note that T.C.A. §
40-35-303(e) provides that the issue of probation is to be decided at the tim e of the sentencing hearing.
2
The defendant’s adult and juvenile records reflect a steady history of crim inal conduct
from 1970 to the present including, but not lim ited to, bad checks (for exam ple, sixty-two counts in a 1977
case), car theft, credit card theft and fraud, forgery and em bezzlem ent. This record indicates that absent
agreem ent, the defendant was realistically exposed upon conviction to a m axim um sentence of twelve
years.
2
Ultimately, the trial court said it was going to deny the defendant’s motion based upon
its recollection that the defendant had entered his plea voluntarily, knowingly and
intelligently and upon its suspicions that the defendant was attempting to manipulate
the case by withdrawing the plea at such a late date. However, the trial court also
indicated that it would entertain a motion to reconsider if filed, indicating that the
defendant would receive a full hearing on the issue of his plea if he so desired. At the
end of the hearing, the trial court denied probation and allowed the defendant’s
previous attorney to withdraw. The defendant did not file a motion to reconsider, but
chose to appeal instead.
The defendant now argues that he did not enter his plea voluntarily and
was not fully aware of the consequences of his plea. He points to his former attorney
noting at the probation hearing that the defendant was rather reluctant to enter a guilty
plea. He asserts that the trial court should have set aside his guilty plea to “correct
manifest injustice.”
Pursuant to Rule 32(f), Tenn. R. Crim. P., a guilty plea may be withdrawn
before sentencing if a “fair and just reason” is shown and after sentencing “to correct
manifest injustice.”3 However, the decision to allow a withdrawal rests within the sound
discretion of the trial court and is not subject to reversal unless there is an abuse of
discretion. State v. Drake, 720 S.W.2d 798, 799 (Tenn. Crim. App. 1986). In this
respect, it was incumbent upon the defendant, as the appellant, to prepare “a transcript
of such part of the evidence or proceedings as is necessary to convey a fair, accurate
and complete account of what transpired with respect to those issues that are the
bases of appeal.” T.R.A.P. 24(b). Unfortunately, in the present case the failure of the
record to contain a transcript of the guilty plea hearing precludes us from conducting a
complete review of the trial court record relevant to the question of the defendant’s
3
Given the fact that the defendant was awaiting the trial court’s decision on the issue of
probation, we view the presentence standard to have applied at the tim e of the trial court’s ruling.
3
request for withdrawal of his guilty plea. As a matter of policy when faced with an
incomplete record, we presume that the ruling of the trial court was correct upon the
complete record. See State v. Brown, 756 S.W.2d 700, 705 (Tenn. Crim. App. 1988).
The record on appeal reflects that the trial court relied heavily upon the
events disclosed during the guilty plea hearing. We are in no position to disagree with
its rulings under the record before us. Moreover, we conclude that the record before us
does not, by itself, justify giving the defendant the relief he seeks. The judgment of the
trial court is affirmed.
______________________________
Joseph M. Tipton, Judge
CONCUR:
___________________________
Paul G. Summers, Judge
___________________________
Charles Lee, Special Judge
4