IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 10, 2017

HERMAN SOWELL, JR. v. STATE OF TENNESSEE

Appeal from the Circuit Court for Rutherford County

Nos. F-67824 & F-69706 David M. Bragg, Judge

No. M2016-01037-CCA-R3-PC

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In 2011, the Petitioner, Herman Sowell, Jr., pleaded nolo contendre to attempted 

aggravated rape, attempted aggravated sexual battery, and incest, and the trial court 

sentenced him to fifteen years, at 30%. The trial court ordered a “time served” sentence

followed by probation. In April 2013, after the statute of limitations had expired, the 

Petitioner filed a petition for post-conviction relief, using a separate case number but 

challenging as ineffective the representation of his counsel for the November 2011 case. 

At some point thereafter, the trial court revoked the Petitioner’s probation. The Petitioner 

amended his petition for post-conviction relief to challenge his November 2011 

convictions. The post-conviction court summarily dismissed the post-conviction petition. 

We affirm the post-conviction court’s judgment.

Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed 

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Herman Sowell, Jr., Pikeville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; 

Jennings H. Jones, District Attorney General; and Dana S. Minor, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

The record in this case is sparse, and it does not contain the Petitioner’s judgments 

of conviction. In the Petitioner’s brief, he asserts that, on November 27, 2012, he pleaded 

guilty to attempted aggravated rape, attempted aggravated sexual battery, and incest. 

From the petition for post-conviction relief, it appears that the Petitioner identifies this 

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case in his April 8, 2016 post-conviction petition as “F-67824.” In the petition he listed 

the dates of his judgment of conviction as November 2011 and stated that the trial court 

sentenced him to fifteen years, to be served at 30%. 

The petition also states that the Petitioner had previously filed a petition for postconviction relief in April 2013, which was still pending and never dismissed by the 

Rutherford County Circuit Court. He stated that he raised grounds of ineffective 

assistance of counsel and the State’s withholding of exculpatory evidence in that petition. 

He asked the post-conviction court to allow him to amend his previously filed postconviction petition since it had not yet been dismissed.

The petition lastly alleged that the Petitioner had received the ineffective 

assistance of counsel during his plea agreement and that his guilty plea was unknowingly

and involuntarily entered. The petition set out facts supporting this contention, which 

included that the Petitioner said that he violated his probation in April 2013. At that time, 

his attorney advised him to “drop his post-conviction [petition]” and that, if he did so, the 

State would not seek jail time for his violating of his probation. 

The trial court summarily dismissed the petition. It found:

[]The Court entered a Violation of Probation Order on November 15, 2013. 

This was an agreed revocation, and therein, the Defendant withdrew his 

Petition for Post-Conviction Relief previously filed in this Court in Case 

No. F-69706.

[]Pursuant to the agreement, the petition was dismissed and the Defendant 

agreed to file no new Petition for Post-Conviction Relief. This additional 

condition of dismissal was specially initialed by the Defendant, in addition 

to his signed acknowledgement of the Order as a whole.

[]Although the Petitioner’s new amendment petitions the Court under F67824, he specifically refers to his alleged pending Post-Conviction Relief 

Petition from April of 2013, which was dismissed in the above-referenced 

Violation of Probation Order.

[]Moreover, Petitioner’s amended petition fails to state any ground other 

than those previously presented. . . .

Not a part of the record but sent by the Petitioner separately to this Court is what 

purports to be a copy of the order finding that he violated his probation. The order shows 

that, as part of the agreement with regard to this charge, the Petitioner agreed to dismiss 
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the petition in case number F-69706 and that he would not file a new petition for postconviction relief. It also showed that the Petitioner was sentenced to Community 

Corrections with no jail time.

The Petitioner appeals the summary dismissal of his petition for post-conviction 

relief.

II. Analysis

On appeal, the Petitioner contends that the post-conviction court erred when it 

summarily dismissed his petition for post-conviction relief. He asserts that Counsel did 

not explain to him the fundamental constitutional rights he was waiving by entering a 

guilty plea to his probation violation charge and agreeing to dismiss his petition for postconviction relief. He goes on to assert that the trial court never dismissed his petition, so 

he has the right to amend it. The State contends that the record is inadequate for our 

meaningful review.

It is well-settled that when a party seeks appellate review, it has a duty to prepare a 

record which conveys a fair, accurate and complete account of what transpired with 

respect to the issues forming the basis of the appeal. See State v. Ballard, 855 S.W.2d 

557, 561 (Tenn. 1993) (holding failure to include transcript precludes appellate review); 

State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Oody, 823 S.W.2d 554, 559 

(Tenn. Crim. App. 1991) (holding trial court’s ruling presumed correct in the absence of

an adequate record on appeal). 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 considering the 

issue. See State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Here, we 

have nothing but the assertions of the Petitioner as to what transpired, we do not have all 

the judgments of conviction, the previous petition for post-conviction relief, or even the 

relevant orders. Because the necessary relevant material is not included in the record, we 

decline to consider the merits of this issue. See Tenn. R. App. P. 24(b). Accordingly, the 

issue is waived.

We further note, however, that a person in custody under a sentence of a court of 

this state must petition for post-conviction relief within one year of the date of the final 

action of the highest state appellate court to which an appeal is taken or, if no appeal is 

taken, within one year of the date on which the judgment becomes final. T.C.A. § 40-30-

102(a) (2014). The statute explicitly states, “The statute of limitations shall not be tolled 

for any reason, including any tolling or saving provision otherwise available at law or 

equity.” Id. It further stresses that “[t]ime is of the essence of the right to file a petition 

for post-conviction relief or motion to reopen established by this chapter, and the one-
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year limitations period is an element of the right to file the action and is a condition upon 

its exercise.” Id. In the event that a petitioner files a petition for post-conviction relief 

outside the one-year statute of limitations, the post-conviction court is required to 

summarily dismiss the petition. T.C.A. § 40-30-106(b) (2014).

In the case under submission, the Petitioner was required to file his petition for 

post-conviction relief within one year of November 27, 2012. See T.C.A. § 40-30-102(a) 

(2014). The Petitioner did not file his petition until April 8, 2016. The fact that his 

petition references a previous petition in a separate case, which the Petitioner dismissed 

by agreement, and purports to be an “amended petition” does not toll his statute of 

limitations. The post-conviction court properly dismissed the Petitioner’s petition.

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm the postconviction court’s judgment. 

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ROBERT W. WEDEMEYER, JUDGE