# FILED

January 26, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 02C01-9712-CC-00491 Appellee ) ) FAYETTE COUNTY vs. ) ) Hon. Jon Kerry Blackwood, Judge QUINCY BLEDSOE, ) ) (Aggravated Kidnapping; Appellant ) Attempted F elonious Escape)

For the Appellant : For the Appellee : Marcus M. Reaves John Knox Walkup Attorney at Law Attorney General and Repor ter 313 E. Lafayette Jackson, TN 38301 Georgia Blythe Felner Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493

Elizabeth T. Rice District Attorney General 302 Market Street Somerville, TN 38068

OPINION FILED:
AFFIRMED

David G. Hay

es Judge2 OPINION

The appellant, Quincy Bledsoe,appeals the order of the Fayet te County Circuit Court denyi ng his motion to withdr aw his guilty plea. Specifically, the appellant contends that his g uilty plea was not v oluntarily entered as he was not informed that, ha d he proc

eeded to trial, the jur

y could have co nvicte

d him of a lesser offense of that charged in the indictment.

After a review of the rec ord, we affirm the decision of the trial court.

Background

On March 21, 1997, the appellant and his two co-defendants w ere inmates at the Wilder Youth Development Center i n Fayette County. “While they w ere in an exercise yard w

ith other inmates, a security guard, [Christi ne Johnson,] was assaulted, handcuffed, and im prisoned in a small room while the [appellant and his co-defendants] endeavored to escape.”

On July 28, 1997, a Fayet te County Grand Jury

returned a four count indictment against the appell ant and his co-defendants alternati vely charging

them with one count of aggrav ated kidnapping of Christin e Johnson with the intent to terrorize her, Tenn. Co de Ann. § 39-13-304 (a)(3) ( 1997); one count of aggravat ed kidnapping of Christine J ohnson with the intent to i nterfere with performance of her governmental function, Tenn. Code Ann. § 39-13-304(a)(2); one count of aggravated kidnapping of Christine Johnson with the intent to inflict serious bodily injury, Tenn. Code Ann. § 39-13-304 (a)(3); and one count of attempted felonious1 Although unsuppor ted by t he record, t he appellant ’s brief indi cates that a juvenil e transfer hearing was he ld resulting in th e sixteen year old’s indic tmen t as an ad ult.

2 Defense counsel fi led a motion t o withdraw as co unsel due to po ssible conf lict s on November 27, 1997. This moti on was ulti mately grant ed by the t rial co urt. The appel lant was represented by

another att

orney at the hearing on t he motion to wi thdraw his gu ilt y plea.

3 At the appel lant’ s subsequent sentenci ng hearing, the tri al court se ntenced the appel lant to nine years in the Dep artme nt of Co rrection a s a violent of fender , see Tenn. Code Ann. § 40- 35-501(i) (1) - (2) (1997), fo r the offense of aggravatedkidnapping. The court also i mposed a sentence of ni ne months in the count y jai l for t he offense of at tempted feloni ous escape. The sen tenc es w ere o rder ed to run c onc urre ntly. 3 escape, Tenn. Code Ann. § 39-16-605 ( 1997) and Tenn. Code Ann. § 39-12-101 (1997). 1

The appellant’s family members r etained an attorney in his behalf. On the day the appellant was s cheduled to go to trial, N ovember 12, 1997, he pled guil ty to the aggravated kidnappi ng of Christine Johnson w ith the intent to interfere w ith performance of her governmental function and to attempted felonious escape.

The following day, the appellant filed a motion to withdraw his guilty plea, alleging that, had his attorney advised him of the possibility of convi ction on a lesser charge, he would not hav e entered a guilty plea

to the offense of aggravated kidnapping. 2 A hearing on this motion was held on December 9, 1997, immediately preceding the ap pellant’s sent encing hearing. 3

After a hearing on the motion, the trial court entered w ritten findings of facts and denied the motion. Specificall y, the trial court found: . . . Prior to the acceptance of the plea, the defe ndant was thoroughly questioned regarding

the voluntariness of his p lea. At no time during the colloquy with the Court did the defendant expr ess any dissatisfaction with [hi s attorney] nor any hes itation or reluctance to enter a plea. After the plea w as entered, the defendant’s grandfather remained in the Courtroom for the remainder of the trial. The jury found one defendant guilty of aggr avated kidnapping . . . but found the other codefendant guilty of the l esser charge of false impris onment. The next day the defendant’s gr andfather called [counsel] complai ning that [he ] had not told hi m that hi s grand son coul d be found guilty of a lesser charge. At the he aring of the motion, the defendant stated that [his attorney] had not told him of any lesser charge. . . . [Defendant’s counsel] testified that he w ent over the charge of agg ravated kidnapping with the defendant and explained the minimum and4 The appellant has fail ed to provi de this cour t with a transcri pt of his guilt y plea hearing, thus, precl uding thi s court from provi ding a meaningfulreview of the issues. The appel lant has the burden to

prepare a recor

d on appeal th at presents a complete and accurate account of what transpir ed in the t rial co urt wit h respect to the issues on appeal . Tenn. R. App. P. 24(b). The failure to do so resu lts in the pres ump tion that the fin dings of the trial court a re corre ct. See State v. Bear , No. 03C 01-951 0-CC -00301 (Tenn . Crim. A pp. at Kno xville, Sept. 9, 1 996), perm . to appeal denie d , (Tenn . Mar. 3, 19 97).

5 If the appel lant’ s motion to wi thdraw a gui lty plea is made after sentencing , such motion may only be granted by the trial court “to correct manifest injustice.” See Tenn. R. Crim. P. 32(f). 4 maximum sentences to him. . . . [Counsel] explained that . . . the proof would certainly s upport the jury’s conv iction of the other count [interference with the per formance of any governmental or political function.] [Counsel] stresse d that the ultimate decision w hether to plea or not to plea would res t with the defendant. . . . The Co urt finds that the defendant’s plea in this case was knowing, int elligent and voluntary. He w

as explained the minimum and max imum terms of imprisonment by the Court, as well as by counsel. He was certainly aware of his right to a jury trial, sinc e his co-defendants were bei ng tried on the same day. The Cour t asked him if he had any complai nts regarding his counsel , and none were express ed.[ 4 ] The defendant was appare ntly satis fied with his plea o f guilty un til he lea rned the next day that one of his co-defendants had bee n found guilty of a lesser charge. The Court concludes that there has not been a proper showing of any fair and j ust reason why the pl ea should be withdraw n. Accordingly, the moti on is hereby denied.

Analysis

Although a defendant does not have a unilateral right to w ithdraw a knowing and voluntarily g uilty plea, see State v. Anderson , 645 S.W.2d 251, 254 (Tenn. Crim. App. 1994), Tenn. R. Cr im. P. 32(f) permits a defendant to w ithdraw a plea of guilty, prior to sentencing , if he establishes “a fair and just reason” for doing so. 5 However, the decisi on to permit a withdraw al rests within the s

ound discretion of the trial court and is not s ubject to reversal unl ess there is an abuse of discr etion. State v. Turner , 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995), perm. to appeal denied , (Tenn. 1996); State v. Davis , 823 S.W.2d 217, 220 (Tenn. Crim. App. 1991). Moreover, the findings of the trial judge on questions of fact are conclusive o n appeal unless the evidence pr eponderates otherwise. See State v. Chambers , No. 01C01-9505-CC-00143 (Tenn. Cr im. App. at Nashville, Jun. 20, 1996), perm. to appeal denied , (Tenn. Dec. 30, 1996) (cit ation omitted).5 In the present case, the appellant complains that his attorney ’s failure to advise him of the possibili ty of conviction of lesser offenses rendered his guilty pleas involuntary. The evidence in the record before us shows that the proof was more than sufficient to support a conv iction of aggravated k

idnapping with the int

ent to interfere with a gov

ernmental function. According ly, counsel was under no obligation to discuss the lesser offenses of this crime w ith the appellant. See Overall v. State , No. 88-215-III (Tenn. Cri m. App. at Nashville, Dec. 28, 1988). Cf

. State v. Stephenson , 878 S.W.2d 530, 55 0 (Tenn.1994) (“Where the record clearly shows that the defendant was g uilty of the greater offense and i s devoid of any evidence permitting an inference of guilt of the lesser off ense, the trial court's failure to charge on a lesser offense is not error.). Additional ly, although the appell ant may have been successful at t rial in obtaining a con viction for the lesser offense of false imprisonment, as did one of his co-defendants, this does not render inadequate the factual basis for hi s guilty plea. Cf

. Chambers , No. 01C01-9505- CC-00143 (defendant cannot withdraw guilty pl ea on grounds that he lacked requisite intent for offense).

For these reasons, we find no basis to conclude that the tr ial judge abused his discretion in finding that the appellant’s guilty plea was knowing, intelligent, and voluntary, and that no “ fair and just reason” exi sts to permit the plea’s w ithdrawal. The judgment is affirmed.

____________________________________ DAVID G. HAYES, Jud ge6

CONCUR:

_________________________________ JOE G. RILEY, Judge

_________________________________ JOHN EVERETT W ILLIAMS, Judge