IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 11, 2002

STATE OF TENNESSEE v. JAMES MARIO STARNES

Direct Appeal from the Circuit Court for Bedford County

No. 14427 Charles Lee, Judge

No. M2002-01450-CCA-R3-CD - Filed March 13, 2003

The Appellant, James Mario Starnes, was indicted by the Bedford County Grand Jury for first degree

murder and especially aggravated robbery. Starnes pled guilty to attempted second degree murder

and especially aggravated robbery. Following a sentencing hearing, Starnes received concurrent

sentences of ten years, nine months for attempted second degree murder and twenty-five years for

especially aggravated robbery. Starnes now appeals his especially aggravated robbery conviction,

contending that the evidence is insufficient to establish his guilt for that offense. Because the error

complained of was waived as a matter of law by Starnes’ plea of guilty, this issue is not reviewable

upon direct appeal. Accordingly, this appeal is dismissed.

Tenn. R. App. P. 3; Appeal Dismissed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

NORMA MCGEE OGLE, JJ., joined.

Larry F. Wallace, Jr., Shelbyville, Tennessee, (on appeal) for the Appellant, James Mario Starnes.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H.

Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and

Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Procedural Background

Due to the nature of this appeal, the guilty plea acceptance hearing was the only proceeding

in which any facts relevant to the issue presented were developed. At this hearing, the prosecutor

and defense counsel recited the following facts supporting the factual basis for the pleas:
1

It is the responsibility of the Appellant to prepare a record which conveys a complete account of what

transpired with respect to the issues forming the basis of the appeal. Tenn. R. App. P. 24(b). Failure to do so may result

in waiver of the issue on appeal. State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993). 

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PROSECUTOR: Your Honor, on August 20th, 1998, the defendant as well as Leon

Terrell Phillips entered Prime Steakhouse here in Shelbyville; robbed them of the

money bag. Fairly large amount of money, well over $500. They did so while this

defendant was armed with a firearm.

As they were leaving, after having obtained the money, as the proprietor Mr. Bill

Katisis is his name, as they were leaving they shot him or not they. This defendant

shot him, and he was gravely injured. It is a miracle that he lived. He was in the

hospital for extended period of time. Astronomical medical bills and very seriously

injured.

DEFENSE COUNSEL: The proof would further show after the money was obtained

and started out the door the proprietor followed - - Mr. Starnes wants this on the

record – to the door in an effort to try to retrieve the money. At that point there was

some small struggle. I think the gun went off. This is when he was shot.

PROSECUTOR: The defendant did make a statement to this.

DEFENSE COUNSEL: That’s correct.

THE COURT: Mr. Starnes, you heard what the State said they are prepared to prove.

Is that what happened? 

THE DEFENDANT: Yes, sir.

The Appellant’s sentencing hearing was conducted on February 18, 1999, at which time

sentences were imposed and the judgments of conviction were entered. A document in the record

indicates that on January 8, 2001, the Appellant filed a notice of appeal. The record of the

proceedings in the trial court ends at this point.1 The record does include an order by the trial court

granting the Appellant a delayed appeal. The order provides:

This matter was heard on the 13th day of May, 2002 upon the defendant’s petition for

post conviction relief. By agreement of the parties it appears as the defendant is

entitled to a delayed appeal pursuant to T.C.A. 40-30-213. Therefore, the defendant

is hereby granted a delayed appeal regarding any and all sentencing issues in this

matter.

This appeal followed.
2

As noted by the trial court’s order, issues related to the Appellant’s sentencing were reviewable on direct

appeal. 

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Analysis

Notwithstanding the trial court’s order properly granting the Appellant a direct appeal

“regarding any and all sentencing issues,” the Appellant challenges the factual sufficiency of his

conviction for especially aggravated robbery. Relying upon State v. Owens, 20 S.W.3d 634 (Tenn.

2000), he contends that “the taking had already occurred and . . . was completed when the proprietor

was shot.” Thus, he argues that, because the use of violence or fear did not precede or occur

concomitantly or contemporaneously with the taking, he is at best guilty of only aggravated robbery.

A guilty plea conviction is based entirely upon the plea, and the plea constitutes a conviction

in and of itself and is conclusive. Beaty v. Neil, 467 S.W.2d 844, 847 (Tenn. Crim. App. 1971). As

a general rule, an accused who enters a plea of guilty to a criminal offense waives the right to appeal.

Hobbs v. State73 S.W.3d 155, 158 (Tenn. Crim. App. 2001). This rule is subject to a limited number

of narrowly defined exceptions. Tenn. R. App. P. 3(b)(2) states:

In criminal actions an appeal as of right by a defendant lies from any judgment of

conviction entered by a trial court from which an appeal lies to the Supreme Court

or Court of Criminal Appeals: . . .

(2) on a plea of guilty or nolo contendere, if the defendant entered into a plea

agreement but explicitly reserved with the consent of the state and the trial court the

right to appeal a certified question of law dispositive of the action, or if the defendant

seeks review of the sentence and there was no plea agreement concerning the

sentence, or if the issues presented for review were not waived as a matter of law by

the plea of guilty or nolo contendere and if such issues are apparent from the record

of the proceedings already had.

See also Tenn. R. Criminal P. 37(b). The Appellant’s appeal does not fall within any exception. The

Appellant’s guilty plea in this case was an “open” plea, as provided by Rule 11(e)(1)(B) of the

Tennessee Rules Criminal Procedure. As such, the issue presented was waived as a matter of law.2

A plea of guilty, which is entered voluntarily, knowingly, and intelligently, waives all prior

non-jurisdictional, procedural, and constitutional defects in the proceedings. State v. McKissack, 917

S.W.2d 714, 716 (Tenn. Crim. App. 1995). In this case, the Appellant does not challenge the

voluntariness of his guilty plea, and there is nothing in the record to support a conclusion that the
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plea was not voluntarily and knowingly entered. He raises only a sufficiency of the evidence

argument; however, that issue was waived by his plea of guilty. Because there is no authority for

this appeal, the appeal is dismissed.

___________________________________ 

DAVID G. HAYES, JUDGE