### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs D ecem

ber 11, 200 2 STATE OF TENN ESSEE v. JAMES MA RIO STARNES Direct Appeal from the Circuit Court for Bedford County

No. 14427 Charles Lee, Judge

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

The Appellant, James Mario Starnes, was indicted by the Bedford

County Grand Jury

for first degree murder an d e sp ec ia ll y ag gr av at ed ro bb er y. Starnes p led guil ty to attempted second degree murder and especially a

ggravated robber

y. Following

a sentencing heari ng, Starnes received concurrent sentences of ten years, nine months for attempted second degre e murder and twenty-five y

ears for especia lly aggravated robbe

ry. Starnesnow appeals his especially aggravated robbe

ry conviction, contending that

the evidence is insufficient to establish his guilt for that offense. B ecause the error complainedof was waived as a matter of law by Starnes’ plea of g

uilty , this issue

is not reviewable upon direct appeal. Accordingly , this appeal is dismissed. Tenn. R. App.P. 3; Ap peal Dism issed. D AV ID G. H AYES , J., delivered the opinion of the court, in which J OHN E VERE TT W ILLIAMS and N ORMA M C G EE O GLE , JJ., joined. Larry F. Wallace, Jr., Shelbyville, Tennessee, (on appeal) for the Appellan t, James Mar

io Starne s. Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; Da vi d H

. Fi nd le y, Assistant Attorney Gene ral; William Michael McCown , Distric t Attorney Gene ral; and Michael Randles, Assistant District Attorney G eneral, for the Appellee, State of Tenne ssee.

OPINION Proce dural Backgr

ound Due to the nat

ure of th is appea l, the gu ilty plea acceptance hear

ing was the only proceeding in which an

y f acts relevant to

the is sue pr esent ed were devel oped. At th is hea ring, the prosecutor and defe nse coun sel rec ited the f

ollowing facts su pporting the fac tual basisfor the p leas:1 It is t he respons ibil ity of th e Appellant to prepare a

record whi ch conveys a complete a cc ount of what trans pired with resp ect to the issues for ming th e bas is of the ap pea l. Te nn. R. A pp. P . 24(b ). Failure to do so ma y result in waive r of the issu e on a ppe al. State v. Ba llard , 855 S.W .2d 5 57, 5 60-6 1 (T enn. 1 993 ). -2- PROSECUTOR: Your Honor, on August 20 th , 1998, the defenda nt as well as Leon Terrell Phi llip s entered Prime Steakhouse here in Shelby ville; robbed them of the money bag . Fairly lar

ge amount of

money , well ove

r $500. Th

ey didso while th

is defenda nt was ar med with a

firear m. As they were l eavin g, afte r having obtained the money , as the pr

oprietor Mr. Bill Katisis is his name, as they wer e leaving they shot him or not they

. This defendant shothim, and he was gravely injured. It is a miracle that he lived . He was i n th e hospital for extendedperiod of time. Astronomi cal medic al 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. S tarnes wa nts this on the record – to the door

in an effort to try

to retrieve the money. At that point there wa s some small

struggle. I

think the g

un went of

f. This is w

hen he wa s shot. PROSECUTOR: The def endant di d make a s tatement to this. DEFENSE

COUNSEL : That’s c orrect

. THE COURT: Mr. Starnes, you hear d what the State said they ar

e prepared to prove. I s th at wh at ha ppe ne d? THE DEFENDANT: Yes, sir. The Appellant’s sentencing hearing was condu cted o n Febru ary 18, 1999, a

t which time sentences were imposed and thejudgments of conviction were entered. A doc ument in the record indicates that o n Ja nuary 8, 2001, the Appe llant filed a notice of appeal. The record of the procee dings in the trial

court ends at this po int. 1 The record does include an order by the trial court granting the A

ppellant a delay ed appe al. The o

rder pr ovides: This matter was heard

on the 13 th day of May , 2002 upon the defendant’s petition for post conviction relief. By

agreement of the parties it ap pears as the defendant

is entitled to a delaye d appeal pursuant to T.C.A. 40-30-213. Therefore, the defe ndant is hereby granted a delay

ed appe al reg arding

any and all se

ntencing issues in th

is matter. This appeal followed.2 As noted by t he tri al court ’s order , is sues r elat ed to the Appellant ’s s entenci ng were r eviewabl e on direct app eal. -3- Analysis Notwithstanding the trial court’s order properly granting the Appellant a direct appeal “regarding

any and all se

ntencing issues,” the Appellant cha llenge s the factual sufficiency of his conviction for especially

ag gr av at ed ro bb er y. Relying upon State v. Owens , 20 S.W.3d 634 (Tenn. 2000), he contends that “the taking had alrea dy occurr ed and . . . was completed when theproprietor was shot.” Th

us, he ar gues that, becau se the use of violence or fear did not prec ede or occur concomit antly or contemporaneously

with the taking, he is at best g uilty of only ag gr av at ed ro bb er y. 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 acc

used who enters a plea

of guilt y to a crimina l offens e waive s the rig

ht to appe al. Hobbs v. State 73 S.W.3d 155, 158 (Tenn. Crim. App. 2001). This rule is subjec t to a limited number of narr owly defined exception s. Tenn. R. App. P. 3(b )(2) sta tes: In criminal

actions a n appea l as of r ight by a de

fendant 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

gu ilty or nolo contendere , if the defendant entered into a plea agreement

but explicit

ly 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 conc ernin g the sentence, or if the issues presented for review were not waived as a matter

of law by the plea of guilty or nolo c ontendere 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 w as 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 pl ea of gu il ty, wh ic h i s e nt er ed vo lu nt ar il y, k no wi ng ly, and intelligently , waivesall prior non-juri sdictiona

l, pro cedura

l, and constitutional d efects in the proceedings. State v. McKissack , 917 S.W.2d 714, 716 (Tenn. Crim. App. 19 95). I n 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-4-

plea w as not voluntarily and knowing ly entered. He raises only a sufficiency

of the evidenc e argume nt; however, that issue was waived by his plea of guilty. B ecause there is no authority for this appeal, the appeal is dismissed.

___________________________________ DAVID G. HAYES, JUDGE