# FILED
October 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE SEPTEMBE R SESSION, 1998
RONALD EARL THOMAS, ) C.C.A. NO. 01C01-9709- CR-00407 ) Appe llant, ) ) DAVIDSON COUNTY V. ) ) ) HON. SE TH NORMAN,JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST- CONVICTI ON)

FOR THE APPELLANT : FOR THE APPELLEE : TERRY J. CANA DY JOHN KNOX WALKUP 211 Printer’s Alley

Building Attorney General& Reporter Suite 400 Nashvill e, TN 37201 ELIZABETH B.MARNEY Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 VICTO R S. JO HNS ON, III Distri ct Attor ney General LI LA STATOM Assistant Distri ct Attor ney General Washington Square 222 Second Avenue North, Sui te 500 Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petiti oner, Ronald EarlThomas, appeals the ord er of the Davi dson Coun ty Criminal Court dismissing h is peti tion fo r post-c onvictio n relief. In his sole issue on appe al, Petition er argu es tha t his ple a of gu ilty was in volunta ry beca use it
was the product of prose cutoria l misco nduc t. W e affirm the trial c ourt’s dismissal of the petit ion.

A post-convi ction heari ng was held on October 18, 19 95, on Petition er’s cla im of prosecutori al misconduct, but it appears from the r ecord that at

least one additionalhearing was also held. Specifically, the tri al court refers to the testimony of Petiti oner and Petit ioner’s t rial coun sel in i ts July 30 , 19 97 Order denying Petiti on er’s pet ition for post-conviction relief. How ever, the only testimo ny made part of this rec ord is that of Assi stantAttorney Gener al Nick Bail ey given at the October 18, 1 995 hearing. The trial court’s Order also ref lects t hat Petit ioner rai sed other issues in add ition to th e pros ecuto rial mis cond uct cla im raised here. The transcri pt of any post-conv iction hearing, bes ides the o ne held October 18, 1995, is not included as part of

the record on appeal. Even though the State does not address this matter, we note that the d uty fal ls upon thePetitioner to prepare suc h a record and transcript n ecessa ry to conve y a fair, accu rate and comp lete acc ount of what transpir ed relative to the i ssue( s) on appeal . Tenn . R. App. P. 24(b). In t he absence of an appropriate record, we must presume that thetrial cou rt's determination s are correct. See , e.g. , State v. Meeks , 779 S.W.2d 394, 397 (T enn. Crim. A pp. 1988); State v. Beech , 744 S.W .2d 585, 588 (Tenn. Crim . App. 1987 ).-3- As previousl y mentioned, t he only test imony from the post -convict ion hearing included in the record is that of Assistant District Attorn ey Gene ral Nick Bailey, and therefor e, our revi ew of the is sue presen ted is lim ited to t hat testi mony. General Bailey had been the orig inal pro secu tor in Pe titioner’s case, and he test ified t hat he
nevertold Peti tioner t hat he wou ld receive a sente nce o f at leas t 320 ye ars if Petiti oner asse rted his innoc ence to mu ltiple co unts o f aggra vated child abuse . He testif ied that he di d not speak wit h Petiti oner directly but that he may have di scussed what the poss ible expos ure wou ld have b een to the counts in the indictm ent with Petition er’s lawyer. In addit ion, General Bailey testifi ed that he was present duri ng part of Petit ione r’s taped confession and t hat he had since l istened to that taped confes sion and that it did not s ound ta mpere d with or alte red.

In pos t-convi ction proceedings, a pet itioner has the burden of

proving hi s post-convi ction allegations by a preponderanc e of the ev idence
. McBe e v. State , 655 S.W.2d 191, 195 (Tenn. Cri m. App. 1983). A t rial cour t's fi ndings of fact foll owing a post-convi ction hearing have the weight of a jury verdict. Bratton v. S tate , 477 S.W.2d 754, 756 (Tenn. Cri m. App. 1971). On appe al, those findings are conclusive unless the evidence preponderatesa gainst the judgm ent. Butler v. Sta te , 789 S.W.2d 898, 89 9 (Ten n. 1990 ). With thatstandard of review i n mind, we turn to the issue pre sented
.

The only iss ue pre sente d in this appe al is fully refuted by the evi dence before
us. Assistant

Distri ct Attor ney General Bail ey testi fied that he nevertold Peti tioner thatif he did not enter a plea of gui lty he woul d receive at least 320 years in pri son. General Bailey also testified that P etiti oner’s taped confessi on was in no way t ampered with or al tered. I f Petit ioner offered evidence t o the contrar

y at the-4-

hearing, it is

not incl uded in the record. Based on these facts, we findthat Peti tioner has failed to carry

his burden t hat his pl ea of guil ty was inv oluntary and was the result of prose cutorial m iscondu ct. Petiti oner has made no showing that the po stconvicti on court’s findin gs are inc onsisten t with the evid ence. Se e Butler , 789 S.W.2d at 900.
According ly, we affirm the trial c ourt’s dismissal o f Petitioner’s petition for p ostconviction relief.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ J. CURWO OD W ITT, JR., Judge