FILED

October 21, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER SESSION, 1998

RONALD EARL THOMAS, ) C.C.A. NO. 01C01-9709-CR-00407 

)

Appellant, )

) DAVIDSON COUNTY

V. ) 

)

) HON. SETH NORMAN, JUDGE

STATE OF TENNESSEE, )

)

Appellee. ) (POST-CONVICTION)

FOR THE APPELLANT: FOR THE APPELLEE:

TERRY J. CANADY JOHN KNOX WALKUP 

211 Printer’s Alley Building Attorney General & Reporter

Suite 400 

Nashville, TN 37201 ELIZABETH B. MARNEY

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

VICTOR S. JOHNSON, III

District Attorney General

LILA STATOM 

Assistant District Attorney General

Washington Square 

222 Second Avenue North, Suite 500

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
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OPINION

The Petitioner, Ronald Earl Thomas, appeals the order of the Davidson

County Criminal Court dismissing his petition for post-conviction relief. In his sole

issue on appeal, Petitioner argues that his plea of guilty was involuntary because it

was the product of prosecutorial misconduct. We affirm the trial court’s dismissal of

the petition.

A post-conviction hearing was held on October 18, 1995, on Petitioner’s claim

of prosecutorial misconduct, but it appears from the record that at least one

additional hearing was also held. Specifically, the trial court refers to the testimony

of Petitioner and Petitioner’s trial counsel in its July 30, 1997 Order denying

Petitioner’s petition for post-conviction relief. However, the only testimony made part

of this record is that of Assistant Attorney General Nick Bailey given at the October

18, 1995 hearing. The trial court’s Order also reflects that Petitioner raised other

issues in addition to the prosecutorial misconduct claim raised here. The transcript

of any post-conviction hearing, besides the one 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 duty falls upon the Petitioner to prepare such a record

and transcript necessary to convey a fair, accurate and complete account of what

transpired relative to the issue(s) on appeal. Tenn. R. App. P. 24(b). In the absence

of an appropriate record, we must presume that the trial court's determinations are

correct. See, e.g., State v. Meeks, 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988);

State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987).
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As previously mentioned, the only testimony from the post-conviction hearing

included in the record is that of Assistant District Attorney General Nick Bailey, and

therefore, our review of the issue presented is limited to that testimony. General

Bailey had been the original prosecutor in Petitioner’s case, and he testified that he

never told Petitioner that he would receive a sentence of at least 320 years if

Petitioner asserted his innocence to multiple counts of aggravated child abuse. He

testified that he did not speak with Petitioner directly but that he may have discussed

what the possible exposure would have been to the counts in the indictment with

Petitioner’s lawyer. In addition, General Bailey testified that he was present during

part of Petitioner’s taped confession and that he had since listened to that taped

confession and that it did not sound tampered with or altered. 

In post-conviction proceedings, a petitioner has the burden of proving his

post-conviction allegations by a preponderance of the evidence. McBee v. State, 655

S.W.2d 191, 195 (Tenn. Crim. App. 1983). A trial court's findings of fact following a

post-conviction hearing have the weight of a jury verdict. Bratton v. State, 477

S.W.2d 754, 756 (Tenn. Crim. App. 1971). On appeal, those findings are conclusive

unless the evidence preponderates against the judgment. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990). With that standard of review in mind, we turn to the

issue presented. 

The only issue presented in this appeal is fully refuted by the evidence before

us. Assistant District Attorney General Bailey testified that he never told Petitioner

that if he did not enter a plea of guilty he would receive at least 320 years in prison.

General Bailey also testified that Petitioner’s taped confession was in no way

tampered with or altered. If Petitioner offered evidence to the contrary at the
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hearing, it is not included in the record. Based on these facts, we find that Petitioner

has failed to carry his burden that his plea of guilty was involuntary and was the

result of prosecutorial misconduct. Petitioner has made no showing that the postconviction court’s findings are inconsistent with the evidence. See Butler, 789

S.W.2d at 900.

Accordingly, we affirm the trial court’s dismissal of Petitioner’s petition for postconviction relief.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Presiding Judge

___________________________________

J. CURWOOD WITT, JR., Judge