IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 25, 2005

STATE OF TENNESSEE v. DOYLE ARNEL WHITLOCK

Appeal from the Criminal Court for Washington County

Nos. 28977, 29211 and 29345 Robert E. Cupp, Judge

No. E2004-01852-CCA-R3-CD - Filed March 21, 2005

The defendant, Doyle Arnel Whitlock, appeals from actions of the Washington County Criminal

Court in the aftermath of his multiple, guilty-pleaded convictions, the denial of his motion to reduce

his sentences, and his filing of a document titled “Appeal of Conviction,” which despite the title

raised issues of guilty plea validity and ineffective assistance of counsel. Upon our review, we

dismiss the appeal in part and remand for further proceedings in the trial court.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed in Part;

Appeal is Dismissed in Part.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,

and NORMA MCGEE OGLE, J., joined.

Doyle Arnel Whitlock, Pro Se (on appeal); and Scott Pratt, Johnson City, Tennessee (at trial), for

the Appellant.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Joe C.

Crumley, Jr., District Attorney General; and Steve Finney, Assistant District Attorney General, for

the Appellee, State of Tennessee.

OPINION

Pursuant to his guilty pleas, the defendant was convicted on May 18, 2004, of the

following offenses and received the following sentences: 

Felony escape Class E felony 6 years, persistent offender

Evading arrest Class A misdemeanor 11 months, 29 days

Theft Class A misdemeanor 11 months, 29 days

False reporting Class D felony 12 years, persistent offender

Auto burglary Class E felony 6 years, persistent offender

Theft Class A misdemeanor 11 months, 29 days
-2-

Auto burglary Class E felony 6 years, persistent offender

Theft Class A misdemeanor 11 months, 29 days

Evading arrest Class A misdemeanor 11 months, 29 days.

The combination of concurrent and consecutive sentences resulted in an effective sentence of 12

years. On May 26, 2004, citing the defendant’s plea bargain and his voluntary pleas, the trial court

entered an order denying the defendant’s pro se motions to reduce his sentences and to allow him

to serve his effective sentence in the Washington County Jail. On June 15, 2004, the defendant filed

an “Appeal of Conviction,” which claimed that his pleas were unknowing and involuntary and that

trial counsel had been ineffective. It appears, as stated by the state in its brief, that the trial court did

not rule upon these claims and that the “‘Appeal of Conviction’ served as a notice of appeal.”

The state argues that the defendant waived a rightful appeal of his convictions and

sentence. The record does not contain the defendant’s plea agreement or plea petitions. The record

contains an acknowledgment and waiver of certain rights, but this document does not detail the plea

terms. It includes a waiver of “[t]he right to appellate review if convicted by trial.” The record also

contains a transcript of the guilty pleas hearing, which reflects the defendant’s acknowledgment that

he waived his right to appeal following convictions based on pleas of guilty. During the plea

colloquy, the trial court also engaged the defendant in the following exchange:

Court: If you, after pleading guilty, decide to appeal your guilty

pleas, I’m going to make sure you don’t get any relief from the Court

of Appeals. The rights you give up here are the rights you give up at

the Court of Appeals as long as they’re given up normally. I think

we’re making sure that that’s happening.

Defendant: Yes, sir, I understand that.

Further exchanges between the trial judge and the defendant suggest that, in referring to any appeal

of the guilty pleas, the trial judge was referring to appellate review of the voluntariness of the pleas,

such as might ensue from a denial of post-conviction relief. 

 Tennessee Rule of Appellate Procredure 3(b) provides: 

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: (1) on a plea

of not guilty; and (2) on a plea of guilty or nolo contendere, . . . 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. 
-3-

Tenn. R. App. P. 3(b). 

Tennessee Rule of Criminal Procedure 37(b) provides:

An appeal lies from any order or judgment in a criminal proceeding

where the law provides for such appeal, and from any judgment of

conviction:

(1) upon a plea of not guilty; or

(2) upon a plea of guilty or nolo contendere if:

. . . .

(ii) the defendant seeks review of the sentence set and there

was no plea agreement under Rule 11(e); or

(iii) the error(s) complained of were not waived as a matter of

law by the plea of guilty or nolo contendere, or otherwise waived, and

if such errors are apparent from the record of the proceedings already

had.

Tenn. R. Crim. P. 37(b). 

Regardless whether the defendant explicitly waived his right to appeal his convictions

following his guilty pleas, we conclude that he waived this right as a matter of law. See State v.

Wilson, 31 S.W.3d 189, 193 (Tenn. 2000) (pursuant to TennesseeRule of Criminal Procedure 37(b),

defendant’s “claim that his guilty plea was not knowingly and voluntarily entered” is not appealable

as of right). Any appeal of the convictions is, therefore, dismissed. Essentially, the defendant must

present the claim of unknowing or involuntary guilty pleas via a petition for post-conviction relief.

Id. at 194. 

The question of waiver of the right to appeal the convictions aside, whether an appeal

of the sentences is waived is a more perplexing question on the present record. As shown above,

Rule 37(b) allows an appeal of the sentence following a guilty plea when the plea agreement does

not embrace the sentences to be imposed. Moreover, this court has allowed a sentencing appeal to

proceed when, despite the guilty plea and a general waiver of the right to appeal, the record showed

that the defendant did not agree in advance to the sentencing terms. State v. Carter, 986 S.W.2d 596,

597 (Tenn. Crim. App. 1998). In this case, however, unlike in Carter, the transcript of the plea

submission hearing indicates that the sentences were part of the plea agreement. To the extent that

the actual plea terms might have shown otherwise, the defendant, as the appellant, has failed to

include the plea document in the record. “[I]t is the duty of the defendant to prepare a record which

conveys a fair, accurate and complete account of what transpired in the trial court with respect to the
-4-

issues which form the bases of the appeal.” State v. Coolidge, 915 S.W.2d 820, 826 (Tenn. Crim.

App. 1995), overruled on other grounds by State v. Troutman, 979 S.W.2d 271 (Tenn. 1998). In the

absence of a sufficient record, this court must presume that the trial court acted correctly in receiving

pleas that included agreed sentences. See, e.g., id. Thus, we hold that a rightful appeal of the

sentence has been waived as a matter of law. Any appeal of the sentencing determinations should

be dismissed.

Having disposed of the possibilities that the defendant mayhave effectively appealed

his convictions or sentences, we must now consider whether he has appealed from the trial court’s

May 26, 2004 order denying sentence reductions or service of the sentences in the county jail. 

Tennessee Rule of Criminal Procedure 35(b) provides:

The trial court may reduce a sentence upon application filed within

120 days after the date the sentence is imposed or probation is

revoked. No extensions shall be allowed on the time limitation. No

other actions shall toll the running of this time limitation. A motion

for reduction of sentence under this rule may be denied by the trial

judge without a hearing. If the application is denied, the defendant

may appeal but the defendant shall not be entitled to release on bond

unless the defendant is already under bond. If the sentence is

modified, the state may appeal as otherwise provided by law. A

modification can only be as to any sentence the court could have

originally imposed.

Tenn. R. Crim. P. 35(b) (emphasis added). Thus, the defendant may appeal from the denial of

sentence reduction, but on appeal, the defendant has addressed neither this action of the trial court

nor the denial of local service of the sentence. R. Tenn. Ct. Crim. App. 10(b). These issues are

waived, and the trial court’s order of May 26, 2004, is affirmed.

Finally, we address whether the trial court should have treated the “Appeal of

Conviction” as a petition for post-conviction relief. As mentioned above, this document claims the

pleas are unknowing and involuntary and the result of the ineffective assistance of counsel – claims

that are raised typically in post-conviction proceedings. See Tenn. Code Ann. §§ 40-30-101 through

40-30-122 (2003). In his brief, the defendant claims that the trial court erred in denying postconviction relief without the appointment of counsel and a hearing. 

We point out initially that the trial court neither denied relief nor took any other action

on the defendant’s “Appeal of Conviction” as a petition for post-conviction relief. The trial court,

probably through the trial court clerk, apparently took the defendant’s document heading at its word

and treated the document as a notice of appeal. As such, there is no order of the trial court from

which the defendant may rightfully appeal. See Tenn. R. App. P. 3(b) (“The defendant may . . .

appeal as of right from . . . a final judgment in a . . . post-conviction proceeding.”) (emphasis added).
-5-

Thus, as an appeal of an order denying a petition for post-conviction relief, the appeal must be

dismissed.

The question remains whether we should view the “Appeal of Conviction” document

itself as a petition for post-conviction relief and remand the cause to the trial court for further

proceedings on the pending petition. We conclude that judicial economy would better be served by

so doing. We have held previously in this opinion that no direct appeal of the conviction or sentence

has occurred. The conviction proceeding is, therefore, effectively concluded, pending Tennessee

Rule of Appellate Procedure 11 review. In our view, the defendant’s case is ripe for post-conviction

review. We see no point in requiring the defendant to file anew when his “current” petition may be

attended by counsel and amended as needed. See Tenn. Code Ann. § 40-30-107 (2003). 

Accordingly, the case is remanded to the trial court, which shall treat the defendant’s

“Appeal of Conviction” as a petition for post-conviction relief, appoint counsel in the event it finds

the defendant to be indigent, and otherwise proceed pursuant to the Post-Conviction Procedure Act.

 

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE