State of Tennessee v. Gailor Paige
Case Number: W2018-02214-CCA-R3-CD
Judge: Robert W. Wedemeyer
Court: COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Plaintiff's Attorney: Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Melanie H. Cox, Assistant District Attorney General
Need help finding a lawyer for representation concerning possession with intent to sell heroin and possession of a firearm by a convicted felon in Tennessee?
Call 918-582-6422. It's Free.
The Defendant appeals the trial court's denial of his request for suspension of his remaining sentence. We gather from the minimal record that the Defendant was indicted in January 2017 for unlawful possession of a controlled substance (heroin) with the intent
to sell and unlawful possession of a controlled substance (heroin) with the intent to deliver. In June 2017, a Shelby County grand jury indicted the Defendant for convicted felon (underlying offense aggravated burglary) in possession of a firearm, theft of property valued over $500, and possession of a controlled substance (marijuana).
By negotiated plea agreement, the Defendant entered a guilty plea to felon in possession of a handgun with a prior crime of violence and unlawful possession of a controlled substance (heroin) with intent to sell. The written plea agreement is included in the record and reflects that the Defendant was to be sentenced to six years for each count, with the sentence to be served in "SCCC," Shelby County Correctional Center. The judgment forms indicate that the two convictions were to run consecutively, and the remaining counts were to be dismissed. On the judgment forms filed April 24, 2018, in the "special conditions" box, there is a notation: "No PSS/No PSRS."
On October 5, 2018, the Defendant filed a "petition to suspend the remainder of sentence after 120 day[s]." On November 26, 2018, the trial court, by order, denied the Defendant's petition. In the order, the trial court found:
this petition should be denied without a hearing, as an express condition of the [Defendant]'s guilty plea, entered on the judgment of conviction, was that he waived his right to later request a petition for suspension of remainder of his sentence pursuant to Tenn. Code Ann. §40-35-306(c). As this is a statutory right which he waived in open court during his guilty plea voir dire, this court has no jurisdiction to suspend or reduce the petitioner's sentence.
There is no transcript of the guilty plea hearing in the record.
On appeal, the Defendant challenges the trial court's denial, objecting to the trial court's finding that the Defendant waived his right to request a suspended sentence "in open court during his guilty plea." The Defendant contends that, at the guilty plea hearing, the trial court did not "orally order the [Defendant] not to later file a motion to suspend the remainder of sentence" but acknowledges that the trial court did later include "No PSS/No PSRS" in the special conditions box on each of the judgment forms. The Defendant concludes that, because of the trial court's erroneous reference to a waiver in court, the trial court must not have reviewed the plea agreement and sentencing transcript, which he argues constitutes trial court error.
We first note that, while we are cognizant of the fact that Defendant is selfrepresented in this appeal, it is well-settled that "pro se litigants are held to the same procedural and substantive standards to which lawyers must adhere." Brown v. Christian
Bros. Univ., No. W2012-01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013), perm. app. denied (Tenn. Jan. 15, 2014). As we have explained, parties who decide to represent themselves are entitled to fair and equal treatment by the courts. The courts should take into account that many pro se litigants have no legal training or familiarity with the judicial system. We, however, must also be mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant's adversary. Thus, the courts must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe. Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn. Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003)), no perm. app. filed.
The Defendant correctly notes that a transcript is controlling when there is a conflict between judgment forms and a transcript of the proceedings. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). In this case, the Defendant has not included in the record a transcript of the guilty plea hearing at which the sentences were imposed. An appellant has the duty of preparing a record that conveys a fair, accurate, and complete account of what transpired in the trial court with respect to the issues that form the basis of the appeal. Tenn. R. App. P. 24(b). In the absence of a complete record, this court is precluded from reviewing any issues raised by an appellant and must presume the trial court's findings were correct. See State v. Troutman, 979 S.W.2d 271 (Tenn. 1998) (holding that failure to include trial transcript on appeal waived challenge to sentence); State v. Ballard, 855 S.W.2d 557 (1993) (holding failure to include transcript precludes appellate review); State v. Oody, 823 S.W.2d 554 (Tenn. Crim. App. 1991) (holding trial court's ruling presumed correct in absence of an adequate record on appeal). Without the transcript of the sentencing hearing, we must presume that the trial court correctly dismissed the Defendant's petition.
Outcome: Accordingly, based on the above mentioned reasoning and authorities, we affirm the trialcourt's judgment.