Joseph Brown v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 15, 2005

JOSEPH BROWN v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-24735 W. Fred Axley, Judge

No. W2005-00250-CCA-R3-PC - Filed January 18, 2006

The petitioner, Joseph Brown, pled guilty in the Shelby County Criminal Court to facilitation of first

degree murder and two counts of especially aggravated kidnapping. The trial court sentenced him

to fifteen years for each conviction and ordered that the sentences be served concurrently.

Subsequently, the petitioner filed a petition for post-conviction relief, claiming that he did not

knowing, intelligently, and voluntarily enter his guilty pleas. The post-conviction court denied relief.

Upon review of the record and the parties’ briefs, we must dismiss the petitioner’s appeal for lack

of jurisdiction.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.

AND J.C. MC LIN , JJ., joined.

Travis B. Butler (on appeal) and Michael E. New (at trial), Memphis, Tennessee, for the appellant,

Joseph Brown.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Reginald Henderson, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The petitioner’s convictions arose from his role in the death of Marshall Shipp and the severe

beating of Ricky Aldridge, members of the Gangster Disciples in Memphis. The record reflects that

fifteen other Gangster Disciple members, including the petitioner, were indicted for crimes against

the victims. On February 28, 2000, the petitioner pled guilty to facilitation of first degree murder

and two counts of especially aggravated kidnapping and received concurrent, fifteen-year sentences

for each conviction. The trial court ordered the petitioner to serve the facilitation conviction at thirty

percent and ordered him to serve the kidnapping convictions as a violent offender at one hundred

percent. On March 1, 2001, the petitioner filed a pro se petition for post-conviction relief, claiming

that he received the ineffective assistance of trial counsel. The post-conviction court appointed

counsel, and counsel amended the petition, claiming that the petitioner also did not knowingly,

intelligently, and voluntarily enter his guilty pleas.

At the evidentiary hearing, the petitioner testified that his trial attorney told him that he would

serve all of his sentences at thirty percent and that if he had known he would have to serve his

aggravated kidnapping sentences at one hundred percent, he would not have pled guilty and would

have gone to trial. He acknowledged that during his guilty plea hearing, the State recommended that

he serve his especially aggravated kidnapping sentences at one hundred percent. He also

acknowledged that when the trial court asked him if he was pleading guilty freely and voluntarily,

he said, “Yes, sir.” The petitioner’s trial attorney testified that before the petitioner pled guilty, four

co-defendants went to trial, were convicted, and received sentences of life plus fifty years. Counsel

stated that he learned a lot from the co-defendants’ trial, that he was convinced the petitioner was

going to be convicted, and that he believed the petitioner would receive a sentence of life plus fifty

or seventy-five years. On the day the petitioner was scheduled to go to trial, counsel approached the

State and asked if the State would be interested in a plea, and the State made a plea offer. The

petitioner seemed pleased with the State’s offer, wanted to plead guilty, and had no misgivings about

pleading guilty.

At the conclusion of proof, the post-conviction court stated that the guilty plea hearing

transcript demonstrated that the petitioner knowingly and voluntarily pled guilty and concluded that

the petitioner was “fully aware of the effect of [his] guilty plea.” In a written order, the post-

conviction court elaborated on its oral denial of post-conviction relief, noting that the petitioner

answered yes to all of the trial court’s questions during the guilty plea hearing and did not indicate

during the hearing that he did not understand the charges or his sentences. The post-conviction court

also noted that in prior trials, the petitioner’s co-defendants had been convicted and received life

sentences and that the petitioner’s attorney was “aware of the [State’s] case and how any further

trials would likely result.”

II. Analysis

The petitioner claims that he did not knowingly, intelligently, and voluntarily enter his guilty

pleas because the trial court failed to inquire during the guilty plea hearing about whether he

understood the length of his sentences and his release eligibility. Moreover, he contends that the trial

court failed to inquire “as to whether the defendant’s willingness to plead guilty or nolo contendere

results from prior discussions between the district attorney general and the defendant or the

defendant’s attorney” as required by Tennessee Rule of Criminal Procedure 11(d). The State claims

that the petitioner has failed to show that this court has jurisdiction over his appeal. The State also

contends that the post-conviction court properly determined that the petitioner entered his guilty

pleas knowingly, intelligently, and voluntarily. We conclude that the petitioner’s appeal must be

dismissed for lack of jurisdiction.

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After the post-conviction court denied post-conviction relief, the petitioner filed a timely pro

se notice of appeal. In his pro se appellate brief, the petitioner claimed that he received the

ineffective assistance of counsel and complained that he was not being represented by counsel on

appeal. Joseph Brown v. State, W2002-03014-CCA-R3-PC, 2004 Tenn. Crim. App. LEXIS 128,

at **3-4 (Jackson, Feb. 11, 2004). This court held that the petitioner had a “statutory right to be

represented by counsel in the first tier appeal of his post-conviction petition,” vacated the post-

conviction court’s order denying the petition for post-conviction relief, ordered that counsel be

appointed for the petitioner, and ordered that the post-conviction court “reenter its order denying

post-conviction relief, with the time for the petitioner’s appeal beginning to run from the time of the

reentry of the order.” Id. at **4-6. The post-conviction court appointed counsel to represent the

petitioner, and the petitioner’s new attorney filed a second notice of appeal. According to the notice

of appeal, the trial court reentered it’s order denying post-conviction relief on January 25, 2005.

However, the petitioner failed to include the reentered order in the appellate record. The State claims

that because the second order is not in the record on appeal, “[n]othing in the technical record

indicates that the post-conviction court reentered its order denying post-conviction relief” and,

therefore, “there is nothing in the record to appeal from.” The State argues that this court should

dismiss the appeal for lack of jurisdiction.

A defendant may appeal as of right from a final judgment in a post-conviction proceeding.

Tenn. R. App. P. 3(b). It is the petitioner’s duty to make sure that a complete and accurate record

is before this court on appeal. See Thompson v. State, 958 S.W.2d 156, 164 (Tenn. Crim. App.

1997). In this case, the petitioner should have included the post-conviction court’s reentered order

denying post-conviction relief in the appellate record. See Tenn. R. App. P. 24(a). However, in the

interests of justice and judicial economy, we sua sponte ordered the post-conviction court to

supplement the record with its reentered order. See Tenn. R. App. P. 24(e). In a written response

to our order, the Shelby County Criminal Court Clerk’s Office reported that no reentered order had

been found.1 Without the reentered order, there is nothing in the record to show that the post-

conviction court denied post-conviction relief and that this court has jurisdiction over the petitioner’s

appeal.

1

The clerk’s office also reported that the assistant attorney general and the petitioner’s attorney had

searched their files and had been unable to find the reentered order, indicating to us that the post-conviction court

never reentered the order as this court directed. If that is the case, then upon the post-conviction court’s reentering

the order denying post-conviction relief, the petitioner can refile his notice of appeal with the time for the appeal

beginning to run from the time of the reentry of the order.

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III. Conclusion

Based upon the record and the parties’ briefs, we dismiss the petitioner’s appeal.

___________________________________

NORMA McGEE OGLE, JUDGE

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