            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1999

                                                             FILED
STATE OF TENNESSEE,         )                                January 26, 1999
                            )    No. 02C01-9712-CC-00491
      Appellee              )                          Cecil Crowson, Jr.
                            )    FAYETTE COUNTY         Appellate C ourt Clerk

vs.                         )
                            )    Hon. Jon Kerry Blackwood, Judge
QUINCY BLEDSOE,             )
                            )    (Aggravated Kidnapping;
      Appellant             )    Attempted Felonious Escape)



For the Appellant:               For the Appellee:

Marcus M. Reaves                 John Knox Walkup
Attorney at Law                  Attorney General and Reporter
313 E. Lafayette
Jackson, TN 38301                Georgia Blythe Felner
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 Elizabeth T. Rice
                                 District Attorney General
                                 302 Market Street
                                 Somerville, TN 38068




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                       OPINION



       The appellant, Quincy Bledsoe, appeals the order of the Fayette County

Circuit Court denying his motion to withdraw his guilty plea. Specifically, the

appellant contends that his guilty plea was not voluntarily entered as he was not

informed that, had he proceeded to trial, the jury could have convicted him of a

lesser offense of that charged in the indictment.



       After a review of the record, we affirm the decision of the trial court.




                                     Background



       On March 21, 1997, the appellant and his two co-defendants were inmates at

the Wilder Youth Development Center in Fayette County. “While they were in an

exercise yard with other inmates, a security guard, [Christine Johnson,] was

assaulted, handcuffed, and imprisoned in a small room while the [appellant and his

co-defendants] endeavored to escape.”



       On July 28, 1997, a Fayette County Grand Jury returned a four count

indictment against the appellant and his co-defendants alternatively charging them

with one count of aggravated kidnapping of Christine Johnson with the intent to

terrorize her, Tenn. Code Ann. § 39-13-304 (a)(3) (1997); one count of aggravated

kidnapping of Christine Johnson with the intent to interfere with performance of her

governmental function, Tenn. Code Ann. § 39-13-304(a)(2); one count of

aggravated kidnapping of Christine Johnson with the intent to inflict serious bodily

injury, Tenn. Code Ann. § 39-13-304 (a)(3); and one count of attempted felonious




                                          2
escape, Tenn. Code Ann. § 39-16-605 (1997) and Tenn. Code Ann. § 39-12-101

(1997).1



        The appellant’s family members retained an attorney in his behalf. On the

day the appellant was scheduled to go to trial, November 12, 1997, he pled guilty to

the aggravated kidnapping of Christine Johnson with the intent to interfere with

performance of her governmental function and to attempted felonious escape.



        The following day, the appellant filed a motion to withdraw his guilty plea,

alleging that, had his attorney advised him of the possibility of conviction on a lesser

charge, he would not have entered a guilty plea to the offense of aggravated

kidnapping. 2 A hearing on this motion was held on December 9, 1997, immediately

preceding the appellant’s sentencing hearing. 3



        After a hearing on the motion, the trial court entered written findings of facts

and denied the motion. Specifically, the trial court found:

        . . . Prior to the acceptance of the plea, the defendant was thoroughly
        questioned regarding the voluntariness of his plea. At no time during
        the colloquy with the Court did the defendant express any
        dissatisfaction with [his attorney] nor any hesitation or reluctance to
        enter a plea. After the plea was entered, the defendant’s grandfather
        remained in the Courtroom for the remainder of the trial. The jury
        found one defendant guilty of aggravated kidnapping . . . but found the
        other codefendant guilty of the lesser charge of false imprisonment.
        The next day the defendant’s grandfather called [counsel] complaining
        that [he] had not told him that his grandson could be found guilty of a
        lesser charge. At the hearing of the motion, the defendant stated that
        [his attorney] had not told him of any lesser charge. . . . [Defendant’s
        counsel] testified that he went over the charge of aggravated
        kidnapping with the defendant and explained the minimum and


        1
         Although unsupported by the record, the appellant’s brief indicates that a juvenile transfer
hearing was he ld resulting in th e sixteen year old’s indic tmen t as an ad ult.

        2
        Defense counsel filed a motion to withdraw as counsel due to possible conflicts on
November 27, 1997. This motion was ultimately granted by the trial court. The appellant was
represented by another attorney at the hearing on the motion to withdraw his guilty plea.

        3
          At the appellant’s subsequent sentencing hearing, the trial court sentenced the appellant
to nine years in the Dep artme nt of Co rrection a s a violent of fender , see Tenn. Code Ann. § 40-
35-501(i)(1) - (2) (1997), for the offense of aggravated kidnapping. The court also imposed a
sentence of nine months in the county jail for the offense of attempted felonious escape. The
sen tenc es w ere o rder ed to run c onc urre ntly.

                                                 3
         maximum sentences to him. . . . [Counsel] explained that . . . the proof
         would certainly support the jury’s conviction of the other count
         [interference with the performance of any governmental or political
         function.] [Counsel] stressed that the ultimate decision whether to plea
         or not to plea would rest with the defendant. . . . The Court finds that
         the defendant’s plea in this case was knowing, intelligent and
         voluntary. He was explained the minimum and maximum terms of
         imprisonment by the Court, as well as by counsel. He was certainly
         aware of his right to a jury trial, since his co-defendants were being
         tried on the same day. The Court asked him if he had any complaints
         regarding his counsel, and none were expressed.[4] The defendant
         was apparently satisfied with his plea of guilty until he learned the next
         day that one of his co-defendants had been found guilty of a lesser
         charge. The Court concludes that there has not been a proper
         showing of any fair and just reason why the plea should be withdrawn.
         Accordingly, the motion is hereby denied.




                                                  Analysis



         Although a defendant does not have a unilateral right to withdraw a knowing

and voluntarily guilty plea, see State v. Anderson, 645 S.W.2d 251, 254 (Tenn.

Crim. App. 1994), Tenn. R. Crim. P. 32(f) permits a defendant to withdraw a plea of

guilty, prior to sentencing, if he establishes “a fair and just reason” for doing so.5

However, the decision to permit a withdrawal rests within the sound discretion of the

trial court and is not subject to reversal unless there is an abuse of discretion. State

v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995), perm. to appeal denied,

(Tenn. 1996); State v. Davis, 823 S.W.2d 217, 220 (Tenn. Crim. App. 1991).

Moreover, the findings of the trial judge on questions of fact are conclusive on

appeal unless the evidence preponderates otherwise. See State v. Chambers, No.

01C01-9505-CC-00143 (Tenn. Crim. App. at Nashville, Jun. 20, 1996), perm. to

appeal denied, (Tenn. Dec. 30, 1996) (citation omitted).

         4
           The appellant has failed to provide this court with a transcript of his guilty plea hearing,
thus, precluding this court from providing a meaningful review of the issues. The appellant has
the burden to prepare a record on appeal that presents a complete and accurate account of what
transpired in the trial court with respect to the issues on appeal. Tenn. R. App. P. 24(b). The
failure to do so resu lts in the pres ump tion that the fin dings of the trial court a re corre ct. See State
v. Bear, No. 03C 01-951 0-CC -00301 (Tenn . Crim. A pp. at Kno xville, Sept. 9, 1 996), perm . to
appeal denied, (Tenn . Mar. 3, 19 97).

         5
        If the appellant’s motion to withdraw a guilty plea is made after sentencing, such motion
may only be granted by the trial court “to correct manifest injustice.” See Tenn. R. Crim. P. 32(f).

                                                     4
       In the present case, the appellant complains that his attorney’s failure to

advise him of the possibility of conviction of lesser offenses rendered his guilty pleas

involuntary. The evidence in the record before us shows that the proof was more

than sufficient to support a conviction of aggravated kidnapping with the intent to

interfere with a governmental function. Accordingly, counsel was under no

obligation to discuss the lesser offenses of this crime with the appellant. See

Overall v. State, No. 88-215-III (Tenn. Crim. App. at Nashville, Dec. 28, 1988). Cf.

State v. Stephenson, 878 S.W.2d 530, 550 (Tenn.1994) (“Where the record clearly

shows that the defendant was guilty of the greater offense and is devoid of any

evidence permitting an inference of guilt of the lesser offense, the trial court's failure

to charge on a lesser offense is not error.). Additionally, although the appellant

may have been successful at trial in obtaining a conviction for the lesser offense of

false imprisonment, as did one of his co-defendants, this does not render

inadequate the factual basis for his guilty plea. Cf. Chambers, No. 01C01-9505-

CC-00143 (defendant cannot withdraw guilty plea on grounds that he lacked

requisite intent for offense).



       For these reasons, we find no basis to conclude that the trial judge abused

his discretion in finding that the appellant’s guilty plea was knowing, intelligent, and

voluntary, and that no “fair and just reason” exists to permit the plea’s withdrawal.

The judgment is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




                                          5
CONCUR:




_________________________________
JOE G. RILEY, Judge



_________________________________
JOHN EVERETT W ILLIAMS, Judge




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