         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 11, 2002

             STATE OF TENNESSEE v. JAMES MARIO STARNES

                  Direct Appeal from the Circuit Court for Bedford County
                             No. 14427     Charles Lee, Judge



                    No. M2002-01450-CCA-R3-CD - Filed March 13, 2003


The Appellant, James Mario Starnes, was indicted by the Bedford County Grand Jury for first degree
murder and especially aggravated robbery. Starnes pled guilty to attempted second degree murder
and especially aggravated robbery. Following a sentencing hearing, Starnes received concurrent
sentences of ten years, nine months for attempted second degree murder and twenty-five years for
especially aggravated robbery. Starnes now appeals his especially aggravated robbery conviction,
contending that the evidence is insufficient to establish his guilt for that offense. Because the error
complained of was waived as a matter of law by Starnes’ plea of guilty, this issue is not reviewable
upon direct appeal. Accordingly, this appeal is dismissed.

                             Tenn. R. App. P. 3; Appeal Dismissed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.

Larry F. Wallace, Jr., Shelbyville, Tennessee, (on appeal) for the Appellant, James Mario Starnes.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H.
Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and
Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                     Procedural Background

       Due to the nature of this appeal, the guilty plea acceptance hearing was the only proceeding
in which any facts relevant to the issue presented were developed. At this hearing, the prosecutor
and defense counsel recited the following facts supporting the factual basis for the pleas:
         PROSECUTOR: Your Honor, on August 20th, 1998, the defendant as well as Leon
         Terrell Phillips entered Prime Steakhouse here in Shelbyville; robbed them of the
         money bag. Fairly large amount of money, well over $500. They did so while this
         defendant was armed with a firearm.

         As they were leaving, after having obtained the money, as the proprietor Mr. Bill
         Katisis is his name, as they were leaving they shot him or not they. This defendant
         shot him, and he was gravely injured. It is a miracle that he lived. He was in the
         hospital for extended period of time. Astronomical medical bills and very seriously
         injured.

         DEFENSE COUNSEL: The proof would further show after the money was obtained
         and started out the door the proprietor followed - - Mr. Starnes wants this on the
         record – to the door in an effort to try to retrieve the money. At that point there was
         some small struggle. I think the gun went off. This is when he was shot.

         PROSECUTOR: The defendant did make a statement to this.

         DEFENSE COUNSEL: That’s correct.

         THE COURT: Mr. Starnes, you heard what the State said they are prepared to prove.
         Is that what happened?

         THE DEFENDANT: Yes, sir.

        The Appellant’s sentencing hearing was conducted on February 18, 1999, at which time
sentences were imposed and the judgments of conviction were entered. A document in the record
indicates that on January 8, 2001, the Appellant filed a notice of appeal. The record of the
proceedings in the trial court ends at this point.1 The record does include an order by the trial court
granting the Appellant a delayed appeal. The order provides:

         This matter was heard on the 13th day of May, 2002 upon the defendant’s petition for
         post conviction relief. By agreement of the parties it appears as the defendant is
         entitled to a delayed appeal pursuant to T.C.A. 40-30-213. Therefore, the defendant
         is hereby granted a delayed appeal regarding any and all sentencing issues in this
         matter.

This appeal followed.



         1
          It is the responsibility of the Appellant to prepare a record which conveys a complete account of what
transpired with resp ect to the issues forming the basis of the ap peal. Tenn. R. A pp. P . 24(b ). Failure to do so ma y result
in waiver of the issue on appe al. State v. Ba llard, 855 S.W .2d 5 57, 5 60-6 1 (T enn. 1993 ).

                                                              -2-
                                                          Analysis

       Notwithstanding the trial court’s order properly granting the Appellant a direct appeal
“regarding any and all sentencing issues,” the Appellant challenges the factual sufficiency of his
conviction for especially aggravated robbery. Relying upon State v. Owens, 20 S.W.3d 634 (Tenn.
2000), he contends that “the taking had already occurred and . . . was completed when the proprietor
was shot.” Thus, he argues that, because the use of violence or fear did not precede or occur
concomitantly or contemporaneously with the taking, he is at best guilty of only aggravated robbery.

        A guilty plea conviction is based entirely upon the plea, and the plea constitutes a conviction
in and of itself and is conclusive. Beaty v. Neil, 467 S.W.2d 844, 847 (Tenn. Crim. App. 1971). As
a general rule, an accused who enters a plea of guilty to a criminal offense waives the right to appeal.
Hobbs v. State73 S.W.3d 155, 158 (Tenn. Crim. App. 2001). This rule is subject to a limited number
of narrowly defined exceptions. Tenn. R. App. P. 3(b)(2) states:

           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: . . .

           (2) on a plea of guilty or nolo contendere, if the defendant entered into a plea
           agreement but explicitly reserved with the consent of the state and the trial court the
           right to appeal a certified question of law dispositive of the action, or 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.

See also Tenn. R. Criminal P. 37(b). The Appellant’s appeal does not fall within any exception. The
Appellant’s guilty plea in this case was an “open” plea, as provided by Rule 11(e)(1)(B) of the
Tennessee Rules Criminal Procedure. As such, the issue presented was waived as a matter of law.2

       A plea of guilty, which is entered voluntarily, knowingly, and intelligently, waives all prior
non-jurisdictional, procedural, and constitutional defects in the proceedings. State v. McKissack, 917
S.W.2d 714, 716 (Tenn. Crim. App. 1995). In this case, the Appellant does not challenge the
voluntariness of his guilty plea, and there is nothing in the record to support a conclusion that the




           2
               As noted by the trial court’s order, issues related to the Appellant’s sentencing were reviewable on direct
app eal.

                                                             -3-
plea was not voluntarily and knowingly entered. He raises only a sufficiency of the evidence
argument; however, that issue was waived by his plea of guilty. Because there is no authority for
this appeal, the appeal is dismissed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




                                               -4-
