                                                                                           12/05/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 16, 2019

            TOMMY LEROY BRYANT v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Marshall County
                   No. 15-CR-149-PC       M. Wyatt Burk, Judge


                             No. M2018-02151-CCA-R3-PC


The Petitioner, Tommy Leroy Bryant, appeals from the Marshall County Circuit Court’s
denial of his petition for post-conviction relief from his three rape of a child convictions,
for which he is serving a twenty-five-year sentence. The Petitioner contends that he
received the ineffective assistance of trial counsel. We affirm the judgment of the post-
conviction court.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Tommy Leroy Bryant, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Robert James Carter, District Attorney General; and Weakley E.
Barnard and Drew Wright, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                        OPINION

       The Petitioner was indicted on August 21, 2013, for three counts of rape of a child.
The Petitioner pleaded guilty as charged and signed a waiver of his right to appeal to this
court and to the Tennessee Supreme Court on June 13, 2014. On June 30, 2014, the
Petitioner filed a pro se notice of appeal, alleging that he received the ineffective
assistance of counsel. This court issued an order requiring the Petitioner to show cause as
to why his appeal should not be dismissed given his signed waiver. See State v. Tommy
L. Bryant, No. M2014-01254-CCA-R3-CD (Tenn. Crim. App. July 10, 2014) (order).
The Petitioner failed to respond, and this court dismissed the appeal on September 8,
2014. See State v. Tommy L. Bryant, No. M2014-01254-CCA-R3-CD (Tenn. Crim. App.
Sept. 8, 2014) (order). The Petitioner asserts in the present appeal that he filed a pro se
petition for post-conviction relief on September 12, 2014, that the State filed a motion to
dismiss the petition, that the post-conviction court issued an order allowing the Petitioner
fifteen days to file a petition that complied with the statute, and that the court dismissed
the petition when the Petitioner failed to respond within fifteen days. However, the
record does not contain this petition, the State’s response, or the post-conviction court’s
order.

        The Petitioner filed a second post-conviction petition on November 19, 2015, and
the State filed a motion to dismiss the petition on the basis that it was barred by the
statute of limitations. The post-conviction court held an evidentiary hearing on February
12, 2016. The Petitioner, represented by appointed counsel, voluntarily dismissed this
petition. The record does not contain a transcript of the evidentiary hearing. The court
entered an order dismissing the petition on April 15, 2016, and the Petitioner did not
appeal.

        On October 29, 2018, the Petitioner filed a motion “to reinstate” his second post-
conviction petition, alleging the ineffective assistance of trial counsel and involuntary and
unknowing guilty pleas. The post-conviction court summarily dismissed the motion to
reinstate, holding that, at the post-conviction hearing on February 12, 2016, the Petitioner
was placed under oath and “it was determined” by the court that the Petitioner’s decision
to dismiss the second post-conviction petition “was a free, voluntary, and informed” one.
Moreover, the court also held that the motion was time-barred by the statute of
limitations. The court entered an order dismissing the petition on November 9, 2018.
The Petitioner filed a timely notice of appeal.

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

       The Petitioner has the burden of preparing a fair, accurate, and complete account
of what transpired in the trial court relative to the issues raised on appeal. See, e.g., State
v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). This included the obligation to have a
transcript of the evidence or proceedings prepared. See T.R.A.P. 24(b). “When the
record is incomplete, or does not contain the proceedings relevant to an issue, this [c]ourt
is precluded from considering the issue.” State v. Miller, 737 S.W.2d 556, 558 (Tenn.

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Crim. App. 1987). Likewise, “this [c]ourt must conclusively presume that the ruling of
the trial court was correct in all particulars.” Id. (citing State v. Jones, 623 S.W.2d 129,
131 (Tenn. Crim. App. 1981); State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim. App.
1983); State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim. App. 1983)); see State v. Ivy,
868 S.W.2d 724, 728 (Tenn. Crim. App. 1993).

       The Petitioner contends that he received the ineffective assistance of counsel. The
Petitioner asserts that he had a history of mental illness and that trial counsel failed to
have the Petitioner evaluated by a forensic psychologist to ascertain his mental state at
the time of the crimes. The Petitioner also states that he had a learning disability and that
he lacked comprehension of the serious nature and consequences of his guilty pleas. The
Petitioner claims that but for trial counsel’s deficiencies in failing to investigate his
history of mental illness and lack of comprehension of the pleas, he would not have
pleaded guilty. The Petitioner also contends that he lacked the mental capacity to
comprehend the nature of the post-conviction proceedings when he withdrew his post-
conviction petition at the February 12, 2016 hearing. The State responds that the post-
conviction’s court’s denial of the petition was proper because it was filed untimely and
because the dismissal of his “first two petitions” did not toll that statute of limitations.

       Here, the record does not contain a transcript of the Petitioner’s guilty plea
colloquy. Furthermore, the Petitioner’s second petition for post-conviction relief, the
State’s response, the post-conviction court’s order regarding the second petition, and a
transcript of the February 12, 2016 hearing are not included in the record. The Petitioner
has failed to prepare an adequate record, and he is not entitled to relief. See T.R.A.P.
24(b).

      Based upon the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.



                                      ____________________________________
                                      ROBERT H. MONTGOMERY, JR., JUDGE




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