        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                January 12, 2010 Session

          DEMETRIUS L. LANCASTER v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Giles County
                        No. 13311     Stella Hargrove, Judge




               No. M2008-01804-CCA-R3-PC - Filed February 12, 2010


The Petitioner, Demetrius L. Lancaster, pleaded guilty to possession of cocaine with intent
to sell within 1,000 feet of a school zone, being a convicted felon in possession of a weapon,
and sale of .5 grams or more of cocaine. He received an effective fourteen-year sentence,
as a Range I, standard offender for these convictions, which sentence was to be served
consecutively to a prior seventeen-year sentence. The Petitioner then filed a timely petition
for post-conviction relief. The post-conviction court held an evidentiary hearing on the
petition and subsequently entered an order denying relief. The Petitioner appeals. Because
the record on appeal does not include a transcript of the evidentiary hearing in the
post-conviction court, we conclude that the Petitioner has waived the issues argued on
appeal. We must presume that the post-conviction court correctly denied post-conviction
relief and, therefore, the judgment of the post-conviction court is affirmed.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Stacie Odeneal, Loretto, Tennessee, for the appellant, Demetrius L. Lancaster.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Mike Bottoms, District Attorney General; and Richard Dunavant, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                   Factual Background
       On September 20, 2006, a Giles County grand jury returned a six-count indictment
against the Petitioner, Case Number 12884, charging him with possession of drug
paraphernalia, a Class A misdemeanor; simple possession of marijuana, a Class A
misdemeanor; possession of Valium with intent to sell within 1,000 feet of a school zone, a
Class C felony; possession of Lortab with intent to sell within 1,000 feet of a school zone,
a Class C felony; possession of cocaine with intent to sell within 1,000 feet of a school zone,
a Class A felony; and being a convicted felon in possession of a weapon, a Class E felony.
See Tenn. Code Ann. §§ 39-17-417, -418, -425, -432, -1307. Thereafter, the Petitioner was
indicted on December 13, 2006, for sale of .5 grams or more of cocaine, a Class B felony
(Giles County Case Number 13098). See Tenn. Code Ann. § 39-17-417.

        As a result of these charges, he entered best interest pleas on January 29, 2007, to
possession of cocaine with intent to sell within 1,000 feet of a school zone, being a convicted
felon in possession of a weapon, and sale of .5 grams or more of cocaine. The remaining
charges were dismissed. The facts underlying these offenses were summarized by the State
as follows:

       [In Case Number 12884, T]he Giles County Sheriff’s Department and the
       Pulsaki Police Department . . . had surveillance set up on a house where [the
       Petitioner] was living. They had information that there was drugs being sold
       from that house.

              They obtained a search warrant; they did execute that search warrant on
       that house. [The Petitioner] was present. They . . . recovered approximately
       15 grams of cocaine or cocaine-like substance . . . . And [the Petitioner] did
       made [sic] some statements that . . . would be used as evidence.

              ....

              . . . [Case Number 13098], involved an informant that was working with
       the Pulaski Police Department and Giles County Sheriff’s Department. [The
       Petitioner] did sell a quantity of cocaine in excess of .5 grams to that informant
       ....

       Pursuant to the terms of the agreement, the Petitioner received an effective
fourteen-year sentence as a Range I, standard offender to be served in the Department of
Correction. Also, the Petitioner agreed to revocation of a previous seventeen-year sentence,

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and that his fourteen-year sentence would be served consecutively to that seventeen-year
sentence. He further agreed to plead guilty to several cases in Lawrence County, waiving any
venue problems. The State agreed not to pursue any additional drug charges against the
Petitioner “which might be pending.”

        The Petitioner filed a timely pro se petition for post-conviction relief. Counsel was
appointed, and an amended petition was filed. The petitions contained allegations of
ineffective assistance of counsel, an involuntary guilty plea, and evidence being obtained by
illegal means. The post-conviction court held a hearing on June 9, 2008.1 Following the
hearing, the post-conviction court denied the petition. This appeal followed.

                                          Analysis
       The Petitioner appeals the post-conviction court’s denial of post-conviction relief. He
contends that “his socio-economic history subjected him to disproportionate pressure from
the judicial process preventing him from entering his plea freely, knowingly, and
voluntarily.”

       To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon
review, this Court will not reweigh or re-evaluate the evidence below; all questions
concerning the credibility of witnesses, the weight and value to be given their testimony, and
the factual issues raised by the evidence are to be resolved by the post-conviction judge, not
the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997). The post-conviction judge’s findings of fact on a petition for
post-conviction relief are afforded the weight of a jury verdict and are conclusive on appeal
unless the evidence preponderates against those findings. See Momon, 18 S.W.3d at 156;
Henley, 960 S.W.2d at 578.

        While the post-conviction court’s comprehensive order denying post-conviction relief
is part of the record on appeal, the Petitioner has failed to include in the record the transcript
of the post-conviction hearing.2 The State argues that the Petitioner’s failure to provide a
complete and accurate record on appeal precludes appellate review of the issues raised. We


        1
           We are able to determine that a post-conviction hearing was held based upon the post-conviction
court’s reference to the hearing in its order denying post-conviction relief.
        2
           We feel constrained to note that previous orders of this Court note the absence of a transcript of
the post-conviction hearing in the record and allow counsel to file a supplemental record. However, counsel
failed to supplement the record, and she was questioned about this failure at oral argument before the Court.

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agree with the State. “When an accused seeks appellate review of an issue in this Court, it
is the duty of the accused to prepare a record which conveys a fair, accurate and complete
account of what transpired with respect to the issues which form the basis of the appeal.”
State v. Roberts, 755 S.W. 833, 836 (Tenn. Crim. App. 1988) (citing Tenn. R. App. P. 24(b);
State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)); see also State v. Hopper, 695 S.W.2d
158, 160 (Tenn. Crim. App. 1985); State v. Wallace, 664 S.W.2d 301, 302 (Tenn. Crim. App.
1983). Our Court has considered the failure to include such a transcript to be wholly
detrimental to a petitioner’s case on appeal:

                It is well-established that an appellate court is precluded from
        considering an issue when the record does not contain a transcript or statement
        of what transpired in the trial court with respect to that issue. Moreover, the
        appellate court must conclusively presume that the ruling of the trial judge was
        correct, the evidence was sufficient to support the defendant’s conviction, or
        the defendant received a fair and impartial trial. In summary, a defendant is
        effectively denied appellate review of an issue when the record transmitted to
        the appellate court does not contain a transcription of the relevant proceedings
        in the trial court.

State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990); see also State v. Groseclose,
615 S.W.2d 142, 147 (Tenn. 1981); State v. Locke, 771 S.W.2d 132, 138 (Tenn. Crim. App.
1988); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987); State v. Cooper, 736
S.W.2d 125, 131 (Tenn. Crim. App. 1987).

       Based upon the burden on the Petitioner to provide the transcript of the
post-conviction hearing, see Tennessee Rule of Appellate Procedure 24(b), and the
“well-established” law that an appellant waives his appellate issues if he fails to meet this
burden, we conclude that the Petitioner has waived the issues brought forth in this
post-conviction appeal.3 Therefore, we must presume that the post-conviction court properly
determined that the Petitioner did not establish that he received the ineffective assistance of
counsel or that his plea was involuntarily entered.




        3
           The Petitioner contends that his claim of an involuntary plea survives waiver despite the failure
to include the post-conviction hearing transcript in the record. However, just because a transcript of the
guilty plea hearing is included in the record, the Petitioner is not excused from also filing a transcript of the
post-conviction hearing in order to perfect this issue for our review. See, e.g., Marcus Brooks v. State, No.
W2003-02188-CCA-R3-PC, 2004 WL 1656494 (Tenn. Crim. App., Jackson, July 23, 2004).

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                                   Conclusion
       Based upon the foregoing authorities and reasoning, the judgment of the
post-conviction court is affirmed.




                                           _________________________________
                                           DAVID H. WELLES, JUDGE




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