         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 25, 2005

           STATE OF TENNESSEE v. DOYLE ARNEL WHITLOCK

                   Appeal from the Criminal Court for Washington County
                   Nos. 28977, 29211 and 29345    Robert E. Cupp, Judge



                     No. E2004-01852-CCA-R3-CD - Filed March 21, 2005


The defendant, Doyle Arnel Whitlock, appeals from actions of the Washington County Criminal
Court in the aftermath of his multiple, guilty-pleaded convictions, the denial of his motion to reduce
his sentences, and his filing of a document titled “Appeal of Conviction,” which despite the title
raised issues of guilty plea validity and ineffective assistance of counsel. Upon our review, we
dismiss the appeal in part and remand for further proceedings in the trial court.

          Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed in Part;
                                Appeal is Dismissed in Part.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and NORMA MCGEE OGLE, J., joined.

Doyle Arnel Whitlock, Pro Se (on appeal); and Scott Pratt, Johnson City, Tennessee (at trial), for
the Appellant.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Joe C.
Crumley, Jr., District Attorney General; and Steve Finney, Assistant District Attorney General, for
the Appellee, State of Tennessee.

                                             OPINION

               Pursuant to his guilty pleas, the defendant was convicted on May 18, 2004, of the
following offenses and received the following sentences:

               Felony escape   Class E felony             6 years, persistent offender
               Evading arrest Class A misdemeanor         11 months, 29 days
               Theft           Class A misdemeanor        11 months, 29 days
               False reporting Class D felony             12 years, persistent offender
               Auto burglary Class E felony               6 years, persistent offender
               Theft           Class A misdemeanor        11 months, 29 days
                Auto burglary       Class E felony      6 years, persistent offender
                Theft               Class A misdemeanor 11 months, 29 days
                Evading arrest      Class A misdemeanor 11 months, 29 days.

The combination of concurrent and consecutive sentences resulted in an effective sentence of 12
years. On May 26, 2004, citing the defendant’s plea bargain and his voluntary pleas, the trial court
entered an order denying the defendant’s pro se motions to reduce his sentences and to allow him
to serve his effective sentence in the Washington County Jail. On June 15, 2004, the defendant filed
an “Appeal of Conviction,” which claimed that his pleas were unknowing and involuntary and that
trial counsel had been ineffective. It appears, as stated by the state in its brief, that the trial court did
not rule upon these claims and that the “‘Appeal of Conviction’ served as a notice of appeal.”

                The state argues that the defendant waived a rightful appeal of his convictions and
sentence. The record does not contain the defendant’s plea agreement or plea petitions. The record
contains an acknowledgment and waiver of certain rights, but this document does not detail the plea
terms. It includes a waiver of “[t]he right to appellate review if convicted by trial.” The record also
contains a transcript of the guilty pleas hearing, which reflects the defendant’s acknowledgment that
he waived his right to appeal following convictions based on pleas of guilty. During the plea
colloquy, the trial court also engaged the defendant in the following exchange:

                Court: If you, after pleading guilty, decide to appeal your guilty
                pleas, I’m going to make sure you don’t get any relief from the Court
                of Appeals. The rights you give up here are the rights you give up at
                the Court of Appeals as long as they’re given up normally. I think
                we’re making sure that that’s happening.

                Defendant: Yes, sir, I understand that.

Further exchanges between the trial judge and the defendant suggest that, in referring to any appeal
of the guilty pleas, the trial judge was referring to appellate review of the voluntariness of the pleas,
such as might ensue from a denial of post-conviction relief.

                 Tennessee Rule of Appellate Procredure 3(b) provides:

                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: (1) on a plea
                of not guilty; and (2) on a plea of guilty or nolo contendere, . . . 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.


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Tenn. R. App. P. 3(b).

               Tennessee Rule of Criminal Procedure 37(b) provides:

               An appeal lies from any order or judgment in a criminal proceeding
               where the law provides for such appeal, and from any judgment of
               conviction:

                         (1) upon a plea of not guilty; or

                         (2) upon a plea of guilty or nolo contendere if:

                         ....

                      (ii) the defendant seeks review of the sentence set and there
               was no plea agreement under Rule 11(e); or

                       (iii) the error(s) complained of were not waived as a matter of
               law by the plea of guilty or nolo contendere, or otherwise waived, and
               if such errors are apparent from the record of the proceedings already
               had.

Tenn. R. Crim. P. 37(b).

                Regardless whether the defendant explicitly waived his right to appeal his convictions
following his guilty pleas, we conclude that he waived this right as a matter of law. See State v.
Wilson, 31 S.W.3d 189, 193 (Tenn. 2000) (pursuant to Tennessee Rule of Criminal Procedure 37(b),
defendant’s “claim that his guilty plea was not knowingly and voluntarily entered” is not appealable
as of right). Any appeal of the convictions is, therefore, dismissed. Essentially, the defendant must
present the claim of unknowing or involuntary guilty pleas via a petition for post-conviction relief.
Id. at 194.

                The question of waiver of the right to appeal the convictions aside, whether an appeal
of the sentences is waived is a more perplexing question on the present record. As shown above,
Rule 37(b) allows an appeal of the sentence following a guilty plea when the plea agreement does
not embrace the sentences to be imposed. Moreover, this court has allowed a sentencing appeal to
proceed when, despite the guilty plea and a general waiver of the right to appeal, the record showed
that the defendant did not agree in advance to the sentencing terms. State v. Carter, 986 S.W.2d 596,
597 (Tenn. Crim. App. 1998). In this case, however, unlike in Carter, the transcript of the plea
submission hearing indicates that the sentences were part of the plea agreement. To the extent that
the actual plea terms might have shown otherwise, the defendant, as the appellant, has failed to
include the plea document in the record. “[I]t is the duty of the defendant to prepare a record which
conveys a fair, accurate and complete account of what transpired in the trial court with respect to the


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issues which form the bases of the appeal.” State v. Coolidge, 915 S.W.2d 820, 826 (Tenn. Crim.
App. 1995), overruled on other grounds by State v. Troutman, 979 S.W.2d 271 (Tenn. 1998). In the
absence of a sufficient record, this court must presume that the trial court acted correctly in receiving
pleas that included agreed sentences. See, e.g., id. Thus, we hold that a rightful appeal of the
sentence has been waived as a matter of law. Any appeal of the sentencing determinations should
be dismissed.

               Having disposed of the possibilities that the defendant may have effectively appealed
his convictions or sentences, we must now consider whether he has appealed from the trial court’s
May 26, 2004 order denying sentence reductions or service of the sentences in the county jail.

                Tennessee Rule of Criminal Procedure 35(b) provides:

                The trial court may reduce a sentence upon application filed within
                120 days after the date the sentence is imposed or probation is
                revoked. No extensions shall be allowed on the time limitation. No
                other actions shall toll the running of this time limitation. A motion
                for reduction of sentence under this rule may be denied by the trial
                judge without a hearing. If the application is denied, the defendant
                may appeal but the defendant shall not be entitled to release on bond
                unless the defendant is already under bond. If the sentence is
                modified, the state may appeal as otherwise provided by law. A
                modification can only be as to any sentence the court could have
                originally imposed.

Tenn. R. Crim. P. 35(b) (emphasis added). Thus, the defendant may appeal from the denial of
sentence reduction, but on appeal, the defendant has addressed neither this action of the trial court
nor the denial of local service of the sentence. R. Tenn. Ct. Crim. App. 10(b). These issues are
waived, and the trial court’s order of May 26, 2004, is affirmed.

                 Finally, we address whether the trial court should have treated the “Appeal of
Conviction” as a petition for post-conviction relief. As mentioned above, this document claims the
pleas are unknowing and involuntary and the result of the ineffective assistance of counsel – claims
that are raised typically in post-conviction proceedings. See Tenn. Code Ann. §§ 40-30-101 through
40-30-122 (2003). In his brief, the defendant claims that the trial court erred in denying post-
conviction relief without the appointment of counsel and a hearing.

                We point out initially that the trial court neither denied relief nor took any other action
on the defendant’s “Appeal of Conviction” as a petition for post-conviction relief. The trial court,
probably through the trial court clerk, apparently took the defendant’s document heading at its word
and treated the document as a notice of appeal. As such, there is no order of the trial court from
which the defendant may rightfully appeal. See Tenn. R. App. P. 3(b) (“The defendant may . . .
appeal as of right from . . . a final judgment in a . . . post-conviction proceeding.”) (emphasis added).


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Thus, as an appeal of an order denying a petition for post-conviction relief, the appeal must be
dismissed.

                 The question remains whether we should view the “Appeal of Conviction” document
itself as a petition for post-conviction relief and remand the cause to the trial court for further
proceedings on the pending petition. We conclude that judicial economy would better be served by
so doing. We have held previously in this opinion that no direct appeal of the conviction or sentence
has occurred. The conviction proceeding is, therefore, effectively concluded, pending Tennessee
Rule of Appellate Procedure 11 review. In our view, the defendant’s case is ripe for post-conviction
review. We see no point in requiring the defendant to file anew when his “current” petition may be
attended by counsel and amended as needed. See Tenn. Code Ann. § 40-30-107 (2003).

               Accordingly, the case is remanded to the trial court, which shall treat the defendant’s
“Appeal of Conviction” as a petition for post-conviction relief, appoint counsel in the event it finds
the defendant to be indigent, and otherwise proceed pursuant to the Post-Conviction Procedure Act.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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