                                                                                         06/07/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 11, 2017

              DOUGLAS MARTINEZ v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                    No. 13-03267       Paula L. Skahan, Judge
                     ___________________________________

                           No. W2016-00093-CCA-R3-PC
                       ___________________________________


Petitioner, Douglas Martinez, appeals the denial of his petition for post-conviction relief.
Because the record is inadequate for our review, we affirm the judgment of the post-
conviction court. However, an error in the judgment form necessitates a remand for
correction of the judgment to reflect the proper conviction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
                                  and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
J. ROSS DYER, JJ., joined.

Eric Mogy (at hearing and on appeal) and Bradley Eiseman (at hearing), Memphis,
Tennessee, for the appellant, Douglas Martinez.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy P. Wierich, District Attorney General; and Pamela Stark,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

       From the scant record on appeal, we can surmise that Petitioner was indicted by
the Shelby County Grand Jury in July of 2013 for one count of aggravated sexual battery.
The judgment form indicates Petitioner entered a guilty plea to attempted aggravated
sexual battery, a Class C felony, in exchange for a five-year sentence in a workhouse as a
Range I, standard offender. No transcript from the guilty plea hearing appears in the
record on appeal. The judgment form, entered on July 17, 2014, reflects that Petitioner
would be subject to mandatory supervision for life and was required to register as a sex
offender. The judgment form indicates that the indicted offense was “T.C.A. § 39-13-
504 AGGRAVATED SEXUAL BATTERY” and that the conviction offense was
“T.C.A. § 39-13-101 C[riminal] A[ttempt] AGG SEX BATTERY.” Tennessee Code
Annotated section 39-13-101 is the statute defining misdemeanor assault. Tennessee
Code Annotated section 39-12-101 is the statute defining criminal attempt. On remand,
the post-conviction court should enter an amended judgment reflecting Petitioner’s
conviction for attempted aggravated sexual battery under Tennessee Code Annotated
sections 39-12-101 and 39-13-504.

      In October of 2014, Petitioner filed a pro se petition for post-conviction relief in
which he raised various grounds of ineffective assistance of counsel, prosecutorial
misconduct, and an unknowing and involuntary guilty plea. Counsel was appointed and
an amended petition was filed.

        At some point, an evidentiary hearing was held on the petition. At the hearing, an
associate of appointed counsel appeared and represented Petitioner. According to the
technical record, Petitioner filed a motion to dismiss counsel on the day of the hearing but
orally retracted the motion “after careful consideration of his right to counsel and his
right to proceed pro se.” No transcript from the post-conviction hearing appears in the
record on appeal. In an order denying relief entered on January 7, 2016, the post-
conviction court recounted Petitioner’s fourteen allegations of ineffective assistance of
counsel and determined that Petitioner failed to establish that he was entitled to relief.
Petitioner filed a pro se notice of appeal with this Court. Petitioner also filed a pro se
“order requesting transcripts for post-conviction hearing,” and a “motion to appoint
coun[se]l” in this Court.

       When this Court received the notice of appeal and accompanying technical record
from the trial court, the record did not reflect whether appointed counsel had withdrawn
from representation of Petitioner for purposes of appeal. Therefore, on May 17, 2016,
this Court remanded the matter to the post-conviction court to determine whether
Petitioner was represented by counsel or would proceed pro se on appeal.

        The post-conviction court entered an order on June 3, 2016, finding that appointed
counsel was never discharged from his representation of Petitioner and effectively failed
to follow Tennessee Supreme Court Rule 13 section 1(e)(5) by not following the case to
its conclusion. The post-conviction court appointed substitute counsel who happened to
be the associate of appointed counsel who had appeared for Petitioner at the post-
conviction hearing.

      About a month later, on June 30, 2016, substitute counsel filed a motion with this
Court seeking to dismiss the appeal. On July 11, 2016, this Court denied the motion
because it was not accompanied by a signed statement of Petitioner in accordance with

                                            -2-
Rule 11 of the Tennessee Court of Criminal Appeals. Substitute counsel failed to file a
brief within the thirty-day time limit. Eventually, in October of 2016, a show cause order
was issued for substitute counsel due to his continued failure to file a brief on behalf of
Petitioner. Substitute counsel filed a second motion to dismiss the appeal on November
2, 2016. For the second time, the motion was not accompanied by a signed statement of
Petitioner. On December 15, 2016, this Court again denied the motion. In addition, this
Court ordered substitute counsel to appear before a panel of this Court to determine
whether he should be held in contempt for his “history of inaction before this Court.”
Substitute counsel was given fifteen days to file a brief.

       Substitute counsel finally filed a brief on behalf of Petitioner seeking a reversal of
the denial of post-conviction relief.1 In the brief, counsel cites to a transcript of the post-
conviction hearing and facts of the underlying offense from the guilty plea hearing. The
transcripts from neither the guilty plea hearing nor the post-conviction hearing appear in
the record on appeal.

        The lack of a complete record precludes our review of the post-conviction court’s
denial of relief. Petitioner should have included the transcripts of the post-conviction
hearing and the guilty plea in the appellate record. See Tenn. R. App. P. 24(b) (providing
that it is the appellant’s duty to prepare a record which conveys a fair, accurate, and
complete record on appeal to enable meaningful appellate review). In the absence of an
adequate record, we must presume the judgment of the post-conviction court is correct.
See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993); State v. Cooper,
736 S.W.2d 125, 131 (Tenn. Crim. App. 1987).

       By failing to adequately prepare the record for appellate review, substitute counsel
has executed an end run and essentially gained the dismissal of the appeal he requested
twice without verification from Petitioner. The judgment of the trial court is thus
affirmed.


                                                     ____________________________________
                                                     TIMOTHY L. EASTER, JUDGE




        1
         Because counsel remedied his delinquent status by filing a brief, this Court declined to find him
in contempt.
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