                                                                                                      12/12/2017
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 10, 2017

                      STATE OF TENNESSEE v. DACEY PACK

                   Appeal from the Criminal Court for Morgan County
                           No. 9365 Jeffrey H. Wicks, Judge


                                 No. E2017-00287-CCA-R3-CD


In this delayed appeal, the defendant, Dacey Pack, contends that the trial court erred by
denying his request for judicial diversion based on his 2008 Morgan County Criminal
Court guilty-pleaded conviction of statutory rape. Because the defendant has failed to
prepare an adequate record for our review, we must presume that the trial court’s ruling
was correct. We therefore affirm the trial court’s denial of judicial diversion.

             Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

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

J. Patrick Henry, Kingston, Tennessee, for the appellant, Dacey Pack.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Russell Johnson, District Attorney General; and Allyson Kennedy, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

              In September 2007, the Morgan County Grand Jury charged the petitioner
with two counts of statutory rape and one count of felony reckless endangerment. On
June 19, 2008, the petitioner pleaded guilty to a single count of statutory rape, with the
length and manner of service of the sentence to be determined by the trial court1
following a sentencing hearing. The trial court also ordered the petitioner to undergo a
psychosexual evaluation prior to sentencing. No transcript of the sentencing hearing
appears in the record.
1
        Judge E. Eugene Eblen was both the original trial court judge and post-conviction court judge in
this matter. Judge Wicks presided over the defendant’s brief January 23, 2017 hearing and entered the
order granting the defendant’s delayed appeal on that same date.
              On October 23, 2008, the trial court dismissed the charge of felony reckless
endangerment and one count of statutory rape. With respect to the other count of
statutory rape, the trial court entered a judgment reflecting the defendant’s plea of guilty
and sentencing the defendant to one year, suspended to probation.

               On September 8, 2009, the trial court granted the defendant’s motion to
seek a late-filed notice of appeal, and the defendant filed his notice of appeal in the trial
court on that same date. On December 2, 2009, this court entered a written order
declining to waive the timely-filing requirement, finding that the defendant’s
probationary period had apparently expired and that the record did not reflect any
additional circumstances under which an appeal from a guilty plea might lie, and this
court dismissed the appeal.

              On May 24, 2010, the defendant filed, pro se, a timely petition for post-
conviction relief, alleging that trial counsel had been ineffective by failing to appeal the
defendant’s denial of judicial diversion and seeking a delayed appeal of that denial.
Attached to his petition was the affidavit of his trial counsel, in which trial counsel
averred that the trial court had denied the defendant’s bid for judicial diversion at his
September 22, 2008 sentencing hearing and that, as a result of a miscommunication
between the defendant and trial counsel, counsel failed to timely file a notice of appeal.
Following the appointment of counsel and the amendment of the petition, the post-
conviction court entered a succinct order on January 23, 2017, granting the defendant
“leave to appeal the trial court’s denial of judicial diversion in this case.”

              In this appeal, the petitioner contends only that the trial court erred by
denying his bid for judicial diversion.

               In his brief before this court, the defendant makes several references to the
sentencing hearing in the instant case, complete with citations to the volume and page
number. The defendant, however, failed to include a copy of the sentencing hearing
transcript in the record before us. The only transcript that appears in the record is the
three-page transcript of the January 23, 2017 proceedings in which the post-conviction
court permitted the defendant to seek a delayed appeal of his denial of judicial diversion.
The appellant bears the burden of preparing an adequate record on appeal, see State v.
Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have prepared a
transcript of such part of the evidence or proceedings as is necessary to convey a fair,
accurate and complete account of what transpired with respect to those issues that are the
bases of appeal,” Tenn. R. App. P. 24(b). If the appellant fails to prepare an adequate
record, this court must presume the trial court’s ruling was correct. See State v.
Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993).
                                            -2-
              Because the defendant failed to include in the record his sentencing hearing
transcript, we are constrained to conclude that the trial court’s denial of judicial diversion
was correct. Accordingly, we affirm the judgment of the trial court.

                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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