Assigned on Briefs November 7, 2017
from the Criminal Court for Shelby County No. 14-05852 J.
Robert Carter, Jr., Judge
Petitioner, Warren Pratcher, appeals from the Shelby County
Criminal Court's summary dismissal of his petition for
post-conviction relief. The Petitioner contends that the
post-conviction court erred in dismissing his second petition
for post-conviction relief on the basis that his first
petition had been withdrawn with prejudice. Discerning no
error, we affirm the judgment of the post-conviction court.
Pratcher, Memphis, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Andrew
C. Coulam, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Carrie Shelton Bush, Assistant
District Attorney General, for the appellee, State of
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert L. Holloway, Jr.,
KELLY THOMAS, JR., JUDGE
November 6, 2015, the Petitioner pled guilty to one count of
conspiracy to possess 300 grams or more of cocaine with the
intent to sell and was sentenced to fifteen years as a
mitigated offender. On December 3, 2015, the Petitioner filed
a pro se petition for post-conviction relief. Counsel was
appointed for the Petitioner, and an amended petition was
on June 1, 2016, the Petitioner withdrew his petitions. The
post-conviction court dismissed the petitions, noting that it
did so "following [the] Petitioner's statements on
the record that he was choosing to withdraw his
petition." The post-conviction court's order
dismissing the petitions stated that it was "final"
and that the post-conviction court "had instructed [the]
Petitioner that he [could] not raise these issues again"
because "withdrawal of the petition[s] constitute[d] a
waiver of [the] issues."
Petitioner gave a second pro se petition for post-conviction
relief to the appropriate prison officials on November 3,
2016, and it was filed on November 16, 2016. On January 9,
2017, the post-conviction court entered a written order
summarily dismissing the petition. The order stated that the
Petitioner had the assistance of counsel when he withdrew his
first petition and that the Petitioner had "communicated
his desire to withdraw" his petition "in
person" to the post-conviction court. The order further
stated that the Petitioner had been "advised that his
withdrawal would constitute a waiver of the issues and [that]
he agreed that the dismissal of his petition would be
Petitioner now appeals to this court. The Petitioner contends
that the post-conviction court erred in concluding that his
first petition was dismissed with prejudice. The Petitioner
further contends that he was unaware when he withdrew the
first petition that it would be dismissed with prejudice. The
State responds that the post-conviction court did not err in
summarily dismissing the Petitioner's second petition.
Post-Conviction Procedure Act "contemplates the filing
of only one  petition for post-conviction relief, "
and post-conviction courts are to summarily dismiss "any
second or subsequent petition" "[i]f a prior
petition has been filed which was resolved on the merits by a
court of competent jurisdiction." Tenn. Code Ann. §
40-30-102(c). Despite this, a petitioner "may withdraw a
petition at any time prior to the hearing without prejudice
to any rights to refile." Tenn. Code Ann. §
the right to post-conviction review can be waived by a
petitioner. Serrano v. State, 133 S.W.3d 599, 604
(Tenn. 2004). A petitioner may waive his right to
post-conviction review by agreeing that the withdrawal of his
petition will be with prejudice. Chad Howard Brooks v.
State, No. E2008-00084-CCA-R3-PC, 2010 WL 960330, at
*3-4 (Tenn. Crim. App. Mar. 17, 2010). Based upon the record
before us, the Petitioner waived his right to post-conviction
review by agreeing to withdraw his original post-conviction
petition with prejudice.
extent that the Petitioner challenges the post-conviction
court's finding that he was aware that he was withdrawing
his original petition with prejudice, we note that the
appellate record contains only the post-conviction
court's orders and does not contain a transcript of the
hearing at which the Petitioner withdrew his original
petition. Failure to include the necessary transcripts for
our review forces this court to "conclusively presume
that the ruling of the [post-conviction] judge was
correct." State v. Draper, 800 S.W.2d 489, 493
(Tenn. Crim. App. 1990). As such, we must presume that the
post-conviction court correctly found that the Petitioner was
aware that he was withdrawing ...