Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 16, 2019
from the Circuit Court for Marshall County No. 15-CR-149-PC
M. Wyatt Burk, Judge.
Petitioner, Tommy Leroy Bryant, appeals from the Marshall
County Circuit Court's denial of his petition for
post-conviction relief from his three rape of a child
convictions, for which he is serving a twenty-five-year
sentence. The Petitioner contends that he received the
ineffective assistance of trial counsel. We affirm the
judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Leroy Bryant, Clifton, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Assistant Attorney General; Robert James
Carter, District Attorney General; and Weakley E. Barnard and
Drew Wright, Assistant District Attorneys General, for the
appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and Robert L. Holloway,
Jr., JJ., joined.
H. MONTGOMERY, JR., JUDGE
Petitioner was indicted on August 21, 2013, for three counts
of rape of a child. The Petitioner pleaded guilty as charged
and signed a waiver of his right to appeal to this court and
to the Tennessee Supreme Court on June 13, 2014. On June 30,
2014, the Petitioner filed a pro se notice of appeal,
alleging that he received the ineffective assistance of
counsel. This court issued an order requiring the Petitioner
to show cause as to why his appeal should not be dismissed
given his signed waiver. See State v. Tommy L.
Bryant, No. M2014-01254-CCA-R3-CD (Tenn. Crim. App. July
10, 2014) (order). The Petitioner failed to respond, and this
court dismissed the appeal on September 8, 2014. See
State v. Tommy L. Bryant, No. M2014-01254-CCA-R3-CD
(Tenn. Crim. App. Sept. 8, 2014) (order). The Petitioner
asserts in the present appeal that he filed a pro se petition
for post-conviction relief on September 12, 2014, that the
State filed a motion to dismiss the petition, that the
post-conviction court issued an order allowing the Petitioner
fifteen days to file a petition that complied with the
statute, and that the court dismissed the petition when the
Petitioner failed to respond within fifteen days. However,
the record does not contain this petition, the State's
response, or the post-conviction court's order.
Petitioner filed a second post-conviction petition on
November 19, 2015, and the State filed a motion to dismiss
the petition on the basis that it was barred by the statute
of limitations. The post-conviction court held an evidentiary
hearing on February 12, 2016. The Petitioner, represented by
appointed counsel, voluntarily dismissed this petition. The
record does not contain a transcript of the evidentiary
hearing. The court entered an order dismissing the petition
on April 15, 2016, and the Petitioner did not appeal.
October 29, 2018, the Petitioner filed a motion "to
reinstate" his second post-conviction petition, alleging
the ineffective assistance of trial counsel and involuntary
and unknowing guilty pleas. The post-conviction court
summarily dismissed the motion to reinstate, holding that, at
the post-conviction hearing on February 12, 2016, the
Petitioner was placed under oath and "it was
determined" by the court that the Petitioner's
decision to dismiss the second post-conviction petition
"was a free, voluntary, and informed" one.
Moreover, the court also held that the motion was time-barred
by the statute of limitations. The court entered an order
dismissing the petition on November 9, 2018. The Petitioner
filed a timely notice of appeal.
relief is available "when the conviction or sentence is
void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the
Constitution of the United States." T.C.A. §
40-30-103 (2012). A petitioner has the burden of proving his
factual allegations by clear and convincing evidence.
Id. § 40-30-110(f) (2012). A post-conviction
court's findings of fact are binding on appeal, and this
court must defer to them "unless the evidence in the
record preponderates against those findings." Henley
v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see
Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A
post-conviction court's application of law to its factual
findings is subject to a de novo standard of review without a
presumption of correctness. Fields, 40 S.W.3d at
Petitioner has the burden of preparing a fair, accurate, and
complete account of what transpired in the trial court
relative to the issues raised on appeal. See, e.g.,
State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).
This included the obligation to have a transcript of the
evidence or proceedings prepared. See T.R.A.P.
24(b). "When the record is incomplete, or does not
contain the proceedings relevant to an issue, this [c]ourt is
precluded from considering the issue." State v.
Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987).
Likewise, "this [c]ourt must conclusively presume that
the ruling of the trial court was correct in all
particulars." Id. (citing State v.
Jones, 623 S.W.2d 129, 131 (Tenn. Crim. App. 1981);
State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim.
App. 1983); State v. Taylor, 669 S.W.2d 694, 699
(Tenn. Crim. App. 1983)); see State v. Ivy, 868
S.W.2d 724, 728 (Tenn. Crim. App. 1993).
Petitioner contends that he received the ineffective
assistance of counsel. The Petitioner asserts that he had a
history of mental illness and that trial counsel failed to
have the Petitioner evaluated by a forensic psychologist to
ascertain his mental state at the time of the crimes. The
Petitioner also states that he had a learning disability and
that he lacked comprehension of the serious nature and
consequences of his guilty pleas. The Petitioner claims that
but for trial counsel's deficiencies in failing to
investigate his history of mental illness and lack of
comprehension of the pleas, he would not have pleaded guilty.
The Petitioner also contends that he lacked the mental
capacity to comprehend the nature of the post-conviction
proceedings when he withdrew his post-conviction petition at
the February 12, 2016 hearing. The State ...