State v. Allen

Full title: STATE OF TENNESSEE, Appellee, v. JAMES KELLY ALLEN, Appellant

Court: Court of Criminal Appeals of Tennessee. at Nashville

Date published: Oct 29, 1996

C.C.A. No. 01C01-9510-CC-00338 (Tenn. Crim. App. Oct. 29, 1996)

Opinion

C.C.A. No. 01C01-9510-CC-00338.

October 29, 1996

APPEAL FROM RUTHERFORD COUNTY, HON. J. S. DANIEL, JUDGE

For the Appellant:

James K. Allen

For the Appellee:

Charles W. Burson, Attorney General Reporter, Michael J. Fahey, II Assistant Attorney General, William C. Whitesell, Jr., District Attorney General, Paul A. Holcombe, III, Asst. Dist. Attorney General

AFFIRMED

SUMMERS, Judge

OPINION

The appellant, James Kelly Allen, was convicted by a jury of criminal trespass and assault. He was sentenced to 11 months and 29 days with all but 5 days of the sentence suspended. The appellant was ordered to pay fines and restitution totaling $3829.00. In his pro se appeal, the appellant contends that he received ineffective assistance of counsel. We affirm the trial court.

It was incumbent upon the appellant to prepare a record that included all materials relevant to his appeal. Tenn. R. App. P. 24(b). Without a complete record it is impossible for us to conduct an appellate review. The appellant must prove his allegations through a preserved record. The record does not contain trial transcripts or a Rule 24(c) statement of evidence.¹ We are, therefore, unable to clearly establish what occurred in the trial court and cannot review for plain error. Tenn. R. App. P. 52(b).²

1 The record reflects that the appellant did not have a court reporter present at his trial and no transcript was created. The appellant, however, correctly requested statements of evidence to be submitted to this Court pursuant to Tenn. R. App. P. 24(c). Inexplicably, the record does not contain this statement of evidence.

2 This Court is not making a determination of the appellant's ineffective assistance claim. Therefore, the issue should not be considered previously determined.

This Court does bend over backwards with pro se litigants to make sure they are treated fairly. However, we cannot bend the rules until they break. Otherwise, our system lacks consistency and honesty.

The appellant has failed to meet his burden. Accordingly, the judgment of the trial court is affirmed.

______________________________________ PAUL G. SUMMERS, Judge

CONCUR:

______________________________________ GARY R. WADE, Judge

______________________________________ L. T. LAFFERTY, Special Judge