Opinion
No. E2007-01649-CCA-R3-CD.
September 24, 2008.
Filed on May 1, 2009.
Appeal from the Criminal Court for Campbell County; No. 13222; Jon Kerry Blackwood, Judge.
Judgment of the Criminal Court is Affirmed.
Michael G. Hatmaker, (trial) Jacksboro, Tennessee and Bruce E. Poston, (on appeal) Knoxville, Tennessee, for the appellant, Kenneth Bartley.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William Paul Phillips, District Attorney General and Mike Rippley, Assistant District Attorney General, for the appellee, State of Tennessee.
Jerry L. Smith, J., delivered the opinion of the court, in which Joseph M. Tipton, P.J. and David H. Welles, J., joined.
OPINION
On April 10, 2007, Appellant, Kenneth S. Bartley, pled guilty to second degree murder and two counts of attempted second degree murder and received an effective sentence of forty-five years. On May 8, 2007, Appellant filed a motion to withdraw his guilty plea. He argued that his plea was not entered knowingly and voluntarily and that there was no factual basis for his plea. After conducting a hearing, the trial court denied Appellant's motion. Appellant appealed. After a thorough review of the record, we conclude that there was no abuse of discretion on the part of the trial court and, therefore, affirm the decision of the trial court.
On November 8, 2005, the fourteen-year-old Appellant brought a gun into Campbell County High School where he shot Ken Bruce, Gary Seale, and Jimmy Charles Pierce. Ken Bruce died as a result of the shooting. In January 2007, the Campbell County Grand Jury indicted Appellant for first degree premeditated murder, first degree felony murder, two counts of attempted first degree murder, carrying a weapon on school property, possession of a Schedule IV controlled substance with intent to sell, and possession of a Schedule IV controlled substance with an intent to deliver.
Before trial, Appellant's trial counsel presented Appellant's parents with a plea offer of one count of voluntary manslaughter and two counts of aggravated assault, with respective consecutive sentences of five years, ten years, and ten years, and parole consideration after eight years. Appellant's parents approved the plea offer for presentation to Appellant. However, the State withdrew the plea offer because the victim's widow objected to the offer.
On March 25, 2007, trial counsel approached Appellant with another plea offer from the State. Appellant and his parents were together when trial counsel presented an offer of twenty-five years for second degree murder to be served at one hundred percent and ten years on each of two counts of aggravated assault convictions to be served at thirty percent, all to be served consecutively for a total sentence of forty-five years. Appellant's parents told Appellant he should not accept the offer, and Appellant rejected it.
On April 10, 2007, Appellant's trial began. During the lunch break in the middle of jury selection, plea negotiations renewed. Appellant accepted a deal to plead guilty to one count of second degree murder with a sentence of twenty-five years to be served at one hundred percent and two counts of attempted second degree murder with two ten-year sentences to be served at twenty percent. All sentences were to be served consecutively for an effective sentence of forty-five years. Trial counsel did not inform Appellant's parents that Appellant accepted a plea deal until after Appellant had agreed to the deal. The trial court accepted Appellant's plea and dismissed the remaining charges. The judgments in accordance with the plea agreement were entered on April 23, 2007.
On May 8, 2007, Appellant filed a motion to withdraw his guilty plea. The motion stated two bases:
1. The plea was entered without [Appellant's] allocution, in whole or in part. The plea was entered by [Appellant] simply saying he was guilty of the offense. The District Attorney, the attorney for [Appellant], nor [Appellant] recited any facts which would justify a finding of guilt.
2. The plea was entered without consent of [Appellant's] parents. [Appellant] is 15 years old. [Appellant's] mother was consulted, and does not agree with the plea.
After a change of counsel, Appellant filed an amended motion to withdraw his guilty plea on June 26, 2007. In the amended motion, Appellant also argued that his plea was entered unknowingly because he was not informed of the possible lesser included offenses and sentences and he was fifteen years old at the time of the plea and deprived of the opportunity to meet and consult with his parents regarding the plea. He also argued that his plea was entered involuntarily because Appellant was pressured by prior counsel, was not given the opportunity to speak with anyone else, particularly his parents, and was only fifteen years old and "compelled to follow his counsel's recommendation that he accept the guilty plea and sentences. . . ."
On July 2, 2007, the trial court held an evidentiary hearing on Appellant's motion to withdraw his guilty plea. At the hearing, Appellant's mother testified that on the day the plea was entered, she did not know that plea negotiations were occurring. She stated that Appellant and his attorney went into a private room, but neither she nor Appellant's father went with them. Subsequently, the judge and attorneys and victims and their families went into the same room. When they exited Appellant's attorney told her that Appellant had accepted a deal. She stated at the hearing that she did not say anything about the plea at that point, because she did not know that she could. On cross-examination, she admitted that she went into the conference room with Appellant and his attorneys after the deal had been reached.
Appellant testified that the day of trial, he was very nervous and scared and his attorney seemed nervous and scared. His attorney told him after lunch that the State was offering a plea deal. Appellant testified decided to take the deal "[b]ecause [he] was scared because [he] was looking at two life sentences. . . . They were pushing for first degree, and I was just scared." Appellant also testified that after he signed the guilty plea agreement, but before he entered his plea in court, he met with his mother. Appellant testified that at the time he entered his plea he did not understand that the offenses which triggered felony murder did not include all felonies. The following exchange also occurred:
Q. And you heard Mr Seale and Mr. Pierce [the attempted murder victims] say that you pointed the gun at Mr. Seale and said, I never, — chambered the — chambered the bullets in the gun, pointed it and said, "I never liked you anyway." That's what they said at your [juvenile] transfer hearing.
A. Yes, sir.
Q. All right. And you heard me argue to the Juvenile Judge who transferred you that there was probable cause of felony murder?
A. Yes, sir.
Q. Because you tried to shoot Mr. Seale who you said you didn't like anyway and in the process, you killed Mr. Bruce. You heard that argument, did you not?
A. Yes, sir, I heard it.
Appellant also testified at the hearing that at the time he entered his plea he understood that under the plea agreement he would meet the parole board in around half the number of years that he would if he had been convicted of first degree murder.
Appellant's trial counsel testified at the withdrawal hearing that he had been practicing law for thirty years and seventy percent of his practice was criminal defense. He stated that the morning the trial began, he and the State renewed plea negotiations. The State offered the plea. Trial counsel told Appellant, and Appellant responded to take it. Trial counsel testified that Appellant's mother met with them to discuss the plea agreement. He said, "She asked if that's what he wanted to do. He said that he did. She said that it was best, and he said that it was best." Trial counsel also stated that he went over the waiver of constitutional rights with Appellant prior to his entry of the guilty plea. Trial counsel testified that the State presented its theory concerning felony murder at both the juvenile transfer hearing and the jury voir dire. Trial counsel stated that the State's theory was that the felony murder occurred during the attempted murder of Mr. Seale and was based upon Appellant's statement at the time of the shooting that he never liked Mr. Seale. In addition, trial counsel stated that he gave Appellant a copy of the indictment that set out the same theory of felony murder.
At the conclusion of the hearing, the trial court denied Appellant's motion. Appellant filed a timely notice of appeal.
ANALYSIS
Appellant argues on appeal that the trial court abused its discretion by denying his motion to withdraw his guilty plea. He argues that his plea was defective because there were no facts presented in the trial court to support the guilty plea; the plea was not knowingly and voluntarily entered; and the only way to cure the manifest injustice of the guilty plea is to allow its withdrawal. The State argues that the trial court did not abuse its discretion by denying Appellant's request to withdraw his guilty plea.
It has long been established that a defendant is not entitled to withdraw a plea of guilty as a matter of right. State v. Crowe, 168 S.W.3d 731,740 (Tenn. 2005); State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003); State v. Turner, 919 S.W.2d 346, 355 (Tenn.Crim.App. 1995) (citing State v. Anderson, 645 S.W.2d 251, 253-54 (Tenn.Crim.App. 1982)). It is in the sound discretion of the trial court, regardless of when the motion is filed, whether to allow a defendant to withdraw a guilty plea. Crowe, 168 S.W.3d at 740; Mellon, 118 S.W.3d at 345 (citing Henning v. State, 201 S.W.2d 669, 671 (Tenn. 1947)). A trial court should exercise this discretion cautiously because the outcome of the decision must result in a defendant having a fair and impartial trial. See Id. 168 S.W.3d at 740 If a constitutional violation is shown, the trial court's discretion is strictly curtailed. Id. In the absence of a clear abuse of discretion by the trial court, an appellate court will not interfere with the trial court's decision. Mellon, 118 S.W.3d at 345 (citing Henning, 201 S.W.2d at 671). "An abuse of discretion exists if the record lacks substantial evidence to support the trial court's conclusion." Crowe, 168 S.W.3d at 740 (citing Goosby v. State, 917 S.W.2d 700, 705 (Tenn.Crim.App. 1995)).
Rule 32(f) of the Tennessee Rules of Criminal Procedure 32(f) provides the procedures for evaluating a defendant's motion to withdraw a guilty plea. Rule 32(f) states:
A motion to withdraw a plea of guilty may be made upon a showing by the defendant of any fair and just reason only before sentence is imposed; but to correct manifest injustice, the court after sentence, but before the judgment becomes final, may set aside the judgment of conviction and permit the defendant to withdraw the plea.
Tenn. R. Crim. P. 32(f). An appeal of right is available from a denial of a Rule 32(f) motion. See State v. Peele, 58 S.W.3d 701, 703 (Tenn. 2000).
In the instant case, Appellant did not file his motion to withdraw his guilty plea until after he had been sentenced. Therefore, Appellant was entitled to a withdrawal of his guilty plea only to correct "manifest injustice." Crowe, 168 S.W.3d at 741; State v. Virgil, 256 S.W.3d 235, 240 (Tenn.Crim.App. 2008). In addition, it is Appellant's burden to show that he should be allowed to withdraw the plea to prevent "manifest injustice." Virgil, 256 S.W.3d at 240.
What constitutes "manifest injustice" for purposes of supporting the withdrawal of a guilty plea has been defined on a case-by-case basis. Crowe, 168 S.W.3d at 741. Our supreme court has set out the following circumstances which warrant the withdrawal of a guilty plea:
(1) [T]he plea "was entered through a misunderstanding as to its effect, or through fear and fraud, or where it was not made voluntarily"; (2) the prosecution failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and this failure to disclose influenced the entry of the plea; (3) the plea was not knowingly, voluntarily, and understandingly entered; and (4) the defendant was denied the effective assistance of counsel in connection with the entry of the plea. Although manifest injustice may exist in the absence of a constitutional violation, we agree with the Court of Criminal Appeals that "[w]here there is a denial of due process, there is a `manifest injustice' as a matter of law." Davis, 823 S.W.2d at 220 (quoting United States v. Crusco, 536 F.2d 21, 26 (3d Cir. 1976)). In contrast, a defendant's change of heart about pleading guilty or a defendant's dissatisfaction with the punishment ultimately imposed does not constitute manifest injustice warranting withdrawal. [ State v.] Turner, 919 S.W.2d [346,] 355 [ (Tenn.Crim.App. 1995)] (citing Capri Adult Cinema [v. State], 537 S.W.2d [896,] 898 [Tenn. 19076]); Ray v. State, 224 Tenn. 164, 451 S.W.2d 854, 856 (1970); Henning, 201 S.W.2d at 671.
Id. at 742-43 (footnotes omitted).
Knowing and Voluntary Guilty Plea
Appellant argues that his plea was involuntary because he was fifteen at the time he entered his plea and he was denied a meeting with his parents regarding the offer prior to his acceptance of the offer.
With regard to the voluntariness of the plea, the trial court stated the following:
The Court further finds also with regard to the next issue that the Court has to address, and that issue is that manifest injustice that would result if this plea was not voluntary. The Court finds that the proof shows that during the course of this trial that [Appellant] was attentive, was taking part and that — in this process. I'm just presiding over this trial, and I'm just like [Counsel on Motion to Withdraw] and General Phillips and just like [Appellant]. Every trial makes me nervous, and I'm just presiding over it. But nevertheless, despite the mental condition, the nervousness, the fright, the Court found that [Appellant] was communicating with counsel, he was attentive, there were numerous consultations I could — that the Clerk viewed, the Court viewed, between the family and the defendant during the jury selection process.
The Court, in preparation for the trial of this case, reviewed many of the transcripts that had already been conducted with regard to the psychological reports, the transfer hearings. It was incumbent upon the Court to do this since I was appointed by designation after the case had already been initiate — initially assigned to another Judge. And [Appellant] is an intelligent young man despite his age, suffers from no mental illness or mental defect that would hamper his ability to understand the proceedings. So the Court finds that he had the mental capacity to understand the process.
The issue that concerns the Court more than any other issue is, of course, the age and the relative — or the inexperience that the defendant, [Appellant], had in this case. But, in reviewing whether or not and in determining whether or not this plea was voluntary, the age does bother the Court. His experience however in the judicial process, while meager for a fourteen (14) year old, we must view this at that point that the plea of guilty was entered. By the time the plea of guilty was entered, this defendant had already been subjected or been participant — or been participating in lengthy judicial proceedings involving a judicial transfer hearing. So it was not like this — [Appellant] walked into this trial without having been exposed to the judicial system.
The Court finds that — in determining whether or not this was a voluntary plea, the Court finds that he was represented by competent counsel. There's no record — no — no — nothing in this record to indicate that [trial counsel] with thirty (30) years' experience in criminal, of which seventy percent (70%) of that process is criminal, is not competent counsel.
The Court finds that the defendant entered his plea voluntarily, knowing the consequences of his plea. And I think the most cogent point in this record to indicate that he knew what he was doing in his statement, "I knew it was one-half of twenty-five (25) to twenty-nine (29) years."
Now, we have much argument about he didn't understand consecutive sentencing, he didn't understand what — that the felony for which the felony murder was predicated was the attempted murder. Well, it's uncontradicted in this record that the negotiations in this case were to attempt to get him half of what a life sentence would be. And on cross-examination, he said, I knew it was one-half, twenty (20) to twenty-five (25) years — twenty-nine (29) years, and he would be eligible for parole. I think that's clear that he understood the nature of this plea, that what he was going to be doing was that he was going to be getting one-half of not two life sentences or fifty-one (51) plus fifty-six (56), he was going to be getting, and what he wanted, was one-half of a life sentence which was twenty-five (25) to twenty-nine (29) years.
When evaluating the knowing and voluntary nature of a guilty plea, the United States Supreme Court has held that "[t]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). The court reviewing the voluntariness of a guilty plea must look to the totality of the circumstances. See State v. Turner, 919 S.W.2d 346, 353 (Tenn.Crim.App. 1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn.Crim.App. 1990). This Court has also stated that "`a reviewing court may look to any relevant evidence in the record of the proceedings-including post-conviction proceedings-to determine the voluntariness of a guilty plea.'" Turner, 919 S.W.2d at 353 (quoting Cochran v. Norvell, 446 F.2d 61, 63 (6th Cir. 1971)). When looking at the relevant evidence, a reviewing court specifically must consider the following:
[T]he relative intelligence of the defendant; the degree of his familiarity with criminal proceedings; whether he was represented by competent counsel and had the opportunity to confer with counsel about the options available to him; the extent of advice from counsel and the court concerning the charges against him; and the reasons for his decision to plead guilty, including a desire to avoid a greater penalty that might result from a jury trial.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). When reviewing the entire record in the case at hand, we conclude that the record substantially supports the findings of the trial court. As the trial court stated, there was evidence presented at the juvenile transfer hearing that Appellant was of average intelligence. By the time Appellant entered his guilty plea he had been through a juvenile transfer hearing and had been through half a day of jury voir dire. There was no evidence that his counsel was incompetent. All evidence at the hearing supports the conclusion that counsel had many years' experience in the criminal courts. The trial court and the clerk of the court personally observed many consultations between Appellant and counsel. Most importantly, Appellant understood that by pleading guilty, he was receiving a sentence that was half the length of a life sentence which would have been his sentence had he been convicted of first degree murder.
Based upon the totality of the circumstances, we conclude that Appellant entered his guilty plea knowingly and voluntarily. We find no abuse of discretion on the part of the trial court.
Factual Basis of the Guilty Plea
Appellant also argues that there was no factual basis for the plea because there was no recitation of the facts by either side at the guilty plea hearing. The State does not disagree that there was no recitation of a factual basis at the guilty plea hearing. The State does argue however that the factual basis for a guilty plea may be shown by numerous sources in the record pursuant to State v. Lord, 894 S.W.2d 312, 316 (Tenn.Crim.App. 1994).
At the guilty plea hearing, Appellant told the trial court that he understood he was stipulating that there would be a factual basis to support his convictions. Subsequently, at the hearing on Appellant's motion to withdraw his guilty plea, the trial court made the following findings on the record with regard to the factual basis of the guilty plea:
With regard to the issue that's raised regarding the factual basis for the entry of this plea, I think you have to look to the totality of the circumstances in determining whether or not there was a factual basis for the entry of this plea. And I think the record is replete during the jury selection process of the respective positions of the State and the defendant in this case. There are numerous references made by the State during the voir dire that, for example, on page 135, "felony murder. All right. Well, in this case, I want you to assume for a minute that a different felony was committed. Yes. That Ken Bruce was killed in the perpetration of a different felony, and that felony was an attempt to kill Mr. Seale." In many references throughout the transcript, you will find how the State explained their theory of the case, that this was — the felony murder was predicated upon the attempted murder of the two victim — two other victims in this case.
[Trial counsel], in his statements to the jury, "There is no doubt about it. He shot and killed these people. He shot and killed Mr. Bruce, and he wounded these other people."
In looking at the totality of the circumstances throughout the three hours of the jury selection process, the theories and the factual bases for the convictions were outlined by the respective sides, and I think you have to look that there — although there may not at the entry of the plea been this recitation of what the State would have proven or what the facts would have been had this been a submission of a guilty plea, but throughout the jury selection process, these facts were elucidated. . . . [T]he Court finds [that Appellant] was aware of what the factual issues would have been and that there would have been a factual basis for this conviction. So the Court finds that that argument is not well taken and should be denied.
Rule 11(b)(3) of the Tennessee Rules of Criminal Procedure states, "Before entering a judgment on a guilty plea, the court shall determine that there is a factual basis for the plea." The purpose of determining a factual basis for a guilty plea is "to ensure that the defendant's plea is made with an understanding that the admitted conduct actually constitutes the offense that is charged." State v. Sexton, 151 S.W.3d 525, 532 (Tenn.Crim.App. 2004); see also Lord, 894 S.W.2d at 316. This Court has stated that the factual basis for a guilty plea "may be shown by numerous sources in the record, whether it be a prosecutor's statement of the evidence, live testimony or otherwise. Lord, 894 S.W.2d at 316 (citing Chamberlain v. State, 815 S.W.2d 534, 540 (Tenn.Crim.App. 1990); United States v. Goldberg, 862 F.2d 101, 105 (6th Cir. 1988); United States v. Darling, 766 F.2d 1095, 1100 (7th Cir.), cert. denied, 474 U.S. 1024, 1106 S.Ct. 579 (1985)). This Court has also stated, "the factual basis inquiry focuses upon what the defendant understands about the applicable law in relation to the facts he is admitting." Lord, 894 S.W.2d at 316.
We conclude that the trial court's factual finding that Appellant understood the factual basis of his plea is supported by the record. The jury voir dire began in the morning. During the voir dire, attorneys from both sides repeatedly questioned the jurors regarding the facts of the case. As stated by the trial court in its order denying the mtoion to withdraw, the State repeatedly explained its theory of the case during its individual questioning of the jurors. In addition, Appellant's attorney made similar statements in his questioning of the jurors. Appellant was present throughout the voir dire. During the lunch break, the attorneys approached the trial court with a negotiated plea agreement. The trial court held the guilty plea hearing and accepted Appellant's plea within a short period of time the same day. We find no abuse of discretion on the part of the trial court in denying the withdrawal of the guilty plea based upon this issue because there is substantial support in the record for the trial court's finding. Therefore, we will not disturb the trial court's decision with regard to the factual basis of the guilty pleas.
CONCLUSION
For the foregoing reasons, we affirm the decision of the trial court.