State of Tennessee v. Johnny Leach

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 5, 1999
• Docket: 03C01-9810-CR-00373
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE October 5, 1999

AUGUST 1999 SESSION Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, * C.C.A. # 03C01-9810-CR-00373

Appellee, * CAMPBELL COUNTY

VS. * Honorable Lee Asbury, Judge

JOHNNY LEACH. * (Aggravated Sexual Battery--Two Counts) Appellant. *

FOR THE APPELLANT: FOR THE APPELLEE:

ANTHONY M. AVERY PAUL G. SUMMERS 607 Market Street, 8th Floor Attorney General & Reporter Knoxville, TN 37902 MICHAEL J. FAHEY, II Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243

WILLIAM PAUL PHILLIPS District Attorney General

MICHAEL OLIN RIPLEY Assistant District Attorney P. O. Box 323 Jonesboro, TN 37757

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIAMS, Judge OPINION

The defendant, Johnny Leach, appeals the order of the Criminal Court of

Campbell County denying his request to withdraw his guilty plea to two counts of

aggravated sexual battery. On July 2, 1998, the defendant entered his plea and

received two ten-year sentences to be served concurrently. Because the

defendant’s plea became final on the date of entry of the plea pursuant to the

plea agreement, we conclude that his motion to withdraw was untimely.

Accordingly, we AFFIRM the judgment of the trial court.

PROCEDURAL HISTORY

Pursuant to a plea agreement on July 2, 1998, the defendant entered a

guilty plea to two counts of aggravated sexual battery and received two ten-year

sentences to be served concurrently. In the defendant’s petition for acceptance

of this plea, the defendant specifically waived his right to appeal any non-

jurisdictional defects. The trial court sentenced the defendant on the date the

plea was entered.

On July 21, 1998, the defendant filed a motion to withdraw his guilty plea,

pursuant to Tenn. R. Crim. P. 32(f), alleging that withdrawal was necessary to

avoid “manifest injustice.” On August 21, 1998, the trial court conducted an

evidentiary hearing and, finding no basis for “manifest injustice,” denied

defendant’s motion by written order on September 8, 1998. This appeal

followed.

Analysis

Untimely Filing of Motion to Withdraw Guilty Plea

The withdrawal of a guilty plea is specifically controlled by Tenn. R. Crim.

P. 32(f), which provides:

-2- Withdrawal of Plea of Guilty.--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.

Thus, while the Tennessee rule provides for both withdrawal prior to

sentencing and withdrawal after sentencing but before final judgment, it does not

authorize withdrawal after final judgment. See State v. Hall, 983 S.W. 2d 710,

711 (Tenn. Crim. App. 1998).

In this case, when the defendant pled guilty and waived his right to

appeal, the judgment became final that same day when his sentence was

imposed. See id. at 711; Passarella v. State, 891 S.W. 2d 619, 624 (Tenn.

Crim. App. 1994); Warren v. State, 833 S.W. 2d 101, 102 (Tenn. Crim. App.

1992); see also Lakeith O. Lightfoot v. State, No. 02C01-9703-CR-00129 (Tenn.

Crim. App. filed February 18, 1998, at Jackson). Further, we note that generally

no right of appeal exists from a guilty plea entered pursuant to a plea agreement,

see Tenn. R. Crim. P. 37(b), and that the exceptions set forth in Tenn. R. Crim.

P. 37(b)(2)(I)-(iv) are inapplicable in this case. Therefore, the plea of guilty,

waiver of appeal and sentence, all entered July 2, 1998, made judgment final

that day. See Hall, 983 S.W. 2d at 711. For this reason, we conclude that the

defendant’s motion to withdraw his guilty plea was untimely.

Manifest Injustice

Reviewing the merits of the defendant’s motion to withdraw, we likewise

affirm the trial court’s denial. The decision to grant a motion to withdraw rests in

the sound discretion of the trial court and is therefore not subject to reversal

absent a clear abuse of discretion. See State v. Drake, 720 S.W.2d 798, 799

(Tenn. Crim. App. 1986). Applying this standard, we find that the defendant has

failed to met his burden of establishing that the plea of guilty should be

-3- withdrawn to prevent “manifest injustice,” see State v. Turner, 919 S.W.2d 346,

355 (Tenn. Crim. App. 1995), and that the trial court did not abuse its discretion.

The trial court held an evidentiary hearing on August 21, 1988, in

consideration of the defendant’s motion and made the following findings:

(1) The defendant has failed to meet the required burden of proof, failing to establish that the guilty plea should be withdrawn to prevent manifest injustice. (2) The defendant failed to establish that his “best interest” plea of guilty was entered due to coercion, fraud, duress, or mistake, fear, gross misrepresentation by the State, any withholding of material exculpatory evidence by the State which influenced the entry of the plea. (3) The defendant’s original guilty plea was voluntary, understandingly and knowingly entered, with the assistance of competent counsel. (4) The defendant utterly failed to establish any proof whatsoever that the State of Tennessee misrepresented any matter to the defendant, or in any way withheld material exculpatory evidence from the defendant. (5) The defendant’s relevant testimony in open court on August 21, 1988 does not differ in any material respect from his testimony in the guilty plea hearing on July 2, 1998.

Having reviewed the record, this Court finds no reason to disturb the

findings of the trial court. We agree with the trial court’s denial.

CONCLUSION

Accordingly, we affirm the decision of the trial court.

______________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

_____________________________ JOSEPH M. TIPTON, Judge

-4- _____________________________ ALAN E. GLENN, Judge

-5-