State v. Kawaski Taylor

Court of Criminal Appeals of Tennessee

State v. Kawaski Taylor

Court of Criminal Appeals of Tennessee·Decided March 10, 2000·No. W1998-00656-CCA-R3-CD·Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

JUNE SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. W1998-00656-CCA-R3-CD )

Appellee, )

) GIBSON COUNTY FILED VS. )

) March 10, 2000 KAWASKI DEVEL TAYLOR, ) HON. STEVE STAFFORD, ) JUDGE Cecil Crowson, Jr.

Appellate Court Clerk

Appellant. )

) (Withdrawal of Guilty Plea)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF GIBSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

HAROLD R. GUNN PAUL G. SUMMERS P.O. Box 444 Attorney General and Reporter Humboldt, TN 38343 PATRICIA C. KUSSMANN

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243

CLAYBURN PEEPLES

District Attorney General 110 College Street, Suite 200 Trenton, TN 38382

OPINION FILED ________________ APPEAL DISMISSED IN PART; JUDGMENT OF TRIAL COURT AFFIRMED DAVID H. WELLES, JUDGE

OPINION

The Defendant, Kawaski Devel Taylor, seeks to appeal as of right from an order of the trial court denying a motion to set aside his guilty plea. Because we conclude that this issue is not prop erly before us, we dismiss that part of the appeal. W e affirm the De fendant's sen tence for seco nd degree murder.

The Defendant was indicted for the offenses of first degree murder and espe cially aggrava ted robb ery. On A ugust 3 , 1998, pursuant to a plea agreem ent, the Defendant pleaded guilty to the offense of second degree murde r. The plea agreement provided that the Defendant would be sentenced as a Range I standard offender, with the length of the sentence to be determined by the trial court. The trial judge accepted the Defendant's guilty plea at that time.

A sentencing hearing was conducted on September 17, 1998. At the conclusion of the hearing, the trial judge sentenced the Defendant to twenty-one years in the Department of Correction. Immediately after being sentenced, the Defendant advise d the tria l court th at he “d idn't want the guilty plea.” The Defendant's attorney then asked the trial judge to appoint the Defendant a new attorney “for the appeal” because he — the Defendant's attorney at the guilty plea proceeding and at sentencing — would need to be a witness concerning whether the Defe ndan t's guilty plea was knowingly and voluntarily entered. After some discussion conc erning this matter, the trial judge advised counsel to file whatever motions or other pleadings he deemed appropriate in the case. The judgment of conviction and sentencing order were entered and filed September 17, 1998.

The following day, September 18, the Defendant, acting through the same attorney who had represented him at his gu ilty plea proceeding and at sentencing, filed a motion to set aside his guilty plea and a motion to appoint different coun sel. The pleading also stated that it was to serve as a notice of an appeal of the guilty plea, “if the trial judge refuses to set a hearing on my motion to set aside a guilty plea.” The pleading prim arily alleg ed tha t the D efend ant's attorney had advised him that his sentence would be fifteen years because his attorney had b een “le d to be lieve” by the dis trict attorney general and the trial judge that the sente nce w ould be fifteen years if there were no enhancing factors. The document also alleged that Defendant's counsel would be a witness at a hearing to show that the D efenda nt did not k nowing ly and volu ntarily plead guilty to second degree murder. In addition, the document stated that the Defendant desir ed to appeal from his guilty plea because it was not knowingly and voluntarily made.

No further action was taken in this matter by the trial court until October 29, 1998, at which time the court heard statements and arguments of counsel concerning the motion to withdraw the guilty plea and the motion to appoint new coun sel. After considera ble discussion, and after reviewing the transcript from the guilty plea and sentencing hearing, the motions were denied by the trial cour t. The order denying the motion to set aside the guilty plea and denying the motion to appoint different counsel is dated November 5, 1998 and was filed November 10, 1998. On November 20, 1998, the Defendant filed a notice of appeal “from the judgment and verdict entered in this action on the 29th day of O ctober, 1998.”

W ell established procedural rules prohibit us from reaching the merits of the issues th e Defe ndant a ttempts to prese nt. W e note that the availability of an appeal as of right by a defendant in a criminal case is governed by Rule 3(b) of the Tennessee Rules of Appellate Procedure. An appeal as o f right by a defen dant in a criminal action from a judgment of conviction based on a plea of guilty lies only (1) if ther e was a plea agree men t which explicitly reserved the right to appeal a ce rtified question of law disp ositive of the action, (2) if the Defendant seeks review of the sentence, and there was no plea agreement concerning the sentence, or (3) if the issues presented for review were not waived as a matter of law by the entry of the plea and if such issues are apparent from the record of the procee dings alre ady had . See Tenn. R. App. P. 3(b). In this case, the Defendant was convicted on a plea of guilty and is attempting to appeal as of right from the trial court's de nial of his m otion to withdra w his guilty plea and/or the trial court's de nial of his m otion to ap point new couns el. An appeal as of right from the trial court's order denying these motions is not contemp lated b y Rule 3(b) of the Tennessee Rules of Appellate Procedure.

A motion to withdraw a plea of g uilty in the tria l court is gover ned b y Rule 32(f) of the Tennessee Rules of Criminal Procedure. This rule provides as follows:

Withdrawal of Plea of Guilty. — A motion to withdraw a plea of guilty may be made upon a show ing by th e defe ndan t of any fa ir 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 convic tion an d perm it the defendant to withdraw the plea.

Tenn. R . Crim. P. 32(f) (em phasis add ed).

It is apparent from a reading of this rule that after a judgment of conviction becomes final, the trial judge is not authorized to set aside the judgment and perm it the Defendant to withdraw the plea of guilty upon which the judgment was based. The r ule sp ecifica lly provid es tha t it is only before the judgment becomes final that a trial cou rt may se t aside the judgm ent and permit the Defen dant to withdraw the plea. After a judg men t beco mes final, the trial cou rt gene rally is without jurisdiction to amen d it. State v. Moore , 814 S.W.2d 381, 382 (Tenn. Crim. App . 1991).

W e hold th at the filin g of a m otion to withdra w a ple a of guilty does not suspend the time w ithin which a judgm ent of conviction based upon th e guilty plea becomes final. If the trial court has not ruled upon the motion to withdraw the guilty plea prior to the time the judgment becomes final, the motion becomes moot because the trial court no longer has authority to grant the motion. When such a motion is filed after sentencing, the trial judge is under n o obligatio n to rule on the motion because the judgment will become final even in the absence of a ruling on the motion.

In this case the judgment of conviction was entered on September 17, 1998. As a ge neral rule, th e judgment of a trial court becom es final thirty days after its entry u nless a time ly notice of app eal or a spec ified po st-trial m otion is filed. State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996); Tenn. R. App. P. 4(a), (c). Once a notice of appeal has been filed, the jurisdic tion of th is Court attaches, and the trial court lose s jurisdiction . Pendergrass, 937 S.W.2d at 837. Once the trial court loses jurisdiction, it generally has no power o r authority

to further am end or s et aside its ju dgme nt. Id. A judgment beyond the jurisdiction o f the court is v oid. Id.

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

JUNE SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. W1998-00656-CCA-R3-CD )

Appellee, )

) GIBSON COUNTY FILED VS. )

) March 10, 2000 KAWASKI DEVEL TAYLOR, ) HON. STEVE STAFFORD, ) JUDGE Cecil Crowson, Jr.

Appellate Court Clerk

Appellant. )

) (Withdrawal of Guilty Plea)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF GIBSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

HAROLD R. GUNN PAUL G. SUMMERS P.O. Box 444 Attorney General and Reporter Humboldt, TN 38343 PATRICIA C. KUSSMANN

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243

CLAYBURN PEEPLES

District Attorney General 110 College Street, Suite 200 Trenton, TN 38382

OPINION FILED ________________ APPEAL DISMISSED IN PART; JUDGMENT OF TRIAL COURT AFFIRMED DAVID H. WELLES, JUDGE

OPINION

The Defendant, Kawaski Devel Taylor, seeks to appeal as of right from an order of the trial court denying a motion to set aside his guilty plea. Because we conclude that this issue is not prop erly before us, we dismiss that part of the appeal. W e affirm the De fendant's sen tence for seco nd degree murder.

The Defendant was indicted for the offenses of first degree murder and espe cially aggrava ted robb ery. On A ugust 3 , 1998, pursuant to a plea agreem ent, the Defendant pleaded guilty to the offense of second degree murde r. The plea agreement provided that the Defendant would be sentenced as a Range I standard offender, with the length of the sentence to be determined by the trial court. The trial judge accepted the Defendant's guilty plea at that time.

A sentencing hearing was conducted on September 17, 1998. At the conclusion of the hearing, the trial judge sentenced the Defendant to twenty-one years in the Department of Correction. Immediately after being sentenced, the Defendant advise d the tria l court th at he “d idn't want the guilty plea.” The Defendant's attorney then asked the trial judge to appoint the Defendant a new attorney “for the appeal” because he — the Defendant's attorney at the guilty plea proceeding and at sentencing — would need to be a witness concerning whether the Defe ndan t's guilty plea was knowingly and voluntarily entered. After some discussion conc erning this matter, the trial judge advised counsel to file whatever motions or other pleadings he deemed appropriate in the case. The judgment of conviction and sentencing order were entered and filed September 17, 1998.

The following day, September 18, the Defendant, acting through the same attorney who had represented him at his gu ilty plea proceeding and at sentencing, filed a motion to set aside his guilty plea and a motion to appoint different coun sel. The pleading also stated that it was to serve as a notice of an appeal of the guilty plea, “if the trial judge refuses to set a hearing on my motion to set aside a guilty plea.” The pleading prim arily alleg ed tha t the D efend ant's attorney had advised him that his sentence would be fifteen years because his attorney had b een “le d to be lieve” by the dis trict attorney general and the trial judge that the sente nce w ould be fifteen years if there were no enhancing factors. The document also alleged that Defendant's counsel would be a witness at a hearing to show that the D efenda nt did not k nowing ly and volu ntarily plead guilty to second degree murder. In addition, the document stated that the Defendant desir ed to appeal from his guilty plea because it was not knowingly and voluntarily made.

No further action was taken in this matter by the trial court until October 29, 1998, at which time the court heard statements and arguments of counsel concerning the motion to withdraw the guilty plea and the motion to appoint new coun sel. After considera ble discussion, and after reviewing the transcript from the guilty plea and sentencing hearing, the motions were denied by the trial cour t. The order denying the motion to set aside the guilty plea and denying the motion to appoint different counsel is dated November 5, 1998 and was filed November 10, 1998. On November 20, 1998, the Defendant filed a notice of appeal “from the judgment and verdict entered in this action on the 29th day of O ctober, 1998.”

W ell established procedural rules prohibit us from reaching the merits of the issues th e Defe ndant a ttempts to prese nt. W e note that the availability of an appeal as of right by a defendant in a criminal case is governed by Rule 3(b) of the Tennessee Rules of Appellate Procedure. An appeal as o f right by a defen dant in a criminal action from a judgment of conviction based on a plea of guilty lies only (1) if ther e was a plea agree men t which explicitly reserved the right to appeal a ce rtified question of law disp ositive of the action, (2) if the Defendant seeks review of the sentence, and there was no plea agreement concerning the sentence, or (3) if the issues presented for review were not waived as a matter of law by the entry of the plea and if such issues are apparent from the record of the procee dings alre ady had . See Tenn. R. App. P. 3(b). In this case, the Defendant was convicted on a plea of guilty and is attempting to appeal as of right from the trial court's de nial of his m otion to withdra w his guilty plea and/or the trial court's de nial of his m otion to ap point new couns el. An appeal as of right from the trial court's order denying these motions is not contemp lated b y Rule 3(b) of the Tennessee Rules of Appellate Procedure.

A motion to withdraw a plea of g uilty in the tria l court is gover ned b y Rule 32(f) of the Tennessee Rules of Criminal Procedure. This rule provides as follows:

Withdrawal of Plea of Guilty. — A motion to withdraw a plea of guilty may be made upon a show ing by th e defe ndan t of any fa ir 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 convic tion an d perm it the defendant to withdraw the plea.

Tenn. R . Crim. P. 32(f) (em phasis add ed).

It is apparent from a reading of this rule that after a judgment of conviction becomes final, the trial judge is not authorized to set aside the judgment and perm it the Defendant to withdraw the plea of guilty upon which the judgment was based. The r ule sp ecifica lly provid es tha t it is only before the judgment becomes final that a trial cou rt may se t aside the judgm ent and permit the Defen dant to withdraw the plea. After a judg men t beco mes final, the trial cou rt gene rally is without jurisdiction to amen d it. State v. Moore , 814 S.W.2d 381, 382 (Tenn. Crim. App . 1991).

W e hold th at the filin g of a m otion to withdra w a ple a of guilty does not suspend the time w ithin which a judgm ent of conviction based upon th e guilty plea becomes final. If the trial court has not ruled upon the motion to withdraw the guilty plea prior to the time the judgment becomes final, the motion becomes moot because the trial court no longer has authority to grant the motion. When such a motion is filed after sentencing, the trial judge is under n o obligatio n to rule on the motion because the judgment will become final even in the absence of a ruling on the motion.

In this case the judgment of conviction was entered on September 17, 1998. As a ge neral rule, th e judgment of a trial court becom es final thirty days after its entry u nless a time ly notice of app eal or a spec ified po st-trial m otion is filed. State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996); Tenn. R. App. P. 4(a), (c). Once a notice of appeal has been filed, the jurisdic tion of th is Court attaches, and the trial court lose s jurisdiction . Pendergrass, 937 S.W.2d at 837. Once the trial court loses jurisdiction, it generally has no power o r authority

to further am end or s et aside its ju dgme nt. Id. A judgment beyond the jurisdiction o f the court is v oid. Id.

The Defendant's judgment of conviction and sentence was entered on September 17, 1998. T he only a ppeal a s of right ava ilable to the Defendant was to seek a review of th e sente nce im posed . See Tenn. R. App. P. 3(b). Included in the De fenda nt's pleading filed on September 18, 1998 was a notice of appeal of the “guilty ple a.” This notice of appeal may be considered as notice of appeal from the sentence imposed by the trial co urt. See Tenn. R. App . P. 3(e), (f). In this appeal the Defendant presents no issues for review pertaining to h is twenty- one year sentence. This Court generally considers only issues presented for review. See Tenn. R . App. P. 13(b). Accordingly, the judgme nt of the trial court sente ncing the Defendant to twenty-one years in the Department of Correction is affirmed.

At the time the trial court ruled on the Defendant's motion to withdraw his guilty plea, the court was without jurisdiction or authority to do so because either (1) the jud gme nt of co nviction had b ecom e final or (2) the Defendant had already filed a notice o f appea l. Thus, th e trial judge's o rder den ying the m otion to withdraw the guilty plea was a nullity, and the Defendant's subsequent attempt to appeal from that order is accordingly dismissed.

The judgment of conviction for second degree murder and sentence of twenty-one years for that offense is affirm ed. Th e Def enda nt's attempt to appeal from the order denying the motion to withdraw the guilty plea is dismissed.

DAVID H. WELLES, JUDGE

CONCUR:

DAVID G. HAYES, JUDGE

NORMA McGEE OGLE, JUDGE

State v. Kawaski Taylor, (Tenn. Ct. App. 2000).

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