State v. Kawaski Taylor ( 2000 )

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.
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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.”
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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).
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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
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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.
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______________________________
DAVID H. WELLES, JUDGE
CONCUR:
________________________________
DAVID G. HAYES, JUDGE
________________________________
NORMA McGEE OGLE, JUDGE
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