State of Tennessee v. Johnny Leach ( 1999 )

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:
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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
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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
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_____________________________
ALAN E. GLENN, Judge
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