            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                            Assigned on Briefs September 14, 2011

            STATE OF TENNESSEE v. KEITH LONELL RICHARDSON

                   Appeal from the Criminal Court for Davidson County
                        No. 2010-I-436    Monte Watkins, Judge




                No. M2011-00034-CCA-R3-CD - Filed September 30, 2011


Dissatisfied with his conviction of aggravated assault, the defendant, Keith Lonell
Richardson, appeals the trial court’s denial of his motion to withdraw his guilty plea, arguing
that he should have been permitted to withdraw his plea to correct a manifest injustice.
Discerning no error, we affirm.

              Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.

Jeffrey A. Devasher, Assistant District Public Defender (on appeal); and Latasha Thomas and
Katie Weiss, Assistant District Public Defenders (at trial), for the appellant, Keith Lonell
Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Roger D. Moore, Assistant
District Attorney General, Tennessee, for the appellee, State of Tennessee.

                                                OPINION

              Charged via criminal information with the aggravated assault of Dellaina C.
Wheatley, the defendant pleaded guilty as charged on May 11, 2010, in exchange for a
sentence of three years to be served on supervised probation.1 The State summarized the


        1
        In its order denying the defendant’s motion to withdraw his guilty plea the trial court stated that the
defendant was sentenced to three years’ community corrections. Both the judgment form and the guilty plea
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factual basis for the conviction at the guilty plea submission hearing:

                               In [the defendant’s] matter, the State’s witnesses
                would be available to testify – particularly Ms. Wheatley, who
                I mentioned earlier – would be available to testify that, on
                March [27, 2010], that she and the [d]efendant, who have
                children together, got into a[n] argument, and one thing led to
                another; that he became very upset and went outside and shot
                out the tires on the vehicle, as she was trying to leave – that
                occurred on Fourteenth Avenue, North, here in Davidson
                County, Tennessee – causing her to fear for her safety, at that
                time and place.

               On June 8, 2010, the defendant moved the trial court for permission to
withdraw his plea pursuant to Rule 32(f) of the Tennessee Rules of Criminal Procedure. At
the hearing on the defendant’s motion, Ms. Wheatley testified that the information contained
in the warrant she signed for the defendant’s arrest was “[n]ot completely” true. She
admitted that the defendant told her, “I’m tired of this shit. You ain’t going nowhere,” before
he “shot the tires out” of her vehicle while she stood nearby. She claimed, however, that she
was not afraid the defendant would hurt her but rather that “one of us will get hurt.” Ms.
Wheatley admitted that despite telling officers she wanted “no part[]” of prosecuting the case
against the defendant, she swore out a warrant against the defendant.

               The defendant testified that he pleaded guilty to the charged offense because
it was his “impression” that he “had to plead guilty” because he had been “caught
redhanded.” He added that his inability to afford private counsel also contributed to his
decision to enter the guilty plea. He said that he answered the questions truthfully at the plea
submission hearing, but he claimed that he should not have said he was guilty because he was
“not really” guilty of assaulting Ms. Wheatley. He decided to request withdrawal of his plea
after talking to Ms. Wheatley.

              At the conclusion of the hearing, the trial court took the motion under
advisement. Later, in a written order, the trial court denied the defendant’s motion, finding
that the defendant had failed to establish that a manifest injustice would result unless he was
allowed to withdraw his plea. Specifically, the trial court concluded that “the defendant’s
plea was entered voluntarily, understandingly, and intelligently” and that the testimony


        1
          (...continued)
transcript indicate, however, that the defendant was sentenced to three years’ supervised probation pursuant
to a plea agreement with the State.

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presented at the motion hearing “corroborated the basic underlying facts of the sworn
affidavit and statement of facts presented” during the plea colloquy.

               In this appeal, the defendant contends that the trial court erred by denying his
motion to withdraw the guilty plea, claiming that allowing the conviction to stand will result
in a manifest injustice given the inaccuracy of the information contained in the warrant and
factual statement provided at the plea submission hearing. The State asserts that the
defendant has failed to establish that withdrawal of his plea is necessary to prevent a manifest
injustice.

               Rule 32(f) of the Tennessee Rules of Criminal Procedure provides that “[a]fter
sentence is imposed but before the judgment becomes final, the court may set aside the
judgment of conviction and permit the defendant to withdraw the plea to correct manifest
injustice.” Tenn. R. Crim. P. 32(f)(2). The term “manifest injustice” is not defined either
in the rule or in those cases in which the rule has been applied. Trial courts and appellate
courts must determine whether manifest injustice exists on a case by case basis. See State
v. Crowe, 168 S.W.3d 731, 741-42 (Tenn. 2005) (recognizing absence of definition for
manifest injustice and citing examples of circumstances warranting withdrawal); State v.
Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). The defendant has the burden of
establishing that a plea of guilty should be withdrawn to prevent manifest injustice. Turner,
919 S.W.2d at 355.

               To determine whether the defendant should be permitted to withdraw his guilty
plea to correct a manifest injustice, a court must scrutinize carefully the circumstances under
which the trial court accepted the plea. An analysis of the plea submission process under
Tennessee Rule of Criminal Procedure 11(b) facilitates an inquiry into the existence of
manifest injustice. See generally State v. McClintock, 732 S.W.2d 268 (Tenn. 1987) (for
rules concerning acceptance of guilty pleas); State v. Mackey, 553 S.W.2d 337 (Tenn. 1977)
(same). Tennessee courts have allowed the withdrawal of guilty pleas to prevent manifest
injustice when

              (1) the 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 (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.


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Crowe, 168 S.W.3d at 742 (footnotes omitted). Courts have also found that manifest
injustice resulted from the trial court’s failure to advise a defendant of the appropriate
sentencing range, to apply the appropriate sentencing statute, or to inform a defendant of the
consequences flowing from the guilty plea. See State v. Nagele, ___ S.W.3d ___, No.
E2009-01313-SC-R11-CD (Tenn. Aug. 25, 2011). A guilty plea, however, should not be
withdrawn merely because the defendant has had a change of heart, Crowe, 168 S.W.3d at
743; see also Ray v. State, 451 S.W.2d 854, 856 (1970), nor should a defendant’s
dissatisfaction with an unexpectedly harsh sentence be sufficient justification for a
withdrawal, Crowe, 168 S.W.3d at 743; see also Clenny v. State, 576 S.W.2d 12, 15 (Tenn.
Crim. App. 1978).

               The transcript of the guilty plea submission hearing establishes that the
defendant was aware of the nature of the charge against him, the potential punishment, and
the constitutional rights that would be waived by virtue of his pleading guilty. The defendant
also agreed to the facts of the offense as recited by the State and agreed that he was guilty
of the offense. Ms. Wheatley’s post-plea change of heart does not alter the voluntariness of
the defendant’s plea. The defendant, who was obviously present during the altercation with
Ms. Wheatley and aware of the circumstances surrounding the offense, admitted at the
motion hearing that he was “caught red handed” at the scene with the shotgun he had used
to shoot out the tires of Ms. Wheatley’s vehicle. The defendant confirmed that he was
adequately apprised of the charges against him and the consequences of pleading guilty.
Under these circumstance, the defendant has failed to establish that withdrawal of his guilty
plea is necessary to correct a manifest injustice.

              Accordingly, the judgment of the trial court is affirmed.

                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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