            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE              FILED
                          JULY 1998 SESSION
                                                      October 13, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,              *    No. 03C01-9710-CC-00470

             Appellee,           *    RHEA COUNTY

vs.                              *    Hon. J. Curtis Smith, Judge

JOEY D. BIDWELL,                 *    (Motion to Withdraw
                                       Plea of Nolo Contendere)
             Appellant.          *




For Appellant:                        For Appellee:

Carol Ann Barron                      John Knox Walkup
Attorney                              Attorney General & Reporter
264 Third Avenue
Dayton, TN 37321                      Ellen H. Pollack
(at motion to withdraw                Assistant Attorney General
and on appeal)                        425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      Will Dunn
                                      Assistant District Attorney General
                                      First American Bank Building
                                      Third and Market Streets
                                      Dayton, TN 37321




OPINION FILED:___________________________


AFFIRMED


GARY R. WADE, PRESIDING JUDGE
                                         OPINION

              The defendant, Joey D. Bidwell, appeals the trial court's denial of his

motion to withdraw his pleas of nolo contendere to two counts of vehicular assault, a

Class D felony. Tenn. Code Ann. § 39-13-106. The issue presented for review is

whether the trial court should have permitted withdrawal of his pleas. We affirm the

judgment of the trial court.



              The defendant was indicted for the vehicular assault of Leslie

Holdman and Larry Essex resulting from an auto accident in which the defendant,

who had a blood alcohol level of .16, drove his vehicle into the rear of the victims'

sport utility vehicle on Highway 68 in Rhea County. Ms. Holdman and Mr. Essex

suffered serious physical injuries and emotional trauma as a result. Whether the

victims' vehicle's brake lights were in proper working order and whether they had

stopped illegally in the road would have been contested issues at trial.



              At the plea submission hearing, the defendant waived his right to a

formal reading of the indictment. The following colloquy occurred:

              Court:           Mr. Bidwell, you must understand the
                               charge that you're pleading to. In order to
                               do that [the prosecutor] is going to give
                               some information to help you understand
                               this charge. The first information he will
                               give is the original charge and then he'll
                               also tell me the charge you're pleading to if
                               it's different. On the charge that you're
                               pleading to he will state the elements of
                               that offense.... Third, he'll give the
                               minimum and maximum sentence for the
                               charge that you're pleading to and fourth,
                               he'll state his recommendations....

              State:           Your Honor, it's two counts of vehicular
                               assault and he is entering a nolo
                               contendere plea to those .... On vehicular
                               assault the State would have to prove in
                               each case that there was an individual that
                               suffered serious bodily injury ... due to the

                                              2
                             operation of ... an automobile by the
                             Defendant and that the particular assault
                             was a direct or []proximate result of the
                             Defendant's intoxication and that [it]
                             happened here in this county....

              Court:         All right, the minimum and maximum
                             sentences.

              State:         Well, the minimum, it is a two to four year
                             sentence as a Class D felony, and the fine
                             is up to a $5,000.00 fine.

              Court:         All right. The recommendation is.

              State:         Your Honor, we're going to ask for a pre-
                             sentence for the Court and have a
                             sentencing hearing at some later date.

              Court:         All right. Did you hear what was said, Mr.
                             Bidwell?

              Defendant:     Yes.

              Court:         Any questions about what the State would
                             have to prove to convict you of this
                             offense?

              Defendant:     No.

              Court:         Any questions about the minimum or
                             maximum penalties for the offense?

              Defendant:     No.

              Court:         Any questions about the recommendation?

              Defendant:     (Shakes head from left to right.)


The trial court then instructed the defendant of the constitutional rights that he was

relinquishing by entering a plea. The defendant had no questions and voluntarily

gave up the right to jury trial, the right to confront witnesses, the right to remain

silent, and the right to call witnesses and present evidence in his defense. After this

litany of rights was explained, the following exchange occurred:

              Court:         Do you have any questions about your
                             constitutional rights or any questions at all,
                             Mr. Bidwell?


                                            3
             Defendant:    No.

             Court:        Do you voluntarily give up these
                           constitutional rights to enter this plea?

             Defendant:    Yes.

             Court:        Mr. Bidwell, I have a written request to give
                           up your jury trial right, and it's signed Joey
                           Bidwell, did you sign this?1

             Defendant:    Yes.

             Court:        Did you either read it or talk with your
                           attorney about it before you did?

             Defendant:    Yes.

             Court:        All right, if [the prosecutor will] summarize
                           the facts ....
                                             ***
             Court:        Is there anything that [the prosecutor] said
                           that you want to explain or question, Mr.
                           Bidwell?

             Defendant:    No.

             Court:        Have you talked with your attorney about
                           your case and any possible defenses that
                           you might have?

             Defendant:    Yeah.

             Court:        Are you satisfied with the way that [your
                           attorney] has represented you?

             Defendant:    Yes.

             Court:        Anybody promised you anything about your
                           case other than what I've heard here
                           today?

             Defendant:    No.

             Court:        Anybody forced you against your will to
                           enter this plea?

             Defendant:    No.

             Court:        If I accept your plea ... you will have these


      1
       This form bears the typed notation: "SENTENCING STAYED PENDING PRE-SENTENCE
REPO RT."

                                          4
                            felony convictions on your record. ... I want
                            you to understand that if you get into
                            trouble in the future that these convictions
                            can be used against you to cause you to
                            receive greater punishment for future
                            violations of the law, do you understand
                            that?

              Defendant:    Yes.

              Court:        You're entering a nolo contendere plea, is
                            that correct ...?

              Defendant:    Yes.

              Court:        Based on your plea and these facts, Mr.
                            Bidwell, I find you guilty beyond a
                            reasonable doubt of the two vehicular
                            assault charges, a Class D felony. I believe
                            you understand your constitutional rights
                            and you've given those up voluntarily. We
                            will order a pre-sentence investigation.




              At the sentencing hearing, Ms. Holdman, a thirty-seven-year-old victim,

testified that she could not recall the accident that caused her injuries except for

being taken via helicopter to a hospital. She suffered back and head injuries that

resulted in permanent damage. Ligaments were torn in her knees and jaw. Her

sinuses collapsed and she could not smell or taste and underwent surgery.

Additional surgeries are forecasted. Ms. Holdman has accumulated medical

expenses in the amount of $60,000.00 and her marriage and family life has become

strained. She asked the court to impose the maximum penalty.



              Mr. Essex, a forty-eight-year-old victim, recalled that he was driving

down the highway at about fifty miles per hour and saw headlights approaching

quickly in his rear view mirror. The approaching car struck his vehicle, a 1989 GMC

Jimmy, in the rear. The impact knocked him unconscious. He was taken by a

Lifeforce helicopter to a nearby medical center. He suffered a "closed head" injury,


                                           5
a blood clot, and had plates inserted around his eye. His jaws and right arm were

broken. He has memory lapses and feels depressed. Since the accident, he has

undergone four surgeries and, in the future, he will require extensive medical

treatment. He testified that the accident and injuries had placed extreme pressure

on his wife. His medical bills thus far totaled about $125,000.00 to $140,000.00.

Mr. Essex also requested that the trial court impose the maximum sentence.



                 The pre-sentence report revealed that Ms. Holdman has a civil suit

pending against the defendant demanding damages in the amount of $750,000.00.

Mr. Essex also filed a civil suit against the defendant demanding compensatory

damages of $1,200,000.00 and punitive damages in the amount of $2,400,000.00.2



                 The defendant was last arrested in 1995 on charges of leaving the

scene of an accident involving the death of a person. He was a passenger in the

vehicle and this charge was dismissed. In 1992, he was charged with driving under

the influence and, pro se, entered a guilty plea for the reduced charge of reckless

driving. He was sentenced to six months, suspended, and required to serve two

weekends in jail. He was fined $400.00. In 1991, he was arrested and charged with

public intoxication. He pled guilty to the charge and was sentenced to fifteen days,

suspended, and fined $25.00. In 1990, he was cited for speeding and fined. The

defendant has no prior felony convictions.



                 At the sentencing hearing, the defendant, a high-school graduate,

testified that he has lived in Ten Mile and worked the second shift at La-Z-Boy for

about ten years. He recalled that the night of the accident he was driving fifty-five or



        2
        A plea of nolo con tendere canno t be used against a defend ant in a su bsequ ent civil suit.
Rule 11(e)(6), Tenn. R. Crim. P.

                                                    6
sixty miles per hour and came upon a vehicle stopped in the road. He saw no lights

on the vehicle and, while he tried to avoid the vehicle, he could not. He admitted

that he had been drinking at a bar immediately prior to the accident. His blood

alcohol level was .16. He sustained a broken arm and cuts to his head. The

defendant expressed remorse and maintained that the wreck was an accident.

Since then, he claimed to have been saved and now is "right with the Lord." He

asserted that he has not "touched a drop" of alcohol since August of 1996. The

defendant maintained that he could keep his life together if the trial court awarded

probation or community corrections. He stated he would do whatever the court

required.



              Keith Allen Kile, the defendant's pastor, attested to the conversion of

the defendant. When asked whether he had ever seen the defendant drive to

church, Reverend Kile acknowledged that he had but he was unaware that the

defendant's drivers license had been revoked. Linda Hickman, a friend of the

defendant's family, testified that the defendant had "straightened up his life ... he's a

totally different person." She acknowledged that the defendant had "run with the

wrong crowd" in the past but maintained that he no longer associated with his old

friends. Ms. Hickman stated that she would help the defendant with his drinking

problem if he were given probation.



              Harold Bidwell, the defendant's father, allowed the defendant and his

wife to live in a mobile home on his property. He testified that since the accident,

the defendant had been saved and no longer drank alcohol. Mr. Bidwell runs a

sawmill and the defendant helps him in the mornings before he goes to work at La-

Z-Boy. Aware that the defendant did not have a driver's license, he conceded that

he saw the defendant driving only one week prior to the sentencing hearing.


                                            7
               Joyce Bidwell, the defendant's mother, testified that she was aware of

the defendant's drinking problem and did not approve. She stated that her son had

experienced a religious conversion, had acted responsibly since then, attended

church regularly, and no longer consumed alcohol. Charles Armour and Eddie

Armour, first cousins to the defendant, also testified to the defendant's conversion

and offered support.



               David Shinn, a probation officer with the Department of Correction,

testified that according to the records of the Department of Safety, the defendant's

driver's license had been revoked. Mr. Shinn stated that he had contacted the

defendant several weeks prior to the sentencing hearing and that the defendant

claimed that his wife drove him to and from work.



               The state recommended a three-year sentence with the Department of

Correction. Defense counsel sought a suspended sentence. The trial court

concluded that the defendant had a history of criminal convictions and criminal

behavior and had continued to drive on a revoked license. Tenn. Code Ann. § 40-

35-114(1). The trial court also concluded that personal injuries to the victims and

property damages to their vehicle were particularly great and that the crime was

committed under circumstances in which the potential for bodily injury was great.

Tenn. Code Ann. § 40-35-14(6), (16). The trial court placed greatest weight on

these latter two enhancement factors 3 and sentenced the defendant, who qualified

as a Range I offender, to two concurrent four-year terms. He was ordered to serve

one year in the county jail followed by ten years on supervised probation. As a

condition of probation, the defendant was ordered to complete three hundred hours



       3
         The factors in Tenn. Code Ann. § 40-35-14(6) and (16) were improperly applied based upon
the holding in State v. Williamson, 919 S.W .2d 69 (T enn. Cr im. Ap p. 1995) .

                                                8
of public service work, attend AA meetings, and pay a total of $50,000.00 in

restitution.



               Afterward, the defendant retained new counsel and within thirty days

filed a motion to withdraw his pleas. He cited as grounds that he had not been

informed that he could not withdraw his pleas if the trial court rejected the state's

recommended three-year sentence, that he entered the pleas because his attorney

misadvised him about the sentence he would face had he gone to trial, and that his

sentence was illegal.



               At the hearing on the motion to withdraw, defense counsel asked the

court to strike the third assignment of error regarding the imposition of an illegal

sentence. The motion hearing proceeded on the two remaining grounds, that is, (a)

that the defendant was not informed that he could not withdraw his pleas if the court

rejected the state's recommended sentence, and (b) that the defendant entered his

pleas because of the misadvice of his attorney.



               The defendant testified that his former counsel had advised him that if

he proceeded to trial, a sentence of twelve years could be imposed for each count

of vehicular assault and that the trial court could order them to be served

consecutively. He claimed his attorney advised him that nolo contendere pleas

would result in "10 to 30 days in jail and I could do that on weekends. ... And that he

could issue probation at the time." The defendant maintained he was never advised

that the trial court could impose a sentence regardless of the recommendations of

counsel. He stated that it was his understanding that the assistant district attorney

had agreed to probation. He contended that he would have withdrawn his pleas

after the sentencing hearing had the trial court given him an opportunity to do so,


                                            9
claiming that he never would have entered the pleas had he known what his

sentence would be.



              During cross-examination, the defendant conceded that the main

reason he wished to withdraw his pleas was because he expected a lower sentence

and because he had complaints about his counsel. He acknowledged that he had

understood what the trial judge had told him at the plea submission hearing, that he

had told the truth, and that he was not under the influence of drugs or alcohol when

entering his pleas.



              Kim Bidwell, wife of the defendant, testified that his former counsel

had warned that if he went to trial, he would "get the maximum ... and they'll run

them separate ...." She claimed that the defendant's former counsel returned from a

discussion with assistant district attorney and announced the state would ask for

immediate probation in return for a plea of nolo contendere and that the defendant

could expect, at worst, a few months of jail time.



              Later, the assistant district attorney argued that there was no such

agreement and he had been inclined to proceed to trial given the facts of the case

and the seriousness of the injuries to the victims. He entered as an exhibit the

defendant's criminal trial docket sheet which indicated as follows: "3-13-96[:] Deft.

present w/ counsel - Waives Jury Trial - Enters Plea of Nolo Contendere to both

counts of Vehicular Assault - Range I, Standard - Sentence stayed pending Pre-

sentence Investigation. Sentencing 6-18-97."



              The trial court ruled as follows:

              It really boils down to an issue of credibility of the
              witnesses. ... [A]lcohol was involved ... we had two

                                           10
             victims horribly injured. Yes, [the defendant] testifies
             today that he thought he could plea for a few days in jail
             and a little community service work and that his attorney
             was telling him that that was the kind of plea that he
             could get. Even though, again, we have extremely
             serious injuries ... I just don't find it credible that [the
             defendant] was told, or could have believed, that nearly
             killing two people with the level of blood alcohol that he
             had in his body was going to be something that he could
             walk away from with basically a slap on the hand. I don't
             find that to be a credible position. I don't find his
             testimony in that regard to be credible.

                    I spent some amount of time in the plea ... going
             over with [the defendant] the nature of the charge ....
             There was never any announcement that anybody but
             the Court would sentence him after a pre-sentence
             investigation. There's nothing in any of the transcripts
             that indicates anything to the contrary. ... [T]he standard
             is manifest injustice ... I don't think [the defendant] has
             shown manifest injustice based on the testimony ....




                                          (a)

             The defendant maintains that he was not warned that the trial court

could disregard the sentencing recommendation of the state and the defense and,

thus, he should be permitted to withdraw his plea. See Rule 11, Tenn. R. Crim. P.



             Rule 11, Tenn. R. Crim. P., governs the entry and withdrawal of pleas

in Tennessee. It is substantially the same as the federal rule. See Commission

Comment. Subsection (e), in particular, approves the common practice of plea

negotiation and contemplates three types of plea agreements:

             (1) In general. The district attorney general and the
             attorney for the defendant or the defendant when acting
             pro se may engage in discussions with a view toward
             reaching an agreement, that upon the entering of a plea
             of guilty or nolo contendere to a charged offense or to a
             lesser or related offense, the district attorney will do any
             of the following:
                     (A) move for dismissal of other charges; or
                     (B) make a recommendation, or agree not to
             oppose the defendant's request, for a particular
             sentence, with the understanding that such

                                          11
              recommendation or request shall not be binding upon the
              court; or
                     (C) agree that a specific sentence is the
              appropriate disposition of the case.

The Commission Comment explains that, while subsection (e)(1) lists three types of

plea agreements, this list is not exclusive. In Goosby v. State, 917 S.W.2d 700

(Tenn. Crim. App. 1995), this court discussed the three types of plea agreements

authorized by this rule:

              A plea agreement under Rule 11(e)(1)(A) anticipates a
              plea to certain charges in exchange for dismissal of other
              charges. An agreement under Rule 11(e)(1)(B)
              anticipates a recommended disposition by the state (or
              an agreement not to oppose a recommended
              disposition), but the recommendation does not bind the
              court. Under Rule 11(e)(1)(C), known as a "binding
              plea," the parties agree to a "specific sentence [as] the
              appropriate disposition of the case." Tenn. R. Crim. P.
              11(e)(1)(c).
                      A court retains discretion to accept or reject an
              (e)(1)(A) or (e)(1)(C) plea. In an (e)(1)(B) plea, the court
              is required to advise the defendant that the court is not
              bound by the prosecution's recommendation. If the court
              rejects the terms of an (e)(1)(B) agreement, the trial
              judge must advise the defendant personally in open court
              that since the court is not bound by the agreement,
              defendant's persistence in the plea may result in a
              disposition less favorable than that contemplated by the
              agreement. Tenn. R. Crim. P. 11(e)(2). Once an
              (e)(1)(B) guilty plea is accepted by the court, the
              defendant may not withdraw the plea. Tenn. R. Crim. P.
              11(e)(2). If, however, the court rejects the terms of a
              "binding plea" pursuant to (e)(1)(A) or (C), then the
              defendant may withdraw the guilty plea since the plea is
              conditioned upon a specific result. Tenn. R. Crim. P.
              11(e)(2).

Id. at 706 (emphasis added).



              The plea agreement in this case was not enumerated by the rule. The

defendant pled to the indictment; that is, there was neither a reduction of the

charges nor a dismissal of any charge, thus this was not an (e)(1)(A) agreement.

Nor was there an agreed-upon sentence at the time the plea was entered; therefore,

this was not a classic (e)(1)(C) agreement. Lastly, an (e)(1)(B) agreement would

                                          12
require a recommended sentence by the state or a declaration by the state that it

would not take a position against the defendant's requested sentence. That was not

done in this case. The district attorney simply requested a pre-sentence report and

sentencing hearing. At the motion to withdraw, the trial court found as a fact that

there was no sentencing agreement between the prosecutor and the defendant.

Thus, this plea was an open plea, involving no recommendation by the state other

than a pre-sentence investigation, through which a defendant is sentenced

according to the Criminal Sentencing Reform Act of 1989. In our view, the trial court

is not required to inform the defendant under these circumstances that the plea

cannot later be withdrawn.



              The withdrawal of a plea is governed by Tenn. R. Crim. P. 32(f). See

State v. Bilbrey, 816 S.W.2d 71, 75-76 (Tenn. Crim. App. 1991). When the motion

is filed after the imposition of sentence, as in this case, the standard to be applied is

whether there is "manifest injustice." Tenn. R. Crim. P. 32(f); see also State v.

Davis, 823 S.W.2d 217, 219-20 (Tenn. Crim. App. 1991). While the principle of

manifest injustice encompasses constitutional violations, it also may include

situations where there was a clear injustice without a constitutional deprivation.

State v. Antonio Demonte Lyons, No. 01C01-9508-CR-00263, slip op. at 16 (Tenn.

Crim. App., at Nashville, Aug. 15, 1997). Whether there has been manifest injustice

is determined by the courts on a case by case basis. State v. Turner, 919 S.W.2d at

355. In Turner, this court observed as follows:

                      A trial court may permit the withdrawal of a plea of
              guilty to prevent "manifest injustice" when it is
              established that the plea was entered due to (a)
              "coercion, fraud, duress or mistake," (b) "fear," (c) a
              "gross misrepresentation" made by the district attorney
              general, or an assistant, (d) the district attorney general,
              or an assistant, withholds material, exculpatory evidence,
              which influences the entry of the plea, or the plea of
              guilty was not voluntarily, understandingly, or knowingly
              entered. Conversely, the trial court will not, as a general

                                           13
               rule, permit the withdrawal of a plea of guilty to prevent
               "manifest injustice" when the basis of the relief is
               predicated upon (a) an accused's "change of heart," (b)
               the entry of the plea to avoid harsher punishment, or (c)
               an accused's dissatisfaction with the harsh punishment
               imposed by the trial court or a jury.

Id. at 355 (footnotes omitted). Whether to grant a motion to withdraw a plea rests

within the sound discretion of the trial court. State v. Haynes, 696 S.W.2d 26, 29

(Tenn. Crim. App. 1985). The burden of proof is on the defendant. Davis, 823

S.W.2d at 220.



               The trial court concluded that the defendant had failed to demonstrate

manifest injustice. In our view, the record supports this conclusion. The defendant

testified that the main reason he wanted to withdraw his pleas was because he was

unhappy with his sentence. Under the rationale of Turner, this would not qualify as

a basis for relief. Turner, 919 S.W.2d at 355. We find no abuse of discretion on the

part of the trial court.



                                           (b)

               The defendant also maintains that his pleas were not knowing or

voluntary because his attorney misadvised him as to the length of the sentence he

could receive for the offenses in the event he proceeded to trial. In order for the

petitioner to be granted relief on grounds of ineffective counsel, he must establish

that the advice given or the services rendered were not within the range of

competence demanded of attorneys in criminal cases and that, but for his counsel's

deficient performance, the result of his trial would have been different. Baxter v.

Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668,

687 (1984). This two-part standard, as it applies to guilty pleas, is met when the

petitioner establishes that, but for his counsel's errors, he would not have pled guilty

and would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

                                           14
             The defendant and his wife testified that former counsel had advised

them that the defendant could face consecutive twelve-year sentences, for an

effective sentence of twenty-four years. The state did not subpoena the prior

attorney and presented no proof on this issue, relying instead on the defendant's

burden to show manifest injustice. The defendant's testimony at the motion to

withdraw was, however, contradicted by the record of the guilty pleas. At the plea

submission hearing, the state represented in open court that the possible sentence

was between two and four years. The defendant informed the trial court that he

understood the range of sentence that could be imposed. He had no questions. At

the motion to withdraw, the defendant testified that his prior statements were

truthful. The trial court concluded that the defendant's testimony at the motion to

withdraw was not credible. The trial judge saw the demeanor of the witnesses and

heard their testimony firsthand. Under those circumstances, we are hesitant to

substitute our inferences or to reassess the credibility of the defendant and that of

his wife.



              Accordingly, the judgment of the trial court is affirmed.



                                          __________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:


__________________________________
Joseph M. Tipton, Judge


__________________________________
David H. Welles, Judge




                                          15
