       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE

                        APRIL 1998 SESSION
                                                FILED
                                                   June 11, 1998

                                                Cecil W. Crowson
                                    )          Appellate Court Clerk
STATE OF TENNESSEE,
          APPELLEE                  )
                                    )
VS.                                 )    C.C.A. No. 01C01-9707-CC-00241
                                    )    MONTGOMERY C OUNTY
                                    )    HONORABLE JOHN H. GASAWAY
STEVEN LEE EDMONDS                  )
         APPELLANT                  )    (WITHDRAW GUILTY PLEA)




FOR THE APPELLANT                        FOR THE APPELLEE

Gregory D. Smith                         John Knox Walkup
Attorney at Law                          Attorney General and Reporter
One Pubic Square                         425 Fifth Avenue, North
Clarksville, TN 37040                    Nashville, TN 37243

                                         Janis L. Turner
                                         Assistant Attorney General
                                         425 Fifth Avenue, North
                                         Nashville, TN 378243

                                         John Carney
                                         District Attorney General
                                         204 Franklin St., Suite 200
                                         Clarksville, TN 37040

                                         Arthur Bieber
                                         Assistant District Attorney General
                                         204 Franklin St., Suite 200
                                         Clarksville, TN 37040




OPINION FILED: _______________________

AFFIRMED

L. T. LAFFERTY, SPECIAL JUDGE
                                        OPINION

       This is an ap peal as of righ t from the M ontgom ery Circuit C ourt whe rein it

is alleged the tria l court erred in not perm itting the defen dant to set asid e his guilty

plea. The defendant had entered nine guilty pleas to various misdemeanors and

felonies and to an admission of violation of probation in an unrelated offense. The

trial court set a sentencing hearing and in the interim the defendant filed a pro se

motion to set aside his guilty pleas. After an evidentiary hearing to determine the

merits of the motion, the trial court den ied the mo tion and im posed sen tences in

complian ce with ag reed pleas. A fter a review of this issue an d the entire re cord in

this cause, the trial court’s judgment is affirmed.

       On August 26, 1996, the defendant, through his attorney of record, entered

pleas of gu ilty in indictm ent #3694 9 count on e to the offen se of evad ing an arres t,

a Class A misdemeanor; count two to the offense of stalking, a Class A

misde mean or; cou nt three t o the of fense o f evadin g an arr est by u se of a v ehicle, a

Class E felony ; count f our to th e offen se of lea ving th e scene of an ac cident, a

Class B misde mean or; cou nt five to the offe nse of d riving o n revok ed licen se, a

Class B misdemeanor; count six to the offense of aggravated robbery, a Class B

felony; cou nt seven to th e offense o f aggravate d assault, a C lass C felon y; and in

count eight to the offense of kidnapping, a Class C felony. In indictment #36892,

the defe ndant p led guilt y to driv ing on a revoke d licens e, a Clas s B m isdem eanor.

Also, the defendant admitted to a violation of probation in cause #33717,

involving a conviction for aggravated burglary receiving four years. Since the

pleas were submitted to the trial court to determine the appropriate terms of

imprisonment, the trial court set a sentencing hearing for October 17, 1996,

requesting a pre-senten ce report an d victim im pact statem ent.

       On September 16, 1996, the defendant, through his attorney, filed a written

motion to withdraw (via an attached letter) his nine pleas of guilty entered August

26, 1996. The defendant alleges that “the defendant has never been informed of


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any possib le defenses ” to his charg es and his d ecision to ple ad guilty w as quickly

entered and not in his best interest. Also, the defendant requested appointment of

substitute cou nsel.

       The trial cou rt conducte d an evide ntiary hearin g on De cembe r 11, 1996 , to

consider the merits of this motion.

       A state ment o f the fac ts is help ful to pu t said off enses in contex t. A

transcript of the guilty plea proceedings of August 26, 1996, was introduced as

evidence in this hearing. Mr. Charles Bloodworth, assistant Public Defender and

counsel for the defendant, set out the facts before the trial court to support the

various pleas, including a little history of the defendant’s relationship with the

victim of violent offenses. The defendant became infatuated with the victim of the

violent offenses long before their occurrence. However, the victim found

someone else and evicted the defendant from her home. This eviction did not cool

the defendant’s amorous blood and the infatuation continued. Count one alleges

that on December 4, 1995, the defendant went by the victim’s home. She called

the police and the defendant ran away (apparently on foot) from the police thus

leading to the evading arrest charge. The defendant would not give up. In count

two, between December 5 and 21, 1996, he repeatedly called the victim on the

phone leading to the stalking charge. Specifically, on December 14, 1996, the

defendan t really com pounde d his proble ms. The victim had asked him to come to

the house, he did not, bu t drove by the hous e and lo and beh old the police are there

and the car cha se begi ns, thus the eva ding ar rest of lo como tion (co unt thre e).

Unfortunately for the defendant he is not a good driver, thus crashing his car. But

that does not stop him. He is also charged with leaving the scene of an accident

(count four) and driving o n a revoked license (co unt five).




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        Beginning December 20, 1995, the defendant really begins to have

proble ms, w hen he goes to the Sho wboa t, the victim ’s emp loym ent estab lishme nt.

The defendant must resolve this relationship. Is he going to leave her? Is she

going to leave him? Unfortunately for the defendant has a pistol in his waistband

under his shirt. Unsatisfied with the victim’s responses, the defendant pulls the

pistol and says “Give me all the money,” which she did. As the defendant leaves,

does eternal hope thus rise? He turns, throws the money on the counter and

inquires, “Is he going to live his life as an outlaw?” She responds, “just go away.”

He does with the money.

        On December 21, 1995, this wily victim, knowing the defendant’s fatal

attraction for her, contacts the defendant under the watchful eyes of the police and

arranges a meeting at a convenience store. Amazingly, the defendant shows up

and gets in the victim’s car (all under watchful eyes) and when approached by the

police, th e defen dant pu lls his pisto l, points it a t the victim , and sh outs, “L et us go .

Let us go. I’ll shoot her, I will.” Fortunately for everyone, the defendant

exercis ed goo d judgm ent and surrend ered.

        The defendant by admitting his guilt in these offenses, acknowledged these

offenses would violate his conditions of probation.

        In support of the motion to withdraw the pleas of guilty, the defendant

testified that after h e had rerea d the copy of the charg e concern ing defens es, his

attorney never a dvised him o f any de fenses a lthoug h the de fendan t had a d efense .

The defendant presented his attorney several witnesses in support of a defense, but

the attorney failed to contact them. The defendant believed a co-employee of the

victim would testify that the victim actually stole the money and set him up and

the victim had stolen some money of a prior occasion and another employee was

fired for this. The defendant believes cameras in the store should have picked up

the robbery. The de fendant acknow ledged his attorney exp lained the nature of a

best interest plea and entered such plea due to the duress of facing 50 years or


                                            4
longer. Overall, the defendant alleges the attorney failed to conduct a proper

investigation.

       The State offered the d efendant’s attorney to exp lain the defendant’s

complaints. Defense counsel had been appointed to represent the defendant in the

General Sessions Court. Counsel represented the defendant through the

prelim inary h earing, th e indictm ent pro cess, an d the en try of the guilty p leas.

Defense counsel o btained co mplete dis covery fro m the Sta te and as pa rt of his

investigation found no video camera in the store, or, if there were, no tape was

furnished to the defense. Defense counsel confirmed the defendant gave him the

name of a “Melody,” last name unknown, who would testify the victim had stolen

cash from a cash bo x on a prio r occasion. S uch witne ss would be utilized to

impeach the honesty of the victim. She could not be found. Defense counsel

enlarged on the State’s theory of the allegations surrounding the stalking and

especially ag gravated k idnapping charges. A lso, defense counsel h ad his

investigator attempt to talk to the victim, but she refused to talk to him. As to the

witness, Jennifer Kilbing, this witness would have testified that the victim had

mentioned she was going to stage a robbery with the defendant. There is some

confusion in the record if the armed robbery of December 20, 1995, was the faked

robbery. The defendant informed defense counsel that the robbery of the 20th was

not the staged robbery. Thus, defense counsel decided he could not call Jennifer

Kilbing as a witness and present perjured testimony.

       As to the best interest plea, defense counsel gave to the defendant three

pages setting out the charges, applicable punishment, State’s first offer; a revised

settlem ent offe r; max imum senten ces if co nvicted by a jur y; red d ates and option s.

The pages were introduced into evidence. On August 26th, the victim appeared

for trial and the defendant decided to plead guilty.



       Based on this evidence, the trial court denied the defendant’s request to set


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aside these guilty pleas under the standard set out in rule 32, Tennessee Rules of

Criminal Procedure. The trial court found the defendant does not complain of any

Mackey violations, that th e pleas w ere involun tary, nor w ere there an y comp laints

the District Attorney Ge neral withheld exculp atory evidence. The trial court

found de fense cou nsel’s repres entation to b e comp etent and th e decision n ot to

utilize Jennifer Kilbing was a matter of trial strategy. This Court agrees with the

trial court’s analysis and decision.

       Rule 32 (f) governs the request for setting aside guilty pleas.

              (f) 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 m anifest 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 .

       Generally, a defendant who submits a guilty plea is not entitled to withdraw

the plea as a m atter of rig ht. State v. Turner, 919 S.W.2d 346 (Tenn. Crim. App.

1995). The decision to allow the withdrawal of a guilty plea is within the sound

discretion of the trial court and may not be overturned on appeal absent an abuse

of discre tion. Henn ing v. Sta te, 201 S.W . 669 (Ten n. 1947); State v. D avis, 823

S.W.2 d 217 ( Tenn . Crim . App. 1 991).

       The evidentiary hea ring in this record was a hy brid hearing, Rule 32(f)

proceeding and semi-petition post conviction proceedings. The trial court has

found the defendan t’s pleas freely a nd volun tarily entered; n o force or c oercion in

the pleas; no misrepresentations made by defense counsel to the defendant; no

withheld exculpatory evidence by the S tate and no violation of Mackey

requirements. The Court finds in this record the trial court did not abuse its




                                        6
discretion in refusing to allow the defendant to withdraw his pleas of guilty. The

judgment is affirmed.



                                          ___________________________
                                          L. T. Lafferty, Special Judge

CONCUR:

____________________________
Gary Wade, Presiding Judge

_____________________________
Thomas Woodall, Judge




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