        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                August 12, 2014 Session

             STATE OF TENNESSEE v. CHARLES GODSPOWER

            Direct Appeal from the Circuit Court for Rutherford County
                       No. F-67377     David Bragg, Judge


              No. M2013-00721-CCA-R3-CD - Filed November 14, 2014


The appellant, Charles Godspower, pled guilty in the Rutherford County Circuit Court to
second degree murder and attempted first degree murder, Class A felonies, and received
concurrent 30-year sentences to be served at 100% and 35%, respectively. On appeal, he
contends that the trial court erred by denying his motion to reduce his sentences. Based upon
the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial
court.


 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

N ORMA M CG EE O GLE J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Michael Meise (on appeal), Dickson, Tennessee, and Brian Jackson (at trial), Nashville,
Tennessee, for the appellant, Charles Godspower.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Senior Counsel;
William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       In January 2012, the Rutherford County Grand Jury indicted the appellant for first
degree premeditated murder, first degree felony murder, attempted first degree murder,
especially aggravated kidnapping, two counts of aggravated assault, and unlawful possession
of a weapon. The charges resulted from the shooting of Briana Brown, the mother of his
child, and Brown’s mother, Diana Glover. On November 9, 2012, the appellant signed a plea
agreement form in which he agreed to plead guilty to second degree murder as a lesser-
included offense of first degree felony murder and attempted first degree murder as charged.

       At the appellant’s November 13, 2012 guilty plea hearing, the State advised the trial
court that the appellant had agreed to plead guilty to second degree murder in exchange for
a 30-year sentence, which was “out of range,” and that the sentence was to be served at
100%. The State also advised the court that the appellant had agreed to plead guilty to
attempted first degree murder in exchange for a 30-year sentence, which also was “out of
range,” and that the sentence was to be served at 35%. The sentences were to be served
concurrently.

       The State then gave the following factual account of the crimes: The appellant and
Brown became involved in a romantic relationship when Brown was sixteen years old and
the appellant was thirty-two years old. A son was born and was about three years old at the
time of the crimes. On September 15, 2011, the appellant received a text from Brown, asking
for money so that she and their son could go to Holiday World. The appellant became upset
because he thought Brown intended to take their son to Holiday World with another man.
The appellant, who was a truck driver, drove from Kentucky to Smyrna, where Brown lived
with Glover. On the morning of September 16, 2011, the appellant texted Brown that he
would bring her the money. The appellant went to the residence and shot Glover in the
garage. Brown escaped to her car, but the appellant fired four shots into the car, hitting
Brown twice. After the shootings, the appellant telephoned 911 and reported that he had shot
two people. Brown died at the scene, but Glover survived.

       During the hearing, the trial court questioned the appellant about his pleas as follows:

                      Q. Mr. Godspower, it appears today you’re entering a
              plea to second degree murder, a Class A Felony, receiving a 30
              year sentence as a 100 Percent Offender, is that correct?

                     A. Yes, sir.

                      Q. And in Count 5, you’re entering a plea to attempted
              first degree murder, receiving a 30 year sentence to the
              Department of Corrections as a Multiple or 35 Percent Offender,
              is that correct?

                     [Defense counsel]: 35 percent.



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                     Mr. Godspower: Yes, sir.

                     BY THE COURT: And do you understand today it’s
              been announced by the State that you’re actually pleading out of
              range, is that correct?

                     A. Yes, sir.

                     ....

                     Q. And did you talk with [defense counsel] about that?

                     A. Yes, sir.

                      Q. You understand today once you enter these pleas, they
              go on your record as convictions. And later if you’re arrested,
              charged, and convicted in any other case, these convictions
              could be used to enhance or increase your punishment in those
              later cases, is that correct?

                     A. Yes, sir.

                     Q. Mr. Godspower, do you have any question at all about
              these pleas?

                     A. No, sir.

At the conclusion of the hearing, the trial court accepted the appellant’s guilty pleas and
announced that he was to serve concurrent sentences of 30 years to be served at 100% for
second degree murder and 30 years to be served at 35% for attempted first degree murder.

       Three days later, the appellant filed a handwritten motion to withdraw his guilty pleas,
claiming that the negotiated plea agreement form stated that he was to receive only one 30-
year sentence to be served at 100%, “but when judgment was entered it was something else
unaware to me or my lawyer.” On November 28, 2012, the appellant filed a letter in which
he stated,

              This is what I [pled] to and is in my negotiated plea agreement[:]
              30 yrs at 100% for both counts but the DA didn’t honor the plea
              agreement between me and the State by saying I would receive

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              30 yrs at 100% and another 30 yrs at 35% so on these grounds
              I am withdrawing my plea of guilty[.]

       At a hearing on November 30, 2012, the trial court questioned the appellant about his
pleas, and the appellant stated, “The only problem that I had with the plea was that I was
under the notion that it was a 30 year offer on the whole case. . . . And the next time I heard
about the 30 and 30 was the day of the [plea] hearing.” The appellant also stated that defense
counsel “had cleared everything [about] the doubts that I was having about the two sentences
that was imposed” but that “[i]f I had had it running consecutive, . . . I would maybe even go
out on parole on my first one or the second one. But now I can’t go out on parole.” The trial
court asked the appellant if he remembered being told during the plea hearing that he was
being sentenced to thirty years at 100%. The appellant answered yes and said,

              And I was under the impression the whole offer of 30 would be
              they were going to split it on two counts. 15 and 15.

                     If we can go back and amend the plea and keep it on that
              30 and not 30 and 35, that would be okay. But if not, I’ll go
              ahead and take whatever is presented now. Because I don’t
              want to go back to trial. I don’t want to go back to trial on it.

The trial court stated that the appellant could either move forward on his motion to withdraw
his guilty pleas or withdraw the motion. The appellant answered, “I’ll withdraw the motion.
I’m just going to apply for sentencing reduction.”

        On December 6, 2012, the appellant filed a second handwritten motion, requesting
that he be allowed to withdraw his pleas because defense counsel “failed to properly execute
the plea according to what we discussed and agreed upon.” The trial court appointed new
counsel for the appellant. At a hearing on the motion on February 1, 2013, new counsel
announced that the appellant “wishes to have the motion stricken from the docket.” Trial
counsel questioned the appellant under oath, the appellant confirmed that he wanted to
withdraw the motion to withdraw his guilty pleas, and the trial court granted the motion.

       On February 7, 2013, the appellant filed a handwritten motion to reduce his sentences
“due to ineffective assistance of counsel.” On February 19, 2013, the trial court filed an
order denying the motion, finding “no post-sentencing information or developments that
would, in the interest of justice, warrant a reduction of sentence.”




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                                        II. Analysis

       The appellant contends that the trial court abused its discretion by denying his motion
to reduce his sentences without a hearing because the negotiated plea agreement form he
signed on November 9, 2012, was altered without his knowledge. He contends that he was
not aware prior to the plea hearing that the form had been altered and that the sentences
imposed at the plea hearing were the sentences “reflected on the altered agreement.” He
claims that his drafting the first motion to withdraw his guilty pleas immediately after the
guilty plea hearing demonstrates his confusion and lack of understanding regarding his
sentences. The State argues that the trial court properly denied the appellant’s motion for
reduction of sentences without a hearing. We agree with the State.

        Rule 35(a), Tennessee Rules of Criminal Procedure, provides that a trial court “may
reduce a sentence upon motion filed within 120 days after the date the sentence is imposed
or probation is revoked.” The Advisory Commission Comments to Rule 35 explain that
“[t]he intent of this rule is to allow modification only in circumstances where an alteration
of the sentence may be proper in the interests of justice.” Moreover, the trial court may deny
the motion without a hearing. Tenn. R. Crim. P. 35(c). Our standard of review when
considering a trial court’s denial of a Rule 35 motion is whether the trial court abused its
discretion. State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993).

       The crux of the appellant’s argument relates to the fourth page of his written
negotiated plea agreement. The original page shows the following table:


            CASE #                  F67377
            &
            COUNT

            CONVICTION              2nd Degree
            OFFENSE                 Murder
                                    Att. 1st Murder

            SENTENCE                30 Yrs
            IMPOSED

            RANGE                   100%
            &
            OFFENDER
            CLASSIFICATION

            CONCURRENT


                                             -5-
            CONSECUTIVE

            PLACE OF                 TDOC
            CONFINEMENT

            FINE

Apparently unbeknownst to the appellant, the following table was substituted prior to his
guilty plea hearing:


            CASE #                   F67377                 Ct 2
            &                        Ct 5
            COUNT

            CONVICTION               2nd Degree             Att 1st
            OFFENSE                  Murder                 Murder


            SENTENCE                 30 Yrs                 30 Yrs
            IMPOSED

            RANGE                    100%                   @35%
            &
            OFFENDER
            CLASSIFICATION

            CONCURRENT               Ct 2                   Ct 5

            CONSECUTIVE

            PLACE OF                 TDOC                   TDOC
            CONFINEMENT

            FINE                     0                      0

       The appellant contends that the trial court should have been aware of the altered plea
agreement form and, therefore, that the interests of justice required a hearing “to assure that
the appellant understood ‘all elements of the sentencing decision,’ particularly since the
appellant was pleading to a sentence out of range.” We conclude that the trial court properly
denied the motion to reduce the sentences. At the guilty plea hearing, the trial court carefully
questioned the appellant about his pleas, advising him twice that he was pleading guilty to
second degree murder and attempted first degree murder and receiving concurrent sentences
of 30 years to be served at 100% and 30 years to be served at 35%. The appellant never

                                              -6-
questioned the sentences or expressed confusion. In sum, although the appellant now
contends that he was confused, the plea hearing transcript belies that claim. Moreover, by
the time the appellant filed his motion to reduce his sentences on February 7, 2013, he had
already filed two pro se motions to withdraw his guilty pleas on the basis that he did not
understand his sentences and had voluntarily withdrawn both motions. Therefore, we agree
with the trial court that the interests of justice did not warrant a modification of the
appellant’s sentences and conclude that the trial court did not abuse its discretion by denying
his motion to reduce his sentences.

                                      III. Conclusion

      Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the trial court.
                                             _________________________________
                                             NORMA McGEE OGLE, JUDGE




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