        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 4, 2016

                STATE OF TENNESSEE v. WILLIAM M. COLE

                    Appeal from the Circuit Court for Gibson County
                      No. 18854    Clayburn L. Peeples, Judge


              No. W2015-01764-CCA-R3-CD - Filed January 30, 2017



The defendant, William M. Cole, was indicted for rape of a child and entered a best-
interest guilty plea to incest on May 6, 2015. He was sentenced on September 8, 2015, to
six years as a Range I, standard offender. On September 14, 2015, he filed a timely
notice of appeal of his sentence. On September 28, 2015, he filed in the trial court a
motion to withdraw his plea of guilty, arguing that he was not related to the victim by
blood or marriage and, therefore, could not be found guilty of incest. In this direct appeal
filed after his plea of guilty and sentencing, but before he sought to withdraw his guilty
plea, he argues that his plea of guilty was involuntary and should be set aside and that the
trial court failed to consider all relevant factors in sentencing him. The State responds
that the defendant may attack the voluntariness of his plea only in a petition for post-
conviction relief and not in a direct appeal. We agree with this response, as well as the
State’s assertion that the defendant was properly sentenced. Accordingly, we affirm the
judgment of the trial court.


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

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and TIMOTHY L. EASTER, JJ., joined.

Brandon L. Newman, Trenton, Tennessee (on appeal); and Michael J. Flanagan,
Nashville, Tennessee (at hearing), for the appellant, William M. Cole.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zenter, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Hillary L. Parham,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                          FACTS

       At the plea hearing, the State advised the trial court that the statute of limitations
prevented the defendant from being convicted of any lesser offenses to the indicted
offense of rape of a child. However, the defendant had agreed to enter an open plea to
the crime of incest, as an amended charge. The trial court then reviewed with the
defendant the plea agreement and waiver of rights form, which the defendant had signed.
Asked if he had any questions for the court or his attorney, the defendant responded, “I’m
good.” Subsequently, the trial court found that the defendant’s plea was voluntary and
that there was a factual basis for it: “Mr. Cole, I find your plea is voluntar[ily] and
knowingly entered on the advice of a competent attorney with whom you’re satisfied. I
find there’s a factual basis to that plea, and I find you guilty of incest.”

        Additionally, the trial court explained to the defendant the effect of the statute of
limitations on his charge:

               [THE COURT]: You were charged originally with the crime of rape
       of a child, which carries a much greater penalty than the crime to which you
       pled. Technically, the crime to which you pled has a [s]tatute of
       [l]imitation[s] that has previously run, which means that if you were
       charged with that at a trial, you couldn’t be found guilty of it. You can,
       however, waive the [s]tatute of [l]imitations with regard to the offense to
       which you pled guilty, and allow me to find you guilty of that offense,
       rather than going to trial for the other more serious offense. I presume
       that’s . . . what you want to do?

              [THE DEFENDANT]: (Nodded head affirmatively.)

              [DEFENSE COUNSEL]: It is, Your Honor.

                                       ANALYSIS

       On appeal, the defendant presents as his first issue the claim that his plea of guilty
was not voluntary and knowing because the trial court found that “a factual basis existed
for the plea without the presentation of any facts by the State.” In response, the State
argues that the involuntariness of a plea of guilty may be raised only in a post-conviction
petition but not in a direct appeal, as occurred in this case. As we will explain, we agree
with the State.

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       An involuntary guilty plea renders the judgment voidable, not void. See Archer v.
State, 851 S.W.2d 157, 163-64. (Tenn. 1993). A post-conviction proceeding is the
proper avenue for relief in such cases. Id. Although the defendant argues on appeal that
his plea of guilty should be set aside, his motion to do so was filed in the trial court after
his notice of appeal had been filed. Thus, the trial court no longer had jurisdiction to
consider the motion and, in fact, did not rule on it. See State v. Frank Randall Snowden,
No. W2005-01851-CCA-R3-CD, 2006 WL 1303946, at *2 (Tenn. Crim. App. May 11,
2006) (“Once the notice of appeal was filed, the jurisdiction of [the appellate] court
attached, and, correlatively, the trial court lost jurisdiction.”) (citing State v. Armstrong,
126 S.W.3d 908, 912 (Tenn. 2003)). Accordingly, the defendant’s claim that his plea
was involuntary and unknowing was made to a court which no longer had jurisdiction to
consider it. It is not properly before this court, and we may not consider it.

       The defendant’s other claim on direct appeal is that the trial court erred in
sentencing him, specifically by not considering all relevant factors.

       Under the 2005 amendments to the Sentencing Act, a trial court is to consider the
following when determining a defendant’s sentence and the appropriate combination of
sentencing alternatives:

              (1) The evidence, if any, received at the trial and the sentencing
       hearing;

              (2) The presentence report;

              (3) The principles of sentencing and arguments as to sentencing
       alternatives;

              (4) The nature and characteristics of the criminal conduct involved;

             (5) Evidence and information offered by the parties on the mitigating
       and enhancement factors set out in §§ 40-35-113 and 40-35-114;

              (6) Any statistical information provided by the administrative office
       of the courts as to sentencing practices for similar offenses in Tennessee;
       and

             (7) Any statement the defendant wishes to make in the defendant’s
       own behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2014).
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       The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). We review a trial court’s sentencing
determinations under an abuse of discretion standard, “granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707.

       At the sentencing hearing in this matter, the victim’s mother and sister, who was
the defendant’s ex-wife, testified, both regarding the background of the matter and its
effect on the victim. The defendant testified, as well as a friend of his. Generally, the
defendant testified as to his good employment history and lack of a criminal record. He
said he believed the allegations against him had been instigated by his ex-wife in an
attempt to regain custody of their daughter.

       At the conclusion of the hearing, the trial court discussed with both counsel the
appropriate enhancement and mitigating factors. As a mitigating factor, the court found
that the defendant had lived a “conviction free life.” As enhancement factors, the trial
court applied factor (4), that the victim was particularly vulnerable because of age or
physical or mental disability; factor (5), that the defendant treated the victim with
exceptional cruelty during the commission of the offense, saying that it applied “as a
practical matter”; factor (7), the offense was committed to gratify the defendant’s desire
for pleasure or excitement; and factor (14), the defendant, who was married to the
victim’s sister at the time, abused a position of trust to facilitate the commission of the
offense. Tenn. Code Ann. § 40-35-114(4), (5), (7), (14).

       We conclude that the trial court did not abuse its discretion in sentencing the
defendant to serve a term of six years. It is clear from the transcript of the sentencing
hearing that the trial court followed all necessary sentencing considerations. As the State
points out in its brief, the defendant abused his position in the family to twice force the
then eleven-year-old victim, who was deaf and communicated with sign language, to
perform oral sex on him. The victim’s mother testified as to the devastating and lasting
effects these forced acts had on her daughter. Accordingly, the defendant’s arguments
regarding his sentencing are without merit.




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                                    CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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