                                                                                        04/09/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             September 24, 2019 Session

               STATE OF TENNESSEE v. BARENTON BARNETT

                  Appeal from the Criminal Court for Polk County
                   No. 17CR118       Andrew M. Freiberg, Judge
                      ___________________________________

                           No. E2018-01735-CCA-R3-CD
                       ___________________________________


Defendant, Barenton Barnett, was indicted by the Polk County Grand Jury for theft of
property valued at $60,000 or more, a Class B felony. Defendant pleaded no contest to
vandalism of more than $2,500, a Class D felony, in exchange for a sentence of three
years to be suspended on probation, and Defendant was ordered to pay $8,207 in
restitution. Defendant sought to withdraw his plea. Following an evidentiary hearing,
the trial court denied Defendant’s motion. Defendant appeals. Having reviewed the
record and the briefs of the parties, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Jessica M. Van Dyke, Nashville, Tennessee, and Brennan M. Wingerter, Knoxville,
Tennessee, for the appellant, Barenton Barnett.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General; Stephen Davis Crump, District Attorney General; and Joseph
Hoffer, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Plea hearing

      At the plea hearing on March 26, 2018, Defendant stated that he wished to plead
no contest. Defendant stated that he was satisfied with his trial counsel’s representation
and that she had reviewed all discovery materials with him. Defendant added that trial
counsel had discussed with him the strengths and weaknesses of his case, any defenses he
might assert, and the potential range of punishment. The trial court asked Defendant,
“Did [trial counsel] advise you of how a jury trial could go here in Polk County if you
still desired one?” Defendant responded, “Yes.” The trial court explained, “when you
enter a plea, the case will resolve with finality and there won’t ever be another court
date[,]” to which Defendant responded that he understood.

       Defendant stated that he did not “like the plea,” but that it was “in [his] best
interests.” Defendant stated, “a felony is about to ruin my life.” Defendant indicated that
he was not threatened or coerced to enter his plea and that he was not under the influence
of any intoxicant. The following is a colloquy between the trial court and Defendant:

        THE COURT: Do you also understand that if you continued to maintain
        that not guilty plea, the only way you could be convicted of this or any
        crime is if you exercised your absolute, guaranteed, constitutional right
        to trial by jury?

        DEFENDANT: I mean, I don’t see any other African[-]American man
        here, so what would my jury be like? I feel like I wouldn’t have a fair
        trial if I did have a trial.

        THE COURT: Well –

        DEFENDANT: That’s why this is in my best interests. I can’t gamble
        with my freedom. I’ve got a family to take care of.

      Defendant explained that he had lost his job as a result of his arrest, and stated:

        DEFENDANT: . . . . I understand what’s going on, sir, but this is, this is
        in my best interests, so I have to run with it.

        THE COURT: Well, I mean, I don’t want to take a plea that’s not
        knowingly, freely, and voluntarily being entered.

        DEFENDANT: I don’t want to take a chance of losing my freedom for
        so many years.

      The trial court then explained to Defendant:

        THE COURT: At a jury trial, citizens of Polk County [] get summonsed
        to court as prospective jurors, are then questioned by the Court and the
        lawyers for both sides to ensure that the 12 citizen jurors selected to hear
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        the proof in your case are as fair and impartial as humanly possible. The
        12 citizens selected actually sit in those padded chairs right over there.
        They listen to your entire case, all the facts, evidence, proof, all of the
        sworn witness testimony. At the conclusion or end of your case, those
        citizens, in order to find you guilty of any crime, would have to come
        back into court and unanimously declare your guilt beyond a reasonable
        doubt. That’s the highest standard in the law.

        The trial court explained that Defendant was “presumed innocent,” that the State
carried the burden of proof at trial, that Defendant had the right to cross-examine the
State’s witnesses at trial, that Defendant could not be compelled to testify at trial, but that
he had the right to testify if he so chose, and that Defendant could subpoena witnesses to
testify in his behalf. The trial court again asked if Defendant wished to proceed to trial,
and Defendant replied, “No, sir.”

       The prosecutor stated the factual basis for the charge as follows:

        The facts of this case are that on August 11th, 2015, that Herman and
        Beverly Manzer who were moving from . . . the Rio Grande area of New
        Mexico to Murphy, North Carolina – had a trailer behind their truck that
        was filled with personal belongings. As they were proceeding eastbound
        on Highway 64, the trailer broke down, so they left it. Various members
        of the Polk County Sheriff’s Office saw that trailer there. Then on
        August the 11th, 2015, Deputy Jake Wallace and Brian Epperson were at
        the takeout, the non-commercial takeout area of the Ocoee River. And
        when a concerned citizen came to them and pointed out to them that just
        up in the easterly direction on Highway 64 from where they were
        located, that there was a trailer that appeared to be subject to a theft –
        when the officers went to where the trailer was, Your Honor, it was stuck
        in the pull off area and property from all . . . inside of the trailer was
        strewn all about the area. The bolts on the locks were cut, and some of
        the more valuable property from inside the trailer had been loaded into
        the truck that was before – as I indicated, Your Honor, the truck had a
        Florida registration, and the trailer had plates from New Mexico.

        Upon further investigation, Your Honor, they contacted the owners of
        the, of the trailer and found out that the folks that were in possession of
        the trailer, which included this defendant, did not have their permission
        to move the trailer, and definitely didn’t have permission to break into
        the trailer and to do anything with the property. The amount of damage
        to the property of the Manzers, Your Honor, was [$8,207.00].
                                             -3-
      The trial court accepted Defendant’s no contest plea to vandalism of more than
$2,500, a Class D felony, and imposed an agreed upon sentence of three years to be
suspended on probation and payment of $8,207 in restitution.

       On April 2, 2018, the trial court received a letter from Defendant in which
Defendant requested to withdraw his plea. The trial court construed the letter as a pro se
motion to withdraw his plea and set the matter for an evidentiary hearing. Defendant
retained new counsel and filed a motion to withdraw Defendant’s no contest plea
pursuant to Rule 32 of the Tennessee Rules of Criminal Procedure.

Hearing on motion to withdraw plea

       Trial counsel testified that she had been practicing law since 2008. She worked as
a public defender for four years and had been in private practice since leaving the public
defender’s office in 2012. Trial counsel testified that she had been engaged in the
practice of criminal law for her entire career. Trial counsel was appointed to represent
Defendant. She testified that she provided Defendant with discovery materials after she
received them from the State. Trial counsel estimated that she spoke to Defendant about
his case on eight to twelve occasions. In preparation for Defendant’s trial, trial counsel
obtained the list of the jury panels. Trial counsel researched potential jurors using
various social media and news media. Trial counsel testified that she “was looking for
potential police bias.” Trial counsel noted any “worrisome” findings and identified two
potential jurors she was going to “try to strike [ ] during the voir dire.” She testified that
she was unable to find any information on some of the potential jurors, and Defendant
“was upset with [her].” Trial counsel did not recall viewing a Facebook post by the Polk
County Sheriff’s Office about the incident. She testified that comments by a potential
juror on the post would have been important.

       Trial counsel was unable to estimate what percentage of the population of Polk
County was African-American. Trial counsel testified that Defendant sent her a text
message in August, 2017, expressing his concern about “the race issue in terms of jurors”
and asking her to request a change of venue to have his case tried in Chattanooga. Trial
counsel testified that she lacked sufficient evidence to demonstrate that Defendant could
not receive a fair trial in Polk County.

       Trial counsel testified that she was unable to meet with Defendant in person to
discuss his case because he lived in Clearwater, Florida. She testified that she inquired
with the Administrative Office of the Courts about reimbursement for travel expenses to
Florida to meet with Defendant, but such expenses would not be covered. She recalled

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that Defendant was unable to meet with her in Tennessee due to work and family
obligations.

        Trial counsel was unaware that in 2016, a Polk County candidate for the United
States Congress used the campaign slogan “Make America White Again” or that in 2011,
the FBI investigated threats towards an interracial couple in Ducktown. Trial counsel
testified that she believed there was a “high probability” that Defendant would be
convicted of theft based on the State’s proof. She testified that her trial strategy would
have been to cross-examine the victims on the condition and value of each item that was
stolen. Trial counsel testified that Defendant was ineligible for judicial diversion because
of his prior convictions in Florida. She testified that if Defendant had proceeded to trial,
she intended to cross-examine the investigating officers about “the fact that they did not
take fingerprint evidence.” She testified that one of Defendant’s co-defendants “wanted
to take [responsibility for] the charges,” but trial counsel “was concerned that a jury
would not believe that one person could have moved all these items, especially some of
the heavier items, into the truck on his own.”

        Defendant testified that he resided in Clearwater, Florida, and he was not familiar
with Polk County, Tennessee. Defendant testified that his only prior conviction was
“[m]isdemeanor battery [in] 2010.” Defendant testified that he spoke to trial counsel
about his case by telephone “[t]hree times, tops.” He testified that trial counsel did not
send him any correspondence other than the discovery packet. Defendant testified that
trial counsel never discussed with him a trial strategy or whether or not he should testify
at trial. Defendant “was looking forward to a trial.” He testified that the jury pool was
“all white” and that trial counsel told him that two potential jurors “were white
supremacists and if [Defendant went] to trial, most likely [he] would lose.” Defendant
felt he had only two choices, “I could go to trial in front of an all[-]white jury and most
likely lose, like she told me, or I can take a felony charge and lose my rights and a whole
bunch of stuff.” Defendant testified that he believed pleading no contest was in his best
interests because he “didn’t want to take the chance of sitting in jail till the day of trial
and losing like [he] was told.”

      On cross-examination, Defendant testified that he understood everything that was
asked of him at the plea hearing. Defendant acknowledged that he told the trial court that
he was satisfied with trial counsel’s performance.

        Elizabeth Bryan, Defendant’s girlfriend, testified that she had attended court dates
with Defendant and had conversations with trial counsel about Defendant’s case. Ms.
Bryan testified that “the only thing [trial counsel] ever sent [them] was discovery.” She
testified that trial counsel and Defendant never corresponded by email, and the only
phone call she observed between Defendant and trial counsel was to review discovery
                                            -5-
and lasted only three or four minutes. She testified that she and Defendant traveled to
Tennessee with the expectation that his trial would begin on March 26, 2018. She
testified that trial counsel “made it seem like [Defendant was] gonna lose[,]” and that trial
counsel stated “it was an all[-]white jury, they’re all pro-cop, and she found that two of
them were white supremacists and there was no chance.” Ms. Bryan understood that
Defendant’s potential sentence, if convicted as charged, was eight to twelve years’
confinement. Ms. Bryan testified that she and Defendant contacted other attorneys
immediately after Defendant entered his plea to discuss withdrawing his plea.

        Benjamin McGowan, an attorney from Chattanooga, was qualified to testify as an
expert in criminal defense litigation. He testified that he had reviewed the plea transcript,
the trial court’s file, Defendant’s letter to the trial court, photographs provided in the
State’s discovery response, and trial counsel’s record of hourly work in Defendant’s case.
Mr. McGowan testified that in cases where a defense attorney has “a bonafide concern
that race would impact in some material way the fairness of the trial[,]” he would request
individual voir dire of potential jurors. He testified that a motion for a change of venue
would require evidence to support it. Mr. McGowan testified that he was not familiar
with the composition of the population of Polk County. Mr. McGowan testified that
when a defendant expresses hesitancy or uncertainty during a plea hearing, his practice is
to ask for a recess to discuss any concerns with the defendant before proceeding.

        On cross-examination, Mr. McGowan testified that he did not speak to Defendant
or trial counsel in preparation for the hearing. He testified that he had seen “four or five”
photographs provided in discovery, but he had not reviewed any other discovery
materials, and he did not know what the State’s evidence was against Defendant. Mr.
McGowan conceded that he had no knowledge of any fact that could resolve the conflicts
in the testimonies of Defendant and trial counsel. Mr. McGowan testified that he had not
seen empirical evidence supporting the proposition that racial attitudes are influenced by
demographics. He also agreed that a desire to avoid incarceration is a common
motivation for a defendant to decide a plea is in his or her best interests.

      Documentary evidence from the U.S. Census Bureau from the 2010 census was
made an exhibit. This information disclosed that Polk County had a total population of
16,825 people of which 16,397 (97.5 percent) were white and 50 (0.3 percent) were
African-American. 233 (1.4 percent) were Hispanic or Latino of any race, 215 (1.3
percent) were of two or more races. Other races categorized were American Indian,
Alaskan native, Asian, and Native Hawaiian or other Pacific Islander with a combined
population of 113 (0.5 percent).




                                            -6-
Analysis

        On appeal, Defendant argues that the trial court abused its discretion by denying
his motion to withdraw his no contest plea because he did not knowingly and voluntarily
enter his plea. Defendant contends that the entry of his plea was a manifest injustice
because Defendant feared that he could not receive a racially unbiased trial in Polk
County, and he entered his plea without the effective assistance of counsel. The State
responds that Defendant has failed to demonstrate that a manifest injustice occurred, and
the trial court properly denied Defendant’s motion.

       The standard of review for questions related to the withdrawal of a plea is abuse of
discretion. State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010) (citing State v. Crowe,
168 S.W.3d 731, 740 (Tenn. 2005)). A trial court abuses its discretion when it applies
incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly
erroneous assessment of the proof, or applies reasoning that causes an injustice to the
complaining party. State v. Jordan, 325 S.W.3d 1, 38-40 (Tenn. 2010). This court will
also find an abuse of discretion when the trial court has failed to consider the relevant
factors provided by higher courts as guidance for determining an issue. State v. Lewis,
235 S.W.3d 136, 141 (Tenn. 2007).

       Tennessee Rule of Criminal Procedure 32(f) provides that a guilty plea may be
withdrawn before a sentence is “imposed . . . for any fair and just reason.” After a
sentence is imposed but before the judgment is final, a plea may be withdrawn “to correct
manifest injustice.” Rule 32(f) makes it clear that “a criminal defendant who has pled
guilty does not have a unilateral right to later withdraw his plea either before or after
sentencing.” Phelps, 329 S.W.3d at 444 (citing Crowe, 168 S.W.3d at 740; State v.
Mellon, 118 S.W.3d 340, 345 (Tenn. 2003)). “The defendant bears the burden of
establishing sufficient grounds for withdrawing [a] plea.” Phelps, 329 S.W.3d at 444; see
State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). In determining whether
to grant a motion to withdraw a guilty plea, trial courts “should always exercise . . .
discretion with caution in refusing to set aside a plea of guilty, to the end that one accused
of crime may have a fair and impartial trial.” Phelps, 329 S.W.3d at 444 (internal
quotation and citation omitted).

        “Manifest injustice” is not defined in the text of Rule 32(f), but courts have
identified circumstances that meet the manifest injustice standard that is required for a
withdrawal of a plea after sentencing. State v. Virgil, 256 S.W.3d 235, 240 (Tenn. Crim.
App. 2008). Manifest injustice has occurred where: (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; (3) the plea was
not knowingly, voluntarily, and understandingly entered; and (4) the defendant was
                                            -7-
denied the effective assistance of counsel in connection with the plea. Id. However, a
defendant’s mere change of heart about pleading guilty or a defendant’s dissatisfaction
with the punishment that he or she ultimately receives is not manifest injustice. Crowe,
168 S.W.3d at 743 (citing Turner, 919 S.W.2d at 355). In Blankenship v. State, our
supreme court set forth the following factors to be considered when determining if a
defendant’s plea was entered in a knowing, voluntary, and understanding fashion:

        [T]he relative intelligence of the defendant; the degree of his familiarity
        with criminal proceedings; whether he was represented by competent
        counsel and had the opportunity to confer with counsel about the options
        available to him; the extent of advice from counsel and the court
        concerning the charges against him; and the reasons for his decision to
        plead guilty, including a desire to avoid a greater penalty that might
        result from a jury trial.

Powers v. State, 942 S.W.2d 551, 556 (Tenn. 1996) (quoting Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993)).

        In a very detailed written order denying Defendant’s motion to withdraw his no
contest plea, the trial court accredited trial counsel and explicitly resolved all conflicts in
the testimony “against [Defendant] in favor of, in order, the official transcript of the plea
proceedings of March 26, 2018 . . . , the testimony of [trial counsel], and finally the
testimony of Mr. McGowan.” The trial court found that trial counsel’s performance
“well exceeded comparative representation in like cases by reasonably competent
attorney, most notably demonstrated by her attention to detail in this case.” The trial
court noted that trial counsel investigated prospective jurors and discovered racial bias of
two prospective jurors. The trial court found that trial counsel “met and consulted with
[Defendant] numerous times during the pendency of his cases[,]” and that trial counsel
adequately investigated “the factual basis of this case,” noting that trial counsel
interviewed one law enforcement officer involved in the investigation and attempted
without success to interview another law enforcement officer in the case. Regarding a
change of venue, the trial court found that trial counsel “did not find it appropriate after
an informed investigation of the legal burden to establish such a claim.” The trial court
noted that trial counsel negotiated a plea agreement to the lesser offense of vandalism,
and avoided any admittance of guilt and any incarceration. The trial court found that Mr.
McGowan’s testimony largely supported the strategic decisions of trial counsel. The trial
court concluded that Defendant “utterly failed to demonstrate that his trial lawyer’s
actions or omissions were so significant as to fall below the objective standard of
reasonableness under prevailing professional norms in criminal cases.”



                                             -8-
       The trial court found Defendant’s testimony not credible. The trial court
determined that Defendant wished “to avoid any trial and any potential incarceration.”
The trial court found that Defendant was of “above average” intelligence and had
experience with the criminal justice system. The trial court noted that Defendant “asked
extremely probing and intelligent questions” of the court during the plea colloquy, and
Defendant “presented to the [c]ourt as a very thoughtful and intelligent individual during
the hearing of this [m]otion.”

       The trial court found that the racial composition of Polk County was
“overwhelmingly” Caucasian. The trial court observed that the alleged racial biases of
the potential jury would “forever remain a mystery and pure hypothetical” because
Defendant opted not to proceed to trial. The trial court concluded that Defendant had
failed to show any manifest injustice and that Defendant voluntarily and knowingly
entered his plea.

       Defendant asserts on appeal that during the plea colloquy, he “clearly and
unequivocally expressed concern . . . about his ability to get a fair trial when no other
African-Americans were present.” Defendant suggests that “the trial court should have
refused to accept [Defendant]’s plea because it was based on fear of racial bias.” Our
review of the plea hearing transcript, however, reveals that when Defendant expressed
concern about the racial composition of the jury pool, the trial court carefully explained
in detail that Defendant had the right to plead not guilty and proceed to trial. The trial
court stated that the potential jurors would be subject to questioning “to ensure that the 12
citizen jurors selected to hear the proof . . . are as fair and impartial as humanly possible.”
Defendant stated that he believed that entering a no contest plea was in his best interests.

       In his brief on appeal, Defendant asserts that his “fear of racial bias at trial was
legitimate.” At the hearing on Defendant’s motion to withdraw his plea, however,
Defendant presented no evidence that the entire jury venire or even a substantial portion
of the jury venire in Polk County was racially biased. In denying Defendant’s motion to
withdraw his plea, the trial court concluded that the racial composition of Polk County
was a “consideration” that Defendant took into account when determining whether the
plea was in his best interest. The trial court concluded, however, that Defendant’s
primary motivation for entering the plea was his desire to avoid incarceration.

        The detailed findings by the trial court go directly to the Blankenship factors
regarding the relative intelligence of Defendant, his familiarity with criminal
proceedings, his opportunity to confer with trial counsel, trial counsel’s competency and
the extent of her advice to Defendant, and the reasons for Defendant’s decision to plead
no contest, including his desire to avoid a greater penalty that might result from a jury
trial. Blankenship is the applicable legal standard for determining if a plea was entered in
                                             -9-
a knowing, voluntary, and understanding fashion. Thus, the trial court applied the
relevant factors and correct legal standard as it determined that manifest injustice had not
occurred when Defendant entered his plea. We find that the trial court did not abuse its
discretion when denying Defendant’s motion.

        Regarding Defendant’s claim that ineffective assistance of counsel resulted in
manifest injustice, Defendant was required to establish that (1) counsel’s performance
was deficient and (2) the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). “[F]ailure to prove either deficiency or prejudice provides a sufficient basis to
deny relief on the ineffective assistance claim.” Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996). To establish the performance prong, a defendant must show that “the
advice given, or the services rendered . . . , are [not] within the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975); see Strickland, 466 U.S. at 690. The court must determine if these acts or
omissions, viewed in light of all of the circumstances, fell “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. To establish the
prejudice prong, a defendant must show that “there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Walton v. State, 966 S.W.2d
54, 55 (Tenn. Crim. App. 1997).

       Defendant asserts that trial counsel’s failure to request a change of venue and to
prepare for individual voir dire was deficient and induced his plea. Trial counsel testified
that she researched potential racial bias among the jury venire and identified two
potential jurors whose views as expressed on social media were concerning. Trial
counsel testified that she would have explicitly asked potential jurors about any bias or
prejudices during voir dire. Trial counsel also testified that she lacked the evidence
necessary to support a change of venue. She testified that she discussed these issues with
Defendant in preparation for his trial. Defendant has presented no evidence upon which a
motion for a change of venue would have been granted had Defendant proceeded to trial.
Defendant’s expert witness conceded that he was not aware of any empirical evidence
demonstrating that potential jurors from a less-diverse region displayed more bias than
jurors from a more diverse region. The trial court accredited trial counsel’s testimony
and concluded that counsel’s performance was not deficient. We conclude that the trial
court did not abuse its discretion in denying Defendant’s motion.




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                              CONCLUSION

For the aforementioned reasons, we affirm the judgment of the trial court.


                           ____________________________________________
                           THOMAS T. WOODALL, JUDGE




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