        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 21, 2016

              STATE OF TENNESSEE v. KEVIN DEAN ATKINS

                  Appeal from the Circuit Court for Stewart County
                    No. 2014-CR-3      Larry J. Wallace, Judge
                      ___________________________________

              No. M2015-01636-CCA-R9-CD – Filed November 2, 2016
                     ___________________________________

The Defendant, Kevin Dean Atkins, appeals the trial court’s order setting aside a plea
agreement whereby the Defendant pled guilty to public intoxication and admitted
violating the terms of his probation for a prior conviction. The Defendant filed a motion
for permission to seek an interlocutory appeal of the trial court’s order pursuant to Rule 9
of the Tennessee Rules of Appellate Procedure, and his motion was granted. On appeal,
the State concedes that the trial court’s order violated the Defendant’s double jeopardy
rights. We agree and accept the State’s concession. Accordingly, we reverse the
judgment of the trial court and remand the case for further proceedings consistent with
this opinion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed;
                                   Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

James R. Potter, Clarksville, Tennessee, for the appellant, Kevin Dean Atkins.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; John W. Carney, District Attorney General; and Brooke M. Orgain, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

     On January 21, 2014, the Defendant was indicted for driving under the influence
(“DUI”) and DUI per se. See T.C.A. § 55-10-401(1), (2). On November 24, 2014, the
Defendant appeared before the trial court on the DUI charges and a violation of probation
charge. Defense counsel announced that the Defendant agreed to waive the hearing on
the violation of probation, serve ten days in jail on the weekends, and extend the
probationary period by one year. Defense counsel also announced that the Defendant
agreed to plead guilty to a reduced charge of public intoxication and serve a probated
sentence of eleven months and twenty-nine days to run consecutive to the violation of
probation. In response to questioning by the trial court, both the State and defense
counsel advised the trial court that everything had been addressed. The trial court agreed
to accept the weekend service of ten days if the Defendant passed a drug screen.

       The Defendant confirmed under oath that he wished to waive the hearing on the
probation violation charge and admit the violation. The trial court found the Defendant
in violation of his probation and sentenced him to ten days in jail to be served on
weekends upon the passing of a drug screen. The trial court also extended the
Defendant’s probation for one year after the Defendant said he agreed to the extension.

       The trial court advised the Defendant that he was charged with an amended count
of public intoxication. Defense counsel stated that public intoxication was a Class C
misdemeanor, even though he had previously announced that the conviction was a Class
A misdemeanor with a sentence of eleven months and twenty-nine days. When asked
what agreement had been reached with the prosecutor, defense counsel replied, “We
didn’t discuss the time. It was just the charge.” The prosecutor stated that if the
Defendant was “going to plea to public intox, then a C misdemeanor is fine.” The trial
court asked, “So it will be 30 days now?” The prosecutor replied, “Yeah.” The trial
court advised the Defendant of his right to a trial, and the Defendant confirmed that he
wished to waive his right to a trial and enter a guilty plea.

      The prosecutor then set out the factual basis for the plea as follows:

      Deputy Jody L. Batton of the Stewart County sheriff’s office was
      dispatched to 1711 Tobacco Port Road in Bumpus Mills Tennessee on a 9-
      1-1 call, a vehicle being off the roadway and on fire. Upon the officer’s
      arrival, the fire department was already on there, Officer Batton made
      contact with the defendant Kevin Atkins and smelled an [odor] of alcohol
      coming from his person. His speech was slow and slurred and his eyes
      were watery and bloodshot…. [T]he defendant did admit to drinking two
      beers in a four hour span and he performed poorly on field sobriety tests….
      I think they did take blood from him, but he was taken to the hospital for a
      health check due to the accident.



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The trial court stated, “The Court finds a factual basis for it, as well as admissions of the
defendant, accepts the plea agreement. It’s amended to a public intox, Class C
misdemeanor sentence conviction, 30 day sentence consecutive—suspended to probation,
consecutive to the [violation of probation].” The trial court scheduled the Defendant’s
report date for the ten-day sentence for Friday, November 28, 2014.

       On November 24, 2014, the trial court entered an order, stating:

       Upon recommendation of a plea agreement by the State of Tennessee
       through the District Attorney’s Office and the defendant through the
       defendant’s attorney. The State of Tennessee and the victim’s interest (if
       applicable) has been represented by the District Attorney’s Office and the
       defendant’s interest has been represented by the defendant’s attorney. The
       District Attorney’s Office in making their recommendation of this plea
       agreement has weighed the relative strengths and weaknesses of their case
       and the entire record of this action and from all of which, the Court finds as
       follows:
       1.) That based on the foregoing recommendation, the following attached
       Order of the Judgment is hereby authorized and incorporated herewith.

The judgment, however, was not attached to the trial court’s order.

       On January 13, 2015, the State filed a “Motion to Set Aside Judgment” in case
number 2014-CR-3, the public intoxication conviction. The State alleged that the
Defendant’s guilty plea was based upon an offer presented to defense counsel by Connie
Turner, a probation officer. The State further alleged that when the prosecutor received
the offer from defense counsel, the prosecutor believed it to be an offer made by one of
the other assistant attorney generals in the district. According to the State, when the
prosecutor stated this belief on the record, neither defense counsel nor Ms. Turner
objected. The State maintained that as a result, the guilty plea was invalid. The
Defendant filed an answer, asserting that he entered a knowing and voluntary plea with
full knowledge by the State and that the State was, therefore, barred from raising the
issue on the grounds of estoppel. The Defendant also asserted that the judgment was
final and that the State’s motion was time- barred.

       During a hearing on the State’s motion, the Defendant did not dispute that Ms.
Turner approached defense counsel and handed him a written offer disposing of the
probation violation charge and the DUI charges. The prosecutor stated that she believed
that another prosecutor had made the offer and that defense counsel also may have
believed that a prosecutor made the offer. The prosecutor characterized the events as a
“misunderstanding.”
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       At the conclusion of the hearing, the trial court granted the State’s motion. The
court found that the judgment was not final because he had not yet signed it. The court
also found that there was no “mutual meeting of the minds” between the parties. The
court stated:

       And because the plea agreement was for everything, includ[ing] the
       [violation of probation] and the DUI, the Court is going to set aside all of
       it…. I don’t know if the State’s motion was just for the DUI or not, but it’s
       going to set aside all of it. And so, basically, the parties—both sides will be
       returning to status quo as they were before November 24, 2014.

       The Defendant subsequently sought permission from the trial court to file an
application for permission to appeal pursuant to Rule 9 of the Tennessee Rules of
Appellate Procedure. The Defendant filed a notice, attaching his incarceration record
which showed that he had served eight days of his ten-day sentence.1 The trial court
granted the Defendant’s motion, and this court subsequently granted the Defendant’s
application for permission to appeal.

                                       ANALYSIS

       The Defendant contends that the trial court erred in vacating his guilty plea. The
State concedes that the trial court’s order violated the Defendant’s double jeopardy rights.
We agree with the State that under the circumstances of this case, the trial court’s order
vacating the Defendant’s guilty plea violated his double jeopardy rights.

        Rule 32(f) of the Tennessee Rules of Criminal Procedure provides for a
mechanism by which a defendant may move to set aside a guilty plea after the plea has
been accepted by the trial court. The Tennessee Rules of Criminal Procedure do not
provide the State with the same opportunity. Nevertheless, this court has recognized a
trial court’s authority to set aside a guilty plea after the court has accepted the plea but
before the judgment is entered. See State v. Burris, 40 S.W.3d 520, 523-24 (Tenn. Crim.
App. 2000). “[A]fter judgment has been entered[,] a trial court does not have the inherent
power to withdraw its acceptance of the plea.” Id. at 524 (citations omitted). Because
the judgment had not been entered in the present case, the trial court had the authority to
set aside the Defendant’s guilty plea. Nevertheless, we must consider whether the trial
court’s decision to withdraw its acceptance of the Defendant’s plea agreement violated
the double jeopardy provisions of the United States and Tennessee Constitutions.


       1
        According to the record, the Defendant was incarcerated November 28-30 and
December 5-7, 19-21, and 26-28 of 2014.
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       The United States and Tennessee Constitutions protect an accused from being
twice placed in jeopardy for the “same offense.” See U.S. Const. amend. V; Tenn. Const.
art. I, § 10. The prohibition against double jeopardy affords three fundamental
protections: (1) protection against a second prosecution following an acquittal; (2)
protection against a second prosecution following conviction; and (3) protection against
multiple punishments for the same offense. State v. Watkins, 362 S.W.3d 530, 547
(Tenn. 2012) (citations omitted). The policy reasons supporting these protections include
goals of certainty, reliability, and respect for the “judicial process” and “finality of
judgments,” Bray v. State, 506 S.W.2d 772, 775 (Tenn. 1974); prevention of
prosecutorial overreaching, Ohio v. Johnson, 467 U.S. 493, 498-99 (1984); and
prevention of the expense, embarrassment, and anxiety of repeated defenses, id.

        The Tennessee Supreme Court has held that “jeopardy does not attach at a hearing
on a guilty plea until the plea is unconditionally accepted.” State v. Todd, 654 S.W.2d
379, 383 (Tenn. 1983). In Todd, the parties reached an agreement reducing the
defendant’s second degree murder charge to voluntary manslaughter, and the trial court
signed an order during the plea hearing reducing the charge to voluntary manslaughter.
Id. at 380-81. After the trial court concluded during the same plea hearing that the
agreement reached by the parties regarding the defendant’s sentence was too lenient, the
trial court rejected the plea agreement and ordered the defendant to stand trial for second
degree murder. Id. at 381. On appeal, the Tennessee Supreme Court held that because
the trial court never accepted the plea, jeopardy never attached, and “the trial court,
therefore, was not prohibited by the double jeopardy clause from revoking its preliminary
determination to reduce the charge as part of the plea negotiations. Until a final judgment
is entered a court is free to reject the plea and plea agreement.” Id. at 383 (citing United
States v. Sanchez, 609 F.2d 761, 763 (5th Cir. 1980)).

        In State v. Atkins, this court held that jeopardy did not attach when the trial court
initially accepted the defendant’s best interest plea but later rejected the State’s
sentencing recommendation following a separate sentencing hearing when the trial court
elected to treat the plea agreement as contingent upon the court’s review of the
presentence report. State v. Atkins, 867 S.W.2d 350, 353 (Tenn. Crim. App. 1993); Tenn.
R. Crim. P. 11(c)(1)(C), (c)(3)(A) (providing that when the State agrees that a specific
sentence is appropriate as part of a plea agreement, the trial court may accept or reject the
agreement or “may defer its decision until it has had an opportunity to consider the
presentence report”).

       In State v. Burris, this court held that a trial court’s decision to set aside a guilty
plea after the court had accepted the plea did not violate double jeopardy when the
court’s acceptance of the plea was premised on the trial court’s misunderstanding of the
terms of the plea and the misunderstanding was reflected in the record. Burris, 40
                                             -5-
S.W.3d at 526-27. The trial court accepted the defendant’s guilty plea to lesser-included
drug offenses and sentenced the defendant to the agreed upon sentence. Id. at 522-23.
The only issue that remained was whether the defendant would receive a suspended
sentence. Id. at 523. During the sentencing hearing, the trial court learned that it did not
have the same understanding of the terms of the plea as the parties. Id. The court
subsequently withdrew its acceptance of the plea and declined to accept a plea to any
charge other than that set forth in the indictment. Id. In upholding the trial court’s
decision to withdraw its acceptance of the plea, this court noted that a final judgment had
not been entered, that the trial court’s misunderstanding of the terms of the plea were
reflected in the transcript of the guilty plea hearing, and that the policies behind the
double jeopardy clause were not at issue. Id. at 525-27.

        While a final judgment had not been entered in the present case, the record reflects
that the trial court unconditionally accepted the Defendant’s guilty plea and all terms of
the plea agreement, including the recommended sentences, during the plea hearing. The
trial court then entered an order reflecting its acceptance of the Defendant’s guilty plea.
No issues requiring a separate sentencing hearing remained. Cf. id. at 523 (noting that a
separate sentencing hearing was required to determine the manner of service of the
defendant’s sentence); Atkins, 867 S.W.2d at 353 (noting that the trial court elected to
treat the plea agreement as contingent upon its review of the presentence report). Shortly
after the trial court’s acceptance of what the court later found to be a “package deal” that
resolved both the violation of probation and DUI charges, the Defendant began serving
his ten-day sentence in confinement for violating his probation and completed at least a
majority of the sentence before the State filed a motion seeking to withdraw the plea.
Thus, the Defendant appears to have relied upon the agreement to his detriment.

        Moreover, unlike Burris, no misunderstanding existed regarding the terms of the
plea agreement. See Burris, 40 S.W.3d at 526-27. The transcript of the plea hearing
reflects that the parties and the trial court understood all terms of the plea agreement.
Rather, the misunderstanding involved the source of the plea offer, which was not yet
discovered at the time of the plea hearing. It was only after the trial court unconditionally
accepted the Defendant’s plea and the Defendant served at least a majority of his
sentence before the misunderstanding came to light.

        Nothing in the record established that the misunderstanding was derived from
fraudulent acts committed by the Defendant or his counsel. See State v. Fred Fulgenzi,
No. 02C01-9802-CR-00038, 1999 WL 544645, at *4 (Tenn. Crim. App. July 27, 1999)
(addressing whether defense counsel engaged in fraudulent acts in procuring the plea,
justifying the trial court’s decision to set aside the defendant’s guilty plea). During the
hearing on the State’s motion to set aside the plea agreement and in its brief on appeal,
the State argued that both parties mistakenly believed that a prosecutor with the district
                                            -6-
attorney general’s office had approved the plea offer. The State acknowledged that
multiple prosecutors had appeared before the trial court in Stewart County, and the trial
court described the day of the plea hearing as “hectic.” Accordingly, under the unique
circumstances of this case, we conclude that the trial court’s decision to withdraw its
acceptance of the plea agreement violated the Defendant’s double jeopardy rights.

                                       CONCLUSION

       Based on our review of the record and the applicable law, we reverse the trial
court’s order vacating the Defendant’s plea agreement and remand the case to the trial
court for entry of judgments in accordance with the terms of the plea agreement.




                                            ____________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




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