             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                           February 2000 Session

               STATE OF TENNESSEE v. THOMAS ANDERSON, JR.

                        Appeal from the Circuit Court for Williamson County
                           No. II-398-102-B    Cornelia A. Clark, Judge



                       No. M1999-01384-CCA-R3-CD - Filed August 31, 2000


The appellant, Thomas Anderson, Jr., pled guilty in the Williamson County Circuit Court to two
counts of sale of cocaine, class C felonies. The trial court1 sentenced the appellant as a persistent,
Range III offender to consecutive terms of ten years incarceration in the Tennessee Department of
Correction. The appellant now appeals his convictions and sentences, presenting the following
issues for our review: (1) whether the trial court erred in imposing consecutive sentencing; (2)
whether the trial court erred in denying the appellant placement in a community corrections program;
and (3) whether the trial court erred in denying the appellant’s motion to withdraw his guilty pleas.
Following a review of the record and the parties’ briefs, we reverse the judgments of the trial court
and remand this case for proceedings consistent with this opinion.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH, J.J., joined.

Judy A. Oxford, Franklin, Tennessee, and Larry D. Drolsum, Assistant District Public Defender, for
the appellant, Thomas Anderson, Jr.

Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, and
Sharon E. Tyler, Assistant District Attorney General, for the appellee, State of Tennessee.

                                           OPINION
                On May 6, 1999, pursuant to his pleas of guilty, the appellant was convicted in the
Williamson County Circuit Court of two counts of sale of cocaine, class C felonies. For his offenses,
the appellant received consecutive, Range III sentences of ten years incarceration in the Tennessee


         1
           Three different judges presided over the appellant’s case. Judge Donald P. Harris presided over the entry of
the appellant’s gu ilty pleas. Judge Cornelia A. Clark presided over the appellant’s sentencing hearing. Judge Henry D.
Bell presid ed over the hearing on th e appellan t’s motion to with draw his guilty ple as.
Department of Correction. On appeal, the appellant challenges the trial court’s sentencing
determinations. Specifically, the appellant asserts that the trial court erred in imposing consecutive
sentencing and in denying him placement in a community corrections program. Moreover, the
appellant challenges the trial court’s denial of his motion to withdraw his guilty pleas. We now
reverse the judgments of the trial court and remand this case for proceedings consistent with this
opinion.

                                    I. Factual Background
               On March 9, 1998, a Williamson County Grand Jury indicted the appellant for two
counts of delivery of cocaine and two counts of sale of cocaine. These indictments arose from the
appellant’s involvement on June 25, 1997, in a series of drug sales to confidential informants
employed by law enforcement agencies. The illegal transactions were recorded on video and audio
tape.

                At the time of these offenses, the appellant was released on an appeal bond in a case
in which the appellant had been convicted in 1994 of theft of property worth more than five hundred
dollars and sentenced to six years incarceration in the Tennessee Department of Correction.2 The
appellant’s criminal history also included 1982 convictions of attempted second degree burglary and
attempted third degree burglary, a 1984 conviction of receiving stolen property, and 1990
convictions of third degree burglary, petite larceny, and possession of a counterfeit controlled
substance.

               On November 24, 1998, the appellant pled guilty to two counts of sale of cocaine.
The “Negotiated Plea Agreement” reflects the parties’ agreement that the appellant was a persistent
offender and their agreement that the trial court would determine the appellant’s sentences and
whether his sentences should be suspended. The trial court conducted a sentencing hearing on April
16, 1999. At the hearing, the appellant’s attorney argued that the appellant should receive the
minimum sentence within Range III for both offenses, that his sentences should be served
concurrently, and that the appellant should be placed in a community corrections program. At the
conclusion of the hearing, the trial court agreed that minimum sentences of ten years incarceration
were appropriate but noted that it was required by the Tennessee Rules of Criminal Procedure to
impose consecutive sentencing. Moreover, the court concluded that, because the appellant was
currently incarcerated pursuant to his 1994 conviction of theft, he was not eligible for community
corrections.

               On May 5, 1999, following the imposition of his sentences and before the judgments
of conviction became final, the appellant filed a motion to withdraw his guilty pleas. The trial court
conducted a hearing on the appellant’s motion on May 24, 1999. At the hearing, the appellant
asserted that he was innocent. He also asserted that he did not enter his pleas knowingly and
understandingly due to his ignorance of the factual bases of the pleas. Moreover, the appellant


        2
           This court affirmed the appellant’ s 1994 c onviction. State v. Anderson, 985 S.W.2d 9 (Tenn. Crim. App.
1997) , perm. to appeal denied, (Tenn. 1998).

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asserted that he would not have pled guilty but for counsel’s assurance that he was eligible for
community corrections. The appellant’s attorney confirmed that he had advised the appellant that
he would be eligible for placement in a community corrections program and further confirmed that
the appellant’s eligibility for community corrections was a significant factor in the appellant’s
decision to plead guilty. At the conclusion of the hearing, the trial court denied the appellant’s
motion.

                                            II. Analysis
a.      Sentencing
        i.     Consecutive Sentencing
               The appellant first contends that the trial court erred in concluding that Tenn. R.
Crim. P. 32(c)(3) required consecutive service of his sentences for sale of cocaine. The State
concedes the appellant’s point but asserts that this court should exercise its power of de novo review
and conclude that consecutive sentencing is appropriate in light of the appellant’s extensive record
of criminal activity. See Tenn. Code Ann. § 40-35-115(b)(2) (1997). We need not address the
State’s contention due to our disposition of the following issues.

       ii.      Community Corrections
                The appellant next asserts that the trial court erred in denying him placement in a
community corrections program due to his incarceration pursuant to his 1994 conviction of theft.
The appellant contends that Tenn. Code Ann. § 40-36-106(a) (1997) only precludes eligibility when
“a defendant has already been sentenced to incarceration on the conviction at issue.” The State
responds that the appellant’s interpretation is contrary both to the plain meaning of the statute and
to this court’s prior decisions. We agree with the State and conclude that the appellant, was not
eligible for community corrections. State v. Hill, 987 S.W.2d 867, 871 n.3 (Tenn. Crim. App. 1997);
State v. Davidson, No. E1999-01465-CCA-R3-CD, 2000 WL 274079, at *3 (Tenn. Crim. App. at
Knoxville, March 13, 2000); State v. Redd, No. 01C01-9608-CC-00342, 1997 WL 722786, at *6
(Tenn. Crim. App. at Nashville, November 20, 1997); Hilliard v. State, No. 02C01-9507-CC-00182,
1996 WL 417667, at *4 (Tenn. Crim. App. at Jackson, July 26, 1996).

b.     Motion to Withdraw Guilty Pleas
               Finally, the appellant contends that the trial court erred in denying his motion to
withdraw his guilty pleas. In this regard, the appellant primarily asserts that he did not knowingly
and understandingly enter his pleas of guilty. Citing State v. Turner, 919 S.W.2d 346, 355 (Tenn.
Crim. App. 1995), the State responds that the appellant has failed to demonstrate a manifest injustice
warranting the withdrawal of his pleas.

               We initially note that this court has stated that an appeal as of right from the denial
of a motion to withdraw a guilty plea is not contemplated by Tenn. R. App. P. 3(b). State v. Peele,
No. E1999-00907-CCA-R3-CD, 2000 WL 782054, at **1-2 (Tenn. Crim. App. at Knoxville, June
20, 2000); State v. Taylor, No. W1998-006560-CCA-R3-CD, 2000 WL 279893, at *2-3 (Tenn.
Crim. App. at Jackson, March 10, 2000)(Ogle, J., concurring in result only). That having been said,
Tenn. R. App. P. 3(b) and Tenn. R. Crim. P. 37(b)(2)(iii) do contemplate an appeal as of right from


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a conviction upon a plea of guilty when the issue raised by the appellant was not waived as a matter
of law by the plea of guilty, and the error is apparent from the record of the proceedings below. See
also Tenn. R. Crim. P. 37, Advisory Commission Comments; Turner, 919 S.W.2d at 360-361. The
entry of a guilty plea does not constitute a waiver of a claim on direct appeal that the plea was not
voluntarily, knowingly, and understandingly made under constitutional and procedural rule
requirements. See State v. Frazier, 784 S.W.2d 927, 928 (Tenn.1990); State v. Mackey, 553 S.W.2d
337, 339-42 (Tenn.1977); State v. Wilson, No. 03C01-9609-CC-00352, 1998 WL 564021, at *6
(Tenn. Crim. App. at Knoxville, September 1, 1998), perm. to appeal granted, (Tenn. 1999).
Moreover, the invalidity of the appellant’s pleas in this case is apparent upon the face of the existing
record.

                 In order to pass constitutional muster, an accused’s guilty plea must be entered
voluntarily, knowingly, and understandingly. Parke v. Raley, 506 U.S. 20, 28-29, 133 S.Ct. 517, 523
(1992); Boykin v. Alabama, 395 U.S. 238, 242-244, 89 S.Ct. 1709, 1712-1713 (1969). See also
Blankenship v. State, 858 S.W.2d 897, 904-905 (Tenn. 1993). In other words, a guilty plea must
represent a voluntary and intelligent choice among the alternative courses of action open to the
defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970). Thus, a defendant
must possess a sufficient awareness of the relevant circumstances and likely consequences of his
plea. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469 (1970). It is largely undisputed
in this case that, at the time of the appellant’s guilty pleas, he understood, erroneously, that he was
eligible for community corrections and that the trial court would possess discretion at his sentencing
hearing to order his placement in a community corrections program. Indeed, the record reflects that
both the appellant’s attorney and the State suffered the same misapprehension. Moreover, it is
undisputed that the appellant’s eligibility for community corrections was a determinative factor in
his decision to plead guilty. Under these circumstances, we must set aside the appellant’s
convictions and remand this case for a trial upon the original indictment. See, e.g., State v. Radford,
No. 30, 1986 WL 10126, at **1-2 (Tenn. Crim. App. at Knoxville, September 17, 1986). Cf. Shazel
v. State, 966 S.W.2d 414, 416 (Tenn. 1998).

                                       III. Conclusion
              For the foregoing reasons, we reverse the judgment of the trial court, order
reinstatement of the original eight count indictment and remand for trial or other appropriate
proceeding.

                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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