        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs February 2, 2016

               STATE OF TENNESSEE v. QUINTON BONNER

                 Appeal from the Criminal Court for Shelby County
                   No. 13-02771    James C. Beasley, Jr., Judge




                No. W2015-00812-CCA-R3-CD - Filed April 7, 2016
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Defendant, Quinton Bonner, appeals the trial court‟s denial of a motion to withdraw his
guilty plea. We affirm the judgment of the trial court. However, we remand the matter
for entry of judgment forms in Counts 2, 3, and 4.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Harry E. Sayle III (on appeal), Memphis, Tennessee; Nigel Lewis, Assistant District
Public Defender (at hearing and sentencing); and Dewun Settle (at trial and guilty plea),
Memphis, Tennessee; and for the appellant, Quinton Bonner.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilbur, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Chris West and Stephen
Barnes, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

       This is Defendant‟s direct appeal from the Shelby County Criminal Court‟s denial
of his motion to withdraw his plea to aggravated assault. After a sentencing hearing the
trial court imposed a ten-year sentence, as a persistent offender, to the Tennessee
Department of Corrections.

       In June of 2013, Defendant was indicted by the grand jury for two counts of
aggravated assault, one count of domestic assault and one count of false imprisonment.
A jury trial began on April 28, 2014.
        Stacie Clayton, the wife of Defendant, testified about the events that gave rise to
the indictment. According to Ms. Clayton, she and Defendant were engaged in an
ongoing argument about Defendant‟s lack of “respect toward the home” and habit of
coming home extremely late at night. Ms. Clayton had two children and she was
frustrated by Defendant‟s behavior because “doors opening and closing certain times of
the night” was not something that she and the children were used to. On the night of the
incident, at around eleven or twelve o‟clock at night, Defendant was not home. Ms.
Clayton tried to prevent Defendant from coming in to the house when he arrived home by
tying the front door and the storm door together. Ms. Clayton took both of her sons to
bed with her because she “knew [Defendant] was going to be coming in rather late and
[she] was worried about getting into an argument.” She thought that by having the
children in her room it would “keep down an argument.”

       Defendant arrived home between 1:00 a.m. and 3:00 a.m. He was “fussing and
cussing” at Ms. Clayton when he came in to the house. Defendant started arguing with
Ms. Clayton in the bedroom. During the argument, Defendant threw his cell phone
against the wall, putting a hole in the wall. He informed Ms. Clayton that he was “tired
of [her] shit.” Defendant lifted up the mattress and pulled out a kitchen knife. Defendant
grabbed Ms. Clayton by the neck, pushed her down on the bed, straddled her, and put the
knife in her face between her eyes. Defendant told her that he would “kill” her. Ms.
Clayton confirmed that the knife was actually touching her face and that she was
“gasping for air” and feared for her life. Ms. Clayton told Defendant to get the knife out
of her face, but he did not comply. Finally he got up and let her go. Defendant told Ms.
Clayton that he was tired of it. Ms. Clayton asked Defendant to leave, but he would not
leave. Defendant would not let Ms. Clayton leave the house. The couple eventually went
to sleep. Defendant slept with his legs on top of Ms. Clayton.

       The next morning, Ms. Clayton instructed one of her children to leave the house
and call 911. When the police arrived, Defendant was surprised. The police confiscated
the knife and took pictures of the bruises on the victim‟s throat. Defendant was defensive
and “pretty much denied everything” when questioned by the police.

       Defendant did not want to testify at trial. The trial court properly conducted a
Momon hearing in order to insure that Defendant was making an informed decision. He
called his sister, Sheryl Mitchell, to testify that after the incident, she saw Defendant and
the victim together on numerous occasions. Defendant then rested and the State
presented no rebuttal proof.

      The trial court read the jury charge to the jury. The State delivered its closing
argument. At this point, counsel for Defendant asked for a jury-out hearing. Defense
counsel informed the trial court that Defendant now decided he wanted to testify. The
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trial court denied the request because the defense had already put on proof, Defendant
had already chosen not to testify, the State had already completed its closing argument,
and the trial court had already charged the jury with the law. Counsel for Defendant then
stated that Defendant wanted to accept the State‟s most recent plea offer. Counsel for the
State informed Defendant that that the offer was no longer an option. Defendant then
indicated that he wanted to plead guilty with the trial court to determine the manner and
length of the sentence.

       Defendant was placed on the stand. He testified that he “just lost” his father and
did not “want to be locked up” and lose his mom too. He claimed that he wanted to “do
what‟s right” because he was “tired of dragging through it.” Defendant stated that he was
fifty years old and that he was entering the guilty plea “freely and voluntarily” without
coercion. Defendant informed the trial court that he and his wife are “still together” and
that she is going to “come right back to [him].”

        The trial court informed Defendant that he had the right to complete the trial. The
trial court then informed Defendant of the range of punishment that could result from the
entry of the guilty plea. Defendant stated that he wanted to “put it in [the trial court‟s]
hands.” At that point, the trial court asked Defendant several questions with regard to the
guilty plea, including asking Defendant if he understood the plea and all of his rights.
Defendant commented that it was the “hardest thing [he] did in [his] life” and that he was
“scared” but that he wanted to plead guilty. The trial court, at that time, accepted
Defendant‟s guilty plea to two counts of aggravated assault, one count of domestic
assault, and one count of false imprisonment.

       After the trial and the guilty plea hearing but prior to sentencing, Defendant filed a
motion to withdraw his guilty plea. In the motion, Defendant claimed that “due to the
death of his father” the week prior to trial, he “suffered from emotional trauma to the
degree that he could not properly participate in his defense nor could he make a sound or
rational decision about whether or not to enter a plea of guilty.” Defendant claimed that
it would be a manifest injustice to deny the motion.

       Months before sentencing, the trial court held a hearing on the motion to withdraw
the guilty plea. At the hearing, Officer Robert Halliburton testified that he responded to
the call at the residence, observed the bruising on the victim, tagged a knife into
evidence, and called his supervisor. After his supervisor arrived and assessed the scene
and spoke with witnesses, Officer Halliburton was advised to arrest Defendant for
aggravated assault.

       Defendant also testified at the hearing. He claimed that he never told his attorney
that he was guilty and that during the trial, his attorney informed him after the State‟s
closing argument that his best option was to “cop a plea.” Defendant maintained that he
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did not want plead guilty. Defendant recalled that his father passed away right before
trial so he just “gave up.” Defendant insisted that “immediately after” the guilty plea he
wrote his attorney a letter in which he expressed his displeasure for counsel‟s
representation.

       Defendant informed the trial court that he dropped out of school in fourth grade
and that during his previous incarceration was unable to obtain a GED. Defendant
admitted that he reported to a probation officer that he dropped out of school in tenth
grade because he was ashamed about dropping out in the fourth grade.

        Defendant maintained his innocence, claiming that his wife did not “want to see
[him] happy.” Defendant admitted that he had multiple offers from the State to settle the
case—one for ninety days and one for three years. Defendant acknowledged that he was
ineligible for a sentence of three years based solely on his prior criminal convictions. He
claimed that he pled guilty because it was what his lawyer told him to do. Defendant
claimed that he “understood certain things” during trial but there were other things that he
did not understand. Defendant claimed that he tried to ask trial counsel questions during
trial but that trial counsel just told him to “wait.”

       Defendant admitted that this was not his “first rodeo” because he had entered
guilty pleas in the past but that he did not understand what was going on the day that he
pled guilty.

       The trial court questioned Defendant with regard to the guilty plea hearing.
Defendant admitted that the trial court informed him on the range of punishment and the
difference in going to trial versus pleading guilty. Defendant still claimed that he did not
understand and that he relied on his trial counsel to “guide [him], to show [him] where
[he] should go and what [he] should do. . . .”

       Trial counsel was allowed to testify based on Defendant‟s allegations. Trial
counsel indicated that he met with Defendant several times in preparation for trial and
talked about different ways to approach the defense. Trial counsel recalled that
Defendant had concerns about some inconsistencies in some of the police reports. Trial
counsel did not bring up any issue with regard to the knife or inconsistencies in the police
reports at trial because the knife had been tagged into evidence by the State and the
reports contained some things that were “injurious to [Defendant].”

        Trial counsel recalled Defendant wanting to plead guilty at the conclusion of the
trial. Trial counsel explained to Defendant that this would be an “open” plea with no
agreement with regard to sentence. He told Defendant that it was not a “great idea” but
that it was ultimately Defendant‟s decision. Trial counsel felt that Defendant understood
what was going on at the guilty plea. In fact, trial counsel stated that he “tried to be very
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thorough” with Defendant because Defendant had “written the Board of Professional
Responsibility, at least twice, maybe three times.” Trial counsel “made sure that
[Defendant] understood the [three-year] offer that he was rejecting.” Trial counsel
informed the trial court that he “practically got into a fist fight [with Defendant] when he
turned down that three year offer.” Trial counsel was “surprised” when Defendant did
not take the offer and even continued to ask the State for that offer when the trial began.
Trial counsel denied that Defendant told him “immediately” after the plea that he wanted
to withdraw the plea.

     At the conclusion of the hearing, the trial court recounted the proceedings and
commented:

       [A]t no time did I ever feel that [Defendant] did not understand what he
       was doing. At no time did I ever feel that he was confused, or that he was
       not understanding what we were going through.

The trial court noted that Defendant was “very familiar with the system” because of his
“five, six, or seven prior felony convictions” and prior guilty pleas. The trial court was
satisfied that Defendant received “competent representation” and that the guilty plea was
entered “freely and voluntarily.” The trial court denied the motion to withdraw and
stated:

       I don‟t find that there is any fair and just reason to set this aside. To me, I
       find that [Defendant] knew what he was doing and made a valid choice,
       whether it‟s the right choice or the wrong choice, I don‟t know, but there‟s
       no basis for me granting that and I think to set this aside was nothing more
       than [Defendant‟s] argument that this is not what he wanted to do and that
       he was coerced into this and enticed into this and led into this by [trial
       counsel]. I don‟t find that there‟s any basis for that statement, whatsoever.

The trial court also entered a written order denying the motion. In the written order the
trial court commented that Defendant had “the burden of showing a manifest injustice
would occur if the [defendant] was not allowed to withdraw the plea.”

      Defendant sought an interlocutory appeal in this Court. He later filed a motion to
withdraw the appeal, and his appeal was dismissed by this Court. See State v. Quinton
Bonner, No. W2015-00277-CCA-R9-CD (Tenn. Crim. App. Mar. 23, 2015) (order).

      The trial court held a sentencing hearing. At the hearing, the trial court sentenced
Defendant as a Range III, persistent offender to ten years for the conviction for
aggravated assault. The judgment form reflects that Defendant was found “guilty” of
aggravated assault. Additionally, in the special conditions box the judgment indicates
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that “cts 2, 3, 4, NP/NC.”1 There are no judgment forms for these counts in the technical
record. At the sentencing hearing, counsel for the State indicated that Defendant “pled
guilty to just the aggravated assault because there were four counts to the indictment.
Count one was aggravated assault and count two was the alternate theory on aggravated
assault, count three was domestic assault or count four was domestic assault and for
purposes of the open plea, he pled to the aggravated assault.”2

        Defendant appeals the denial of the motion to withdraw the guilty plea.

                                                  Analysis

       On appeal, Defendant insists that the trial court improperly denied the motion to
withdraw the guilty plea. Specifically, citing State v. Phelps, 329 S.W.3d 436 (Tenn.
2010), Defendant insists that the trial court abused its discretion in applying the incorrect
standard and failing to consider the relevant factors prior to denying the motion to
withdraw the guilty plea. The State disagrees.

       We review a trial court‟s disposition of a defendant‟s motion to withdraw his or
her plea of guilty for an abuse of discretion. Phelps, 329 S.W.3d at 443 (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)).

      In Phelps, the Tennessee Supreme Court adopted the following list of factors used
by the United States Court of Appeals for the Sixth Circuit in determining what

        1
            The Shelby County criminal courts use this abbreviation to note nolle prosequi with no cost.
        2
         The transcript of the guilty plea hearing indicates that Defendant pled guilty to two counts of
aggravated assault, one count of domestic assault, and one count of false imprisonment.
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constitutes “any fair and just reason” supporting the withdrawal of a guilty plea prior to
sentencing:

       (1) the amount of time that elapsed between the plea and the motion to
       withdraw it; (2) the presence (or absence) of a valid reason for the failure to
       move for withdrawal earlier in the proceedings; (3) whether the defendant
       has asserted or maintained his innocence; (4) the circumstances underlying
       the entry of the guilty plea; (5) the defendant's nature and background; (6)
       the degree to which the defendant has had prior experience with the
       criminal justice system; and (7) potential prejudice to the government if the
       motion to withdraw is granted.

Id. at 446 (quoting U.S. v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008)); see U.S. v.
Spencer, 836 F.2d 236, 239-40 (6th Cir. 1987). However, the court asserted that “this list
of factors is not exclusive; that no single factor is dispositive; and that the relevance of
each factor varies according to the circumstances surrounding both the plea and the
motion to withdraw.” Id. (citing Haygood, 549 F.3d at 1052). In addition, it stated that
“a trial court need not consider the seventh factor unless and until the defendant
establishes a fair and just reason for permitting withdrawal.” Id. at 446-47 (citing U.S. v.
Ellis, 470 F.3d 275, 286 (6th Cir. 2006)); see Spencer, 836 F.2d at 240.

        Looking to the trial court‟s decision herein, we acknowledge, as pointed out by
Defendant, that the trial court‟s order denying the motion to withdraw references the
improper standard. Specifically, the trial court comments in the order that Defendant has
failed to meet his burden to show a “manifest injustice would occur if [he] was not
allowed to withdraw the plea.” However, at the hearing on the motion to withdraw, the
trial court made strong and clear findings of fact from the bench, examining the factors
from Phelps, and commenting that the trial court could not “find that there is any fair and
just reason to set this aside.” Thus, there is an apparent conflict between the transcript of
the hearing on the motion to withdraw the guilty plea and the order denying the motion.
When there is a conflict between the judgment or order, as in this case, and the transcript
of the trial court‟s statements, the transcript controls. State v. Moore, 814 S.W.2d 381,
382-83 (Tenn. Crim. App. 1998) (citing State v. Zyla, 628 S.W.2d 39, 42 (Tenn. Crim.
App. 1981); Farmer v. State, 574 S.W.2d 49, 50 (Tenn. Crim. App. 1978)); see also State
v. Rowden, No. M2012-01683-CCA-R3-CD, 2013 WL 4774131, at *12 (Tenn. Crim.
App. Sept. 5, 2013). Moreover, even if the trial court used the wrong standard in its
order, the error is harmless. It is clear that in the hearing, the trial court examined the
Phelps factors. The trial court discussed the time that elapsed between the plea and the
motion to withdraw, factor one, and noted that the trial court did not really understand
“the position [Defendant] took after the fact, about wanting to withdraw the plea.” The
trial court did not note any particular reason for the failure to withdraw the plea earlier in
the proceedings, quite obviously because the motion to withdraw was filed fairly quickly.
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The trial court, with respect to factor three, found it was not clear if Defendant
consistently maintained his innocence. The trial court pointed to Defendant‟s desire to go
to trial, then his desire to plead guilty, and then his desire to withdraw the guilty plea.
The trial court recapped the entirety of the events leading up to the entry of the guilty
plea, including Defendant‟s insistence on going to trial, Defendant‟s claim that he did not
want to testify, Defendant‟s attempt to change his mind to then testify at the trial, and
Defendant‟s desire to seek a guilty plea after the conclusion of the trial. This discussion
of factor four by the trial court was extensive and weighed against Defendant‟s favor.
The trial court noted Defendant‟s familiarity with the court system and the fact that he
had pled guilty in the past, factors five and six of Phelps. Both of these factors weighed
against Defendant. It was not necessary for the trial court to analyze factor seven,
potential prejudice to the government if the motion to withdraw is granted, as the trial
court determined Defendant did not establish a fair and just reason permitting withdrawal
of the plea. See Phelps 329 S.W.3d at 446-47 (citing United States v. Ellis, 470 F.3d 275,
286 (6th Cir. 2006)).

       We acknowledge that in Phelps, the court noted that if the “trial court applies the
correct non-exclusive multi-factor analysis and determines that the balance of factors
weighs in the defendant‟s favor, the trial court should allow the defendant to withdraw
his plea, even if the defendant‟s reasons could be characterized as a „change of heart.‟”
329 S.W.3d 428. However, the court cautioned “that a defendant should not be allowed
to pervert this process into a tactical tool for purposes of delay or other improper
purpose.” Id. (citing United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991)
(quoting United States v. Carr, 740 F.2d 339, 345 (5th Cir.1984))). In this case, the trial
court determined that the factors did not weigh in Defendant‟s favor. The trial court did
not abuse its discretion. Defendant did not show a fair and just reason for the withdrawal
of the plea other than a change of heart.

                                       Conclusion

       The trial court‟s order denying the motion to withdraw the guilty plea is affirmed.
On remand, the trial court should correct the judgment form to indicate that Defendant
pled guilty. Additionally, the trial court should enter judgment forms for counts 2, 3, and
4 in accordance with State v. Marquize Berry, No. W2014-00785-SC-R11-CD (Tenn.
Nov. 16, 2015) (order).


                                                 _________________________________
                                                 TIMOTHY L. EASTER, JUDGE




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