         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON            FILED
                         JULY 31, 1998 SESSION          August 28, 1998

                                                      Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 02C01-9802-CR-00040
      Appellee,                     )
                                    )    SHELBY COUNTY
VS.                                 )
                                    )    HON. W. FRED AXLEY,
QUENTIN L. HALL,                    )    JUDGE
                                    )
      Appellant.                    )    (Motion to Withdraw Guilty Plea)



FOR THE APPELLANT:                       FOR THE APPELLEE:

A. C. WHARTON                            JOHN KNOX WALKUP
Shelby County Public Defender            Attorney General and Reporter

WALKER GWINN                             PETER M. COUGHLAN
Assistant Public Defender                Assistant Attorney General
201 Poplar Avenue, Ste. 201              Cordell Hull Building, 2nd Floor
Memphis, TN 38103-1947                   425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         WILLIAM L. GIBBONS
                                         District Attorney General

                                         EDGAR A. PETERSON, IV
                                         Assistant District Attorney General
                                         Criminal Justice Complex
                                         201 Poplar Avenue, Ste. 301
                                         Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION


       Defendant, Quentin L. Hall, appeals the order of the Criminal Court of Shelby

County denying his request to withdraw his guilty plea to first degree murder. The

plea was entered pursuant to a plea agreement, and defendant received a life

sentence. Since the judgment became final on the date of entry of the plea of guilty

pursuant to a plea agreement, we conclude the motion to withdraw filed thereafter

was untimely. Accordingly, we affirm the judgment of the trial court.



                              PROCEDURAL HISTORY



       On November 18, 1996, the defendant, pursuant to a plea agreement,

entered a guilty plea to first degree murder and received a sentence of life with the

possibility of parole.   The petition for acceptance of the plea, signed by the

defendant, specifically waives the right to appeal. Likewise, the order which

accepted the petition noted the waiver of appeal by the defendant. In accordance

with the plea agreement, the trial court sentenced the defendant on the same date.

       On December 16, 1996, defendant filed a motion to withdraw his guilty plea

pursuant to Tenn. R. Crim. P. 32(f). He alleged the withdrawal was necessary to

prevent “manifest injustice.” The record reflects that no evidentiary hearing was

conducted. Instead, the parties relied upon the guilty plea transcript and two (2)

prior psychological evaluations.

       On January 13, 1998, the trial court entered an order denying the motion to

withdraw. 1 The trial court found nothing in the record to indicate a lack of mental

capacity to enter the plea. This appeal followed.



           UNTIMELY FILING OF MOTION TO WITHDRAW GUILTY PLEA



       The withdrawal of a guilty plea is controlled by Tenn. R. Crim. P. 32(f), which


       1
       The record is silent as to the reason for the lengthy delay between the filing of the
motion and the order denying the motion.

                                            2
provides as follows:

               Withdrawal of Plea of Guilty. - A motion to withdraw a
               plea of guilty may be made upon a showing by the
               defendant of any fair and just reason only before
               sentence is imposed; but to correct manifest injustice,
               the court after sentence, but before the judgment
               becomes final, may set aside the judgment of conviction
               and permit the defendant to withdraw the plea.

(emphasis added).       Thus, a motion to withdraw is appropriate only prior to

sentencing based upon “any fair and just reason” or after sentence, but before the

judgment becomes final, “to correct manifest injustice.” The Tennessee rule does

not authorize a motion to withdraw a guilty plea after a judgment has become final.

       In this case the defendant pled guilty pursuant to a plea agreement and

waived his right to appeal. Upon waiving his right to appeal on the date of entry of

the guilty plea and judgment of conviction, the judgment became final that day. See

Passarella v. State, 891 S.W.2d 619, 624 (Tenn. Crim. App. 1994); Warren v. State,

833 S.W.2d 101, 102 (Tenn. Crim. App. 1992); Lakeith O. Lightfoot v. State, C.C.A.

No. 02C01-9703-CR-00129, Shelby County (Tenn. Crim. App. filed February 18,

1998, at Jackson).2 There is generally no right of appeal from a guilty plea entered

pursuant to a plea agreement. See Tenn. R. Crim. P. 37(b). The only exceptions

are set forth in Tenn. R. Crim. P. 37(b)(2) (i)-(iv). None of these exceptions applies

here. The plea of guilty, waiver of appeal and sentence, all entered November 18,

1996, made the judgment final that day.

       We, therefore, conclude a motion to withdraw a guilty plea is inappropriate

for a guilty plea entered pursuant to a plea agreement except for guilty pleas under

the limited exceptions set forth in Tenn. R. Crim. P. 37(b)(2) (i)-(iv). Since a

judgment immediately becomes final upon a waiver of appeal, the only avenue of




       2
        Passarella, Warren and Lightfoot all relate to the finality of judgments for purposes
of calculating the statute of limitations for post-conviction petitions.

                                             3
relief available to a defendant in such a situation is through post-conviction

proceedings. See Tenn. Code Ann. § 40-30-201 et seq.3



                                 MANIFEST INJUSTICE



       We also will address the motion to withdraw on its merits since the matter

may be appealed to the Tennessee Supreme Court.

       Although there was no evidentiary hearing on the motion to withdraw the

guilty plea, the trial court had before it the transcript of the guilty plea. The trial court

concluded that the transcript gave no indication of mental impairment or a lack of

understanding by the defendant. We reach the same conclusion based upon our

review of the transcript.

       In addition, the trial court had before it two (2) psychological evaluations.

One evaluation indicated that the defendant functioned within the mildly mentally

retarded range, yet found no evidence to indicate he was committable to an

institution. A subsequent evaluation found that he had the mental capacity to

understand the nature of the legal process, to understand the charges and their

potential consequences, and the capacity to confer with counsel and participate in

his defense. Again, we agree with the trial court’s conclusion that “there is nothing

. . . to indicate that the defendant executed anything other than a competent,

voluntary waiver.”




       3
         This motion was not treated as a petition for post-conviction relief by the trial court
nor by the parties. Nor will it be treated as such by this Court. The trial court considered the
motion to withdraw on its merits and did not dismiss it on the basis of untimely filing as
determined by this Court. Furthermore, although the motion was filed in December 1996, the
order of dismissal was not entered until January 1998. As stated, defendant’s only possible
relief is through post-conviction. To complicate matters further, the Public Defender
represented the defendant at the time of the plea, the motion to withdraw the guilty plea and
on this appeal. On this appeal the Public Defender alleges in the brief that “[n]either the
defense counsel [Public Defender] nor the court explained to Hall... that a life sentence with
the possibility of parole would mean a sentence... for at least 51 years under our law.”
(emphasis added). It is, therefore, apparent that the Public Defender should not represent
defendant in any attempt to seek post-conviction relief. We voice no opinion as to any
possible future litigation.

                                              4
      In summary, the defendant has not met his burden of establishing that the

plea of guilty should be withdrawn to prevent “manifest injustice.” See State v.

Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995).



                                CONCLUSION



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



                                               ____________________________
                                               JOE G. RILEY, JUDGE




CONCUR:



______________________________
PAUL G. SUMMERS, JUDGE



______________________________
DAVID G. HAYES, JUDGE




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