        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Knoxville April 28, 2015

                   SYLVIA LAIRD v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2011-C-1993    Seth W. Norman, Judge




                 No. M2014-02020-CCA-R3-PC – Filed June 1, 2015




Petitioner, Sylvia Laird, appeals the denial of her petition for post-conviction relief. She
claims that she received ineffective assistance of counsel when she was erroneously
informed that she could not file a motion to withdraw her guilty plea before sentencing.
Consequently, Petitioner argues that a subsequent guilty plea agreement that determined
her sentence was unconstitutional because it was entered unknowingly, involuntarily, and
unintelligently. After a careful review of the record, the parties‟ briefs, and the
applicable law, we conclude that Petitioner has proven that she is entitled to post-
conviction relief and, therefore, reverse the decision of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Kyle Mothershead, Nashville, Tennessee, for the appellant, Sylvia Laird.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Victor S. Johnson III; District Attorney General; and Brian Holmgren, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                            Facts and Procedural Background
       This is a post-conviction relief matter that is the result of the admitted faulty
advice given by trial counsel to Petitioner.

       On July 22, 2011, the Davidson County Grand Jury indicted Petitioner of one
count of aggravated child abuse, a Class B felony, two counts of aggravated child
neglect, a Class B felony, and one count of coercion of a witness, a Class D felony. All
charges arose from alleged conduct toward her minor son, F.G.1 On October 31, 2012,
pursuant to a plea agreement, Petitioner pled guilty to attempted aggravated child abuse
and coercion of a witness; the remaining charges were dismissed. Petitioner‟s sentence
was to be determined by the trial court.

        Before Petitioner could be sentenced, her attorney died, and the trial court
appointed a public defender to represent Petitioner in January 2013. After negotiating
with Petitioner‟s new trial counsel, the State agreed to allow Petitioner to withdraw her
original plea in exchange for a new plea agreement that included an agreed sentence,
obviating the need for a sentencing hearing. On February 1, 2013, Petitioner pled guilty
to reckless aggravated assault, a Class D felony, and child neglect, a Class A
misdemeanor. Pursuant to the plea agreement, the trial court imposed a three-year
sentence for the former offense and a sentence of eleven months and twenty-nine days for
the latter. Both sentences were to be served concurrently and suspended to probation.

       On January 31, 2014, Petitioner filed a petition for post-conviction relief through
counsel, which she later amended on February 7th and March 21st. In her petition, she
alleges that she received ineffective assistance from both of her trial counsel—the first
failed to file a motion to withdraw her original guilty plea, and the second erroneously
informed Petitioner that she could not withdraw her original guilty plea because more
than thirty days had passed since its entry. Consequently, Petitioner claims that her
second guilty plea was unknowing or involuntary under the circumstances. The post-
conviction court held an evidentiary hearing on April 15, 2014.

       Petitioner testified that she first learned of the child abuse and neglect charges in
2011 when the Department of Human Services contacted her at work. She felt that she
was not guilty of the alleged crimes and intended to “fight” the charges. Petitioner hired
an attorney who attended her church. Their relationship during this case was “great”;
they communicated well, and Petitioner trusted this attorney.

      Although Petitioner‟s initial intent was to proceed to trial, her attorney eventually
advised her to accept the State‟s plea offer. Petitioner entered a guilty plea, but she “had
a lot of reservations about entering the plea.” When Petitioner expressed these
       1
           It is the policy of this Court to protect the identity of a minor victim.

                                                       -2-
reservations to her attorney, he told her to think about her decision for a few days and
then to let him know if she changed her mind because there was still time to file a motion
to withdraw her plea. The day following the plea hearing, after discussing the matter
with family members, Petitioner informed her attorney that she wanted to withdraw her
guilty plea. Petitioner‟s attorney told her that “he would go to the court and file the
paperwork and have it withdrawn.” Petitioner understood that she would then proceed to
trial on the original charges.

      Petitioner did not know if her attorney filed a motion to withdraw the plea, but she
was under the impression that he did so. The record indicates he did not.

       Petitioner discovered that the sentencing hearing was still scheduled to occur in
December 2012 when she was contacted to be interviewed for the presentence report.
Petitioner later learned that her attorney had passed away when she appeared in court in
January 2013, the date for her rescheduled sentencing hearing. The trial court appointed
the District Public Defender‟s office as a second attorney to represent Petitioner at that
time.

        The second attorney met with Petitioner the day that she was appointed and again
on the next court date. Petitioner informed her second attorney that she wanted to
withdraw her guilty plea and proceed to trial. Petitioner‟s second attorney informed her
that “it was too late for [her] to go to trial” and that the only options were “to plea bargain
or do a sentencing hearing.” Consequently, Petitioner entered a second guilty plea
according to the terms of a new plea agreement. Had Petitioner known that she still
could have attempted to withdraw her original guilty plea, she would have done so and
would not have entered the second guilty plea.

        Initially, during cross-examination, Petitioner could not recall whether her case
was ever set for trial and claimed that she “wasn‟t aware” of how often her first attorney
had plea discussions with the State. Later, however, she remembered “coming to court in
October of 2011” and “deciding that [she was not] going to enter a plea [and was] going
to set the case for trial.” Petitioner also remembered an occasion, prior to her trial date,
when she was prepared to enter a guilty plea but the plea agreement fell through because
the parties disagreed over whether the convictions could be expunged.

      Petitioner acknowledged that, in April of 2012, federal law enforcement agents
informed the State that she was cooperating with them. Petitioner hoped this cooperation
might warrant favorable consideration during her plea negotiations in this case.




                                              -3-
        Petitioner admitted that she entered her original guilty plea “right on the eve of
trial” but did not know how close the dates were.2 She insisted, “[My first attorney] told
me that I could take the plea now and think about it because I was never comfortable with
taking the plea. . . . He said I had time to think about it, that I could withdraw it in so
many days.” Petitioner said that her first attorney gave her that option “because [she]
wanted to discuss the matter with [her] mother and [her] sister.” After Petitioner called
her first attorney and told him that she changed her mind, he told her that “he was going
to withdraw the plea.”

        On the date of the sentencing hearing, Petitioner‟s “understanding” was that her
first attorney had already filed a motion to withdraw her guilty plea. She did not know
why her case was rescheduled to January 2013 or what was going to occur on that date.
When the date arrived, Petitioner attempted to contact her first attorney but could not “get
a hold of him.” “As far as [Petitioner] knew,” her first attorney was her attorney of
record at that time.

       After Petitioner‟s second attorney was appointed, the second attorney told
Petitioner that she could not withdraw her original guilty plea and go to trial because “the
time had lapsed.” However, the second attorney advised her that she could continue to
plea bargain rather than have a sentencing hearing.

        Petitioner denied telling her first attorney in December 2012 that she “didn‟t want
[him] to represent [her] anymore.” She denied that her first attorney requested to be
relieved as her counsel. Petitioner stated that she knew that she had a year to file a
petition for post-conviction relief and explained that she waited ten months before hiring
post-conviction counsel “because [she] had to get more money to retain another lawyer.
[Petitioner] didn‟t have any more money.”

       Petitioner‟s second attorney testified that she was an assistant public defender with
twenty-eight years of experience practicing law. On the day that she was appointed, the
second attorney met with Petitioner at the courthouse. They reviewed the court file and
the discovery materials together, and Petitioner told her second attorney about the case.
They “discuss[ed] that there had been some recanting by her son.” The prosecutor told
the second attorney that the victim “had recanted part of the coercion allegation.”3


        2
            The record does not contain the exact trial date.
        3
          During her testimony, Petitioner claimed that her second attorney did not tell her prior to the
second plea hearing that the prosecutor had informed the second attorney that Petitioner‟s son “had
recanted part of the original allegations.”

                                                       -4-
       Petitioner‟s second attorney discussed the procedural history of the case with the
prosecutor and learned that Petitioner‟s previous attorney made an oral motion to
withdraw the original guilty plea at the sentencing hearing in December 2012. However,
the court file did not contain a written motion to withdraw the guilty plea. At that time,
the second attorney “erroneously believed that the time for withdrawing a plea was thirty
days after the plea was entered and . . . was not aware that the provision actually allows a
plea to be withdrawn any time prior to sentencing for fair and just reasons.” Petitioner‟s
case was continued on the docket until the next week.

       At the following court date, Petitioner‟s second attorney “was still under the
impression . . . that [Petitioner] did not have the option to withdraw her plea because
more than thirty days had passed since her plea with no written motion filed by [her
previous attorney].” Petitioner expressed to her second attorney that she wanted to
withdraw the plea and go to trial. However, Petitioner‟s second attorney told her that she
only had two options: enter a second guilty plea according to the terms of the new
negotiated plea agreement or have a sentencing hearing on the original plea. Petitioner‟s
second attorney admitted that she later learned that there was not a thirty day time limit
on filing a motion to withdraw a guilty plea, rather such a motion may be filed and
granted “for any fair and just reason” prior to sentencing. The second attorney explained:

       [The terms of the second plea agreement were] clearly more favorable than
       the one [Petitioner] had entered with [her previous attorney] on its face
       because it was for guaranteed probation and lesser charges, but the problem
       is I told her she didn‟t have any choice about it. I told her [that] her plea
       was final. I told her that . . . [she] had thirty days to do something about
       asking to withdraw [her] plea, and I believed it when I told her. I mean, I
       messed that up. I told her that her choices were to either do this new
       negotiated plea or to proceed on with the sentencing hearing under the plea
       that she had entered with [her previous attorney].

       The second attorney recalled that Petitioner‟s purported justifications for wanting
to withdraw her guilty plea were: 1) she was not guilty of aggravated child abuse; 2) the
injury did not rise to the level of serious bodily injury; and 3) she wanted a plea offer for
misdemeanor probation.

      After the evidentiary hearing, the post-conviction court took the case under
advisement and entered an order denying relief on September 5, 2014. Petitioner timely
appealed.

                                          Analysis

                                             -5-
       Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove the factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, this Court
gives deference to the post-conviction court‟s findings as to witness credibility, the
weight and value to be given to testimony, and the factual issues raised by the evidence.
Momon, 18 S.W.3d at 156 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)).
This Court will not re-weigh or re-evaluate the evidence presented below and is bound by
the findings of the post-conviction court unless the evidence preponderates otherwise.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). However, the post-conviction court‟s
conclusions of law and application of the law to the facts are subject to de novo review
with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

        Petitioner contends that she received ineffective assistance from trial counsel when
her first attorney failed to file a motion to withdraw her original guilty plea as requested
and also when her subsequent attorney erroneously advised her at the sentencing hearing
that she could no longer file such a motion. As a consequence of these errors, Petitioner
insists that her second guilty plea was unknowing and involuntary under the
circumstances because she did not know that the law still afforded her an opportunity to
withdraw her original guilty plea and proceed to trial—the course of action she truly
desired. The State argues that the post-conviction court properly determined that
Petitioner did not adequately prove that she received ineffective assistance.

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee an accused the right to effective
assistance of counsel. Burns, 6 S.W.3d at 461. In order to receive post-conviction relief
based on a claim of ineffective assistance of counsel, a petitioner must show that trial
counsel‟s performance was deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Burnett v. State, 92
S.W.3d 403, 408 (Tenn. 2002). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
the claim.” Henley, 960 S.W.2d at 580.

       To establish deficient performance, a petitioner must show that counsel‟s
representation fell below an objective standard of reasonableness under prevailing
professional norms. Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. Counsel‟s
                                             -6-
performance is considered reasonable “if the advice given or the services rendered [were]
within the range of competence demanded of attorneys in criminal cases.” Henley, 960
S.W.2d at 579 (citing Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). This Court
“should indulge a strong presumption that counsel‟s conduct falls within the wide range
of reasonable professional assistance.” Burns, 6 S.W.3d at 462. A petitioner is not
entitled to the benefit of hindsight to second-guess a reasonably based trial strategy or a
sound, but unsuccessful, tactical decision. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994).

       To establish prejudice, a petitioner must show that “there is a reasonable
probability that, but for counsel‟s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Burns, 6 S.W.3d at 463 (quoting Strickland, 466
U.S. at 694). In the context of a guilty plea, the specific inquiry is whether “there is a
reasonable probability that, but for counsel‟s errors, [the defendant] would not have
pleaded guilty and would have insisted on going to trial.” Calvert v. State, 342 S.W.3d
477, 486 (Tenn. 2011) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

       Tennessee Rule of Criminal Procedure 32(f) affords a defendant two opportunities
to seek withdrawal of a guilty plea: 1) before sentence is imposed and 2) after sentencing
but before the judgment becomes final. A judgment of conviction becomes final thirty
days after entry, and the trial court then loses jurisdiction. State v. Pendergrass, 938
S.W.2d 834, 837 (Tenn. 1996). Withdrawal of a guilty plea is permitted prior to
sentencing for “any fair and just reason,” but after sentencing, withdrawal is available
only “to correct manifest injustice.” Tenn. R. Crim. P. 32(f)(1)-(2).

       The record establishes that Petitioner entered her initial guilty plea on October 31,
2012. She claims that she reluctantly entered the plea because she did not believe that
she was guilty of the charged offenses and that on the next day she instructed her first
attorney to file a motion to withdraw her guilty plea because she changed her mind and
wished to go to trial instead. For whatever reason, Petitioner‟s first attorney did not file
such a motion.

       Petitioner appeared with her first attorney on December 12, 2012, for a sentencing
hearing on the original convictions. At the hearing, Petitioner‟s first attorney gave verbal
notice that Petitioner intended to file a motion to withdraw her guilty plea. The case was
reset on the trial court‟s docket in January 2013. At the January court date, Petitioner
learned that her first attorney was deceased and that a motion to withdraw her guilty plea
had not been filed. The trial court appointed Petitioner a second attorney and reset the
matter for February 1, 2013.

                                            -7-
       At some point, the prosecutor informed Petitioner‟s second attorney that the victim
had recanted some of his testimony that formed the evidentiary basis for the coercion of a
witness charge to which Petitioner initially pled guilty. Although Petitioner expressed
her desire to withdraw her guilty plea to her second attorney, her second attorney
unequivocally told her that the law no longer permitted her that option. Petitioner‟s
second attorney advised Petitioner that her only options were to be sentenced by the
judge on the original guilty plea or to negotiate a new plea bargain that included a
recommended sentence. Trial counsel negotiated a new plea agreement with the State,
which included a recommended sentence. On February 1st, Petitioner withdrew her
original guilty plea and entered a new guilty plea according to the terms of the second
plea agreement, which the trial court accepted.

       Trial counsel‟s failure to file a motion to withdraw a guilty plea, when
affirmatively instructed by a defendant to do so, constitutes professional deficiency. See
Patrick Devin Camp v. State, No. E2012-00198-CCA-R3-PC, 2013 WL 3103974, at *20
(Tenn. Crim. App. June 17, 2013), perm. app. denied (Tenn. Nov. 12, 2013) (“Trial
counsel owed a duty of representation to the Petitioner, including filing a motion to
withdraw the [guilty] plea if the Petitioner so chose, and failed in that duty.”); Robert
Jason Burgess v. State, No. M2011-01324-CCA-R3-PC, 2012 WL 3090832, at *10
(Tenn. Crim. App. July 31, 2012), perm. app. denied (Tenn. Nov. 20, 2012) (“Within the
time period for filing a motion to withdraw the [guilty] plea, counsel should have filed
the motion or affirmed that the Petitioner no longer wished to pursue withdrawal of the
plea.”). Whether due to illness or oversight, Petitioner‟s first attorney failed to follow her
directive to file a motion to withdraw her original guilty plea. Subsequently, this error
was compounded when Petitioner‟s second attorney erroneously advised her on a clearly
established rule of procedure, thereby foreclosing the available legal course of action
most desired by Petitioner. We conclude that Petitioner‟s trial counsel, collectively,
performed deficiently.

       As for prejudice, Petitioner must prove that, but for trial counsel‟s errors, there is a
reasonable probability that she would not have entered the second guilty plea. See
Calvert, 342 S.W.3d at 486. Petitioner claims that she only entered the second guilty
plea because her second attorney told her that she could no longer withdraw her original
guilty plea and proceed to trial. When a petitioner claims that ineffective assistance of
counsel thwarted the withdrawal of a guilty plea, this Court has consistently construed the
prejudice requirement to mean that a petitioner must show that there is a reasonable
probability that a motion to withdraw the guilty plea would have prevailed. See Patrick
Devin Camp, 2013 WL 3103974, at *20 (concluding that “the Petitioner has failed to
demonstrate any likelihood that a motion to withdraw his plea would have been granted,
and the Petitioner has therefore failed to demonstrate any prejudice resulting from his
lawyer‟s failure to file same”); Robert Jason Burgess, 2012 WL 3090832, at *11
                                              -8-
(concluding that, “[b]ecause the trial court rejected the factual premise upon which the
Petitioner contends he sought to withdraw the pleas, he has not shown that he was
prejudiced by trial counsel‟s actions”); Roy Nelson v. State, No. W2006-01946-CCA-R3-
PC, 2007 WL 3254443, at *6 (Tenn. Crim. App. Nov. 2, 2007), perm. app. denied (Tenn.
Mar. 3, 2008) (affirming post-conviction court‟s finding that the petitioner had not
established prejudice from trial counsel‟s failure to inform him of the thirty day deadline
to file a motion to withdraw his guilty plea because the petitioner failed to prove the
alleged factual basis for the motion at the post-conviction hearing); Arthur W. Stamey, III
v. State, No. E2005-02261-CCA-R3-PC, 2006 WL 1097450, at *5 (Tenn. Crim. App.
Apr. 7, 2006), perm. app. denied (Tenn. Oct. 2, 2006) (concluding that “the petitioner
failed to demonstrate any prejudice resulting from counsel‟s failure to timely file the
motion for withdrawal of the [guilty] plea” because “the petitioner did not establish any
basis which permits the withdrawal of his guilty plea”); Perry Franks v. State, No.
M2004-00554-CCA-R3-PC, 2005 WL 351260, at *3 (Tenn. Crim. App. Feb. 9, 2005),
perm. app. denied (Tenn. June 27, 2005) (concluding that “the Defendant has failed to
demonstrate any likelihood that a motion to withdraw his plea would have been granted,
and the Defendant has therefore failed to demonstrate any prejudice from his lawyer‟s
failure to file same”); Donald Mitchell Green v. State, No. E2002-02517-CCA-R3-PC,
2003 WL 22102861, at *7 (Tenn. Crim. App. Sept. 11, 2003), perm. app. denied (Tenn.
Jan. 26, 2004) (rejecting ineffective assistance claim for failure to file a motion to
withdraw guilty plea because asserted basis for withdrawal was legally inadequate).

        The post-conviction court did not evaluate the likelihood of success of a motion to
withdraw Petitioner‟s original guilty plea because it found that Petitioner failed to prove
by clear and convincing evidence that she actually wanted to withdraw her guilty plea
and go to trial. In its order denying relief, the court observed, “Based on the evidence
against the Petitioner and her prior apparent willingness to enter a guilty plea, it is suspect
for Petitioner to now contend that she never wanted to enter a plea but actually desired to
try the matter before a jury.”4 However, the evidence in the record preponderates against
this finding of the post-conviction court.

        Petitioner testified that she had significant reservations about entering her original
guilty plea and informed her first attorney of her desire to withdraw the plea the very next
day. The veracity of this assertion is not corroborated by any other evidence, but
Petitioner‟s second attorney testified that the prosecutor informed her that, at the
sentencing hearing in December, Petitioner‟s first attorney made a verbal declaration of
his intent to file a motion to withdraw, which was why the matter was continued on the
trial court‟s docket. Clearly, Petitioner changed her mind about her original guilty plea at
       4
         We note that the order of the post-conviction court does not make an explicit credibility
determination as to Petitioner.

                                               -9-
some point during the approximately six weeks after the entry of the plea and the
sentencing hearing.5

       Petitioner also testified that she maintained her desire to file a motion to withdraw
her original guilty plea to her second attorney. Her second attorney testified to the same.
On this point, the post-conviction court provided:

        [Petitioner‟s second attorney], an extensively experienced and incredibly
        skilled defense attorney, testified at the evidentiary hearing that she
        erroneously advised the Petitioner regarding potential plea withdrawal.
        However, part of her negotiations necessarily included a withdrawal of the
        original plea agreement. Such logic belies counsel‟s statements made at the
        evidentiary hearing in this matter.

While we understand the reasoning of the post-conviction court, we disagree that the only
explanation for the perceived inconsistency in trial counsel‟s advice to Petitioner and her
conduct is that her post-conviction testimony was untrue. Trial counsel appears to have
negotiated the second plea agreement with the understanding that Petitioner could not
unilaterally move to withdraw her plea at that time but could, however, withdraw her plea
with the consent of the State, which was conditioned upon Petitioner contemporaneously
entering another guilty plea pursuant to the terms of the new plea agreement with a
sentencing recommendation.

       Furthermore, we also deem it immaterial that Petitioner did not file a motion to
withdraw her second guilty plea before it became final. Petitioner, as she suggested at
the post-conviction hearing, quite understandably may not have realized that she had
received ineffective assistance until after the thirty day window for such a motion had
passed. We do not take the absence of a motion to withdraw the second guilty plea as
indication that Petitioner was actually content with her plea and the disposition of her

        5
          At the post-conviction hearing, the State emphasized Petitioner‟s “conduct in this particular case
of making a decision, changing her mind, and making a decision, and changing her mind.” At one point
the State suggested that it would “be fair to say that this litany of events . . . , in terms of [Petitioner‟s]
conduct in all of this, shows a pattern, essentially of [her] waiting, vacillating, deciding, then
withdrawing, deciding, then withdrawing, waiting, and then stretching this out over the space of quite a
long period of time.” While we take no position on this characterization, we find it important to note that
the paramount issue in this case is Petitioner‟s intention during the period after she entered her original
guilty plea and before she entered her second guilty plea. Although Petitioner‟s overall pattern of
behavior may be indicative of her state of mind during the relevant timeframe, it should not be given
disproportionate weight. The evidence, aside from Petitioner‟s own testimony, shows that during the
relevant timeframe, Petitioner informed both of her attorneys that she wanted to file a motion to withdraw
her original guilty plea, which she had a right to do.

                                                     -10-
case. Indeed, when Petitioner learned that she had been misled, she pursued the only
remaining avenue of relief—post-conviction proceedings. In sum, all of the evidence,
including Petitioner‟s conduct, establishes that she has maintained a consistent course of
resistance to her original guilty plea, one that was thwarted by the failures of both
counsel.

        We turn now to the potential merits of a motion to withdraw Petitioner‟s original
guilty plea. In State v. Phelps, 329 S.W.3d 436 (Tenn. 2010), the supreme court adopted
a non-exclusive multi-factor inquiry for trial courts determining whether a defendant has
a “fair and just reason” for withdrawing a guilty plea prior to sentencing, as permitted by
Rule 32(f). In such a situation, trial courts should assess the following:

       1. The length of time between the entry of the guilty plea and the filing of
       the motion to withdraw it;

       2. Why the grounds for withdrawal were not presented to the court at an
       earlier point in the proceedings;

       3. Whether the defendant has asserted and maintained his [or her]
       innocence;

       4. The circumstances underlying the entry of the plea of guilty, the nature
       and background of the defendant, and whether the defendant has admitted
       guilt; and

       5. Once the defendant has established a fair and just reason, whether the
       prosecution will be prejudiced should the plea be withdrawn.

Id. at 447 (quoting State v. Patrick Maxwell, No. E1999-00124-CCA-R3-CD, 2000 WL
1606582, at *8-9 (Tenn. Crim. App. Oct. 27, 2000)). Furthermore, “although a defendant
should not be allowed to pervert this process into a tactical tool for purposes of delay or
other improper purpose,” a trial court cannot deny a motion to withdraw simply because
“the defendant‟s reasons could be characterized as a „change of heart.‟” Id. at 448. The
burden of proof is on the defendant to establish sufficient justification for withdrawal. Id.
at 444 (citing State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995)).

       We believe that the record establishes a reasonable probability that the outcome of
Petitioner‟s case would have been different had either of her trial counsel filed a motion
to withdraw her original guilty plea prior to entry of the second guilty plea. Not only
does Petitioner contend that she had an earnest change of heart after the plea, which
potentially could be a satisfactory basis for withdrawal on its own, but Petitioner was also
                                            -11-
presented with a change in circumstances—the victim had recanted part of his testimony
that provided the factual basis for one of the charges to which Petitioner originally pled
guilty. Thus, aside from weakened evidentiary support for the coercion of a witness
charge, the State also faced potential impeachment evidence that could have adversely
impacted the victim‟s credibility as a witness at trial as to all of the charges. It does not
appear that any of the other factors would have strongly weighed against Petitioner, if at
all. Given this situation, we believe that Petitioner had a considerable likelihood of
success on the merits of a motion to withdraw her original guilty plea had she been
afforded that opportunity. Therefore, we conclude that Petitioner has sufficiently
undermined confidence in the outcome of this proceeding to establish prejudice.6

       Finally, we also disagree with the post-conviction court‟s conclusion that
Petitioner already received the relief that she seeks—an opportunity to withdraw her
original guilty plea—when she was permitted to withdraw that plea in conjunction with
the second plea agreement. That withdrawal was conditioned upon Petitioner‟s
acceptance of the terms of the second plea agreement. Petitioner was not made aware
that she had the option of seeking withdrawal of her original guilty plea “with no strings
attached.”7

       Having concluded that Petitioner received ineffective assistance of counsel prior to
the entry of her second guilty plea, we have no difficulty also concluding that the plea
was entered unknowingly. “To pass constitutional muster . . . a guilty plea must be
entered knowingly, voluntarily, and intelligently.” Ward v. State, 315 S.W.3d 461, 465
(Tenn. 2010) (citations omitted). “[A] plea is not „voluntary‟ if it is the product of
„[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats.‟” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin v.
Alabama, 395 U.S. 238, 242-43 (1969)). “[T]he standard of inquiry is whether the plea
represents a voluntary and intelligent choice among the alternative courses of action open
to the defendant.” Ward, 315 S.W.3d at 465 (citation and internal quotation marks
omitted). “If the accused is to make a „voluntary and intelligent choice among the

        6
          We decline the State‟s invitation to conclude that Petitioner has waived her argument by not
including copies of the transcripts of both plea hearings. See State v. Ballard, 855 S.W.2d 557, 560-61
(“Where the record is incomplete and does not contain a transcript of the proceedings relevant to an issue
presented for review . . . an appellate court is precluded from considering the issue.”). The record is
adequate for resolution of the issues as it is; we see no need for a record of what transpired at those
hearings.
        7
          This remains true notwithstanding the following finding of the post-conviction court: “[The
victim‟s] recantation played an essential part in the State‟s willingness to agree to permit the Petitioner to
withdraw the plea and negotiate a new settlement, which disposed of any charges relating to coercion of a
witness.”

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alternative courses of action‟ available to him, counsel must advise the accused, among
other things, of the choices that are available to him as well as the probable outcome of
these choices.” Parham v. State, 885 S.W.2d 375, 384 (Tenn. Crim. App. 1994)
(footnotes omitted). When assessing the validity of a guilty plea, a court must look at the
totality of the circumstances, including such factors as:

      the 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, 858 S.W.2d at
904).

        The evidence establishes that Petitioner only entered her second guilty plea based
upon her understanding that she could no longer seek to withdraw her original guilty plea
and proceed to trial. Under these circumstances, it simply cannot be maintained that her
plea was made “knowingly, voluntarily, and intelligently” because she was acting upon
the affirmative, yet erroneous, advice of counsel that the “alternative course of action”
that Petitioner most desired—and, as had been previously indicated by counsel in open
court, that she intended to pursue—was no longer available to her.

                                       Conclusion

       Because Petitioner has succeeded in showing that she received ineffective
assistance of trial counsel and that her convictions are founded upon a constitutionally
infirm guilty plea, the decision of the post-conviction court is reversed, and this case is
remanded for further proceedings.


                                                  _________________________________
                                                  TIMOTHY L. EASTER, JUDGE




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