                                                                                      11/09/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                       Assigned on Briefs September 6, 2018

           STATE OF TENNESSEE v. RODNEY ALAN KIEFNER

                 Appeal from the Circuit Court for Madison County
                         No. 16-474    Kyle Atkins, Judge


                           No. W2017-02096-CCA-R3-CD


The Defendant, Rodney Alan Kiefner, appeals from the Madison County Circuit Court’s
denial of his Tennessee Rule of Criminal Procedure 32(f) motion to withdraw his 2017
guilty pleas to attempted first degree murder and two counts of aggravated assault, for
which he is serving an effective fifteen-year sentence. The Petitioner contends that the
trial court erred by denying his motion because his guilty pleas were involuntary and
because he received the ineffective assistance of counsel. We affirm the judgment of the
trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
T. WOODALL and NORMA MCGEE OGLE, JJ., joined.

Robert Golder, Memphis, Tennessee, for the appellant, Rodney Alan Kiefner.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Nina Seiler, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

        This case arises from the Petitioner’s June 28, 2017 negotiated guilty pleas to
attempted first degree murder and two counts of aggravated assault, one count of which
merged into the attempted first degree murder conviction, in exchange for an effective
fifteen-year sentence at 85% service.
                                 Guilty Plea Proceeding

        At the June 27, 2017 guilty plea hearing, the State and the Defendant stipulated to
the facts alleged in the indictment as supporting the guilty pleas. The indictment alleged
relative to attempted first degree murder that on May 19, 2016, the Defendant
“unlawfully, knowingly, intentionally,” and with premeditation attempted to kill Jonathan
Tyler Rutan by stabbing Mr. Rutan, causing serious bodily injury. The indictment
alleged relative to aggravated assault that the Defendant “intentionally and/or knowingly”
caused Jonathan Tyler Rutan to suffer serious bodily injury by the use of a knife, which
was a deadly weapon. The last indictment count alleged that the Defendant caused Scott
Cox to fear reasonably imminent bodily injury by “intentionally and/or knowingly”
“displaying and/or using” a knife, which was a deadly weapon.

        The trial court instructed the Defendant to ask questions if he did not understand
the proceedings, and the Defendant agreed. The Defendant told the court that he was not
under the influence of drugs or alcohol. Relative to his mental capability, the Defendant
stated that he had “some mental problems” but that he thought he was “okay.” Counsel
informed the court that the Defendant had been diagnosed with multiple mental health
disorders since childhood, that the Defendant had not received his needed medication in
confinement, and that the Defendant reported to counsel that he understood the
proceedings. Counsel said that the Defendant had been evaluated at Western Mental
Health Institute (Western), that the physicians concluded the Defendant “was fine,” that
the Defendant was also evaluated at Pathways Behavior Health Services (Pathways), and
that the physicians at Pathways also concluded the Defendant “was fine.” Counsel said
that the jail physicians “indicate[d] he needs . . . antipsychotic medication.”

       The Defendant told the trial court that he had obtained his GED and that he had
never been in legal trouble before this incident. The Defendant said that he and counsel
had reviewed his case, discussed the facts of the case, reviewed the indictment, discussed
the strengths and the weaknesses of the case, discussed the possible defenses, and
discussed the benefits and pitfalls of proceeding to a trial and accepting a plea offer. The
Defendant said he did not have questions for counsel. The trial court reviewed the
petition to accept guilty pleas, and the Defendant said that the document reflected his
signature, that he and counsel discussed the rights he waived by pleading guilty, and that
counsel “did her job” in explaining the terms and ramifications of the plea agreement.

       At the trial court’s request, the prosecutor stated the terms of the plea agreement
and the sentencing range for each offense, and the Defendant stated that he had no
questions about the plea agreement. The Defendant said he understood that by pleading
guilty he was waiving his rights to plead not guilty and proceed to a trial by jury. He said
he understood that he had the rights to the assistance of appointed counsel, to compel
witnesses to testify on his behalf, to confront and cross-examine all the State’s witnesses,
to remain silent, and to appeal any conviction and sentence. The Defendant stated that he

                                            -2-
understood he was admitting his guilt to the offenses to which he was pleading guilty and
that the present convictions would serve as a basis to increase the punishment for any
future convictions. The Defendant stated that he was entering his guilty pleas freely and
voluntarily. He denied anyone had forced or pressured him to plead guilty. He denied
anyone had threatened him or promised him anything to induce him to plead guilty. He
said he was pleading guilty because it was “the best course of action.” The Defendant
said that he had no questions for counsel and that he understood everything the court had
reviewed. The Defendant said that he was satisfied with counsel’s representation.

       The Defendant agreed that the facts contained in the indictment were
“substantially correct.” The Defendant stated he understood that he was pleading guilty
to attempted first degree murder and would receive fifteen years’ confinement at 85%
service, that one count of aggravated assault would merge with the attempted first degree
murder conviction, and that he would receive a concurrent six-year sentence at 30%
service for the second aggravated assault conviction. The Defendant stated that he
wanted the court to accept the plea agreement, and the court found that the Defendant
was pleading guilty freely, voluntarily, and intelligently.

                           Motion to Withdraw Guilty Pleas

       On July 27, 2017, the Defendant filed a motion to withdraw his guilty pleas,
arguing that manifest injustice required vacating the convictions because he had not been
provided medication necessary for his entry of knowing and voluntary guilty pleas. The
Defendant’s counsel at the guilty plea hearing was served with a State subpoena, which
she attempted to quash. In its response to the motion to quash, the State argued that the
Defendant’s motion to withdraw guilty pleas involved an ineffective assistance of
counsel allegation and that counsel’s testimony was necessary. The trial court denied
counsel’s motion to quash the subpoena after determining that the Defendant had raised
an ineffective assistance of counsel allegation in his motion to withdraw guilty pleas. We
note that the record does not reflect that the Defendant raised a stand-alone claim of
ineffective assistance of counsel. His claim, rather, was that manifest injustice required
the court to grant his motion to withdraw his guilty pleas because, in part, counsel
provided the ineffective assistance of counsel.

       At the motion hearing, the Defendant testified that he grew up in Alabama and
Connecticut and that he was diagnosed as a teenager with bipolar disorder with
schizophrenic tendencies. He recalled receiving in-patient mental health treatment at
“East Alabama Mental Health” and at “Bridges” in Connecticut. He said that he was also
evaluated at Columbia University in connection with a mental health study. He said that
when he was age eighteen or nineteen, he was involved in a serious car accident and that
his symptoms became worse afterward. He said that by age twenty-three, he began
receiving “signs from God,” which he described as receiving messages, answers to
questions, and “directions on things.” He said that at this time, he believed the

                                           -3-
communications were from God. He identified medications he had previously been
prescribed and his current medications but said he was not taking medication at the time
of the incident in this case. He said that at the time of the incident, he had been
prescribed Seroquel twice daily, that the medication tranquilized him, that he had been
working on roofs, and that he stopped taking his medication in order to work. He said
that although he had been prescribed Seroquel, it was almost impossible to work while
taking it.

        The Defendant testified that he thought his mental illness could have been relevant
to his defense because he was not himself at the time of the incident. He said that his
coworkers noticed “things that [were] going on that [were not] normal.” He thought the
incident would not have occurred if he had taken his medication. He said that he had
never been violent toward others but that he had “fear[ed] for his life . . . stuff like that”
because people had attempted to assassinate him three or four years before his
incarceration. The Defendant believed that the government had tried to assassinate him
and that he probably should not discuss it publicly. When counsel advised the Defendant
that he was safe in the courtroom, the Defendant stated that the government was trying to
kill him because he began speaking out against human trafficking and child sexual abuse.
He said that because he was “out of the way” in confinement, it did not seem as though
the government was “actively trying to get” him.

       The Defendant testified that at the guilty plea hearing, he and counsel discussed
his mental health and the government’s attempts on his life before he entered his guilty
pleas. He said that he told counsel, “I was tired, I just give up, or rather they just give me
a lethal injection. I’m just . . . tired of the torture that I’ve been through by the . . .
government.” He said that he was not supposed to talk about “this stuff” because “things
[got] worse” if he talked about it. The Defendant knew he pleaded guilty and said that he
pleaded guilty because he told counsel that he had no defense. The Defendant said,
though, that although counsel told him he had a choice whether to plead guilty, he had no
defense. He said that after his pretrial mental health evaluations, counsel never discussed
whether his mental illness was relevant to a defense.

       The Defendant testified that he understood he could have received ten additional
years if he were convicted at a trial, which would have increased his sentence to twenty-
five years. He said that on the day he entered his guilty pleas, he had taken Lithium and
Celexa and that those were the only medications “they” would give him. He said that he
would have been taking Seroquel at this time and that he was unsure whether he should
have been taking Lithium and Celexa or Depakote and Celexa, in addition to Seroquel.
He said that he was not taking Seroquel at the time of the motion hearing but that he was
taking Lithium and Celexa. He said that he felt similar to the way he felt on the day of
the guilty plea hearing. When asked if he would have testified at the guilty plea hearing
about the government’s attempts on his life, he stated that he was afraid to talk about it
“over a microphone and in front of other people.” He said it was dangerous to discuss.

                                             -4-
He said that he knew it was true at the time of his testimony and at the time he pleaded
guilty. The Defendant said that although it had been a long time since he had taken
Seroquel, it made him calm and level-headed, caused him to sleep more, and decreased
his anxiety.

        On cross-examination, the Defendant testified that he spoke to multiple physicians
at Western and that he “felt uncomfortable . . . speak[ing] to a roomful of . . . people and
stuff like that.” He said that his request to speak to the physicians individually was
denied because he was at the facility only for a thirty-day evaluation. He said that he met
with nine or ten people simultaneously and that he did not know how many were
physicians. He said he told them that he heard voices from God and that he had a
previous mental health diagnosis. He said that he did not mention Seroquel or his
concern that the government had attempted to kill him.

       The Defendant testified that counsel told him the results of the mental health
evaluation at a court appearance. He said that during his pretrial confinement and before
he entered his guilty pleas, he was prescribed Celexa and Lithium but was not prescribed
Seroquel. He said that before his arrest, he “could not” take Seroquel because the
medication hindered his ability to work. He recalled that the trial judge asked him and
counsel questions during the guilty plea hearing, but he could not recall the questions or
his responses with specificity. However, he did not dispute the accuracy of the guilty
plea hearing transcript. He recalled reviewing the guilty plea documents with counsel
before the hearing.

        On redirect examination, the Defendant testified that he could function with only
Lithium and Celexa. He said that he and a physician at Western discussed whether he
understood the world correctly without taking Seroquel and that “What I say -- what I
think I -- or what I see or what I understand is -- well, it’s -- it’s real. I -- What I’m
talking about is real. It’s not -- it’s not it’s not pretend to me.” He said that attempted
first degree murder involved premeditation and that he understood the definition of
premeditation “a little bit” but was not an attorney. He said that attempted second degree
murder did not involve premeditation and that the distinction between the offenses related
to the possible sentences. He denied that trial counsel discussed the definitions of and the
distinctions between attempted first degree murder and attempted second degree murder.
The Defendant said that he and counsel did not discuss attempted second degree murder.
He said that he asked questions about lesser included offenses and that counsel said,
“There was no possible way.”

       Counsel at the guilty plea hearing testified that she and the Defendant discussed
the purpose of the mental health evaluation at Western, that she discussed the
Defendant’s previous diagnoses with the evaluating physician, and that she provided the
limited medical records she had in her possession to the evaluating physician. Counsel
said that the Defendant’s mother was supposed to obtain the remainder of the records,

                                            -5-
that the Defendant’s mother reported sending the records to counsel by mail, and that
counsel never received them. Counsel said that she received the evaluating physicians’
report, stating that the Defendant was “competent and sane” at the time of the offenses,
and that she discussed the report with the Defendant.

       Counsel testified that the Defendant “[e]ssentially . . . had really no defense
because of everything that was stacked against him.” She told the Defendant that she
would fight to obtain the best possible outcome if he wanted a trial but that the steps he
took leading up to the offenses would have made it difficult to establish he acted without
premeditation. Counsel recalled the evidence showed that the Defendant purchased
bleach and sheets and that he sharpened the knife before the assault. Counsel said the
State had video recordings and receipts relative to the Defendant’s purchases and a
witness who saw the Defendant sharpening the knife.

       Counsel testified that the Defendant expressed concern about his medication, that
she talked to the jail staff, and that the staff told her jail policy only permitted certain
medications be provided to inmates. She said that she and the Defendant discussed the
medications the jail staff provided, that she ensured he took the medications, and that he
communicated coherently, although he periodically became sidetracked with “the
government.” She said that the State’s initial plea offer was twenty years but that the
offer was reduced to fifteen years. She said that on the day she explained the fifteen-year
offer and the mental health evaluation reports, the Defendant was coherent and “totally
understood.” She said that after their discussion, the Defendant began pacing and “kind
of ranting” in front of a guard. She said that she remained close to ensure nothing
happened. She said the guard told her that the Defendant’s behavior was normal and that
he would not “do anything.” She said that once the two mental health evaluation reports
showed the Defendant was competent, her “hands were tied.” She said that she
negotiated the plea offer to fifteen years because she knew the Defendant would have
been convicted at a trial.

       Counsel testified that on the day of the guilty plea hearing, the Defendant
understood what he was doing and that she asked the Defendant multiple times if he
wanted to plead guilty. She said she told the Defendant that she could ask for additional
time to consider the plea offer and could schedule a trial date. She said the Defendant
told her that he was sure he wanted to plead guilty.

        On cross-examination, counsel testified that she did not seek a court-appointed
mental health expert for the defense because the Defendant had been evaluated twice at
different institutions, that she thought the outcome of a third evaluation would have been
identical, and that it would have been the “battle of the experts” had a third evaluation
resulted in a different outcome than the previous evaluations. She noted that Western had
all of the Defendant’s previous records, except for the records from New York, which she


                                            -6-
thought had been destroyed. Counsel said that the Defendant’s mother provided the New
York records to Western but did not provide them to counsel.

       Counsel testified that premeditation was the primary distinction between
attempted first degree murder and attempted second degree murder. She said that the
Defendant was not taking his prescribed medications at the time of the offenses and that
his voluntary failure to take the medications was not a defense. She said that she
discussed an insanity defense with the Defendant and attempted to use his mental health
as a defense but that the Defendant “had other drugs in system” that would have “killed
any type” of reliance on his mental health. She said that she did not tell the Defendant
that “he had absolutely no defense” but rather that this was “a very difficult case because
of all the steps he took” before the offenses. She said that if the Defendant had not
pleaded guilty, “it would have been a Hail Mary” at a trial and that she would have relied
on the Defendant’s mental health diagnoses, although he was not mentally incompetent,
and would have attempted to “poke holes” in the State’s evidence during cross-
examination. Counsel stated that she knew she could have sought an independent mental
health expert but that she determined an independent expert would not have been
beneficial to the defense because the expert, in her opinion, would have made the same
conclusions as the previous experts. She was not a psychiatrist but said that she had been
a criminal defense attorney for a while and that based upon the Defendant’s ability to
explain with specificity how the offenses occurred, he understood what was happening
and what he was doing at the time of the offenses. She had not read State v. Phipps, 883
S.W.2d 138 (Tenn. Crim. App. 1994).

       The trial court made oral findings and determinations at the motion hearing and
subsequently entered a written order denying the motion to withdraw the guilty pleas.
The court reviewed the guilty plea hearing transcript and determined that the court
questioned the Defendant at length about whether his pleas were voluntary, whether he
understood the rights he waived by pleading guilty, whether he was satisfied with
counsel’s performance, and whether he had questions for the court. The court determined
that the Defendant answered the court’s questions affirmatively and did not ask the court
and counsel any questions.

       The trial court determined that the Defendant underwent mental health evaluations
before the guilty plea hearing and was found competent and sane. The court found, based
upon the Defendant’s testimony, that when the Defendant returned to jail after the
evaluation at Western, he received Lithium and Celexa and that the Defendant was
provided the same medications at the time of the guilty plea and the motion to withdraw
guilty plea hearings. The court questioned whether the Defendant could be incompetent
to answer questions at the guilty plea hearing but competent to testify at the motion
hearing while taking the same medications. The court found that the Defendant admitted
his guilt at the guilty plea hearing and that the Defendant had not asserted his innocence
of the conviction offenses. The court found that the Defendant understood what occurred

                                           -7-
during the motion hearing and understood the difference between the fifteen-year
sentence he received and the additional ten years he faced if convicted at a trial. The
court found that the Defendant also understood the difference between first degree
premediated murder and second degree murder. The court noted that no mental health
evidence to establish manifest injustice was presented at the motion hearing.

        The trial court credited counsel’s testimony and found that counsel believed the
Defendant understood “his guilty plea[s],” based upon their previous discussions. The
court discredited the Defendant’s testimony and found that at the guilty plea and motion
hearings, the Defendant showed an understanding of his guilty pleas and sentences. The
trial court found that medical records were not presented at the motion hearing and that
the Defendant’s testimony was the only evidence related to the Defendant’s mental
health.

       The trial court determined that the Defendant failed to show manifest injustice
existed as a basis for withdrawing his guilty pleas. The court found that the motion to
withdraw was filed quickly after the Defendant entered his guilty pleas, which weighed in
favor of granting the motion. The court found that relative to why the motion to
withdraw was not filed earlier, “those issues” were examined in that the Defendant was
referred for mental health evaluations, that he was deemed competent at the time of the
offenses, that he could communicate effectively with counsel, and that he understood the
issues in his case, all of which weighed against granting the motion. The court found that
the Defendant had not maintained or asserted his innocence, weighing against granting
the motion. The court found relative to the circumstances underlying the entry of the
guilty pleas that the Defendant admitted his guilt at the hearing. The court found that the
Defendant understood what occurred at the guilty plea hearing and that the Defendant
had “every opportunity” to ask questions.

        Relative to the claim that ineffective assistance of counsel resulted in manifest
injustice, the trial court found that counsel did not tell the Defendant that he had “no
defense” but that counsel told the Defendant it would be a “tough row to hoe.” The court
found that it would have instructed a jury on all lesser included offenses as required by
law and that counsel knew this based upon her previous cases before the court. The court
found that the Defendant failed to show that counsel provided deficient performance and
that he was prejudiced by counsel’s performance. This appeal followed.

        The Defendant contends that the trial court erred by denying his motion to
withdraw his guilty pleas because his guilty pleas were involuntarily entered and because
he received the ineffective assistance of counsel. The State responds that the court did
not err by denying the motion.




                                            -8-
        Tennessee Criminal Procedure Rule 32(f) states that after a trial court has imposed
sentence but before a judgment becomes final, “the court may set aside the judgment of
conviction and permit the defendant to withdraw the guilty plea to correct manifest
injustice.” Once a defendant enters a guilty plea, the judgment of conviction “becomes
final thirty days after acceptance of the plea agreement and imposition of [the] sentence,”
meaning a defendant “has thirty days within which to . . . [file] a motion to withdraw the
previously entered plea pursuant to Rule 32(f).” State v. Green, 106 S.W.3d 646, 650
(Tenn. 2003). A trial court’s determination regarding a motion to withdraw guilty plea is
reviewed for an abuse of discretion. State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).
An abuse of discretion occurs when a trial court “applies incorrect legal standards,
reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the
proof, . . . applies reasoning that causes an injustice to the complaining party . . . [and]
fail[s] to consider the relevant factors provided by higher courts as guidance for
determining an issue.” Id.

       Rule 32(f) does not provide “a criminal defendant who has [pleaded] guilty . . . a
unilateral right to later withdraw his plea either before or after sentencing.” Id. at 444;
see State v. Crowe, 168 S.W.3d 731, 740 (Tenn. 2005); State v. Mellon, 118 S.W.3d 340,
345 (Tenn. 2003). “The defendant bears the burden of establishing sufficient grounds for
withdrawing [a] plea.” Phelps, 329 S.W.3d at 444; see State v. Turner, 919 S.W.2d 346,
355 (Tenn. Crim. App. 1995). In determining whether to grant a motion to withdraw a
guilty plea, trial courts “should always exercise . . . discretion with caution in refusing to
set aside a plea of guilty, to the end that one accused of crime may have a fair and
impartial trial.” Phelps, 329 S.W.3d at 444 (internal quotation and citation omitted).
Trial courts should consider

       (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; see U.S. v. Haywood, 549 F.3d 1049, 1052 (6th Circ. 2008); U.S. v. Spencer,
836 F.2d 236, 239-40 (6th Cir. 1987). However, these factors are “not exclusive,” and
“no single factor is dispositive.” Phelps, 329 S.W.3d at 446. A trial court should permit
a defendant to withdraw a guilty plea if, after weighing these factors, the court determines
that “the balance of factors weighs in the defendant’s favor, . . . even if the defendant’s
reasons could be characterized as a change of heart.” Id. at 448.



                                             -9-
        As a preliminary matter, we note that the trial court made findings relative to the
majority of the Phelps factors in determining whether the Defendant’s motion pursuant to
Rule 32(f) should be granted based upon allegations of involuntary guilty pleas and
ineffective assistance of counsel. However, the Defendant has not referenced the Phelps
factors in his appellate brief. Rather, he argues that to prevent a manifest injustice, he
should be permitted to withdraw his guilty pleas because they were involuntary and the
result of ineffective assistance of counsel. Although the State references Phelps in its
brief, its analysis of whether the trial court erred by denying the motion considers simply
whether the Defendant’s guilty pleas were involuntary and the product of ineffective
assistance without reference to the Phelps factors.

        The record reflects that the Defendant entered his guilty pleas on June 27, 2017,
and that on July 27, 2017, the Defendant filed the motion to withdraw his guilty pleas.
The trial court found that the motion to withdraw was filed quickly after the entry of the
Defendant’s guilty pleas, which weighed in the Defendant’s favor. However, this court
has previously determined that a one-month lapse between the entry of a guilty plea and
the filing of a motion to withdraw a guilty plea is inconclusive, neutral, and of no
consequence. Compare State v. David Jerome Powell, No. W2015-00366-CCA-R3-CD,
2015 WL 7282747, at *7 (Tenn. Crim. App. Nov. 18, 2015) (determining that a five-
week lapse between the entry of the guilty plea and the motion to withdraw guilty pleas
was “at best . . . neutral”), State v. Mitchell Nathaniel Scott, No. M2013-01169-CCA-R3-
CD, 2014 WL 1669964, at *5 (Tenn. Crim. App. Apr. 25, 2014) (concluding that a one-
month lapse was “inconclusive”), and State v. Marcus E. Robinson, No. M2005-00670-
CCA-R3-CD, 2006 WL 1097456, at *5 n.5 (Tenn. Crim. App. Apr. 5, 2006)
(determining that a one-month lapse was “of no consequence . . . as it was neither a
particularly long nor short time”), with Phelps, 329 S.W.3d at 449 (determining that a
nearly seven-week lapse was “a significant length of time” and weighed “somewhat
against” granting the motion to withdraw guilty pleas), and State v. Kevin Glenn Tipton,
No. E2012-00038-CCA-R3-CD, 2013 WL 1619430, at *12 (Tenn. Crim. App. Apr. 13,
2013) (determining that filing the motion to withdraw more than six weeks after pleading
guilty was “a substantial amount of time”). We conclude that this factor neither weighs
in favor of nor against granting the Defendant’s motion.

       Relative to whether a valid reason exists for why the motion was not filed earlier,
the record reflects that the trial court found that “those issues” were examined in that the
Defendant was referred for mental health evaluations, was deemed competent, could
communicate with counsel, and understood all the issues in this case. However, the
record reflects that the mental health evaluations concluded before the Defendant entered
his guilty pleas and that the reports had been submitted to counsel before the guilty plea
hearing. In any event, the record does not reflect that at the motion hearing, the defense
provided a particularized reason for why the motion was not filed earlier. Present
counsel filed his notice of appearance and the motion to withdraw the Defendant’s guilty
pleas on the same day, and neither document provides information relative to the

                                           -10-
circumstances leading to the Defendant’s desire to withdraw his guilty pleas, the
Defendant’s retaining present counsel, and when present counsel was instructed to file
the motion. A defendant’s failure to provide an explanation for the failure to file the
motion sooner has been considered a neutral and inconclusive factor in determining
whether to grant a defendant’s motion to withdraw guilty pleas. See Phelps, 329 S.W.3d
at 449; State v. Timothy Lamar Baker, No. E2016-01332-CCA-R3-CD, 2017 WL
1493491, at *3 (Tenn. Crim. App. Apr. 26, 2017); David Jerome Powell, 2015 WL
7282747, at *7; State v. Timothy Damon Carter, No. M2010-02248-CCA-R3-CD, 2012
WL 2308293, at *7-9 (Tenn. Crim. App. June 18, 2012). But c.f. State v. Ronald
McMillan, No. M2012-02491-CCA-R3-CD, 2013 WL 4082628, at *4 (Tenn. Crim. App.
Aug. 14, 2013) (concluding that “[t]he lack of an explanation for the lapse of time
between the plea and the motion to withdraw weighs against permitting withdrawal of the
plea”). We conclude that this factor neither weighs in favor of nor against granting the
Defendant’s motion.

        Likewise, the record does not reflect that the Defendant has asserted or maintained
his innocence, which the trial court determined at the motion hearing. At the guilty plea
hearing, the Defendant stipulated to the facts contained in the indictment, alleging two
counts of aggravated assault and one count of attempted first degree murder, told the trial
court that the facts contained in the indictment were “substantially correct,” and admitted
his guilt to the conviction offenses. At the motion hearing, the testimony related to the
impact of the Defendant’s mental health in his decision to plead guilty and to whether the
Defendant could have been convicted at a trial of a lesser included offense of attempted
first degree murder. This factor weighs against granting the motion to withdraw.

       Relative to the circumstances underlying the entry of his guilty pleas, the trial
court determined that the Defendant entered knowing guilty pleas and received the
effective assistance of counsel. The Supreme Court has concluded that 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 (1970). A trial court must
examine in detail “the matter with the accused to make sure he has a full understanding of
what the plea connotes and of its consequence.” Boykin v. Alabama, 395 U.S. 238, 243-
44 (1969); see Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). Appellate courts
examine the totality of circumstances when determining whether a guilty plea was
voluntarily and knowingly entered. Turner, 919 S.W.2d at 353. A guilty plea is not
voluntary if it is the result of “[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats.” Boykin, 395 U.S. at 242-43; see Blankenship,
858 S.W.2d at 904. A petitioner’s representations and statements under oath that his
guilty plea is knowing and voluntary create “a formidable barrier in any subsequent
collateral proceedings [because] [s]olemn declarations . . . carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).



                                           -11-
       The record reflects that the Defendant entered knowing, voluntary, and intelligent
guilty pleas. The Defendant’s testimony at the motion hearing is the primary evidence
related to his mental health. Although the guilty plea hearing transcript mentions the two
mental health evaluations performed to determine the Defendant’s mental state at the
time of the offenses and whether he was competent to stand trial, the reports are not
included in the appellate record. Counsel told the trial court at the guilty plea hearing
that the evaluating physicians concluded that the Defendant “was fine.” The Defendant
did not present evidence at the motion hearing refuting the competency determination,
did not question counsel about the contents of the reports, and did not present any
additional mental health information regarding the Defendant’s prescription medications.
Likewise, the Defendant’s testimony at the motion hearing reflects that although the
Defendant had been prescribed Seroquel at the time of the offenses and voluntarily
stopped taking the medication in order to work, he took Lithium and Celexa at the time
he entered his guilty pleas and at the motion hearing.

       At the guilty plea hearing, the trial court told the Defendant to ask questions if he
did not understand the proceedings, and although he agreed to ask questions, he asked the
court no questions. The Defendant was not under the influence of alcohol or drugs, and
he said that although he had “mental problems,” he was “okay.” Counsel told the court
that the Defendant understood the proceedings and that the mental evaluations
determined that the Defendant “was fine.” The Defendant told the court that he had
obtained his GED, that he had never been in legal trouble before this case, and that he
and counsel had discussed the strengths and weaknesses of the case, the possible
defenses, the benefits and pitfalls of proceeding to a trial and accepting a plea offer, and
the facts underlying the offenses. The court reviewed the contents of the plea agreement
with the Defendant, and the Defendant acknowledged it reflected his signature. The
Defendant said that he and counsel discussed the rights he waived by pleading guilty and
that counsel “did her job” in explaining the terms and ramifications of his guilty pleas.
The court reviewed the rights the Defendant waived by pleading guilty, and he stated that
he understood. The Defendant stated that he was pleading guilty freely and voluntarily
and denied that anyone had forced, pressured, and threatened him to plead guilty. The
Defendant said that pleading guilty was “the best course of action” and that he
understood the terms of the plea agreement. The record does not reflect that the
Defendant’s behavior was erratic or disruptive.

        The Defendant’s motion hearing testimony reflects that he understood the terms of
the plea agreement because he discussed the difference between attempted first degree
murder and attempted second degree murder, understood the possible sentencing
outcomes for each offense, and understood he faced a longer sentence if convicted after a
trial. The Defendant testified that he “could function” with only Lithium and Celexa, the
two medications prescribed at the time of the guilty plea and motion hearings. Although
the Defendant stated that counsel reported having “no defense,” counsel’s credited
testimony reflects that she told him the evidence was “stacked against him.” Counsel

                                           -12-
said she told the Defendant that she would take the case to trial but that the steps he took
before the offenses made it difficult to establish he acted without premeditation. Counsel
stated that receipt and video-recording evidence showed the Defendant’s purchasing
bleach and sheets before the offenses and that a witness saw him sharpening the knife
before the offenses. Counsel testified that although the Defendant periodically became
sidetracked during their discussions, the Defendant communicated coherently, understood
their discussions, and described how the offenses occurred with specificity. Counsel said
that on the day the Defendant pleaded guilty, she asked him multiple times if he wanted
to plead guilty and told him she could request a continuance or a trial date. Counsel said
the Defendant was sure he wanted to plead guilty. The record supports the trial court’s
determination that the Defendant understood the guilty plea proceedings, understood the
terms of the plea agreement, and entered knowing and voluntary guilty pleas.

       Relative to whether counsel provided ineffective assistance by failing to consider
diminished capacity as a defense and convictions for lesser included offenses, the
Defendant was required to establish that (1) counsel’s performance was deficient and (2)
the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “[F]ailure to
prove either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To
establish the performance prong, a defendant must show that “the advice given, or the
services rendered . . . , are [not] within the range of competence demanded of attorneys in
criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466
U.S. at 690. The court must determine if these acts or omissions, viewed in light of all of
the circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. To establish the prejudice prong, a defendant must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.


       The Defendant argues that counsel provided ineffective assistance because she did
not know what medications treat schizophrenia, as evidenced by her testimony that she
thought Seroquel treated bipolar disorder, and had never read State v. Phipps. He argues
that had counsel read Phipps, she would have been familiar with diminished capacity and
understood that the Defendant could have been convicted of a lesser included offense of
attempted first degree murder based upon an inability to act with premeditation.
Although the Defendant disputes counsel’s knowledge of anti-psychotic medication, no
medical evidence was presented at the hearing. The record reflects that counsel
investigated the Defendant’s mental health. Counsel requested a mental health
evaluation, discussed the Defendant’s conditions with his mother, and discussed the
Defendant’s previous diagnoses with the evaluating physicians. Counsel said that the

                                           -13-
competency determinations coupled with the State’s evidence would have made it
difficult to show the Defendant acted without premeditation and determined that the
Defendant would have been convicted at a trial. Although the State’s initial plea offer
was twenty years, counsel successfully negotiated a fifteen-year sentence for a Class A
felony.

        Although counsel said that she was not familiar with Phipps specifically, counsel
was not questioned about whether she understood the possible application of diminished
capacity in the Defendant’s case. In any event, counsel said that she and the Defendant
discussed an insanity defense and that she attempted to use the Defendant’s mental health
as a defense but that he “had other drugs in his system” that would have “killed any type”
of reliance on his mental health. Counsel said that if the case had proceeded to a trial, she
would have relied on the mental health diagnoses, regardless of the competency
determination, and would have attempted to “poke holes” in the prosecution’s evidence.
We note that the Defendant did not present favorable mental health evidence at the
hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The record
supports the trial court’s determinations that counsel did not provide deficient
performance and that the Defendant was not prejudiced by counsel’s performance.

       Because the record supports the trial court’s determinations that the Defendant
entered knowing and voluntary guilty pleas and that counsel did not provide ineffective
assistance of counsel, we conclude that the Phelps factor related to the circumstances
underlying the entry of the Defendant’s guilty pleas weighs against granting the motion
to withdraw his guilty pleas.

       The trial court did not render findings relative to the Defendant’s nature and
background and his prior experience with the criminal justice system, and the information
in the record relative to these factors is limited. The record reflects that the Defendant
was approximately age twenty-eight at the time he entered his guilty pleas. On January
19, 2017, the trial court ordered a forensic evaluation at Pathways to determine whether
the Defendant was competent to stand trial and to assess the Defendant’s mental
condition at the time of the offenses. On March 8, 2017, the trial court ordered that a
second evaluation be conducted at Western, based upon the recommendation of the
physicians at Pathways. The reports from these evaluations are not included in the
appellate record.

       However, at the motion hearing, the Defendant testified that, as a teenager, he was
diagnosed with bipolar disorder with schizophrenic tendencies, that he had previously
received in-patient treatment in Alabama and Connecticut, that his symptoms became
worse after a car accident at age eighteen or nineteen, and that by age twenty-three he
began receiving “signs from God.” At the guilty plea hearing, counsel told the trial court
that the Defendant had been diagnosed with multiple mental health disorders, that the
Defendant had undergone two mental health evaluations since his arrest, and that the

                                            -14-
physicians concluded the Defendant “was fine.” The Defendant reported obtaining his
GED, never having been in trouble before this case, and never having been violent
toward others. The record does not contain a presentence report, but the judgments of
conviction reflect that the Defendant pleaded guilty as a standard offender relative to the
aggravated assault convictions. At the motion hearing, the Defendant testified that at the
time of the offenses, he worked on roofs and voluntarily stopped taking Seroquel because
the side effects interfered with his ability to work. On balance, the Defendant’s nature
and background weigh neither in favor nor against granting the Defendant’s motion, but
the Defendant’s lack of criminal history weighs in favor of granting the Defendant’s
motion.

       Last, we consider the potential prejudice to the State if the motion were granted to
the extent that the Defendant’s lack of prior experience with the criminal justice system
may establish a fair and just reason for allowing the Defendant to withdraw his guilty
pleas. See Phelps, 329 S.W.3d at 451 (stating that this factor is only relevant when a
defendant establishes a “fair and just reason” granting the motion). The State did not
address this factor at the motion hearing, and the trial court did not render any relevant
findings in this regard. The prosecutor’s argument focused on the Defendant’s failure to
establish manifest injustice, requiring the withdrawal of the Defendant’s guilty pleas.
The prosecutor argued that because the Defendant failed to show that his guilty pleas
were involuntary and that he received ineffective assistance, the motion to withdraw
should be denied. In any event, the evidence against the Defendant remains within the
State’s possession and available for a trial. Counsel testified at the motion hearing that
the State’s evidence showed that before the offenses, the Defendant purchased bleach and
sheets and sharpened the knife used during the incident. This factor weighs neither in
favor of nor against granting the Defendant’s motion.

        After consideration of the Phelps factors, we conclude that although the trial court
failed to render findings on each factor, the trial court did not abuse its discretion by
denying the Defendant’s motion. The Defendant failed to establish a manifest injustice
required withdrawal of his guilty pleas, and he is not entitled to relief. The judgment of
the trial court is affirmed.



                                     ____________________________________
                                     ROBERT H. MONTGOMERY, JR., JUDGE




                                           -15-
