         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE         FILED
                      OCTOBER 1997 SESSION       March 6, 1998

                                              Cecil Crowson, Jr.
                                               Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )    NO. 03C01-9701-CR-00035
      Appellee,                )
                               )    MORGAN COUNTY
VS.                            )
                               )    HON. E. EUGENE EBLEN,
JAMES HOOPER,                  )    JUDGE
                               )
      Appellant.               )    (Motion to Withdraw Plea)



FOR THE APPELLANT:                  FOR THE APPELLEE:

GREG LEFFEW                         JOHN KNOX WALKUP
P.O. Box 63                         Attorney General and Reporter
Rockwood, TN 37854
                                    JANIS L. TURNER
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    CHARLES E. HAWK
                                    District Attorney General

                                    FRANK A. HARVEY
                                    Assistant District Attorney General
                                    P.O. Box 703
                                    Kingston, TN 37763-0703




OPINION FILED:



AFFIRMED



JERRY L. SMITH,
JUDGE
                                       OPINION



       The defendant, James Hooper, appeals the trial court’s denial of his

motion to withdraw his plea of nolo contendere to one (1) count of aggravated

sexual battery. The trial court found the motion was filed after the maximum

allowed time. The decision of the trial court is affirmed.



                                           I.



       As part of a plea agreement, the defendant entered a plea of nolo

contendere to one (1) count of aggravated sexual battery. The charge had been

reduced from aggravated rape of a child less than thirteen (13) years of age.

Two (2) other counts of aggravated rape were dismissed.1 The defendant

accepted the plea and was sentenced to ten (10) years as a Range I offender.

       Four months after the entry of his plea, the defendant filed a pro se

motion seeking to withdraw it. The motion alleged that trial counsel advised the

defendant that the trial judge suggested that the defendant take the nolo

contendere plea. A hearing was held where the defendant was represented by

counsel. At the start of the hearing, the state moved to dismiss the petition for

untimeliness. The trial court allowed the defendant to introduce proof and to

submit a supplemental brief. At the hearing, the defendant contended his plea

was involuntary due to coercion by trial counsel as well as ineffective assistance

of trial counsel. The trial court subsequently denied the defendant’s motion.

Further, the trial court declined to treat the motion as a petition for post-

conviction relief or a petition for a writ of error coram nobis.




       1
          The defendant was previously convicted of three counts of aggravated
rape of a child less than thirteen (13) years of age and sentenced to three (3)
concurrent twenty-five (25) year terms. Those convictions were reversed and
remanded for a new trial. State v. James Hooper, C.C.A. No. 03C01-9309-CR-
00038, Morgan County (Tenn. Crim. App. filed August 10, 1994, at Knoxville).
The remand led to this plea.

                                           2
                                          II.



       Rule 32(f) of the Tennessee Rules of Criminal Procedure provides that “a

motion to withdraw a plea of guilty” must be filed prior to sentencing upon a

showing of any fair and just reason. Further, to correct a “manifest injustice,” the

motion may be filed after sentencing, but before the judgment is final. Tenn. R.

Crim. P. 32 (f).

       Initially, we note that the withdrawal provision of Rule 32 (f) applies to “a

plea of guilty.” It does not provide for the withdrawal of a plea of nolo

contendere. A guilty plea is different than a nolo contendere plea. See Tenn. R.

Crim. P. 11 (a), (b). The language of Rule 32 (f) when adopted in 1978 (then 32

(e)) was almost identical to the then existing Federal Rule of Criminal Procedure

32 (d). However, the federal rule expressly allowed the withdrawal of “a plea of

guilty or nolo contendere” (emphasis added). We assume the failure of

Tennessee to adopt the nolo contendere provision in the federal rule was

intentional.

       Even if Rule 32 (f) applies to nolo contendere pleas, the motion was

untimely. A judgment becomes final thirty (30) days after it is entered into the

minutes of the court clerk. Tenn. R. App. P. 4 (a); State v. Lock, 839 S.W.2d

436, 440 (Tenn. Crim. App. 1992). The defendant was sentenced by the trial

court on June 30, 1995. The motion of the defendant to withdraw his plea was

filed on October 26, 1995. The defendant’s motion was not timely filed.



                                          III.



       The defendant also contends that the trial court should have treated his

motion as a petition for post-conviction relief, or, in the alternative, as one for a

writ of error coram nobis. In support of his argument, the defendant cites Archer

v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (stating a court may treat a petition

for a writ of habeas corpus as a petition for post-conviction relief).


                                           3
       The Supreme Court in Archer cited explicit statutory authorization for its

statement. Id.; see Tenn. Code Ann. § 40-30-108 repealed by § 40-30-205 (c).

The defendant cites no analogous statute requiring the trial court to treat a

motion to withdraw a plea as a petition for post-conviction relief.

       The defendant further contends the trial court should have treated his

motion as a petition for a writ of error coram nobis. Relief under this writ is

confined to matters that were not, or could not have been, litigated at trial. Rowe

v. State, 498 S.W.2d 322, 325 (Tenn. 1973); Tenn. Code Ann. § 40-26-105.

The trial court did not err in failing to treat the motion as a petition for a writ of

error coram nobis.



                                           IV.



       Even if the defendant’s claims were considered, we find he would not be

entitled to relief. The defendant contends his counsel coerced him to plead

guilty and provided ineffective assistance of counsel by failing to interview and

utilize certain witnesses. The trial court found that the defendant’s plea was

voluntary, knowing and intelligent. In fact, the defendant testified that he “took

the plea . . . to get past it, to where I could turn around and file a motion, and

come back into court, either on a withdrawal or either a post-conviction.” We find

no evidence to indicate that the plea was involuntary.

       As to ineffective assistance of counsel, the defendant did not establish

that the claimed witnesses could have materially assisted in his defense.

       In summary, the defendant clearly understood the implications of his plea.

The advice and decisions by trial counsel were within the range of competence

demanded of attorneys who practice criminal law. See Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975).



       The judgment of the trial court is AFFIRMED.




                                            4
                                  __________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:




___________________________
GARY R. WADE, JUDGE




___________________________
DAVID H. WELLES, JUDGE




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