        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs at Knoxville October 13, 2015

         STATE OF TENNESSEE v. JANETTE EBONY ROBINSON

               Appeal from the Criminal Court for Davidson County
                 No. 2013-A-643 Cheryl A. Blackburn, Judge


             No. M2015-00041-CCA-R3-CD – Filed December 15, 2015


The Defendant, Janette Ebony Robinson, pleaded guilty in the Criminal Court for
Davidson County to two counts of aggravated child abuse and received two concurrent
twenty-five-year sentences. See T.C.A. § 39-15-402 (2014). The Defendant appeals the
trial court‟s denial of her motion to withdraw her guilty plea. We affirm the judgment of
the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ. joined.

David Harris (on appeal); Jason Chaffin (at motion to withdraw the guilty plea hearing),
Nashville, Tennessee, for the appellant, Janette Ebony Robinson.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Glenn Funk, District Attorney General; and Brian Holmgren, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       This case relates to the Defendant‟s March 7, 2014 guilty pleas to two counts of
aggravated child abuse pursuant to a negotiated plea agreement. After the guilty plea
hearing, the Defendant mailed a handwritten “motion” dated March 29, 2014, to the trial
court judge seeking to withdraw her guilty pleas. On April 8, 2014, a copy of the letter
was forwarded to defense counsel by the trial judge‟s office manager. On June 2, 2014,
defense counsel filed with the court clerk a motion to withdraw the guilty pleas and a
motion to withdraw as counsel.

      At the guilty plea hearing, the prosecutor summarized the facts as follows:
      [T]he victim in this case [was] three years of age at the time of these
      particular offenses. . . . August of [2011, the victim] was returned to the
      care of [the Defendant] on a trial basis and remained in her care through the
      month of August and September up until October 14th of 2011 when [the
      victim] was admitted to the hospital . . . September 26th of 2011, [the
      victim] presented to Vanderbilt Hospital with a fracture of her arm.
      Initially the medical staff accepted [the Defendant‟s] explanation for this as
      an accidental injury. However on October 14th of 2011 [the victim] was
      [re-presented] to Vanderbilt Hospital. At that time she was diagnosed with
      a lacerated pancreas, a hematoma to her liver, hematomas to her head,
      severe bruising around her head, a concussion, and various cutaneous
      injuries.

              On October 17th a skeletal survey was done, which revealed an
      undetected rib fracture that was healing, suggesting it had been caused
      between the arm fracture and the date of her admission based on the timing
      of that injury.

             Specifically [the Defendant] was asked to describe the circumstances
      surrounding [the victim‟s] injuries. She provided a number of conflicting
      accounts, admitted that she was the caretaker for [the victim]. [The victim]
      had injuries that represented whip marks from a belt or a cord based on the
      pattern of injuries. Those occurred during the time period between August
      5th of 2011 and September 26th of 2011. She was observed to cause those
      injuries by Mr. Taylor as well as the accounts of one of [the victim‟s]
      siblings.

      ....

      [T]he liver hematoma and the lacerated pancreas as well as the head
      injuries, those occurred on or around October 14th, 2011, based on the
      information [the Defendant] provided to medical staff about when the child
      became symptomatic. There were no other individuals who were in a
      position to have caused these particular injuries on that particular date.

       At the guilty plea hearing, the Defendant testified that she and defense counsel
discussed the charges, the potential sentences, and the possibility of consecutive service.
The Defendant said she understood that the two convictions would appear on her record
permanently and could be used to enhance the sentence of any future conviction. The
Defendant said that she and counsel reviewed available defenses and the discovery file.
The Defendant said that she had an eleventh-grade education and that counsel read the

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plea agreement form to her. She said that she asked counsel questions and that she was
satisfied with his answers.

       The Defendant testified that she was prescribed Depakote and Zyprexa, that she
had taken them the evening before and morning of the guilty plea hearing, and that the
medication did not affect her ability to understand the terms of her plea agreement. The
Defendant said that she understood she was waiving her right to a trial and that her guilty
pleas were not based on any threats or promises. She said that she was satisfied with
defense counsel and that he had done everything she asked of him.

       The trial court explained to the Defendant her right to an attorney at trial, her right
to cross-examine witnesses, the State‟s burden of proof, her right not to testify, her right
to a sentencing hearing, and her right to an appeal. The Defendant said she wanted to
waive her rights and enter guilty pleas.

      After the guilty plea hearing, the Defendant sent a letter to the trial judge dated
March 29, 2014, entitled “Motion to withdraw plea (due to pressure and lack of
information for my rights by [defense counsel],” which stated the following:

       Good morning Your Honor, On 3-7-14, I was given advice to take plea DA
       made, that I really had no choice. So, I did as I was told but, didn‟t
       understand choice [attorney] told me to make. I‟m asking the court to
       withdraw my plea and allow me to have a fair plea or trial and be explained
       my rights so, I understand [completely] the outcome of my [decision] or
       verdict by court. Thank you for your time and concern in this matter.

The judge‟s office manager replied in an April 8, 2014 letter that the judge could not
communicate with the Defendant regarding a pending proceeding, that the letter would be
placed in the court file and forwarded to defense counsel, and that the Defendant should
direct any questions to counsel. On June 2, 2014, counsel filed motions to withdraw the
guilty pleas and to withdraw as counsel.

       At the hearing on the motion to withdraw the guilty pleas, the trial judge
questioned the prosecutor and defense counsel regarding the filing date of counsel‟s
motion to withdraw the guilty plea, which was submitted more than thirty days after the
sentences were imposed. See Tenn. R. Crim. P. 32(f)(2) (“After sentence is imposed but
before the judgment becomes final, the court may set aside the judgment of conviction
and permit the defendant to withdraw the plea to correct manifest injustice.”). The
prosecutor answered that the Defendant “made an attempt to do that on her own” in a
March 29, 2014 handwritten letter to the court. The judge said that her office manager
“responded to her on April the 8th. Her hand is dated 3-29. The envelope that came with

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that is dated March the 31st. That would be the date that we would consider relevant. So
we need to make this an exhibit to this hearing. . . . [W]e‟ve addressed that issue.”

        The Defendant testified that she remembered writing a “letter or a motion” and
mailing it to the trial judge. She said that she had been diagnosed with “paranoid
schizophrenia and bipolar, PSOD and psychopath and I‟m now taking Seroquel,
Trazodone . . . and some more other medicines.” She said that she had been hospitalized
more than five times as an adult due to her psychiatric issues. The Defendant stated that
after her arrest, she took her medications “on and off” in the jail. She said that the
medications managed her symptoms, but that if she stopped taking them, she heard
voices, hallucinated, experienced mood swings, and had difficulty concentrating. The
Defendant said she was supposed to take six pills a day in jail, but three weeks before the
guilty plea hearing, she started hearing voices telling her that her attorney and the trial
judge were “out to get her” and that she should stop taking her medications. She said jail
staff sometimes watched her take the medications, but she hid the pills under her tongue
and spit them in the trash.

       The Defendant testified that when she stopped taking her medications, “I started
thinking people was out to get me, hearing voices, seeing things, not be able to be around
too many people. I just stayed in my room and [did] not eat or take my medication.” She
said that the symptoms were frightening and familiar to her. The Defendant said that she
did not remember what she told the trial judge at the guilty plea hearing. She said that
the day of the hearing “was very hard for me” due to her psychiatric symptoms and that
she did not understand what she was doing when she pleaded guilty.

      The Defendant testified that when she went into Tennessee Department of
Correction (TDOC) custody, the prison staff placed her medications in water and
examined inside her mouth to ensure she swallowed the medication. As a result, she
“experienced a marked difference” in her comprehension.

      The Defendant testified that her mind was currently clear and that she understood
withdrawing the guilty plea would reinstitute the original charges against her.

       On cross-examination, the Defendant identified the handwritten letter she sent to
the trial judge and testified that she mailed it without any legal advice. She
acknowledged that in the letter, she did not claim she was not taking her medication, was
suffering from mental illness at the guilty plea hearing, or was not of sound mind at the
hearing. The Defendant said that she did not “think I was supposed to tell [the judge]
that.” The Defendant stated that she wrote the letter because she started taking her
medications after she was sent to prison on March 24. Although the Defendant had not
resumed taking her medications on March 24, she said that on that date “it was coming to

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me that I had done something wrong in entering my plea” and that she felt like she should
have written the judge a letter.

        The Defendant testified that she wrote the letter because her mind was clearer after
resuming her medications, and she denied that she wrote the letter solely because she
realized she was serving twenty-five years in prison. She thought she sporadically took
some medication at the jail between the time she entered her pleas and when she went
into TDOC custody. She said she did not write the letter from the jail because she “had a
lot of things to think about.” The Defendant said that the jail staff watched her take her
medications but that they did not examine her mouth or place the pills in water to ensure
she swallowed them. She said that the inmates emptied the trash cans and that the jail
staff never saw her pills in the trash.

        The Defendant testified that she told defense counsel she was not taking her
medications but could not remember when. The Defendant recalled counsel‟s asking her
at the jail whether she had been taking her medications, and she told him she had not.
The Defendant said that she told counsel at every meeting before she entered her guilty
pleas that she had not been taking her medications and that counsel knew she had been
off her medications for three weeks before the plea hearing. The Defendant stated that
counsel never asked how she was avoiding taking the medications. She did not
remember how long she took medication at the jail before she stopped but later said that
at the time she stopped taking her medications, she had been taking them since her arrest
one year earlier.

       The Defendant testified that she stopped taking her medications because she was
worried about going to court and about her daughter. She denied accepting the plea offer
because of the reduced sentence. She did not remember discussing with defense counsel
that she faced a “constructive life” sentence if she went to trial. The Defendant said that
she did not contact counsel when she decided she wanted to withdraw her pleas but that
she discussed her decision with her family.

       The Defendant testified that when she wrote in the letter she wanted a fair plea,
she meant she wanted to “get back on my meds and start over again.” She said that the
plea was unfair because she did not understand her case, defense counsel did not show
her the police reports, witness statements, medical records, or the Defendant‟s statements,
and counsel “just said to do twenty-five or 125, like a lot of numbers. . . . I wasn‟t taking
my medicine and I didn‟t understand.” The Defendant said that she had not read the
transcript of the guilty plea hearing and that she did not remember the hearing. She said
she was “more focused now, and I‟m understanding things more.” The Defendant stated
that her attorney at the hearing had not reviewed discovery with her, but she later testified


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that he did. She said that they discussed the likelihood of conviction at a trial and the
evidence against her.

        On redirect examination, the Defendant testified that she knew in advance the date
of the guilty plea hearing and that her symptoms became worse as the date approached,
leading to her refusal to take her medications. On recross-examination, the Defendant
testified that defense counsel told her one month before the March 7 hearing that the
purpose of the hearing was to enter her guilty pleas.

       Defense counsel testified that he was appointed to the Defendant‟s case in criminal
court. He said that there was “voluminous” discovery. Counsel said that the plea offer
was extended “for a good bit of time” before the guilty plea hearing and that the
Defendant pleaded guilty at a status conference on March 7, one month before the trial
date. Counsel stated that he discussed the discovery materials with the Defendant,
communicated the plea offer to her, and told her that the offer remained open.

       Defense counsel testified that at a meeting in late 2012 or early 2013, the
Defendant told counsel, “I‟m taking my medication now. And I took that to indicate that
sometime prior that she hadn‟t been.” Counsel denied the Defendant told him that she
had stopped taking her medications at the time of the guilty plea hearing. He said that
had the Defendant said she was not taking her medications, he would not have gone
forward with the plea hearing. Counsel said,

       [It] was clear to me all along that she suffered from a mental illness. . . .
       But there wasn‟t anything in particular about her that day that was
       exhibiting anything different than previously. I mean, she was scared, and
       it was a pressure situation. . . . But as far as mental illness, no, I didn‟t have
       any indication that she wasn‟t capable of understanding.

       Defense counsel testified that although the prosecutor initially told counsel the
plea offer would be revoked after March 7, the prosecutor agreed to extend the expiration
date by one week. Counsel said he was first notified that the Defendant wanted to
withdraw her guilty pleas when he received a copy of the letter she sent to the trial judge.
Counsel stated that the letter did not address the Defendant‟s medications and that the
Defendant never contacted him after entering her guilty pleas to tell him she had not been
taking her medications.

       Defense counsel testified that after he received the copy of the Defendant‟s letter,
he filed a motion to withdraw as counsel. He said that he had not spoken to the
Defendant since the guilty plea hearing. Counsel stated that based on his observations, he


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saw no indication that the Defendant “was not exercising a knowing, voluntary, and
intelligent waiver of her rights” when she pleaded guilty.

        On cross-examination, defense counsel clarified that he was in contact with the
Defendant in late 2013 and early 2014. He said that due to the Defendant‟s statements to
him, he knew the Defendant had a history of not taking her medications in jail. Counsel
stated that on the day of the guilty plea hearing, the Defendant was crying and “her body
language and her demeanor to me [showed] that she was scared and upset.” Counsel said
it was possible that the Defendant could have been scared because of psychiatric
symptoms and not because of the court proceedings. Counsel stated that he was familiar
with the symptoms of schizophrenia and that people suffering from schizophrenia
became “withdrawn and frightened and crying and scared because of things they hear
inside their heads.”

        The trial court denied the Defendant‟s motion, finding that the “timing of raising
this issue [was] suspicious as it appears Petitioner has „buyer‟s remorse‟ once transported
to TDOC to serve her 25-year sentence.” The court noted that the handwritten letter did
not mention the Defendant‟s mental health issues or medications. The court found that
the Defendant‟s testimony at the guilty plea hearing regarding her medications and
mental state belied her claim. The court found that at the guilty plea hearing, it had
questioned the Defendant relative to the medications she was taking, how often she took
them, whether she had taken them immediately before the hearing, and whether the
medications affected the Defendant‟s mental state. The court concluded that the
Defendant failed to show that setting aside her pleas was required in order to prevent a
manifest injustice. This appeal followed.

       The Defendant contends that the trial court erred when it denied the motion to
withdraw the guilty pleas, arguing that her testimony regarding her lack of medication
established manifest injustice. The State responds that the court correctly denied the
motion and raises for the first time on appeal that the letter was not filed with the court
clerk as required by Tennessee Rule of Criminal Procedure 49(a) and that defense
counsel‟s untimely June 2 motion was the only properly filed motion. The Defendant
argues in turn that her March 29 letter to the trial judge should have been considered a
motion to withdraw her guilty pleas and therefore the motion was timely.

       Tennessee Rule of Criminal Procedure 32(f) states that a trial court may set aside a
guilty plea “[a]fter sentence is imposed but before the judgment becomes final” in order
to correct a “manifest injustice.” Generally, a judgment becomes final thirty days after
the entry of a guilty plea and imposition of a sentence. T.R.A.P. 4(a) and (c). A “trial
court is without jurisdiction to hear and decide a motion to withdraw a guilty plea after
the judgment is final.” State v. Green, 106 S.W.3d 646, 649 (Tenn. 2003) (citing State v.

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Peele, 58 S.W.3d 701, 704 (Tenn. 2001); State v. Pendergrass, 937 S.W.2d 834, 837
(Tenn. 1996).

       When questioned about the timeliness of the motion at the motion to withdraw the
guilty plea hearing, the prosecutor told the trial court that the Defendant “made an
attempt to do that on her own” and referenced the March 29 letter. The court accepted
the March 31 postmark as the date of filing and considered the motion on its merits
without objection by the prosecutor.

        Tennessee Rule of Criminal Procedure 32(f) states that the trial court may permit
the withdrawal of a guilty plea “to correct manifest injustice” after the sentence is
imposed but before the judgment becomes final. Our supreme court has found manifest
injustice when

       (1) the plea “was entered through a misunderstanding as to its effect, or
      through fear and fraud, or where it was not made voluntarily”; (2) the
      prosecution failed to disclose exculpatory evidence as required by Brady v.
      Maryland . . . and this failure to disclose influenced the entry of the plea;
      (3) the plea was not knowingly, voluntarily, and understandingly entered;
      and (4) the defendant was denied the effective assistance of counsel in
      connection with the entry of the plea.

State v. Crowe, 168 S.W.3d 731, 742 (Tenn. 2005) (citations omitted). We review a trial
court‟s finding regarding manifest injustice for an abuse of discretion. Id. at 740 (citing
Henning v. State, 201 S.W.2d 669, 271 (Tenn. 1947).

       The record reflects that at the guilty plea hearing, the trial court questioned the
Defendant regarding her understanding of the charges against her, her available defenses,
the possible sentences, and the effect of the guilty plea on her permanent record. The
court also questioned the Defendant relative to her medications, how often she took them,
and any possible effect they might have on her understanding of the proceedings. The
Defendant testified she had been taking her medications, acknowledged her
understanding of her plea, and said she wanted to waive her rights and plead guilty.

       The Defendant‟s letter contained complaints about defense counsel‟s explanation
of her rights but did not mention her medications. Counsel testified that the Defendant
did not contact him after her plea and that the first notice he received of any problem was
when he received the forwarded letter from the trial court. The trial court credited
counsel‟s testimony that the Defendant did not tell him prior to the guilty plea hearing
she had not been taking her medications. The court did not abuse its discretion in finding


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that the Defendant entered a voluntary, intelligent, and knowing plea, and therefore, that
no manifest injustice existed.

      In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.

                                         ____________________________________
                                         ROBERT H. MONTGOMERY, JR., JUDGE




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