             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                            Assigned on Briefs September 20, 2016

                STATE OF TENNESSEE v. CHRISTOPHER CLIFTON

                      Appeal from the Criminal Court for Knox County
                           No. 105231 Bobby R. McGee, Judge
                         ___________________________________

                     No. E2015-02307-CCA-R3-CD – Filed March 3, 2017
                          ___________________________________

     Defendant, Christopher Clifton, was charged with aggravated assault with a deadly
     weapon. Subsequently, Defendant entered a guilty plea to aggravated assault as a Range
     I standard offender. The State recommended and the trial court imposed a four-year
     sentence at thirty percent with the ability to apply for probation. On appeal, Defendant
     argues that the trial court erred by denying his motion to withdraw his guilty plea based
     on his assertion that the plea was not voluntarily or knowingly entered. After a thorough
     review of the record, we affirm the judgment of the trial court.

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

     THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ALAN E. GLENN
     and ROBERT H. MONTGOMERY, JR., JJ., joined.

     Gerald L. Gulley, Jr. (on appeal) and Lance K. Baker (at motion to withdraw hearing),
     Knoxville, Tennessee, for the appellant, Christopher Clifton.

     Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
     Attorney General; Charme Allen, District Attorney General; and TaKisha Fitzgerald,
     Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

I.         Background

     Guilty Plea Submission Hearing

            The following facts were stipulated to underlying Defendant‟s guilty plea
     conviction. Despite the victim‟s request, the Defendant refused to leave the victim‟s
     residence. Eventually, Defendant left the residence but returned with a knife. He struck
the victim with his fist and cut him below the ear and under his chin with the knife. The
knife wound caused “great injury” to the victim. The victim was hospitalized due to the
attack.

       Defendant testified that although he was taking seizure medication, he was not
under the influence of any other medications or drugs that could “impair [his] ability to
understand what‟s going on around [him].” Defendant also testified that he knew his
conviction would appear on his record and enhance possible future convictions. He
acknowledged that he was only applying for probation and had no guarantee of receiving
probation. Defendant stated that he reviewed his guilty plea agreement with trial counsel,
understood the agreement, and signed the agreement. He testified that he was waiving
his right to a jury trial, his right to plead not guilty, his right to present a defense, his right
to confront witnesses, his right to remain silent, and his right to grand jury review by
pleading to the information. He also testified that he was not threatened to plead guilty,
that he was guilty, and that he was satisfied with trial counsel‟s representation.
Defendant did not have any questions for the trial court after giving his testimony.

      At the conclusion of the colloquy, the trial court accepted Defendant‟s guilty plea
and set a date for the application for probation hearing. Following the guilty plea
submission hearing, trial counsel withdrew from representation and the trial court
appointed new counsel. At the application for probation hearing, the trial court denied
the application and sentenced Defendant to four years in confinement as a Range I
offender. After the application denial, Defendant filed a motion to withdraw his guilty
plea.

Withdrawal of Guilty Plea Hearing

       In Defendant‟s motion to withdraw his guilty plea, Defendant argued that he
should be allowed to withdraw his guilty plea because he suffered from a stroke two
years prior; although he had previously pled guilty to driving under the influence and had
“numerous non-violent misdemeanor charges,” he had “never faced a felony charge of
this nature or magnitude”; and he was on Supplemental Security Income due to
“persistent seizures, memory loss, and overall disability following” surgery in 2011. He
contended that because of the aforementioned circumstances, his plea was unknowing
and involuntary.

       Trial counsel testified that he spoke with Defendant about mental health issues the
Defendant may have had prior to the guilty plea submission. Trial counsel stated that
Defendant had brain trauma, previously had suffered a stroke, suffered from depression,
had some memory issues, and was unable to “completely understand what was going on”
at times. Trial counsel acknowledged that he never had a mental health evaluation
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      conducted for Defendant. He stated that Defendant was able to understand “right from
      wrong” and the criminal justice system, which trial counsel characterized as “key
      indicators” that demonstrated that Defendant did not need a mental health evaluation.
      Trial counsel testified that even in hindsight, he did not believe that Defendant needed a
      mental health evaluation. He also testified that Defendant did not ask to be evaluated.
      He stated that he spoke with Defendant‟s mother several times about the “nature of the
      case.” Although trial counsel did not know the reason, trial counsel stated that
      Defendant‟s mother was the payee of Defendant‟s Supplemental Security Income.

             On cross-examination, trial counsel testified that he told Defendant to be
      “completely comfortable” before making a decision on whether to plead guilty, especially
      considering that Defendant was released on bond. Trial counsel stated that he discussed
      with the Defendant the waiver of rights form, which he believed Defendant understood.
      He also stated that he did not have any reason to believe Defendant did not comprehend
      what was occurring at the plea hearing.

              At the conclusion of the hearing, the trial court found that “there does not appear
      to be any real basis for believing that he was, in any way, deprived of his ability to
      understand what was going on.” The trial court also found that although Defendant
      suffered from seizures related to his stroke and depression, these conditions did not rise
      to the level of “a cognitive defect” that would have prevented him from understanding the
      proceedings. The trial court noted that Defendant had extensive experience within the
      criminal justice system, finding that Defendant had multiple charges and convictions.
      The trial court found that Defendant failed to present any proof of a mental defect or
      disorder that would have rendered his plea involuntary or unknowing. Ultimately, the
      trial court denied Defendant‟s motion to withdraw his guilty plea.

II.         Analysis

             Defendant contends that the trial court abused its discretion in denying his motion
      to withdraw his guilty plea because his plea was involuntarily made, arguing that he was
      not mentally competent to enter a plea and that the trial court failed to comply with the
      requirements of Tennessee Rule of Criminal Procedure 11 and State v. Mackey, 553
      S.W.2d 337 (Tenn. 1977). We disagree.

             The withdrawal of a plea of guilty is governed by Rule 32(f) of the Rules of
      Criminal Procedure. This rule provides that “[a]fter 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.” Tenn. R. Crim. P.
      32(f)(2). The term “manifest injustice” is not defined either in the rule or in those cases
      in which the rule has been applied. Trial courts and appellate courts must determine
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whether manifest injustice exists on a case by case basis. See State v. Crowe, 168 S.W.3d
731, 741-42 (Tenn. 2005) (recognizing absence of definition for manifest injustice and
citing examples of circumstances warranting withdrawal); State v. Turner, 919 S.W.2d
346, 355 (Tenn. Crim. App. 1995). The defendant has the burden of establishing that
a plea of guilty should be withdrawn to prevent manifest injustice. Id.

       To     determine      whether     the     defendant      should     be     permitted
to withdraw his guilty plea to correct manifest injustice, a court must scrutinize carefully
the circumstances under which the trial court accepted the plea. An analysis of the plea
submission process under Tennessee Rule of Criminal Procedure 11(b) facilitates an
inquiry into the existence of manifest injustice. See generally State v. McClintock, 732
S.W.2d 268 (Tenn. 1987) (for rules concerning acceptance of guilty pleas); Mackey, 553
S.W.2d 337, superseded on other grounds by rule as stated in State v. Wilson, 31 S.W.3d
189, 193 (Tenn. 2000). Tennessee courts have allowed the withdrawal of guilty pleas to
prevent 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, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), 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.

Crowe, 168 S.W.3d at 742 (footnotes omitted). A guilty plea, however, should not
be withdrawn merely because the defendant has had a change of heart. Id. at 743.

        The law is well established that a guilty plea may be withdrawn if it was not
knowingly, voluntarily, and understandingly made. A plea that is the product of
“ignorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats” is not voluntary. Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). “[T]he core
requirement of Boykin is „that no guilty plea be accepted without an affirmative showing
that it was intelligent and voluntary.‟” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993) (quoting Fontaine v. United States, 526 F.2d 514, 516 (6th Cir. 1975)). When
examining the voluntariness of a guilty plea, a reviewing court must consider the age of
the defendant, the defendant‟s familiarity with the criminal justice system, the reasons for
his decision to plead guilty, and whether the defendant was given ample opportunity to
confer with counsel about all options available to him. Id. at 904. Further, before a plea
may be considered knowingly and voluntarily entered, the defendant must be informed of

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the rights and circumstances involved and nevertheless choose to waive or relinquish
those rights. Mackey, 553 S.W.2d at 340.

       In this case, the record demonstrates Defendant‟s guilty plea was voluntarily
entered, and withdrawal of the plea was not necessary to correct manifest injustice.
Defendant concedes in his brief that

       no medical records or records from the Social Security Administration were
       introduced, nor was any other objective proof [] adduced, that the
       Defendant had a mental condition that would have prevented him from
       understanding that he was changing his plea from not guilty to guilty, or
       would have prevented him from knowingly or voluntarily changing his
       plea. Nor were any witnesses called by the Defendant to put on any such
       proof.

Defendant believes, however, that the trial court‟s knowledge of Defendant‟s use of
seizure medication and receipt of Supplemental Security Income should have led the trial
court to sua sponte investigate Defendant‟s mental competency. Defendant testified at
the plea colloquy that despite his seizure medication, he was fully capable of
understanding and appreciating the effect of pleading guilty. Trial counsel testified that
he found no reason to believe Defendant was not mentally competent to enter a guilty
plea. Further, the trial court, in its denial of the motion to withdraw the guilty plea, found
that Defendant failed to present evidence of mental incompetency. Accordingly, we hold
that the trial court properly denied Defendant‟s motion on the basis of competency.

       For the first time on appeal, Defendant argues that the trial court failed to comply
with the requirements of Mackey and Rule 11 because it did not inform Defendant that
his answers at the guilty plea submission hearing could be used against him in a
prosecution for perjury. Issues raised for the first time on appeal are generally waived.
State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996); see Tenn. R. App. P.
36. As such, we hold that Defendant waived review of this issue.

                                      CONCLUSION

       After a thorough review, we affirm the judgment of the trial court.

                                    ____________________________________________
                                    THOMAS T. WOODALL, PRESIDING JUDGE




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