                                                                                         09/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              December 12, 2017 Session

             WILLIAM M. PHILLIPS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Giles County
                   Nos. CR-12825, 16041    Robert L. Jones, Judge
                      ___________________________________

                           No. M2017-00118-CCA-R3-PC
                       ___________________________________

The Petitioner, William M. Phillips, pled guilty in the Giles County Circuit Court to
possession of one-half gram or more of cocaine with intent to sell and was sentenced as a
Range II, multiple offender to twenty years in confinement. Subsequently, the Petitioner
filed a pro se motion to withdraw his guilty plea, which the trial court denied, and a
petition for post-conviction relief, which the post-conviction court denied. On appeal, the
Petitioner contends that he is entitled to post-conviction relief because he was prejudiced
by “a derogatory, racially based remark” made by the trial court during a hearing and
because he was prejudiced by the trial court’s denial of his pro se motion to withdraw his
guilty plea without the appointment of counsel. Based upon the oral arguments, the
record, and the parties’ briefs, the denial of the petition for post-conviction relief is
affirmed.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court. CAMILLE R. MCMULLEN,
J., filed a concurring and dissenting opinion. TIMOTHY L. EASTER, J., filed a concurring
opinion.

Douglas K. Chapman, Columbia, Tennessee, for the appellant, William M. Phillips.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Beverly White,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background
       In December 2012, the Giles County Grand Jury indicted the Petitioner in counts
one, two, four, and five for selling one-half gram or more of cocaine, a Class B felony; in
count three for selling less than one-half gram of cocaine, a Class C felony; in count six
for possessing one-half gram or more of cocaine with intent to sell, a Class B felony; in
count seven for possessing drug paraphernalia, a Class A misdemeanor; and in count
eight for possessing a firearm during the commission of a dangerous felony, a Class D
felony. On August 20, 2013, the State filed a notice to seek enhanced punishment as a
Range III, career offender. On March 17, 2014, the State nolle prossed counts one, two,
and four, and the trial court set a July 16, 2014 trial date for the remaining counts.

        Initially, the trial court appointed counsel from the public defender’s office to
represent the Petitioner. However, a conflict resulted in that office’s withdrawal. The
court then appointed trial counsel (hereinafter “original trial counsel”), who filed multiple
motions on the Petitioner’s behalf before eventually filing a motion to withdraw from
representation. At the April 14, 2014 hearing on the motion, original trial counsel
advised the trial court that he filed the motion to withdraw “[p]rimarily because my client
is requesting my doing so” and “[s]econdarily, there is some issues that arose between
my client and I and he believes that I’m not doing my job well enough for him[.]”
Original trial counsel also advised the court that the Petitioner had “gone so far as to
provide copies of his grievances or his complaint to the Board of Professional
Responsibility.” The trial court responded, “Well, he’s awfully picky to be getting an
appointed lawyer and then complaining about it.” Upon being questioned by the trial
court, the Petitioner said he was serving a twenty-six-year sentence in a previous case and
had been in confinement almost two years. The Petitioner stated that his main complaints
about original trial counsel were that counsel did not visit him enough and that he wanted
to give “input[]” on motions filed by counsel. He said that he had not yet filed a
complaint with the Board of Professional Responsibility but that he was “planning on
doing it.” The trial court relieved original trial counsel from the case.

       After a recess, the trial court commented on appointing the Petitioner new counsel
by saying, “I think it needs to be someone that has at least tried a B Felony case before,
that would include [subsequent trial counsel].” The trial court continued, “Well, let’s try
[subsequent trial counsel] and see if he’s willing to take the case. No one is going to
want it after [the Petitioner] has already stirred up a fight with his other lawyer.” After
subsequent trial counsel entered the courtroom, the trial court informed him about the
case and said, “[The Petitioner’s] got crossways with [original trial counsel] and I realize
he’s going to get crossways with his next lawyer too, those kind of people do routinely.”
Almost immediately, the trial court stated as follows:

              Let me, since I used the “these people,” I better clarify that
              for the record. It is my experience that when we see a
              defendant who blames everybody but himself, he’s probably
              going to blame all of these lawyers, not just the first one. But

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              maybe [the Petitioner] is an exception and I shouldn’t
              stereotype him with all those other cases like that I’ve had
              before.

Subsequent trial counsel agreed to represent the Petitioner.

       On October 1, 2014, the day the Petitioner was supposed to go to trial, the
Petitioner agreed to plead guilty to count five, selling one-half gram or more of cocaine, a
Class B felony. As part of the plea agreement, the Petitioner was to serve a twenty-year
sentence as a Range II, multiple offender and was to serve the sentence consecutively to
his previous twenty-six-year sentence. In exchange for his guilty plea, the State
dismissed the remaining counts.

        Less than one month later, on October 30, the Petitioner filed a pro se motion to
withdraw his guilty plea. In the motion, the Petitioner claimed that subsequent trial
counsel coerced him into pleading guilty. He requested that he be allowed to withdraw
his plea and that the trial court appoint new counsel to assist him with preparing for a trial
on all the charges.

       The trial court held a hearing on the motion to withdraw the guilty plea on
November 13, 2014. At the hearing, the Petitioner and subsequent trial counsel testified.
Although not included in the appellate record, the trial court referred to a motion to
withdraw from representation filed by subsequent trial counsel on November 10, 2014.
However, the trial court did not file an order granting subsequent trial counsel’s motion
to withdraw before the hearing. Additionally, the trial court did not follow Tennessee
Rule of Criminal Procedure 44(b) for allowing the Petitioner to proceed pro se at the
hearing.

       During the hearing, subsequent trial counsel testified adversely to the Petitioner’s
claim that he should be allowed to withdraw his plea because subsequent trial counsel
coerced him into pleading guilty. Near the conclusion of the hearing, the trial court said
to the Petitioner, “I felt maybe that I should have appointed you a lawyer for today’s
hearing. But you know, we’ve gone about as far as we can in making sure you had the
best representation possible.” The trial court denied the Petitioner’s motion to withdraw
the plea, and the Petitioner did not appeal the denial to this court.

        On August 3, 2015, the Petitioner filed a pro se petition for post-conviction relief,
claiming, in pertinent part, that he was entitled to relief because the trial court failed to
appoint counsel to represent him for his motion to withdraw his guilty plea; never
notified him that he was “going to court” on the motion on November 13, 2014, and
could present witnesses to testify on his behalf; and allowed subsequent trial counsel to
testify against him at the hearing. The Petitioner also claimed that he received the
ineffective assistance of counsel because subsequent trial counsel coerced him into

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pleading guilty by using the Petitioner’s mother as “bait to lure [the Petitioner] to the
guilty-plea table.” Finally, the Petitioner claimed that he was entitled to post-conviction
relief because the trial court made an “inappropriate comment” to him at the April 14,
2014 hearing on original trial counsel’s motion to withdraw. On September 11, 2015, the
post-conviction court found that the petition stated a colorable claim and appointed
counsel to represent the Petitioner. Post-conviction counsel did not file an amended
petition for post-conviction relief.

        At the November 23, 2016 evidentiary hearing, the Petitioner called subsequent
trial counsel as his first witness. Subsequent trial counsel testified that on the morning of
the scheduled trial, the parties had to wait about two hours for a court reporter, so counsel
and the State began “renegotiating.” The Petitioner agreed to plead guilty to selling
cocaine, and the trial court held a guilty plea hearing. Counsel said that he “did not take
part” in preparing the motion to withdraw the guilty plea and that “[i]t was filed by [the
Petitioner].” Post-conviction counsel asked if subsequent trial counsel represented the
Petitioner at the hearing on the motion to withdraw the plea, and subsequent trial counsel
answered, “Well, it’s kind of gray. . . . But I guess technically I was still -- could still be
considered his -- his attorney but from a practical standpoint, and the merits of the case,
I’d say that -- that my representation had terminated at that time.” He acknowledged that
he ended up testifying as a witness at the hearing on the motion to withdraw the plea and
that he would have been unable to act as both a witness and the Petitioner’s counsel. No
other attorney represented the Petitioner at the hearing, and “[the Petitioner] voiced his
concerns himself.”

        With regard to the Petitioner’s mental health, subsequent trial counsel testified that
a notation was placed in the “special conditions” box on the judgment form, stating that
the trial court recommended that the Petitioner “be evaluated or subjected to, or admitted
to the DeBerry Special Needs Facility in the Department of Corrections.” Subsequent
trial counsel thought the Petitioner’s mother and sister requested the evaluation. He said
that the Petitioner was “argumentative” and would not listen to counsel but that he never
questioned the Petitioner’s sanity. Counsel stated that the Petitioner had the ability to
understand what was going on with the plea and that the Petitioner “knew and understood
what was happening that day because it was the term of years and the percentage that he
requested and when he got it, he accepted it.”

       Mary Ann White, the Petitioner’s mother, testified that she and two of her
daughters were present for the Petitioner’s trial on October 1, 2014, and that she spoke
with subsequent trial counsel. Counsel told her that he wanted the Petitioner to plead
guilty because the Petitioner would “probably spend the rest of his life in prison” if the
Petitioner went to trial. Counsel also told her the Petitioner was “out of control and
acting crazy.” The Petitioner, Ms. White, or Ms. White’s daughter told counsel that Ms.
White had been sick and had a heart problem, and counsel told Ms. White that he was
going to let the Petitioner talk with her. Ms. White and her daughters waited in the

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hallway outside the courtroom for “a long time,” but counsel never brought the Petitioner
out to speak with them. Counsel later told her that “they had settled the case.” Ms.
White said the Petitioner had “mental problems.” After the Petitioner pled guilty, Ms.
White talked with the trial court and asked that the court get the Petitioner some help for
those problems before sending him back to prison. Later that day or the next day, Ms.
White spoke with the Petitioner on the telephone, and he told her, “‘I did what you
wanted me to do. . . . I took the plea.’” Ms. White told the Petitioner, “‘I didn’t tell you
to take that plea bargain.’” The Petitioner responded, “‘Well, that ain’t what he said.’”
The Petitioner was upset and said that “they just lied to me.” Ms. White said she did not
tell subsequent trial counsel to convince the Petitioner to plead guilty.

       Trudy Wood, the Petitioner’s sister, testified that she was at the courthouse with
her mother on October 1, 2014, and that subsequent trial counsel “came out to talk with
us about the charges he had, and the agreements that they had been offered.” Counsel
also told them “something about videos.” Ms. Wood and her mother told counsel that
“whatever it was that [the Petitioner] chose to do, that would be fine with us, that we just
wanted him to do what it was that he thought was best for him.” They never told the
Petitioner that he needed to plead guilty due to his mother’s health. Ms. Wood said the
Petitioner suffered from depression and mental illness.

       In a written order, the post-conviction court denied the petition for post-conviction
relief. In addressing whether the Petitioner was denied his right to counsel at the
November 13, 2014 hearing on the motion to withdraw his guilty plea, the post-
conviction court stated,

                      The transcript of that November 13 hearing (Exhibit
              12) shows that the Court discussed much of the case history
              with [the Petitioner] and asked him a number of questions
              including his reasons for wanting to withdraw his plea. [The
              Petitioner] explained in that hearing that [subsequent trial
              counsel] talked to his mother and sisters on October 1 before
              the guilty plea and told them things that caused them to
              communicate through [subsequent trial counsel] to [the
              Petitioner] that they supported him taking the plea agreement
              that had been reached.          The Court also heard from
              [subsequent trial counsel] about those communications with
              family members and, at the end of the hearing, denied the
              request of [the Petitioner] to withdraw his plea. Those same
              issues are now alleged in the post-conviction proceeding as
              evidence of [subsequent trial counsel’s] ineffective assistance
              of [the Petitioner] before the plea was entered.



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                    In the event this Court should have appointed counsel
              and allowed [the Petitioner] to secure the attendance of
              witnesses for his motion to withdraw his plea, the Court is
              now giving him full consideration of that issue after hearing
              from his mother and one of his sisters at the November 23,
              2016, hearing. . . . Therefore, any prejudice to the Petitioner
              for not having a lawyer on November 13, 2014, is being
              removed by fully considering those issues in this current
              proceeding.

        The post-conviction court accredited subsequent trial counsel’s testimony at the
post-conviction evidentiary hearing that it was the Petitioner who wanted to reopen plea
negotiations with the State and that it was the Petitioner who suggested a guilty plea to
selling cocaine. The court stated that the transcript of the guilty plea hearing showed that
the Petitioner “understood that he was facing a possible sentence of more than 30 years at
60%,” that he knew the consequences of his plea, and that he was satisfied with
subsequent trial counsel’s representation. Thus, the court concluded that “there is no
merit to his effort to withdraw his plea or to blame his trial counsel for his decision to
settle” and that subsequent trial counsel did not coerce him into pleading guilty.

        In addressing the Petitioner’s claim that the trial court made a derogatory, racially-
based remark during the April 14, 2014 hearing on original trial counsel’s motion to
withdraw, the post-conviction court stated that it “strongly believed” the Petitioner’s race
was not involved in the comment but that the comment was an “expression[] of
frustration” with the Petitioner’s inability to work with original trial counsel. Thus, the
court concluded that the Petitioner was not entitled to post-conviction relief on that issue.

                                        II. Analysis

        On appeal, the Petitioner argues that he was prejudiced by the trial court’s racially
prejudicial remark and that he was prejudiced by the trial court’s denial of his motion to
withdraw his guilty plea without appointing counsel or evaluating whether he had the
mental capacity to proceed pro se. To be successful in a claim for post-conviction relief,
a petitioner must prove the factual allegations contained in the post-conviction petition by
clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and
convincing evidence means evidence in which there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” State v. Holder, 15
S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues regarding the credibility of witnesses, the
weight and value to be accorded their testimony, and the factual questions raised by the
evidence adduced at trial are to be resolved by the post-conviction court as the trier of
fact. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-
conviction court’s findings of fact are entitled to substantial deference on appeal unless

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the evidence preponderates against those findings. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, the post-conviction court’s conclusions of law and
application of the law to the facts are reviewed under a purely de novo standard, with no
presumption of correctness. Id. at 458.

                      A. Trial Court’s Remark and Failure to Recuse

       First, the Petitioner, who is African-American, contends that the trial court’s
comment about “those kind of people” was “a derogatory, racially based remark.” He
further contends that the comment demonstrates that the trial court was prejudiced against
him and that the trial court should have recused itself from his case. The State argues that
the issue has been waived. We agree with the State.

       “A motion for recusal should be filed when the facts forming the basis of that
motion become known.” Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009) (citing
Davis v. Tenn. Dep’t of Employment Sec., 23 S.W.3d 304, 313 (Tenn. Ct. App. 1999)).
Furthermore, the Tennessee Supreme Court Rules require that any party seeking
disqualification or recusal of a judge do so by filing a timely motion. Tenn. Sup. Ct. R.
10B § 1.01. Supreme Court Rule 10B is proactive in that it halts further proceedings in
front of the judge whose recusal or disqualification is sought and provides exclusive
options for an accelerated interlocutory appeal or a direct appeal after judgment is
rendered if that motion for recusal or disqualification is denied. Tenn. Sup. Ct. R. 10B §§
1.02, 2.01. A defendant’s failure to file a motion to recuse in a timely manner may result
in a waiver of his or her complaint about the judge’s impartiality. Bean, 280 S.W.3d at
803. In terms of a petition for post-conviction relief, “[a] ground for relief is waived if
the petitioner personally or through an attorney failed to present it for determination in
any proceeding before a court of competent jurisdiction in which the ground could have
been presented[.]” Tenn. Code Ann. § 40-30-106(g).

       The Petitioner never filed a motion seeking disqualification or recusal of the trial
court and did not raise the issue until he filed his petition for post-conviction relief. Even
then, he claimed only that the trial court had made an inappropriate comment and did not
argue that the trial court should have recused itself. The Petitioner could have filed a
motion for recusal or disqualification after the trial court made the statement and before
the entry of the Petitioner’s guilty plea or the denial of his motion to withdraw his guilty
plea. He failed to do so. Therefore, any claims regarding judicial bias and recusal are
waived.

                                    B. Right to Counsel

       Next, the Petitioner contends that he was prejudiced by the trial court’s failure to
appoint counsel to represent him on the motion to withdraw his guilty plea or obtain a
valid waiver of his right to counsel before allowing him to proceed pro se at the hearing.

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The State argues that the Petitioner was not entitled to counsel because a motion to
withdraw a plea is not a “critical stage” of the proceedings. The State also argues that, in
any event, the issue of whether the Petitioner was coerced into pleading guilty was
addressed at the post-conviction evidentiary hearing; therefore, the evidentiary hearing
provided the Petitioner with an opportunity to have the issue addressed while represented
by counsel. We conclude that the Petitioner is not entitled to relief.

       The Petitioner filed his motion to withdraw his guilty plea on the basis that
subsequent trial counsel coerced him into pleading guilty. He maintained in his post-
conviction petition and at the post-conviction evidentiary hearing that subsequent trial
counsel coerced him into pleading guilty. When a petitioner seeks post-conviction relief
on the basis of ineffective assistance of counsel, “the petitioner bears the burden of
proving both that counsel’s performance was deficient and that the deficiency prejudiced
the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To establish deficient performance, the
petitioner must show that counsel’s performance was below “the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). To establish prejudice, the petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,

              [b]ecause a petitioner must establish both prongs of the test, a
              failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance
              claim. Indeed, a court need not address the components in
              any particular order or even address both if the [petitioner]
              makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context
of a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for
counsel’s errors, he would not have pleaded guilty but would have insisted upon going to
trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v.
Lockhart, 474 U.S. 52, 59 (1985).

        When a defendant enters a plea of guilty, certain constitutional rights are waived,
including the privilege against self-incrimination, the right to confront witnesses, and the
right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in
order to comply with constitutional requirements a guilty plea must be 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). In order to ensure that a defendant
understands the constitutional rights being relinquished, the trial court must advise the


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defendant of the consequences of a guilty plea, and determine whether the defendant
understands those consequences. Boykin, 395 U.S. at 244.

       In determining whether the petitioner’s guilty pleas were knowing and voluntary,
this court looks to the following factors:

             the relative intelligence of the defendant; the degree of his
             familiarity with criminal proceedings; whether he was
             represented by competent counsel and had the opportunity to
             confer with counsel about the options available to him; the
             extent of advice from counsel and the court concerning the
             charges against him; and the reasons for his decision to plead
             guilty, including a desire to avoid a greater penalty that might
             result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

        Turning to the instant case, the Petitioner contends that he was prejudiced by the
trial court’s failure to appoint counsel for his motion to withdraw his guilty plea or to
evaluate his mentality at the hearing on the motion before allowing him to proceed pro se.
However, the post-conviction court afforded the Petitioner a full and fair hearing on
whether he entered his guilty plea knowingly and voluntarily. He was represented by
counsel at the hearing, called witnesses to testify on his behalf, and cross-examined the
State’s witness. The post-conviction court found that the Petitioner’s guilty pleas were
knowing and voluntary and that subsequent trial counsel did not coerce him into pleading
guilty. In other words, the Petitioner failed to show that the trial court would have
granted his motion to withdraw his guilty plea. Accordingly, he has failed to demonstrate
prejudice, and the post-conviction court properly denied his petition for post-conviction
relief.


                                    III. Conclusion

       Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
post-conviction court’s denial of the petition for post-conviction relief.



                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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