                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                                      April 5, 2005 Session

          THOMAS POSTON STUDDARD v. STATE OF TENNESSEE

                  Appeal by Permission from the Court of Criminal Appeals
                               Circuit Court for Dyer County
                            No. C02-61 R. Lee Moore, Jr., Judge


                   No. W2003-01210-SC-R11-PC - Filed November 30, 2005



We granted permission to appeal in this case pursuant to Rule 11 of the Tennessee Rules of
Appellate Procedure to determine whether the Court of Criminal Appeals erred in vacating the
defendant’s conviction. The defendant, Thomas Poston Studdard, was indicted for three counts of
rape of a child. To this original indictment he entered a negotiated plea of guilty to the charge of
incest and was sentenced to a term of eight years as a Range II multiple offender. Pursuant to Rule
35(b) of the Tennessee Rules of Criminal Procedure, he filed a motion seeking correction or
reduction of his sentence. Following a hearing, the trial court overruled the motion, and he appealed.
Without addressing the defendant’s stated concern, the Court of Criminal Appeals, ostensibly using
the plain error doctrine, vacated the judgment of conviction on the grounds that incest is not a lesser
included offense of child rape and because the record failed to reflect that the indictment had been
amended. The intermediate court reinstated the original indictment and remanded the case. Because
we conclude that the trial court had jurisdiction to accept the plea and because the criteria for plain
error have not been met, we reverse the judgment of the Court of Criminal Appeals, reinstate the
conviction for incest, and remand the case to the Court of Criminal Appeals for consideration of the
defendant’s sentencing issues.

  Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
                    Reversed; Remanded to Court of Criminal Appeals

ADOLPHO A. BIRCH , JR., J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J.,
and FRANK F. DROWOTA , III, E. RILEY ANDERSON , and JANICE M. HOLDER , JJ., joined.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael
E. Markham, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the
appellant, State of Tennessee.

Jim W. Horner, District Public Defender; H. Tod Taylor, Assistant District Public Defender; and
Patrick R. McGill, Assistant District Public Defender, for the appellee, Thomas Poston Studdard.
                                                    OPINION

                                     I. Facts and Procedural History

        A Dyer County Grand Jury indicted the defendant on three counts of rape of a child, a Class
A felony. Tenn. Code Ann. § 39-13-522(b) (2003). Pursuant to a plea agreement, he pleaded guilty
to one count of incest, a Class C felony. Id. § 39-15-302(b) (2003). The defendant executed a “Plea
of Guilty and Waivers of Jury Trial and Appeal” form which stated that he was pleading guilty to
the charge of incest. Although the indictment was not amended to include the incest charge, incest
was listed on the judgment as the “Conviction offense.” The trial court sentenced the defendant to
an eight-year term in the Tennessee Department of Correction as a Range II multiple offender.

        Within the time allowed, the defendant sought to correct or reduce his sentence pursuant to
Tennessee Rule of Criminal Procedure 35(b) (2004).1 The defendant claims that only after he signed
the plea agreement did he learn that pursuant to Tennessee Code Annotated section 40-35-503(c)
(2003),2 he would be required to complete a sexual offender treatment program and be
psychologically certified before he would be eligible for parole. The trial court conducted a hearing
and entered an order overruling the motion. Thereafter, the defendant appealed as of right to the
Court of Criminal Appeals, contesting his sentence and not his conviction.

        Without reaching the merits, the Court of Criminal Appeals vacated the defendant’s
conviction because he had pleaded guilty to an offense with which he had not been charged and
because the record does not reflect that the indictment charging rape of a child had been amended
to include incest, the offense to which the defendant had pleaded guilty. The Court of Criminal
Appeals ordered that the indictment charging the defendant with rape of a child be reinstated. We
granted the State’s application for permission to appeal pursuant to Rule 11 of the Tennessee Rules
of Appellate Procedure to consider whether the Court of Criminal Appeals erred in vacating the

       1
        Tennessee Rules of Criminal Procedure 35(b) (2004) provides:
       The trial court may reduce a sentence upon application filed within 120 days after the date the sentence
       is imposed or probation is revoked. No extensions shall be allowed on the time limitation. No other
       actions shall toll the running of this time limitation. A motion for reduction of sentence under this rule
       may be denied by the trial judge without a hearing. If the application is denied, the defendant may
       appeal but the defendant shall not be entitled to release on bond unless the defendant is already under
       bond. If the sentence is modified, the state may appeal as otherwise provided by law. A modification
       can only be as to any sentence the court could have originally imposed.

       2
        Tennessee Code Annotated section 40-35-503(c) (2003) provides:
       No person convicted of a sex crime shall be released on parole unless a psychiatrist or licensed
       psychologist designated as a health service provider has examined and evaluated such inmate and
       certified that, to a reasonable medical certainty, the inmate does not pose the likelihood of committing
       sexual assaults upon release from confinement. The examination and evaluation shall be provided by
       psychiatrists or licensed psychologists designated as health service providers whose services are
       contracted or funded by the department of correction or the board of paroles. The board shall consider
       any such other evaluation by a psychiatrist or licensed psychologist designated as a health service
       provider which may be provided by the defendant.

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defendant’s conviction.

                                      II. Standard of Review

      The issue before us is a question of law. Accordingly, our review is de novo with no
presumption of correctness accorded to the courts below. State ex rel. Pope v. U.S. Fire Ins. Co.,
145 S.W.3d 529, 533 (Tenn. 2004).

                                            III. Analysis

        In this appeal, the State contends that the Court of Criminal Appeals erred in vacating the
defendant’s conviction. Specifically, the State cites to this Court’s recent decision in Yoreck v.
State, 133 S.W.3d 606 (Tenn. 2004), in which this Court held that the trial court had subject matter
jurisdiction to accept the defendants’ guilty pleas for offenses even though these offenses were not
charged in the indictments, nor were they lesser included offenses of those charged in the
indictments. We further held that the intermediate court erred in finding that the trial court’s
acceptance of the plea was plain error. Id.

        When the Court of Criminal Appeals filed its decision in the present case, Yoreck had not
yet been released. In these circumstances, the Court of Criminal Appeals relied on the now-reversed
intermediate court decision in Yoreck in vacating the defendant’s conviction in the case under
review. See State v. Robert James Yoreck, III, No. M2001-02448-CCA-R3-CD, 2003 WL 141051
(Tenn. Crim. App. Jan. 15, 2003). We must now consider the instant case in light of our recent
decision in Yoreck, 133 S.W.3d 606.

        Yoreck comprised three cases that were consolidated on appeal. Each of the defendants
pleaded guilty to charges that were not listed on the indictments and that were not lesser included
offenses of those charged. The defendants then appealed, arguing that the trial court erred in
sentencing them. They did not raise any additional issues. The Court of Criminal Appeals, sua
sponte, held that the defendants’ guilty pleas must be set aside because they had pleaded guilty to
offenses that were not stated in the indictment and that were not lesser included offenses of the
indicted offenses. The intermediate court was not clear as to the basis for vacating the
rulings–whether based on lack of subject matter jurisdiction or because the case met all of the plain
error requirements. On appeal, this Court reversed, holding that no jurisdictional defects were
present and that the plain error criteria had not been satisfied. Yoreck, 133 S.W.3d at 614.

        In the instant case, the facts are strikingly similar to those in Yoreck. The defendant entered
a plea to incest, a charge that was neither stated in the indictment, nor a lesser included offense of
the indicted charge. The defendant then sought review of his sentence pursuant to Rule 35(b) of the
Tennessee Rules of Criminal Procedure. The intermediate court, sua sponte, vacated the defendant’s
conviction based on the Court of Criminal Appeals’ decision in Yoreck. The intermediate court did
not explain why the trial court’s decision constituted plain error, nor did it discuss whether the trial
court had subject matter jurisdiction.


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        The State now appeals, contending that based on this Court’s decision in Yoreck, the Court
of Criminal Appeals erred in vacating the convictions. We agree. We held in Yoreck that “in
addition to the issues raised by the parties, the appellate court must address jurisdiction and may
address plain error.” 133 S.W.3d at 611. Therefore, we must determine whether the trial court had
subject matter jurisdiction to accept the guilty plea and whether the Court of Criminal Appeals
properly applied the plain error doctrine.

                                           A. Jurisdiction

        “[A] defendant who enters a plea of guilty waives all nonjurisdictional defects and
constitutional infirmities.” Yoreck v. State, 133 S.W.3d at 612 (citing State v. McKinney, 74
S.W.3d 291, 306 (Tenn. 2002); State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999)). Thus, “an
appellate court shall consider whether the trial court had jurisdiction over the subject matter, whether
or not presented for review.” Yoreck, 133 S.W.3d at 612. Because the defendant in this case was
charged with a proper indictment for rape of a child, the trial court was vested with jurisdiction. See
id.

        Nevertheless, although a trial court may be initially vested with jurisdiction, a defendant
“may be convicted only of an offense enumerated in the indictment, or an offense that qualifies as
a lesser-included offense thereof.” State v. Moore, 77 S.W.3d 132, 134 (Tenn. 2002). Here, the
defendant was properly charged with rape of a child, but he ultimately pleaded guilty to incest.
Incest is not a lesser included offense of rape of a child. See State v. Beauregard, 32 S.W.3d 681,
683 (Tenn. 2000) (holding that a defendant can be convicted of both rape and incest based upon a
single act because they are different offenses). Thus, we must determine if the indictment was
amended to include the charge of incest.

        In Yoreck, this Court stated that an indictment may be amended with the consent of the
defendant. 133 S.W.3d at 612; Tenn. R. Crim. P. 7(b) (2003). Specifically, we found that the
defendants had signed plea agreements indicating the charge to which they were pleading and that
the judgments had listed the amended charges. Thus, we held that the indictment had been amended
with the consent of the defendants, and the defendants were on notice of the offenses to which they
pleaded guilty.

         In the present case, the defendant signed a “Plea of Guilty and Waivers of Jury Trial and
Appeal” form which listed the conviction to which he was pleading as incest. The only significant
difference from Yoreck is that the judgment in this case did not state the “Amended Charge.”
Instead, on the judgment, the “Offense” was listed as “Rape of Child” and underneath that section,
the “Conviction offense” was listed as “Incest.” Nevertheless, we conclude that in the context of a
guilty plea proceeding, the listing of the conviction for incest on the form which the defendant signed
is sufficient to put the defendant on notice of the charge with which he was convicted.

       Based on Yoreck, we conclude the defendant was initially charged with a proper indictment,
so the trial court was vested with jurisdiction. See Yoreck, 133 S.W.3d at 612. Although a


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transcript of the guilty plea proceeding is not included in the record, the defendant signed a “Plea of
Guilty and Waivers of Jury Trial and Appeal” form which listed the conviction to which he was
pleading as incest. Additionally, the judgment listed the original “Offense” as “Rape of Child” and
the “Conviction offense” as “Incest.” Based on the foregoing, we conclude, as we did in Yoreck,
that the conviction was, at most, voidable, and therefore, is not jurisdictionally defective.
“Consequently, if the Court of Criminal Appeals vacated the conviction[] . . . because it concluded
the trial court lacked subject matter jurisdiction, then the court erred in so doing.” Id. at 613.

                                            B. Plain Error

        We next determine whether the Court of Criminal Appeals properly vacated the defendant’s
conviction based on plain error. This Court has adopted the five-factor test announced by the Court
of Criminal Appeals in State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994), to determine
whether error constitutes “plain error” under Tennessee Rule of Appellate Procedure 36(b) and
Tennessee Rule of Criminal Procedure 52(b). State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000).
Plain error may be found when all of the following factors are present:

        (a) the record must clearly establish what occurred in the trial court;
        (b) a clear and unequivocal rule of law must have been breached;
        (c) a substantial right of the accused must have been adversely affected;
        (d) the accused did not waive the issue for tactical reasons; and
        (e) consideration of the error is ‘necessary to do substantial justice.’

Id. (quoting Adkisson, 899 S.W.2d at 641-42). All five factors must be established in order for the
Court to recognize plain error. Smith, 24 S.W.3d at 283.

       First, transcripts of the guilty plea proceedings are not included in the record. Thus, the record
does not clearly establish what occurred in the trial court, so factor (a) under the plain error test is not
met. See Adkisson, 899 S.W.2d at 641-42.

        Further, the defendant pleaded guilty to incest–an offense with a lesser penalty than the
offenses for which he was originally indicted. Pursuant to Tennessee Code Annotated section 40-35-
111 (b) (1) (2003), the defendant would have been sentenced to at least fifteen years if convicted of
rape of a child. Because the defendant was originally indicted on three counts of rape of a child, the
defendant’s sentences for this Class A felony could have been ordered to be served consecutively.
Tenn. Code Ann. § 40-35-115 (2003). Under his conviction for incest as a Range II offender,
however, the defendant was exposed to a minimum of six and a maximum of ten years incarceration.
Tenn. Code Ann. § 40-35-112 (2003). He was sentenced to eight years. The record strongly suggests
the defendant pleaded guilty to incest–a lower grade offense–for tactical reasons. Indeed, by this plea
of guilty, the defendant accepted the benefit of a lower sentence for a lower-grade offense. Factor (d)
limits plain error review to issues not waived for tactical reasons. Smith, 24 S.W.3d at 283.
Therefore, factor (d) under the plain error test–that the accused did not waive the issue for tactical
reasons–is also not met. See id. Thus, we conclude that all of the plain error criteria are not met and


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that the intermediate court’s finding of plain error is erroneous.

                                           IV. Conclusion

        Accordingly, we hold the Court of Criminal Appeals abused its discretion in finding that the
trial court’s acceptance of the guilty plea in this case was plain error. Consequently, we reinstate the
conviction imposed by the trial court and remand the case to the Court of Criminal Appeals to review
and consider the remaining sentencing issues. It appearing that the defendant is indigent, costs are
taxed to the State of Tennessee, for which execution may issue if necessary.




                                               ___________________________________
                                               ADOLPHO A. BIRCH, JR., JUSTICE




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