         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 24, 2007

              STATE OF TENNESSEE v. JOHNNY JAMES LLOYD
                    Appeal from the Criminal Court for Campbell County
                            No. 12916 E. Shayne Sexton, Judge



                    No. E2006-02402-CCA-R3-CD - Filed August 10, 2007



In June 2006, the defendant, Johnny James Lloyd, was charged by criminal information with one
count of aggravated assault, a Class C felony. The defendant waived issuance of an indictment, pled
guilty, and was sentenced to five years in prison as a Range I, standard offender. The defendant filed
a timely motion to set aside his guilty plea. Following a hearing, the trial court denied the motion.
The defendant appeals, claiming his guilty plea was not entered into voluntarily and knowingly.
After reviewing 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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and
J.C. MCLIN , JJ., joined.

James M. Webster, Oak Ridge, Tennessee (on appeal); Martha J. Yoakum, District Public Defender;
Charles E. Herman, Assistant District Public Defender (at trial), for the appellant, Johnny James
Lloyd.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
Wm. Paul Phillips, District Attorney General; Scarlett W. Ellis and Michael O. Ripley, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

        According to affidavits filed in Campbell County General Sessions Court, on May 23, 2006,
Officer Stephanie Smith with the Caryville Police Department investigated a hit and run incident in
Caryville. Officer Smith’s affidavit stated that the defendant, driving a tan Oldsmobile, hit a three-
year-old child with his vehicle three times before fleeing the scene. Later that day, Tennessee
Highway Patrol Trooper Stacey Wood pulled over the Oldsmobile, in which the defendant, Johnny
James Lloyd, was a passenger. The defendant initially denied driving the vehicle at any point during
the day, but the driver informed Trooper Wood that the defendant had in fact driven the vehicle
earlier in the day and had hit the child “several times” before leaving the scene, after which time the
defendant and his passenger switched positions in the front seat.


        On June 2, 2006, the defendant was charged by criminal information with aggravated assault.
The defendant then agreed to enter into a plea in which he would plead guilty to aggravated assault
and receive a sentence of five years in prison as a Range I, standard offender. At his plea submission
hearing, the defendant acknowledged that he was pleading to aggravated assault, a Class C felony,
which carried a potential sentence of three to fifteen years. He stated that he understood that he was
proceeding based on a criminal information and that he was waiving his right to have a grand jury
determine whether probable cause existed to indict him on the offense. The trial court informed the
defendant that he had the right to plead not guilty and have his case tried before a jury. The court
also informed the defendant that if he proceeded to trial, he would have the right to testify, to
subpoena witnesses on his behalf, to cross-examine the state’s witnesses, and to appeal. The court
informed the defendant that he would be giving up those rights by pleading guilty, and that the
conviction in this case could be used to enhance his punishments for any future convictions. The
defendant acknowledged that he understood his rights as explained by the court.


         The defendant testified that he had an eighth-grade education and that he could read and write
“[a] little bit.” He testified that his attorney had read the plea agreement to him prior to the hearing,
and that he had the opportunity to ask his attorney questions about the plea agreement. The
defendant testified that in signing the agreement, he was indicating that he understood its contents.
He stated that he was not under the influence of alcohol, drugs, or medication that would prevent him
from understanding the proceedings. The defendant stated that he was pleading guilty of his own
free will and that nobody had forced him to enter a guilty plea.


        After the above exchange between the defendant and the trial court, the defendant stated that
he was not satisfied with his attorney’s representation. When asked the reasons for his
dissatisfaction, the defendant stated, “I[’m] just not—I’m not.” However, the defendant later stated,
“Well, I’m not dissatisfied with him, I guess.” The defendant then acknowledged that he was in fact
satisfied with counsel’s representation and that counsel had investigated the facts and researched the
law of the case. When read a statement of evidence against him, both the defendant and counsel
acknowledged that the statement accurately reflected the facts of the case.


        On June 29, 2006, the defendant, after a change in counsel, filed a motion, pursuant to Rule
32(f) of the Tennessee Rules of Criminal Procedure, to set aside his guilty plea. On September 18,
2006, a hearing on the defendant’s motion was held. At the hearing, the defendant alleged that based
on the short amount of time that had passed between the offense and the guilty plea, the defendant
could not have voluntarily and knowingly entered into the guilty plea. However, the defendant did
not present evidence to support his assertion, and the trial court denied the defendant’s motion.



                                                  -2-
                                             ANALYSIS


        A defendant may seek to withdraw a guilty plea for any fair and just reason before the trial
court imposes the sentence. Tenn. R. Crim. P. 32(f)(1). Once the trial court imposes the sentence
but before the judgment becomes final, the court “may set aside the judgment of conviction and
permit the defendant to withdraw the plea” in order to correct manifest injustice. Tenn. R. Crim. P.
32(f)(2). Our supreme court has held that


       [w]ithdrawal to correct manifest injustice is warranted where: (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.


State v. Crowe, 168 S.W.3d 731, 742 (Tenn. 2005) (internal citations omitted). This court has also
held that “[w]here there is a denial of due process, there is a manifest injustice as a matter of law.”
State v. Davis, 823 S.W.2d 217, 200 (Tenn. Crim. App. 1991). Conversely, a trial court will not,
as a general rule, permit the withdrawal of a guilty plea when the basis of the relief is predicated
upon (a) an accused’s change of heart, (b) the entry of the plea to avoid harsher punishment, or (c)
an accused’s dissatisfaction with the harsh punishment imposed by a trial court or a jury. State v.
Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). The appellate court is bound to uphold the
trial court’s determinations regarding the withdrawal of a guilty plea unless the record demonstrates
that the trial court abused its discretion. Id.; State v. Drake, 720 S.W.2d 798, 799 (Tenn. Crim.
App.1986).


        In this case, the defendant has failed to prove that the trial court abused its discretion in
denying his motion to withdraw his guilty plea. The defendant alleges that his plea was not
knowingly and voluntarily entered into and that the defendant, “by his lack of education and
understanding of the need for impartiality in the system agreed to subject himself to what amounted
to nothing more than a well orchestrated denial of his rights by the state.” However, the defendant
has failed to present evidence that he did not understand his rights or the implications of his guilty
plea. Instead, the record indicates that the defendant did not find fault with his counsel’s
representation during the plea agreement and that the trial court went through an “exhaustive
questioning and answering dialogue with [this] defendant for the purpose of establishing the fact that
the defendant [made] a knowing[,] intelligent and voluntary waiver of all the rights that he . . . might
have incumbent to trial, regardless of the time period between the charge and the date of
disposition.” Therefore, the defendant is not entitled to relief on this issue.


                                                  -3-
                                          CONCLUSION


        Upon consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                              _______________________________
                                                              D. KELLY THOMAS, JR., JUDGE




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