        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 19, 2010

                STATE OF TENNESSEE v. RICKY LEE COOK

                 Appeal from the Criminal Court for Sumner County
                      No. 612-2008    Dee David Gay, Judge




                 No. M2009-01522-CCA-R3-CD - Filed June 7, 2010


On May 11, 2009, the Defendant, Ricky Lee Cook, pleaded guilty to Class D felony evading
arrest and driving under the influence (“DUI”), third offense. Pursuant to the terms of the
plea agreement, he received a sentence of eleven-months and twenty-nine days at 75% to
serve for the DUI conviction and a sentence of three years at 30% to be probated for the
felony evading arrest conviction. These sentences were consecutive terms. Thereafter, the
Defendant filed a motion to withdraw his guilty plea. The Sumner County Criminal Court
denied the motion. The Defendant now appeals, contending that this denial was error. After
our review, we affirm the judgment of the trial court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Ricky Lee Cook, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Lawrence R. Whitley, District Attorney General; and William Lamberth, II,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                               OPINION

                                         Factual Background

       In 2008, a Sumner County grand jury returned a nine-count indictment against the
Defendant, charging him with leaving the scene of an accident, evading arrest, reckless
endangerment, DUI (with prior convictions), and driving while his license was revoked (with
prior convictions). As a result of these charges, he pleaded guilty to evading arrest, a Class
D felony, and DUI, third offense, a Class A misdemeanor.1 See Tenn. Code Ann. §§ 39-16-
603 and 55-10-401, -403(a)(1)(A)(v). The remaining charges were dismissed.

      The trial court held a guilty plea submission hearing on May 11, 2009. The facts
underlying these offenses were summarized by the State as follows:

       On June the 23rd there was a—some sort of a traffic collision that occurred.
       Initially it was thought that that was an aggravated assault. The victim in that
       one virtually recanted her testimony that [the Defendant] had struck her
       purposefully. Apparently, it was just a traffic accident. However, the police
       were called out to the scene. [The Defendant] did evade stopping from them.

              Had this case gone to trial, I think he would have maintained his
       position that he simply went a little further than he intended, and when he saw
       them back there, he did stop. The [S]tate’s position would have been
       supported by at least one of his passengers that he knew the police were behind
       him and did not stop all the way from Gallatin to Westmoreland. . . .

               When he did stop in Westmoreland, it was clear to the officers during
       their investigation and later supported by a blood test, which he did not give
       freely but which was given via a search warrant initially obtained on the
       aggravated assault charge that was later dismissed, that his blood alcohol
       content would have been about the .08 [limit] at the time that he was driving
       the vehicle. We were prepared to go to trial and have an expert lined up to
       extrapolate his blood test results back out, placing them over the legal limit.
       He does have at least two prior DUI convictions to support the DUI third.

       The trial court then questioned the forty-eight-year old Defendant about his decision
to plead guilty. The Defendant confirmed that he had gone over the agreement with counsel
and that it was his signature that appeared on the document. The trial court then outlined the

       1
           The indictment is not included in the appellate record.

                                                    -2-
Defendant’s sentence under the terms of the agreement, and the Defendant stated that the
explanation matched his understanding of the agreement. The trial court asked the Defendant
if he was taking any medication or if anyone had forced him into pleading guilty, and the
Defendant replied negatively to both questions. The trial court asked the Defendant if he
understood he had various rights, including the right to go to trial, to have the assistance of
counsel, to testify, to subpoena witnesses, to cross-examine witnesses who would testify
against him, and the privilege against self-incrimination. The Defendant responded
appropriately to questioning. Next, the Defendant was asked if he was satisfied with counsel,
and the Defendant stated, “Yes. sir. He went beyond the call.” He also agreed that he had
been given “good, sound advice.” The Defendant further relayed that there was no action
he wanted his attorney to take that he had not already done. The Defendant acknowledged
the facts presented by the assistant district attorney and entered pleas of guilty. Returning
to sentencing, the trial court inquired if the Defendant understood consecutive sentencing,
and the court was satisfied that the Defendant understood the concept.

       Pursuant to the terms of the agreement, the trial court sentenced the Defendant to
consecutive terms of eleven-months and twenty-nine days at 75% for the DUI offense and
three years as a Range I, standard offender for felony evading arrest offense. The three-year
sentence was to be suspended, and the Defendant placed on probation. Additionally, the
Defendant was given jail credit on the sentence from his date of arrest, had his driver’s
license suspended for five years, and was ordered to undergo a mandatory alcohol and drug
assessment and to attend a victim impact panel. Judgments of conviction were filed on May
15, 2009.

       On June 8, 2009, the Defendant, pro se, filed a one-page motion to withdraw his guilty
plea pursuant to Rule 32(f) of the Tennessee Rules of Criminal Procedure. In the motion,
he complained that he asked his attorney to file a motion to withdraw the plea, but that his
attorney had not done so. He further asserted that, “for the violation of probation, you have
no right to hold me with no bond . . . .” After reviewing the “court file,” the trial court
denied the motion by written order dated June 10, 2009, concluding that “the Defendant
entered a knowing and voluntary plea . . . .” This appeal followed.

                                          Analysis
       On appeal, the Defendant argues that it was error for the trial court to deny his motion
to withdraw his guilty plea. Once a defendant enters a guilty plea, it “cannot later be
withdrawn as a matter of right.” State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (citing
State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995)); State v. Crowe, 168 S.W.3d
731, 740 (Tenn. 2005). Whether a defendant should be allowed to withdraw his guilty plea
is within the sound discretion of the trial court. Mellon, 118 S.W.3d at 345-46 (citing
Henning v. State, 201 S.W.2d 669, 671 (Tenn. 1947)). On appeal, “[t]he trial court’s

                                              -3-
decision ‘will not be reversed unless it clearly appears that there was an abuse of discretion.’”
Crowe, 168 S.W.3d at 740 (quoting Henning, 201 S.W.2d at 671). “An abuse of discretion
exists if the record lacks substantial evidence to support the trial court’s conclusion.” Id.
(citing Goosby v. State, 917 S.W.2d 700, 705 (Tenn. Crim. App. 1995)).

      Rule 32(f) of the Tennessee Rules of Criminal Procedure provides the standards
governing the withdrawal of a guilty plea. Turner, 919 S.W.2d at 354. The rule is as
follows:

             (1) Before Sentence Imposed. Before sentence is imposed, the court
       may grant a motion to withdraw a guilty plea for any fair and just reason.

              (2) After Sentence But Before Judgment Final. 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.

Tenn. R. Crim. P. 32(f). The rule dictates that one of two standards is to be applied, and
which standard governs depends on whether a defendant moves to withdraw his guilty plea
before or after sentence is imposed. Crowe, 168 S.W.3d at 740-41. As the Defendant in the
present case moved to withdraw his guilty plea after sentenced was imposed, the latter, more
strenuous standard applies. See id. Accordingly, the court should have allowed the guilty
plea to be withdrawn only to correct a “manifest injustice.” See id.; see also Tenn. R.Crim.
P. 32(f)(2). Moreover, the Defendant had the burden of establishing that he should be
allowed to withdraw his guilty plea to prevent a manifest injustice. Turner, 919 S.W.2d at
355.

      In Crowe, our supreme court provided guidance as to when courts should find a
manifest injustice and allow the withdrawal of a guilty plea after sentence has been imposed:

               Although Rule 32(f) does not define “manifest injustice,” courts have
       identified on a case by case basis circumstances that meet the manifest
       injustice standard necessary for withdrawal of a plea. See Turner, 919 S.W.2d
       at 355; State v. Evans, 454 S.E.2d 468, 473 (Ga. 1995). Withdrawal 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 (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

                                               -4-
        effective assistance of counsel in connection with the entry of the plea.
        Although manifest injustice may exist in the absence of a constitutional
        violation, we agree with the Court of Criminal appeals 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, 220 (Tenn. Crim. App. 1991) (quoting United
        States v. Crusco, 536 F.2d 21, 26 (3rd Cir. 1976)). In contrast, a defendant’s
        change of heart about pleading guilty or a defendant’s dissatisfaction with the
        punishment ultimately imposed does not constitute manifest injustice
        warranting withdrawal. Turner, 919 S.W.2d at 355.

168 S.W.3d at 741-43 (citations, footnotes, and internal quotations omitted).

        On appeal, the Defendant expounds on his claims. In the notice of appeal document,
the Defendant asserts that: (1) he “would have said or done anything to get out of jail on May
11, 2009”; (2) he was under the influence of drugs when he entered his plea; (3) his sentence
is illegal because the “court papers” do not match the “probation papers”; and (4) the
assistant district attorney withheld information from the court. In his appellate brief, he
makes general allegations of ineffective assistance of counsel, judicial and prosecutorial
misconduct, excessive bonds, violation of his right to a speedy trial, and an illegal sentence.
However, these issues were not before the trial court.

        We note that the determination of whether a plea was entered voluntarily and
knowingly is made based on the totality of the circumstances. Turner, 919 S.W.2d at 353.
It appears that the trial court did not hold a hearing on the Defendant’s motion, rather relying
on the “court file” to decide the merits of the motion. Based upon his review of the transcript
of the plea submission hearing, the trial judge held that the Defendant’s plea was knowingly
and voluntarily entered. The record supports that conclusion.2

        The transcript of the guilty plea submission hearing shows that a meaningful exchange
took place between the trial court and the Defendant. The court inquired as to whether the
Defendant understood that, by pleading guilty, he was waiving a host of valuable
constitutional rights. The Defendant responded appropriately to questioning. The trial court
specifically asked the Defendant if he was taking any medication, and the Defendant replied
in the negative. The Defendant affirmed that he had not been forced into pleading guilty; he
also relayed that trial counsel “went beyond the call” and had given him “good, sound
advice.” The trial court also outlined the terms of the plea agreement and confirmed with the
Defendant that he had reviewed the agreement with counsel before signing it. To be sure,


        2
          Although the trial court apparently heard no testimony on the Rule 32(f) issue, the Defendant does
not claim that he was denied an opportunity to be heard.

                                                    -5-
the record reflects the Defendant knew and understood the options available to him prior to
the entry of his guilty plea including the right not to plead guilty and demand a jury trial, and
he freely made an informed decision of that course which was most palatable to him at the
time.

       We emphasize that, in his pro se motion to withdraw his guilty plea, the Defendant
did not set forth any ground for withdrawing the plea. He did not allege why he desired to
withdraw his plea. In his pro se “brief” on appeal, he asserts several vague “grounds” and
asks this Court to “pick any one of these.” None of these allegations were contained in the
motion filed in the trial court. The Defendant’s vague claims, without more, provide him no
avenue of relief via a motion to withdraw his guilty plea; he has not demonstrated that a
manifest injustice occurred.

                                      Conclusion
       Based upon the foregoing authorities and reasoning, we affirm the trial court’s denial
of the Defendant’s motion to withdraw his guilty plea. The judgment of the Sumner County
Criminal Court is affirmed.


                                                     _________________________________
                                                     DAVID H. WELLES, JUDGE




                                               -6-
