                                                                                          06/16/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 12, 2020

               STATE OF TENNESSEE v. BRIAN KEITH CAPPS

                  Appeal from the Circuit Court for Maury County
            Nos. 26161, 26162, 26529, 26247       Russell Parkes, Judge
                     ___________________________________

                           No. M2019-00280-CCA-R3-CD
                       ___________________________________


Defendant, Brian Keith Capps, was charged in four separate indictments with two counts
of possession with intent to sell over 0.5 grams of methamphetamine within 1,000 feet of
a school; three counts of sale of over 0.5 grams of methamphetamine within 1,000 feet of
a school; two counts of possession of drug paraphernalia; one count of possession with
intent to sell Oxycodone; one count of driving on a revoked license; one count of
violation of the registration law; and one count of tampering with evidence. Defendant
pleaded guilty to one count of possession with intent to sell over 0.5 grams of
methamphetamine and two counts of sale of methamphetamine in a drug-free zone. All
of the remaining counts were dismissed. Defendant received concurrent sentences of
eight years to be served at 100 percent for each of his sale of methamphetamine
convictions. He was sentenced to eight years to be served at 30 percent for his
possession with intent to sell methamphetamine conviction, which was ordered to be
served consecutively to his other sentences, for a total effective sentence of 16 years with
8 years to be served at 100 percent. Defendant sought to withdraw his guilty pleas.
Following an evidentiary hearing, the trial court denied Defendant’s motion. Defendant
appeals. Having reviewed the record and the briefs of the parties, we affirm the judgment
of the trial court denying the motion to withdraw the guilty pleas. However, there are
clerical errors in the judgments in case number 26162. The judgments show a 30 percent
release eligibility. The plea agreement was for 100 percent service of the sentence. The
trial court must enter corrected judgments upon remand.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

John M. Schweri, Columbia, Tennessee, for the appellant, Brian Keith Capps.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Ann Thompson, Senior
Assistant Attorney General; Brent A. Cooper, District Attorney General; and Adam
Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Hearing on Defendant’s motion to withdraw guilty pleas

        Defendant acknowledged that he had been stopped and was charged with selling
drugs in a drug-free zone in August, 2017. He testified that he agreed to participate in
controlled drug buys and that “the three subsequent charges were [him] doing what they
wanted [him] to do.” Defendant testified that drug task force agents Bob Zaidan and Joey
Parks promised him “a lengthy rehab somewhere preferably out of state, and a long
probation period” in exchange for his cooperation with law enforcement. He also
testified that some “evidence disappeared and nobody said anything about any of the
work [he] did.” Defendant testified that he was a “drug addict” and that he had never
been to a rehabilitation program.

        Defendant testified that he “was under the influence of narcotics” when he signed
the plea submission form. The trial court read from the form a provision that states, “I
declare that no officer or agent of any branch of government, nor any other person, has
made any promise or suggestion of any kind to me, or to anyone else, except the
agreement to recommend the sentence as set out below.” Defendant testified that he did
not read the form. He testified that he “wasn’t pressured” to enter his guilty pleas. The
trial court asked Defendant if he remembered the court “talking to [him] at length” prior
to entering his pleas. Defendant testified that he had suffered “two strokes prior to this”
and that he had only “vague memories” of the plea submission hearing.

        Defendant testified that he was taking Hydrocodone and Xanax at the time he
entered his guilty pleas. He was prescribed the medications after he suffered injuries
resulting from a fall. Defendant testified, “[t]he manifest injustice would be that I was
promised something by law enforcement and not followed through.” The trial court
asked Defendant why he did not make the trial court aware of the deal, and Defendant
testified that he “told [his] attorney [ ] many times.” The trial court recalled that
Defendant had fallen off his porch when his jury trial was scheduled to begin. The trial
court recalled that Defendant stated that he could not “get off the couch,” and the trial
court offered to send a transport officer and a nurse to Defendant’s home, and that
Defendant then stated that he was not at home, but rather at a CVS store. Defendant
testified that he did not remember “none of that [sic]” and that he “was under the
influence of pain medication.” The trial court recalled that Defendant, his attorney, the
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prosecutor, and the court reporter met privately “back in that jury room” and that
Defendant did not mention anything about the deal that was promised to him by the drug
task force agents. Defendant testified that he “did not know [he] was even allowed to
talk.”

       At the conclusion of the hearing, the trial court concluded that Defendant had not
established that a manifest injustice would occur if Defendant was not allowed to
withdraw his pleas. The trial court specifically found that it “took great pains in going
over with [Defendant] the terms of the plea agreement.” The trial court found that
Defendant was addressed in a jury room with attorneys and a court reporter present, and
Defendant did not “enter any type of objection to proceeding with the trial.” The trial
court noted that it also “took great pains” at the guilty plea hearing, “inquiring about
specific portions of the plea agreement, why things were at 100 percent as opposed to 30
percent . . . [and] concurrent as opposed to consecutive.” The trial court found that
Defendant’s testimony about having been offered a deal by drug task force agents was
not credible. The trial court concluded that Defendant’s guilty pleas were entered
knowingly and voluntarily, and the court denied Defendant’s motion.

Analysis

       Defendant contends that the trial court abused its discretion by denying his motion
to withdraw his guilty pleas. Specifically, Defendant contends his guilty pleas were not
knowingly and voluntarily entered because he entered them: 1) while he was under the
influence of narcotics, and 2) in exchange for an unfulfilled promise by the State that
rehabilitation and probation would be a part of his sentences. The State responds that
Defendant has failed to demonstrate that a manifest injustice occurred, and the trial court
properly denied Defendant’s motion.

        Initially, we note that Defendant has failed to include a transcript of his guilty plea
hearing in the record on appeal. It is the duty of the appellant to provide a record which
conveys a fair, accurate, and complete account of what transpired with regard to the
issues which form the basis of the appeal. Tenn. R. App. P. 24(b); see State v. Taylor,
992 S.W.2d 941, 944 (Tenn. 1999). The State submits, however, that the record is
sufficient in this case for a meaningful review of the issue. In most cases, a transcript of
the guilty plea hearing is critical to a review of the voluntariness of a guilty plea, and it
should have been included in the record. However, in this case, we agree with the State
that the record before us is sufficient to review the issue. We note that in State v. Caudle,
388 S.W.3d 273, 279 (Tenn. 2012), our supreme court held that when a record does not
include a transcript of the guilty plea hearing, this court should determine on a case-by-
case basis whether the record is sufficient for a meaningful review of a sentencing
decision under the standard adopted in State v. Bise, 380 S.W.3d 682 (Tenn. 2012).
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Although this case does not involve a review of a sentencing decision, we apply the same
reasoning here.

       Tennessee Rule of Criminal Procedure 32(f)(1) provides that a trial court may
grant a motion to withdraw a guilty plea “for any fair and just reason” before the sentence
is imposed, or to correct manifest injustice after the sentence is imposed but before the
judgment becomes final. Rule 32(f) makes it clear that “a criminal defendant who has
pled guilty does not have a unilateral right to later withdraw his plea either before or after
sentencing.” State v. Phelps, 329 S.W.3d 436, 444 (Tenn. 2010) (citing State v. Crowe,
168 S.W.3d 731, 740 (Tenn. 2005); State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003)).

        In this case, Defendant moved to withdraw his guilty plea after he was sentenced,
but before the judgments became final. Therefore, to prevail on his motion, he must
show that the guilty plea must be set aside to correct a “manifest injustice.” “Manifest
injustice” is not defined in the text of Rule 32(f), but courts have identified circumstances
that meet the manifest injustice standard that is required for a withdrawal of a plea after
sentencing. State v. Virgil, 256 S.W.3d 235, 240 (Tenn. Crim. App. 2008). Manifest
injustice has occurred 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; (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 plea. Crowe, 168 S.W.3d at 742. However,
a defendant’s mere change of heart about pleading guilty or a defendant’s dissatisfaction
with the punishment that he or she ultimately receives is not manifest injustice. Id. at 743
(citing State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995)).

        It is the defendant’s burden of establishing that the plea of guilty should be
withdrawn to prevent “manifest injustice.” Turner, 919 S.W.2d at 355. The decision
whether to grant a motion to withdraw a plea of guilty rests with the sound discretion of
the trial court and will not be reversed absent an abuse of discretion. State v. Drake, 720
S.W.2d 798, 799 (Tenn. Crim. App. 1986).

       At the hearing on Defendant’s motion to withdraw his guilty pleas, the trial court
questioned Defendant repeatedly about the guilty plea hearing, as well as the plea
submission form to show that Defendant was given opportunities to inform the court of
any promises made to him by the State, and Defendant did not do so. The trial court
found that it had taken “great pains in going over with [Defendant] the terms of the plea
agreement.” The record includes the plea submission form, from which the trial court
quoted portions, and the form contains Defendant’s signature. Defendant testified at the
hearing that he was not pressured to enter his guilty pleas. Defendant offered no proof
that his medical condition or prescription medication prevented him from knowingly
                                            -4-
entering his guilty pleas. The trial court specifically found that Defendant’s testimony
regarding a promise by drug task force agents was not credible.

       We, thus, agree with the State that the limited record on appeal supports the trial
court’s finding that Defendant’s pleas were knowingly, intelligently, and voluntarily
entered. Defendant has failed to establish that the trial court abused its discretion by
denying his motion to withdraw his guilty pleas.

                                    CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court denying Defendant’s motion to withdraw his guilty pleas. However, we note
clerical errors in the judgments for the convictions in case number 26162. Each
judgment reflects an erroneous release eligibility of 30 percent, instead of the agreed
release after service of 100 percent of the sentence. Those two judgments are remanded
for the trial court to enter corrected judgments.


                                  ____________________________________________
                                  THOMAS T. WOODALL, JUDGE




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