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

        WILLIAM MICHAEL PHILLIPS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Giles County
                   No. CR-12825, 16041     Robert L. Jones, Judge
                       ___________________________________

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


Easter, J., concurring.


       I concur with the conclusion reached by Judge Ogle that the post-conviction court
properly denied the petition for post-conviction relief. I further agree with Judge Ogle’s
conclusion that any claims regarding judicial bias and recusal are waived. I write
separately to address the Petitioner’s claim that he was disadvantaged by not having
appointed counsel to represent him at the hearing on his motion to withdraw his guilty
plea. I do not believe a post-sentencing motion to withdraw a guilty plea pursuant to
Tennessee Rule of Criminal Procedure 32(f) is a critical stage of the prosecution to which
the right to counsel attaches.

       In this case, Petitioner filed a pro se post-sentencing motion to withdraw his guilty
plea, and the trial court gave Petitioner a hearing on that motion. At that hearing,
Petitioner was rendered essentially without counsel when substitute counsel, who had not
been relieved from representing Petitioner, took the stand and testified adversely to him,
creating an actual conflict of interest. See United States v. Davis, 239 F.3d 283, 285-88
(2d Cir. 2001). Additionally, the record does not contain a constitutionally valid waiver
of counsel by Petitioner. See State v. Northington, 667 S.W.2d 57, 61-62 (Tenn. 1984).
In order to resolve whether the trial court had an obligation to provide yet another
attorney or to obtain a constitutionally valid waiver of counsel from Petitioner before
allowing him to proceed pro se, I believe we must determine whether there is a right to
counsel at a hearing on a post-sentencing motion to withdraw a guilty plea.

        Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right to assistance of counsel at
“critical stages” of the prosecution “where counsel’s absence might derogate from the
accused’s right to a fair trial.” State v. Blye, 130 S.W.3d 776, 780 (Tenn. 2004) (citing
State v. Martin, 950 S.W.2d 20, 25 (Tenn. 1997)). A critical stage is “a step of a criminal
proceeding . . . that [holds] significant consequences for the accused.” Bell v. Cone, 535
U.S. 685, 696 (2002). In the context of a guilty plea, plea hearings and the plea-
bargaining process are clearly “critical stages.” Iowa v. Tovar, 541 U.S. 77, 87 (2004)
(discussing plea hearings); Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014) (examining
the plea-bargaining process). Several federal circuit courts have held that a plea
withdrawal hearing under federal criminal procedure is also a critical stage. See Davis,
239 F.3d at 286; United States v. Sanchez-Barreto, 93 F.3d 17, 20 (1st Cir. 1996); United
States v. Garrett, 90 F.3d 210, 212 (7th Cir. 1996); United States v. Crowley, 529 F.2d
1066, 1069 (3d Cir. 1976). However, unlike the Tennessee Rules of Criminal Procedure,
the Federal Rules of Criminal Procedure do not provide for the withdrawal of a guilty
plea after sentencing. Compare Fed. R. Crim. Pro. 11(d)-(e) (stating that a defendant
cannot withdraw a guilty plea after the court imposes a sentence), with Tenn. R. Crim. P.
32(f) (allowing withdrawal of a guilty plea to correct a manifest injustice after a sentence
is imposed but before the judgment is final). “There has been no Federal recognition of a
right to a post-sentence motion to withdraw [a] guilty plea, and it follows that there is no
right to effective assistance of counsel at such proceeding.” Gilbert v. Hudson, No. 1:08
CV 1867, 2009 WL 3246978, at *16 (N.D. Ohio Oct. 5, 2009).

       Tennessee courts have not explicitly held whether a hearing on a post-sentencing
motion to withdraw a guilty plea is a critical stage for the purposes of the right to counsel.
This Court has held that failure to file a pre-sentencing motion to withdraw a guilty plea
when clearly instructed to by a client is ineffective assistance of counsel. Sylvia Laird v.
State, No. M2014-02020-CCA-R3-PC, 2015 WL 3454214, at *9 (Tenn. Crim. App. Jun.
1, 2015), no perm. app. filed. Also, this Court analyzed an ineffective assistance of
counsel claim for failure to file a post-sentencing motion to withdraw a guilty plea where
counsel failed to follow-up on information indicating a client was having “second-
thoughts” and incorrectly informed the client’s mother that counsel could not file a
motion to withdraw a guilty plea on the client’s behalf. Patrick Devin Camp v. State, No.
E2012-00198-CCA-R3-PC, 2013 WL 3103974, at *19-20 (Tenn. Crim. App. Jun. 17,
2013) (holding that even though trial counsel failed to meet his duty, Petitioner failed to
show prejudice), perm. app. denied (Tenn. Nov. 12, 2013). Nevertheless, those cases
provide little guidance on the specific issue raised in this case.

       In Gilbert v. Hudson, 2009 WL 3246978, at *15, the United States District Court
for the Northern District of Ohio analyzed a post-sentencing motion to withdraw a guilty
plea under Ohio Criminal Rule 32.1, which has similar language as Tennessee Rule of
Criminal Procedure 32(f). Compare Ohio Crim. R. 32.1 (“to correct manifest injustice[,]
the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea.”), with Tenn. R. Crim. P. 32(f). The Gilbert court
found “a pre-sentence motion to withdraw guilty plea present[ed] a very weak claim” for
                                             -2-
qualification as a critical stage to the prosecution or appeal. 2009 WL 3246978, at *15
(emphasis in original) (citing Hines v. Miller, 318 F.3d 157 (2d Cir. 2003), which
analyzed the split in authority as to whether a conflict of interest with trial counsel at a
motion to withdraw hearing constituted the denial of the right to counsel or the denial of
the effective assistance of counsel). In light of that notion, the District Court quipped that
a post-sentencing motion to withdraw a guilty plea presented “no case at all,” and held
“[p]ost-sentence motions to withdraw guilty pleas are not critical stages.” Id. at *15-16;
but see State v. McNeal, No. 82793, 2004 WL 35762, at *2 (Ohio Ct. App. 2004) (noting
that state case law merely suggests that a right to counsel exists when there is an
evidentiary hearing on a motion to withdraw a guilty plea). The court reasoned that the
post-sentencing motion to withdraw a guilty plea was neither a prerequisite nor a
substitute for a direct appeal as of right and that the “manifest injustice” standard did not
require technical legal argument. 2009 WL 3246978, at *16. Given the similarities
between Ohio’s Criminal Rule 32.1 and Tennessee’s Rule of Criminal Procedure 32(f), I
find the District Court’s reasoning in Gilbert to be persuasive and agree with its
conclusion—Petitioner’s post-sentencing motion to withdraw his guilty plea presented
“no case at all” for the purpose of the appointment of counsel.

        Courts in Idaho, Montana, and Washington have similarly held that there is no
right to counsel at hearing on a post-sentencing motion to withdraw a guilty plea. See
State v. Hartshorn, 235 P.3d 404, 408 (Idaho Ct. App. 2010); State v. Garner, 36 P.3d
346, 356 (Mont. 2001); State v. Winston, 19 P.3d 495, 498 (Wash. Ct. App. 2001). Of
those cases from other states, I find the Washington Court of Appeals’ analysis in
Winston particularly persuasive. See 19 P.3d at 497-98. In Winston, the court determined
that, for the purposes of the right to counsel, a post-sentencing motion to withdraw a
guilty plea should be treated like a post-conviction proceeding because it is a collateral
attack on a judgment. Id. (distinguishing motions to withdraw guilty pleas filed prior to
the entry of judgment, “at a time when the right to counsel at the trial stage was still
present”). Thus, the Winston court held that there was no constitutional right to counsel
at a post-judgment motion to withdraw a guilty plea. Id. at 499; see Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987) (holding no constitutional right to counsel in a post-
conviction proceeding). The court in Winston also reasoned that even if a hearing was
warranted on the motion, there would still be no right to counsel. Id.

       To be clear, there are cases from other jurisdictions that have confronted the issue
and determined that the right to counsel does extend to a post-sentencing motion to
withdraw a guilty plea. However, those jurisdictions either found that the right only
attaches when the motion raises substantial questions of law or triable issues of fact, see
State v. Jackson, 874 P.2d 1138, 1142 (Kan. 1994), or based the right on state case law
using a broader definition of “critical stage,” see Fortson v. State, 532 S.E.2d 102, 103-04

                                             -3-
(Ga. 2000) (quoting Ballard v. Smith, 169 S.E.2d 329, 330 (Ga. 1969)). However, I have
found no such language in Tennessee case law.

        Petitioner urges this Court to provide clarity in Tennessee and find that he had the
right to counsel at the hearing on his motion to withdraw his guilty plea. In light of the
aforementioned cases and the lack of Tennessee case law dealing with this issue directly,
I refrain from holding that a hearing on a post-sentencing motion to withdraw a guilty
plea is a critical stage and decline to extend the right to counsel that far. As the Federal
District Court noted in Gilbert, a post-sentencing motion to withdraw a guilty plea is
neither a prerequisite nor a substitute for a direct appeal as of right from a guilty plea.
2009 WL 3246978, at *16; see Tenn. R. Crim. P. 37(b)(2) (setting forth when an appeal
lies from a guilty plea). Thus, in my view, a post-sentencing motion to withdraw a guilty
plea should be viewed similarly to a post-conviction proceeding where a petitioner has no
constitutional right to counsel. See Winston, 19 P.3d at 499; see also Frazier v. State,
303 S.W.3d 674, 680 (Tenn. 2010) (stating that there is not a constitutional right to
counsel in state post-conviction proceedings but rather a statutory right to counsel) (citing
Coleman v. Thompson, 501 U.S. 722, 756-57 (1991); T.C.A. § 40-30-107(b)(1)). Unlike
a post-conviction proceeding, there is no statutory right to counsel for a motion to
withdraw a guilty plea under Tennessee law. Thus, the right to counsel, either
constitutional or statutory, did not attach at Petitioner’s hearing on his post-sentencing
motion to withdraw his guilty plea. Accordingly, I conclude that the trial court did not
err when it did not appoint new counsel to Petitioner or determine if Petitioner was
willing and fit to proceed pro se.



                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




                                            -4-
