        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 2, 2010

             STATE OF TENNESSEE v. JOE MARVIN ELLISON

              Direct Appeal from the Circuit Court for Madison County
                      No. 09-127    Roy B. Morgan, Jr., Judge


                No. W2009-01134-CCA-R3-CD - Filed March 16, 2010


The defendant, Joe Marvin Ellison, pled guilty to aggravated assault, aggravated robbery,
aggravated kidnapping, and rape for an effective sentence of twenty-five years in the
Department of Correction. He subsequently filed a motion to withdraw his guilty pleas,
which was denied by the trial court. On appeal, he argues that the trial court erred in
denying his motion. After review, we affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J OHN E VERETT W ILLIAMS, J., joined.

Joseph T. Howell, Jackson, Tennessee (on appeal); and Susan D. Korsnes, Assistant Public
Defender (at hearing), for the appellant, Joe Marvin Ellison.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

                                           FACTS

       On March 2, 2009, the defendant was charged in a five-count indictment with
attempted first degree murder, aggravated assault, especially aggravated robbery, especially
aggravated kidnapping, and aggravated rape. The facts from the affidavit of complaint
giving rise to the indictment established that the victim, Patricia Currie, was at her home
watching television the evening of July 23, 2008, around 9:45 p.m. when she heard a noise.
The victim was startled to see the defendant, whom she knew as Joe Turner, standing in her
living room. The defendant initially asked for money, but she told him she had none. He
put a dog chain around her neck and started strangling her, so she told him that she had
money in her bedroom. The defendant took the victim to her bedroom and began looking
through her belongings. She gave him twenty-four dollars out of her purse. The defendant
threw her on the bed and started taking off her clothes. The defendant “had a condom on
and started strangling her till she pas[sed] out.” The victim awoke later to find her pants at
her ankles. The victim helped the police in developing a suspect, and the defendant was
included in a six-person photographic array that was shown to the victim. The victim
positively identified the defendant as her assailant.

       On April 13, 2009, the defendant and the State entered into a negotiated plea
agreement whereby the attempted murder charge was dismissed, and the defendant agreed
to serve fifteen years at 60% for aggravated assault, twenty-five years at 45% for aggravated
robbery, twenty-five years at 100% for aggravated kidnapping, and twenty-five years at
100% for rape. The State recommended that all the sentences run concurrently for an
effective term of twenty-five years. After a plea hearing, the trial court accepted the
negotiated plea agreement and entered judgment on April 16, 2009.

       On April 28, 2009, a letter from the defendant to the trial court was filed with the
Madison County Circuit Court Clerk. In that letter, the defendant told the court that he
wanted to withdraw his guilty pleas because he felt he was coerced by his attorney into
accepting the plea agreement, he did not fully understand or comprehend the agreement, and
his attorney acted inappropriately and rendered ineffective assistance. The defendant
subsequently filed a formal pro se motion to withdraw his guilty pleas. In that motion, the
defendant argued that his pleas should be set aside because he was innocent of the charges
and a manifest injustice would occur if the pleas were not withdrawn. He also asserted that
the pleas were “a direct result of coercion” placed on him by his attorney.

        At the hearing on the defendant’s motion, the defendant testified that when the trial
court informed him at the plea hearing that his sentences for aggravated kidnapping and rape
were “outside [his] range,” he hesitated until his attorney “whispered in [his] ear . . . kind
of coercing [him] to go ahead on and sign it.” He claimed that his attorney did not inform
him of the range of punishment applicable for each of his offenses. He said that his attorney
assured him that “[i]t[] [was] going to be all right,” and he assumed that being an attorney,
“she kn[ew] what she[] [was] talking about.”

      At the conclusion of the hearing, the trial court denied the defendant’s motion to
withdraw his guilty pleas, and the defendant appealed.


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                                         ANALYSIS

       On appeal, the defendant argues that the trial court erred in denying his motion to
withdraw his guilty pleas because he received the ineffective assistance of counsel and his
pleas were not knowingly entered.

        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 sentence is imposed,
or to correct manifest injustice after the sentence is imposed but before the judgment
becomes final. Manifest injustice is present where (1) the plea was entered as a result of
fear, fraud, or misunderstanding; (2) the State failed to disclose exculpatory evidence as
required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); (3) the plea was not
knowingly, understandingly, and voluntarily entered; or (4) the defendant was denied the
effective assistance of counsel in connection with entering the plea. State v. Crowe, 168
S.W.3d 731, 742 (Tenn. 2005). Manifest injustice may exist in the absence of a
constitutional violation, but where there is a denial of due process there is manifest injustice
as a matter of law. Id. at 742-43.

       The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn.
Const. art. I, § 9. To establish a claim of ineffective assistance of counsel, the petitioner has
the burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see State v. Taylor, 968 S.W.2d 900, 905
(Tenn. Crim. App. 1997) (noting that same standard for determining ineffective assistance
of counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is
       reliable.

Id. at 687, 104 S. Ct. at 2064.

       The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness

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under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975)). The prejudice prong of the test is satisfied by showing a reasonable
probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. “In cases involving a guilty plea or plea of
nolo contendere, the petitioner must show ‘prejudice’ by demonstrating that, but for
counsel’s errors, he would not have pleaded guilty but would have insisted upon going to
trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998) (citing Hill v.
Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213,
215 (Tenn. Crim. App. 1991)).

        When analyzing a guilty plea, we look to the federal standard announced in Boykin
v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and the state standard set out in State v.
Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).
In Boykin, the United States Supreme Court held that there must be an affirmative showing
in the trial court that a guilty plea was voluntarily and knowingly given before it can be
accepted. 395 U.S. at 242, 89 S. Ct. at 1711. Similarly, in Mackey, our supreme court
required an affirmative showing of a voluntary and knowledgeable guilty plea, namely, that
the defendant has been made aware of the significant consequences of such a plea. Pettus,
986 S.W.2d at 542.

       A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial
court must determine if the guilty plea is “knowing” by questioning the defendant to make
sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904.

       A defendant who submits a guilty plea is not entitled to withdraw the plea as a matter
of right. See State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). Moreover,
it is well settled that a defendant’s mere change of heart about pleading guilty does not
constitute manifest injustice warranting withdrawal. Crowe, 168 S.W.3d at 743. It is the
defendant’s burden to establish that his guilty plea should be withdrawn. 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).

       In denying the defendant’s motion, the trial court made the following findings from
the bench:


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              [The defendant], you have not submitted to this Court today, to any
       degree, any manifest injustice. You just essentially -- apparently want to
       change your mind. . . . I was so very thorough with you. . . . I don’t want any
       [d]efendant to enter a guilty plea if it’s not what they don’t [sic] want to do.

              That’s why I take the time to go over it with you. And in your case
       particularly, explained to you what you were doing at the time and specifically
       pleading outside your range. You have not given any substantial or material
       change in circumstances as you testified. You have not set forth any basis to
       allow the withdrawal to correct a manifest injustice. And for those reasons
       I’ve got to deny the request to withdraw the plea.

In its written order, the trial court additionally found that the defendant’s guilty pleas on
April 13, 2009, were knowingly, intelligently, and voluntarily entered.

        We initially note that the trial court apparently discredited the defendant’s allegation
that he contacted his attorney on April 15, prior to entry of the judgments, informing her that
he wished to withdraw his guilty pleas. Regardless, because the defendant filed his motion
after sentencing, the defendant had to prove that manifest injustice would result if he was
not allowed to withdraw his pleas. We discern no abuse of discretion in the trial court’s
conclusion that the defendant did not carry this burden.

       The defendant’s allegation that he did not understand the pleas and range of
punishment for each of the charged offenses was contradicted by his averments at the plea
hearing that he understood each of those things. In this regard, the trial court specifically
informed the defendant on the potential range of punishment for each offense, the sentence
and release eligibility he was receiving on each offense, and that he was pleading out of
range on two of the offenses. The defendant’s allegations that his attorney coerced him into
pleading guilty and rendered ineffective assistance were contradicted by his averments at the
plea hearing that his pleas were not the result of any force, pressure, or threats and that he
was satisfied with his attorney’s representation. Moreover, the defendant related no specific
improper threats that his attorney made to him to “coerce” him into accepting the plea
agreement.

       The record shows that the defendant committed the present offenses while on parole
and that he had a number of previous experiences with the criminal justice system. The
record further shows that the trial court thoroughly admonished the defendant regarding the
aspects of his pleas, and the defendant stated in open court that he understood and wanted
the court to approve the pleas. The defendant’s pleas were knowingly and voluntarily
entered with the effective assistance of counsel. The defendant’s wish to withdraw his pleas

                                              -5-
appears due to nothing more than a change of heart.

                                      CONCLUSION

        Because the defendant has not established that manifest injustice resulted from his
guilty pleas, we conclude that the trial court did not abuse its discretion in refusing to allow
the defendant to withdraw his pleas. Therefore, based on the foregoing authorities and
reasoning, we affirm the judgment of the trial court.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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