             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                            Opinion on Remand

             STATE OF TENNESSEE v. TIMOTHY PRESTON RUSSELL

                         Appeal from the Criminal Court for Knox County
                               Nos. 80135A, 84456, 84457, & 84458
                        James B. Scott, Special Judge; Ray L. Jenkins, Judge


                         No. E2009-01053-CCA-RM-CD - Filed July 29, 2009


The Defendant, Timothy Preston Russell1, pled guilty to one count of theft of property valued
$10,000 or more but less than $60,000, a Class C felony, and three counts of theft of property valued
$1,000 or more but less than $10,000, a Class D felony. He was sentenced to eight years as a Range
II, multiple offender for the Class C felony and six years as a Range II, multiple offender for each
Class D felony. Two six-year sentences were to be served concurrently to each other but
consecutively to the eight-year sentence, to which another six-year sentence ran concurrently, for
an effective fourteen-year sentence. The trial court denied probation and imposed incarceration.
Appealing the denial of his motion to withdraw the four guilty pleas, the Defendant contends that
he should be able to withdraw his guilty pleas to correct manifest injustice and that the trial court
erred in not advising him that he would not be able to withdraw the guilty pleas if the court did not
accept the plea agreement. We affirm the judgments of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JERRY L. SMITH and CAMILLE
R. MCMULLEN , JJ., joined.

Timothy Russell, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

                                                    OPINION

       After this court dismissed the defendant’s direct appeal as untimely, this case was remanded
by the Tennessee Supreme Court for consideration of the merits of the Defendant’s issues. The
summary of facts presented by the State at the plea hearing showed the following events. The


         1
          The record reflects that the Defendant was charged under both a presentment and three separate indictments,
although the names listed between the presentment and indictments vary. We will use the style of the case listed in the
three indictments.
Defendant obtained $13,606.72 from a “kiting” scheme at a bank. The Defendant also obtained a
Ford truck by writing a check for $4,300 to Mr. Christopher Crawford on a closed bank account.
The Defendant advertised a Mazda for sale, and Mr. Khalid Elbasit purchased the car from the
defendant for $1,500. As the Defendant never conveyed title to the car, the victim returned it and
asked for his payment to be returned. The Defendant issued Mr. Elbasit a check for $1,500 drawn
on a closed account. The Defendant attempted to purchase a truck from Mr. James Shipley, who
would not allow the defendant to pay with a check. The truck and its title were later stolen, and the
truck was not recovered. The Defendant altered the truck’s title to make it appear to be the title for
a Mazda, which the Defendant sold to Mr. Teddy Burk for $2,500. The Mazda had a lien on it and
was repossessed by the creditor.

         The transcript of the plea hearing reflects that the Defendant was advised during the hearing
of (1) the right to be proven guilty beyond a reasonable doubt by a jury and the presumption of
innocence; (2) the ranges possible for the offenses as a Range II, multiple offender; (3) that these
convictions could be used to enhance future sentences; (4) the right to counsel; (5) the right to plead
not guilty; (6) the right to confront and cross-examine adverse witnesses and to compel favorable
witnesses to testify; (7) the right to be protected against compelled self-incrimination and the right
to testify; and (8) the lack of a trial after the plea, with only a hearing to determine the propriety of
probation. The court also clarified with the State that the Defendant had not been promised
probation but instead was told he could apply for probation. The Defendant pled guilty to four
felony theft charges, three of which were Class D felonies with sentences of six years as a Range II,
multiple offender. The remaining felony conviction was a Class C felony with an eight-year
sentence as a Range II, multiple offender.

        At the probation hearing, the presentence report was entered into evidence. The State
requested that the trial court impose confinement for the Defendant’s sentences. The Defendant
informed the court that he wanted the “most extreme alternative sentencing possible.” The trial court
found that in view of the Defendant’s interests, behavioral record, employment history, social
history, physical and mental condition, extensive prior record, refusal to conform his conduct to
societal mores, the victim impact statements, the public interest, and deterrence value, confinement
was necessary for the interests of the Defendant and the public as a whole.

        The Defendant filed a pro se motion to withdraw his guilty pleas in which he alleged that the
special judge had imposed a fourteen-year sentence to be served on enhanced probation for thirty-
five percent of the sentence, with the balance to be served on probation and that the subsequent trial
judge had rejected this manner of service and imposed confinement. The trial court denied the
motion after finding that the Defendant had signed the waiver of right to jury trial form on which it
stated that the agreed sentence was “only a recommendation and that the Court is not bound by this
recommendation in any way.” The trial court found that the Defendant understood the court had the
discretion to accept his plea and either to deny or to impose probation.

       The Defendant filed a pro se notice of appeal. In his brief, the Defendant compares his case
with State v. Crowe, 168 S.W.3d 731, 742 (Tenn. 2005), and argues his guilty pleas should be
withdrawn because he entered them under a misunderstanding of their effect. He claims the
language on the “WAIVER OF TRIAL BY JURY AND REQUEST FOR ACCEPTANCE OF

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PLEA OF GUILTY” is ambiguous and should be construed against the State. He contends that
because the handwritten terms of the plea agreement as reflected in this waiver form say “Apply
ENHANCED PROBATION” next to “to serve” with lines drawn through “serve” to negate it, he
did not understand that he was only applying for probation and was not guaranteed probation for his
four felonies. He claims the word “serve” was not scratched out when he signed the agreement.


        The State responds that because the Defendant did not meet his burden of showing that the
pleas should be withdrawn to correct manifest injustice, the trial court properly denied the motion
to withdraw the pleas. The State claims the Defendant was not promised probation.

        Tennessee Rule of Criminal Procedure 32(f) permits a defendant to withdraw a guilty plea
under certain circumstances. If a sentence has yet to be imposed, the trial court may grant a motion
to withdraw “for any fair and just reason.” Tenn. R. Crim. P. 32(f)(1). If the defendant has been
sentenced, a trial court may still grant a motion to withdraw a guilty plea before the judgment
becomes final but only “to correct manifest injustice.” Tenn. R. Crim. P. 32(f)(2). Our supreme
court has held that “a judgment of conviction entered upon a guilty plea becomes final thirty days
after acceptance of the plea agreement and imposition of the sentence.” State v. Green, 106 S.W.3d
646, 650 (Tenn. 2003). “Whether a defendant should be permitted to withdraw a plea is a matter
addressed to the sound discretion of the trial court, regardless of when the motion was filed.”
Crowe, 168 S.W.3d at 740.

       The Defendant filed his motion to withdraw his guilty pleas after he was sentenced, and the
standard to evaluate the Defendant’s motion is that of “manifest injustice.” See State v. Turner, 918
S.W.2d 346, 354 (Tenn. Crim. App. 1995); Tenn. R. Crim. P. 32(f)(2). “Manifest injustice” has
been interpreted to mean situations such as

               (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 effective assistance of counsel in connection with the entry
               of the plea.

Crowe, 168 S.W.3d at 742 (footnotes omitted). However, “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.” Id. at 743. The Defendant has the burden of
demonstrating that the plea should be withdrawn to prevent manifest injustice. See Turner, 918
S.W.2d at 355.

        We agree with the State that the Defendant has not demonstrated that the trial court abused
its discretion in denying the Defendant’s motion to withdraw his guilty pleas. In Crowe, our
supreme court concluded that a defendant had demonstrated manifest injustice when he entered a

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nolo contendere plea to facilitation of first degree murder but did not understand the nature of the
charges and the legal definition of “facilitation.” Crowe, 168 S.W.3d at 749-50. It held that the
defendant’s pleas had not been intelligent, knowing, and voluntary. Id. at 749. Here, though, the
Defendant knew the nature of the charges, and the facts of the case demonstrating the essential
elements of each felony theft offense were stated at the plea hearing.

         Instead, the Defendant claims that he did not understand the effect of his plea agreement. The
plea hearing transcript and the plea agreement itself show that a term of the plea agreement was that
the Defendant would apply for enhanced probation. Early in the plea hearing, when the trial court
asked if a probation hearing was to be held, the State responded that the Defendant intended to apply
for enhanced probation. The trial court clarified that the State was “not promising probation, he’ll
just have the right to a hearing; is that correct?” The State answered affirmatively. Later in the plea
hearing, the trial court told the Defendant twice that the Defendant would apply for enhanced
probation but that he probably would not be a suitable candidate for alternative sentencing due to
his extensive criminal record and that the trial court would “probably not hesitate . . . to send you
to the penitentiary.” The plea agreement itself reflects that the Defendant would apply for enhanced
probation as a Range II, multiple offender. The language of the plea agreement form states explicitly
that a recommended sentence and manner of service are “only a recommendation and that the Court
is not bound by this recommendation in any way.”

         We note that the Defendant is a Range II offender, has an extensive criminal record and did
not report to a probation officer for his original evaluation. His court dates had to be rescheduled
for him to be evaluated for the probation he claims he thought he would receive. At his sentencing
hearing, the State relied on the presentence report, which stated that the Defendant had seventeen
prior felony convictions, including eight prior felony theft convictions, and twenty-two prior
misdemeanor convictions. The Defendant had also been on parole in Ohio when he committed both
the offenses pending in Ohio at the time of the plea and sentencing hearings and the instant
Tennessee offenses. His Ohio parole was subsequently revoked, and he was to serve the balance of
his prior felony sentences in confinement. The report stated that the Defendant was “an extremely
high risk for probation due to his prior criminal history.” In view of the Defendant’s sizeable
criminal record and experience with the justice systems of two states, we cannot conclude that the
trial court abused its discretion in denying the Defendant’s motion to withdraw his guilty pleas. The
Defendant did not meet his burden.

        In his second issue, the Defendant claims that he should have been able to withdraw his
guilty pleas because he did not know that he could not withdraw them if the trial court found him
unsuitable for probation. He claims the trial court did not tell him in open court, as required by
Tennessee Rule of Criminal Procedure 11(c)(3)(B), that if the trial court rejected the plea agreement,
the Defendant would not be able to withdraw the pleas.

        The State replies that the Defendant waived this issue by not presenting it to the trial court
in his motion to withdraw the guilty pleas. See T.R.A.P. 36(a); Lawrence v. Stanford, 655 S.W.2d
927, 929 (Tenn. 1983); State v. Davis, 751 S.W.2d 167, 171 (Tenn. Crim. App. 1988). The State
links this waiver to the Defendant’s guilty plea withdrawal request by saying that because the trial
court did not have the opportunity to evaluate the claim, there can be no abuse of discretion in

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denying the Defendant’s motion. Alternatively, the State argues that although the trial court did not
explicitly state that the Defendant would not be able to withdraw his guilty pleas, as required by
Tennessee Rule of Criminal Procedure 11(c)(3)(B), if the trial court did not order alternative
sentencing, the record shows that “the defendant was effectively put on notice that if he chose to go
forward with his pleas and was not granted probation, he was stuck with the result.”

         Although we note the Defendant was not afforded a hearing on his motion to withdraw the
guilty pleas, we conclude that the Defendant has waived this second issue by failing to present it to
the trial court in his motion to withdraw his pleas. See T.R.A.P. 36(a) (stating that “relief may not
be granted in contravention of the province of the trier of fact”); Davis, 751 S.W.2d at 171. Besides,
the very fact he did not claim in the trial court that he had the right to withdraw his pleas is telling.
He is not entitled to relief.

        Based on the foregoing and the record as a whole, we affirm the judgments of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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