        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  January 27, 2010 Session

                   STATE OF TENNESSEE v. DAVID NAGELE

                    Appeal from the Criminal Court for Knox County
                          No. 75138    Bob R. McGee, Judge


                  No. E2009-01313-CCA-R3-CD - Filed May 24, 2010


The Defendant, David Nagele, appeals from the Knox County Criminal Court’s denial of his
motion to withdraw his plea to attempted aggravated sexual battery, a Class C felony,
following correction of the judgment to reflect that the Defendant was subject to community
supervision for life. We hold (1) that the trial court did not err in denying the motion and (2)
that the Defendant is not entitled to plain error relief in his challenge to the constitutionality
of the community supervision for life statute. The judgment of the trial court is affirmed.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, David Nagele.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Charme Prater Knight,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

       The Defendant was charged with aggravated sexual battery occurring between
September 1999 and September 2001. He pled guilty to the lesser included offense of
attempted aggravated sexual battery on November 13, 2002, and the judgment was filed on
February 12, 2003. The judgment reflected a sentence of six years’ probation, expiring on
February 21, 2009. The judgment recited various conditions, but community supervision for
life was not among them. On February 19, 2009, the State filed a motion requesting that the
judgment be amended to include a condition of community supervision for life as required
by law. See T.C.A. § 39-13-524 (2006). The Defendant filed a motion to withdraw his
guilty plea on March 26, 2009. Also on March 26, 2009, the court filed an amended
judgment which included community supervision for life.

        On June 12, 2009, the trial court conducted a hearing on the Defendant’s motion to
set aside the guilty plea. At the hearing, the Defendant testified that he agreed to plead guilty
to a lesser included offense of the charged offense with the understanding that his sentence
would consist of six years of enhanced probation, court costs, fines, registering as a sex
offender, and treatment classes. He said that his attorney did not mention anything about
community supervision for life. He said that at the plea hearing, the district attorney never
mentioned community supervision for life. He said that neither the individual who provided
his treatment nor his probation officer mentioned community supervision for life, although
he acknowledged that he and his probation officer discussed it after the State filed the motion
to amend the judgment. He said that he would not have pled guilty if he had been told that
he would be subject to community supervision for life.

        On cross-examination, the Defendant acknowledged that he discussed his sentence
with his attorney after the judgment was filed. He said counsel told him that he would be
able to have his name removed from the sex offender registry after ten years. He denied that
counsel told him at this point about community supervision for life. He denied that he and
his attorney ever discussed the fact that community supervision for life had not been
specified and the possibility that this might not be noticed and would “slide through.”

        Trial counsel testified that he and the Defendant had numerous discussions about the
case. He said they never discussed community supervision for life “until the very end” of
plea agreement talks. He said he remembered the Defendant’s case because it was the first
time he had dealt with a case involving the community supervision for life statute. He said
that lifetime supervision was never mentioned as part of the plea negotiations with the State
but that he did talk with the Defendant about it. He said he discussed with the Defendant his
concern that it would be part of the judgment. He said the specific guidelines for the
program had not been written at the time, and he was not able to give the Defendant that type
of information. He said that because it had not been mentioned in the plea negotiations, he
and the Defendant hoped that the provision would not be included in the judgment. He said
that at the plea hearing, neither the district attorney nor the judge mentioned community
supervision for life. He said that the judgment was later filed and that it did not have the box
checked for community supervision for life. He said that after the judgment was filed, he and
the Defendant discussed that the box was not checked. He said they made the decision that
they would do nothing because it was not the defense’s job to correct the judgment.

      Trial counsel testified that after the Defendant pled guilty but before the judgment was
imposed, the Defendant was required to undergo a psychosexual evaluation. He said that

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they were concerned that this process was going to reveal information that might lead to
additional charges in Tennessee and Michigan. He said, “We were quite interested in getting
quietly out of this situation. And the threat of the other charges was also weighing on us
while we were trying to be quiet about the threat of community supervision.” He said he
thought the Defendant knew that community supervision for life was a possibility and that
he was hoping it would not happen.

        The trial court denied the Defendant’s motion to withdraw his plea. The court found
that the Defendant was advised before he entered his plea about community supervision for
life. The court also found that community supervision for life “wouldn’t have been
something that [was] clearly explained to him because nobody knew at that time what it was
going to be.”

                                                I

       In his first issue, the Defendant argues that the trial court erred in denying his motion
to withdraw his guilty plea. He contends alternatively that the plea was not knowing and
voluntary because he was given erroneous advice by counsel or because he was not advised
by the trial court of a direct consequence of his plea. The State responds that the trial court
did not abuse its discretion in denying the motion. We agree with the State.

        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). After
sentence is imposed, but before the judgment becomes final, the trial court may set aside the
judgment and allow a defendant to withdraw his guilty plea only to correct manifest injustice.
Tenn. R. Crim. P. 32(f)(2). The decision whether to allow the defendant to withdraw the
plea is within the discretion of the trial court, and its decision will not be reversed absent an
abuse of discretion. State v. Crowe, 168 S.W.3d 731, 740 (Tenn. 2005).

        In contrast to his testimony in the trial court that counsel never mentioned the
requirement of community supervision for life, the Defendant contends on appeal that he was
given erroneous advice about the requirement. He says that counsel’s inability to advise him
of the specifics of the program constituted the “erroneous” advice.

       The Defendant analogizes his case to Chad Alan Parker v. State, No. M2007-02799-
CCA-R3-PC, Rutherford County (Tenn. Crim. App. July 31, 2008). In that case, the
petitioner’s trial counsel advised him of the requirement of community supervision for life
but not of all the specific requirements. Trial counsel later realized that the law imposed
greater requirements than what he had told the petitioner. Counsel testified at the petitioner’s

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post-conviction hearing that there was a “significant difference” between the law as it existed
and as he represented it to the petitioner. Counsel also testified that the judge advised the
petitioner that he would be subject to community supervision for life and that the petitioner
responded negatively when the judge asked if he had any questions. The petitioner testified
that counsel advised him that the requirements of community supervision for life were the
same as those of the sex offender registry. A majority of a panel of this court held that the
petitioner was entitled to post-conviction relief on the basis of ineffective assistance of
counsel because the petitioner had been significantly misinformed about the consequences
of his plea and as a result, his plea was not made knowingly and voluntarily. Chad Alan
Parker, slip op. at 9. The dissenting judge disagreed that counsel had provided deficient
performance, stating that the requirement of community supervision for life was a collateral
consequence of the plea and that any failure to fully and accurately explain it did not
constitute ineffective assistance of counsel. Chad Alan Parker, slip op. (Thomas, J.,
dissenting). The dissenting judge also disagreed that the plea was involuntary. He noted
that the supreme court said in Jaco v. State, 120 S.W.3d 828 (Tenn. 2003), that a sex offender
defendant’s plea will not be considered constitutionally deficient merely because he was not
advised about specific prerequisites with which a sex offender must comply before he may
be released on parole. He analogized advice about the specifics of community supervision
for life to advice about sex offender parole prerequisites. Chad Alan Parker, slip op.
(Thomas, J., dissenting).

       The Defendant distinguishes his case from Marcus Ward v. State, No. W2007-01632-
CCA-R3-PC, Shelby County (Tenn. Crim. App. Jan. 14, 2009) (Tipton, P.J., dissenting), app.
granted (Tenn. Apr. 27, 2009). In that case, the post-conviction petitioner alleged that he was
not advised by his trial counsel before he pled guilty that he would be subject to community
supervision for life. A majority of a panel of this court held in pertinent part that a
requirement of community supervision for life is a collateral, not direct consequence of a
guilty plea. The majority distinguished the complete lack of advice in the case at bar from
the erroneous advice in Chad Alan Parker. Citing the dissenting opinion in Chad Alan
Parker, the majority held that community supervision for life was a collateral consequence
of a guilty plea and that a plea without advice of the requirement did not render a conviction
constitutionally infirm. Marcus Ward, slip op. at 12. The author of the present opinion
dissented from the majority opinion that community supervision for life was not a direct
punitive consequence of a guilty plea to a sex offense. Id., slip op. (Tipton, P.J., dissenting).

       In the present case, the Defendant was neither given erroneous advice about
community supervision for life, as in Chad Alan Parker, nor was he given no advice, as in
Marcus Ward. The Defendant was advised that community supervision for life was legally
required to be part of his sentence but that the possibility existed it would be omitted from
the judgment because it was not discussed in the plea negotiations or listed in the judgment.

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Counsel said he advised the Defendant that he could not tell the Defendant all of the specifics
of the program because it had only recently been created, but there is no evidence counsel
gave the Defendant any incorrect advice. The Defendant accepted the plea agreement hoping
that he would not be subject to community supervision for life but aware that it was required
for the offense to which he was pleading and aware that due to the program’s recent creation,
there were uncertainties about the specifics of the program. After the judgment was filed,
he and trial counsel discussed that the requirement had been omitted from the judgment, and
they decided not to bring it to anyone’s attention. Because the Defendant was advised by
counsel about community supervision for life and made an intelligent choice to plead guilty
despite the fact the program might be imposed on him as part of the sentence, his plea was
knowing and voluntary. The Defendant did not show manifest injustice, and the trial court
did not abuse its discretion in denying the motion on this basis.

        Alternatively, the Defendant argues that community supervision for life is a direct
consequence of a guilty plea and that he must have been advised of it by the trial court in
order to have entered a knowing and voluntary plea. He acknowledges this court’s decision
in Marcus Ward, and the majority opinion’s holding that community supervision for life is
a collateral, not direct, consequence of a plea.

         In the present case, the panel is divided on the issue whether community supervision
for life is a direct or collateral consequence of a sex offender’s guilty plea. The author of this
opinion was the dissenting judge in Marcus Ward. See Marcus Ward, slip op. (Tipton, P.J.,
dissenting). Judges Tipton and Ogle adhere to the view expressed in the Marcus Ward
dissent. That is, by virtue of Code section 39-13-524, which provides for “a sentence of
community supervision for life,” the lifelong community supervision program is a direct
punitive consequence of a sex offender’s guilty plea. Marcus Ward, slip op. (Tipton, P.J.,
dissenting); cf. State v. Jamgochian, 832 A.2d 360, 362 (N.J. Super. App. Div. 2003); Palmer
v. State, 59 P.3d 1192, 1196-97 (Nev. 2002). Judge Thomas, the dissenting judge in Chad
Alan Parker, would hold that community supervision for life is a collateral consequence of
a sex offender’s guilty plea. See Chad Alan Parker, slip op. (Thomas, J., dissenting).

        In any event, all of the members of this panel agree that the Defendant is not entitled
to relief. The Defendant was not prejudiced by the trial court’s failure to advise him of the
program because his attorney did so. See, e.g., Johnson v. State, 834 S.W.2d 922 (Tenn.
1992) (holding that petitioner’s plea was knowing and voluntary despite trial court’s failure
to advise him of his right against self-incrimination, where State established that the
petitioner was otherwise aware of the right when he entered into plea). “It is the result, not
the process, that is essential to a valid plea. The critical fact is the defendant’s knowledge of
certain rights, not that the trial judge was the source of that knowledge.” Id. at 924.



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                                               II

       The Defendant also argues that the community supervision for life statute is
unconstitutional because it delegates legislative authority to an administrative agency by
directing that the Board of Probation and Parole has the authority to establish a program and
promulgate rules for supervision of sex offenders subject to the statute. The State responds
that the Defendant has waived this issue by failing to raise it in the trial court. The
Defendant contends that the issue was raised when trial counsel questioned the
constitutionality of the program in his testimony at the hearing, and even if it was not
properly raised in the trial court, this court should consider it as a matter of plain error.

         In support of the Defendant’s argument that the question of the constitutionality of
the community supervision for life statute was raised in the trial court, he cites to portions
of the transcripts in which the Defendant’s trial attorney, testifying as a witness, stated that
he questioned the constitutionality of the supervision for life law. The issue was never raised
by the State or by the attorney who represented the Defendant in the motion to withdraw, and
the trial court did not rule on the issue. The issue was not raised in the trial court.

        The Defendant contends alternatively that we should consider the matter as an issue
of plain error. See State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (holding that all five
plain error factors must be established before a court can find plain error exists and that
“complete consideration of all the factors is not necessary when it is clear from the record
that at least one of the factors cannot be established”). The Defendant’s belated assertion
falls short of establishing that a clear and unequivocal rule of law has been breached or that
a substantial right of the Defendant’s was adversely affected. See id. Further, review of this
issue is not necessary to do substantial justice. See id. A challenge to a constitutional
provision that does not contain a patent flaw is better suited for full litigation and thoughtful
consideration by the trial court, with appellate review of the trial court’s decision. See
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). An appeal of a motion to
withdraw a guilty plea when there was no allegation or proof in the trial court that the
Defendant sought to withdraw his plea because the statute was unconstitutional is an
inappropriate vehicle for litigation of this claim. Plain error relief is not warranted.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.

                                                 ___________________________________
                                                 JOSEPH M. TIPTON, PRESIDING JUDGE




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