                                                                                           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
                   Nos. CR-12825, 16041    Robert L. Jones, Judge
                      ___________________________________

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

CAMILLE R. MCMULLEN, J., concurring in part and dissenting in part.

       I agree with the conclusion reached by the majority pertaining to the Petitioner’s
recusal claim. I respectfully part ways with the lead opinion; however, because it fails to
address the issue squarely before the court, which is whether the Petitioner was entitled to
counsel during his post-sentencing motion to withdraw his guilty plea. This issue, as
noted in Judge Easter’s dissent, requires us to determine whether a post-sentencing
motion to withdraw a guilty plea is a critical stage of the proceedings. Because a
defendant’s substantial rights are affected, I would have concluded that a post-sentence
motion to withdraw a guilty plea is a critical stage in judicial proceedings. Accordingly, I
would have reversed the judgment of the post-conviction court and vacated its order
denying relief. I also would have reversed and vacated the trial court’s denial of the
Petitioner’s post-sentencing motion to withdraw his guilty plea and remanded for a new
evidentiary hearing on the motion to withdraw following the appointment of counsel or
valid waiver thereof.

       I begin by acknowledging that a defendant does not have a unilateral right to
withdraw a plea. State v. Crowe, 168 S.W.3d 731, 740 (Tenn. 2005) (internal citations
omitted). 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 is filed.
Id. Rule 32 of the Tennessee Rules of Criminal Procedure provides a pre-sentencing and
a post-sentencing standard for evaluating motions to withdraw guilty pleas:

              A motion to withdraw a plea of guilty may be made upon a showing
       by the defendant of any fair and just reason only before sentence is
       imposed; but to correct manifest injustice, the court after sentence, but
       before the judgment becomes final, may set aside the judgment of
       conviction and permit the defendant to withdraw the plea.


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Rule 32(f) (emphasis added). The more demanding standard, “to correct manifest
injustice,” applies to motions, like the Petitioner’s, which are filed after imposition of
sentence. The purpose behind the more stringent standard is to prevent a defendant from
retracting “a plea of guilty . . . with ease after sentence . . . to test the weight of potential
punishment, and withdraw the plea if the sentence were unexpectedly severe.” Crowe,
168 S.W.3d at 741 (citing Kadwell v. United States, 315 F.2d 667, 670 (9th Cir. 1963)).
Manifest injustice is determined on a case by case basis; and is established in the
following circumstances:

       (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, [], 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. Although manifest injustice may
       exist in the absence of a constitutional violation . . . “[w]here there is a
       denial of due process, there is a ‘manifest injustice’ as a matter of law.”

Crowe, 168 S.W.3d at 742-43 (internal citations and footnotes omitted). The burden is
on the defendant to establish manifest injustice requiring withdrawal of the guilty plea.

        The Sixth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution, guarantee defendants the right to counsel at all critical stages
in the criminal justice process. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963)
(holding that Sixth Amendment right to counsel in criminal proceedings applies to states
through Fourteenth Amendment); State v. Blye, 130 S.W.3d 776, 780 (Tenn. 2004)
(holding that both the Sixth Amendment and Article I, section 9 of the Tennessee
Constitution guarantees the right to counsel at critical stages of the proceedings “where
counsel’s absence might derogate from the accused’s right to a fair trial”); State v. Butler,
795 S.W.2d 680, 685 (Tenn. Crim. App. 1990). A “critical stage” is any stage where a
substantial right of an accused may be affected and can arise in pre-trial as well as post-
trial proceedings. See Mempa v. Rhay, 389 U.S. 128, 134 (1967); Johnston v. Mizell,
912 F.2d 172 (7th Cir. 1990) (post-trial motion for new trial critical stage in criminal
proceedings); Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989) (post-trial motion for new
trial critical stage requiring counsel or valid waiver); Wallace v. State, 121 S.W.3d 652,
658 (Tenn. 2003) (recognizing that motion for new trial is a critical stage of the
proceedings because it allows the defendant to preserve and pursue the available post-
trial remedies). It also occurs when “the accused is confronted with ‘the prosecutorial
forces of organized society, and immersed in the intricacies of substantive and procedural
criminal law,’ see Kirby v. Illinois, 406 U.S. 682 (1972), and at which counsel is
‘necessary to preserve the defendant’s basic right to a fair trial.’” See Tenn. Criminal
Trial Practice § 8:2 (2017-2018 ed.) (citing Coleman v. Alabama, 399 U.S. 1 (1970)).

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        Within 30 days of his plea, the Petitioner filed a motion to withdraw his guilty plea
based on actual innocence and coercion to enter the plea by his attorney. Once the trial
court reviewed the Petitioner’s motion to withdraw guilty plea and determined that it
provided sufficient facts requiring a hearing, counsel should have been appointed or valid
waiver determined because the Sixth Amendment “protect[s] the unaided layman at
critical confrontations with his expert adversary, the government, after the adverse
position of the government and defendant have solidified with respect to a particular
alleged crime.” State v. Downey, 259 S.W.3d 723, 733 (Tenn. 2008) (citation omitted)
(internal quotation marks omitted). The hearing on the motion to withdraw involved
extensive questioning of the Petitioner by the court as well as testimony from the
Petitioner’s attorney during which the Petitioner was obliged to cross-examine without
the benefit of counsel. The trial court did not inquire whether the Petitioner intended to
waive his right to counsel or whether he desired the assistance of appointed counsel. See
State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984) (“The constitutional right to
represent oneself can be asserted, but only after a defendant both knowingly and
intelligently waives the valuable right to assistance of counsel.) The hearing included
introduction of evidence and a legal determination of whether a guilty plea was valid. As
such, it clearly affected the Petitioner’s substantial rights and thus qualified as a critical
stage of the proceedings. Because the hearing was a critical stage of the proceeding
involving the Petitioner’s substantial rights, the trial court was required to advise the
Petitioner of his right to counsel or determine if the right to counsel had been
constitutionally waived by the Petitioner. See Tenn. Rules Crim. Pro. 44.

        My conclusion is bolstered by the courts of Alabama, Florida, Georgia, and
Oklahoma, all of which hold that a post-sentencing motion to withdraw a guilty plea is a
critical stage at which the Sixth Amendment right to counsel attaches. See Ducker v.
State, 986 So. 2d 1224, 1229 (Ala. 2007) (holding that a post-sentencing motion to
withdraw a guilty plea is a critical stage in the proceedings at which the right to counsel
attaches); Tipler v. State, 149 So. 3d 1192, 1194 (Fla. Dist. Ct. App. 2014) (same);
Fortson v. State, 532 S.E.2d 102, 104 (2000) (because the post-sentencing motion to
withdraw hearing filed within 30 days after sentencing included introduction of evidence,
advocacy by the prosecutor, and a determination of whether the guilty plea was valid, it
clearly affected the petitioner’s substantial rights and thus qualified as a critical stage);
Randall v. State, 861 P.2d 314, 316 (Ok. Crim. App. 1993) (“Undoubtedly the prosecutor
is always involved at an evidentiary hearing on an Application to Withdraw Guilty Plea.
Furthermore, witnesses can be called and cross examined, and legal issues are addressed
and argued. Couple this with the fact that the evidentiary hearing is a necessary step in
securing and preserving a defendant’s appeal of right, it appears clear that the hearing is a
‘critical stage’ invoking a defendant’s right to counsel.”); see also State v. Jackson, 874
P.2d 1138, 1142 (Kan. 1994) (holding that post-sentence motion to withdraw guilty plea
critical stage only under certain circumstances); State v. Obley, 798 N.W.2d 151, 157
(Neb. Ct. App. 2011) (holding that the hearing on appellant’s motion to withdraw his plea


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was a critical stage but failing to distinguish between pre-and post-sentencing motions);
Beals v. State, 802 P.2d 2 (Nev. 1990) (same).

       In addition to the above sister-state authority, the United States Supreme Court has
held that the Due Process and Equal Protection clauses require the appointment of
counsel for indigent defendants, convicted on their guilty pleas, who seek access to first-
tier appellate review in state courts. Halbert v. Michigan, 545 U.S. 605, 616-24 (2005);
see Douglas v. California, 372 U.S. 353, 357 (1963) (holding that in first appeals as of
right, States must appoint counsel to represent indigent defendants). Once a State
provides appellate review of criminal convictions, “a State may not ‘bolt the door to
equal justice’ to indigent defendants.” Id. at 610 (quoting Griffin v. Illinois, 351 U.S. 12,
24 (1956) (Frankfurter, J., concurring in judgment)). Because criminal defendants who
enter a guilty plea have a right to counsel when seeking first-tier appellate review in state
courts, it seems counterintuitive that they would not also have a right to counsel, based on
due process and equal protection grounds, when seeking to withdraw a guilty plea
following sentencing in the trial court.

       I find the cases relied upon in the dissent factually distinct in that they spring from
States that do not limit a defendant’s ability to file post-sentence motions to withdraw
guilty pleas to 30 days following entry of judgment. See State v. Peele, 58 S.W.3d 701
(Tenn. 2001) (a trial court’s judgment becomes final 30 days after entry). These States,
unlike Tennessee, permit defendants to file motions to withdraw guilty pleas liberally,
long after their convictions have become final, which appears to be the court’s basis for
denial. See State v. Hartshorn, 235 P.3d 404, 408 (Idaho Ct. App. 2010) (post-judgment
hearing upon a motion to withdraw a guilty plea filed while his appeal was pending from
orders denying a motion to reduce sentence is not a critical stage for purposes of the Sixth
Amendment); State v. Garner, 36 P.3d 346, 356 (Mont. 2001) (a motion to withdraw a
guilty plea filed four years after sentencing and almost three years after the conclusion of
post-conviction proceedings was not a critical stage of the proceedings); State v.
Winston, 19 P.3d 495, 497-99 (Wash Ct. App. 2001) (post-judgment hearing on a motion
to withdraw a guilty plea filed two days after the statutory one-year limit for collateral
attack on such motions was not a critical stage of proceedings for Sixth Amendment
purposes). I also find Gilbert v. Hudson, a memorandum opinion and order, unpersuasive
as it concerned a petition seeking federal habeas corpus relief. Gilbert v. Hudson, No.
1:08 CV 1867, 2009 WL 3246978 (N.D. Ohio, Eastern Division, 2009). Moreover, as to
the substance of the opinion, I disagree based on the authority set forth above.1


        1
         Briefly, a 1983 amendment to former Fed. R. Crim. P. 32(e) stripped away the reference to the
right to withdraw a guilty plea after sentence and provided that at that point a plea can be set aside only
on direct appeal or by collateral attack (i.e. by motion under 28 U.S.C.A. 2255). Pursuant to 18 U.S.C. §
3006A(g), any person “seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title
18 may be furnished representation . . . whenever . . . the interests of justice so require and such person is
financially unable to obtain representation.” Accordingly, although there is no longer a federal analogue

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        Finally, this issue cannot be remedied by the hearing at the post-conviction stage
as intimated by the lead opinion. Although the post-conviction court reviewed this issue
at the hearing, the Petitioner’s Sixth Amendment right to counsel, absent waiver, extends
to the preparation, filing, and consideration of the post-sentencing motion to withdraw.
See Fortson, 532 S.E.2d at 104 (collection of federal and state cases holding that the
Sixth Amendment right to assistance of counsel attaches to the preparation and
presentation of a motion to withdraw a guilty plea); Tipler, 149 So. 3d at 1194 (same).
The success or failure of a post-sentencing motion to withdraw a guilty plea hinges upon
legal intricacies not easily understood by a pro-se petitioner. In my view, a hearing or
“airing out” of the issue at the post-conviction hearing only compounds the initial error
and renders any subsequent relief hollow. Accordingly, because the Petitioner was
deprived of his Sixth Amendment right to counsel during a critical stage of judicial
proceedings, I would reverse the judgment of the post-conviction court and vacate its
order denying relief. I would also reverse and vacate the trial court’s order denying the
Petitioner’s post-sentence motion to withdraw his guilty plea and remand for a new
evidentiary hearing in that matter following the appointment of counsel or constitutional
waiver thereof.



                                                          _______________________________
                                                          CAMILLE R. MCMULLEN, JUDGE




to the more stringent “manifest necessity standard” of our Rule 32(f), federal courts provide counsel in
challenges to post-judgment withdrawal of guilty pleas on direct appeal and post-conviction matters.


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