                                                                                     07/19/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs June 6, 2017

            STATE OF TENNESSEE v. JASON WILLIAM KIRK

                Appeal from the Circuit Court for Madison County
                         No. 15-491   Kyle Atkins, Judge



                           No. W2016-01940-CCA-R3-CD



The Appellant, Jason William Kirk, appeals the Madison County Circuit Court’s denial
of his motion to withdraw his guilty pleas to theft of property valued $10,000 or more
and evading arrest and resulting effective fifteen-year sentence. Based upon the record
and the parties’ briefs, we affirm the trial court’s denial of the motion.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Joshua B. Dougan, Jackson, Tennessee, for the appellant, Jason William Kirk.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; James G. Woodall, District Attorney General; and Ben Mayo,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

                               I. Factual Background

       In November 2015, the Madison County Grand Jury indicted the Appellant for
theft of property valued $10,000 or more but less than $60,000, a Class C felony, and
evading arrest, a Class E felony. On February 8, 2016, he pled guilty to the charges.
According to the written plea agreement, he was to receive a fifteen-year sentence for
theft and a six-year sentence for evading arrest with the sentences to be served
concurrently with each other but consecutively to any prior sentences. The Appellant
also was to serve the sentences at sixty percent release eligibility.
        At the guilty plea hearing, the State advised the trial court that the Appellant was a
career offender. The court asked if the Appellant understood that, as a career offender, he
was pleading guilty to theft of property valued over $10,000 in exchange for a fifteen-
year sentence “at sixty percent” and evading arrest in exchange for a six-year sentence “at
sixty percent.” The Appellant answered yes to both questions. Defense counsel
stipulated to the facts in the indictment, which showed that on June 30, 2015, the
Appellant stole a vehicle from Ford of Murfreesboro and fled from police officers when
they tried to stop him. The trial court accepted the Appellant’s guilty pleas.1

       The Appellant subsequently filed a pro se motion to withdraw his pleas. Although
the motion is not in the appellate record, the State’s April 1, 2016 response is included
and reflects that the Appellant alleged in his motion that trial counsel advised him that he
could not be considered a career offender because he did not have the required number of
prior convictions.2 The Appellant also alleged in his motion that he had only four prior
convictions. However, the State listed in its response twenty-two prior felony
convictions in Tennessee and three prior felony convictions in Utah that it claimed
qualified the Appellant as a career offender. The State asserted in the response that it
disclosed the prior convictions to the Appellant before he entered his guilty pleas.

       The trial court held a hearing on the motion. At the outset of the hearing, the court
asked if the motion “was just going to be a Motion to Withdraw the Guilty Plea,” and
defense counsel answered that the Appellant had “decided not to pursue a post-conviction
proceeding at this point.”

       The Appellant testified that he was in prison while awaiting trial in this case and
that he worked in the prison’s legal library. Trial counsel met with him one time in
prison before trial. During the meeting, trial counsel told him that she had not received a
plea offer from the State and that “[they] were going to have to see what happened when
[they] got to court.” At court, trial counsel met with the Appellant in the inmate waiting
area and told him about a plea offer from the State in which he would receive a fifteen-
year sentence “at sixty percent.” She also told him the offer was “a one-time only deal.”
If he did not accept the offer that day, he was going to have to go to trial and “be hit with
the max of twenty-six years.” The Appellant asked trial counsel why the offer was “a
one-time thing,” and she told him that he was “being enhanced.” The Appellant said he
was very surprised by the offer because he did not think he should receive that much

       1
          Although the Appellant pled guilty on February 8, the judgments of conviction were not entered
until March 4, 2016.
        2
          The Appellant notes in his brief that the motion is not in the appellate record. It is the
Appellant’s duty to prepare a record which conveys a fair, accurate, and complete record on appeal to
enable meaningful appellate review. See Tenn. R. App. P. 24(a). The Appellant should have requested
permission to supplement the record with the motion pursuant to Rule 24(e), Tennessee Rules of
Appellate Procedure.

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“time.”

        The Appellant testified that he asked trial counsel about the basis for his career
offender classification but that she “wasn’t really able to give [him] much information on
what it was based off of.” He said he never saw a notice of enhanced punishment from
the State. Had the State filed a notice, the Appellant would have requested that “we look
into it” because he did not think he was a career offender. The Appellant said that he had
about twenty-five minutes to decide whether to accept the State’s offer and that “if I
would have had more time to research it I could have argued more the issues at the time
before I took the plea.”

       The Appellant testified that “one of [his] old charges had three aggravated
assaults.” After he filed his motion to withdraw his guilty pleas, he learned from the
State’s response that the State “split those up into three separate aggravated assaults and
three separate convictions.” He explained as follows:

              In -- in 2003 I was in a high-speed chase. And in the high-
              speed chase I come in contact with a couple [of] sheriff’s
              cars.

                     And there was no injuries to anybody, but I guess
              based on the law I was charged with [an] aggravated assault
              for every time I come in contact with a sheriff car; you know,
              them ramming me, me, you know -- through the incident of
              stopping me. And that has -- There was three charges, but I
              was -- They were all ran concurrent to each other.

        On cross-examination, the Appellant testified that despite his numerous prior
convictions and experience in court, he panicked and accepted the State’s plea offer in
this case because he had never faced that amount of time in prison. He acknowledged
that he discussed his prior convictions with trial counsel but said that she “never brought
up career offender” prior to his guilty pleas. The State showed the Appellant his guilty
plea form. He acknowledged signing the form and that the form stated he was agreeing
to fifteen-year and six-year sentences to be served at sixty percent, which were career
offender sentences. He also acknowledged that he received a benefit to his guilty pleas;
had he gone to trial and been convicted, he could have received consecutive sentencing
for an effective sentence of twenty-one years.

        On redirect examination, the Appellant testified that the State’s list of his offenses
in its response to his motion was “long” but that “a lot of those offenses fall under one
conviction.” On recross-examination, the State asked him to explain, and he testified that
if multiple convictions occurred within the same twenty-four-hour period, they counted
as one conviction for sentencing purposes unless they involved an immediate threat to

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life. He acknowledged that the three aggravated assaults involved bodily injury to police
officers and that they did not fall under the twenty-four-hour rule.

        At the conclusion of the Appellant’s testimony, the trial court reviewed his prior
convictions with him, one-by-one. The Appellant acknowledged that the convictions
listed in the State’s response were correct.

       Christie Hopper testified for the State that she represented the Appellant in this
case and that she discussed his prior criminal history and whether he might be a career
offender with him. The State did not file a notice to seek enhanced punishment.
However, the Appellant’s prior convictions were in the discovery materials and were part
of plea negotiations with the State. Trial counsel acknowledged that the Appellant knew
he was pleading guilty as a career offender.

       On cross-examination, trial counsel testified that the Appellant would have
received “a lower sentence” if he had been sentenced as a Range II or Range III offender
instead of a career offender. She acknowledged that the State was required to file a
notice to seek enhanced punishment at least ten days before trial but that the State did not
do so here. Defense counsel asked, “[If the Appellant had accepted a blind plea, would]
the Court have been limited to sentencing him as a Range I offender because of the
absence of enhancement notice?” Trial counsel replied, “I cannot answer that.” On
redirect examination, trial counsel testified that she would not have recommended that
the Appellant accept a blind plea in this case.

       The trial court noted that the Appellant was “obviously well-versed in the criminal
justice system” when he entered his guilty pleas and found that he failed to show
“manifest injustice” by his pleas. The court found trial counsel credible and noted that
she said she went over the Appellant’s criminal history and career offender status with
him. The court found the Appellant not credible and stated that the Appellant
“understood everything that was going on during the course of the plea negotiations.”
The court concluded that the Appellant had enough prior felonies to be considered a
career offender and that, in any event, he failed to demonstrate prejudice because he
received a fifteen-year sentence instead of a twenty-one-year sentence. The court denied
the Appellant’s motion to withdraw his guilty pleas.

                                       II. Analysis

       The Appellant contends that the trial court erred by denying his motion to set aside
his guilty pleas. He contends that he suffered manifest injustice because trial counsel
failed to advise him adequately about his being a career offender. He also contends,
without any explanation, that “his plea was entered through fraud because some of his
convictions should have counted as only one offense for sentencing purposes because
they were executed during the ‘continuation of a crime.’”

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       Generally, a guilty plea cannot be withdrawn as a matter of right. State v. Mellon,
118 S.W.3d 340, 345 (Tenn. 2003). Nevertheless, Rule 32(f) of the Tennessee Rules of
Criminal Procedure provides that “[b]efore sentence is imposed, the court may grant a
motion to withdraw a guilty plea for any fair and just reason.” Tenn. R. Crim. P.
32(f)(1). However, “[a]fter sentence is imposed but before the judgment becomes final,
the court may set aside the judgment of conviction and permit the defendant to withdraw
the plea to correct manifest injustice.” Tenn. R. Crim. P. 32(f)(2); see also State v.
Green, 106 S.W.3d 646, 650 (Tenn. 2003). The decision to allow a defendant to
withdraw a plea is a matter addressed to the sound discretion of the trial court. State v.
Crowe, 168 S.W.3d 731, 740 (Tenn. 2005).

        In the instant case, the Appellant did not indicate a desire to withdraw his pleas
until after he was sentenced. Therefore, he was entitled to withdraw his guilty pleas only
to correct manifest injustice. Rule 32 does not provide a definition of manifest injustice.
Crowe, 168 S.W.3d 741-42. Regardless, our courts have determined that

              [w]ithdrawal to correct manifest injustice is warranted where:
              (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, 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.

State v. Virgil, 256 S.W.3d 235, 240 (Tenn. Crim. App. 2008); see also State v. Turner,
919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). 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.” Crowe, 168
S.W.3d at 743.

        The record reflects that at the guilty plea hearing, the trial court advised the
Appellant that he was being sentenced as a career offender, that he would receive
sentences of fifteen years for theft and six years for evading arrest, and that he would
serve both sentences at sixty percent release eligibility. See Tenn. Code Ann. § 40-35-
108(c) (providing that a career offender must serve the maximum punishment in Range
III): Tenn. Code Ann. § 40-35-112(c)(3), (5) (providing that the maximum punishment in
Range III for a Class C felony is fifteen years and for a Class E felony is six years); Tenn.
Code Ann. § 40-35-501(f) (providing that a career offender does not become eligible for
release until serving sixty percent of the sentence). The court asked if the Appellant

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understood, and he said yes. Moreover, the Appellant testified at the hearing on his
motion to withdraw his pleas that trial counsel told him the State’s offer was for fifteen
years to be served at sixty percent. Thus, we agree with the trial court that the Appellant
has failed to demonstrate manifest injustice by his guilty pleas.

       Next, we turn to the Appellant’s claim that he did not have enough convictions to
be considered a career offender. Relevant to this case, a defendant is a career offender if
the defendant’s conviction offense is a Class A, B, or C felony and the defendant has any
combination of six or more Class A, B or C prior felony convictions, or the defendant’s
conviction offense is a Class D or E felony, and the defendant has at least six prior felony
convictions of any classification. Tenn. Code Ann. § 40-35-108(a)(1), (3). Convictions
for multiple felonies committed within the same twenty-four-hour period constitute one
conviction for the purpose of determining prior convictions unless the statutory elements
for the offenses include serious bodily injury, bodily injury, threatened serious bodily
injury, or threatened bodily injury to the victim or victims. Tenn. Code Ann. § 40-35-
108(b)(4).

       The Appellant acknowledged at the hearing that the State’s list of his prior
convictions was correct. According to the list, the Appellant committed eight felonies in
Tennessee on January 18, 2003, two felonies on April 29, 2007, three felonies on January
17, 2009, one felony on January 23, 2009, and four felonies on February 1, 2014. At
least one of the felonies on each date was a Class C felony. Moreover, all three of the
aggravated assaults the Appellant committed on January 18, 2003, were Class C felonies
in which a statutory element of the offense was serious bodily injury. See Tenn. Code
Ann. § 39-13-102(a)(1)(A) (2003). Therefore, those offenses are considered separate
convictions. In sum, the Appellant has more than enough prior convictions to be
considered a career offender. Although he maintains on appeal that he did not have
enough prior convictions for career offender classification, he has failed to offer any
proof of that claim. Thus, we conclude that the trial court did not abuse its discretion by
denying his motion.

                                     III. Conclusion

      Based upon the record and the parties’ briefs, we affirm the trial court’s denial of
the Appellant’s motion to withdraw his guilty pleas.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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