                                                                                        01/30/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 11, 2017

               STATE OF TENNESSEE v. DEVIN WHITESIDE

                 Appeal from the Circuit Court for Madison County
                          No. 14-644 Kyle Atkins, Judge
                     ___________________________________

                           No. W2016-00671-CCA-R3-CD
                       ___________________________________


The Appellant, Devin Whiteside, pled guilty to two counts of aggravated robbery, and he
received concurrent sentences of eight years in the Tennessee Department of Correction.
Thereafter, the Appellant filed a motion to withdraw his guilty pleas, alleging that after
the plea hearing, he obtained information relating to the testimony of two of the State’s
witnesses. He maintained that, if he had been provided the information prior to the plea,
he would not have pled guilty. The trial court denied the motion, and the Appellant
appeals. Upon review, we affirm the judgment of the trial court.

  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 D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Joshua B. Dougan, Jackson, Tennessee, for the Appellant, Devin Whiteside.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; James G. Woodall, District Attorney General; and Aaron J. Chaplin,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       On December 1, 2014, the Madison County Grand Jury returned a multi-count
indictment charging the Appellant and his co-defendant, Gerald Hampton, with two
counts of aggravated robbery and three counts of identity theft. At the November 30,
2015 guilty plea hearing, the Appellant assured the trial court that he understood the
charges he was facing and that he understood the proceedings. The trial court informed
the Appellant that by pleading guilty, he was waiving certain rights, including his rights
to a trial by jury, to confront witnesses, to compel witnesses, and to appeal his
convictions. The trial court asked if the Appellant understood the rights he was waiving.
Instead of answering the trial court’s question, the Appellant asked, “How – how long do
I have to withdraw this plea?” The trial court responded, “[I]f you’re already talking
about withdrawing, it makes me think that you don’t want to go forward.” The Appellant
explained that he wanted to know if he could change his mind and go to trial after he
signed the plea agreement. The trial court cautioned that if the Appellant pled guilty, it
was “[v]ery unlikely that’s going to happen.” The Appellant said that he had no more
questions.

       The trial court agreed to stop the proceeding if the Appellant had other questions
in order to clear up any misunderstandings. The Appellant then acknowledged that he
understood the rights he was waiving by entering his guilty pleas. The Appellant asserted
that he was entering his guilty pleas “freely and voluntarily”; that he was not being
threatened, coerced, forced, or pressured into pleading guilty; and that he thought
pleading guilty was the “best course of action” for him.

        The trial court asked if the Appellant had any questions for his attorney or for the
trial court, and the Appellant responded, “Nothing other than that withdraw the plea.”
The court stated that the Appellant’s questions about withdrawing the plea gave the court
concerns about allowing the Appellant to plead guilty. The court again warned the
Appellant that if he pled guilty, his “chances of withdrawing it [were] very slim.” The
Appellant said that he understood. The court asked if the Appellant wanted to plead
guilty then immediately file a motion to withdraw the plea. The Appellant said that he
did not intend to file a motion “immediately” but that he wanted to know “how long [he]
had.” The trial court asked if the Appellant needed more time to consider the plea, and
the Appellant said yes. The trial court noted that the Appellant’s case was set for trial the
following Friday and allowed the Appellant to wait until then to plead guilty or to
proceed to trial.

       However, later on the day of the plea, counsel told the court that she and the
Appellant had a “miscommunication” earlier and that the Appellant “understands where
we are now.” Counsel explained that the Appellant wanted to accept the plea but that he
also thought counsel wanted him to accept the plea because she did not want to go to
trial. Counsel said that after she and the Appellant discussed the matter again, the
Appellant wanted to go forward with the guilty plea.

      The trial court reiterated the advice and cautions it had given the Appellant
previously then asked, “Did you clear up the misunderstanding you had about
withdrawing your guilty plea?” The Appellant responded, “Yes, sir, I did.” The
Appellant asserted that he had no further questions for the trial court. The Appellant
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agreed to stipulate to the facts stated in the indictment. He further agreed that he was
accepting concurrent sentences of eight years for each conviction with release eligibility
after serving eighty-five percent of the sentences, that the sentences would run
consecutively to two previously imposed sentences, and that the identity theft charges
were to be dismissed.

       On December 30, 2015, the Appellant filed a pro se motion to withdraw his guilty
pleas. The Appellant alleged that “due to coercion, duress and fear from [counsel], he did
not knowingly and voluntarily enter[] a plea of guilty.” The Appellant further alleged
that counsel was ineffective, that the Appellant was innocent of the crimes, and that he
should be allowed to withdraw his guilty pleas.

        On February 29, 2016, the trial court conducted a hearing on the motion, during
which the Appellant was represented by another attorney. The Appellant testified that his
family had hired counsel around August 2014. The Appellant was indicted in December
2014. The Appellant said that counsel did not talk with him much and that she told him
to let her handle the case. Counsel told the Appellant that the State’s case was weak and
that she would do her best at trial. The Appellant asked her to file pretrial motions, but
no motions were filed.

       The Appellant agreed that he decided to plead guilty based upon his knowledge of
the case at the time of the plea hearing. The Appellant said that after the plea, he
received a copy of the statement made by Alexis Blue,1 who was not indicted as a co-
defendant but used one of the stolen credit cards with the Appellant. The Appellant
maintained that in the statement, Blue “clearly separated the time from . . . the aggravated
robbery that I allegedly committed and the identity theft that I committed.” The
Appellant acknowledged that he was aware of Blue’s statement prior to the plea hearing
because counsel had read it to him, he complained that she had not given him a copy to
“read it, diagnose it.”

       The Appellant also said that on November 12, 2014, Investigator Aubrey
Richardson, who was the lead investigator in the Appellant’s case, testified at a hearing to
revoke the Appellant’s parole. The Appellant acknowledged that he was at the hearing
and that he heard the investigator’s testimony. However, he complained that he did not
have a written copy of the testimony to review until after the November 2015 plea
hearing. The Appellant said that if he had been given a written copy of Investigator
Richardson’s testimony and Blue’s statement prior to the plea hearing, he would not have
pled guilty and would have gone to trial.



       1
           In the record, this individual is referred to occasionally as Alexis Hawkins.
                                                     -3-
       On cross-examination, the Appellant said that he was twenty-seven years old and
that he had pled guilty on multiple occasions. He acknowledged that he was “pretty
familiar with the system.”

       The Appellant conceded that he admitted to police that he used a credit card that
was stolen during one of the aggravated robberies. The same credit card was also the
subject of one of the identity theft charges. The Appellant conceded that the State had a
security video that showed Blue and him using the stolen credit card.

       The Appellant said that the trial court reviewed the charges and his rights at the
guilty plea hearing. The Appellant agreed that counsel provided him with copies of the
discovery and that he was satisfied with her representation at the time of the guilty plea
hearing.

        Counsel testified that she was retained by the Appellant’s family in the summer of
2014 and that the Appellant was indicted in December 2014. She obtained discovery and
mailed a copy to the Appellant. Counsel and the Appellant discussed the case. He asked
her to file pretrial motions, but she did not think any motions needed to be filed. Initially,
counsel thought that the case would be “open and shut” because the State had difficulty
obtaining witnesses. However, after the State obtained their witnesses, counsel advised
the Appellant that the case would not be as easy to get dismissed.

       Counsel said that she had known about Blue since the beginning of the case. She
noted that Blue was not indicted with the Appellant and Hampton because the State had
been unable to locate her until 2015. On November 20, 2015, Blue gave her statement to
Investigator Richardson. Counsel received Blue’s statement a couple of weeks before the
Appellant pled guilty and learned that Blue was going to testify against the Appellant.
Counsel said that Blue was not involved in the aggravated robberies and that she could
only testify about the identity thefts. Counsel said that Blue’s statement was consistent
with the other information provided in discovery.

      Counsel acknowledged that she did not provide a copy of the statement to the
Appellant; however, she read the statement to him, told him how Blue would testify, and
advised him about how the case should proceed. Counsel asserted that the conversation
about Blue’s statement occurred before the Appellant pled guilty.

       Counsel said that she and the Appellant reviewed the plea agreement in “great
detail” and that she explained his rights to him.

       On cross-examination, counsel explained that she was unable to mail the
Appellant a copy of Blue’s statement because he was incarcerated, repeatedly moved to
different prison facilities, and she often did not know to which location to mail the
                                            -4-
information. Counsel and the Appellant discussed the identity theft charges and
determined that the State’s evidence on those charges was “slightly weak.” Because the
identity theft charges were dismissed pursuant to the plea agreement, counsel opined that
Blue’s “statement really . . . didn’t hurt [the Appellant] at all.” On the day of the plea
hearing, counsel asked if the Appellant wanted a copy of Blue’s statement. He said that
he did not because he knew the substance of the statement and agreed it would not hurt
his case.

       The Appellant testified in rebuttal that on November 30, 2015, he was in the
Madison County Jail when he and counsel discussed the plea agreement. He
acknowledged that they also discussed Blue’s statement. The Appellant said that he
asked counsel for a copy of the statement but that he never received it. He said that if he
had received a copy, he “could have went through it and diagnosed it all myself and kind
of been – had a clear mind of what I needed to do.”

       On cross-examination, the Appellant said that counsel read Blue’s statement to
him while he was in jail and again just before he pled guilty. The Appellant told counsel
about Investigator Richardson’s parole hearing testimony but never asked for a written
copy of it.

       The State recalled counsel, who said that the Appellant never told her about
Investigator Richardson’s parole hearing testimony and that she would have researched it
if she had known about it. Counsel knew the Appellant had a parole hearing, and they
had talked about Investigator Richardson, but they never discussed the specifics of the
parole hearing.

        Counsel said that she first told the Appellant about Blue’s statement during a
telephone conversation. Shortly thereafter, they met at the jail and “went over it in
detail.” Counsel said, “I read it to him, he read it himself, he had it in his hand.” She
acknowledged that she “didn’t think to bring a copy of it with me to the jail that day.”
She told him that if he pled guilty, he would not need a written copy of the statement but
that if he chose to go to trial, she would give him a copy. They discussed the statement
again on the day of the plea hearing.

       At the conclusion of the hearing, the trial court noted that during the guilty plea
hearing, the court reviewed the guilty plea procedure with the Appellant twice, and the
Appellant assured the court that he understood, that he was pleading guilty freely and
voluntarily, that he had not been forced or pressured into pleading guilty, that he
reviewed the case with counsel, and that she had answered all of his questions. The trial
court said the Appellant “didn’t mention anything at the plea [hearing] about a statement
or motions that weren’t filed or any testimony of [Investigator] Richardson.” The
Appellant admitted the facts alleged in the indictment.
                                           -5-
       The trial court found that Investigator Richardson’s testimony was not new
information to the Appellant, noting that the testimony occurred approximately one year
prior to the plea hearing and that the Appellant heard the testimony when it occurred.
The court also found that Blue’s statement would not have made a difference in the
Appellant’s decision to plead guilty to aggravated robbery and observed that the identity
theft charges were dismissed as part of the plea agreement. Further, the trial court
accredited the testimony of counsel. The trial court held that the Appellant failed to
prove that manifest injustice required that he be allowed to withdraw his guilty pleas.

      On appeal, the Appellant challenges the trial court’s denial of his motion to
withdraw his guilty plea.

                                       II. Analysis

       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
             S. Ct. 1194, 10 L. Ed. 2d 215 (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.

                                           -6-
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.

        On appeal, the Appellant contends that counsel’s failure to obtain a written copy
of Investigator Richardson’s testimony at the Appellant’s parole revocation hearing
“caused [him] to enter a plea based on incomplete information.” The Appellant further
contends that counsel’s failure to provide him with a copy of Blue’s statement prior to his
pleas deprived him of the ability to “adequately review[] the statement and analyze[] its
impact on his case.” The Appellant maintains, therefore, that his “plea was involuntary
because it was based on incomplete information.” The State asserts that the Appellant
knew all of the information relevant to his case prior to his guilty plea hearing and that he
failed to prove that he should be allowed to withdraw his guilty pleas to correct manifest
injustice. We agree with the State.

        The trial court found that the Appellant knew about Investigator Richardson’s
testimony, noting that the Appellant was present at the parole revocation hearing at which
the investigator testified. The hearing occurred approximately one year before the
Appellant pled guilty. Further, the trial court accredited counsel’s testimony that the
Appellant did not tell her about Investigator Richardson’s parole hearing testimony or ask
her to obtain a written copy of the testimony. The trial court also accredited counsel’s
testimony that she reviewed Blue’s statement with the Appellant on two occasions before
the day of the Appellant’s guilty plea hearing and again on the day of the hearing. The
trial court further accredited counsel’s assertion that the statement concerned only the
identity theft charges, which were dismissed pursuant to the plea agreement. Therefore,
the Appellant failed to establish manifest injustice. Moreover, the Appellant did not
submit a copy of Blue’s statement or a copy of Investigator Richardson’s testimony as
exhibits; therefore, any benefit this evidence may have offered is speculative. Cf. Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The record contains no evidence
to suggest the trial court abused its discretion in denying the Appellant’s motion to
withdraw his guilty pleas.

                                     III. Conclusion

       The judgment of the trial court is affirmed.



                                          ____________________________________
                                          NORMA MCGEE OGLE, JUDGE
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