                                                                                       08/30/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                                 May 1, 2018 Session

         STATE OF TENNESSEE v. HOUSTON THOMAS WILKES

                 Appeal from the Circuit Court for Carroll County
                   No. 16-CR-64       Donald E. Parish, Judge
                    ___________________________________

                          No. W2017-00798-CCA-R3-CD
                      ___________________________________


The Defendant, Houston Thomas Wilkes, appeals the trial court’s denial of his motion to
withdraw his guilty plea, arguing that trial counsel coerced him into entering the guilty
plea and that the State withheld potentially exculpatory evidence, such that his plea was
not knowing and voluntary. He further argues that these circumstances led to manifest
injustice, and the trial court therefore abused its discretion in refusing to allow the
withdrawal of his guilty plea. After review, we affirm the denial of the motion to
withdraw his guilty plea.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which TIMOTHY L. EASTER and
J. ROSS DYER, JJ., joined.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Houston Thomas
Wilkes.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Lisa Miller,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                        FACTS


      The Carroll County Grand Jury returned a thirteen-count indictment against the
Defendant on May 2, 2016. The indictment consisted of three counts of evading arrest;
three counts of driving while his license was cancelled, suspended, or revoked; two
counts of possession of drug paraphernalia; two counts of aggravated assault; reckless
endangerment; possession of methamphetamine with the intent to deliver; and unlawful
possession of a weapon. The State then filed a discovery list and a notice of intent to
seek enhanced punishment. The Defendant entered into a plea deal with the State where
he agreed to plead guilty as a Range II offender to two counts of evading arrest; one
count of driving while his license was cancelled, suspended, or revoked; two counts of
aggravated assault; and one count of possession of methamphetamine with the intent to
deliver in exchange for an effective ten-year sentence to be served in the Department of
Correction with 146 days of jail credit.

        The Defendant filed a request for acceptance of plea of guilty and a petition to
waive trial by jury and waive an appeal on July 15, 2016. He signed the request, which
stated that he had discussed the indictment with his attorney and was not forced to plead
guilty. The trial court heard the request the same day and questioned the Defendant
regarding the circumstances of his plea. The Defendant affirmed that he had “ample
opportunity” to discuss his plea with his attorney and was satisfied with his attorney’s
advice. He further affirmed that he was pleading guilty of his own free will, was not
threatened or forced, and understood the rights he forfeited by pleading guilty. The court
accordingly accepted his plea, finding he made it freely and voluntarily, and sentenced
him to the negotiated ten-year confinement. Judgment was entered on August 10, 2016,
and on August 15, 2016, the Defendant filed a motion to withdraw his guilty plea, stating
only that he would support the motion with testimony at the motion hearing. The
Defendant subsequently requested and was granted additional time to file an amended
pleading, though no such pleading was ever filed.

        Although the State filed a motion to dismiss the Defendant’s motion to withdraw
on the grounds that it was facially invalid, the court conducted a hearing on the
Defendant’s motion on February 17, 2017. At the hearing, the Defendant testified that he
“felt like [he] was coerced” into accepting the plea agreement because trial counsel did
not visit him in jail to discuss the plea. He further testified that trial counsel told him and
his wife that the State was going to give him thirty years if he did not agree to ten years,
causing his wife to cry and beg the Defendant to accept the plea deal. The Defendant
stated that trial counsel “coerced [him] into signing the ten with fear, [be]cause he told
[him] [he] was going to get thirty years” if he did not accept the plea deal. On cross-
examination, however, the Defendant again stated that he entered his guilty plea freely
and voluntarily. The Defendant further testified on cross-examination that although trial
counsel did not tell him “what the evidence was” against him, he still had not reviewed
the evidence at the time of the hearing and did not need to review it because “half of the
charges . . . wasn’t even [him].”

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       The Defendant’s wife, Brandy Wilkes, also testified at the hearing that trial
counsel told her the Defendant would be sentenced to thirty years if he did not accept the
ten-year plea deal. Mrs. Wilkes echoed the Defendant’s testimony, stating that trial
counsel did not share with her the State’s evidence, that the Defendant was innocent of
some charges, and that the possibility of the Defendant serving thirty years in
confinement scared her.

       At the close of the hearing, the trial court declined to allow the Defendant to
withdraw his guilty plea, stating that the motion was “deficient on its face” and he had
presented “no legal basis” at the hearing to justify withdrawing the guilty plea. The court
noted that without the plea agreement, the Defendant could have been sentenced to
“significant” jail time based on the seriousness of the original thirteen charges.



                                       ANALYSIS


       On appeal, the Defendant argues that he should have been allowed to withdraw his
guilty plea because it was not freely and voluntarily given, further arguing that he was
pressured into entering the plea agreement, was not provided exculpatory discovery, and
was innocent of some charges. The Defendant argues that these circumstances gave way
to manifest injustice, and the trial court therefore abused its discretion in denying his
motion to withdraw his guilty plea. The State responds that the Defendant’s motion to
withdraw his guilty plea failed to state with particularity the grounds upon which it was
made, and was therefore properly denied. Further, the State argues that trial counsel
relaying the State’s intent to seek within-range sentencing is not coercion, and the
Defendant stated both at his plea colloquy and at the motion hearing that he was not
coerced. After review, we agree with the State.

        Before a guilty plea may be accepted, there must be an affirmative showing in the
trial court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S.
238, 242 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a
showing that the defendant was made aware of the significant consequences of the plea.
State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340).
A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The
trial court must determine if the guilty plea is “knowing” by questioning the defendant to
make sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d
at 542; Blankenship, 858 S.W.2d at 904.


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        Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of
circumstantial factors in making this determination. Blankenship, 858 S.W.2d at 904.
These factors include: (1) the defendant’s relative intelligence; (2) his familiarity with
criminal proceedings; (3) whether he was represented by competent counsel and had the
opportunity to confer with counsel about alternatives; (4) the advice of counsel and the
court about the charges against him and the penalty to be imposed; and (5) the
defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in
a jury trial. Id. at 904-05.

        Tennessee Rule of Criminal Procedure 32(f) provides that a trial court may grant a
motion to withdraw a guilty plea “for any fair and just reason” before sentence is
imposed, or to correct manifest injustice after the sentence is imposed but before the
judgment becomes final. Granting a motion to withdraw a guilty plea to correct manifest
injustice may be warranted where (1) the plea was entered as a result of fear, fraud, or
misunderstanding; (2) the State failed to disclose exculpatory evidence as required by
Brady v. Maryland, 373 U.S. 83 (1963), and this failure influenced the entry of the plea;
(3) the plea was not knowingly, understandingly, and voluntarily entered; or (4) the
defendant was denied the effective assistance of counsel in connection with entering the
plea. State v. Crowe, 168 S.W.3d 731, 742 (Tenn. 2005). The defendant has the burden
of establishing that the plea of guilty should be withdrawn to prevent “manifest
injustice.” State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). Further, the
motion must state with particularity the grounds upon which it is made. Tenn. R. Crim.
P. 47(c)(1). The decision whether to grant a motion to withdraw a plea of guilty rests in
the sound discretion of the trial court and will not be reversed absent an abuse of
discretion. State v. Drake, 720 S.W.2d 798, 799 (Tenn. Crim. App. 1986).

        As we have set out, the Defendant stated at the plea colloquy that he had ample
opportunity to discuss the plea agreement with his attorney, was satisfied with his advice,
and was not coerced or threatened into entering the plea. He echoed the same sentiment
at the subsequent hearing on his motion to withdraw his guilty plea. At the plea colloquy,
the trial court thoroughly questioned the Defendant, who affirmed that he understood the
terms of the agreement and the repercussions of entering a guilty plea, including waiving
his right to trial by jury. The trial court accordingly accepted his plea as freely and
voluntarily given.

       The Defendant argues that he suffered manifest injustice as a result of the trial
court denying his motion to withdraw his guilty plea. Although the Defendant concedes
that he bears the burden of establishing sufficient grounds to withdraw his plea and was
granted time to amend his motion, the motion states in its entirety: “Comes the Defendant
and requests the Court to allow him to withdraw his guilty plea. In support the Defendant
                                           -4-
will submit testimony at the hearing of his motion.” The trial court therefore found the
motion deficient on its face, though the court still allowed the Defendant the opportunity
to establish sufficient grounds to withdraw at the motion hearing.

        To demonstrate manifest injustice, the Defendant further argues that he
involuntarily entered the plea because he was fearful, the State did not disclose
potentially exculpatory evidence, and trial counsel was ineffective in assisting him with
the plea agreement. The Defendant bears the burden of establishing manifest injustice.
See Turner, 919 S.W.2d at 355. He argues that trial counsel coerced him into accepting
the plea agreement by telling him of the State’s intent to seek a thirty-year sentence if he
decided not to accept the plea agreement. However, he fails to address that the State filed
a notice of intent to seek enhanced punishment and notice of enhancing factors before the
Defendant ever spoke with trial counsel about the plea agreement. The Defendant further
testified at the motion hearing that his wife begged him to enter the plea agreement after
learning of the jail time he could otherwise face, and he affirmed both at the plea
colloquy and at the motion hearing that he entered the agreement voluntarily. As the trial
court noted, the Defendant could potentially have received significant, consecutive
sentences if he had chosen to go to trial. There is no evidence in the record to suggest
that trial counsel explaining the State’s decision to seek a thirty-year sentence amounted
to coercion.

        The Defendant also argues that the State withheld potentially exculpatory
discovery and he would not have entered a guilty plea had he known what evidence the
State had against him. However, the Defendant again fails to address that the State filed
a discovery and exhibit list, which listed the evidence the State possessed and stated that
it was available for review at the district attorney’s office. Further, though the Defendant
stated that he knew the State did not have enough evidence to convict him because he
was innocent of some of the charges, he testified at the motion hearing that he still had
not examined the evidence against him. He further implies that his guilty plea was
involuntary per se based on this claim of innocence. However, as we have set out, the
Defendant stated at the plea colloquy and testified again at the motion hearing that he had
sufficient opportunity to speak with his trial counsel, had not been coerced, and had
entered his plea freely and voluntarily.

         In deciding to deny the Defendant’s motion to withdraw his guilty plea, the court
found:

         There’s no indication that the State failed to disclose any information to him,
         and really, the Court can’t say that there’s any indication that [the Defendant]
         was made to make a mistake here, or to be in fear, or that there’s been a fraud
         practiced upon him. He certainly has had a change of mind . . . but that’s not
                                             -5-
      sufficient to justify withdrawing a plea of guilty . . . there’s just not a legal
      basis for you to withdraw the plea of guilty[.]

        The Defendant stated both at the plea colloquy and at the motion hearing that he
entered his plea freely and voluntarily after conferring with trial counsel. His motion to
withdraw his guilty plea was deficient on its face, and he presented no legal or factual
basis at the motion hearing to justify withdrawing his guilty plea. There is no evidence in
the record to suggest coercion or withheld evidence; the Defendant thus failed to meet his
burden of demonstrating that he suffered a manifest injustice. The record easily supports
the determination that a manifest injustice has not occurred, and the Defendant is not
entitled to withdraw his guilty plea. Therefore, the trial court clearly acted within its
discretion in deciding to deny the Defendant’s motion to withdraw his guilty plea.


                                    CONCLUSION


        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.

                                             ____________________________________
                                            ALAN E. GLENN, JUDGE




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