Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 14, 2015
Appeal from the Circuit Court for Rutherford County No. F69191C Mitchell Keith Siskin, Judge
John C. Taylor, Murfreesboro, Tennessee, for the appellant, Marcus Anthony Robey.
Herbert H. Slatery III, Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Jennings Jones and Shawn Puckett, Assistant District Attorneys General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
The indictment is not in the record but from other documents and from statements in the transcripts it is apparent that Defendant was charged in a multiple-count indictment with aggravated robbery, evading arrest, criminal impersonation, and possession of a handgun by a person who has a prior felony conviction for an offense involving use or attempted use of force, violence, or a deadly weapon ("firearm charge"). On August 12, 2013, Defendant pled guilty to evading arrest and criminal impersonation charges prior to going to trial on the other two charges. Bifurcated proceedings were ordered, and Defendant was tried by the jury solely on the aggravated robbery charge first. The jury returned a verdict of guilty as charged. The trial for the firearm charge began shortly thereafter. The State presented its proof, and Defendant's motion for judgment of acquittal was denied. A recess was taken, and when the court proceedings resumed it was announced that a negotiated plea agreement had been reached by the parties.
Pursuant to the agreement, Defendant pled guilty as charged to the firearm charge, a Class C felony, and agreed to a Range II sentence of fifteen years as a career offender. Also, pursuant to the agreement, the fifteen-year sentence was ordered to be served concurrently with the sentence imposed for the aggravated robbery conviction. In exchange, Defendant waived his right to all appeals on all charges included in the indictment.
The transcript of the guilty plea taken and accepted on August 15, 2013, and the written petition to enter guilty plea to the firearm charge, signed by Defendant, are exhibits in the record. On September 4, 2013, Defendant filed a pro se motion to withdraw his guilty plea to the firearm charge. He alleged that at the time of the guilty plea he was "not in [his] right frame of mind, " that he did not understand he was losing the right to appeal his aggravated robbery conviction, and that he "made a mistake with that guilty plea." After a hearing at which only Defendant testified, the trial court denied the motion.
The parties on appeal agree that the motion to withdraw guilty plea was filed after the fifteen-year sentence had been imposed. Therefore, pursuant to Tennessee Rule of Criminal Procedure 32(f(2), "the [trial] court [could have] set aside the judgment of conviction and [permitted] [Defendant] to withdraw the plea to correct manifest injustice." At the conclusion of the hearing on Defendant's motion, the trial court made the following ruling and findings of fact.
THE COURT: All right. Well, look, under [T.R.Cr.P. 32(f)(2)], under the standard that the Court is applying here, the question is whether there will be a manifest injustice that needs to be corrected in my granting this motion.
And, respectfully, I don't find that we have - - that the burden has been met here by the Defendant. I mean, the bottom line from the Court's [perspective], [Defendant] had three attorneys working on this trial with him. Three very competent attorneys and experienced attorneys.
The agreement that was reached and announced to the Court, I mean, it was - - there was a clear bargain for exchange. There is a give and take. I mean, the State gave a little bit, and ...