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State v. Cole

Court of Criminal Appeals of Tennessee, Jackson

January 30, 2017

STATE OF TENNESSEE
v.
WILLIAM M. COLE

          October 4, 2016 Assigned on Briefs

         Appeal from the Circuit Court for Gibson County No. 18854 Clayburn L. Peeples, Judge

          The defendant, William M. Cole, was indicted for rape of a child and entered a best-interest guilty plea to incest on May 6, 2015. He was sentenced on September 8, 2015, to six years as a Range I, standard offender. On September 14, 2015, he filed a timely notice of appeal of his sentence. On September 28, 2015, he filed in the trial court a motion to withdraw his plea of guilty, arguing that he was not related to the victim by blood or marriage and, therefore, could not be found guilty of incest. In this direct appeal filed after his plea of guilty and sentencing, but before he sought to withdraw his guilty plea, he argues that his plea of guilty was involuntary and should be set aside and that the trial court failed to consider all relevant factors in sentencing him. The State responds that the defendant may attack the voluntariness of his plea only in a petition for post-conviction relief and not in a direct appeal. We agree with this response, as well as the State's assertion that the defendant was properly sentenced. Accordingly, we affirm the judgment of the trial court.

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

          Brandon L. Newman, Trenton, Tennessee (on appeal); and Michael J. Flanagan, Nashville, Tennessee (at hearing), for the appellant, William M. Cole.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zenter, Assistant Attorney General; Garry G. Brown, District Attorney General; and Hillary L. Parham, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE.

         FACTS

         At the plea hearing, the State advised the trial court that the statute of limitations prevented the defendant from being convicted of any lesser offenses to the indicted offense of rape of a child. However, the defendant had agreed to enter an open plea to the crime of incest, as an amended charge. The trial court then reviewed with the defendant the plea agreement and waiver of rights form, which the defendant had signed. Asked if he had any questions for the court or his attorney, the defendant responded, "I'm good." Subsequently, the trial court found that the defendant's plea was voluntary and that there was a factual basis for it: "Mr. Cole, I find your plea is voluntar[ily] and knowingly entered on the advice of a competent attorney with whom you're satisfied. I find there's a factual basis to that plea, and I find you guilty of incest."

         Additionally, the trial court explained to the defendant the effect of the statute of limitations on his charge:

         [THE COURT]: You were charged originally with the crime of rape of a child, which carries a much greater penalty than the crime to which you pled. Technically, the crime to which you pled has a [s]tatute of [l]imitation[s] that has previously run, which means that if you were charged with that at a trial, you couldn't be found guilty of it. You can, however, waive the [s]tatute of [l]imitations with regard to the offense to which you pled guilty, and allow me to find you guilty of that offense, rather than going to trial for the other more serious offense. I presume that's . . . what you want to do?

         [THE DEFENDANT]: (Nodded ...


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