October 4, 2016 Assigned on Briefs
from the Circuit Court for Gibson County No. 18854 Clayburn
L. Peeples, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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
E. Glenn, J., delivered the opinion of the court, in which
Camille R. McMullen and Timothy L. Easter, JJ., joined.
E. GLENN, JUDGE.
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."
the trial court explained to the defendant the effect of the
statute of limitations on his charge:
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?
DEFENDANT]: (Nodded ...