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State v. Kirk

Court of Criminal Appeals of Tennessee, Jackson

July 19, 2017

STATE OF TENNESSEE
v.
JASON WILLIAM KIRK

          Assigned on Briefs June 6, 2017

         Appeal from the Circuit Court for Madison County No. 15-491 Kyle Atkins, Judge

         The Appellant, Jason William Kirk, appeals the Madison County Circuit Court's denial of his motion to withdraw his guilty pleas to theft of property valued $10, 000 or more and evading arrest and resulting effective fifteen-year sentence. Based upon the record and the parties' briefs, we affirm the trial court's denial of the motion.

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

          Joshua B. Dougan, Jackson, Tennessee, for the appellant, Jason William Kirk.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; James G. Woodall, District Attorney General; and Ben Mayo, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         In November 2015, the Madison County Grand Jury indicted the Appellant for theft of property valued $10, 000 or more but less than $60, 000, a Class C felony, and evading arrest, a Class E felony. On February 8, 2016, he pled guilty to the charges. According to the written plea agreement, he was to receive a fifteen-year sentence for theft and a six-year sentence for evading arrest with the sentences to be served concurrently with each other but consecutively to any prior sentences. The Appellant also was to serve the sentences at sixty percent release eligibility.

         At the guilty plea hearing, the State advised the trial court that the Appellant was a career offender. The court asked if the Appellant understood that, as a career offender, he was pleading guilty to theft of property valued over $10, 000 in exchange for a fifteen-year sentence "at sixty percent" and evading arrest in exchange for a six-year sentence "at sixty percent." The Appellant answered yes to both questions. Defense counsel stipulated to the facts in the indictment, which showed that on June 30, 2015, the Appellant stole a vehicle from Ford of Murfreesboro and fled from police officers when they tried to stop him. The trial court accepted the Appellant's guilty pleas.[1]

         The Appellant subsequently filed a pro se motion to withdraw his pleas. Although the motion is not in the appellate record, the State's April 1, 2016 response is included and reflects that the Appellant alleged in his motion that trial counsel advised him that he could not be considered a career offender because he did not have the required number of prior convictions.[2] The Appellant also alleged in his motion that he had only four prior convictions. However, the State listed in its response twenty-two prior felony convictions in Tennessee and three prior felony convictions in Utah that it claimed qualified the Appellant as a career offender. The State asserted in the response that it disclosed the prior convictions to the Appellant before he entered his guilty pleas.

         The trial court held a hearing on the motion. At the outset of the hearing, the court asked if the motion "was just going to be a Motion to Withdraw the Guilty Plea, " and defense counsel answered that the Appellant had "decided not to pursue a post-conviction proceeding at this point."

         The Appellant testified that he was in prison while awaiting trial in this case and that he worked in the prison's legal library. Trial counsel met with him one time in prison before trial. During the meeting, trial counsel told him that she had not received a plea offer from the State and that "[they] were going to have to see what happened when [they] got to court." At court, trial counsel met with the Appellant in the inmate waiting area and told him about a plea offer from the State in which he would receive a fifteen-year sentence "at sixty percent." She also told him the offer was "a one-time only deal." If he did not accept the offer that day, he was going to have to go to trial and "be hit with the max of twenty-six years." The Appellant asked trial counsel why the offer was "a one-time thing, " and she ...


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