Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 20, 2016
from the Criminal Court for Bradley County No. 14CR309 Andrew
M. Freiberg, Judge
Jimmy Newell, appeals from the trial court's denial of
his motion to withdraw his guilty pleas in multiple cases.
Petitioner entered guilty pleas in several cases at a single
hearing as part of a "global plea deal" and
received a total effective sentence of four years'
incarceration. Defendant filed a pro se motion to
withdraw his pleas. Counsel was appointed to represent him.
Following an evidentiary hearing, the trial court denied
Defendant's motion. Defendant appeals the trial
court's ruling, asserting that his pleas were entered
unknowingly and involuntarily and that his trial counsel
provided ineffective assistance. Having reviewed the entire
record and the briefs of the parties, we affirm the judgment
of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
E. Wall, Knoxville, Tennessee, for the appellant, Jimmy
Herbert H. Slatery III, Attorney General and Reporter; Lacy
Wilber, Assistant Attorney General; Stephen Davis Crump,
District Attorney General; and Krista Oswalt, Assistant
District Attorney General, for the appellee, State of
T. Woodall, P.J., delivered the opinion of the court, in
which James Curwood Witt, Jr. and John Everett Williams, JJ.,
T. WOODALL, PRESIDING JUDGE.
20, 2014, Defendant entered guilty pleas in several cases.
Defendant was convicted of one count of assault, three counts
of domestic assault, one count of theft in an amount less
than $500, and two counts of theft over $1, 000. Defendant
received a total effective sentence of four years'
incarceration. On June 3, 2014, Defendant filed a pro
se "Motion to Withdraw Plea and Appoint
Conflict-Free Counsel." On July 16, 2014, the trial
court entered an order appointing counsel and noting that it
would treat the motion as a petition for post-conviction
relief. Following an evidentiary hearing on August 14, 2015,
the successor judge entered an order denying Defendant's
motion to withdraw his guilty pleas. The court's order
noted that the parties agreed, prior to the evidentiary
hearing, that "the true, legal character of
Defendant's Motion was one to withdraw plea[s]"
rather than a post-conviction petition.
counsel, an assistant public defender, represented Defendant
at trial. He testified that he had several plea negotiation
discussions with the prosecutor prior to trial. He
communicated those discussions to Defendant. Trial counsel
testified that Defendant had several cases pending, and he
attempted to negotiate a "universal settlement" of
those cases. Prior to trial, the prosecutor made a
"three-year offer" to serve by incarceration that
would "encompass all [the] cases[.]" Defendant
rejected that plea offer, and one of his felony theft cases
(the "Kohl's" case) was set for trial. Trial
counsel testified that he advised Defendant to accept the
offer because he was facing a possible sentencing range of
two to four years if convicted in the Kohl's case, and
trial counsel believed the State's case against Defendant
in that case was strong. Trial counsel testified that during
the State's case-in-chief, Defendant commented to him
that "he thought the trial was going very well."
Trial counsel responded that he "believed [Defendant]
was the only one in the courtroom" who thought that.
Defendant then requested that trial counsel ask the
prosecutor if the plea offer was still available. The
prosecutor stated that the previous offer was no longer
available, but he made an offer of "four years to
serve" and that "would still include everything
within that, all the misdemeanors, . . . so everything was
contained." Trial counsel relayed the plea offer to
Defendant, and Defendant agreed to accept the offer. Trial
counsel explained Defendant's charges to him and the
possible sentencing ranges, and he read the plea agreement to
Defendant, and Defendant signed it.
counsel testified that Defendant was "a very intelligent
individual." Defendant never indicated to trial counsel
that he did not understand the consequences of his guilty
pleas. At Defendant's request, trial counsel asked the
court if Defendant could serve his sentence on community
corrections, and the court replied, "absolutely
not" because it was not part of the plea agreement.
Trial counsel testified that the State was
"adamant" that any sentence pursuant to a plea
offer could not be served on community corrections because
Defendant had a prior criminal record that included assault
convictions. Trial counsel testified that Defendant
"understood that that was not part of his plea
agreement" and that "[i]t wasn't contemplated
as part of it." He testified that the State "was
not willing to do anything but a to-serve offer." Trial
counsel testified that he spent "an extensive time"
discussing the plea offer with Defendant.
preparation for trial, trial counsel went to Kohl's to
interview the State's witnesses and the security camera
footage. During trial, trial counsel stipulated as to
Defendant's identity in the video because "[i]t was
obviously him on the video[, ]" and he wanted to avoid
the officer's testifying that he recognized Defendant
from his previous interactions with him.
counsel represented Defendant in previous cases in which
Defendant entered guilty pleas to several misdemeanors. Trial
counsel discussed with Defendant the possibility of his
sentences running consecutively.
cross-examination, trial counsel acknowledged that some of
Defendant's prior misdemeanor charges involved a woman
named Kelly Sullivan, who trial counsel learned was the
step-sister of the District Public Defender. Trial counsel
"discussed whether there might be . . . any type of
conflict." Defendant filed a motion requesting new
counsel be appointed, but "then he gave it up. He
decided not to pursue that." Trial counsel testified
that he believed Defendant filed the motion because he
thought trial counsel was not "doing everything [he]
could for him."
testified that he had "many conversations" with
trial counsel about his cases. He testified that trial
counsel communicated the State's original offer to him of
three years' incarceration, and he rejected the offer. He
testified that he believed "the only thing [trial
counsel] was concerned with was getting [him] to plead out.
He was not worried about developing [his] defense[.]"
Defendant "insisted [trial counsel] withdraw from [his]
case" because he believed a conflict existed due to the
relationship between the public defender and one of the
State's witnesses. Defendant's defense to the charges
against him was that the value of the items he stole from
Kohl's was less than $500. Defendant asked trial counsel
to file a motion to suppress the store security video.
acknowledged that he agreed to waive a mistrial and request a
curative instruction instead after a detective in the case
testified that Defendant refused to talk to him, thereby
commenting on Defendant exercising his constitutional right
to remain silent. Defendant testified that they had spent all
morning picking a jury, and he did not want to spend more
time in jail awaiting a new trial date. Defendant testified
that after the State rested, trial counsel asked him if he
had any witnesses he wanted to call. Defendant was
incredulous. He told trial counsel to ask the prosecutor
"if they'll take a two." Trial counsel
discussed a plea agreement with the State and told Defendant,
"[t]hey will take the three but not the two, and they
want you to plead to everything[.]" Defendant replied
that he wanted to "plead open" and ask the trial
court to grant probation. Defendant testified that he did not
have any prior felony convictions, and he felt that he was a
good candidate for probation. Defendant testified that he
"wanted community corrections at the very least[.]"
He testified that the State told trial counsel that if
Defendant was "gonna plead to corrections, he's
gonna get a four." Defendant testified that he
understood that he was pleading guilty in exchange for a
four-year sentence to be served on community corrections, and
that if he "messed up on corrections, " he would
have to serve 30 percent of his sentence, or 14.4 months,
testified that during the plea hearing, he indicated that he
understood the trial court's statement, "four years
going to TDOC" to mean that he would be "committed
to the custody of TDOC and then out on corrections[.]"
Defendant testified that he had been admonished by the trial
court before for "speaking out of turn[, ]" and he
was "shell shocked." He testified that he
"acquiesced" and gave "the appropriate
responses" at the plea hearing. He testified that when
he returned to jail, he told another inmate that he had to
serve 30 percent of a four-year sentence, or 14.4 months, and
the inmate explained that was his parole eligibility and that
it did not mean he was "guaranteed to get out."
Defendant testified, "It wasn't until then that I
discovered the difference." Defendant called trial
counsel and asked him to file a "motion to put in for
some corrections" or a motion . . . to reconsider"
or to "reduce the judgment or something." Trial