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State v. Asbury

Court of Criminal Appeals of Tennessee, Knoxville

September 19, 2019

STATE OF TENNESSEE
v.
ARNOLD ASBURY

          Session: July 24, 2019

          Appeal from the Criminal Court for Monroe County Nos. 15340, 16177 Sandra Donaghy, Judge

         Arnold Asbury, Defendant, claims that the trial court erred by denying his "Motion to Withdraw Guilty Plea Prior to Sentencing" and, as a result, that he was denied a right to trial by jury. Although we determine that the trial court did not abuse its discretion in denying the motion to withdraw the guilty plea, we determine that the trial court committed reversible error at the subsequent sentencing hearing because it neither properly accepted Defendant's Tennessee Rule of Criminal Procedure 11(c)(1)(C) plea agreement pursuant to Rule 11(c)(4) nor properly rejected the plea agreement pursuant Rule 11(c)(5). We reverse the judgments of the trial court and remand for a hearing in which the court may, in its discretion, either reject or accept the Rule 11(c)(1)(C) plea agreement. If the trial court rejects the plea agreement and

         Defendant opts to withdraw his guilty pleas, Defendant will have the right to a trial by jury. If the trial court accepts the agreement, it must sentence Defendant pursuant to the terms of the plea agreement.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and Remanded

          Matthew C. Rogers, Athens, Tennessee, for the appellant, Arnold Asbury.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant Attorney General; Stephen D. Crump, District Attorney General; and Shari L. Taylor, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Because the procedural background of this case is unusual and difficult to follow, we will include numerous dates and attempt to explain what transpired in chronological order.

         PROCEDURAL BACKGROUND

         On September 2, 2015, the Monroe County Grand Jury indicted Defendant in Case No. 15340 for possession of over 0.5 grams of cocaine for resale, possession of more than one-half (1/2) ounce but less than ten pounds (10 lbs.) of marijuana for resale, possession of over 0.5 grams of methamphetamine for resale, and possession of drug paraphernalia. On May 6, 2016, the Monroe County Grand Jury indicted Defendant in Case No. 16177 for simple possession of cocaine, simple possession of marijuana, and possession of drug paraphernalia.

         Plea Submission Hearing

         On September 26, 2016, Defendant filed a "Petition to Enter Plea of Guilty and Waiver of Trial by Jury and Appeal" (the plea petition), and the plea submission hearing was held that day. Section 23 of the plea petition provided:

I respectfully request that the [c]ourt accept my plea and fix the punishment. The crime(s) to which I am pleading guilty and the punishment(s) to which I have agreed are as follows:

Docket No.

Offense

Sentence

15-340

poss. of over 0.5 grams methamphetamine for resale

17 years Range II

15-340

poss. of over 0.5 grams cocaine for resale

17 years Range II

15-340

poss. of marijuana

11/29

15-340

poss. of drug paraphernalia

11/29

16-177

simple poss. Sch. II

11/29

16-177

simple poss. Sch. IV

11/29

16-177

poss. of drug paraphernalia

11/29

         The sentences were all ordered to be served concurrently.

         Section 21 of the plea petition provided: "I understand that, by pleading guilty, I waive the right to trial and, after the [c]ourt accepts my plea of guilty, the decision is final, there will be no further trial, and I cannot change my mind or reopen the case." The signed "Consent of District Attorney" at the end of the plea petition, provides: "The undersigned Assistant District Attorney consents to [D]efendant's waiver of trial by jury and approves and concurs in the preceding petition."

         At the outset of the plea submission hearing, the trial court announced that in Case No. 15340, "The State is recommending that you be sentenced as a multiple, or thirty-five percent release eligibility [o]ffender to seventeen years in the penitentiary." The trial court next questioned Defendant concerning his request to be allowed to turn himself in to the sheriff at the Monroe County Jail on Friday, September 30, 2016. Counsel for Defendant[1] explained:

He has some family obligations that he has to make arrangements for, an elderly mother, as well as other family situations that he's gotta' take care of.
And, Your Honor, I don't often do this, but I've known [Defendant] for a long time, even prosecuted [Defendant] myself. [Defendant] has never missed a date, period, whether court or anything otherwise.
I don't think that he will be a problem at all. He's a lifetime resident of Monroe County. Quite frankly, he doesn't really have anyplace else to go so he will – I have no doubt he'll turn himself in on Friday.

         The Assistant District Attorney then stated:

Your Honor, if I may, I have prosecuted [Defendant] in the past as well. I will say he does always show up, and so I don't have any fear that he's not gonna show up on Friday, but I also know he understands that if he does not show up what kind of consequences he will be facing then. Because he is a career [o]ffender, and this agreement –
. . . .
Technically, Your Honor, if we had gone to trial on Wednesday, and had he been found guilty of everything that he was charged with, [t]he [c]ourt would have the authority to sentence him as a career [o]ffender [to] thirty years at sixty percent.

         The trial court then stated:

So, [Defendant], let me – let just tell it to you from my perspective. I believe these [l]awyers when they tell me you always show up. But somebody is gonna say, what was that [j]udge thinking, to sentence a man to a bunch of years in the penitentiary and then to let him walk outta' there.
If you don't turn yourself in -- this is what I'm gonna do to protect myself, I'm not gonna sign these judgments today. I'm gonna wait till Friday, and I'm gonna get confirmation from the jail, and if you turn yourself in, the sentence will go down effective that day. But if you don't turn yourself in, then, I have not accepted this plea, and then there's not gonna be any negotiating for thirty-five percent on whatever. We're gonna actually have you plead, or go to trial as -- wherever the pieces fall. And if you are a career [o]ffender, then you're just not looking [at] . . . thirty years [at] sixty percent." (emphasis added).

         After explaining consecutive sentencing, the trial court warned Defendant that, if he failed to report, he faced a maximum sentence of "sixty years, plus five 11/29's." The trial court then restated the recommended sentence for each of the four counts in Case No. 15340 and the three counts in Case No. 16177, and asked, "Is that the agreement that you have with the State of Tennessee?" Defendant answered affirmatively and stated that the sentence he had "negotiated" was seventeen years.

         After the trial court asked Defendant if he knew what would happen if he did not "turn [him]self in at the jail on Friday," the following dialogue took place:

DEFENDANT: You just told me you could enhance it more or less, I guess, the sentence or whatever. Make it consecutive.
COUNSEL FOR DEFENDANT: Basically, [the court] won't accept the –
STATE: Agreed -- yeah.
COUNSEL FOR DEFENDANT: -- agreement, and you'll either have to plead as charged, period, as a career [o]ffender –
STATE: Right.
COUNSEL FOR DEFENDANT: -- or go to trial, and accept the risk there, and if you're convicted, she conducts the sentencing, period.
STATE: Yes.
THE COURT: There is no ...

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