Court of Criminal Appeals of Tennessee, Knoxville
Session: July 24, 2019
from the Criminal Court for Monroe County Nos. 15340, 16177
Sandra Donaghy, Judge
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
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Reversed and Remanded
Matthew C. Rogers, Athens, Tennessee, for the appellant,
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
L. Holloway, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen and Timothy L. Easter, JJ., joined.
L. HOLLOWAY, JR., JUDGE
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.
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.
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
poss. of over 0.5 grams methamphetamine for
17 years Range II
poss. of over 0.5 grams cocaine for resale
17 years Range II
poss. of marijuana
poss. of drug paraphernalia
simple poss. Sch. II
simple poss. Sch. IV
poss. of drug paraphernalia
sentences were all ordered to be served concurrently.
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."
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
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.
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
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).
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.
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
COUNSEL FOR DEFENDANT: -- or go to trial, and accept
the risk there, and if you're convicted, she conducts the
THE COURT: There is no ...