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State v. Birdwell

Court of Criminal Appeals of Tennessee, Nashville

November 7, 2019

STATE OF TENNESSEE
v.
JAMIE TODD BIRDWELL

          Assigned on Briefs July 24, 2018, at Knoxville

          Appeal from the Circuit Court for Robertson County Nos. 74CC2-2017-CR-290, 74CC2-2017-CR-3, 74CC2-2016-CR-266, 74CC2-2015-CR-708 Jill Bartee Ayers, Judge.

         On November 15, 2016, Defendant, Jamie Todd Birdwell, [1] pled guilty to Class D felony theft of property valued at $1, 000 or more but less than $10, 000 in case number 74CC4-2015-CR-708 and to three counts of Class A misdemeanor theft of property in case number 74CC2-2016-CR-266. The plea agreement provided that Defendant would be sentenced to twelve years as a career offender with the manner of service to be determined following a sentencing hearing. Defendant failed to appear for his January 13, 2017 sentencing hearing, a capias was issued for his arrest, and he was subsequently indicted for felony failure to appear. Defendant's initial counsel then withdrew. After three other attorneys were appointed and two were allowed to withdraw, trial counsel entered a notice of appearance and filed a motion to withdraw Defendant's guilty pleas. Following a hearing on June 12, 2017, the trial court denied Defendant's motion to withdraw his guilty pleas and set a sentencing hearing. On appeal, Defendant asserts that the trial court erred in denying his motion to withdraw his guilty pleas because the trial court, defense counsel, and prosecutor were all under the mistaken impression at the guilty plea submission hearing that Defendant was facing a sentence of twelve years as a career offender for Class D Felony theft, rather than six years for a Class E felony theft, because the value of theft statute, Tennessee Code Annotated section 39-14-105, became effective January 1, 2017, before the date of his original sentencing hearing. After a thorough review of the facts and applicable case law, we affirm the trial court's denial of the motion to withdraw Defendant's guilty pleas.

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

          Benjamin K. Dean, Springfield, Tennessee, for the appellant, Jamie Todd Birdwell.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; John W. Carney, District Attorney General; and Jason White, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which J. Ross Dyer, JJ., joined. Norma McGee Ogle, J., concurred in results only.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         Factual and Procedural Background

         Guilty Plea Submission Hearing

         On the morning of his scheduled jury trial, November 14, 2016, Defendant entered an "open plea" to theft of property valued at $1, 000 or more but less than $10, 000 in case number 74CC4-2015-CR-708 and to three counts of Class A misdemeanor theft of property in the value of $500 or less in case number 74CC2-2016-CR-266. The State announced and Defendant acknowledged that, pursuant to the terms of the plea agreement, Defendant would be sentenced to twelve years as a career offender in case number 74CC4-2015-CR-708 and to concurrent eleven month and twenty-nine day sentences in case number 74CC2-2016-CR-266 with the method and manner of service to be determined at a sentencing hearing.

         The State offered the following as the factual basis for Defendant's guilty pleas:

The proof, Your Honor, would show as to the felony case, [74CC4-2015-CR-708], that on August 21st, 2015, the victim, Mr. Shields, was working at Unarco, working the second shift and when he came out from work, his vehicle, a 2000 Pontiac was taken and gone. The proof would show that a Mr. Robertson was walking around the Waffle House around 4:30, 5 o'clock and he knows [Defendant] and [Defendant] stopped and asked him if he wanted a ride and he got in the car and they drove around about maybe a block to the Piggy Pit. At that point, [Defendant] asked him if he wanted the car and told him that the car was stolen and [Paul] Robertson said no, thank you and got out of the car. At that point, he observed [Defendant] get out of the car, open the trunk and take a suitcase out of the car. The victim would testify that his kids' clothes, the kids had just been visiting and his kids' clothes and suitcase were in the trunk. That would be consistent with the victim's testimony.
The police came to the scene and located the car. When the police got there, Mr. Robertson came up to them and told them what he knew. As well, they observed blood on the passenger and the driver's side. It was swabbed by Officer Richards. The victim would testify that the blood and some damage to the vehicle w[ere] not there when he went into work. [Defendant], after a motion was filed in the [c]ourt, agreed to give a sample of his DNA and that was tested by Laura Boos (phonetic) and she would indicate that the blood found in the vehicle does match [Defendant]'s DNA and it is basically a one in one billion outside the world population, Your Honor, match. So it was an exact match. That would be the proof. And also, Mr. Shields would testify that he had just recently bought the car and had paid seventeen hundred dollars for it and that there was no significant damage to lower that value between the time he bought it and the time it was stolen, so it would clearly show that it was a theft over a thousand.
As to the theft cases, Your Honor, on February 3rd, 2016, [Defendant] went into the Belk. You can see him on video taking a box of perfume and sticking it in his coat and walking out. He did the same thing on February 9th. Went in and took two more boxes of Polo cologne on this occasion, and stuck it in his jacket and walked out and at this point, loss prevention officer Daniel Rich (phonetic), of Belk, observed the videos and called the police and Officer Clinard immediately recognized [Defendant] and said that's [Defendant].
Warrants were taken out for those two and then on February 19th, Officer Rich was on duty, saw [Defendant] in the store and started observing him and then he saw him take another bottle of red Polo. As [Defendant] exited the store, Officer Rich stopped him and called the police and then [Defendant] did admit to all thefts, Your Honor.

         The trial court addressed Defendant about the list of requirements and rights set forth in Tennessee Rule of Criminal Procedure 11(b)(1), and Defendant acknowledged that he understood his rights, that he had reviewed the two plea petitions with trial counsel, and that he understood that by pleading guilty he was waiving his right to a jury trial. Defendant stated that he understood that his sentence would be twelve years with sixty percent release eligibility with the trial court to determine the manner of service. The trial court found that Defendant knowingly and voluntarily entered his plea and set the sentencing hearing for 9:00 a.m. on January 13, 2017.

         Defendant failed to appear at the sentencing hearing, and a capias was issued for his arrest. On January 18, 2017, the Robertson County Grand Jury indicted Defendant in case number 74CC4-2017-CR-3 for felony failure to appear. Defendant was later apprehended.

         Motion to ...


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