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### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT NAS HVILLE A ssi gne d on Br ie fs F eb ru ar y 14, 200 6

STATE OF TENNESS EE v . THOMAS EARL BRADSHAW

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2004-B-1763 J. Randall Wyatt, Jr., Judge

No. M2005- 01232-CCA -R3-C D - F iled March 24, 2006

The De fen dant, Thomas Ea rl Br adshaw , pled g uiltyto one count of a g g ravated burg lary and one

c ou nt o f e sp e c ia lly

a g g ra va te d r ob be ry , a ndthe tr ia l c ou rt se nte nc e d h im a s a

mul tip le of

fe nd e r t o an ef fec tive sentenc e of thirty -six y ear s imprisonment. The Defenda nt filed a moti on to withdraw his guilty pleas, whic h the trial court denied. On appea l, the Def endant contends that the trial court

err ed whe n it denied his moti on to withdraw his pleas. F inding that ther e exists no reversible e rror , we a ff ir m th e jud g me nts of

the tr ia l c ou rt

.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J
., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J
., and J A M ES C UR WO OD W I TT , J R ., J ., joined.

Gre g o ryD. Smith, C larksville, Tenne ssee ( on appea l) and Micha el Colavec chio, Nashville, Tenne ssee ( at g uiltyplea he aring ) for the Appellant, Thoma s Earl B radsha w.
Paul G. Summers, Attorney Gene ral a nd Reporter ; Sophia S. L ee, A ssistant Attorney Gen e r a l; V ic tor S. John so n I I I
, Di stric t At torne y Ge ne ra l; a ndKathy Mo ra nte , A ssi sta nt D ist

ri c t A tto rn e y

Ge ne ra l, for the A ppellee, State of Tenne ssee.

OP IN ION

I. F acts

This case arises f

ro m the Def

endant’ s alleg ed robbe ry

and burg lary

of seve ral homes f

or which the Defe ndant was indicted for one count of robbery
, four counts of agg ravated burg lary , one count of e specia lly

ag g ravated robbery , three counts of ag g ravated robbery , one count of attempted

a g g ra va te d r ob be ry , a ndon e c ou nt o f ag g ra va te d ass a ult

. At the he ari ng on the De fe nd a nt’ s g uil ty plea he ld J anuary

24, 2005, the trial court first noted that there wer e some ne g otiations between the State and the Def

en d an t reg arding a g uiltyplea. Af ter a rec ess, the De fenda nt’s attorney told the-2-

court that the D efe ndant would not be plea ding g uiltybut that he wanted to addre ss the court. The Def endant told the court that the parties we re not c omm u nicating . The trial c ourt noted that the p ar t i es had bee n in neg otiations for three hours and that the D efe ndant would have lunch, ch an ge clothes, and the t rial would start at 1:00 p.m. The De fenda nt told the trial court that he wa s not going to ge t a fa ir trial, and the tr ial court a ssured the D efe ndant that the trial would be fair but informed the Def endant that he could not play g ames to dela y

the trial.

At 1:00 p.m

. th e p ar ti e s r e tu r n e d to c o u r t a n d a n n o u n c e d th a t th e y h a d r e a c h e d a plea ag ree ment. The S tate’s attorney said that the ag ree ment rea ched w as that the De fenda nt was g oing to plead g uiltyto ag g ravated burg lary and re ceive a sente nce of six y ear s at thirty -five pe rce nt. The State’s attorne y

said that the De fenda nt would also plead g uilty to espec ially ag g ravated robbe ry

and

re c e ive a se nte nc e of

thi rt y y e ars a t on e -h un dr e d p e rc e nt. Th e a g re e me nt i nc lud e d th a t th e se sentenc es would run c onsecutively to one another and consecutively to a sentenc e that the De fenda nt

was c urre ntly

ser v ing. In acc ordanc e with this ag ree ment, the State would dismiss t he other nine counts ag ainst the Def

endant.

The trial court e x plained to the De fenda nt the char g es to which he was plea ding g uiltyand the possible punishment for those char g es. The sentenc e was also explained to the Defe ndant. The trial court a sked the De fenda nt if he under stood that his case was set for trial that morning , that the witnesses we re pr esent, a nd that the court was re ady to give the Def

endant a trial. The c ourt asked the Def endant if he wished to plead g uilty , and the Def endant said, “Ye s.” The trial court e x plained the pr oc e du re s tha t wou ld ha ve take n pla c e ha d the c a se g on e to tr ia l, the De fe nd a nt’ s rig ht t o c ro sse xami ne wi tne sse s, the De fe nd a nt’ s ri g ht to te sti fy
, his ri g ht to c a ll w itn e sse s o n h is b e ha lf, a ndhis ri g ht t o a pp e a l a ny fi nd ing of

g uil t by the jury . T he De fe nd a nt i nd ic a te d th a t he c ho se to wa ive tho se rig hts. The Defenda nt indicated that his attorney had bee n over the Def

endant’ s petition to waive his ri g hts a ndsa id tha t hi s a tt orn ey had read the fo rm to h im a ndthe tw o h a d d isc us se d th e fo rm

. The trial c ourt explained that the Def endant wa s pleading g uilty
, and the Defe ndant indicated that his decision to plead g uiltywas voluntary

.
Th e Sta te ’s a tto rn e y

tol d th e tr ia l c ou rt :

As Yo ur Ho no r kno ws , th e [S]ta te wa s re a dy to g o fo rw ard tod a y on a ll of the c ou nts

. An d th e pr oo f i n th is c a se wo uldha ve sh ow n th a t on Ap ri l 22nd of 20 04 , M s. Ne ll Vog el, who’s se venty -two y ear s old and lives by h er s el f, was out in her driveway

are a and w ent into her ba ck door. A nd there was a man in her house who demande d money and looked thoug h her pur se and f orce d her into the back bedroom in orde r to g e t th os e thi ng s. Ms. Vo g e l li ve s n e ar r a ilr oa d tr a c ks

. On April 23rd, 2004, in an ar ea ve ry near wher e Ms. Vog el lived, Mrs. Gre er, who’s seve nty

y ear s old, was out in her y ard. She w as g rabbe d around the neck f rom be hin d a ndkn ocked to th e g ro un d b y a ma n, wh o h a d a

la wn mow e r b la de in h is hand. She scr eame d for he r husband
, wh o was in the g ara g e. The man threatened to kill her if she di dn’t shut up. Mr. Gre er, w ho was seve nty -three , came out at that-3-

tim e . T he ma n de ma nd e d a wa lle t fr om Mr . Gr e e r. He did n’ t hav e a wa lle t on him

. He took ring s off of Mr s. Gree r’s ha nd. She was a ble to g et away

and ca ll police.

L ater , that same day
, Detec tive Chastain located those same ring s at a pa wn shop. T h e y h a d b e e n p a w n e d b y a ma n n a me d Ca r l Jo n e s

. H e w a s lo c a te d and

arr ested by the detec tives. Despite his arr est, the ra ilroad robbe ries continued. T he Gre er’ s home, also, was ne ar the railroa d trac ks.

On April 28th of 2004, Mrs. Campbell, who is seve nty -one y ear s old and lives by herse lf[,] was taking out the trash when she saw -- she ca m e b ac ki n and there was a

man in her house , arme d wit h a k n ife. He cover ed her mouth, manhandled he r, causing br uises, demande d mo n ey and jewe lry . He picke d up an envelope , which had some money in it and took the money

.

At thi s ti me , De te c tiv e Cha sta in w a s st ill inv e sti g a tin g to s e e if Mr . Jon e s, who pawne d the jewe lry was, in fa ct, the ra ilroad robbe r. He did not [ fit] t he p h y s i ca l description given by the ea rlier victims. A photo lineup containing Mr. J ones’[s] picture was g iven to Ms. Vog el. She did not identify him as the man who

c omm itt e d th e ro bb e ry . M r. Gr e e r s a id it wa s n ot the ma n. An d M rs . Ca mpb e ll s a id it w a s n ot h im.

The De tective talke d to Mr

. J o n es. Mr. Jones who has bee n broug ht over from Turne y

Center a nd is prepar ed to testify on behalf

of t h e [ S] tate would have te sti fi e d th a t he kn e w [th e De fe nd a nt] f ro m priso n, that th e y

ra n in to e a c h o the r, wi th

a th ir d person n a me d K e vin . [T he De fe nd a nt] a sk e d M r. Jone s to pa wn the ite ms, claimed he didn’t have an I .D. on him. [The D efe ndant] a nd Mr. J ones we nt to the pawn shop. And the y

g ot a hundre d and twenty dollars for that jewelry . [The De fe nd a nt] g a ve Mr . Jon e s so me wh e re be tw e e n tw e nty a nd fo rt y do lla rs a ndso me
c ig are tte s a s a n e xch a ng e fo r M r. Jone s b e ing the on e wh o, in fa c t, ha d p a wn e d th e m. Mr. J ones wa s still locked up, both on paw ning the se items and a Probation Violation, himself. And despite the fa ct that he wa s locked up, the r ailroad r obberie s did continue.

On May 9th of 2004, which wa s Sunday and Mother’ s Day , Mrs. Carpe nter, an eig hty -eig ht y ear

old widow had been outside with some mail, had wa lked bac k in, cleaning some strawbe rries at he r kitchen sink, w hen a man approa ched her f rom be hin d a nd grabbe d h e r, sa id h e did n’ t w a nt t o k ill he r, that he jus t w a nte d s ome
mon e y . H e ha d a

kn if e wi th h im. He dragged h e r a bo ut the ho us e , c a us ing so me
se ve re i n j u r i e s t o h e r

ar m

. T h e o n l y

m o n e y s h e h a d w a s n i n e d o l l ar s p l u s fi ft y dollars, which wa s her Sunday churc h offeri n g , which he took. She a sked the [D] efe ndant if he didn’t know tha t it was Mother’s Day and didn’t he have a mother. She also explained tha t w hen he demande d more money that she wa s a widow a nd had no m o re m oney . He picke d up a bank e nvelope a nd an Avon r ece ipt and took-4-

that with him, along with the money that he took.

Of fi c e rs we re c a lle d to the sc e ne a nd pu t in a K- 9 unit . T he K- 9 w a s a ble to pick up a scent to ra ilroad trac ks, which we re not fa r fr om M[ r]s. Carpenter’ s home. The K- 9 followed the scent on the t rac ks for a way s, lost the scent. But, be fore losing t h e s ce nt, the K-9 Of

fice r picke d up the Avon re ceipt and ba nk envelope , which w[ere] taken fr om Mrs. Carpente r’s home.

Finally , on May

12, 2004, Ms. Goodson, who was se venty -s i x y ea rs ol d[,] was outside the back of her home . She lives very near the Vog els and the G ree rs and had hea rd about the elder ly railroa d

. . . robberies. And she saw a man a nd rea liz ed there was something not rig ht. She ran to her house and tried to lock t he door, but she wa s not fast enoug h. Her husband wa s out m o wing the front law n and didn’t know anything wa s the matter. He threa tened to kill her

. He drag g ed her throug hout the house, c ausing her some br uising. He took from her j ew el ry , cash, and a collec t i o n o f state quarters that she ha d. I n addition, as he wa s leaving , he saw a handg un up on a shelf. And he g rabbe d that. She had the prese nce of mind to hit her alarm button as he was leaving
, which called the police and let off quite a loud sound.

The police having been investiga ting th[ is] series of robberies for some time,

wer e on the sc ene ve ry

quickly . An offic er sa w a man matching the desc ription of the suspect on some railroa d trac ks that was calling to the dispatcher

. An o t h er of fi c e r, Of fi c e r M ur ph y , a ns we re d th e c a ll. Th is wa s o n M e tr op le x Roa d n e ar s ome railroa d trac ks. He saw the s uspect ther e holding a g un. He told the man to stop and drop the g un. I nstead of doing that, the suspect aimed at the office r. The off icer fired first but d i d n o t hit the suspect. The suspe ct ra n. Helicopter s were there . A K-9 Offic er was there

. I -24 was shut down beca use of a ll of this that was g oing on. A nd eventua lly , the K-9 U nit was able to find the suspe ct [ly ing] in very tall gr ass. That tu r n e d o u t t o b e

. . . th e [D ]e f e n d a n t. T h e y f

o u n d a s h o r t t im e late r , p e rh ap s , th e n e xt day , the state qua

rters that had been stolen from the la st robbery buried in the g round

-- in the dirt ne ar the g ro un d w he re he wa s [ly ing ]. T he y too k h im b a c k to Ms. Go od so n’ s ho me. An d s he imm e diate ly ide nti fi e d h im a s th e ma n th a t ha d ju st robbed he r.
A p ho to l ine up wa s con duc te d w ith[the De fe nd a nt] i n it . A ndon thi s
oc c a sio n, Ms. Vo g e l sa w, ide nti fi e d h im, a ndbe g a n to c ry

. Mr . Gr e e r i de nti fi e d h im. The e nvelope in Mrs. Campbell’s home which had the mone y in it had [ the Def endant’ s] print s on it. The Avon and bank rece ipts for Mrs. Carpente r’s home, wh ic h th e K- 9 U nit

ha d r e tr ie ve d e arl ie r h a d [th e De fe nd a nt’ s] print s o n it

.
After this rec itation of t he facts, t he trial court asked t he Defenda nt how he wanted to plea d to the char g e of a g g ravated burg lary . The following occur red:-5-

[The Defe ndant’s Attorne y ]: You’ve g ot to say g uiltyout loud. TH E CO UR T: Try , a g a in. Cou nt 6 , o n a c harge of

Ag g ra va te d B ur g lary , w ha t is yo u r p l e a , g u i l t y o r

n o tg u i l t y? (Pause in the pr ocee dings w hile the [D] efe ndant conf ers with [his attorney ].) THE COURT: Okay . Count 6, Agg ravated B urg lary , what is y our plea , g uiltyor not g u i l t y? THE DEF ENDAN T: Yeah. T H E C O U R T : A r e yo u s a yi n g g u i l t y? THE DEF ENDAN T: Uh, huh. Yea h. TH E CO UR T: Ca n y ou sa y the wo rd “ g uil ty ” or “ no t g uil ty ” ? Whic h is -- wh a t is y our plea ? THE DEF ENDAN T: Yeah. T H E C O U R T : Y e a h
, w h a t ? (Pause in the pr ocee dings w hile the [D] efe ndant conf ers with [his attorney ].) T H E D E F E N D A N T : I p l e a d g u i l t y.

The trial c ourt asked the Def endant how he would like t o plead with re spect to the c harg e of espec ially ag g ravated robbe ry , and the De fenda nt ag ain continually respo n d ed “Y eah.” The trial court infor med the De fenda nt repe atedly that he must say

g u i l t y o r n o t guilty , and the De fenda nt finally said that he would plea d g uilty . The trial c ourt ac cepte d the gui l t y p l eas a nd imposed the ag ree d sentenc e.

On Fe bruary

16, 2005, the Def

endant filed a motion to withdraw his g uilty pleas a lleg ing that his pleas wer e the pr oduct of dure ss and wer e not voluntarily enter ed. He asserted that he wa s under the impressi o n t h at the court date whe n he ente red his g uiltyplea wa s actua lly supposed to be for plea ne g otiation. Theref

ore, he asserted, he was under duress since he was induce d to make a ple a ag ree ment. Further, he said that he was only g iven a few minutes to make his de cision t o p l ead g uiltyor g o to trial, and, since the “fina l offe r” of pleading g uilty was presented on the trial date, “ the plea wa s the product of

duress.”

At a hea ring on this mot ion, the Def endant’ s attorney

rec alled for t h e t rial court how the Def endant took thre e or f

our minutes to say

the word “ g uilty ” at t h e gu i l ty plea he aring . The Def endant’ s attorney

asserted to the court that the Def endant c ame to court the day of the g uiltyplea hearing thinking that the case was g oing to be “discussed” and then possibly set for a jury trial. The De fe nd a nt t e sti fi e d th a t he didno t kn ow wh a t wa s g oin g on wh e n he e nte re d his g uil ty ple a

. He sa id that he re called te lling the c ourt that the plea was voluntary
, but he ag ree d that he did not know what was g oing on in his mind when he said “g uilty .” The Defenda nt said that it took him a while to say the words “ g uilty ,” and he ag ree d that he fe lt pr essure from the State, the trial court, a nd his attorney to plead g uilty

. He also ag ree d that he felt that it was unfair . The De fenda nt said that he would like to be able to “explain [hi s] situation about t he two char g es that they ’ve g iven me and to e x pect the ag g ravated -- the robbery char g e and the burg lary char g e.” He testified that he did not know that he

was c oming to court the day of t he guilty plea hearing for a trial. The De fenda nt reiterated that he felt pre ssured to plea d g uilty , and, had he not been pr essure d, he would not have pled g uilty

.-6-

On cr oss-examination, the Defe ndant ag ree d that he was not a strang er to the c riminal justice sy stem. He ag ree d that, previously
, he was tried and convicted of attempted se cond deg ree murder. On two s epar ate occasions, he had also previously pled guilty to burg lary and armed robbe ry . The De fe nd a nt a g re e d th a t he un de rs too d his ri g hts in te rm s of g oin g to tr ia l or ple a din g g uil ty , bu t, i n this case, he did not know to what he was pleading g uilty

. The Def endant a g ree d that he wa s in court when the trial was set, but he did not know this wa s h i s t ri al date. He testified that it was seve ral hours betwe en whe n he ca me to co u rt an d when he pled g uilty , and during that time his attorney dis c us se d w ith him

that hi s a tto rn e y

wa s r e a dy

to g o to tr ia l. Th e Defen dan t then de nie d th a t hi s
a tto rn e y tol d h im tha t th e re we re e le ve n c ou nts fa c ing him a nd that th e Sta te wa s w ill ing to l e t hi m plead g uiltyto only

two count s

. He d enied that his attorne y told him t hat he wa s g oing to plea d gu i l t y t o o n e c o u n to f e s p ec i al l y aggr av at ed ro b b er y

an d s ai d t h at h e n ev erfo u n d o u tt o wh at ch ar ge he ple d g uil ty . H e the n s a id tha t th e tr ial judg e inf or me d h im o f the c ha

rg e . H e sa id tha t th e fi rs t time he learned about the a g ree d sentenc e was when the State a nnounced the ag ree d sentenc e. The Def endant sa id that the trial judg e pre ssured him to plead g uiltybeca use t h e Def

endant did not understand the judge ’s words. He ag ree d that he told the judg e that he understood, but he de nied that he ac tually

did understand the pr ocee dings.

The Stat e o ff

er ed to ca ll the Defe ndant’s trial a ttorney to rebut some of the Def endant’ s statements, but the trial court said that calling the at t o rn ey wa s n o t neede d at that time. The trial court took the motion under adviseme nt, and then it denied the motion. I t is from this order, that the Def endant now a

ppeals.

II. Ana lys is

On app e a l, the De fe nd a nt c on te nd s th at the tr ia l c ou rt e rr e d w he n it

de nie d h is m oti on to wi thd ra w h is g uil ty

ple a . H e a sse rt s th a t the re c or d is c le ar that he wa s re luc ta nt to e nte r his g uil ty plea a nd that he only

did so because he w as conf used and pressure d. The De fenda nt contends that he wa s “caug ht off g uard” by the anticipate d jury

trial and that he “did not know about the terms of his ple a un til he wa s in the mid dle of the ple a .” Th e Sta te c ou nte rs that the De fe nd a nt ha s f a ile d to establish that he is entitled to withdraw his g uiltyplea.

I n its order de ny ing the motion, the trial court stated:

Th e Cou rt

fi nd s th a t th e his tory

of the c a se is a s f

oll ow s:

The De fenda nt’s first ap p ea ra nce in c ourt on this case w as the a rra ignme nt on J uly 14, 2004. On that day
, the court appointed Patrick Fr og g e with the Of fice of the Public Defe nder, a s counsel for the Defenda nt, who ar raig ned the De fenda nt and enter ed a p le a

o f n o t g u il ty

o n th e D e f

e n d a n t’ s b e h a lf

. O n A u g u s t 1 2
, 2 0 0 4
, the Def endant a ppear ed in court for the first discussion date, a nd the ca se wa s continued for two wee ks. On Aug ust 26, 2004, the Defe ndant appe are d in court for discussion,

a ndthe c a se wa s c on tin ue d o ne we e k f or a he ari ng on the De fe nd a nt’ s Mo tio n to Sever O ffe nses. On September 2, 2004, the Def endant was prese nt f

or the he aring-7-

on the Motion to S ever

Offe nses, which the Court took under advisement a nd denied in its Order of September 16, 2004. On Octobe r 8, 2004, the De fenda nt was pre sent in court whe n the Court relieve d Mr. Fr og g e base d on a conf lict of inte re s t , and appointed Micha el Colavec chio as counsel. On O ctober 29, 2004, the Def

endant wa s pr e se nt i n c ou rt wh e n the Cou rt g ra nte d th e De fe nd a nt’ s Mo tio n to Con tin ue Tria l, and set the c ase f

or trial on January

24, 2005.

The Court finds that on January 24, 2005, the witnesses for the state we re prese nt and the Stat e wa s prepa red to proc eed w ith trial. The Court also finds that Mr. Colavec chio was pr epar ed to g o to trial, howeve r, t h e Court allowed further neg otiations while prospective jurors wer e being assembled. The Court finds that the Def endant we nt back a nd fo rt h over the plea of fer for thre e hours, until the Court inf or me d h im tha t th e tr ia l w ou ld p ro c e e d a t 1: 00 p. m. Th e Cou rt fi nd s th a t sh ortly befor e jury

selec tion was to beg in, the Def endant a cce pted t h e t er m s of the State’s offe r and ag ree d to plead guilty to two counts in the i ndictment. The court finds, as ref lected in t h e t ra n script of the ple a, that the c ourt explained the following to the Def endant in ac corda nce w ith Rul e 11 of th e T e nnessee Rules of Criminal Procedure :

. . . .
The Court finds that the De fenda nt responded unde r oath that he under stood his rig hts as ex plained by the Court, and explained to him in the written plea pe tition be ari ng his sig na tur e . T he c ou rt fi nd s th a t the De fe nd a nt r e sp on de d a ff ir ma tiv e ly that he was pleading g uiltyout of his own voluntary decision. The Court f

inds that Mr. Colavec chio was of the opi nion that the Def endant’ s plea wa s voluntary , and he

wa ive d the c on fr on ta tio n of the wi tne sse s. Th e Cou rt fi nd s that it a llo we d th e Sta te to g ive a state me nt o f the fact s th at wou ld h a ve be e n p ro ve n, ha d th e c a se g on e to trial as sche duled.

The trial court then articula ted some of the exchang e betwee n the court, the attorney s , an d t he Def endant that oc curr ed at the g uiltyplea he aring . I t then conclude d:

The Court is of the opinion t h at t h er e is not a suffic ient basis to establish that the withdrawa l of t he Defenda nt’s g uilty plea is nece ssary to preve nt manifest injustice. The Court finds that the De fenda nt has failed to e stabl i s h t h at h e wa s in any way
coer ced, intimidated, pre ssured, misled, or fr audulently induced into entering a

plea of g uilty . The Court finds that t h er e was no misconduct on the be half of the Assi s t an t District Attorney Gene ral, no misrepr esenta tions, and no withholding of

e xcu lpatory

e vid e nc e wh ic h w ou ld i nf lue nc e the e ntry

of the ple a

. Th e Cou rt

fi nd s,
as the Def endant testified, that the only pressure the Def

endant f elt to enter the plea of g uiltywas broug ht on after seei n g all of the a lleg ed victims sitti ng in the

cou r tr o o m p r e p ar e d to te s ti f y a g a in s t h im

. T h e Co u r t is o f th e o p in io n that the-8-

Def endant’ s fee lings of pr essure and anxiety fall squar ely

on his shoulders, and w ere not the product of any misconduct of hi s attorney , Mr. Colavec chio, or the A ssistant District Attorney

Gene ral.

Th e Cou rt is f urthe r o f the op ini on that the De fe nd a nt’ s ple a wa s e nte re d in to voluntarily , understanding ly , and knowing ly

. The Court finds t hat the De fenda nt has

a pr ior c ri min a l his tory

that in vo lve s tw o s e pa

rate ple a s o f g uil ty

to f e lon y of fe ns e s, and one prior trial of a felony offe nse. The Court f

inds that the Defe ndant has be en in this courtroom, reg arding this case, six t i m es prior to the date on which the trial was set. The Cou rt fi n d s t hat the De fenda nt and Mr. Colavec chio eng ag ed in plea neg otiations from approximately 9 a.m

. u n t i l 1 p.m. on the day of trial, bef

ore the Def endant a g re ed to plead g uilty . The c ourt finds that it properly informed the Def endant of his rights, a nd the conse quence s of waiving those rig hts pursuant to the plea, in ac corda nce w ith Rul e 11 of the Tenne ssee Rules of Criminal Proc edure . The Court f i n d s t h at it acce pted the De fenda nt’s plea of g uilty . The Court is of the opinion that the Defe ndant’s plea was enter ed into voluntarily
, understanding ly , and knowing ly , and that there i s no basis for the c ourt to set aside the D efe ndant’s plea of g uilty

.
The withdrawa l o f a plea of g uiltyis gove rned by Rule 32(f) of

the Tenne ssee Rules of Cr imi na l Pr oc e du re . T his ru le state s:

A motion to withdra w a plea of g uilty may be made upon a showing by the def endant of a ny fa ir a nd jus t re a so n on ly be fo re se nte nc e is imp os e d; b ut t o c or re c t ma nif

e st injusti ce, the court a fter se n t ence, but befor e the judg ment become s final, may set aside the judg ment of convic tion and permit the def endant to withdra w his plea.

I n this c a s e , th e D e f

e n d a n t mo v e d to w ith d r a w h is g u il ty p le a a f te r h e w a s s e n te n ced, but be fo re the jud g me nt b e c a me fi na l. Th e re fo re , to pr e va il o n h is m oti on , h e mus t sh ow that th e g uil ty plea must be set a side to corr ect a “manife st injust ice.” Whil e the term “manife st injust ice” has not be e n d e fi ne d b y

statut ory or c a se la w, a

c ou rt ma y pe rm it the wi thd ra wa l of a ple a to p re ve nt m a nif

e st injusti ce w hen the de fenda nt establishes that the plea was not knowing ly , understandingly , or voluntarily

enter ed. See State v. T urner, 919 S.W .2d 346, 355 (Tenn. Crim. App. 1995) . A Court sh ou ld n ot a llo w the wi thd ra wa l of a g uil ty ple a , h ow e ver, whe n the c la im o f m a nif e st i nju sti c e is predic ated on “ (a) an ac cused’ s ‘cha ng e of he art’, ( b) the e n t ry o f t h e plea to avoid harshe r punishment, or (c) an ac cused’ s dissatisfaction with the harsh punishment imposed by the trial court

or a jury .” I d. The de fenda nt bear s the burden of establishing that the plea should be w ithdrawn. I d. at 353. The de termination of whe ther a plea was enter ed volunt arily and knowing ly

is made base d on the totality

of the c ircumstance s. I d.

“ Whe the r a n a c c us e d s ho uldbe pe rm itted to w ith dr a w a ple a of g uil ty is a qu e sti on that is addre ssed to the sound discretion of the trial court.” I d. Abuse of disc retion in this context means there must be no substantial evidence t o support the conc lusion of the trial court. See Goosby v.-9-

State, 917 S.W .2d 700, 705 (Tenn. Crim. App. 1995) (citing State v. Williams, 851 S .W.2d 828, 830- 31 (Tenn. Crim. App. 1992) ).

We conclud e t h at t h e trial c ourt did not abuse its discretion whe n it determined that the Def endant did not meet his bur den of proving that the plea wa s not knowingly , understanding ly , or voluntarily

enter ed. The Def

endant ha s provided bar e alleg ations that he wa s “conf used” and “c aug ht of f g ua rd ” by the pr oc e e din g s a ndthat he didno t kn ow that he wa s p le a din g g uil ty un til the mid dle of the he ari ng . We simply

c a nn ot a g re e . A s the tr ia l cou rt no te d, the De fe nd a nt h a s tw ic e pr e vio us ly pled g uiltyto felony

o ff enses. The Def

endant a lso went to trial on a third fe lony offe nse and w as found g uilty . Further, the D efe ndant had be en to court six tim es o n the cha rg es listed in the indictments for this case , and he participa ted in mor e than three hours of plea neg otiations on the day of trial. The trial court ensured through questioning that the Def endant unde rstood his rights a nd that he wa s waiving those rig hts. The Def endant points to his reluctanc e to say “g uilty ” as e vidence that he did not knowing ly

enter his plea, howe ver, w e conside r thi s p roof that he understood the conseque nces of his a dmitti ng his g uilt. I n light of this e vidence prese nted at the he aring s, the trial court prope rly

denied the D efe ndant’s motion to withdraw his g uiltyplea. The Defendant is not entitled to relief on this issue.

III. Conclusi on

I n acc ordanc e with the for eg oing a uthorities and re asoning , we a ffirm the judg ments of the tr ia l c ou rt

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE