# FILED June 11, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1 998 SE SSION

STATE OF TENNESSEE, )

APPELLEE ) ) VS. ) C.C.A. No. 01C01-9707-CC-00241 ) MONTGOMERY C OUNTY ) HONORABLE JOHN H.GASAWAY STEVEN LEE

EDMONDS ) APPELLANT ) (WITHDRAW GUI LTY PLEA)

FOR THE APPE

LLANT FOR THE APPELLEE Gregory D. Smith John Knox Walkup Attorney at Law Attorney General and Reporter One Pubic Square 425 Fifth Avenue, N orth Clarksville, TN 37040 Nashville, TN 37243 Janis L. Turner Assistant Attorney General 425 Fifth Avenue, N

orth Nashville, TN 378243 John Carney District Attorney General 204 Franklin St., Suite 200 Clarksville, TN 37040 Arthur Bieber Assistant District Attorney General 204 Franklin St., Suite 200 Clarksville, TN 37040

OPINION FILED: _______________________ AFFIRMED L. T. LAFFERTY, SPECIAL JUDGE2 OPINI ON This is an ap peal as of righ t from the M ontgom ery Circuit C ourt whe rein it is alleged the tria l court erred in not perm itting the defen dant to set asid e his guilty plea. The defendant

had entered nine gui

lty pleas t

o various misdemeanors and felonies and t

o an admission of violation of probat ion in an unrelat

ed offense. The trial court set a sentenci ng hearing and in the interim the defendant filed a pro se motion to set asi

de his guilt

y pleas. After

an evidentiary hearing to deter mine the merits of the motion, the trial court den ied the mo tion and im posed sen tences in complian ce with ag reed pleas. A fter a review of this issue an d the entire re cord in this cause,the trial

court’s judgment i s affirmed. On August 26, 1996, the defendant , through his at

torney of record,

entered pleas of gu ilty in indictm ent #3694 9 count on e to the offen se of evad ing an arres t, a Class A misdemeanor; count two to the offense of stalking, a Class A misde mean or; cou nt three t o the of fense o f evadin g an arr est by u se of a v ehicle, a Class E felony ; count f our to th e offen se of lea ving th e scene of an ac cident, a Class B misde mean or; cou nt five to the offe nse of d riving o n revok ed licen se, a Class B misdemeanor; count six to the offense of aggravated robbery, a Class B felony; cou nt seven to th e offense o f aggravate d assault, a C lass C felon y; and in count eight to t

he offense of kidnappi

ng, a Class C felony. In indictment #36892, the defe ndant p led guilt y to driv ing on a revoke d licens e, a Clas s B m isdem eanor. Also, the defendant

admitted to a violation of probat ion in cause #33717, involving a conviction for aggrava ted burglary re

ceiving four year

s. Since the pleas were submitted t

o the trial

court to deter

mine the appropriat

e terms of imprisonment, the t

rial court set a sentenci

ng hearing for October

17, 1996, requesting a pre-senten ce report an d victim im pact statem ent. On September 16, 1996, the defenda nt, through hi s attorney,filed a writ ten motion to withdraw (via an attached letter) his nine pleas of guil ty entered August 26, 1996. The defendant al leges that “t

he defendant has never be en informed of3

any possib le defenses ” to his charg es and his d ecision to ple ad guilty w as quickly entered and not in hi s best inter est. Also, t

he defendant request

ed appointment of substitute cou nsel. The trial cou rt conducte d an evide ntiary hearin g on De cembe r 11, 1996 , to consider the merit

s of this motion. A state ment o f the fac ts is help ful to pu t said off enses in contex t. A transcript

of the guilt

y plea proceedings of

August 26, 1996, was intr oduced as evidence in thi s hearing. Mr. Charl es Bloodworth, assi stant Public Defender and counsel for the de

fendant, set

out the facts

before the tr

ial court t

o support the various pleas,

including a li

ttle history of the defe

ndant’s relat

ionship with the victim of violent offenses. The defendant became infat uated with the victim of the violent off

enses long before t

heir occurrence.However, the victi m found someone else and evicted t he defendant from her home. This eviction did not

cool the defendant’s

amorous blood and the infat uation continued. Count one alleges that on December 4, 1995, t he defendant went by the vi ctim’s home. She call

ed the police and t

he defendant ran away (appar ently on foot)from the police t hus leading to the

evading arrest

charge. The defendant would not give up. In count two, between December 5 and 21, 1996, he re peatedly call

ed the victi

m on the phone leading to t

he stalking char

ge. Specifica

lly, on December 14, 1996,the defendan t really com pounde d his proble ms. The victim had asked him to come to the house, he did not, bu t drove by the hous e and lo and beh old the police are there and the car cha se begi ns, thus the eva ding ar rest of lo como tion (co unt thre e). Unfortunately for

the defendant he i s not a good driver, thus crashing hi s car. But that does not st

op him. He is also charged with leaving the scene of an accident (count four) and driving o n a revoked license (co unt five).4 Beginning December 20, 1995, the def endant really begins to have proble ms, w hen he goes to the Sho wboa t, the victim ’s emp loym ent estab lishme nt. The defendant must resol ve this rel ationship. Is he going to le ave her? Is she going to leave hi

m? Unfortunately for t he defendant has a pistol in his wai stband under his shir

t. Unsatisf

ied with the victim’s responses , the defendant pulls the pistol and says “Give me all the money,” which she did. As the defendant leaves, does eternal hope t

hus rise? He turns,

throws the money on the counter and inquires, “Is he going to li ve his life

as an outlaw?” She responds, “just go away.” He does with the money. On December 21, 1995, this wily vi ctim, knowing the defenda nt’s fatal attracti on for her, cont

acts the defendant

under the watchful eye s of the polic e and arranges a meeting at

a convenience store . Amazingly, the defe ndant shows up and gets in the vi

ctim’s car (al

l under watchful eyes ) and when approached by the police, th e defen dant pu lls his pisto l, points it a t the victim , and sh outs, “L et us go . Let us go. I’l

l shoot her, I

will.” Fort

unately for ever

yone, the defendant exercis ed goo d judgm ent and surrend ered. The defendant by admitting his guilt in these offenses, acknowledged these offenses would viol ate his condit ions of probation. In support of t

he motion to withdraw the pl eas of guilt

y, the defendant testified that after h e had rerea d the copy of the charg e concern ing defens es, his attorney never a dvised him o f any de fenses a lthoug h the de fendan t had a d efense

. The defendant present

ed his attor

ney several witnes ses in support of a defense, but the attorney f

ailed to cont

act them. The defendant believed a co-employee of the victim would test

ify that t he victim actual

ly stole t he money and set him up and the victim had st

olen some money of a prior occasi on and another employee was fired for t

his. The defendant

believes cameras i

n the store shoul

d have picked up the robbery. The de fendant acknow ledged his attorney exp lained the nature of a best inter

est plea and ente

red such plea due to t

he duress of faci

ng 50 years or5

longer. Overall , the defendant alleges the at

torney fail

ed to conduct a proper investigat

ion. The State offered the d efendant’s attorney to exp lain the defendant’s complaints. Defense

counsel had been appoint ed to represent

the defendant in t

he General Sessions Court . Counsel represe nted the defendant

through the prelim inary h earing, th e indictm ent pro cess, an d the en try of the guilty p leas. Defense counsel o btained co mplete dis covery fro m the Sta te and as pa rt of his investigat

ion found no video camera in t he store, or,

if there were,no tape was furnished to t

he defense. Defense couns el confirmed the def endant gave him the name of a “Melody,” last name unknown, who would test ify the vict

im had stolen cash from a cash bo x on a prio r occasion. S uch witne ss would be utilized to impeach the honesty of t he victim. She could not be found. Defense counsel enlarged on the Stat

e’s theory of t

he allegations surrounding the stalking and especially ag gravated k idnapping charges. A lso, defense counsel h ad his investigat

or attempt to t

alk to the victim, but she ref used to talk t

o him. As to the witness, Jenni

fer Kilbing,this witness would have testif

ied that the

victim had ment ion ed s he wa s go ingto s tag e a r obbe ry wi th t he de fen dant . Th ere

is s ome confusion in the

record if the

armed robbery of December 20, 1995, was t he faked robbery. The defendant informed defense counsel that the robber

y of the 20th was not the staged r

obbery. Thus, defens e counsel decided he coul d not call Jenni

fer Kilbing as a witnes s and present perj ured testi mony. As to the best int

erest plea,defense counsel gave t o the defendant thr

ee pages setti

ng out the charges,applicable puni shment, State’s first of fer; a revi sed settlem ent offe r; max imum senten ces if co nvicted by a jur y; red d ates and option s. The pages were introduced i nto evidence. On August 26th, the victim appeare

d for trial and the defendant deci ded to plead guil

ty.

Based on this evidence, the trial court denied the de

fendant’s request to set6

aside these gui

lty pleas under

the standard set

out in rule 32,Tennessee Rules of Criminal Procedure. The trial court found the defendant does not complain of any Mackey violations, that th e pleas w ere involun tary, nor w ere there an y comp laints the District Attorney Ge neral withheld exculp atory evidence. The trial court found de fense cou nsel’s repres entation to b e comp etent and th e decision n ot to utilize J ennifer Kilbi

ng was a matter of trial strat egy. This Court agree s with the trial cour t’s analysi s and decision. Rule 32 (f) governs the request for setting aside guilt y pleas. (f) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guil ty may be made upon a showing by the defendant of any f

air and just

reason only before s entence is imposed; but to correct m anifest injustice, the court after sentence, but be

fore the judgment becomes fi nal, may set aside the j udgmen

t of conv ict ion a nd permit

the d efendant to withdr

aw the plea

. Generally, a def

endant who submits a guilt y plea is not ent

itled to wit

hdraw the plea as a m atter of rig ht. State v. Turner , 919 S.W.2d 346 (Tenn. Crim. App. 1995). The decision t

o allow the withdrawal of a guilty plea

is within the

sound discretion of the trial

court and may not be overturned on appeal absent an abuse of discre tion. Henn ing v. Sta te, 201 S.W . 669 (Ten n. 1947); State v. D avis, 823 S.W.2 d 217 ( Tenn . Crim . App. 1 991). The evidentiary hea ring in this record was a hy brid hearing, Rule 32(f) proceeding and semi-pet ition post c onviction proceedi ngs. The trial

court has found the defendan t’s pleas freely a nd volun tarily entered; n o force or c oercion in the pleas; no misr

epresentations made by defense counsel to t he defendant; no withheld exculpatory evidence by the S tate and no violation of Mackey requirements. The Court finds in this record the trial court did not abuse its7

discreti on in refusing t

o allow the defendant

to withdraw his ple as of guilty.The judgment is affi

rmed.

___________________________ L. T. Lafferty,

Special Judge CONCUR :

____________________________ Gary Wade, Presiding Judge

_____________________________ T homas Woodall, Judge