### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs S eptem

ber 25, 200 2
STATE OF TENNESSEE v. MICHAEL ALLEN CONRAD

Appeal from the Criminal Court for Knox County No. 68866 Mary Beth Leibowitz, Judge

No. E2001-02799-CCA-R3-CD May 15, 2003

The defendant, Michael Allen Conrad, appeals as of right the Knox County Criminal Court’s denial of his motion to withdraw his guilty pleas to three c ounts of attempted statutor y r ape, a Cl ass A misdemeanor. He received the agr eed sentences of two consecutive and one co ncurrent elevenmonth-tw ent y-nine-da

y terms on probation. The defendant contends that his guilty pleas were involuntary

because his attorney

erroneously a

dvised him that he would not have to r egiste r with Tennessee’s sexual of

f ender registry . He argues that had he known that he w as subject to the
re gi st ry, he would not

have pled guilty but would have gone to trial. We conclude that the defendant should be allowed to withdraw his guilty pleas to prevent manifest injustice.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed; Case Remanded

J OSEPH M. T IPTON , J., deliver ed the opinion of the

court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.

M. Jeffrey Whitt an d James A. H. Be ll ( at hearing on motion to withdraw), Knoxville, Tennessee, for the appellant, Michael Allen Conrad.

Paul G. Summers, Attorney Gene ral and Reporter; Elizabeth T. Rya n, AssistantAttorney

Genera l; Randall E. Nichol s, District Attorne y General ; and Pa

tricia A. Cristil, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The defendant, who was forty- one yea rs old at the time of the offenses, was charged with four counts of statutory rape , a Cl as s E fe lo ny, of the fourteen-y ear-old victim. He pled guilty to three counts of attempted statutory ra pe with the fourth count being dismissed pursuant to th e plea agree ment. At the May

7, 2001 submission hearing, the defendant agr eed that he understood what he was doing and that he was pleading guilty of his own free will. He agreed that he understood he would go to jail if he violated the conditions of his probation. The court accepted his pleas, stating-2-

that they were

knowingly a

nd voluntarily given, a

nd imposed the agreed sentences. Th e s exual offender regist ry was not m entioned at the submission hearing, and the judgments of conviction we re en te re d o n t ha t d ay.
On May 25, 2001, t

he defe ndant moved to withdr

aw his guilty

pleas, contending that at

the time he pled guilty, h

e believ ed th at he would not be subject to the sexual offender registry . He argue d that he w ould not ha ve pled g uilty had he kn own that he would ha ve to register as a sexual offender. Substitute counsel appeared on behalf of the defendant, and the parties s tipulated

that if the defendant’s original attorney were called, he would testify as follows: Before

pl ea di ng gu il ty, the defenda

nt told his attorney sever

al times that he would not

accept any

plea offer that would make him a convic ted felo n, expose h im to possibl e jail

time, and/or cause him to be placed on the sexual offender registry . The weekend before trial, the def endant’s attorney

called him andtold him

that the state had made an offer that would allow him to plead guilty to misdemeanor attempted statutory rape, involved no incarceration, and would not require h im to register as a sexual offender. Afte r the defendant accepted the offe r, his probation officer told him that a Tennessee statute required him to register as a sexual offender. The defendant immediately

contacted his attorney

abou t th e discrepancy

and said that

he would not have accepted the plea and would

have insi sted on g oing to trial had he known that he would have been subject to the sexual offender registry. The defendant also presented his affidavit, which stated that he acce pted the plea based upon incorrect advice f rom his attorney and tha

t had his attorney given him the correct information, he wou ld not have pled guilty.

The trial court

denied the motion to withdraw finding that although the defenda nthad been misinformed by counsel, imposition of the registry

requirement did not

rise to the

level of manifest injustice. It not

e d that the

obligat ions of pr

obation include co mpliance with state

law. I t also expressed misgivings about the defe ndant’s c laim that h

e would no t accept a plea in volving p ossible jail time because it had told the defendant at the submission hearing that he w ould go to jail if he violated probation.
Initially , the state contends that the defendant’s notice of appeal to this court from the trial court’s o rder deny

ing the motion to withdraw was untimely by one day. See T.R.A.P . 4(a ) (providing that a pa

rty shall fil e a notice of appeal thirty days from “the

entry of judgment appealed”). The trial court entered its order deny ing the motion to withdraw on October 12, 2001. The defendant filed his noticeof appeal on November 13, 2001. When the final filing day falls on
a weekend or a

legal holiday , the def

endant ha s until the e

nd of the n

ext busines s day

to file his notice of appeal. See T.R.A.P . 21 (a) . In th e p re se nt ca se , t he th ir ti et h d ay w as on Su nd ay, November

11, 2001; a

nd we tak

e judicia l notice th at Mon day , Novembe r 12, 2001 , was a sta

te holiday marking the observance of Ve terans’ Day . Thus, the defendant’s November 13 n otice of ap pe al wa s t im el y.

Pursuant to Rule 32(f), Tenn. R. Crim. P., a defend ant may seek to withdraw a guilty plea for any fair and just reason before the trial court imposes the sentence

. Once the trial court imposes the sentence but

before the judgment becomes final, it “may set aside the judgment of conviction and-3-

permit the defendant to withdraw the plea” in order to c orrect manifest injustice. Tenn. R. Crim. P. 32(f). To avoid manifest injustice, the trial court may allow the defendant

to withdraw a guilty

plea that was “not voluntarily, und erstand ingly, or knowingly entered” or was entered because of mistake. State v. Turner , 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995).

Conv er se ly, a trial c ourt will n ot, as a g eneral rule, pe rmit th e withdrawal of a plea

of guilt y to prevent “manife st inju s tice” when the basis of

the relief is predicated upon (a) an accused’s “chang e of heart,” (b) the entry of

the plea to avoid harsher punishment, or (c) an accused’s di ssatis fa ct io n w it h t he ha rs h p un is hm en t i mp os ed by a tr ia l c ou rt or a j ur y.
Id. (quot ing Ray

v. State , 224 Tenn. 164, 170, 451 S.W .2d 854, 856 (1970)) (footnotes omitted). We are bound to uphold the trial court’s determinations regarding the withdrawal of a guilty plea unless the rec ord demon strates t hat it abused its discretion. Id. ; State v. Drake , 720 S.W.2d 798, 799 (Tenn. Crim. App. 1986).

The state argues that

the trial court la cked jur isdiction t o entert ainthe defe

ndant’s m otion to withdraw because his judgments of conviction became fina l on May 7, 2001, th e d ay h e p le d g ui lt y, received his agreed sentences, and wa ived his right to appeal. The defendant’s signed request for acceptance

of his guilty plea, e

ntered on May

7, 2001, states tha t he u nderstood that by pleading guilty he waive d his right t o appe al all nonj urisd icti onal e rrors . We ac knowl edge that this court has held that when

the guil ty plea, the waiver of the right to appea l, and the sentence are all entered on the same day, the judg

ment of conviction becomes finalon that day, rende ring the trial court without jur isdiction to rule upon any subseque nt motion to withdraw. See State v. H all , 983 S.W.2d 71 0 , 711 (Tenn. Crim. App. 1998). However, our supreme court recently

overrul ed this hol ding in State
v. Harold L. Green , N o. E2 00 0- 00 61 6- SC -R 11 -C D, An de rs on Co un ty, slip op. at 4 (Tenn. May 1, 2003). It he

ld that regardless of whether the de fendant has waived the right to appeal, “a judgment of conviction entered upon a guilty pl ea beco mes final thirty day s after acceptance of the plea agreement

and imposition of sentence.” Id. Thus, the trial court properly considered the defendant’s motion to withdraw.

The defenda

nt contends that his guilty pleaswere involuntary because his original attorney
errone ously

advised him that he would nothave to r egiste r as a se xual offe nder if he pled g

uilty to misdemeanor

statutory rape. He argue s that this erroneous belief was a significant, if not determinative, factor

in his dec ision to plead g uilty and that h

e should be

allowed t o withdra w his pleas to correct

manifest injustice . The stat

e contends that the trial court disbelieved the defendant’s assertion that he wo uld not h ave pled guilty if he had known he would be subject to the sexual offender registry because it observed that the defendant ac cepted a plea involving

possible ja

il time despite previously telling his attorne y he would not. It also argue s that the defendant was not subject to a requirement of which he w as una ware because c omplianc e with all Tenness ee laws i s a condition of probation. It concludes that the trial c ourt properly f ound that the defendant’s misinformation about the sexual offender registry did not rise to the level of manifest injustice.-4-

The defendant’s contention that his guilty pleas were involuntary

because they

were based upon the erroneous advice o f counse l is essent ially an ineff ective a ssistance

of counse

l claim. To pre vail, the defendant must show that counsel’s advice was given outside the range of the competency

demanded of attorney s in criminal cases and that there was a reaso nable pr obability that, butfor the attorne

y’ s deficie

nt repre sentation , he would not have p led guil

ty and would have insisted
on going to trial. Hill v. Lockhart , 474 U.S. 52, 58-59, 106 S. Ct. 366, 370 (1 985). As to t he range of competency , the constitut io nal right to the effective assistance of c ounsel does not demand perfection. In this respect, a dec ision to waive a trial by enteri ng a plea of guilty

“entails the inherent risk that the g ood-faith evaluations of a reasonably competent attorney

will turn out to be mistaken either as to the f

acts or a s to what a

court’sjudgmen

t might be on given facts.” McMann v. Richardson , 397 U.S. 759, 770, 90 S. Ct. 1 441, 1448 (1970). Therefore, a plea of g uilty is not vulnera ble to attack if it is based on reasonably competent advice, even if the advice is mistaken. Id. Also, in assessing the attorney ’s conduct, we must el iminate the distorting effects of hindsight and evaluate the conduct from the attorney’ s perspective at the time of the events in issue. Strickland v. Washington , 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984).
In the present case , the attorney’s mistaken a dvice that the defendant would not be subject to the sexual offender registry was not reasonably

competent. In order to ac t within the range of
com petence required of criminal defense attorney s, counsel must conduct adequate legal rese ar c h
on the issues. Cooper v. State , 847 S.W.2d 521, 527-28 (T enn. Cr im. A pp. 19 92) (ci ting United States v. DeCoster , 487 F.2d 1197, 1203-04 (D.C. Cir. 1973)). In the pr esent case, the fact that one convictedof attempted statutory ra pe must register as a sexual of fender is readil y discerned from the Tennessee Code. A sexual offender must register with the Tennessee Bureau of I nvestigation within ten day s of his or her release on probation. Tenn. Code Ann. § 40-39- 103(a). A sexual offender is
one who has been convicted of certain enu m erated sexual offenses, including attempted statutory rape. Tenn. Code Ann. § 40-39-102(2)-(3)(v), (xvi). Thus, the attorney’ s advice that the defendant would notbe subject to the sexual offender registry if he pled guilty to attempted statutory rape was deficient when such erroneous advice could have been avoided by

simply referr

ing to the Code. See Teague v. State , 772 S.W.2d 932, 936-37 (Tenn. Crim. App. 1989) (holding that counsel performed deficie ntly in misadvising the defendant that accepting a plea of fer would have no

effec t upon his capital co nv ic ti on th en on ap pe al wh en a c ur so ry e xamination o f legal authorities would have revealed that counsel were misreading Rule 11, Tenn. R. Crim. P.).
Furthermore, we believe that the proof shows that the defenda nt would no t have pled guilty butfor the attorney ’s deficient performance. The tria l court and the parti es p roceeded upon the stipulation of

the attorney’ s testimony and the defendant’s affidavit, which state that he would not have entered his guilty

pleas ha d he know n he would have to register as a sexual offende r. The record containsno proof t

o the contr

ary . The stat

e sugg ests that t

he trial c ourt found this statement by the defendant incredible because it noted its misgiving s about his insistence on a plea that involved no possible jail time despite the trial court’s advising him at thesubmission hearing that he would go to jail if he violated p robation. Firs t, we question whether accepting a ple a with an agreed sentence of full probation is inconsistent with a defendant’s insistence on a plea inv olvin g no incarceration even though the defendant is informed of the possibility that he could g o to jail if-5-

he violates the conditions of probation. Second, the trial court did not express any doubts about the defendant’s insisting upo n a p lea th at w oul d no t i nvo lv e re gis ter in g as a se xu al o ffe nde r. In fact, it expressly found the

defenda nt had bee

n mis inform ed about the registry requirement. Thus, the record reflects that but f

or his attorney’s de

ficiency, the

defendant would not have pled guilty and would have insi sted upon g oing to trial. The defendant received the ineffective assistance of counsel in violation of his state a nd feder al constit utional ri ghts to th

e effe ctive as sistance

of counse

l. Ce rt ai nl y, such a violation constitutes manifest injustice. See State v. D avis , 823 S.W.2d 217, 220 (Tenn. Crim. App. 1991) (agreeing with federal cases holding that a constitutional violation s trictly curtails a trial court’s discretion under Rule 32).

In conside r ation of th

e foreg oing, we

hold that th

e trial c ourt abus ed its disc retion in determining that a

manifest injustice did not occur relative to the defendant’s entry of guilt y pl eas. We reverse the judgmen

ts of conviction and remand the case to the trial court for trial or other appropriate disposition.

___________________________________ JOSEPH M. TIPTON, JUDGE