IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 19, 2013 Session

STATE OF TENNESSEE v. MELVIN J. BRANHAM

Appeal from the Circuit Court for Sevier County

No. 15582-II Richard R. Vance, Judge

No. E2013-00638-CCA-R3-CD - Filed March 4, 2014

The Defendant, Melvin J. Branham, pled guilty to robbery and received a sentence of fifteen

years as a career offender to be served at sixty percent. Pursuant to the terms of the

agreement, he was ordered to report for incarceration thirty days following entry of his plea.

Prior to the expiration of that thirty-day period, the State successfully sought to revoke the

Defendant’s bond based upon the Defendant’s drug usage. The Defendant thereafter filed

a motion to withdraw his guilty plea or have his bond reinstated, arguing that he would not

have pled guilty had he known his bond would have been revoked before the thirty days ran

out. The trial court denied the motion, and the Defendant appeals. After review, we

determine that the trial court did not abuse its discretion in denying the motion to withdraw

the guilty plea where the Defendant failed to show a manifest injustice and that the proper

avenue for review of the bond revocation was via Rule 8 of the Tennessee Rules of Appellate

Procedure. Accordingly, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and

JAMES CURWOOD WITT, JR., JJ., joined.

Benjamin S. Burton, Sevierville, Tennessee, for the appellant, Melvin J. Branham.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;

James B. (Jimmy) Dunn, District Attorney General; and Ashley D. McDermott, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND
A Sevier County grand jury charged the Defendant with especially aggravated

robbery, a Class A felony, for offenses allegedly committed against Jeffrey Prather (the

victim) on April 27, 2010. See Tenn. Code Ann. § 39-13-403. The Defendant proceeded to

trial by a jury on July 18, 2012. At trial, the victim testified that he agreed to meet the

Defendant at a Walgreens in Pigeon Forge to purchase some marijuana from the Defendant.

Once together inside the victim’s car, the Defendant stabbed the victim in the neck and took

at least $240.00 in cash from him. Thereafter, the victim was transported to University of

Tennessee Medical Center, where he was hospitalized for two days. Following the State’s

direct examination of the victim, the Defendant expressed a desire to enter a guilty plea.

After questioning the Defendant about the various rights he was waiving, the trial

court accepted the Defendant’s plea to robbery, a Class C felony. See Tenn. Code Ann. § 39-

13-401. The plea agreement consisted of the following terms: a fifteen-year sentence as a

career offender, to be served at sixty percent; payment of restitution and court costs; a

restraining order protecting the victim and another State’s witness; and a report date of

August 18, 2012, by six p.m. for incarceration. Additionally, the prosecutor stated, “[W]hile

he’s out for the next thirty days, he’s to be on an ankle monitor and he’s going to report to

probation tomorrow to get the ankle monitor.” The court ordered the Defendant to “report

to probation tomorrow” to obtain the ankle monitor and instructed the Defendant that he was

not leave town as another “condition of . . . remaining on bond until the 18th.”

The State filed a motion to revoke the Defendant’s bond on July 30, 2012, alleging

the following:

On July 27, 2012, [the Defendant’s] ankle monitor wasremoved. When

probation arrived at [the Defendant’s] house, he admitted to the use of

Marijuana within the past 30 days, Roxicodone with the past 5 days, Morphine

within the past 5 days, and Xanax within the past 14 days. Additionally, [the

Defendant] admitted that he was injecting Roxicodone and Morphine, and

showed probation “track marks” on his arms where he had injected the drugs.

A bond revocation hearing was held the following day.

At the hearing, the Defendant’s probation officer Anthony Kale testified about the

allegations contained in the motion. Mr. Kale stated that, once the Defendant’s ankle

monitor was removed from his leg on July 27, 2012, he and another officer attempted to

locate the Defendant. It was determined that the Defendant was no longer at his residence,

so they “were watching him” and trying to contact him. At some point, they were successful

in getting a hold of the Defendant, who informed them that he was on the way to meet his

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girlfriend at the restaurant where she worked. They instructed the Defendant “to go to the

probation office immediately[,]” and he complied.

Once the Defendant arrived, he was unable to “produce” urine for a drug test. After

they observed “track marks” on the Defendant’s arms, he admitted to using the drugs

identified in the motion according to Mr. Kale. An “admission of use” form was entered into

evidence.

On cross-examination, Mr. Kale was asked, “[W]here did [he] get the understanding

that [the Defendant] was to be free from drug use[,]” and Mr. Kale responded, “It’s an illegal

activity. I thought that goes without saying.” Mr. Kale stated that he was unaware of any

order instructing that he drug test the Defendant. Mr. Kale confirmed that the Defendant did

call the probation office once the ankle monitor came off, although the Defendant apparently

“left a message with the wrong officer.” It took approximately “two hours, two and a half”

hours to locate the Defendant after receiving the alert that the ankle monitor had been

removed.

The Defendant testified that he was not informed that he would be subjected to

random drug screens as a part of the plea agreement. He explained how the ankle monitor

came off his leg, stating that it came off while he was helping his mother move some boxes

and a bed. He claimed he “rushed next door” to borrow a phone and called the probation

office immediately. When he was unable to reach anyone at the probation office, he called

“the sheriff’s department dispatch to inform them . . . that [he] wasn’t running.” He then

went to his girlfriend’s work to get the “charger” to charge the ankle monitor, which was in

his girlfriend’s car. While en route, the Defendant received a call from a probation officer

and went to the probation office to meet him. The Defendant stated that he was truthful with

the officers about his drug usage and confirmed that he had “been at every court date that [he

had] known about[.]”

On cross-examination, the Defendant claimed that he used Oxycodone rather than

Roxicodone and that he had a prescription for the Oxycodone, although he admitted he did

not have a prescription for the other medications. The Defendant was then asked about how

he obtained the drugs. He stated that, after his guilty plea in this matter, a friend of his, “a

known drug user, a drug seller[,]” contacted him because the Defendant was “going away for

a while” and wanted to “do a pill one more time together.” The Defendant confirmed that

he injected the morphine intravenously. On redirect, the Defendant stated that he would not

have entered his guilty plea “had the thirty days to report for [his] sentencing not been a part

of that agreement[.]”

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The State argued that the Defendant’s bond should be revoked because of his illegal

drug use. Defense counsel replied that the purpose of the bond was to ensure the

Defendant’s appearance in court, which was an issue unrelated to the Defendant’s drug

usage. The trial court revoked the Defendant’s bond, ruling as follows:

It would appear the allegation regarding the ankle monitor has been

conceded. The State’s own witnesses say that he contacted the probation

department. He made the calls. It came off apparently accidentally. There’s

nothing to refute that.

What concerns the [c]ourt is the illegal use of high-powered drugs,

injecting those drugs.

There are two purposes of bond, not just one. The first purpose is to

ensure someone’s attendance at court. He’s appeared. He’s appeared when

scheduled. The other purpose is to ensure the public safety of the community

and of this defendant. The injection of illegal drugs is dangerous. He tells us

that he met with a known drug dealer, someone in the business of dealing

drugs, used these drugs. A person under the influence of drugs does constitute

a threat of safety to himself, to others while he’s under the influence.

It is implicit in any condition of release in the community, whether it’s

on bond, whether it’s on probation, whether it’s on a furlough or whatever it

is, that the person not commit any crimes. It is a crime to illegally use

narcotics.

. . . .

. . . The [c]ourt has to bear in mind too, this whole case from the facts

that I heard and the stipulated facts presented in the plea revolved around

drugs. This defendant and this victim got together for a drug transaction which

resulted in a serious injury and led to this case. It was about drugs. And that

alone demonstrates the danger to the public and to others and to himself

anytime you’re engaged in illegal drug transactions. That’s what this case was

all about. A man was seriously injured.

So for all those reasons the bond is revoked. He’s ordered into custody

immediately to begin serving the sentence.

On that same date, the Defendant filed a motion to withdraw his guilty plea or that his

bond be reinstated. A hearing on the motion was held on February 6, 2013. First, defense

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counsel argued that revocation of the Defendant’s bond was improper because “making

 Although the motion states that a memorandum of law is attached, no such pleading appears in the appellate record.

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It is the appellant who bears the burden of preparing a complete record on appeal. See State v. Ballard, 855 S.W.2d 557,

560 (Tenn. 1993). Accordingly, we will rely on the arguments of defense counsel set forth at the hearing on the motion.

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statements to a probation officer of drug use is not a reason to violate bond conditions.”

Next, defense counselsubmitted that the Defendant should be allowed to withdraw his guilty

plea due to a “manifest injustice,” in that he was never informed that drug usage would

violate his plea agreement. As an alternative to withdrawal of the plea, defense counsel

asked that the Defendant be granted the originally agreed to thirty-day period, noting that the

Defendant’s father had recently passed away and the family wanted “to have some sort of

get-together and say[] goodbye.” In reply, the State first noted the previous revocations of

the Defendant’s bond prior to the jury trial in this case and then that the previous conditions

of the Defendant’s bond were still in effect, conditions which included not associating “with

known drug users” and not using drugs.

The trial court denied any request for relief from the Defendant, ruling as follows:

There is no evidence or argument even about the plea itself, and the

[c]ourt found and still finds today in absence of any argument to the contrary

that [the Defendant’s] waiver of his right to trial by jury, the guilty plea and his

plea of guilt were freely and voluntarily and knowingly made. The ultimate

conviction, sentence, was exactly as agreed upon and is exactly as ordered by

the [c]ourt. The disparity and the dispute is not over the voluntariness of the

plea, the understanding of his plea. It’s on what happened after his plea while

he was permitted to remain on bond for a period of thirty days to wrap up his

affairs. The State agreed that he could remain on bond. The [c]ourt approved

that agreement. Certain bond conditions remained in place. At the hearing it

was determined, found by the [c]ourt and admitted by [the Defendant], and I

appreciate his candor, that he had been using illegal drugsintravenously during

that time. He had lost the monitor or the monitor had come off and was

replaced, but that was a violation of the bond condition, not just that he had

used drugs, but that he was involved in intravenous drug use and by necessity

associating with other people who are involved in illegal drug activity. The

[c]ourt found overwhelmingly that he had violated the conditions of his bond,

bond conditions that he knew, that were in writing, and were made clear to

him. The revocation of that bond did not impact or affect the sentence. It did

not change the sentence and plea agreement he had reached. It only affected

whether he was to remain on bond for that thirty days.

The State did not violate the agreement. [The Defendant] violated the

agreement. It was his conduct, the use, the intravenous use of illegal drugs

during that period of time that resulted in the State filing its motion, and the

[c]ourt revoked the bond. And the [c]ourt finds it was proper to do so.

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The trial court entered an order to that effect, and the Defendant timely appealed the denial

of his motion to this court.

ANALYSIS

On appeal, the Defendant argues that the revocation of his bond was improper and

creates a manifest injustice for which the Defendant’s guilty plea may be withdrawn. He sets

forth several reasons why the revocation of his bond was improper, contending (1) that his

previous bond had expired and probation was not imposed; (2) that there was no indication

from the record that the Defendant remained on any of the previous bond conditions; (3) that

the order setting forth the original bond conditions did not meet statutory requirements; and

(4) if the bond conditions were properly in place, that violation for drug usage and

associating with drug users was improper. He then contends that he was never informed that

“casual drug use would violate the terms of his plea agreement[,]” and therefore, the State

breached its agreement allowing the Defendant to be released for thirty days before he had

to report for execution of his sentence. The State responds that the trial court properly denied

the Defendant’s motion to withdraw his guilty plea filed after the trial court revoked his

bond. Specifically, the State asserts that the Defendant remained on bond following his

guilty plea and that revocation for drug usage and association with drug users was proper.

Finally, the State notes that, if the revocation of the Defendant’s bond was somehow

improper, the appropriate avenue for relief was to file a Tennessee Rule of Appellate

Procedure 8 motion in this court, that it does not follow that he may now withdraw his guilty

plea.

Our Rules of Criminal Procedure provide, “After sentence is imposed but before the

judgment becomes final, the court may set aside the judgment of conviction and permit the

defendant to withdraw the plea to correct manifest injustice.” Tenn. R. Crim. P. 32(f)(2).

In analyzing the meaning of “manifest injustice,” this court wrote,

Rule 32(f) does not define “manifest injustice,” however, courts have

identified circumstancesthat meet the manifest injustice standard necessary for

withdrawal of a plea. Withdrawal to correct manifest injustice is warranted

where: (1) the plea was entered through a misunderstanding as to its effect, or

through fear or fraud, or where it was not made voluntarily; (2) the prosecution

failed to disclose exculpatory evidence as required by Brady v. Maryland, and

this failure to disclose influenced the entry of the plea; (3) the plea was not

knowingly, voluntarily, and understandingly entered, and (4) the defendant

was denied the effective assistance of counsel in connection with the entry of

the plea.

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State v. Virgil, 256 S.W.3d 235, 240 (Tenn. Crim. App. 2008) (internal citations omitted).

A defendant bears the burden of establishing that his plea should be withdrawn to correct a

manifest injustice. State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995).

Moreover, this court reviews a trial court’s decision regarding a motion to withdraw a guilty

plea for an abuse of discretion. State v. Crowe, 168 S.W.3d 731, 740 (Tenn. 2005).

The issue in this case is whether the trial court properly denied the Defendant’s

motion to withdraw his guilty plea after the trial court revoked the Defendant’s bond. The

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Defendant cites to Tennessee Code Annotated sections 40-11-130 and 40-11-138, arguing

that the trial court lacked the authority to place him on bond after his sentence was

pronounced and failed to order a period of probation, its only option. However, it is clear

from the record that the Defendant requested a report date of thirty days from the date of

sentencing and agreed to “remaining on bond” as a part of the plea agreement. At the motion

hearing, the Defendant did not challenge the trial court’s authority to impose bond for thirty

days following his plea but only challenged the trial court’s authority to revoke the bond

based upon certain conditions. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim.

App. 1996) (“Ordinarily, issues raised for the first time on appeal are waived.”); see also

Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted

to a party responsible for an error or who failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of an error.”). Because the Defendant

agreed to being placed on bond, and because the Defendant failed to raise the issue of the

trial court’s authority to order such in the proceedings below, we decline to engage in an

analysis of the bond statutes as requested by the Defendant.

Additionally, we agree with the State that revocation of the Defendant’s bond based

upon the imposition of certain conditions, not associating with known drug users and not

using drugs, is not appealable pursuant to Rule 3. See Tenn. R. App. P. 3(b); see also State

v. Melisha Moore, 262 S.W.3d 767, 771 (Tenn. Crim. App. 2008) (“[T]he imposition of a

bond condition imposing random drug screens is not appealable pursuant to Rule 3.”).

Rather, Tennessee Code Annotated section 40-11-144 governs review of release decisions:

(a) The actions by a trial court from which an appeal lies to the supreme

court or court of criminal appeals in granting, denying, setting or altering

conditions of the defendant’s release shall be reviewable in the manner

provided in the Tennessee Rules of Appellate Procedure.

As discussed below, the Defendant has not followed the proper procedure for review of any motion to reinstate his

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bond.

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(b) If the action to be reviewed is that of a court from which an appeal

lies to a court inferior to the supreme court or court of criminal appeals, review

shall be sought in the next higher court upon writ of certiorari.

Tenn. Code Ann. § 40-11-144. Additionally, Rule 8 of the Tennessee Rules of Appellate

Procedure provides, in pertinent part, as follows:

Before or after conviction the prosecution or defendant may obtain

review of an order entered by a trial court from which an appeal lies to the

Supreme Court or Court of Criminal Appeals granting, denying, setting or

altering conditions of defendant’s release. . . . After conviction and after the

action is pending on appeal, a written motion may be made either in the trial

court in which judgment was entered or in the appellate court to which the

appeal has been taken. On entry of an order granting or denying a motion for

a change in bail or other conditions of release, the trial court shall state in

writing the reasons for the action taken.

Review may be had at any time before an appeal of any conviction by

filing a motion for review in the Court of Criminal Appeals or, if an appeal is

pending, by filing a motion for review in the appellate court to which the

appeal has been taken.

Tenn. R. App. P. 8(a). Rule 8’s purpose is to ensure “the expeditious review of release

orders.” Id., Advisory Comm’n Cmts. Not only is Rule 8 designed to expedite review of

release orders, but our supreme court has said that it also is the “only effective remedy” for

“addressing unsatisfactory release orders . . . .” State v. Melson, 638 S.W.2d 342, 358 (Tenn.

1982). Thus, the proper method of review of either of the trial court’s orders revoking the

Defendant’s bond or declining to reinstate his bond was by filing a motion for review in this

court. See Tenn. R. App. P. 8; see also Moore, 262 S.W.3d at 771. The Defendant has failed

to follow the proper procedure for filing a Rule 8 appeal, and we decline to treat this appeal

as such.

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We now turn to the issue at hand—whether revocation of the Defendant’s bond

created a manifest injustice for the which the remedy would be to allow withdrawal of this

guilty plea. The Defendant argues that his plea was not knowingly, voluntarily, and

understandingly entered because he “was never informed that casual drug use would violate

the terms of his plea agreement.” We disagree. The Defendant’s casual drug usage violated

the terms of his bond rather than the terms of his plea agreement. Any error in this regard

Accordingly, we likewise will not address the Defendant’s allegation concerning the trial court’s failure to state its

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reasons for altering the conditions of the Defendant’s bond in writing.

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could be expeditiously reviewed by the procedures outlined above. The appropriate remedy

would not have been to set aside the Defendant’s plea, and the Defendant makes no real

argument that the imposition of the initial thirty-day period to report was somehow material

to his decision to plead guilty. In fact, at the motion for withdraw hearing, which took place

over six months after his bond was revoked, the Defendant, as an alternative remedy, asked

for the imposition of the original thirty-day period, noting his father’s recent death.

We agree with the trial court that revocation of the Defendant’s bond did not impact

the ultimate, fifteen-year-sentence agreement reached by the parties, only affecting whether

the Defendant was able to remain on bond for thirty days. The Defendant’s plea colloquy

shows that he entered his plea voluntarily and that he understood the terms of the plea

agreement and the rights he was waiving by entering his plea. On this record, we cannot find

that the trial court in any way abused its discretion in denying the Defendant’s motion as

there was no manifest injustice that would require the withdrawal of the guilty plea. This

issue is without merit.

CONCLUSION

In sum, we conclude that the trial court did not abuse its discretion in denying the

Defendant’s motion to set aside his plea and that the Defendant has failed to follow the

proper procedure for review of the revocation of his bond. Accordingly, the judgment of the

trial court is affirmed.

___________________________________ 

D. KELLY THOMAS, JR., JUDGE

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