IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
STATE OF TENNESSEE v. MICHA EL Q. RAY Direct Appeal from the Criminal Court for Anderson County No. 98CR248A James B. Scott, Jr., Judge

No. E1999-00208-CCA-R3-CD - Dec ided April 19, 2000

Defendant

pled guilty to one count of second degree murder. Defendant subsequently filed a motion to withdraw his guilty plea. The trial court denied the motion and Defendant challenges that d

enial. The judgment of the trial court is reversed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Remanded

W OODALL , J., delivered the opinion of the court, in which R ILEY , J., and W ITT , J. joined. David A. Stuart, Clinton, Tennessee, for the appellant, Michael Q. Ray.

Paul G. Summers, Attorney General and Rep orter, Patricia C. Kussmann, Assistant Attorney General, James N. Ramsey, D istrict Attorney G

eneral, and Jan

ice G. Hic

ks, As sistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Defendant

Michael Q. Ray was indicted by the Anderson County Grand Jury for first degree murder. Defendant

subsequently pled guilty pursuant to a negotiated plea agreement to a charge of seconddegree murder. Shortly thereafter, Defendant filed a motion to withdraw his guilty plea, but the trial court subsequently denied the m otion, imposed a sentence of twenty years, and entered judgment. Defendant challenges his conviction, raisingthe following issue: whether the trial court erred when it deniedhis motion to withdra w his guilty

plea. After a re

view of the reco

rd, we reverse the judgment of the trial court and remand this matter for further proceeding s co nsistent with this opinion.
BACKGROUND

On April 5, 1999, Defendant petitioned the trial court to accept his guilty plea to a charge of seconddegree murder

and the State petit

ioned the trial co

urt to amend the ind

ictment so

that it would charge second degree m urder rather th

an first degree

murder. That same

day, the tria

l court conducted

a hearing in which Defendant and several other individuals entered guilty pleas partia

lly
en masse and partia

lly individually. Ini

tially , the tri al court advised Defendant and the other-2-

individuals

collectively that they were presumed innocent and they had a right to a jury trial in which the State would have to establish their guilt beyond a reasonable doubt. The court then stated that if the members of the group had a jury trial, they would not have to testify, but they could do so if they chose. The court also told the members of the group that they could not appe

al from a guilty plea, but if they were convicted in a jury trial, they could appealtheir convictions and sentences and they would have a

right to counsel on a

ppeal.

After taking the plea of

another individual, the trial court asked the prosecutor for the facts of Defendant’s case. The prosecutor responded that the State would have shown that the victim had been shot five times, tha t Defendant was s

een outside the vic

tim’s a partment at the time of the killing, that

Defendant told two witnesses that heshot the victim, and that Defendant told the police that the victim owed him $250.00 for a cocaine purchase. At this point, the trial court questioned Defendant

about his background and Defendant stated that he was ninete

en years old and h

is prior criminal record consisted of one juvenile adjudication. When the co urt asked Defendant whether he was aware of the sentence he would receive, Defendant responde d that he believ ed he wou ld receive a sentence of twenty years at 30%. After a colloquy between the court and both attorneys about the fact that Def

endant would

be required to serve 100% of his sentence, the trial court advised Defendant

to discuss his sentence with defense counsel and the court then took the pleas of several other individuals. Following the disposition o f the o ther cases, the trial court asked Defendant whether he realized that he would have to serve 100% of his sentence and Defendant responded that he did. The trial court then stated

that it found that Defendant had entered his plea knowingly and voluntarily. The trial court also stated that it found that the amended indictment was acceptable.

On April 8, 1999, Defendant filed a motion to withdraw his guilty plea in which he alleged that his plea was not entered knowingly and voluntarily. On April 15, 1999, the trial court entered judgmentin this case. On May 4, 1999, Defendan t filed an amende

d motion to withdraw

his guilty plea which alleg

ed that the trial c

ourt had failed to

advise him of cer

tain rights.

Th e trial court conducted a hearing on Defendant’s motion on May 17, 1999. During th e hearing, defense counselargued that the record did not indicate that Defendant had been advised of the nature of

the charge, the minimum and maximum possible sentences, the right to counsel during trial, the privilege against self-incrimination, the right to confront and cross-examinewitnesses, and the fact th at he could be asked questions about the offense the answers to which could be used against him in a prosecution for perjury. T he tri al court then reviewed the transcript of the plea hearing and deniedthe motion after finding that it had “touched base on everything [Defendant] has in the way of a constitutional right.”

ANALYSIS-3-

Defendant

contends that he should have been allowed to withdraw his guilty pl ea because the trial court faile

d to advise him of ce

rtain rights before it accepted

the plea. The State agrees that Defen dant

should have been allowed to withdraw his guilty plea because the trial court fa iled t o advise him of his rig

hts.
A.

In order to satisfy constitutional standards, a gu il ty plea must be entered knowingly, voluntarily

a nd intelligently. Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 2 3 L.Ed.2d 274 (1969); Joh nson v. State , 834 S.W.2d 922, 923 ( Tenn. 1992). A de

fendant enters a knowing and voluntary plea when he or she understands the rights and circumstances involved and nevertheless

chooses to waive or relinquish those rights

. State v. Mackey , 553 S.W.2d 337, 340 (Tenn. 1977). This requir es that before th

e court ma

y accept a guilty plea, the defendant must be advised of the privilege against compulsory self- incrimination, the right to a jury trial, and the right to confront the accusing witnesses. Boykin , 395 U.S. at 243, 89 S.Ct. at 1712.

In addition to

the advice mandated by Boykin , the Tennessee Supreme Court has exercised “its supervisory power to insurethat the courts of this State afford f

airness and justice to def

endants in criminal cases" by adopting additional requirements. See Mackey , 553 S.W.2d at 340. Th e supreme court held that before accepting a guilty plea, the trial court must personally in form the defendant of certain rights and make sure that the defendant understand s thos e rights. Id. at 341. This information inc

ludes: (1) T he nature of the charge to which the plea is offered, and the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and, i f applicable, that a different or additional punishment may result by reason of hi s prio r convictions or other factors which may be established in the present action after the entry of his plea; and (2) If the defendant is not represented by an attorney, that he has a right to be represented by
an attorney at ever

y stage of the proc

eeding against him

, and if necessa

ry, one will b e appointed to represent him; and (3) That he has a righ

t to plead not guilty o

r to persist in that p

lea if it has already been made, and, that he has the right

to be tried by a jury and at that trial has the right to the assistance of counsel, the right

to confront

and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and (4) That if he pleads guilty, there will not be a further trial of any kind excep

t to determine the sentence so that by pleading guilty he waives the right to a trial; and (5) That if he pleads guilty, the court or the state may ask him questions about the offense to which he has pleaded, and if he answersthese questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury or false statement, and, further, that, upon the sentencing hearing, evidence o f any prior convictions may be presented to the judge or jury for their consideration in determining punishment. Id. Further, the trial court must also determine that the plea is voluntary and that there is a factual basis for the plea. Id. In State v. McClintock , 732 S. W.2d 2 68 (Tenn.1987), the supreme court-4-

addedto the Mackey procedure therequirement that "a court accepting a guilty plea must make it clear to the defendant that the resulting judgment of conviction may be used in a subsequent proceeding to enhance the punishment for subsequent of fenses." Id. at 273. Many of the above requirements have been included in Rule 11(c) of the Tennessee Rules of Criminal Procedure.

Absolute literal compliance with the above advice is not required and substantial compliance is sufficient. State v. Neal , 810 S.W.2d 131, 137 (Tenn. 1991), overruled in part on other grounds , Blankenship

v. State , 897 S.W.2d 902 (Tenn. 1993). Substantial compliance requires expressing the sense of the substance of the required advice. Neal , 810 S.W.2d at 137. Although the failure to advise a defendant of the above rights before accepting a guilty plea is error, the error is harmless if the defendant was in fact aware of the rights. Johnson , 834 S.W.2d at 926. The State has the burden of proving that the error was harmless. Neal , 810 S.W.2d at 139.

B.

Defendant

essentially conte

nds that the trial c

ourt fai led to satisfy most of the Boykin , Mackey , and McClintock requirements when it accepted his guilty plea. The record indicates that the trial court clearly informed Defendant that he had the right to a jury trial, he had the right to counsel at every stage of the proceedings, and that there would be no further trial if he pledguilty. In addition, the record indicates that the trial court ensured that there
was a factual basis f

or the plea and the

court al so determined that the plea was voluntary and was not the result

of force, threats, or promises. The trial court also ma

de somewhat vague

statements regarding D efendan t’s privilege against self-incrimination and his right to plead not guilty. How ever, we need not decide whether these statements were too vague to satisfy t he Boykin , Mackey , and McClintock requirements be

cause it is clear

that the tria

l court completely

failed to provide Defenda

nt with other advic

e as required by

those three case

s.
The record indicates that although the trial court engaged i n a dis cussion with Defendant about the s enten ce he would rece ive pursuant to the

plea agreement

, the court faile

d to advise Defendant

of the possible max

imum and minimum sente nces that c ould be im

posed for a second degr ee mur der conviction. See Mackey , 553 S.W.2d at 341. In addition, the trial court did not provide Defendant with any information about the nature of the second degree murder offense that he was pleading guilty to. See id. Further, the tria l court did

not inform Defendant that if he pled guilty, he cou ld b e asked questions on the record and his answers could be used against him in a perjury prosecution. See id. Moreover, the trial court did not advise Defendant that if he pled guilty, his conviction could be used to enhance the sentences for future convictions. See McClintock , 732 S.W.2d at 273. Finally, the trial court did not advise Defendant that if he pled not guilty a nd proceeded

to trial, he would ha

ve the right to

confront and cr

oss-examine the w

itnesses against

him. See Boykin , 395 U.S. at 243, 89 S. Ct. at 1712; Mackey , 553 S.W.2d at 441.

It is true that Defendant’s petition to plead guilty contains language i ndicating that he had been informed of the na

ture of the char

ge against him, the possible sente

nces, that he has

a right to-5-

“see and hear all witne

sses against

[him],” and had been info rmed of all other c

onstitutional rights

. However, the Tennessee Sup reme Courthas stated that such a petition can only fill the void created by the trial court’ s failure to provid e the required in

formation under t

he following circ

umstances: If a sworn petition to be allowed to plead guilty is filed by the defendant, setting out the fact of the defendant's knowledge of all of the facts required to be covere d by the judge in the required dialogue, and there i s evidence that he in fact was aware of the truth of the allegations of the pet ition from the testimony of an attorney or attorneys or other learned person who advisedwith him in complete detail regarding the contents of the petition, and the defendant testif

ied on the record

that he understood

the contents

of the petition that he had filed, when and if this is found by the court to be true then the error in not articulating the full required rights information and conv icti on consequences could be found to be harmless. Neal , 810 S.W.2d at 139. In this case, there is no testimony in the r ecord from Def

endant, his attorney, or anyone else which indicates that Defendant was advised in detail of the contents of the petition and he understood the petition. Thus, the trial court’s error in failing to provide the required information cann

ot be considered

harmless.
C.

The withdrawal of a guilty plea is governed by Rule 32(f) of the Tennessee Rules of Criminal Procedure, whic

h states: A motion to withdraw a plea of guilty may be made upon a showing by the defendant of any fair and just reason only before sentence is imposed; but to correct manifes t injustice, the court after sentence, butbefore the judgment becomes final, may set aside the judgment of conviction and permit the defendant to withdraw his plea. Tenn. R. Crim. P. 32(f

). This Court has sta

ted that: The rule creates two standards for determining whether anaccused should be permitted to withdraw a plea of guilty. The proper standard to be applied by the trial court depends upon when the accused

files the motion to withdraw the plea. When the motion is f iled prior to the imposition of

sentence, the sta

ndard to be applie

d is "a fair and just reason." When the motion is filed after the

imposition of senten

ce, the standard

to be applied is "man

ifest injustice." State v. Turner , 919 S.W.2d 346, 354–55 (Tenn. Crim. App. 1995).

In this case, Defendant entered his guilty plea on April 5, 1999, an d filed a motion to withdraw his plea on April 8, 1999. Areview of the record indicates that during the plea hearing, the trial court explained the sentence Defendant would receive , mad e sure that Defendant understood the sentence, a

nd ordered Defe

ndant to be place

d in custody to begin

serving his senten

ce. While the trial court may not have used the most articulate lan guage, th e trial court did in fact impose sentence during the hearing on April 5, 1999. However, there is no dispute that Defendant filed the motion to withdraw his guilty plea before judgment became fi nal, sin ce the judgment was not entered until April 15, 1999.

Thus, the “manifest

injustice” standard is applicable in this case. We concl ud e that the trial court’s failure to comply with the requirements of Boykin , Mackey , and McClintock

resulted in a “manifest injustice” which entitled Defendant to withdraw his

guilty plea.-6-

See id. at 355 (stating that “[a] trial court may permit the withdrawal of a plea of guilty to prevent ‘manifest injustice’ when

. . . the plea of guilty was not voluntarily

, understandingly, or knowingly entered.”).
CONCLUSION

I n conclusion, it is cle

ar that the trial c

ourt failed to pro

vide Defendant w

ith all o f th e information required by Boykin , Mackey , and McClintock

. Further, nothing in the record indicates that the nineteen-year-old Defendant, whose prior criminal record apparently consisted of one juvenile adjudication, was in fact aware of the information the trial court failed

to provide him with. Accordingly, we REVERSE the judgment of

the trial court and REMAND this matter for entry of
an order setting aside Defendant’s guil ty plea and the resulting conviction and for further proceedings consistent with this opinion.