IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 3, 2021 Session

STATE OF TENNESSEE v. CLEOTRIS RUBEN

Appeal from the Criminal Court for Shelby County

Nos. C1709290, 15-04728 James M. Lammey, Judge

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No. W2020-01498-CCA-R3-CD

___________________________________

The Defendant, Cleotris Ruben, entered guilty pleas pursuant to North Carolina v. Alford, 

400 U.S. 25 (1970), to one count of theft of property valued more than $1,000 but less 

than $2,500, a Class E felony, and one count of theft of property valued $1,000 or less, a

Class A misdemeanor. After entry of the pleas but prior to sentencing, the Defendant 

discovered that, contrary to what he had been told by the two attorneys representing him,

he was not eligible for judicial diversion. The Defendant moved to withdraw his guilty 

pleas, and the trial court denied the motion. On appeal, this court concluded that counsel 

had a conflict of interest and reversed the decision, remanding for appointment of new 

counsel. The trial court appointed new counsel, held a hearing, and again denied the 

Defendant’s motion to withdraw his pleas, and the Defendant appeals. We conclude that 

the trial court abused its discretion in denying the motion, and we reverse and remand the 

case for entry of an order permitting withdrawal of the pleas and for further proceedings. 

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

Case Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

W. Price Rudolph, Memphis, Tennessee, for the appellant, Cleotris Ruben.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Jamie Kidd, Assistant 

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

12/09/2021
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OPINION

FACTUAL AND PROCEDURAL HISTORY

In September 2015, the Defendant was indicted for theft of property valued 

between $10,000 and $60,000, a Class C felony, alleged to have occurred between 

December 2012 and January 2015. The Defendant hired private counsel to represent 

him. In November 2017, while this charge was pending, the State also charged the 

Defendant by criminal information with a separate count of theft of property valued 

between $1,000 and $2,500, a Class E felony, alleged to have occurred in March 2017.

The Defendant was represented by appointed counsel on the Class E felony theft charge. 

According to the State’s summary of the proof at the plea hearing, the factual basis 

of the Class C felony theft charge was that the Defendant, over the course of more than 

two years, had negotiated fourteen properties for Ms. Jill Holmes and Mr. Gregory 

Holmes, who gave him $19,100 to increase their chances of getting a contract. Because 

none of the contracts were successfully negotiated, the victims asked for the return of 

their funds. The Defendant agreed to return approximately $14,000 but did not do so. 

The factual basis of the Class E felony charge was that Ms. Tammy Cowans gave the 

Defendant $1,700 to act as her realtor but subsequently requested the return of her money 

when she discovered that the homes she was attempting to purchase were already 

occupied and that the Defendant’s realtor’s license was revoked.

On January 29, 2019, the date that trial was scheduled for the Class C felony theft, 

the Defendant entered best interest guilty pleas. On the charged Class C felony theft, the 

Defendant pled guilty to the lesser included offense of theft of property valued more than

$1,000 but less than $2,500, a Class E felony, and on the charged Class E felony theft, the 

Defendant pled guilty to the lesser included offense of theft of property valued $1,000 or 

less, a Class A misdemeanor. Private counsel stated to the court that the Defendant 

wished to enter best interest guilty pleas and requested a delay in sentencing to “give[] us 

time to go get his [Tennessee Bureau of Investigation (“TBI”)] certification” regarding 

diversion eligibility. The trial court asked if the Defendant was diversion eligible, and 

appointed counsel responded, “He has been.” The prosecutor noted that the State did not 

oppose diversion if the Defendant proved eligible and that, as part of the agreement, “if 

he does come back eligible for diversion,” it was recommending a six-year supervision 

period for the Class E felony theft. The State recommended a concurrent probationary 

sentence of eleven months and twenty-nine days for the misdemeanor theft conviction. 

The trial court told the Defendant that diversion was recommended “if you are 

eligible and I assume, you’re the only one who could tell us.” The judge asked the 

Defendant, “Do you have anything in your background that you think would stop this?”
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The Defendant responded, “No, sir.” Asked if he had ever entered a guilty plea, he 

recalled that he had pled guilty to driving on a suspended license twenty years earlier. 

The court noted that the jury was ready to try the case, and the Defendant agreed he was 

waiving his right to a jury trial. The Defendant agreed with the court’s statement that by 

entering the pleas, the Defendant was stating it was in his best interest to plead guilty and 

that he wanted “to accept the State’s offer of, basically, up front diversion.”

On February 20, 2019, private and appointed counsel requested a postponement of 

sentencing and indicated an intention to file motions to withdraw the guilty pleas due to 

the discovery that the Defendant was not eligible for diversion. On February 25, 2019, 

appointed counsel filed a motion to withdraw the Defendant’s guilty plea in the indicted 

Class E felony theft, alleging that the Defendant entered guilty pleas believing himself to 

be eligible for diversion and having been advised that he appeared to be eligible. 

Appointed counsel stated that the TBI subsequently indicated that the Defendant was not 

eligible for diversion, that it took two weeks to obtain the pertinent records from the 

archives to confirm the TBI report, and that the Defendant would not have pled guilty had 

he known he was not eligible for diversion. Private counsel filed a similar motion on 

February 27, 2019. 

The trial court held a hearing, during which the Defendant was represented by the 

same attorneys and during which counsel stated that they had advised the Defendant he 

was eligible for diversion and that they subsequently discovered he was not eligible. 

“Counsel maintained that the Defendant ‘was under the 100 percent full faith that he was

going to be diversion eligible’” and argued that relief should be granted because “‘but for 

the fact that he’s – was diversion eligible he would not have entered a plea.’” State v. 

Cleotris Ruben, No. W2019-00507-CCA-R3-CD, 2020 WL 864163, at *3 (Tenn. Crim. 

App. Feb. 19, 2020), no perm. app. filed. Private counsel noted he “would have to 

probably advise [the Defendant] ... to file post-conviction relief against me for having –

telling him that he appeared to be diversion eligible” and for advising him to enter a plea. 

The State argued against granting the motion, noting the delay in trying the case and 

stating that trial had been postponed once at the State’s request, when the State was 

awaiting the results of a subpoena, and twice at the Defendant’s request. The prosecutor 

noted that delay in general made it difficult to get witnesses and evidence together and 

that “[i]t was difficult to get all those people together.” The trial court denied the 

motions to withdraw the pleas and sentenced the Defendant to six years of probation for 

the Class E felony theft and a concurrent eleven months and twenty-nine days of 

probation for the Class A misdemeanor, and it ordered him to pay restitution. The cases 

were consolidated for appeal, and this court reversed the judgment of the trial court and 

remanded for appointment of new counsel and a new hearing on the Defendant’s motions 

because this court concluded that both appointed and private counsel “had a clear conflict 
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of interest” and that they were necessary witnesses to establishing the factual basis of the 

Defendant’s motions to withdraw his pleas. Id. at *4.

On remand, new counsel was appointed to represent the Defendant, and the 

Defendant filed another motion to withdraw his guilty pleas. At the hearing, appointed 

counsel testified that she represented the Defendant on the indicted offense of Class E 

felony theft, that she “inherited” the case approximately three weeks before the plea date 

from another attorney who transferred to a different unit, and that she met with the 

Defendant for the first time on the day prior to the plea. Appointed counsel testified that 

private counsel represented the Defendant on the indicted Class C felony theft that was 

set for trial and that he had negotiated a global plea with the prosecutor to resolve both 

charges. Appointed counsel testified that the Defendant wanted to be placed on diversion 

and that, based on her conversations with private counsel and the Defendant, she believed 

he was eligible. She conducted a search through the “Odyssey” system, and it appeared 

the Defendant was eligible for diversion. Appointed counsel testified that she told the 

Defendant she believed he was eligible for diversion. Subsequently to the pleas, she 

obtained a TBI report and discovered he was not eligible for diversion. On February 6, 

2019, she spoke with the Defendant regarding the results of the TBI certificate. The 

Defendant told her that “he was not familiar with the case that was coming up,” so she 

took further steps to clarify his eligibility. After having the “court jacket” sent, she

discovered that he had been placed on seven months of pretrial diversion in 1984. 

Private counsel had represented the Defendant on the indicted Class C felony theft 

since 2014 or 2015. He testified that he initially checked diversion eligibility through 

“JSSI” and that it appeared that the Defendant was eligible. In his investigation, he 

discovered a 1984 petit larceny case which “showed to be held to state” but which had 

never been indicted. Private counsel called the clerk’s office and was told that the 

warrant had been dismissed, and he concluded the Defendant was eligible for diversion. 

Asked if he advised the Defendant that the Defendant was diversion eligible, private 

counsel responded, “Absolutely. I mean, I advised him he appeared to be diversion 

eligible, yes.” Private counsel noted that his advice was based in part on the Defendant’s 

statement that he had never pled guilty to anything “which turned out to be true, because 

he went on pretrial diversion.” He stated that no application was filed for the diversion 

certificate until after the Defendant pled guilty. When appointed counsel informed 

private counsel that the TBI report reflected the Defendant was not eligible, private 

counsel spoke to the Defendant, who asked about his options because “he certainly didn’t 

want this...on his record.” Private counsel stated that he believed, based on his past 

experience, that the TBI report might have been mistaken, and he told the Defendant he 

wanted time to investigate. After retrieving the file from archives, private counsel 

advised the Defendant he was not eligible for diversion, and the Defendant 

“immediately” asked to withdraw the guilty pleas. 
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On cross-examination, private counsel testified that the case had been set for trial 

three times, including one time when the Defendant changed his mind about having a 

bench trial. Private counsel recalled that he had initially negotiated with the State to 

dismiss the case upon the payment of a certain amount of restitution and that no 

restitution was paid. He agreed that the case would have gone to trial on the date of the 

plea hearing if the Defendant had not pled guilty. Private counsel stated that he was not 

familiar with how pretrial diversion was handled in 1984 but that he was able to obtain a 

copy of the pretrial diversion paperwork signed by the Defendant. The case was never 

indicted, and the Defendant never pled guilty. Private counsel said that, while he did not 

guarantee the Defendant that the court would grant diversion, he had been “adamant that 

[the Defendant] appeared to be diversion eligible.” Private counsel testified that it 

required “a good bit of coaxing” to convince the Defendant to plead guilty, that the 

Defendant relied heavily on his advice, and that the Defendant did not want to plead 

guilty “because he felt like he had not done anything wrong.” Private counsel felt that 

the pleas were in the Defendant’s best interest because the subsequent Class E felony 

charge was “more risky” and the plea agreement resolved both cases. Private counsel 

stated that, in his opinion, the Defendant had a meritorious defense for trial. He 

elaborated that the Defendant showed the victims over twenty houses a year for a period 

of two years, that the victims had been pre-approved for loans and signed contracts on six 

houses, that the victims never closed on a house, and that a liquidated damages clause 

entitled the Defendant to a percentage of any house that the victims entered into a 

contract on and did not purchase. The Defendant lost his real estate license after the 

Class C felony charges were filed. 

The trial court noted that there had been ten disposition dates, and private counsel 

agreed that the case was continued to give the Defendant a chance to pay restitution so 

that the charges could be dismissed. Private counsel testified that, during the pendency of 

the case, he had negotiated agreements with the State for the payment of varying amounts 

in exchange for dismissal. He agreed that restitution was never paid.

The Defendant testified that he entered Alford pleas and believed he would have 

the chance to expunge the convictions after paying restitution. He said that he was 

“hoping” to have the opportunity to remove the convictions from his record and that his 

attorney explained that he would have to complete probation successfully. He testified 

that private counsel advised him he would have the opportunity to remove the 

convictions from his record after completing probation. He stated that he believed that “a 

prior TBI had been read” by private counsel and had indicated his record was “clean.” 

The Defendant said that he “just relied on my counsel” and that he was “100 percent”

certain he would get diversion. The Defendant stated he would not have agreed to enter 

the pleas if he had known he was not eligible for diversion. He testified he believed he 
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was maintaining his innocence by entering the Alford plea and that he believed he had 

legitimately earned the money at issue in the Class C felony charge. 

The Defendant testified that he had previously pled guilty to a driving offense 

involving his license around 1994. He recalled that the petit larceny case concerned a 

$10 quart of oil which he had put in his car before leaving money on the counter. He 

stated he was not represented by an attorney on the charge and was told by the district 

attorney that he was not pleading guilty and that it would be dismissed from his record. 

On cross-examination, the Defendant recalled that one of the trial dates for the 

charged Class C felony theft was postponed due to his treatment for prostate cancer. He 

agreed that, if he had not entered guilty pleas, the case would have gone to trial in

January 2019. He agreed that at one point, he entered into an agreement to repay $12,000 

to the victims of the charged Class C felony theft. 

The Defendant acknowledged that he stated at the plea hearing that he did not 

know of anything in his background that would affect diversion eligibility. He explained 

that, because he had never pled guilty to the petit larceny, he did not think it would affect 

his eligibility, and he noted that he brought his driving conviction to the court’s attention 

at the time. He agreed that he was arrested for the petit larceny. He reiterated that both 

his attorneys told him he was eligible for diversion. 

The trial court questioned the Defendant regarding whether he had any other prior 

arrests, and the Defendant stated he did not. The trial court then asked if the Defendant 

recalled being arrested for driving under the influence of an intoxicant in 1991, and the 

Defendant acknowledged he had been arrested but stated the charge was dismissed. The 

court noted that the theft cases were continued to allow the Defendant a chance to pay 

restitution in exchange for dismissal at least once. The Defendant explained his failure to 

pay by noting that it was difficult for him to earn money after his real estate license was 

suspended. The prosecutor, during argument, stated that the Defendant “did always 

maintain his innocence” but noted the numerous delays and argued that the Defendant 

actions indicated a reluctance to go to trial.

The trial court found that the motion to set aside the guilty pleas was “timely 

filed,” within thirty days of the entry of the pleas and that the time elapsed “wasn’t that 

long.” The court found that the Defendant was thirty-four years old and was an adult 

when he went through pretrial diversion. The trial court weighed the circumstances 

underlying the guilty pleas heavily against the Defendant. The trial court observed that 

the case had been continued “many times,” including ten disposition dates. The court 

noted that it would not have granted a continuance on the plea date because of the 

numerous prior delays. The trial court found that the victims had been burdened by the 
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repeated delays and the Defendant’s failure to pay the agreed-upon restitution, stating

that they had “been going through pure hell...since...2014.” Regarding the Defendant’s 

nature and background and prior experience with the criminal justice system, the trial 

court found that the Defendant did not inform the court of the dismissed DUI case or the 

petit larceny, and the court stated it did not credit the Defendant’s statement that he did 

not recall being arrested for DUI. The trial court found that allowing the withdrawal of 

the pleas would prejudice the government and be a burden on the victims. Concluding

that there was no fair and just reason to set aside the plea, the trial court denied the 

motion. The Defendant appeals.

ANALYSIS

On appeal, the Defendant asserts that the trial court reached an illogical conclusion 

in weighing the factors relevant to withdrawal and that it based its decision on a clearly 

erroneous assessment of the evidence when it relied on prejudice to the State without an 

evidentiary basis. The State responds that the trial court did not abuse its discretion in 

denying the motion to withdraw the guilty pleas. We conclude that the trial court erred in 

determining that there was no fair and just reason for the withdrawal of the pleas. 

A trial court’s decision regarding a defendant’s motion to withdraw a plea is 

reviewed for an abuse of discretion. State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010)

(citing State v. Crowe, 168 S.W.3d 731, 740 (Tenn. 2005)). “An abuse of discretion 

exists if the record lacks substantial evidence to support the trial court’s conclusion.” 

Crowe, 168 S.W.3d at 740 (citing Goosby v. State, 917 S.W.2d 700, 705 (Tenn. Crim. 

App. 1995)). A trial court also abuses its discretion “when it applies incorrect legal 

standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous 

assessment of the proof, or applies reasoning that causes an injustice to the complaining 

party.” Phelps, 329 S.W.3d at 443 (citing State v. Jordan, 325 S.W.3d 1, 39 (Tenn.

2010)). “This Court will also find an abuse of discretion when the trial court has failed to 

consider the relevant factors provided by higher courts as guidance for determining an 

issue.” Id. (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)).

A defendant who has entered a guilty plea does not have a right to unilaterally 

withdraw the plea. Id. at 444. However, Tennessee Rule of Criminal Procedure 32(f)(1) 

provides that “[b]efore sentence is imposed, the court may grant a motion to withdraw a 

guilty plea for any fair and just reason.” The Tennessee Supreme Court has concluded 

that, in the absence of a definition of “fair and just” in the Rules of Criminal Procedure, 

trial courts should use “the federal courts’ non-exclusive multi-factor approach” in 

determining whether to permit a defendant to withdraw a plea. Id. at 447. Those factors 

include: 
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(1) the amount of time that elapsed between the plea and the motion to 

withdraw it; (2) the presence (or absence) of a valid reason for the failure to 

move for withdrawal earlier in the proceedings; (3) whether the defendant 

has asserted or maintained his innocence; (4) the circumstances underlying 

the entry of the guilty plea; (5) the defendant’s nature and background; (6) 

the degree to which the defendant has had prior experience with the 

criminal justice system; (7) potential prejudice to the government if the 

motion to withdraw is granted.

Id. at 446 (quoting United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008)).1 

“[N]o single factor is dispositive,” and “the relevance of each factor varies according to 

the circumstances surrounding both the plea and the motion to withdraw.” Id. (citing 

Haygood, 549 F.3d at 1052). The list of factors is not exclusive, and “a trial court need 

not consider the seventh factor unless and until the defendant establishes a fair and just 

reason for permitting withdrawal.” Id. at 446-47 (citing United States v. Ellis, 470 F.3d 

275, 286 (6th Cir. 2006)). The Defendant bears the burden of establishing grounds for 

withdrawing his plea. Id. at 444. 

“[T]he purpose of the ‘any fair and just reason’ standard ‘is to allow a hastily 

entered plea made with unsure heart and confused mind to be undone.’” Id. at 448 

(quoting United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991)) (emphasis in 

Phelps). This standard reflects that “‘[b]efore sentencing, the inconvenience to court and 

prosecution resulting from a change of plea is ordinarily slight as compared with the 

public interest in protecting the right of the accused to trial by jury.’” Crowe, 168 

S.W.3d at 741 (quoting Kadwell v. United States, 315 F.2d 667, 670 (9th Cir. 1963)). 

Thus, where the balance of the factors weighs in the defendant’s favor, the trial court 

should permit a defendant to withdraw a plea “even if the defendant’s reasons could be 

characterized as a ‘change of heart.’” Phelps, 329 S.W.3d at 448. “‘[T]he trial judge 

should always exercise his discretion with caution in refusing to set aside a plea of guilty, 

to the end that one accused of crime may have a fair and impartial trial.’” Id. at 443 

(quoting Henning v. State, 201 S.W.2d 669, 671 (Tenn. 1947)). However, “a defendant 

should not be allowed to pervert this process into a tactical tool for purposes of delay or 

other improper purpose.” Id. at 448. 

 

1 We note that the Phelps court also identified a similar five-factor test cited to by the State in this 

case. Phelps, 329 S.W.3d at 447 (citing State v. Maxwell, No. E1999-00124-CCA-R3-CD, 2000 WL 

1606582, at *8-9 (Tenn. Crim. App. Oct. 27, 2000)). As the Phelps court explained, the courts utilizing 

the seven-factor test separated the fourth factor from the five-factor test “into two separate factors, and 

added as a specific factor the defendant’s prior experience with the criminal justice system.” Id. at 447 

n.11. “[T]here is no substantive difference between the lists of factors” in the two tests. Id.
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In this case, the parties presented arguments regarding the Phelps factors at the 

motion hearing. However, the trial court did not address every factor in Phelps or 

making findings of fact relevant to each factor. Neither did the trial court indicate the

weight it assigned to the factors. The failure to conduct the relevant analysis on the 

record is an abuse of discretion. Id. at 443 (citing Lewis, 235 S.W.3d at 141). The record 

contains evidence sufficient to allow review, and accordingly, we will analyze the 

relevant factors. See id. at 448-51 (conducting its own analysis of the factors); State v. 

David Powell, No. W2015-00366-CCA-R3-CD, 2015 WL 7282747, at *7 (Tenn. Crim. 

App. Nov. 18, 2015) (because the trial court did not apply each factor, the appellate court 

conducted its own analysis after concluding the record was sufficient to do so); State v. 

Kevin Glenn Tipton, No. E2012-00038-CCA-R3-CD, 2013 WL 1619430, at *11 (Tenn. 

Crim. App. Apr. 13, 2013) (the appellate court conducted an analysis of the factors).

The trial court here found that the motion was “timely filed” and that the time 

elapsed “wasn’t that long.” The State concedes that the motion “should be considered 

timely.” The evidence at the hearing indicated that the Defendant’s attorneys first 

became aware that he might not be eligible for diversion through the TBI report but that 

they believed there was some chance the report was mistaken and told the Defendant they 

needed additional time to confirm his eligibility, including time to retrieve the “court 

jacket.” Private counsel testified that the Defendant “immediately” requested to 

withdraw his pleas once his attorneys confirmed that he was indeed ineligible for 

diversion. Twenty-two days after the entry of the plea, the Defendant’s attorneys alerted

the trial court that they would file motions to withdraw his pleas, and the motions were 

filed shortly thereafter. This factor is favorable to the Defendant because the record 

reflects very little delay after the Defendant’s attorneys confirmed that he was not eligible 

for diversion. Compare State v. Mitchell Nathaniel Scott, No. M2013-01169-CCA-R3-

CD, 2014 WL 1669964, at *5 (Tenn. Crim. App. Apr. 25, 2014) (concluding that the 

factor was neutral when approximately one month passed after the entry of the pleas but 

the defendant’s desire to withdraw the pleas was not prompted by any new discovery);

State v. Marcus E. Robinson, No. M2005-00670-CCA-R3-CD, 2006 WL 1097456, at *3, 

*5 n.5 (Tenn. Crim. App. Apr. 5, 2006) (same).

Regarding the existence of a valid reason for failing to withdraw the plea earlier, 

the record establishes that the Defendant believed he was eligible for diversion and that 

he immediately sought to withdraw his pleas when he learned he was not. Appointed 

counsel testified that she conducted research on the Defendant’s criminal background, 

including the petit larceny charge, and that she told the Defendant she believed he was 

eligible for diversion. Private counsel investigated the Defendant’s criminal history using 

a different system, and he also concluded the Defendant was eligible for diversion. 

Private counsel discovered the petit larceny charge and contacted the clerk’s office 

regarding the charge, and he subsequently informed the Defendant that he believed the 
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Defendant was diversion eligible. Neither counsel filed a request from the TBI to 

determine the Defendant’s eligibility prior to the Defendant’s entering the pleas. Private 

counsel testified that the Defendant did not want a felony on his record and asked to 

withdraw his pleas immediately when he discovered he was not diversion eligible. The 

Defendant confirmed that he “just relied on my counsel” and that he was “100 percent”

certain he was eligible for diversion. The Defendant testified that he was under the 

impression that “a prior TBI had been read” by private counsel and had indicated his 

record was “clean.” He testified that private counsel advised him he would have the 

opportunity to remove the convictions from his record after completing probation. The 

Defendant stated he would not have agreed to enter the pleas if he had known he was not 

eligible for diversion. 

The trial court noted at the hearing on the motion to withdraw that when the 

Defendant was asked if anything in his background would “stop this,” he stated, “No, 

sir.” The Defendant explained that he never pled guilty to the petit larceny and therefore 

did not think it could affect his eligibly. The record supports the court’s finding that the 

Defendant was thirty-four years old and was an adult when he went through pretrial 

diversion. Nevertheless, it is not surprising that the Defendant might not have had a 

nuanced understanding of whether the petit larceny charge, which was concluded in 

1984, under a system that the court referred to as a “history lesson,” would affect his 

eligibility for diversion thirty-six years later. The record established that the Defendant’s

two attorneys both believed he was diversion eligible despite having investigated the petit 

larceny matter at issue. Aware of the petit larceny charge, both attorneys advised him 

that he was eligible for diversion. Private counsel testified that the Defendant relied 

heavily on this advice and “immediately” sought to withdraw his pleas when he 

discovered he was not eligible for diversion. The Defendant testified he would not have 

pled guilty had he known he was not eligible for diversion. Accordingly, we conclude 

that this factor weighs in the Defendant’s favor. 

The trial court did not make an explicit finding regarding whether the Defendant 

asserted or maintained his innocence. The record reflects that Defendant entered pleas 

pursuant to Alford. The Defendant testified that he believed he was maintaining his 

innocence by entering pleas pursuant to Alford and that he believed he had legitimately 

earned the money at issue. Private counsel also testified that he believed the Defendant 

had a meritorious defense to the charge, that the Defendant did not want to plead guilty 

“because he felt like he had not done anything wrong,” and that he had to “coax[]” the 

Defendant into entering guilty pleas. The State conceded at the hearing that the 

Defendant “did always maintain his innocence.”2 Accordingly, this factor weighs in 

 

2 The State on appeal contests this factor, arguing that any admission that the Defendant kept the 

funds equates to an admission of guilt of the offenses. Compare T.C.A. § 39-14-103 (defining the 
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favor of the Defendant. See Phelps, 329 S.W.3d at 446 (noting that one of the “most 

important” of the guidelines used by the federal courts was whether the defendant had 

asserted legal innocence).

The trial court weighed the circumstances underlying the entry of the pleas heavily 

against the Defendant. In this determination, the trial court noted the numerous delays 

that had occurred prior to the plea hearing but did not consider the Defendant’s reliance 

on his attorneys’ advice that he was eligible for diversion. The trial court noted that the 

case had been set for disposition ten times, that it had been set for trial three times, and 

that some of the disposition dates were delayed with the intent of allowing the Defendant 

to pay restitution in exchange for dismissal of the charges but that the Defendant never 

paid any restitution. During cross-examination, the Defendant agreed with the prosecutor 

that trial was delayed once because he was undergoing treatment for cancer. The 

prosecutor noted during a motion hearing prior to the first appeal that the State had 

requested one continuance of a scheduled trial date to subpoena records. Accordingly, 

the record shows that at least some of the delay was not due to any tactic on the part of 

the Defendant but occurred at the State’s request and due to the Defendant’s cancer 

treatments. The court found that the State was ready to proceed to trial when the 

Defendant pled guilty and that the court would not have granted any further continuances. 

The Defendant was indicted in September 2015 and entered the pleas in January of 2019. 

While the trial court found a pattern of delay that weighed against the Defendant, the 

court did not find that the Defendant was intentionally withdrawing his pleas for any

improper purpose or to pervert the judicial process. See Phelps, 329 S.W.3d at 448. The 

duration of the pendency of the case weighs against the Defendant. 

However, the circumstances surrounding the entry of the pleas included not only 

the delay but also the Defendant’s reliance on his attorneys’ advice that he appeared 

eligible for diversion. See id. at 450-51 (weighing this factor in the defendant’s favor 

when the defendant repeatedly expressed confusion about the nature of the offense at the 

plea hearing); David Powell, 2015 WL 7282747, at *8 (considering that the defendant 

was advised by counsel and that he did not express any confusion regarding the terms of 

the plea as part of the circumstances of the plea). Private counsel testified that the 

Defendant was reluctant to enter a plea and that the Defendant felt he was contractually 

entitled to the money at issue in the C felony charge. Private counsel likewise believed 

the Defendant had a meritorious defense. Both of the Defendant’s attorneys testified that 

they believed he was eligible for diversion after having investigated his criminal history, 

including in particular the petit larceny, and that they told him they believed he was 

eligible. At the plea hearing, the trial court asked if the Defendant was diversion eligible, 

 

elements of theft). We conclude this argument is waived. See State v. Howard, 504 S.W.3d 260, 277 

(Tenn. 2016) (noting that the parties may not advocate a new position on appeal). 
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and appointed counsel responded, “He has been.” Although both the State and the trial 

court used conditional language regarding the Defendant’s eligibility for diversion, the 

trial court also asked the Defendant to confirm that he was accepting “the State’s offer of, 

basically, up front diversion.” Asked if he advised the Defendant that the Defendant was 

diversion eligible, private counsel responded, “Absolutely. I mean, I advised him he 

appeared to be diversion eligible, yes.” Private counsel had been “adamant that [the 

Defendant] appeared to be diversion eligible” in his conversations with the Defendant. 

Private counsel testified that the Defendant relied on this advice in deciding to enter the 

guilty pleas and that it required “a good bit of coaxing” to convince the Defendant to 

plead guilty. He further stated that the Defendant “certainly didn’t want this...on his 

record.” During a hearing prior to the first appeal, private counsel noted he “would have 

to probably advise [the Defendant] ... to file post-conviction relief against me for having 

– telling him that he appeared to be diversion eligible” and advising him to enter a plea. 

The trial court erred in considering only the delay in relation to this factor. Considering

the circumstances surrounding the entry of the pleas as a whole, this factor weighs

heavily in favor of the Defendant.

The trial court analyzed the Defendant’s nature and background only in relation to 

his criminal history. In analyzing the Defendant’s nature and background, this court also 

looks to “‘[a] defendant’s intelligence, sophistication, and understanding of the plea.’”

Id. at 451 (quoting United States v. Jose Medina, No. 3:08-CR-48, 2010 WL 3338567, at 

*11 (E.D. Tenn. Aug. 23, 2010)). Here, the Defendant manifested an understanding that 

he would be entering best interest pleas, that the pleas would allow him to maintain his 

innocence, and that at the conclusion of the probationary period, the convictions could be 

expunged. The Defendant was close to seventy years old and was a licensed realtor prior 

to the offenses at issue. It is undisputed that both the Defendant and his attorneys 

believed he was diversion eligible and that the Defendant was reluctant to enter pleas and 

mar his criminal record. Accordingly, it appears that the Defendant’s nature and 

background allowed him to understand the nature of the pleas and to rely on his counsel’s 

advice that they believed he was diversion eligible. This factor weighs slightly in the 

Defendant’s favor. 

Regarding the Defendant’s prior experience with the criminal justice system, the 

trial court found that the Defendant did not inform the court of the dismissed DUI case or 

the petit larceny, and the court did not credit the Defendant’s statement that he did not 

recall being arrested for DUI. The Defendant stated at the plea hearing and at the motion 

hearing that he had pled guilty to driving on a suspended license in the 1990s. He 

asserted that he did not mention the DUI arrest and the petit larceny charge because he 

had not pled guilty to them. The Defendant had gone through pretrial diversion for a 

1984 petit larceny, was arrested for DUI in 1991, and pled guilty to driving on a 

suspended license in the 1990s. Accordingly, he had relatively minor contact with the 
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criminal justice system, and the contact was remote in time from the offenses at issue. 

This factor is neutral.

In Phelps, the court, having concluded that the record supported “at least some of 

the factors which may establish a fair and just reason for allowing the withdrawal of a 

guilty plea,” went on to analyze the potential prejudice. Id. at 451. Here, too, some of 

the factors may establish a fair and just reason for allowing the withdrawal of the plea. In 

evaluating potential prejudice to the State, the trial court found that the case had been 

delayed numerous times and that this resulted in prejudice. The Defendant urges us to 

conclude that the record does not support this finding because the State did not introduce 

proof regarding prejudice. While some prejudice may be inherent in delay, see, e.g., 

State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001) (noting that for a speedy trial 

violation, the presumption that delay has prejudiced the accused intensified with time), 

we agree that the State did not introduce proof regarding prejudice. During the hearing, 

defense counsel noted that the evidence was primarily documentary evidence, such as 

contracts and receipts. The prosecutor had stated during one hearing that one 

continuance was due to an outstanding subpoena for documents. During the hearing on 

the motion to withdraw the pleas, the prosecutor, urging the court to deny the motion, 

noted that the State’s anticipated proof included the victims and other witnesses and that 

“memor[ies] change.” The Defendant is correct that there was no proof introduced to 

support the trial court’s finding that the victims suffered “tremendous[]” prejudice,” and 

this determination is not supported by the record. We conclude that, given the duration 

of the pendency of the case, this factor is neutral or weighs slightly in favor of the State. 

See Phelps, 329 S.W.3d at 451 (concluding the factor was neutral when no evidence was 

included regarding prejudice and the State’s evidence included documents that remained 

available). 

The Tennessee Supreme Court has stressed that a trial judge “‘should always 

exercise ... discretion with caution in refusing to set aside a plea of guilty, to the end that 

one accused of crime may have a fair and impartial trial.’” Id. at 443 (quoting Henning, 

201 S.W.2d at 671). Withdrawal should be permitted “even if the defendant’s reasons 

could be characterized as a ‘change of heart.’” Id. at 448. Here, the testimony of all 

parties was in agreement that diversion eligibility was a key factor in the Defendant’s 

decision to plead guilty, that the Defendant’s two attorneys both advised him that they 

believed he was diversion eligible, even after investigating the disqualifying charge, and 

that the Defendant immediately asked to withdraw his pleas when he discovered that he 

was not eligible for diversion. The relevance of each of the Phelps factors “varies 

according to the circumstances surrounding both the plea and the motion to withdraw.” 

Id. at 446. Most relevant here is that the Defendant reasonably relied on his attorneys’

representations regarding diversion and that these representations were material to his 

decision to plead guilty. The Defendant has accordingly established a fair and just reason 
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to permit withdrawal of his pleas. Furthermore, the State has not pointed to any 

particular prejudice stemming from delay. Therefore, we reverse the trial court’s denial 

of the motion and remand for entry of an order permitting the Defendant to withdraw his 

pleas. See United States v. Anthony Cornelius Baylis, No. 3:08-CR-147, 2009 WL 

2431425, at *2 (E.D. Tenn. Aug. 7, 2009) (allowing withdrawal when counsel’s advice 

“was erroneous and materially influenced the defendant’s decision”). 

CONCLUSION

Based on the foregoing, we reverse the trial court’s denial of the motion to 

withdraw the Defendant’s guilty pleas and remand for further proceedings. 

___________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE