IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 12, 2020

STATE OF TENNESSEE v. BRIAN KEITH CAPPS

Appeal from the Circuit Court for Maury County

Nos. 26161, 26162, 26529, 26247 Russell Parkes, Judge

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No. M2019-00280-CCA-R3-CD

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Defendant, Brian Keith Capps, was charged in four separate indictments with two counts 

of possession with intent to sell over 0.5 grams of methamphetamine within 1,000 feet of 

a school; three counts of sale of over 0.5 grams of methamphetamine within 1,000 feet of 

a school; two counts of possession of drug paraphernalia; one count of possession with 

intent to sell Oxycodone; one count of driving on a revoked license; one count of 

violation of the registration law; and one count of tampering with evidence. Defendant

pleaded guilty to one count of possession with intent to sell over 0.5 grams of 

methamphetamine and two counts of sale of methamphetamine in a drug-free zone. All 

of the remaining counts were dismissed. Defendant received concurrent sentences of 

eight years to be served at 100 percent for each of his sale of methamphetamine 

convictions. He was sentenced to eight years to be served at 30 percent for his 

possession with intent to sell methamphetamine conviction, which was ordered to be 

served consecutively to his other sentences, for a total effective sentence of 16 years with 

8 years to be served at 100 percent. Defendant sought to withdraw his guilty pleas. 

Following an evidentiary hearing, the trial court denied Defendant’s motion. Defendant 

appeals. Having reviewed the record and the briefs of the parties, we affirm the judgment 

of the trial court denying the motion to withdraw the guilty pleas. However, there are 

clerical errors in the judgments in case number 26162. The judgments show a 30 percent 

release eligibility. The plea agreement was for 100 percent service of the sentence. The 

trial court must enter corrected judgments upon remand. 

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

Remanded for Corrected Judgments

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

John M. Schweri, Columbia, Tennessee, for the appellant, Brian Keith Capps.

06/16/2020
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Herbert H. Slatery III, Attorney General and Reporter; Ruth Ann Thompson, Senior 

Assistant Attorney General; Brent A. Cooper, District Attorney General; and Adam 

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

OPINION

Hearing on Defendant’s motion to withdraw guilty pleas

Defendant acknowledged that he had been stopped and was charged with selling 

drugs in a drug-free zone in August, 2017. He testified that he agreed to participate in 

controlled drug buys and that “the three subsequent charges were [him] doing what they 

wanted [him] to do.” Defendant testified that drug task force agents Bob Zaidan and Joey 

Parks promised him “a lengthy rehab somewhere preferably out of state, and a long 

probation period” in exchange for his cooperation with law enforcement. He also 

testified that some “evidence disappeared and nobody said anything about any of the 

work [he] did.” Defendant testified that he was a “drug addict” and that he had never 

been to a rehabilitation program. 

Defendant testified that he “was under the influence of narcotics” when he signed 

the plea submission form. The trial court read from the form a provision that states, “I 

declare that no officer or agent of any branch of government, nor any other person, has 

made any promise or suggestion of any kind to me, or to anyone else, except the 

agreement to recommend the sentence as set out below.” Defendant testified that he did 

not read the form. He testified that he “wasn’t pressured” to enter his guilty pleas. The 

trial court asked Defendant if he remembered the court “talking to [him] at length” prior 

to entering his pleas. Defendant testified that he had suffered “two strokes prior to this” 

and that he had only “vague memories” of the plea submission hearing. 

Defendant testified that he was taking Hydrocodone and Xanax at the time he 

entered his guilty pleas. He was prescribed the medications after he suffered injuries 

resulting from a fall. Defendant testified, “[t]he manifest injustice would be that I was 

promised something by law enforcement and not followed through.” The trial court 

asked Defendant why he did not make the trial court aware of the deal, and Defendant 

testified that he “told [his] attorney [ ] many times.” The trial court recalled that 

Defendant had fallen off his porch when his jury trial was scheduled to begin. The trial 

court recalled that Defendant stated that he could not “get off the couch,” and the trial 

court offered to send a transport officer and a nurse to Defendant’s home, and that 

Defendant then stated that he was not at home, but rather at a CVS store. Defendant 

testified that he did not remember “none of that [sic]” and that he “was under the 

influence of pain medication.” The trial court recalled that Defendant, his attorney, the 
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prosecutor, and the court reporter met privately “back in that jury room” and that 

Defendant did not mention anything about the deal that was promised to him by the drug 

task force agents. Defendant testified that he “did not know [he] was even allowed to 

talk.” 

At the conclusion of the hearing, the trial court concluded that Defendant had not 

established that a manifest injustice would occur if Defendant was not allowed to 

withdraw his pleas. The trial court specifically found that it “took great pains in going 

over with [Defendant] the terms of the plea agreement.” The trial court found that 

Defendant was addressed in a jury room with attorneys and a court reporter present, and 

Defendant did not “enter any type of objection to proceeding with the trial.” The trial 

court noted that it also “took great pains” at the guilty plea hearing, “inquiring about 

specific portions of the plea agreement, why things were at 100 percent as opposed to 30 

percent . . . [and] concurrent as opposed to consecutive.” The trial court found that 

Defendant’s testimony about having been offered a deal by drug task force agents was 

not credible. The trial court concluded that Defendant’s guilty pleas were entered 

knowingly and voluntarily, and the court denied Defendant’s motion. 

Analysis

Defendant contends that the trial court abused its discretion by denying his motion 

to withdraw his guilty pleas. Specifically, Defendant contends his guilty pleas were not 

knowingly and voluntarily entered because he entered them: 1) while he was under the 

influence of narcotics, and 2) in exchange for an unfulfilled promise by the State that 

rehabilitation and probation would be a part of his sentences. The State responds that 

Defendant has failed to demonstrate that a manifest injustice occurred, and the trial court 

properly denied Defendant’s motion. 

Initially, we note that Defendant has failed to include a transcript of his guilty plea 

hearing in the record on appeal. It is the duty of the appellant to provide a record which 

conveys a fair, accurate, and complete account of what transpired with regard to the 

issues which form the basis of the appeal. Tenn. R. App. P. 24(b); see State v. Taylor, 

992 S.W.2d 941, 944 (Tenn. 1999). The State submits, however, that the record is 

sufficient in this case for a meaningful review of the issue. In most cases, a transcript of 

the guilty plea hearing is critical to a review of the voluntariness of a guilty plea, and it 

should have been included in the record. However, in this case, we agree with the State 

that the record before us is sufficient to review the issue. We note that in State v. Caudle, 

388 S.W.3d 273, 279 (Tenn. 2012), our supreme court held that when a record does not 

include a transcript of the guilty plea hearing, this court should determine on a case-bycase basis whether the record is sufficient for a meaningful review of a sentencing 

decision under the standard adopted in State v. Bise, 380 S.W.3d 682 (Tenn. 2012). 
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Although this case does not involve a review of a sentencing decision, we apply the same 

reasoning here. 

Tennessee Rule of Criminal Procedure 32(f)(1) provides that a trial court may 

grant a motion to withdraw a guilty plea “for any fair and just reason” before the sentence 

is imposed, or to correct manifest injustice after the sentence is imposed but before the 

judgment becomes final. Rule 32(f) makes it clear that “a criminal defendant who has 

pled guilty does not have a unilateral right to later withdraw his plea either before or after 

sentencing.” State v. Phelps, 329 S.W.3d 436, 444 (Tenn. 2010) (citing State v. Crowe, 

168 S.W.3d 731, 740 (Tenn. 2005); State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003)). 

In this case, Defendant moved to withdraw his guilty plea after he was sentenced, 

but before the judgments became final. Therefore, to prevail on his motion, he must 

show that the guilty plea must be set aside to correct a “manifest injustice.” “Manifest 

injustice” is not defined in the text of Rule 32(f), but courts have identified circumstances 

that meet the manifest injustice standard that is required for a withdrawal of a plea after 

sentencing. State v. Virgil, 256 S.W.3d 235, 240 (Tenn. Crim. App. 2008). Manifest 

injustice has occurred where: (1) the plea was entered through a misunderstanding as to 

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

prosecution failed to disclose exculpatory evidence; (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 plea. Crowe, 168 S.W.3d at 742. However, 

a defendant’s mere change of heart about pleading guilty or a defendant’s dissatisfaction 

with the punishment that he or she ultimately receives is not manifest injustice. Id. at 743 

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

It is the defendant’s burden of establishing that the plea of guilty should be 

withdrawn to prevent “manifest injustice.” Turner, 919 S.W.2d at 355. The decision 

whether to grant a motion to withdraw a plea of guilty rests with the sound discretion of 

the trial court and will not be reversed absent an abuse of discretion. State v. Drake, 720 

S.W.2d 798, 799 (Tenn. Crim. App. 1986). 

At the hearing on Defendant’s motion to withdraw his guilty pleas, the trial court 

questioned Defendant repeatedly about the guilty plea hearing, as well as the plea 

submission form to show that Defendant was given opportunities to inform the court of 

any promises made to him by the State, and Defendant did not do so. The trial court 

found that it had taken “great pains in going over with [Defendant] the terms of the plea 

agreement.” The record includes the plea submission form, from which the trial court 

quoted portions, and the form contains Defendant’s signature. Defendant testified at the 

hearing that he was not pressured to enter his guilty pleas. Defendant offered no proof 

that his medical condition or prescription medication prevented him from knowingly 
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entering his guilty pleas. The trial court specifically found that Defendant’s testimony 

regarding a promise by drug task force agents was not credible. 

We, thus, agree with the State that the limited record on appeal supports the trial 

court’s finding that Defendant’s pleas were knowingly, intelligently, and voluntarily 

entered. Defendant has failed to establish that the trial court abused its discretion by 

denying his motion to withdraw his guilty pleas. 

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the 

trial court denying Defendant’s motion to withdraw his guilty pleas. However, we note 

clerical errors in the judgments for the convictions in case number 26162. Each 

judgment reflects an erroneous release eligibility of 30 percent, instead of the agreed 

release after service of 100 percent of the sentence. Those two judgments are remanded 

for the trial court to enter corrected judgments. 

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THOMAS T. WOODALL, JUDGE