# FILED
August 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 31, 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9802-CR-00040 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY, QUENTIN L. HALL, ) JUDGE ) Appellant. ) (Motion to Withdraw Guilty Pl ea)

FOR THE APPELLANT : A. C. WHARTON Shelby County Public

Defender WALKER GWINN Assistant Public Defender 201 Poplar Avenue, Ste. 201 Memphis, TN 38103-1947 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter PET ER M . CO UGH LAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General EDGAR A

. PETERSON, IV Assistant

District Attorney

General Criminal Justice Comple x 201 Poplar Avenue, Ste. 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE1 The re cord is silent as to the reason for the lengthy delay between the filing of t

h e motion and the order denying the motion. 2 O P I N I O N Defendant, Quentin L. Hall, appeals the order of the Criminal Court of Shelby County denying his request to withdraw his guilty plea to first degree murder

. The plea was entered pursuant to a p lea agreement , a nd defenda nt recei ved a li fe sentence. Since the judgment became final on the date of entry of the

plea of guilty pursuantto a plea a greemen t, we conclude the motion to wit hdraw filed thereafter was untimely. Accor

dingly, we affirm the j udgment of the trial court.

PROCEDURAL HISTORY

On November 18, 1996, the defendant, purs uant to a plea a greeme nt, entered a guilty

plea to f irst de gree mur der and r eceived a sente nce of life with the possibility

of parole. The pet ition for ac ceptance of the plea, signed by the defendant, specifically wai ves the right to appeal. Likewise, the order which accepted the petition noted the waiv er of appeal by the defendant. In accordance with the plea agreement, the trial court sentenced the defendant on the same dat e. On December 16, 1996, defendant fileda motion to withdraw his guilty plea pursuantto Tenn. R. Crim. P. 32(f). He alleged the withdraw al was necessary t

o prevent “manifest injustice.” The record ref lects that no evidentiar y hearing was conducted. Instead, the par ties relied upon the guilty plea transcript and tw o (2) prior psychologic

al evaluations. On January 13, 1998, the trial court enter ed an order denying the motion to withdraw. 1 The trial court found nothing in the record t o i ndicate a lack of mental capacity to enter the plea.This appeal followed.

UNTIMELY FILING OF MOTION TO WITHDR AW GUILTY PL EA

The withdrawal of a gui lty plea is controlled by Tenn. R. Crim. P. 32(f), which2 Passarella, Warrenand Lightfoot all relate to the finality of judgments for purposes of calculating the statute of limitations for post-conviction petitions. 3 provides as follows:

Withdrawal of Plea of Guilty. - A motion to withdraw a plea of guilty may be mad e upon a showing by th e defenda n t of any fair and just reason only before sentence is impose d ; but to correct manifest injus tice, the court after sentence, but before the judgment becomes final , may set aside the judgment of conviction and permit the defendant to withdr aw the plea. (emph as is added). Thus, a motion to withdraw is appropriate on ly prior to sentencing based upon “any fair and just reason” or

after sentence, but before the judgmentbecomes final, “to correct manifest injus tice.” The Tennessee rule does not authorize a motion to withdraw a gu ilty plea after a judgment has become final. In this case the defendant pled guil ty pursuant to a plea agr eement and waived his right to appeal. U pon waiving his right to appeal on the date of entry of the guilty plea and judg ment of conviction, the judgment became final that day. See Passarella v. State , 891 S.W.2d 619, 624 (Tenn. Crim. App. 1994); Warren v. State , 833 S.W.2d 101, 102 (Tenn. Crim. App. 1992); Lakeith O. Lightfoot v. State , C.C.A. No. 02C01-9703-CR-00129, Shelby County (Tenn. Crim. App. fil ed February 18, 1998, at Jackson). 2 There is generally no rig ht of appeal from a guilty plea entered pursuantto a plea agreement. See Tenn. R. Crim. P. 37(b). The only exceptions
are set forth in Tenn. R. Crim. P. 37(b) (2) (i)-(iv). N one of these exceptions applies here. The plea of guilty, w aiver of appeal and sentence, all entered November 18, 1996, made the judgment final that day

. We, therefore, conclude a motion to withdraw a gu ilty plea is inappropriate fora guilty plea

entered pursuant to a plea agr eement except for guilty pleas under the limited e xc eption s set forth in Tenn. R. Crim. P. 37(b)(2) (i)-( iv). Since a judgmentimmediately becomes finalupon a waiver of appeal, t he only avenue of3 This motion was not treated as a petition for post-conviction relief by the trial court

nor by the parties. Nor will it be treated as such by this Court. The trial court considered the motion to withdraw on its me rits and did not dismis s it on the basis of un time l y filing as determinedby this Court. Furthermore, although the motion was filed in December 1996, the order of dismissal was not

entered until Janua

ry 1998. As st

ated, defendan

t’s only possi

ble relief is through post-conviction. To complicate matters further, the Public Defender represented the defendant at the time of the plea, the motio

n to withdraw the guilty plea and on this appeal. On this appeal the Public Defen de r alleges in the brief that “ [n]either the defense counsel [Public Defender] nor the court explained to Hall... that a lif e sentence with the poss ibility of p arole would mean a sentence... for at least 51 year s under our law.” (emphasis

added). It is, theref

ore, ap parent that the Public Defender should not represent defendant in any attempt to seek post-conviction relief. We voice no opinion as to any possible future litigation. 4 reliefavailable to a defendant i n su ch a situation is throug h post-conviction proceedings. See

Tenn. Code An n. § 40-30-201 et seq. 3

MANIFEST INJUSTICE

We also will a ddress the motion to withdr aw on its merits sinc

e the matter may be appealed to the Tennessee Supreme Court. Although there w as no evidentiary heari ng on the motion to withdr aw the guilty plea, the trial court had before it the transcript of the guilty plea. The trial court concluded that the transcript gav e no indication of mental impa i rment or a lack of understanding by

the defendant. We reach the same conclusion based upon our review of the transcr

ipt. In addition, the trial court had before it two (2) psychological evaluations. One evaluation indicated that the defendant functioned within the mildly mentally retarded ra nge, yet f ound no evidence to indicate h e was committable to an institution. A subsequent evaluation found that he had the mental capacity to understand the nature of the legal process, to understand the charg es and their potential consequences, and the capacity to confer with counsel and participate in his defense. Again, we agree w ith the trial court’s conclusion that “there is nothing

. . . to indicate that the defendant ex ecut ed any thing other than a competent, voluntary waiver.”5 In summary, the defendant has not met his burde n of establis hing t hat the plea of guilty should be withdrawn to pre vent “man ifest injustice.” See State v. Turner , 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995).

CONCLUSION
For the above reasons, w e affirm the judgment of the trial cour t.

____________

_____________

__ _ JOE G. RILEY, JUDGE

CONCUR:

______________________________ PAUL G. SUMM ERS, JUDGE

______________________________ DAVID G. HA

YES, JUDGE