State v. Hooper ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1997 SESSION March 6, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 03C01-9701-CR-00035
Appellee, )
) MORGAN COUNTY
VS. )
) HON. E. EUGENE EBLEN,
JAMES HOOPER, ) JUDGE
)
Appellant. ) (Motion to Withdraw Plea)
FOR THE APPELLANT: FOR THE APPELLEE:
GREG LEFFEW JOHN KNOX WALKUP
P.O. Box 63 Attorney General and Reporter
Rockwood, TN 37854
JANIS L. TURNER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
CHARLES E. HAWK
District Attorney General
FRANK A. HARVEY
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763-0703
OPINION FILED:
AFFIRMED
JERRY L. SMITH,
JUDGE
OPINION
The defendant, James Hooper, appeals the trial court’s denial of his
motion to withdraw his plea of nolo contendere to one (1) count of aggravated
sexual battery. The trial court found the motion was filed after the maximum
allowed time. The decision of the trial court is affirmed.
I.
As part of a plea agreement, the defendant entered a plea of nolo
contendere to one (1) count of aggravated sexual battery. The charge had been
reduced from aggravated rape of a child less than thirteen (13) years of age.
Two (2) other counts of aggravated rape were dismissed.1 The defendant
accepted the plea and was sentenced to ten (10) years as a Range I offender.
Four months after the entry of his plea, the defendant filed a pro se
motion seeking to withdraw it. The motion alleged that trial counsel advised the
defendant that the trial judge suggested that the defendant take the nolo
contendere plea. A hearing was held where the defendant was represented by
counsel. At the start of the hearing, the state moved to dismiss the petition for
untimeliness. The trial court allowed the defendant to introduce proof and to
submit a supplemental brief. At the hearing, the defendant contended his plea
was involuntary due to coercion by trial counsel as well as ineffective assistance
of trial counsel. The trial court subsequently denied the defendant’s motion.
Further, the trial court declined to treat the motion as a petition for post-
conviction relief or a petition for a writ of error coram nobis.
1
The defendant was previously convicted of three counts of aggravated
rape of a child less than thirteen (13) years of age and sentenced to three (3)
concurrent twenty-five (25) year terms. Those convictions were reversed and
remanded for a new trial. State v. James Hooper, C.C.A. No. 03C01-9309-CR-
00038, Morgan County (Tenn. Crim. App. filed August 10, 1994, at Knoxville).
The remand led to this plea.
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II.
Rule 32(f) of the Tennessee Rules of Criminal Procedure provides that “a
motion to withdraw a plea of guilty” must be filed prior to sentencing upon a
showing of any fair and just reason. Further, to correct a “manifest injustice,” the
motion may be filed after sentencing, but before the judgment is final. Tenn. R.
Crim. P. 32 (f).
Initially, we note that the withdrawal provision of Rule 32 (f) applies to “a
plea of guilty.” It does not provide for the withdrawal of a plea of nolo
contendere. A guilty plea is different than a nolo contendere plea. See Tenn. R.
Crim. P. 11 (a), (b). The language of Rule 32 (f) when adopted in 1978 (then 32
(e)) was almost identical to the then existing Federal Rule of Criminal Procedure
32 (d). However, the federal rule expressly allowed the withdrawal of “a plea of
guilty or nolo contendere” (emphasis added). We assume the failure of
Tennessee to adopt the nolo contendere provision in the federal rule was
intentional.
Even if Rule 32 (f) applies to nolo contendere pleas, the motion was
untimely. A judgment becomes final thirty (30) days after it is entered into the
minutes of the court clerk. Tenn. R. App. P. 4 (a); State v. Lock, 839 S.W.2d
436, 440 (Tenn. Crim. App. 1992). The defendant was sentenced by the trial
court on June 30, 1995. The motion of the defendant to withdraw his plea was
filed on October 26, 1995. The defendant’s motion was not timely filed.
III.
The defendant also contends that the trial court should have treated his
motion as a petition for post-conviction relief, or, in the alternative, as one for a
writ of error coram nobis. In support of his argument, the defendant cites Archer
v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (stating a court may treat a petition
for a writ of habeas corpus as a petition for post-conviction relief).
3
The Supreme Court in Archer cited explicit statutory authorization for its
statement. Id.; see Tenn. Code Ann. § 40-30-108 repealed by § 40-30-205 (c).
The defendant cites no analogous statute requiring the trial court to treat a
motion to withdraw a plea as a petition for post-conviction relief.
The defendant further contends the trial court should have treated his
motion as a petition for a writ of error coram nobis. Relief under this writ is
confined to matters that were not, or could not have been, litigated at trial. Rowe
v. State, 498 S.W.2d 322, 325 (Tenn. 1973); Tenn. Code Ann. § 40-26-105.
The trial court did not err in failing to treat the motion as a petition for a writ of
error coram nobis.
IV.
Even if the defendant’s claims were considered, we find he would not be
entitled to relief. The defendant contends his counsel coerced him to plead
guilty and provided ineffective assistance of counsel by failing to interview and
utilize certain witnesses. The trial court found that the defendant’s plea was
voluntary, knowing and intelligent. In fact, the defendant testified that he “took
the plea . . . to get past it, to where I could turn around and file a motion, and
come back into court, either on a withdrawal or either a post-conviction.” We find
no evidence to indicate that the plea was involuntary.
As to ineffective assistance of counsel, the defendant did not establish
that the claimed witnesses could have materially assisted in his defense.
In summary, the defendant clearly understood the implications of his plea.
The advice and decisions by trial counsel were within the range of competence
demanded of attorneys who practice criminal law. See Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975).
The judgment of the trial court is AFFIRMED.
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__________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________
GARY R. WADE, JUDGE
___________________________
DAVID H. WELLES, JUDGE
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