State of Tennessee v. David Jerome Powell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 6, 2015

STATE OF TENNESEE v. DAVID JEROME POWELL

Appeal from the Circuit Court for Madison County

No. 14-414 Donald H. Allen, Judge

No. W2015-00366-CCA-R3-CD - Filed November 18, 2015

The Defendant-Appellant, David Jerome Powell, entered an open guilty plea to theft of

property valued at more than $500 but less than $1000, driving on a cancelled, suspended

or revoked license, and driving on a cancelled, suspended or revoked license, third

offense, with the trial court to determine the length and manner of service of his sentence.

See T.C.A. §§ 39-14-103, 55-50-504. Prior to the sentencing hearing, Powell filed a

motion to withdraw his guilty plea, alleging that he had a constitutional right to a jury

trial. The trial court denied the motion, finding no “just and fair reason to allow him to

withdraw the plea.” At the sentencing hearing a few days later, the trial court merged the

conviction for driving on a cancelled, suspended or revoked license with the conviction

for driving on a cancelled, suspended or revoked license, third offense. The court then

sentenced Powell to consecutive sentences of six years with a release eligibility of sixty

percent for the conviction for theft and eleven months and twenty-nine days for the

conviction for driving on a revoked license, third offense, and ordered these sentences

served consecutively to sentences Powell had received for three other convictions in other

courts. Thereafter, Powell appealed the trial court‟s denial of his motion to withdraw his

guilty plea. Upon review, we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant

Public Defender, for the Defendant-Appellant, David Jerome Powell.

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

James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

On July 28, 2014, the Madison County Grand Jury indicted Powell for theft of

property valued at more than $500 but less than $1000, driving on a cancelled, suspended

or revoked license, and driving on a cancelled, suspended or revoked license, third

offense.

On October 21, 2014, the date of his trial, Powell asked the court to accept a plea

agreement wherein he would enter a guilty plea to the charged offenses in exchange for

concurrent sentences of four years with a release eligibility of thirty-five percent for the

conviction for theft and a sentence of thirty days for the conviction for driving on a

revoked license, third offense, with the court to determine the manner of service of this

sentence. Powell, who was under oath, stated that his attorney had reviewed the plea

agreement with him and that he understood the details of this agreement. He said he was

not under the influence of alcohol, drugs, or medication that would impair his judgment.

The trial court informed Powell that he had the right to plead not guilty, the right to a jury

trial, the right to assistance of counsel at every critical stage of the proceedings, the right

to confront and cross-examine witnesses against him, the right to present evidence on his

own behalf, the right not to incriminate himself, and the right to appeal his convictions

and sentences following trial. Powell stated that he fully understood these rights. The

trial court also informed Powell that by entering a guilty plea, he would be waiving his

right to a trial and would be admitting that he committed the charged offenses. The court

also told Powell that once the guilty plea was accepted, it could not be withdrawn unless

the court allowed him to withdraw it. The trial court informed him that his guilty plea to

the charges could result in increased punishment for future convictions. Powell asserted

that he was entering his plea freely and voluntarily and that no threats or promises had

been made to cause him to plead guilty. He admitted that he was guilty of the charged

offenses. Powell said that his attorney had fully advised him of all possible defenses to

his charges and that he had no questions about any of the advice his attorney had given

him. The trial court informed Powell that if he entered this guilty plea, he would not

have a right to appeal his conviction but would have a right to appeal the sentence

imposed by the court. The trial court informed Powell of the ranges of punishment he

was facing for the charges, the details of the plea agreement, and the requirement for

submitting a DNA sample in light of his felony conviction.

The State then summarized the facts supporting Powell‟s guilty plea:

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[On] March 20th of 2014 the State would show at trial that Mr. Powell did

knowingly obtain or exercise control over property over the value of $500

without the effective consent of the owner being Hunter Creasy with intent

to deprive the owner of the property. Also that he was unlawfully driving a

motor vehicle upon a public highway in Madison County, Tennessee while

his driver[‟]s license was cancelled, suspended or revoked and it was in

such a status because of two prior convictions out of Shelby County

General Sessions Court, one in April of 2011 and one in March of 2011.

If it please the Court, the State would show at trial that on that date

of March the 20th of 2014 that Captain Fitzgerald with the Madison County

Sheriff‟s Department conducted a traffic stop of a white Ford Explorer that

was towing a gray Dodge Ram. There were no tow lights and heavy smoke

was coming from that vehicle. That was suspicious. In addition, Captain

Fitzgerald knew—had witnesse[d] Mr. Powell in towing this vehicle,

loading it, and knew who the owner of the vehicle was and so he was

suspicious about that. He stopped the vehicle and asked for a driver‟s

license. Mr. Powell produced an ID only. It was discovered he was driving

on [a] revoked [license] so that led to the arrest.

Upon further investigation, Mr. Powell admitted that he had taken

this vehicle but that somebody had given him permission to take it. Of

course, Mr. Creasy was not that individual that did that. That‟s the owner

of the vehicle who is before the Court on the third row to Your Honor‟s

left. He was the lawful owner of that vehicle and had not given permission

for anybody to take it, but in the statement of Mr. Powell it said that

somebody told him that he could have that vehicle that it didn‟t work and

he could have that vehicle, but that was not the lawful owner of the vehicle

and therefore it was theft from Mr. Creasy.

All this occurred in Madison County, Tennessee.

Powell acknowledged the aforementioned facts were substantially correct and that he had

taken the truck without the permission of the owner. When Powell asserted that someone

had posted an advertisement for the truck on the craigslist website, defense counsel

explained:

Your Honor, there was a statement that he gave to law enforcement

and basically the situation was there was apparently some sort of ad on

Craig‟s List [sic] which we‟ve been unable to retrieve or replicate. Mr.

Powell and his nephew went to this house in Beech Bluff which is Mr.

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Creasy‟s home. They met a man and I think the name given was Jeremy,

but it was not the lawful owner and there was no title that transferred.

There was no registration info [sic] that transferred. There was actually I

don‟t think any money that transferred. Mr. Powell came back a few days

later and then was towing the vehicle. He and I have discussed that it‟s a

knowing sort of thing [and that he] should have known that this perhaps

was not on the up-and-up, but he‟s never denied he was towing the vehicle

and that he was driving on [a] suspended license, but he did take it without

either Hunter Creasy[‟s] or his mother‟s permission.

After fully considering the plea agreement, the trial court rejected the sentence

recommended by the State. The trial court gave Powell the choice of proceeding to trial

that day or entering an open guilty plea with the court to determine the length and manner

of service of his sentence at a later date. After consulting with his attorney, Powell chose

to enter an open guilty plea to the charged offenses that day and to have the court

determine his sentence at a later hearing. After reminding Powell of the rights he was

waiving and the potential sentences he faced, the court accepted his open guilty plea,

revoked his bond, and set a sentencing hearing for December 1, 2014.

On November 26, 2014, just prior to the scheduled sentencing hearing, Powell

filed a motion to withdraw his guilty plea, alleging that exercising his constitutional right

to a jury trial was a “fair and just reason” for the withdrawal of his plea. The trial court

conducted hearings on Powell‟s motion on December 15, 2014, and December 22, 2014.

At the December 15, 2014 hearing, Powell testified that he wished to withdraw his

guilty plea on the theft charge. Powell stated that his fiancé‟s nephew, who had been

with him at the time of his arrest, was not present to testify for him on his scheduled trial

date because he was attending college in Knoxville and did not have sufficient funds to

travel. Powell asserted that he entered his open guilty plea because this witness was not

able to testify on his behalf and because all of the witnesses present for trial were

testifying for the State. He acknowledged that he had been convicted of felonies in

Shelby County but asserted that he had always entered guilty pleas and had never

proceeded to trial. Defense counsel acknowledged that Powell had talked to him about

having his fiancé‟s nephew testify for him at trial. After hearing arguments from the

parties, the trial court took the matter under advisement and continued the hearing to

December 22, 2014.

At the December 22, 2014 hearing, the trial court recalled that on October 21,

2014, which was Powell‟s scheduled trial date, jurors were in the courthouse and

witnesses were present in the courtroom. Defense counsel informed the court that his

client was ready to proceed with the trial until Powell suddenly decided to enter his guilty

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plea. At that point, the court reviewed the details of the plea agreement with Powell,

informed him of his rights, and explained the sentencing ranges he faced.

The trial court stated that after disclosing that he was not going to accept the

State‟s recommendation regarding his sentence, he gave Powell the option of

withdrawing his plea and going forward with his trial. Powell consulted with defense

counsel before deciding to enter an open plea to the charges, with the court to determine

the length and manner of service of his sentence. The trial court accepted his open guilty

plea to the charges, dismissed the jurors, and discussed a sentencing date. The trial court

noted that at no point in the process did Powell indicate he wanted to withdraw his guilty

plea and proceed to trial, despite the fact that the State and the defense had been prepared

to try his case that day.

After reading the plea submission transcript, the trial court recalled that it revoked

Powell‟s bond, took him into custody, and set his sentencing hearing a week later so that

the presentence report could be prepared. The court said that although it was ready to

proceed with the sentencing hearing, Powell filed the motion to withdraw his guilty plea

a few days prior to the scheduled sentencing hearing.

At the conclusion of the hearing, the trial court denied the motion, finding that

there was no just and fair reason to allow Powell to withdraw his guilty plea:

Now, under Rule 32(f)(1), Tennessee Rules of Criminal Procedure,

the burden rests upon the defendant to show some fair and just reason . . .

why the Court should allow him to withdraw his guilty plea. You know, I

listened to what Mr. Powell stated. He indicated something on the hearing

date something about a witness that he says lives in Knoxville, Tennessee.

I was never told on the morning of trial that he had any missing witness. If

I had been told that, I may have said, you know, they should have been here

or we could have done something else, but I was never told about any

missing witness. I was told he was ready to go to trial that day and we were

prepared to go to trial that day. But, instead it appears to the Court that

[t]he defendant willfully, voluntarily, knowingly and intelligently went

ahead and decided to enter a guilty plea. I accepted the plea.

Now, nothing has really—in the Court‟s opinion, nothing has really

changed since then except the defendant for whatever reason now wishes to

withdraw his guilty plea. I don‟t find any fair and just reason to allow him

to withdraw his guilty plea.

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Now, I will state this: Apparently some of the factors the Court has

to consider is the amount of time that has elapsed from the guilty plea.

Again, October the 21st until the time the motion was filed which was a

little over a month later on November the 26th. So, it was not a long period

of time between the guilty plea and the motion, but really there‟s nothing

else to indicate that the defendant should be allowed to withdraw the guilty

plea. You know, he told me under oath on multiple occasions when asked

if he was guilty of these charges and he told me that he was.

You know, given those circumstances and—also I know the

defendant has had some prior experience with the criminal justice system. I

believe he told me a few weeks ago that, you know, he‟s entered guilty

pleas before. I believe he told me that he‟s never gone to trial before; he‟s

always entered [a] guilty plea. You know, certainly he‟s been through the

process before and certainly understands that when you enter a guilty plea

as I asked him and told him once I accept the plea you cannot withdraw it.

So, you know, that‟s the circumstances.

I‟m going to deny the motion to allow Mr. Powell to withdraw his

guilty plea. I find that he fully understood what he was doing by pleading

guilty. You know, I think the fact that I did revoke his bond and took him

into custody and I guess he thinks that for some reason if I granted his

motion to withdraw his plea that he‟s going to get back out on bond. I‟m

not sure what his motive is at this point to withdraw his guilty plea, but I

just don‟t feel like there‟s any just and fair reason to allow him to withdraw

the plea.

The motion will be denied.

While the transcript from the motion hearing clearly reflects the trial court‟s oral

denial of the motion on December 22, 2014, the record in this case contains no order or

minute entry denying Powell‟s motion to withdraw his guilty plea. See Tenn. R. App. P.

24(b) (stating that the appellant has a duty to prepare a record that conveys “a fair,

accurate and complete account of what transpired with respect to those issues that are the

bases of appeal”). On December 30, 2014, the trial court sentenced Powell to

consecutive sentences of six years for the conviction for theft and eleven months and

twenty-nine days for the conviction for driving on a revoked license, third offense, and

ordered these sentences served consecutively to sentences Powell had received for three

unrelated convictions. Although Powell was sentenced on December 30, 2014, the

judgments of conviction containing his sentence were not entered until February 2, 2015,

a delay not explained by the record. On February 26, 2015, Powell filed a timely notice

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of appeal. Powell‟s sole argument on appeal is that the trial court erred in denying his

motion to withdraw his guilty plea.

ANALYSIS

Initially, we must consider whether Tennessee Rule of Appellate Procedure 4(c) is

applicable to this case. Rule 4(c) states that “[i]n a criminal action, if a timely motion or

petition under the Tennessee Rules of Criminal Procedure is filed in the trial court by the

defendant: (1) under Rule 29(c) for a judgment of acquittal; (2) under Rule 32(a) for a

suspended sentence; (3) under Rule 32(f) for withdrawal of a plea of guilty; (4) under

Rule 33(a) for a new trial; or (5) under Rule 34 for arrest of judgment, the time for appeal

for all parties shall run from entry of the order denying a new trial or granting or denying

any other such motion or petition.” Tenn. R. App. P. 4(c) (emphasis added).

Although Rule 4(c) does not explicitly state that it applies only to motions to

withdraw a guilty plea filed after the entry of the judgment of conviction, this rule

references several post-judgment motions that, if timely filed, toll the running of time for

filing a notice of appeal. See Tenn. R. App. P. 4(c), Advisory Comm‟n Cmt. Because

the motion to withdraw the guilty plea in this case was filed before, rather than after,

entry of the judgments of conviction in this case, Powell was required to file his notice of

appeal within thirty days of entry of the judgments of conviction rather than within thirty

days from entry of the order denying his motion. See Tenn. R. App. P. 3(b) (“In criminal

actions an appeal as of right by a defendant lies from any judgment of conviction entered

by a trial court from which an appeal lies to the Supreme Court or Court of Criminal

Appeals: (1) on a plea of not guilty; and (2) on a plea of guilty or nolo contendere, if the

defendant entered into a plea agreement but explicitly reserved the right to appeal a

certified question of law dispositive of the case pursuant to and in compliance with the

requirements of Rule 37(b)(2)(A) or (D) of the Tennessee Rules of Criminal Procedure,

or if the defendant seeks review of the sentence and there was no plea agreement

concerning the sentence, or if the issues presented for review were not waived as a matter

of law by the plea of guilty or nolo contendere and if such issues are apparent from the

record of the proceedings already had.” (emphasis added)); Tenn. R. App. P. 4(a) (“[T]he

notice of appeal required by Rule 3 shall be filed with and received by the clerk of the

trial court within 30 days after the date of entry of the judgment appealed from . . . .”).

Because Powell filed his notice of appeal within thirty days of entry of the judgments of

conviction, this court has jurisdiction to review the denial of the motion to withdraw his

guilty plea.

On appeal, Powell argues that the trial court erred in denying his motion to

withdraw his guilty plea because he articulated “a fair and just reason” in support of his

motion. After reviewing the record in light of the factors in State v. Phelps, 329 S.W.3d

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436, 446 (Tenn. 2010), we conclude that the trial court properly exercised its discretion in

denying Powell‟s motion to withdraw his guilty plea.

This court reviews a trial court‟s decision regarding a motion to withdraw a guilty

plea for an abuse of discretion. Phelps, 329 S.W.3d at 443 (citing State v. Crowe, 168

S.W.3d 731, 740 (Tenn. 2005)). “A trial court 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.” Id. (citing State v. Jordan, 325 S.W.3d 1, 38-40 (Tenn. 2010). This

court held that it 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)).

Tennessee Rule of Criminal Procedure 32(f) provides:

Withdrawal of Guilty Plea.

(1) Before Sentence Imposed.—Before sentence is imposed, the court may

grant a motion to withdraw a guilty plea for any fair and just reason.

(2) After Sentence But Before Judgment Final.—After sentence is imposed

but before the judgment becomes final, the court may set aside the

judgment of conviction and permit the defendant to withdraw the plea to

correct manifest injustice.

Tenn. R. Crim. P. 32(f) (emphases added). 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.” Phelps, 329 S.W.3d at 444 (citing Crowe, 168 S.W.3d

at 740; State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003)). However, “„the 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. (quoting

Henning v. State, 201 S.W.2d 669, 671 (Tenn. 1947)). “The defendant bears the burden

of establishing sufficient grounds for withdrawing his plea.” Id. (citing State v. Turner,

919 S.W.2d 346, 355 (Tenn. Crim. App. 1995)).

In Phelps, the Tennessee Supreme Court adopted the following list of factors used

by the United States Court of Appeals for the Sixth Circuit in determining what

constitutes “any fair and just reason” supporting the withdrawal of a guilty plea prior to

sentencing:

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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; and (7) potential prejudice to the government if the

motion to withdraw is granted.

Id. at 446 (quoting U.S. v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008)); see U.S. v.

Spencer, 836 F.2d 236, 239-40 (6th Cir. 1987). However, the court asserted that “this list

of factors is not exclusive; that no single factor is dispositive; and that 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). In addition, it stated that

“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 U.S. v.

Ellis, 470 F.3d 275, 286 (6th Cir. 2006)); see Spencer, 836 F.2d at 240.

The Phelps court also held that a “change of heart” may warrant the withdrawal of

a guilty plea when the balance of the factors weighs in the defendant‟s favor:

Significantly, the Court of Appeals for the Sixth Circuit has

emphasized that the 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.” United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir.

1991) (emphasis added). See also Ellis, 470 F.3d at 281 (“Withdrawal of a

plea is appropriate where there is a real confusion or misunderstanding of

the terms of the agreement.”). We hold that, where a trial court applies the

correct non-exclusive multi-factor analysis and determines that the balance

of factors weighs in the defendant‟s favor, the trial court should allow the

defendant to withdraw his plea, even if the defendant‟s reasons could be

characterized as a “change of heart.” We also caution trial courts, however,

that a defendant should not be allowed to pervert this process into a tactical

tool for purposes of delay or other improper purpose. See Alexander, 948

F.2d at 1004 (quoting United States v. Carr, 740 F.2d 339, 345 (5th Cir.

1984)).

Id. at 448.

A review of the appellate record shows that the trial court did not apply each of the

factors in Phelps. However, because the record contains all of the information presented

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to the trial court at the time that the court made its decision regarding the motion to

withdraw the guilty plea, we will conduct our own analysis of these factors in

determining whether there was “any fair and just reason” for Powell to withdraw his

guilty plea. See id. at 448-51 (conducting its own analysis of the factors related to the

“any fair and just reason” standard after noting that the record contained evidence

relevant to at least some of these factors, despite the fact that the trial court failed to

conduct the proper analysis using these factors); State v. Timothy Damon Carter, No.

M2010-02248-CCA-R3-CD, 2012 WL 2308293, at *7-9 (Tenn. Crim. App. June 18,

2012) (concluding that the trial court erred in failing to apply the Phelps factors to the

evidence and conducting its own analysis of these factors after noting that the record

contained all of the information presented to the trial court when it denied the motion to

withdraw the guilty plea).

First, regarding the amount of time that elapsed between the plea and the motion

to withdraw, the record shows that Powell entered his guilty plea on October 21, 2014,

and filed his motion to withdraw the plea on November 26, 2014, more than five weeks

later. While the trial court commented that “it was not a long period of time between the

guilty plea and the motion,” well-established precedent confirms that the length of time

between the plea and the motion does not weigh in Powell‟s favor. Compare Phelps, 329

S.W.3d at 449 (concluding that a period of “almost seven weeks” between the entry of

the plea and the filing of the motion to withdraw the guilty plea was “a significant length

of time” and “weigh[ed] somewhat against Defendant.”), and State v. Kevin Glenn

Tipton, No. E2012-00038-CCA-R3-CD, 2013 WL 1619430, at *12 (Tenn. Crim. App.

April 13, 2013) (stating that a period of more than six weeks between the entry of the

guilty plea and the filing of the motion to withdraw the guilty plea was “a substantial

amount of time.”), with State v. Marcus E. Robinson, No. M2005-00670-CCA-R3-CD,

2006 WL 1097456, at *3, *5 n.5 (holding that a period of less than one month between

the entry of the guilty plea and the pro se motion to withdraw guilty pleas was “of no

consequence in this case as it was neither a particularly long nor short time.”). At best,

this factor is neutral.

Second, regarding the presence, or absence, of a valid reason for the failure to

move for withdrawal of the plea earlier in the proceedings, the record shows that Powell

never provided a reason for why he did not move to withdraw his guilty plea sooner.

Compare State v. Ronald McMillian, No. M2012-02491-CCA-R3-CD, 2013 WL

4082628, at *4 (Tenn. Crim. App. Aug. 14, 2013) (holding that “[t]he lack of an

explanation for the lapse of time between the plea and the motion to withdraw weighs

against permitting withdrawal of the plea”), with Phelps, 329 S.W.3d at 449 (concluding

that the second factor was inconclusive when the record was unclear as to “the length of

time that passed between Defendant‟s instructions to his lawyer and the filing of the

motion, or whether Defendant had sought to meet with his lawyer earlier”), and Timothy

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Damon Carter, 2012 WL 2308293, at *7 (holding that the second factor was inconclusive

when the proof did not show the date that the defendant met with counsel and did not

explain “if it was at this meeting that the [d]efendant instructed his counsel to file the

motion to withdraw his plea”). Consequently, at best, this factor is neutral.

Third, regarding whether the defendant has asserted or maintained his innocence,

the record demonstrates that Powell chose to enter his guilty plea the day of his trial.

Despite the trial court‟s rejection of the sentencing suggestions in the plea agreement,

Powell chose to enter an open guilty plea that day and have the trial court determine the

length and manner of his sentence at a later hearing. The transcript from the plea

submission hearing shows that Powell acknowledged his guilt and agreed with the State‟s

recitation of the facts supporting his guilty plea. While Powell did suggest that someone

other than the owner had placed the advertisement for the truck on the craigslist website,

he acknowledged that he never received a title for the truck and never paid any money for

the truck. Powell also admitted that he removed the truck without the owner‟s

permission. Consequently, this factor weighs against Powell.

Fourth, regarding the circumstances underlying the entry of the guilty plea, Powell

concedes that “[t]his factor would likely weigh against [him].” He admits that he “was

fully advised of his rights,” that he “acknowledged what rights he was giving up by

pleading guilty,” and that the trial court had “a lengthy discussion with [him] about the

statement of facts read by the State.” The record shows that Powell was represented by

counsel before and during his plea. At the time he entered his guilty plea, Powell had

been informed of his rights and the potential sentences he faced. The transcript shows

that Powell never expressed any confusion during the plea submission hearing. Compare

Phelps, 329 S.W.3d at 450-51 (concluding that this factor weighed in the defendant‟s

favor after noting that the “Defendant repeatedly expressed confusion and frustration

about the [guilty plea] proceedings”), with Timothy Damon Carter, 2012 WL 2308293, at

*8 (stating that “[u]nlike the defendant in Phelps, the Defendant here never expressed any

confusion or frustration about the guilty plea proceedings”). At the plea submission

hearing, Powell stated under oath that he understood that he was waiving his right to

plead not guilty, his right to have a jury trial, his right against self-incrimination, his right

to confront and cross-examine the State‟s witnesses, his right to call witnesses in his own

behalf, his right to testify in his own behalf, and his right to appeal his conviction. He

stated that he was not under the influence of any alcohol, drugs, or medication at the time

he entered his plea, that no one had threatened or coerced him into entering his guilty

plea, that he had discussed entering his guilty plea with his attorney, and that he was

entering his plea freely and voluntarily. Powell said that he understood that his

conviction could be used to increase or enhance his punishment in future cases. He also

stated that defense counsel had explained his potential defenses. Powell understood that

following entry of his open guilty plea the trial court would determine the length and

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manner of his sentence, and he was informed of the potential sentences he faced. He

stated that he was satisfied with trial counsel=s performance and did not have any

questions for the trial court. Powell acknowledged that the State‟s recitation of the facts

supporting his guilty plea was correct before entering his open guilty plea. Consequently,

this factor weighs against Powell.

Fifth, regarding the defendant‟s nature and background, the record shows Powell

was thirty years old at the time he entered his guilty plea in this case. Aside from

Powell‟s extensive criminal record that is detailed below, he had an extensive juvenile

record that included a conviction for robbery and non-judicial adjudications for

aggravated assault, burglary, theft of property valued at $500 or less, simple possession

of marijuana, disorderly conduct, and truancy. Powell‟s presentence report shows that he

“dropped out” of Melrose High School in Memphis when he was in the eleventh grade.

Although Powell claimed that he had been employed as a laborer, welder, packer, septic

tank assembler, and construction worker, these jobs were separated by months, and

sometimes years, when he was unemployed. This factor weighs against Powell.

Sixth, regarding the degree to which the defendant has had prior experience with

the criminal justice system, the presentence report shows that Powell had twenty-two

prior convictions, including one conviction for aggravated assault, one conviction for

aggravated robbery, eight convictions for theft, two convictions for resisting arrest, three

convictions for domestic violence, one conviction for assault, three convictions for

driving with a revoked license, one conviction for vandalism, and one conviction for

criminal trespass. The presentence report also shows that Powell had his parole and

probation revoked on several occasions. Although Powell asserted that he had always

entered guilty pleas to his charges and never proceeded to trial, his extensive experience

with the criminal justice system weighs against him.

Because the record does not support any factors indicating a “fair and just reason”

for permitting the withdrawal of Powell‟s guilty plea, we need not consider the seventh

factor regarding the potential prejudice to the State. See Phelps, 329 S.W.3d at 451

(stating that the potential prejudice to the prosecution factor only becomes relevant when

the record shows that some of the factors indicate that there may be a “fair and just

reason” to allowing the withdrawal of the guilty plea prior to sentencing); Timothy

Damon Carter, 2012 WL 2308293, at *9 (holding that “[b]ecause none of the factors we

have examined weigh in favor of the Defendant, we will not examine the last factor

regarding prejudice to the State.”). After reviewing the record in light of the non-

exclusive multi-factor test in Phelps, we conclude that Powell failed to establish a “fair

and just reason” for withdrawing his guilty plea to the theft charge. Accordingly, we

affirm the judgment of the trial court.

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CONCLUSION

The trial court erred when it failed to apply all of the factors in Phelps to the

evidence presented. However, after reviewing the record in light of these factors, we

conclude that the trial court did not abuse its discretion in denying Powell‟s motion to

withdraw his guilty plea. Therefore, the judgment of the trial court is affirmed.

_______________________________

CAMILLE R. McMULLEN, JUDGE

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