State v. Phelps

• Decision Date: 16 December 2010
• Docket Number: No. M2008-01096-SC-R11-CD.,M2008-01096-SC-R11-CD.
• Parties: STATE of Tennessee v. Terry PHELPS.
• Court: Tennessee Supreme Court

329 S.W.3d 436

STATE of Tennessee

v.Terry PHELPS.

No. M2008-01096-SC-R11-CD.

Supreme Court of Tennessee, at Nashville.

Oct. 5, 2010 Session.

Dec. 16, 2010.

Thomas F. Bloom (on appeal), Nashville, Tennessee, and Emeterio "Terry" Hernando (at trial court), Lewisburg, Tennessee, for the appellant, Terry Phelps.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Asst. Attorney General; Charles Crawford, District Attorney General; Michael D. Randles, Asst. District Attorney General, for the appellee, State of Tennessee.

OPINION

CORNELIA A. CLARK, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

CORNELIA A. CLARK, C.J.

The defendant, a convicted violent sexual offender, was released on parole in 2006. He registered pursuant to the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 ¹ ("the Registration Act"), listing a primary address in Bedford County and a secondary address in Rutherford County. He was subsequently arrested in Lincoln County and charged with violating the Registration Act. Defendant tendered an "open" guilty plea but moved to withdraw his plea prior to being sentenced. After a hearing, the trial court ruled that the defendant had "merely hada change of heart" and denied the motion. The trial court later sentenced the defendant as a Range II offender to three years in the Department of Correction. The defendant appealed the trial court's decision on his motion to withdraw plea and his sentence. The Court of Criminal Appeals affirmed. We hold that the trial court committed reversible error in failing to apply the correct analysis in determining whether the defendant had established a "fair and just reason" for withdrawing his guilty plea. We further hold that Defendant established sufficient grounds for the withdrawal of his guilty plea. The judgments of the trial court and the Court of Criminal Appeals are reversed, the defendant's motion to withdraw his guilty plea is granted, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

Factual and Procedural Background

In 1985, at the age of seventeen, the defendant Terry Phelps ("Defendant") pled guilty to aggravated rape, aggravated robbery, and first degree burglary. Defendant was sentenced to serve thirty years for these crimes, and he spent the following twenty-one years in prison before being released on parole in June 2006. While incarcerated, Defendant obtained his GED, a barber's license, a cabinet and millworks certificate, and a culinary arts certificate. He also completed a sex offender treatment program. The record reflects no disciplinary infractions.

Defendant's conviction of aggravated rape required him to register as a violent sexual offender in conjunction with his release. See Tenn.Code Ann. §§ 40-39-202(24) & (25); -203(b). Defendant initially registered on June 7, 2006, and, on June 13, 2006, Defendant received a copy of the Tennessee Bureau of Investigation's instruction sheet for sexual offenders. As of October 1, 2007, Defendant notified the Tennessee Bureau of Investigation ("TBI") that his primary residence was in Shelbyville, Bedford County, and that his secondary residence was in Murfreesboro, Rutherford County. Defendant was provided with another TBI instruction sheet (updated July 5, 2007), which states in pertinent part that "[s]exual offenders and violent sexual offenders shall ... report in person to their designated law enforcement agency within 48 hours of changing their address, becoming employed, practicing a vocation, establishing a physical presence at a particular location or becoming a student in TN." The terms "changing their address" and "establishing a physical presence at a particular location" are not defined in the instruction sheet.

In November 2007, Defendant was arrested in Lincoln County. According to the presentence report prepared in conjunction with the instant offense, Defendant was arrested on two counts of aggravated burglary and theft, and the charges were dismissed "when law enforcement determined [Defendant] was not involved." During their investigation of these charges, Fayetteville police officers determined that Defendant had been "living" with his father in Lincoln County for about two weeks. Defendant had not, however, notified the appropriate authorities about his presence in Lincoln County and had not updated his sexual offender registration information.

In December 2007, Defendant was indicted for violating the Registration Act by failing timely to register a change in his primary or secondary residence. ² Specifically, the indictment alleges that Defendant

on or about the 11th day of November, 2007, in Bedford County, Tennessee, and before the finding of this indictment, having been found to be a violent sex offender, did change his primary or secondary residence, and the defendant did fail to timely register in person said change of residence with the Tennessee Bureau of Investigation or other law enforcement agency, in violation of Tennessee Code Annotated § 40-39-203.³

The trial court ⁴ held a status review on January 3, 2008, during which the court informed Defendant that the disposition date was February 7, 2008, and that, on that date, "the case will either be set for trial or a resolution of the case will be announced." Also on January 3, 2008, Defendant's public defender withdrew and substitute counsel was appointed. On February 7, 2008, Defendant entered an open guilty plea to the charge, which is described in his written Petition to Enter Plea of Guilty as "violation sex offender registry."

At the plea submission hearing, the trial court informed Defendant about the charge as follows:

Now, in order to convict you of what you're charged with now, which is the sex offender registry, the State of Tennessee would have to prove that you had a conviction for aggravated rape from 1985 and that you knowingly failed to register in person with the designated law enforcement agency and failed to complete and sign a TBI registration form within 48 hours of establishing or changing a primary or secondary residence. In other words, you moved without filling out the proper forms after you had previously been convicted for aggravated rape, which triggers the registration obligation. Okay? Do you think you understand what the statute says?

(Emphases added). Upon Defendant's affirmative response, the trial court continued:

Okay. We need to know if there's a factual basis for these charges [sic]. And we can get that in one of two ways. We can have the General bring his witnesses up here, we'll swear them in and hear from them; or if you and [defense counsel] agree, we'll just let the General give us a summary of the proof he has against you. Do we have your permission to go with the summary?

Upon Defendant's affirmative response, the prosecuting attorney stated the following:

The factual basis is that the State—the defendant was convicted of aggravated rape back in 1985 in Lincoln County. There were some other felony convictions also entered at that time. In October of 2007, he ... complete[d] a TBI registration form, that was on October 1st, 2007, here in Bedford County indicating his primary address was an address here in Bedford County and then he had a secondary address in Murfreesboro, Tennessee.

In early to mid[-]November of 2007, the defendant was interviewed by investigators with the Fayetteville Police Department, and he, in that interview, indicated that he had been living at an address in Fayetteville, and been livingthere approximately two weeks. However, he had not updated his registration here and he had not notified Fayetteville authorities of his move to Lincoln County.

The trial court then asked Defendant if "in November or sometime around then, [he had] move[d] to Fayetteville and not register[ed] that [he] had moved?" Defendant responded, "I was down there, Your Honor, yes." After confirming Defendant's 1985 aggravated rape conviction, the trial court asked Defendant if he saw "how this fits the definition of violation of the sex offender registry?" Defendant responded affirmatively and also affirmed that he had discussed with his attorney the elements of "this offense" and "the proof that State of Tennessee says they have against" him.

Later in the plea submission hearing, Defendant told the trial court that he had questions and stated, "It's a whole lot I don't understand that's going on." On prompting by the trial court, Defendant continued:

Well, I'm just going to put it out there, Your Honor. I really don't know what's going on. All I know is, I hadn't talked to my counsel about certain issues. Everything I talked to him about it's like it's a no, no, no. You know, I don't understand, you know. I'm guilty and I'm not guilty. And I don't want to sit here and throw away all my rights to something and then down the line be hurting for something that I wish I hadn't done. And I wanted to have some time to think about it, but it seem like I ain't got time to think about it, and I got to go ahead and do this today or either you don't have time to do it.

(Emphasis added). The trial court explained that Defendant had the choice of taking the State's offer to plead open or the case could be set for a jury trial. The court reminded Defendant that he had been notified earlier about the disposition deadline and that he would have to make the choice that day. The trial court confirmed that the State was not going to make a more favorable offer. The court emphasized that the decision was Defendant's, and Defendant stated "I'm going to take my counsel's advice." The plea submission hearing then continued, and the trial court found as follows:

Okay. I do find that he's competent to enter into his open plea. That he understands both the direct and the

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