plea submission hearing in Tennessee

2019The abuse-of-discretion standard 1 Although the trial court identified the victim’s son as being three years old at the time of the offense, the facts recited at the plea submission hearing indicated that the child was four years old. -3- of review and the presumption of reasonableness also applies to “questions related to probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

2013ANALYSIS As we previously noted, Winters did not include the transcript from the plea submission hearing in the record on appeal. “[W]hen a record does not include a transcript of the hearing on a guilty plea, the Court of Criminal Appeals should determine on a case-by- case basis whether the record is sufficient for a meaningful review under the standard adopted in Bise.” State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012).

2019The Petitioner also asserted that the trial court violated State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), by failing to inform him that evidence of the convictions from his guilty pleas could be presented in determining the appropriate punishment for future convictions.

2006See State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977).

2011See State v. Crowe, 168 S.W.3d 731, 749 (Tenn. 2005) (“Another source from which a defendant may gain an understanding of the nature of the offense is the prosecution’s summation at the plea submission hearing of the facts relevant to the elements of the plea offense.” (citing State v. Johnson, 751 A.2d 298, 322 (Conn. 2000))).

2005See, e.g., State v. Johnson, 253 Conn. 1 , 751 A.2d 298, 322 (2000) (citing cases).

2013ANALYSIS As we previously noted, Allen did not include the transcript from the plea submission hearing in the record on appeal. “[W]hen a record does not include a transcript of the hearing on a guilty plea, the Court of Criminal Appeals should determine on a case-by-case basis -5- whether the record is sufficient for a meaningful review under the standard adopted in Bise.” State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012); see State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).

2013ANALYSIS As we previously noted, Henson did not include the transcript from the plea submission hearing in the record on appeal. “[W]hen a record does not include a transcript of the hearing on a guilty plea, the Court of Criminal Appeals should determine on a case-by- case basis whether the record is sufficient for a meaningful review under the standard adopted in Bise.” State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012); see State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).

2011Not only did the court refrain from requiring the plea submission hearing transcript in every appeal, but it also noted that the record before it was “quite bare” and that the “basic facts underlying the aggravated burglary [that] appear in the sentencing hearing transcript and the presentence report . . . are not enough to properly review the sentence in this case,” especially when, based upon the enhancement factors applied, “the trial court [had] relied substantially upon the nature of the offense.” Id. at 844 .

2011Not only did the court refrain from requiring the plea submission hearing transcript in every appeal, but also it noted that the record before it was “quite bare” and that the “basic facts underlying the aggravated burglary -2- [that] appear in the sentencing hearing transcript and the presentence report . . . are not enough to properly review the sentence in this case,” especially when, based upon the enhancement factors applied, “the trial court [had] relied substantially upon the nature of the offense.” Id. at 844 .

2012“When a petitioner must offer proof beyond the record to establish the invalidity of a conviction, the judgment is merely voidable and not void.” Summers v. State, 212 S.W.3d 251, 258 (Tenn. 2007) (citing State v. Ritchie, 20 S.W.3d 624, 630-31 (Tenn. 2000)).

2007Although it is certainly true that “as a general rule, when a plea agreement includes an illegal sentence, a defendant is entitled to withdraw the guilty plea,” Summers v. State, 212 S.W.3d 251, 258 (Tenn. 2007) (citing McLaney v. Bell, 59 S.W.3d 90, 94-95 (Tenn. 2001)), it is also true that “[i]n the case of an illegal sentence claim based on facts not apparent from the face of the judgment, an adequate record for summary review must include pertinent documents to support those factual assertions,” Summers, 212 S.W.3d. at 261.

2011However, as noted by the editor’s note, “[t]he opinion . . . was withdrawn from the bound volume because it was not intended for publication.” -5- evidence considered by the trial court been included in the record on appeal, it would have supported the imposition of a six[-]year sentence.” Id. (citing State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim.

2011Thus, only after considering the paucity of the rest of the appellate record did the court, in reviewing the length of Keen’s sentence, point to the absence of the pleas submission hearing transcript and the indictment “to presume that had all of the evidence considered by the trial court been included in the record on appeal, it would have supported the imposition of a six year sentence.” Id. (citing State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim.

2009See Blankenship, 858 S.W.2d at 904 .

2005In Boykin, the Supreme Court concluded that if a guilty plea is not voluntary and knowing, “it has been obtained in violation of due process and is therefore void.” State v. Neal, 810 S.W.2d 131, 135 (Tenn. 1991), overruled in part on other grounds by Blankenship v. State, 858 S.W.2d 897, 902 (Tenn. 1993).

2019We reiterate that a petitioner’s representations that his guilty plea is knowing, intelligent, and voluntary create “a formidable barrier in any subsequent collateral proceedings” because these representations “carry a strong presumption of verity[.]” Blackledge, 431 U.S. at 74 .

2013See Blackledge v. Allison, 431 U.S. 63, 74 (1977).

2011Thus, only after considering the paucity of the rest of the appellate record did the court, in reviewing the length of Keen’s sentence, point to the absence of the plea submission hearing transcript and the indictment “to presume that had all of the 1 We acknowledge that Farmer was initially published in the reporter advance sheet at 239 S.W.3d 752 .

2011Thus, only after considering the paucity of the rest of the appellate record did the court, in reviewing the length of Keen’s sentence, point to the absence of the plea submission hearing transcript and the indictment “to presume that had all of the 1 We acknowledge that Farmer was initially published in the reporter advance sheet at 239 S.W.3d 752 .

2023I, § 15, but has been regulated by statute for more than a 1 The transcript of the plea submission hearing is not contained in the record. -2- century, see Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968).

2019We also conclude that the questions asked by the trial court in this case were “broad enough to encompass not only the traditional types of coercion but the unique pressures - 27 - from a co-defendant or family member that may arise in a package plea agreement.” Howell, 185 S.W.3d at 336 (citing Mescual-Cruz, 387 F.3d at 9-10 ); cf. United States v. Martinez-Molina, 64 F.3d 719, 734 (1st Cir. 1995) (concluding that the trial court did not conduct an adequate inquiry into the voluntariness of the package plea agreement when it only asked the defendants whether they had been threatened or pressu

2019We also conclude that the questions asked by the trial court in this case were “broad enough to encompass not only the traditional types of coercion but the unique pressures - 27 - from a co-defendant or family member that may arise in a package plea agreement.” Howell, 185 S.W.3d at 336 (citing Mescual-Cruz, 387 F.3d at 9-10 ); cf. United States v. Martinez-Molina, 64 F.3d 719, 734 (1st Cir. 1995) (concluding that the trial court did not conduct an adequate inquiry into the voluntariness of the package plea agreement when it only asked the defendants whether they had been threatened or pressu

2013Compare id. at 450-51 (noting that the “Defendant repeatedly expressed confusion and frustration about the proceedings” in its analysis of this factor), with Timothy Damon Carter, 2012 WL 2308293 , at *8 (noting that “[u]nlike the defendant in Phelps, the Defendant here never expressed any confusion or frustration about the guilty plea proceedings”).

2012“When a petitioner must offer proof beyond the record to establish the invalidity of a conviction, the judgment is merely voidable and not void.” Summers v. State, 212 S.W.3d 251, 258 (Tenn. 2007) (citing State v. Ritchie, 20 S.W.3d 624, 630-31 (Tenn. 2000)).

2011As in Keen, the court not only reviewed the trial court’s denial of alternative sentencing despite the absence of the plea submission transcript, it also affirmed the denial -3- based upon its finding that Farmer’s “continued criminal behavior clearly demonstrates a lack of rehabilitative potential.” Id.; see Keen, 996 S.W.2d 845 (“[T]hese facts show a poor potential for rehabilitation, which is sufficient reason to justify a term of incarceration rather than alternative sentencing.”); see also State v. Shatha Litisser Jones, No. W2002-02697- CCA-R3-CD, slip op. at ___ (Tenn. Crim.

2011See State v. Crowe, 168 S.W.3d 731, 749 (Tenn. 2005) (“Another source from which a defendant may gain an understanding of the nature of the offense is the prosecution’s summation at the plea submission hearing of the facts relevant to the elements of the plea offense.” (citing State v. Johnson, 751 A.2d 298, 322 (Conn. 2000))).

2011When evaluating the knowing and voluntary nature of a guilty plea, the United States Supreme Court has held that “[t]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970).

2010See Smith, 202 S.W.3d at 128-29 (looking to both the plea document and the transcript of the plea submission hearing to determine that the befouled provision was not prominent in the overall agreement); Michael David Russell v. Virginia Lewis, Warden, No. E2005-02644-CCA-R3-HC (Tenn. Crim.

2007Although it is certainly true that “as a general rule, when a plea agreement includes an illegal sentence, a defendant is entitled to withdraw the guilty plea,” Summers v. State, 212 S.W.3d 251, 258 (Tenn. 2007) (citing McLaney v. Bell, 59 S.W.3d 90, 94-95 (Tenn. 2001)), it is also true that “[i]n the case of an illegal sentence claim based on facts not apparent from the face of the judgment, an adequate record for summary review must include pertinent documents to support those factual assertions,” Summers, 212 S.W.3d. at 261.

2006And in order for us to . . . put the plea through, we had to agree to the range and that's what [the petitioner] wanted to do." At the conclusion of the hearing, the post-conviction court denied relief, specifically accrediting the testimony of trial counsel that he had "adequately explained to the [petitioner] the consequence of . . . pleading as a Range II offender." Although the post-conviction court failed to file a written order denying relief as required by statute, see Tenn. Code Ann. § 40-30-111 (b) (2003), it is our view that the record is otherwise adequate for our review, see State

2005To the extent that the actual plea terms might have shown otherwise, the defendant, as the appellant, has failed to include the plea document in the record. “[I]t is the duty of the defendant to prepare a record which conveys a fair, accurate and complete account of what transpired in the trial court with respect to the -3- issues which form the bases of the appeal.” State v. Coolidge, 915 S.W.2d 820, 826 (Tenn. Crim.