factual basis requirement in Tennessee

2005See McCarthy v. United States, 394 U.S. 459, 466-67 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (stating that a plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts”); Powers v. State, 942 S.W.2d 551, 555 (Tenn.Crim.App.1996) (recognizing that the trial court’s failure to establish a factual basis for the plea may contribute to the totality of the circumstances resulting in an unknowing or involuntary plea); State v. Lord, 894 S.W.2d 312, 316 (Tenn.Crim.App.1994) (perm. app. denied Feb. 6, 1995) (stating that “the factual basis inquiry

2005See McCarthy v. United States, 394 U.S. 459, 466-67 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (stating that a plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts”); Powers v. State, 942 S.W.2d 551, 555 (Tenn.Crim.App.1996) (recognizing that the trial court’s failure to establish a factual basis for the plea may contribute to the totality of the circumstances resulting in an unknowing or involuntary plea); State v. Lord, 894 S.W.2d 312, 316 (Tenn.Crim.App.1994) (perm. app. denied Feb. 6, 1995) (stating that “the factual basis inquiry

2005See, e.g., Sexto n v. State, 151 S.W.3d 525, 532 (Te nn.

2005See, e.g., Sexton v. State, 151 S.W.3d 525, 532 (Tenn.Crim.App.2004) (perm. app. denied Nov. 8, 2004); State v. Duffey, No. 01C01-9610-CC-00427, *3, 1998 WL 28054 (Tenn.Crim.App.

2005See United States v. Washington, 341 F.2d 277 , 281 n. 3 (3d Cir.1965); Pilkington v. United States, 315 F.2d 204, 209 (4th Cir.1963) ("The facts disclosed in a hearing might not be sufficient for the court to conclude that the guilty plea was involuntary and violative of due process, yet the court may be of the opinion that clear injustice was done.") [11] Although prior Tennessee decisions have discussed the factual basis requirement as if it applies to nolo contendere pleas, the State did not contest its application in these prior cases.

2005See United States v. Washington, 341 F.2d 227 , 281 n.3 (3d Cir. 196 5); Pilkington v. United States, 315 F.2d 204 , 20 9 (4 th Cir. 1963) (“The facts disclosed in a hearing might not be sufficient for the court to conclude that the guilty plea was involuntary and violative of due process, yet the court may be of the opinion that clear injustice was done.”) -11- application of the factual basis requirement to nolo contendere pleas is an issue of first impression in Tennessee.11 We conclude that the State is correct in its assertion that Rule 11(f) does not mandate the establishment of a factua

2005Id. (citing State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); State v. Butler, 980 S.W.2d 359, 362 (Tenn. 1998)).

2005Id. (citing State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000); State v. Butler, 980 S.W.2d 359, 362 (Tenn.1998)).

2005Id. (citing State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); State v. Butler, 980 S.W.2d 359, 362 (Tenn. 1998)).

2005Id. (citing State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000); State v. Butler, 980 S.W.2d 359, 362 (Tenn.1998)).

2005See McCarthy v. United States, 394 U.S. 459, 466-67 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (stating that a plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts"); Powers v. State, 942 S.W.2d 551, 555 (Tenn.Crim.App.1996) (recognizing that the trial court's failure to establish a factual basis for the plea may contribute to the totality of the circumstances resulting in an unknowing or involuntary plea); State v. Lord, 894 S.W.2d 312, 316 (Tenn.Crim.App.1994) (perm. app. denied Feb. 6, 1995) (stating that "the factual basis inquiry

2005App. 1994) (perm . app. denied Feb. 6, 1995) (stating that “the factual basis inquiry focuses upon what the defendant understands about the applicab le law in relation to the facts he is adm itting”). 19 No lo contendere literally means “‘I will not co ntest it.’” 1A Charles Alan Wright, 1A Federal Practice and Procedure, § 177, at 286 (3d ed . 1999) (quoting Piassick v. United States, 253 F.2d 658 , 661 (5th C ir. 195 8)). -16- purposes of the case in which it is entered).20 By entering a nolo contendere plea, a defendant waives several constitutional rights and consents to the judgment of th

2005See McCarthy v. United States, 394 U.S. 459, 466-67 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (stating that a plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts"); Powers v. State, 942 S.W.2d 551, 555 (Tenn.Crim.App.1996) (recognizing that the trial court's failure to establish a factual basis for the plea may contribute to the totality of the circumstances resulting in an unknowing or involuntary plea); State v. Lord, 894 S.W.2d 312, 316 (Tenn.Crim.App.1994) (perm. app. denied Feb. 6, 1995) (stating that "the factual basis inquiry

2005See McCarthy v. United States, 394 U.S. 459, 466-67 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (stating that a plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts”); Powers v. State, 942 S.W.2d 551, 555 (Tenn.Crim.App.1996) (recognizing that the trial court’s failure to establish a factual basis for the plea may contribute to the totality of the circumstances resulting in an unknowing or involuntary plea); State v. Lord, 894 S.W.2d 312, 316 (Tenn.Crim.App.1994) (perm. app. denied Feb. 6, 1995) (stating that “the factual basis inquiry

2018In determining whether a petitioner asserts a colorable claim, “pro se petitions are to be held to less stringent standards than formal pleadings drafted by lawyers.” Gable v. State, 836 S.W.2d 558, 559-60 (Tenn. 1992) (internal quotations omitted); see T.C.A. § 40-30-106(d) (allowing a judge to order the filing of an amended pro se petition if the petition fails to state the factual basis of the claim).

2014Regarding the effect of the distinction between common law negligence and claims falling within the governance of the TMMA, our Supreme Court has explained: The elements of common law negligence include “(1) a duty of care owed by defendant to plaintiff; (2) conduct below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause.” Giggers v. Memphis Housing Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

2014Regarding the effect of the distinction between common law negligence and claims falling within the governance of the TMMA, our Supreme Court has explained: The elements of common law negligence include “(1) a duty of care owed by defendant to plaintiff; (2) conduct below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause.” Giggers v. Memphis Housing Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

2009We further note that although the failure to state a factual basis for alleged grounds for relief is an appropriate basis for summary dismissal, when presented with a pro se petition, the post-conviction court “may enter an order stating that the petitioner must file an amended petition [stating a factual basis] within fifteen (15) days or the petition will be dismissed.” Tenn. Code Ann. § 40-3-106 (d); see also Blair v. State, 969 S.W.2d 423, 425 (Tenn. Crim.

2007See Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004) (citing Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002)); see also Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

2007See Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004) (citing Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002)); see also Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

2007See Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004) (citing Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002)); see also Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

2005Yet, for the reasons stated herein, we further conclude that the trial court erred in denying the 21 Brady, 397 U.S. at 749 ; Blankenship, 858 S.W .2d at 904 ; Turner, 919 S.W.2d at 353 (all recognizing that courts must consider the totality of the circumstances in determining whether a plea has been voluntarily, knowingly, and unde rstandingly entered). -21- defendant’s motion to withdraw because the defendant established that his plea was not voluntarily, knowingly, and understandingly entered.

2005Blohm v. Comm’r, 994 F .2d 15 42, 15 54 (11th Cir. 199 3) (stating that guilty pleas must be rooted in fact before they may be accepted and emphasizing that no similar requirement exists for p leas of nolo contendere); United States v. Prince, 533 F.2d 205, 208 (5th Cir. 1976) (“Rule 11 does not require that the district court find a factual basis for a plea of nolo contendere, as op posed to a plea of guilty.”); Cortese v. Black, 838 F. Supp. 485, 492 (D.

2005See McCarthy v. United States, 394 U.S. 459, 466-67 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (stating that a plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts"); Powers v. State, 942 S.W.2d 551, 555 (Tenn.Crim.App.1996) (recognizing that the trial court's failure to establish a factual basis for the plea may contribute to the totality of the circumstances resulting in an unknowing or involuntary plea); State v. Lord, 894 S.W.2d 312, 316 (Tenn.Crim.App.1994) (perm. app. denied Feb. 6, 1995) (stating that "the factual basis inquiry

2005See McCarthy v. United States, 394 U.S. 459, 466-67 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (stating that a plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts”); Powers v. State, 942 S.W.2d 551, 555 (Tenn.Crim.App.1996) (recognizing that the trial court’s failure to establish a factual basis for the plea may contribute to the totality of the circumstances resulting in an unknowing or involuntary plea); State v. Lord, 894 S.W.2d 312, 316 (Tenn.Crim.App.1994) (perm. app. denied Feb. 6, 1995) (stating that “the factual basis inquiry

2005See United States v. Washington, 341 F.2d 277 , 281 n. 3 (3d Cir.1965); Pilkington v. United States, 315 F.2d 204, 209 (4th Cir.1963) ("The facts disclosed in a hearing might not be sufficient for the court to conclude that the guilty plea was involuntary and violative of due process, yet the court may be of the opinion that clear injustice was done.") [11] Although prior Tennessee decisions have discussed the factual basis requirement as if it applies to nolo contendere pleas, the State did not contest its application in these prior cases.

2005Blohm v. Comm’r, 994 F .2d 15 42, 15 54 (11th Cir. 199 3) (stating that guilty pleas must be rooted in fact before they may be accepted and emphasizing that no similar requirement exists for p leas of nolo contendere); United States v. Prince, 533 F.2d 205, 208 (5th Cir. 1976) (“Rule 11 does not require that the district court find a factual basis for a plea of nolo contendere, as op posed to a plea of guilty.”); Cortese v. Black, 838 F. Supp. 485, 492 (D.

2005Because “[w]aivers of constitutional rights not only must be voluntary but also must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences,” Brady v. United States, 397 U.S. 742, 748 (1970), the record must affirmatively disclose that a plea of nolo contendere was voluntarily, knowingly, and understandingly entered.

2005Yet, for the reasons stated herein, we further conclude that the trial court erred in denying the 21 Brady, 397 U.S. at 749 ; Blankenship, 858 S.W .2d at 904 ; Turner, 919 S.W.2d at 353 (all recognizing that courts must consider the totality of the circumstances in determining whether a plea has been voluntarily, knowingly, and unde rstandingly entered). -21- defendant’s motion to withdraw because the defendant established that his plea was not voluntarily, knowingly, and understandingly entered.

2002See Pewitt v. State 1 S.W.3d 674, 676 (Tenn. Crim.

1994First, we note that “[a] plea of guilty is more than a confession which admits that'the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Blankenship v. State, 858 S.W.2d 897, 903 (Tenn.1993) (quoting from Boykin v. Alabama, 395 U.S. 238, 242 , 89 S.Ct. 1709, 1711 , 23 L.Ed.2d 274 (1969)).