IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 8, 2008 Session
STATE OF TENNESSEE v. TAB VIRGIL
Direct Appeal from the Criminal Court for Shelby County
No. 04-05409 W. Otis Higgs, Jr., Judge
No. W2006-02346-CCA-R3-CD - Filed February 14, 2008
This matter is before the court upon the Defendant’s appeal from an order of the trial court denying
the Defendant’s motion to withdraw his guilty pleas. The Defendant now appeals, contending that:
(1) the trial court erred when it denied his motion to withdraw his guilty pleas because his guilty
pleas were not knowingly, voluntarily and understandingly entered; and (2) his intended sentences
could not be achieved by operation of law. Because we conclude that the defendant’s guilty pleas
were not knowingly, voluntarily and understandingly entered, we reverse the order of the trial court
and remand to the trial court for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
Remanded
J.C. MCLIN , J., delivered the opinion of the court, in which ALAN E. GLENN , J., joined. DAVID G.
HAYES, J., filed a concurring opinion.
Javier Michael Bailey, Memphis, Tennessee, for the appellant, Tab Virgil.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Facts
On April 26, 2006, the Defendant entered concurrent “best interest” or Alford1 pleas to
criminal attempt, to wit, murder in the second degree, a Class B felony, and convicted felon in
possession of a handgun, a Class E felony. The Defendant received an effective sentence of twelve-
1
Provided there is a factual basis for entry of the guilty plea, a defendant may enter a guilty plea and maintain
his innocence if the defendant determines that the guilty plea is in his best interest. See North Carolina v. Alford, 400
U.S. 25 (1970).
years to be served at the Tennessee Department of Correction and by agreement, the actual place of
confinement was with the Federal Bureau of Prisons, contingent upon acceptance. After being
notified that the Federal Bureau of Prisons had rejected his application to be housed in a federal
facility, the Defendant moved the court to allow him to withdraw his guilty pleas, stating that the
pleas were not knowingly, voluntarily, and understandingly entered. The motion was denied.
Excerpts From Plea Submission Hearing
At the plea submission hearing the prosecuting attorney, Assistant District Attorney John
Campbell, stated that according to the plea agreement, the Defendant would plead guilty in exchange
for a total effective sentence of twelve-years at the Tennessee Department of Correction and that the
State had no opposition to the actual place of confinement being the Federal Bureau of Prisons,
contingent upon their acceptance of the Defendant.
Mr. Campbell explained:
. . . . One part of our discussion has been the fact that Mr. Virgil has been convicted
in Federal Court for a gun charge. Mr. Bailey is going to seek to see whether he can
have his time served in Federal - - in Federal Court. And I told Mr. Bailey that I have
no control over that. I don’t oppose that if they can work out an agreement with the
Federal government. If they will take him, that’s fine with me. I have no opposition
to that. And actually have absolutely no control over it. So that was what I wanted
to make sure that was clear. The plea’s not contingent on that happening. It’s
basically that I’m not opposed to it. If they can work it out, that’s perfectly fine.
Attorney Javier Michael Bailey, representing the Defendant in federal and state courts,
responded:
And I will state on the record that - - just because Mr. Virgil has asked me to - - that
I did talk with the Federal Bureau of Prisons, and they said that so long as I had
written on the judgement [sic] sheet to be served in the Federal Bureau of Prisons,
then they would start the process of accepting Mr. Virgil into the Federal Bureau of
Prisons, as long as Mr. Campbell did not have any opposition.
Mr. Campbell: I don’t have any opposition. I believe that’s up to the Bureau of
Prisons whether they will agree to that or not.
The Court: All right.
The trial court proceeded to explain to the defendant his rights to a trial by jury and his
waiver of those rights. When asked if he understood the rights explained in the petition and the
waiver of those rights, the defendant responded as follows:
Defendant: I had one question.
....
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When you say concurrent, I just want to make sure that it’s concurrent with my Fed
time and not just my - - my State charges ran concurrent.
Mr. Bailey: The way this will happen, Your Honor, would be, and this agreement I
have with Mr. Campbell, is that Mr. Campbell, has agreed not to interfere with my
having Mr. Virgil moved over to the Federal institution. They have put on the
judgement [sic] sheets that he can serve his time in the Federal institution, contingent
upon their accepting him over there. Without an objection from Mr. Campbell, I’ve
got an agreement with them, basically, that they’re going to accept him.
Court: All right.
Mr. Bailey: If he’s accepted over there, he’s essentially serving everything, one time,
in the Federal institution. I told him I would say that on the record. I just forgot to
do that.
Mr. Campbell: I just want to make clear, because I talked to Mr. Bailey about it. I
have no control over, you know, saying it’s going to be concurrent or consecutive
with a Federal sentence. It’s up to the Federal Bureau of Prisons. So I can’t make
an agreement like that.
Mr. Bailey: I explained that to him.
Mr. Campbell: Which is why I didn’t put that on that on there.
Court: You’re not joining in on it, but neither are you opposing it.
Mr. Campbell: That’s correct.
Court: Do you understand that?
Defendant: Yes, sir.
Mr. Bailey: I’ve explained that to him. And I’m sorry Judge. I know it’s a little
complicated.
After further advising the Defendant regarding the waiver, the court proceeded to ask:
Court: Is there anything you want to say about this, sir?
Defendant: No, Your Honor.
Court: All right. Now, if I understand it, and let me be certain I understand what
we’re doing here, in 04-05409, count one, the State is recommending twelve years
in the custody of the Tennessee Department of Corrections. Is that your
understanding?
Defendant: My understanding is in the Fed.
Court: Well, the actual place - - the actual place of confinement is the Federal
Bureau of Prisons, but I can’t sentence you there. I sentence you to the Tennessee
Department of Corrections. And by agreement, your time will be served in the
Federal Prison. Do you understand?
Defendant: Okay.
Court: So it’s a twelve year sentence at thirty percent, a standard offence [sic].
Standard range. Is that your understanding?
Defendant: Yes.
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The parties continued as follows:
Court: All right. Is there anything further?
Mr. Bailey: I don’t have anything else. I will just state for the record, it’s my intent
to - - Mr. Tony Argon2 is the - - I would ask the Court to - - well, I don’t know how
we could do that - - he - - it’s my intent to get with Mr. Tony Argon and prepare a
writ to have him moved to Mason. But I can’t - - the Court can’t control that.
Court: Well, that’s fine with me. Whatever you do.
Mr. Bailey: Nothing else.
Court: Whatever you do, that’s fine with me. I don’t have anything to do with that.
Mr. Bailey: Sure.
Court: Do you understand what your lawyer said? He’s going to - - the paperwork
necessary to get you into Federal custody, all of that’s got to be done. All that’s by
agreement that he has worked out. Now, really the - - Mr. Bailey, for lack of a better
of putting it - - it’s going once, twice, three times, anything?
Mr. Bailey: Nothing, Judge.
At the conclusion of the plea discussion, the court proceeded to announce the sentences as
follows:
Court: All right. I’m going to go on the sentence in hand. All right, Mr. Virgil, in
04-05409 count one, charging criminal attempt murder in the first degree, upon your
plea of guilty to criminal attempt murder in the first degree, it’s the - -
Mr. Bailey: Murder second.
Court: I’m sorry. Murder second degree. The original charge was criminal attempt
murder first degree is being reduced to criminal attempt murder second degree. Upon
your plea of guilty to the offence [sic], murder second, it’s the judgement [sic] of this
court that you be confined for twelve years to the custody of the Tennessee
Department of Corrections, for which let mitimus [sic] and execution issue. And by
agreement, the sentence will be served in the Federal Bureau of Prisons. In 04-
05409, count two charging a convicted felon in possession of a handgun, upon your
plea of guilty as charged, it’s the judgement [sic] of this court that you be confined
for two years in the custody of the Tennessee Department of Corrections, for which
let mitimus [sic] and execution issue. And this sentence will be served concurrent
with count one.
ANALYSIS
The Defendant contends that: (1) the trial court erred in denying his motion to withdraw his
guilty pleas; and (2) his intended sentence could not be achieved by operation of law.
2
W e glean from the record that Tony Argon was an official in charge of transportation of prisoners.
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I. Standard of Review
Upon entrance of a guilty plea, it “cannot later be withdrawn as a matter of right.” State v.
Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (citing State v. Turner, 919 S.W.2d 346, 355 (Tenn.
Crim. App. 1995)); State v. Crowe, 168 S.W.3d 731, 740 (Tenn. 2005). Whether a defendant should
be allowed to withdraw his guilty plea is within the sound discretion of the trial court. Mellon, 118
S.W.3d at 345-46 (citing Henning v. State, 201 S.W.2d 669, 671 (1947)). On appeal, “[t]he trial
court’s decision ‘will not be reversed unless it clearly appears that there was an abuse of discretion.’”
Crowe, 168 S.W.3d at 740 (quoting Henning, 201 S.W.2d at 671). “An abuse of discretion exists
if the record lacks substantial evidence to support the trial court’s conclusion.” Id. (citing Goosby
v. State, 917 S.W.2d 700, 705 (Tenn. Crim. App. 1995)).
Guilty Plea
The Defendant contends that his guilty pleas were not knowingly, voluntarily and
understandingly entered. Specifically, the Defendant maintains that he entered the pleas believing
his state and federal sentences would be served concurrently while in federal custody. The State
argues that the Defendant is not entitled to relief because the record of the guilty plea submission
hearing establishes that the Defendant entered his guilty pleas knowingly, voluntarily and
understandingly. Further, it was made abundantly clear at the plea submission hearing that the pleas
were not contingent upon Defendant serving his state and federal sentences concurrently and at a
federal facility.
The withdrawal of a plea of guilty is governed by Rule 32(f) of the Rules of Criminal
Procedure. This rule provides:
A guilty plea may be withdrawn before sentence is imposed for any fair and just
reason; but to correct manifest injustice, the court after sentence, but before the
judgment becomes final, may set aside the judgment of conviction and permit the
defendant to withdraw his plea.
The Defendant moved to withdraw his guilty plea in this case after sentencing, but before the
judgment became final.3 In order to prevail on his motion, he must show that his guilty plea should
be set aside to correct a “manifest injustice.” Moreover, the Defendant has the burden of establishing
that he should be allowed to withdraw his guilty plea to prevent a manifest injustice. State v. Turner,
919 S.W.2d 346, 335 (Tenn. Crim. App. 1995).
Rule 32(f) does not define “manifest injustice,” however, courts have identified
circumstances that meet the manifest injustice standard necessary for withdrawal of a plea. See
Turner, 919 S.W.2d at 355; State v. Evans, 454 S.E.2d 468, 473 (Ga.1995). Withdrawal to correct
3
Defendant entered guilty pleas, and was sentenced on April 26, 2006. The motion to withdraw guilty pleas
was filed on May 16, 2006.
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manifest injustice is warranted where: (1) the plea was entered through a misunderstanding as to its
effect, or through fear and fraud, or where it was not made voluntarily; (2) the prosecution failed to
disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963), and this failure
to disclose influenced the entry of the plea; (3) the plea was not knowingly, voluntarily, and
understandingly entered; and (4) the defendant was denied the effective assistance of counsel in
connection with the entry of the plea.
In the case under submission, the trial court by order dated October 4, 2006, denied
Defendant’s request to withdraw his guilty pleas. No further explanation was given in the order.
The plea must, of course, be knowingly, voluntarily and understandingly entered, and if it
was induced by promises, the essence of those promises must in someway be made known.
Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). “This phase of the
process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must
be attended by safeguards to insure the defendant what is reasonably due in the circumstances.
Those circumstances will vary, but a constant factor is that when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the
inducement or consideration, such promise must be fulfilled.” Id.
We conclude that the record in this case established that his pleas were not knowingly,
voluntarily, and understandingly entered and that the pleas were entered through a misunderstanding
as to their effects. Therefore, we conclude that the trial court erred by denying his motion to
withdraw the guilty pleas. The transcript of the plea submission hearing reflects that even though
the trial court and parties participating in the plea submission hearing made a valiant effort to explain
to the defendant the ramifications of his pleas as they related to his place of confinement and
concurrent sentences, there was a misunderstanding as to their effects. Admittedly, the Defendant
signed plea waiver4 agreements in which he stated that his pleas had been knowingly, voluntarily and
understandingly entered and that his concurrent state and federal sentences were contingent upon
acceptance by the Federal Bureau of Prisons. Nevertheless, testimony at the plea submission hearing
clearly reflects that the Defendant entered his pleas with the intent of serving his sentences
concurrently at a federal facility.
When asked by the trial court during the plea colloquy if he understood the rights explained
to him, the Defendant responded as follows:
Defendant: I had one question. When you say concurrent, I just want to make sure
that it’s concurrent with my Fed time and not just my - - my State charges ran
concurrent.
Defense counsel then proceeded to explain to the Defendant the procedure as follows:
4
A plea waiver being a document containing the legal rights of a Defendant.
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Mr. Bailey: The way this will happen, Your Honor, would be, and this agreement I
have with Mr. Campbell, is that Mr. Campbell, has agreed not to interfere with my
having Mr. Virgil moved over to the Federal institution. They have put on the
judgement [sic] sheets that he can serve his time in the Federal institution, contingent
upon their accepting him over there. Without an objection from Mr. Campbell, I’ve
got an agreement with them, basically, that they’re going to accept him.
Court: All right.
Mr. Bailey: If he’s accepted over there, he’s essentially serving everything, one time,
in the Federal institution. I told him I would say that on the record. I just forgot to
do that.
The prosecuting attorney proceeded to explain that the plea was not contingent upon the
Defendant receiving concurrent time with his federal sentence or his confinement in a federal
facility. After the prosecutor’s comments the court again asked the Defendant what was his
understanding:
Defendant: My understanding is in the Fed.
Court: Well, the actual place - - the actual place of confinement is the Federal Bureau
of Prisons, but I can’t sentence you there. I sentence you to the Tennessee
Department of Corrections. And by agreement, your time will be served in the
Federal Prison. Do you understand?
Defendant: Okay.
Afterwards, when asked by the court if there was anything further, counsel for the Defendant
stated:
Mr. Bailey: I don’t have anything else. I will just state for the record, it’s my intent
to - - Mr. Tony Argon is the - - I would ask the Court to - - well, I don’t know how
we could do that - - he - - it’s my intent to get with Mr. Tony Argon and prepare a
writ to have him moved to Mason. But I can’t - - the Court can’t control that.
Court: Well, that’s fine with me. Whatever you do.
Mr. Bailey: Nothing else.
Court: Whatever you do, that’s fine with me. I don’t have anything to do with that.
Mr. Bailey: Sure.
Court: Do you understand what your lawyer said? He’s going to - - the paperwork
necessary to get you into Federal custody, all of that’s got to be done. All that’s by
agreement that he has worked out. Now, really the - - Mr. Bailey, for lack of a better
way of putting it - - it’s going once, twice, three times, anything?
Mr. Bailey: Nothing, Judge.
The trial court then proceeded to sentence the Defendant, and in announcing the pleas, stated
as to count one: “[a]nd by agreement, the sentence will be served in the Federal Bureau of Prisons.”
As to count two: “[a]nd this sentence will be served concurrent with count one.”
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Because we conclude that the Defendant did not knowingly, voluntarily and understandingly
enter his guilty pleas, we need not address Defendant’s second issue, whether his intended sentences
could not be achieved by operation of law.
CONCLUSION
The order of the trial court is reversed and this case remanded to the trial court for further
proceedings.
___________________________________
J.C. McLIN, JUDGE
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