IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 2003 Session
STATE OF TENNESSEE v. JAMES A. MELLON
Appeal from the Court of Criminal Appeals, at Knoxville
Criminal Court for Knox County
No. 64113B Hon. Mary Beth Leibowitz, Judge
No. E1999-01505-SC-DDT-DD - Filed October 30, 2003
Although the defendant, James A. Mellon, raises numerous issues on appeal, the dispositive
issue is whether his guilty plea was unknowing and involuntary, and the subsequently imposed death
sentence in violation of due process, when he was not adequately informed of the consequences
should he breach the plea agreement. Prior to trial, the defendant pleaded guilty to felony murder
and especially aggravated robbery as part of a plea agreement with the prosecution. The agreement
provided that, in exchange for his pleas of guilty, the State would recommend a sentence of life in
prison with the possibility of parole on the felony murder conviction and a concurrent sentence of
fifteen to twenty-five years for the especially aggravated robbery conviction, with the trial court to
decide the actual length of the sentence. Pursuant to the agreement, sentencing would be reserved
until after testimony by the defendant in any related proceeding or at the conclusion of such
proceedings. The defendant reneged on the agreement and instead moved to withdraw his guilty
pleas. The trial court denied the defendant’s motion and empaneled a jury. A sentencing hearing
was conducted, resulting in a sentence of death. The Court of Criminal Appeals affirmed the
conviction and death sentence for the felony murder. On automatic appeal to this Court, we
conclude that the defendant was not adequately informed of the consequences if he should breach
the plea agreement. We are constrained to hold that the defendant’s pleas were not knowingly and
voluntarily entered, and thus the subsequent sentence denied him due process of law. Therefore,
we reverse the decision of the Court of Criminal Appeals and remand to the trial court for further
proceedings consistent with this opinion.
Automatic Appeal pursuant to Tennessee Code Annotated § 39-13-206(a)(1);
Judgment of the Court of Criminal Appeals is reversed and remanded.
WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
E. RILEY ANDERSON, ADOLPHO A. BIRCH, Jr., and JANICE M. HOLDER, JJ. joined.
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Gerald L. Gulley, Jr., Knoxville, Tennessee, and Tim S. Moore, Newport, Tennessee, for the
appellant, James A. Mellon.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Marvin S.
Blair, Jr., Assistant Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
In the early morning hours of August 24, 1997, Robert Scott Loveday was robbed and
murdered while stopped at a pay phone outside a service station in Farragut, Tennessee. Loveday
was found shot twice in the chest, and the robbers had taken his watch and a one-dollar bill.
Following the police investigation, the defendant and three others, Anthony Jones, David Jones, and
Ernest Rogers, were arrested and charged in connection with the robbery/murder. The police
investigation also revealed that approximately one hour before the fatal shooting of Loveday, the
defendant Mellon had used a handgun to rob Matthew James Miller in a Lowe’s parking lot.
On August 26, 1997, Anthony Jones told police that he was the one who shot Loveday after
seeing something “gleaming” in his hand. Anthony Jones pleaded guilty to felony murder in
exchange for a sentence of life imprisonment without the possibility of parole and to especially
aggravated robbery for a consecutive sentence of twenty-five years.
The defendant Mellon was indicted on four counts: (1) first degree premeditated murder of
Loveday; (2) felony murder during the perpetration of the aggravated robbery of Loveday; (3) felony
murder during the perpetration of the robbery of Loveday; and (4) especially aggravated robbery of
Loveday. Although the defendant had been reluctant to plead guilty, following counseling with a
defense investigator, he appeared before the Criminal Court of Knox County and entered pleas of
guilty to first degree felony murder during the perpetration of aggravated robbery, and to especially
aggravated robbery. In exchange for his guilty pleas, the State agreed to recommend a sentence of
life with the possibility of parole for the felony murder conviction and a concurrent sentence of
twenty-five years for the especially aggravated robbery conviction, provided that the defendant
testify truthfully against his co-defendants.
Specifically, the plea agreement provided: “Defendant agrees that he will, if called upon,
testify truthfully in any other proceeding in connection with this incident. Said testimony will be
consistent with the statements defendant made to Knox County Sheriff’s Department officers.
Sentencing in this case is reserved.”
Before accepting his pleas of guilty, the trial court reviewed the guilty pleas with the
defendant to confirm that he was entering them voluntarily and knowingly. The colloquy between
the Court and Mellon was, in pertinent part, as follows:
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THE COURT: . . . First, do you understand, sir, that you are entering a plea
of guilty in the second count of the indictment to felony murder . . . . [T]he State had
requested the death penalty in this case, the recommended sentence, however, is life
with the possibility of parole. It is not a promise of parole but you certainly would
become eligible for parole and would go up for parole. And that would be served
consecutively to the sentence you’ve received already in 64114.1
In the fourth count of the indictment you would be pleading guilty to
especially aggravated robbery, wherein you are a Range I Standard Offender, and the
range of punishment for that is fifteen to twenty-five years.
There is no agreement. It would be a sentence that I would impose, and make
a decision as to what the sentence would be. But it would be agreed that that would
be a sentence concurrent with the felony murder sentence.
Do you understand that so far, sir?
MR. MELLON: Yes, Your Honor.
THE COURT: And do you understand, sir, that until . . . we’ve got to the
point of testimony, or conclusion of the cases of the co-defendants . . . sentencing
will be reserved, and you will wait for sentence, and it is agreed further that you will
testify truthfully and consistently with the statements that you previously made?
Do you understand all that, sir?
MR. MELLON: Yes, Your Honor.
The Court accepted the guilty pleas of Mellon on the two counts.
When the time came for the trial of co-defendant Ernest Rogers, the defendant refused to
testify. In the meantime, the defendant filed two pro se motions to dismiss counsel. On January 19,
1999, those motions were denied. At the hearing on those motions, defense counsel filed a motion
asking that the defendant be allowed to withdraw his pleas of guilty because of the defendant’s fear
that he would be harmed if he testified against any of his co-defendants. At the hearing, the
defendant claimed that he had not understood that he was to testify against all his co-defendants but
thought that he was required to testify only against Anthony Jones. He acknowledged, however, that
he did not intend to testify against any of his co-defendants, including Anthony Jones. The defendant
claimed that he had been pressured by the defense investigator to accept the plea agreement, even
though he repeatedly had expressed a desire not to plead guilty. He also complained that he was not
allowed to talk with his mother before accepting the plea bargain.
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The defendant had already been sentenced in connection with the robbery of M r. Matthew Miller.
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The motion to withdraw the pleas was accompanied by an affidavit by Brandt Davis, lead
counsel for the defendant. Mr. Davis stated that prior to the entry of the pleas, the defendant
expressed to both of his lawyers his reluctance to testify against any co-defendants in any of the
pending cases because he was afraid of what might happen to him in prison if he were labeled a
“snitch” as the result of such testimony. This reluctance continued until the morning of October 8,
1998, although he was willing to otherwise accept the offer made by the State. Upon being told the
plea offer would be withdrawn by the State if not accepted that morning, the defendant met with the
defense investigator, and later with both defense counsel, and ultimately agreed to accept the plea
agreement. Counsel further stated that following the entry of his guilty pleas, Mellon advised him
that he felt threatened by Anthony Jones as a result of his agreement to testify.
When the motion to withdraw the pleas was argued before the trial court, the prosecutor
questioned Mellon regarding his understanding of the plea agreement.
Q. Mr. Mellon, you understood that you were pleading guilty to the offense, and
that the only thing that was being reserved was the right of sentence? Whether you
would be sentenced to life with parole, life without parole, or death?
And on the especially aggravated robbery that you would be sentenced to
fifteen to twenty-five years?
You understood that those two things were specifically
reserved, didn’t you?
A. No, I understood that the plea agreement was life with parole which was fifty-
one years, with the especially aggravated robbery ran concurrent and twelve years run
consecutive.
Q. And that that sentence recommendation was conditioned upon your
testifying?
A. Correct.
Q. That the sentencing recommendation had nothing to do with your entering the
plea of guilty?
A. I don’t understand that. Could you clarify it?
Q. That your sentencing recommendation had nothing to do with your entering
the plea of guilty to first degree murder or to especially aggravated robbery. It was
strictly based on whether or not you would testify?
A. Yes.
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The trial court denied the defendant’s motion to withdraw his pleas, finding that they had been
entered voluntarily and knowingly.
The case proceeded to a jury sentencing hearing with death, life without the possibility of
parole, and life with the possibility of parole all possible sentences. The jury found one aggravating
circumstance beyond a reasonable doubt - that “[t]he defendant was previously convicted of one (1)
or more felonies, other than the present charge, whose statutory elements involve the use of violence
to the person.” Tenn. Code Ann. § 39-13-204(i)(2) (Supp. 1996). The jury concluded that this
aggravating circumstance outweighed the mitigating evidence offered by the defendant and
sentenced the defendant to death.
The Court of Criminal Appeals affirmed the conviction and sentence of death for the felony
murder. The case was then automatically docketed in this Court pursuant to Tennessee Code
Annotated section 39-13-206(a)(1).
DISCUSSION
Although the defendant has raised numerous issues, the dispositive issue is whether due
process requires that he be permitted to withdraw his guilty pleas and stand trial on the original
counts of the indictment. Specifically, the question is whether the defendant’s guilty pleas were
knowing and voluntary when, although he was told and understood that he was entering pleas of
guilty to felony murder and especially aggravated robbery, and although he was fully cognizant that
he was required to testify truthfully if called upon at the trials of his co-defendants, he was not
notified of the consequences if he breached the agreement by failing to testify. We hold that the trial
court erred in denying the defendant’s motion to withdraw his pleas of guilty. Because the plea
agreement did not adequately inform the defendant of the consequences of a breach, the pleas were
not knowing and voluntary. To proceed to a capital sentencing hearing under these circumstances
deprived the defendant of the due process of law guaranteed to him under both the federal and state
constitutions. Accordingly, we reverse and remand to the trial court for trial on the issues of guilt
and punishment, if necessary.
One of the fundamental requirements for a plea of guilty to comport with constitutional
principles is that the accused enter the plea knowingly and voluntarily. Boykin v. Alabama, 395 U.S.
238, 242 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). If a plea is not knowing and
voluntary, then due process has been denied. See McCarthy v. United States, 394 U.S. 459, 466
(1969); State v. Davis, 823 S.W.2d 217, 220 (Tenn. Crim. App. 1991).
To understand what is meant by a “knowing and voluntary” plea, it helps to understand the
nature of a guilty plea. A plea of guilty is certainly a confession, but it is more than that; it is itself
a conviction. Boykin v. Alabama, 395 U.S. at 242. In the process of entering a guilty plea in a
criminal trial, the defendant necessarily waives several constitutional rights, including the privilege
against self-incrimination, the right to a trial by jury, and the right to confront his accusers. “For this
waiver to be valid under the due process clause of the Fourteenth Amendment, it must be ‘an
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intentional relinquishment or abandonment of a known right or privilege.’” State v. Mackey, 553
S.W.2d at 340 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In addition, “a guilty plea ‘is
not deemed voluntary where the person entering it does so without understanding of the
consequences of his plea.’” United States v. Stubbs, 279 F.3d 402, 411 (6th Cir. 2002) (quoting
Smith v. United States, 400 F.2d 860, 862 (6th Cir. 1968)). Certainly, a plea is not “voluntary” if
it results from ignorance, misunderstanding, coercion, inducements, or threats. Blankenship v. State,
858 S.W.2d 897, 904 (Tenn. 1993).
We cannot presume that the defendant voluntarily relinquished such fundamental rights.
State v. Blackmon, 984 S.W.2d 589, 591 (Tenn. 1998) (citing Boykin v. Alabama, 395 U.S. at 242
(1969)). Instead, “the record of acceptance of a defendant’s plea of guilty must affirmatively
demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been made
aware of the significant consequences of such a plea; otherwise, it will not amount to an ‘intentional
abandonment of a known right.’” State v. Mackey, 553 S.W.2d at 340; see also State v. Pettus, 986
S.W.2d 540, 542 (Tenn. 1999). “In order to find that the plea was entered ‘intelligently’ or
‘knowingly,’ Boykin requires that the trial court ‘canvass[] the matter with the accused to make sure
he has a full understanding of what the plea connotes and of its consequences.’” Blankenship v.
State, 858 S.W.2d at 904 (quoting Boykin v. Alabama, 395 U.S. at 244) (emphasis omitted).
A plea of guilty once entered cannot later be withdrawn as a matter of right. See State v.
Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995) (citing State v. Anderson, 645 S.W.2d 251,
253-54 (Tenn. Crim. App. 1982)). Whether the defendant should be permitted to withdraw his plea
is a question that is addressed to the sound discretion of the trial court. Henning v. State, 201
S.W.2d 669, 671 (Tenn. 1947); State v. Turner, 919 S.W.2d at 355. However, when a constitutional
violation is shown, the trial court’s discretion is “strictly curtailed.” State v. Davis, 823 S.W.2d at
220 (Tenn. Crim. App. 1991) (citing United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985)).
It has long been held that because they implicate the waiver of fundamental rights, plea
agreements must be evaluated with reference to the requirements of due process. See Brady v.
United States, 397 U.S. 742, 748 (1970). For example, a defendant may not, consonant with due
process guarantees, be held to his negotiated plea of guilty when the promises upon which it was
based remain unperformed by the prosecution. See Santobello v. New York, 404 U.S. 257, 262
(1971); Metheny v. State, 589 S.W.2d 943, 945 (Tenn. Crim. App. 1979).
Some courts, in addressing breach of plea agreements, have applied principles of contract law
to construe the agreement and determine the appropriate remedy. See, e.g., United States v. Ready,
82 F.3d 551, 556 (2d Cir. 1996); United States v. Giorgi, 840 F.2d 1022, 1025 (1st Cir. 1988);
United States v. Verrusio, 803 F.2d 885, 886 (7th Cir. 1986); United States v. Calabrese, 645 F.2d
1379, 1390 (10th Cir. 1981). The courts of this state have taken a similar approach. See State v.
Howington, 907 S.W.2d 403, 407-08 (Tenn. 1995). The general rule has been that where an
agreement is accepted and later breached, the remedy for the breach is either specific performance
or restoration of the parties to the status existing immediately before the plea was entered. See
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Harris v. State, 875 S.W.2d 662, 666 (Tenn. 1994); State v. Turner, 713 S.W.2d 327, 329 (Tenn
Crim. App. 1986); Metheny v. State, 589 S.W.2d at 945.
We note, however, that a defendant’s rights relative to a plea bargain are grounded in more
than contract; contract principles, while useful, do not completely define the obligations of the
parties. “‘Plea agreements . . . are unique contracts in which special due process concerns for
fairness and the adequacy of procedural safeguards obtain.’” United States v. Ready, 82 F.3d at 558
(quoting Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992)); see also United States v.
Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (the defendant’s underlying “contract” right is
constitutionally based and therefore reflects concerns that differ fundamentally from and run wider
than those of commercial contract law).
Since Santobello v. New York, 404 U.S. 257 (1971), Tennessee courts have held that where
the State breached a plea agreement, or some other infirmity occurred that was not caused by the
defendant, but which invalidated the agreement, the remedy for breach was to allow the defendant
to choose either specific performance or withdrawal of the plea. Goosby v. State, 917 S.W.2d 700,
707 (Tenn. Crim. App. 1995); see also Harris v. State, 875 S.W.2d at 666-67; State v. Turner, 713
S.W.2d at 329; Metheny v. State, 589 S.W.2d at 945. We have not previously had the opportunity
to address the situation where it was the defendant, not the State, who breached a plea agreement.
In other jurisdictions, however, it appears that the same options remain available: the State has the
option either to specifically enforce the agreement or to rescind the plea agreement. See State v.
Thomas, 899 P.2d 1312, 1315 (Wash. Ct. App. 1995), and the cases cited therein.
In this case, the State clearly did not want to rescind the agreement; it opposed the
defendant’s motion to withdraw the guilty plea. Instead, the State chose to specifically enforce the
agreement. Under such circumstances, the State’s rights are necessarily measured by the terms of
the agreement. If the parties contemplated that the defendant would be bound by his plea if he
breached the agreement, the guilty plea would stand. See, e.g., State v. Armstrong, 35 P.3d 397, 399
(Wash. Ct. App. 2001). Because the provisions of any plea agreement are largely dictated by the
State, and because of the substantial constitutional interests implicated by plea agreements, the State
must bear the risk for any lack of clarity in the agreement, and ambiguities should be resolved in
favor of the defendant. State v. Howington, 907 S.W.2d at 410; see also Innes v. Dalsheim, 864 F.2d
974, 979 (2d Cir. 1988), cert. denied 493 U.S. 809 (1989); United States v. Giorgi, 840 F.2d at 1026
(“[T]he government must shoulder a greater degree of responsibility for lack of clarity in a plea
agreement.”); United States v. Harvey, 791 F.2d at 300 (“[C]onstitutional . . . concerns require
holding the Government to a greater degree of responsibility than the defendant . . . for imprecisions
or ambiguities in plea agreements.”).
In this case, the plea agreement does not expressly state what would happen if the defendant
breached the agreement. Furthermore, there is no evidence in the record that the defendant was ever
informed that if he failed to keep his part of the agreement to testify against his co-defendants that
(a) the State would not keep its agreement to recommend a sentence of life with the possibility of
parole; and (b) he would not be permitted to withdraw his guilty plea. It has been held that where
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a defendant is not clearly informed of the consequences of a breach of the plea agreement, the denial
of a motion to withdraw the plea violates due process. See Innes v. Dalsheim, 864 F.2d at 979-980
(holding that where the plea agreement was ambiguous regarding the consequences of a breach, the
State bore the burden for any lack of clarity in the agreement, and it could not be safely said that the
defendant voluntarily, knowingly and intelligently waived his right to a jury trial and to be tried on
the original charges).2 It is the ambiguity in the plea agreement in question upon which we rest our
decision in this case.
As part of the plea agreement in which the defendant pleaded guilty in exchange for the
State’s recommendations as to sentencing, the defendant also agreed to “testify truthfully in any other
proceeding in connection with this incident.” There is no dispute in this case that Mellon breached
the agreement when he failed to testify against Ernest Rogers. His failure to do so constituted a
material breach of the agreement. The State argues that the colloquy between Mellon and the trial
court provided Mellon with sufficient notice as to the consequences of a breach of the agreement.
We disagree. While the trial court did explain that sentencing would be reserved until after the
defendant’s testimony or the conclusion of the trials of his co-defendants, the court did not explain
to the defendant that if he failed to testify, he would be subject to a full sentencing hearing with the
possibility of a sentence of death. Because both the plea agreement and the trial court’s discussion
of the plea with the defendant failed to inform him of the consequences of a breach, we hold that his
guilty pleas and waiver of rights were not voluntary and knowing as required by due process.
Because the issue of the knowing and voluntary nature of the pleas is dispositive, the other numerous
issues raised on appeal are pretermitted.
This is not to say that plea agreements cannot be fashioned to preclude specific enforcement.
In stressing the importance of drafting plea agreements with care, the Second Circuit Court of
Appeals has stated that “[t]he government should make it absolutely clear in a plea agreement that
a breach by the defendant releases the government from its obligation to recommend leniency but
does not release the defendant from the plea of guilty.” United States v. Rivera, 954 F.2d 122, 125
(2d Cir. 1992). We encourage the State in future agreements where the agreed sentence is
conditioned on future performance (or non-performance) of a certain event to specifically articulate
the possible consequences if the defendant fails to perform. In this way the State and the courts can
be assured that any agreement is entered into with full knowledge of the risks the defendant faces
if he or she chooses to renege on the agreement.
2
Compare Ricketts v. Adamson, 483 U.S. 1 (1987), and Lop ez v. State, 536 So. 2 d 22 6 (Fla. 198 8), in
which the plea agreement documents clea rly and specifically set forth the con sequences if the respective d efendants
refused to testify in accordance with their agreements. In Ricketts, the agreement provided that “should the
defendant refuse to testify . . . then this entire agreement is null and void and the original charge will be
automatically reinstated.” In Lopez, the agre ement provided that if the defendant failed to testify, he would lose his
life sentence and be subject to a possible sentence of death. In both cases, the courts refused to provide the
defenda nts relief from the bargains to which they had voluntarily and knowingly bound themselves.
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CONCLUSION
To summarize, we hold that because the defendant was not adequately informed as to the
consequences of a breach of his plea agreement, the trial court’s failure to allow the defendant to
withdraw his plea, and the subsequently imposed sentence of death, violated the defendant’s right
to due process. Accordingly, we reverse the decision of the Court of Criminal Appeals and remand
to the trial court for further proceedings consistent with this opinion.
Costs of this appeal are assessed against the State of Tennessee.
_____________________________
WILLIAM M. BARKER, JUSTICE
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