        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                 Assigned on Briefs at Knoxville November 17, 2015

                  JORDAN CURRY v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                     No. C-14-322 Roy B. Morgan Jr., Judge


              No. W2015-00709-CCA-R3-PC - Filed December 17, 2015


The Petitioner, Jordan Curry, appeals the Madison County Circuit Court’s denial of his
petition for post-conviction relief from his convictions for especially aggravated kidnapping,
aggravated robbery, aggravated burglary, employing a firearm during the commission of a
dangerous felony, and evading arrest and his effective forty-four-year sentence. The
Petitioner contends that the post-conviction court erred by denying relief on his ineffective
assistance of counsel claim. We affirm the judgment of the post-conviction court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROGER A. PAGE, JJ., joined.

Christie Hopper, Jackson, Tennessee, for the appellant, Jordan Curry.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Jerry
Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                         OPINION

       This case arises from an incident in which the Petitioner and two codefendants, Grico
Clark and Deangelo White, kidnapped and robbed two individuals. This court affirmed the
Petitioner’s convictions on appeal and summarized the facts of the case as follows:

             According to the evidence presented at trial, Shannell Henning and
       Leon Jackson, the victims, went to McDonald’s in the early morning hours of
       July 11, 2011. When they returned to Ms. Henning’s apartment at 1206
       Parkwood Trace in Jackson, Tennessee at around 2:00 a.m., they were
approached by three men, at least two of whom were armed with guns. One of
the men informed Ms. Henning and Mr. Jackson at gunpoint that they were
being robbed. Ms. Henning dropped her purse, keys, and food. She was so
scared for her life that she actually began gasping for air. The men ordered the
victims to walk toward their apartment or they would be killed.

       Ms. Henning walked toward the apartment, flanked by Curry and Clark.
White followed them. When they reached the door to the apartment, Curry
handed her the keys to open the door. The apartment was equipped with an
alarm. The alarm was activated but did not go off. Curry told Ms. Henning to
“deactivate the alarm.” She complied.

       As the men entered the apartment, they ordered Ms. Henning to sit on
the floor. Mr. Jackson was taken to the kitchen where the men took his money,
and Curry restrained him by duct-taping him to a kitchen chair. White and
Clark went to the bedrooms to look for more money.

        After returning empty handed, the men discussed their next plan. Curry
stated that he would kill Ms. Henning. At that point, Ms. Henning felt trapped
and was panicked. She felt the need to formulate some type of plan to get out
of the apartment to safety. The men had already taken her purse, which
contained an EBT card and about $500 in cash. She tried to convince the men
that she had more money and that it was located down the street in another
apartment. Curry did not believe Ms. Henning; Clark and White wanted to see
if there was more money.

        Clark and White told Ms. Henning to “[g]et up bitch. Let’s go get [the
money].” They took Ms. Henning out of the apartment at gunpoint, escorting
her to her car. Ms. Henning drove the car while Clark sat in the passenger seat
and White sat in the back seat. As they drove to another apartment complex
about five minutes away, Ms. Henning was continually held at gunpoint. At
some point during the drive, White got a telephone call from another male.
After the call, White told Clark that they were not supposed to leave the
apartment.

       When they arrived at the apartment, White and Clark gave Ms. Henning
five minutes to go inside and return with money or they would “shoot up” the
apartment. Ms. Henning pounded on the door and was allowed inside, where
she immediately called the police. She watched outside and saw police arrive
soon thereafter. Clark and White fled from her car on foot. Both Clark and
White were eventually apprehended by police after a foot chase. They located
                                          -2-
an automatic pistol and a ten dollar bill in the area where Clark and White
were running. White was found with about twenty-five grams of marijuana in
his pocket.

       While Ms. Henning drove Clark and White to the other apartment,
Curry stayed behind with Mr. Jackson. Curry continued to search for money
and when he found none, hit Mr. Jackson in the head.

       About thirty minutes after Clark and White left with Ms. Henning,
Curry got a phone call. After the call, Curry was frantic, looking for a way out
of the apartment. He actually asked Mr. Jackson to “help him out.” He
eventually tried to escape. Mr. Jackson could hear police ordering Curry to the
ground. After a short chase, Curry was apprehended. He was armed with an
assault rifle, complete with a clip containing extra rounds. Curry was wearing
latex gloves and had about $550 in cash and Ms. Henning’s EBT card in his
possession. Mr. Jackson was found duct-taped to a chair inside the apartment.
He had a large knot on his head.
       At trial, both Mr. Jackson and Ms. Henning were able to identify Clark,
White, and Curry.

....

       The jury convicted Clark and Curry with two counts of especially
aggravated kidnapping, two counts of aggravated robbery, one count of
aggravated burglary, one count of employing a firearm during the commission
of a dangerous felony, and one count of evading arrest.

....

        At a sentencing hearing, Clark and Curry were sentenced to twenty-two
years for each count of especially aggravated kidnapping, ten years for each
count of aggravated robbery, five years for aggravated burglary, six years for
possession of a firearm during the commission of a dangerous felony, and
eleven months and twenty-nine days. The trial court ordered the aggravated
burglary sentence to run consecutively to the possession of a firearm sentence,
but concurrently to the remaining sentences. The trial court ordered the two,
twenty-two-year sentences for especially aggravated kidnapping to run
consecutively to each other and concurrently to the remaining sentences, for a
total effective sentence of forty-four years.



                                          -3-
State v. Grico Clark, Jordan Curry and Deangelo White, No. W2012-02666-CCA-R3-CD,
2014 WL 505501, at *2-4 (Tenn. Crim. App. Feb. 7, 2014), perm. app. denied (Tenn. June
20, 2014).

        The Petitioner filed a petition for post-conviction relief, alleging multiple grounds of
the ineffective assistance of counsel. He argued counsel provided ineffective assistance by
failing to communicate a plea offer, failing to inform him adequately of his right to testify,
and failing to file a motion to sever his trial from that of his codefendants.

       At the post-conviction hearing, the Petitioner testified that before the trial, he was
represented by two attorneys. He said that his first attorney “refused to do anything that I
was asking in my defense,” that there were “issues . . . about reduced charges and filing
motions,” and that the Petitioner requested another attorney. The Petitioner stated that before
the hearing on his request, his first attorney told him she “was moving to a different division”
and that as a result, the Petitioner withdrew the request. The Petitioner stated that his first
attorney did not file any motions on his behalf.

       The Petitioner testified that after trial counsel was appointed, they discussed his case
and that counsel did not honor the Petitioner’s wishes regarding “things for my defense.”
The Petitioner remembered that the trial court granted counsel’s motion in limine but did not
remember whether counsel filed additional motions. The Petitioner said that one or two days
before the trial, he and counsel discussed a plea offer from the State, whereby the Petitioner
would serve a twenty-year sentence. The Petitioner rejected the offer.

        The Petitioner testified that after the trial, he found documentation of a previous plea
offer in the discovery file and said that trial counsel never communicated the offer to him. A
copy of a January 20, 2012 fax from Assistant District Attorney Jody Pickens addressed to
Petitioner’s first attorney was received as an exhibit. The document identifies the charges
against the Petitioner and contains a handwritten notation stating “T.E.S. 20 years @ 100%.”
 The document also reflects that Count 5, employing a firearm during commission of a
dangerous felony, is crossed out and “Dismissed” is written beside it. Another notation
reads, “D.A. Won’t go Down on Kidnapping charge.”

       The Petitioner testified at the post-conviction hearing that he did not testify at the trial
because trial counsel told him “it wouldn’t be a good idea for me to testify.” The Petitioner
stated that had he testified, he would have told the jury what occurred that night and
expressed his remorse. The Petitioner said that he discussed a motion to sever with his first
attorney but that he did not discuss it with trial counsel because codefendant White filed a
similar motion, and it was denied.



                                                   -4-
       On cross-examination, the Petitioner testified that he would have accepted the January
20 plea offer had he known about it. He explained that he rejected the offer communicated to
him because the plea cutoff date had passed and the trial date was near.

        The Petitioner testified that contrary to his police statement, another person did not
send him to rob the victims and that he was not affiliated with a gang. The Petitioner stated
that he added facts to his version of events during the police interview because at the time he
had other pending charges and because the police were “forcing me to do a lot of things.”

       The Petitioner testified that he and his codefendants went to the apartment armed with
two firearms because it was a “drug deal gone bad[.]” The Petitioner said that the male
victim sold the Petitioner “rabbit food” instead of marijuana and that after he realized it was
not marijuana, he returned to the apartment complex with his codefendants to obtain a refund
or authentic marijuana. The Petitioner stated codefendant Clark carried a pistol, the
Petitioner carried an SKS rifle, and codefendant White restrained the male victim in a chair
using tape. The Petitioner stated that he did not strike the male victim with the rifle. The
Petitioner said that he did not take any money from the victims or receive money from the
codefendants because the Petitioner was arrested immediately after this incident.

       The Petitioner testified that he did not have permission to enter the apartment and that
he forced the victims to enter the apartment with him. He said that the female victim told the
three of them she had money at another location and that his codefendants left with her to
retrieve the money. The Petitioner stated that the female victim suggested leaving the
apartment and that he stayed with the male victim. The Petitioner said that he did not
“ransack” the apartment in search of marijuana and that he did not see his codefendants
ransack the apartment.

        The Petitioner testified that the trial court judge informed him of his right to testify
and that based on trial counsel’s advice, the Petitioner signed a document waiving his right to
testify. He said that he chose not to testify but that it was not “intelligent.” He stated that he
“couldn’t have chose[n] the other way.” The Petitioner stated that his choice not to accept
the plea offer was “a free choice.”

        On redirect examination, the Petitioner testified that relative to the plea offer conveyed
by trial counsel, counsel advised he would receive a twenty-five year sentence at the trial and
that proceeding to trial “was a good idea.” The Petitioner said that his trial testimony would
have explained

       to the jury that I was sold some rabbit food, and all I did was to come back for
       either my money or for my marijuana. And I understand that I can’t take the

                                                   -5-
       law into my own hands, but at that time I was 18 . . . [and] that’s what I was
       going to do. I didn’t decide to say, hey, I’m fixing to go rob somebody.

       Trial counsel testified that he had handled more than 100 criminal cases as a private
attorney and as an assistant district public defender. He said that he was appointed to the
Petitioner’s case when the Petitioner’s first attorney was transferred to a different division.
Counsel stated that the first attorney filed a discovery motion, that the prosecutor’s office had
an open-file policy, and that counsel reviewed the discovery file. Counsel said that he
reviewed the discovery file and plea offers with the Petitioner. Counsel recalled that he
discussed a plea offer with the Petitioner on the morning of the trial and that the Petitioner
rejected the offer.

        Trial counsel testified that the trial judge conducted a hearing pursuant to Momon v.
State, 18 S.W.3d 152 (Tenn. 1999), and informed the Petitioner of his right to testify. He
said that he and the Petitioner signed a form waiving the Petitioner’s right to testify. Counsel
did not remember discussing with the Petitioner whether the Petitioner wanted to testify, but
counsel stated that based upon the Petitioner’s statement to the police and counsel’s common
practice, counsel would have advised the Petitioner not to testify because the testimony
would have corroborated the State’s evidence.

       On cross-examination, trial counsel testified that upon his appointment to this case, he
spoke with the Petitioner’s first attorney, met with the Petitioner, and discussed the case with
the prosecutor. He said that the case file contained a copy of a plea offer “and it was my
understanding that [it] had been discussed with” the Petitioner. Counsel remembered
discussing the January 20 offer with the Petitioner “a few days prior” to the trial but did not
know whether he represented the Petitioner before the plea cutoff date. He said that he
believed the first attorney wrote the notations on the copy of the plea offer in the case file.

       Trial counsel testified that he filed a motion in limine regarding an ongoing case
against the Petitioner and that the prosecutor agreed not to introduce statements referring to
those allegations. Counsel said that codefendant White filed motions prior to the trial
resolving “similar issues that [the Petitioner] would have had” and noted that he did not
believe the Petitioner “wanted to go forward with those other issues at that point in time.”
Counsel stated that he and the Petitioner did not discuss a motion to sever and that
codefendant White’s motion to sever had been denied prior to counsel’s involvement with the
case. Counsel said he felt another motion to sever would have been repetitive of the
codefendant’s motion and would have been denied, but he did not remember whether he
discussed it with the Petitioner.

      Trial counsel testified that generally he advised clients of their right to testify and
informed them of issues regarding cross-examination but that he told every client “ultimately,
                                                  -6-
it’s your decision.” He said the Petitioner did not wish to testify. Counsel stated that he
represented the Petitioner on appeal and did not raise issues relative to the trial court’s
denying codefendant White’s motion to sever because counsel had not filed that motion.

       On redirect examination, trial counsel testified that he did not file a pretrial motion to
dismiss the kidnapping charge of the female victim. He said that in his opinion and under the
law, the Petitioner was criminally responsible for his codefendants’ actions after they
removed the female victim from the apartment. Counsel stated that severing the trials would
not have eliminated any count of the indictment and that the evidence presented by the State
would have been identical in each trial. Counsel said that when he and the Petitioner
discussed the plea offer on the day of the trial, the Petitioner indicated to him “that if he was
going to get that much time, that they might as well put him [in prison] for the rest of his
life.”

       The Petitioner’s first attorney testified that she filed a motion for discovery and
obtained a copy of the prosecutor’s file. She said that she discussed a plea offer with the
Petitioner on February 27, 2012, and that the offer expired on April 9. She stated that she
and the prosecutor discussed the offer further, that the Petitioner requested a copy of the
discovery file, and that the January 20 plea offer would have been in the discovery file when
the Petitioner received it. She said that she discussed the January 20 offer with the Petitioner
and that he rejected it.

       On cross-examination, the Petitioner’s first attorney testified that she did not file any
additional motions. She did not remember when codefendant White filed a motion to sever
and said the case file would reflect if she had been present at the hearing on the motion.

        The post-conviction court denied relief. Regarding the January 20 plea offer, the
court credited the testimony of Petitioner’s first attorney and trial counsel and found that
offers, including the January 20 offer, were discussed “very thoroughly” with the Petitioner
“on more than one occasion, even as recently as two days prior to the trial” and that the
Petitioner rejected the offers. The court noted the Petitioner’s testimony that he had
discussed a plea offer with counsel two or three days before trial and rejected it.

       Regarding the Petitioner’s right to testify, the post-conviction court found that based
upon the Petitioner’s testimony at the hearing and the trial court record, the Petitioner was
thoroughly questioned under oath regarding whether he wanted to testify and the advantages
and the disadvantages of his decision. The court found that the Petitioner made a strategic
decision not to testify. The court also found that the Petitioner testified at the post-conviction
hearing relative to the substance of his proposed trial testimony and that nothing in the
offered testimony exonerated the Petitioner.

                                                   -7-
        Regarding the motion to sever, the post-conviction court found that the State agreed
not to introduce statements of the codefendants, removing the necessity for the motion, and
that apart from these statements “no specific factual or legal reason was presented” at the
post-conviction hearing for a motion to sever. The court noted that had the codefendants’s
cases been severed, the trial court would have been required to instruct the juries on
facilitation and criminal responsibility for the conduct of another. The post-conviction court
found that counsel was not deficient and that the Petitioner had failed to establish prejudice.

        On appeal, the Petitioner contends that the post-conviction court erred in denying
relief. The State responds that the court properly denied relief.

       Post-conviction relief is available “when the conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103 (2012). A petitioner has the burden
of proving his factual allegations by clear and convincing evidence. Id. § 40-30-110(f)
(2012). A post-conviction court’s findings of fact are binding on appeal, and this court must
defer to them “unless the evidence in the record preponderates against those findings.”
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40 S.W.3d 450, 456-
57 (Tenn. 2001). A post-conviction court’s application of law to its factual findings is
subject to a de novo standard of review without a presumption of correctness. Fields, 40
S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364,
368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to an
accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       To establish the performance prong, a petitioner must show that “the advice given, or
the services rendered . . . , are [not] within the range of competence demanded of attorneys in
criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S.
at 690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
                                                 -8-
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and cannot
criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This
deference, however, only applies “if the choices are informed . . . based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       To establish the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.

                                         A.   Plea offer

        The Petitioner contends that the post-conviction court erred in crediting the testimony
of his first attorney and trial counsel and in discrediting the Petitioner’s testimony. The State
responds that the court’s factual findings and credibility determinations do not preponderate
against the evidence and should not be disturbed. We agree with the State.

        The post-conviction court credited the testimony of the Petitioner’s first attorney and
trial counsel relative to the plea offers and found that all plea offers were communicated to
and discussed with the Petitioner. The Petitioner testified that an offer was communicated to
him one or two days before the trial, and the court discredited the Petitioner’s assertion that
he was not informed of the January 20 offer. The Petitioner’s first attorney testified that she
discussed the January 20 offer with the Petitioner and that he rejected it. Trial counsel
testified that he discussed the January 20 offer with the Petitioner but did not remember
whether he represented the Petitioner prior to the offer’s expiration. The evidence presented
at the post-conviction hearing does not preponderate against the court’s finding that the
Petitioner was informed of all plea offers and chose to reject them. We conclude that the
Petitioner failed to show deficient performance and prejudice. The Petitioner is not entitled
to relief on this basis.

                                    B.    Right to Testify

       The Defendant contends that his decision not to testify at the trial was unknowing,
involuntary, and unintelligent because trial counsel did not explain fully the right to testify.
The State responds that the Petitioner was examined by the trial court during a Momon
colloquy in which he was adequately advised of his rights. We agree with the State.

      The Petitioner’s testified at the post-conviction hearing that the trial judge questioned
him regarding his right to testify and that the Petitioner chose not to testify based on trial
counsel’s advice. Counsel’s credited testimony reflects that counsel was present for the
                                                  -9-
Momon colloquy and that although he could not remember a specific conversation, counsel
would have advised the Petitioner not to testify because the Petitioner’s testimony would
have corroborated the State’s evidence. Relative to prejudice, the post-conviction court
found that the Petitioner’s testimony was offered at the post-conviction hearing and would
not have exonerated him.

        The evidence does not preponderate against the post-conviction court’s findings that
the Petitioner was advised of his right to testify and knowingly and intelligently waived his
right to testify. The Petitioner failed to show deficient performance and prejudice. The
Petitioner is not entitled to relief on this basis.

                                   C.      Motion to Sever

        The Petitioner contends that because he did not participate in the female victim’s
removal from the apartment, trial counsel should have filed a motion to sever in order to
achieve a fair trial. The State responds that the decision not to file a motion to sever was
tactical and did not reflect deficient performance and that the Petitioner was not prejudiced
because the State’s evidence would have remained the same in a separate trial. We agree
with the State.

       The record reflects that codefendant White filed a motion to sever the trials based
upon statements made by the codefendants and that it was denied. Trial counsel’s credited
testimony reflects that he made a tactical decision based on adequate preparation not to file
an identical motion to sever on the Petitioner’s behalf because it would have been duplicative
of codefendant White’s motion. Relative to a motion to sever based upon the codefendants’s
kidnapping of the female victim, counsel testified that had the trials been conducted
separately, the trial court would have instructed the juries on criminal responsibility. Further,
counsel opined that under the law, the Petitioner was criminally responsible for the actions of
codefendants White and Clark, including those that took place out of the Petitioner’s
presence. Counsel made a tactical decision not to file the motion because there was no legal
basis to sever the trial. The Petitioner has failed to establish deficient performance in this
regard.

       Further, the post-conviction court found that the Petitioner presented no evidence
explaining why a motion to sever would have been successful if counsel had filed it. The
record reflects that the State would have presented identical evidence against the Petitioner in
a separate trial and that no count of the indictment would have been dismissed as a result of a
severance. The Defendant has not proven that any legal basis for a severance existed or that
a separate trial would have yielded a different result. The evidence does not preponderate
against the post-conviction court’s finding that there was no basis upon which a motion to


                                                  -10-
sever could have succeeded. The Petitioner likewise has failed to establish prejudice and is
not entitled to relief on this basis.

         In consideration of the foregoing and the record as a whole, we affirm the
judgment of the post-conviction court.


                                      ____________________________________
                                      ROBERT H. MONTGOMERY, JR., JUDGE




                                               -11-
