        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 4, 2015

                STATE OF TENNESSEE v. SEDDRICK CURRY

                  Appeal from the Criminal Court for Shelby County
               Nos. 13-03314, 13-04583  James C. Beasley, Jr., Judge


             No. W2014-02104-CCA-R3-CD - Filed November 6, 2015



The defendant, Seddrick Curry, pled guilty to two counts of aggravated burglary, a Class
C felony; one count of theft of property valued at $10,000 or more but less than $60,000,
a Class C felony; and one count of theft of property valued at $1000 or more but less than
$10,000, a Class D felony. He was sentenced as a career offender to serve an effective
sentence of thirty years at 60%. Subsequently, he filed a motion to withdraw his pleas of
guilty, which was denied following a hearing. He appealed, arguing that the trial court
erred in denying his motion to withdraw the pleas. Following our review, we affirm the
order of the trial court denying the motion.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROGER A. PAGE and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Eugene L. Belenitsky, Memphis, Tennessee, for the appellant, Seddrick Curry.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

       The defendant’s indictments for aggravated burglary and theft arose from
burglaries which he committed on December 5, 2012, and March 23, 2013.
       As to the first set of offenses, resulting in pleas of guilty to aggravated burglary
and theft over $10,000 in Case Number 13-03314, the State provided the following facts,
to which the defendant stipulated:

       [O]n December the 5th, 2012 Officers Lofton and Collins responded to a
       burglary call at 1009 Marcia after receiving a call [regarding] a prowler.
       There w[ere] two individuals in a white vehicle who were taking items
       from a house and putting them in the vehicle. Officers arrived on the scene
       and discovered a burglary, but the suspects were gone.

              While officers were still on the scene, that white vehicle went
       towards them and then it turned off. Officers got behind it and the vehicle
       stopped. The vehicle was a white Pontiac Grand Prix. It showed registered
       to one of the codefendants[,] Reuben Johnson. The defendant . . . was the
       passenger.

              Officers got a Consent to Search form signed by Mr. Johnson and
       located an Xbox inside the trunk. . . . [T]he Xbox contained Michael
       Butcher’s profile information and that turned out to be the house where
       they had been seen.

             Suspect Johnson made the utterance that he didn’t go into the house.
       Defendant Curry denied any involvement. Victim stated that they had over
       $4,600 worth of items and only the Xbox was recovered.

       As to the second set of offenses, resulting in pleas of guilty to aggravated burglary
and theft over $1000 in Case Number 13-04583, the State recited the following facts, to
which the defendant stipulated:

              The facts on that would have been that on March the 23rd, 2013[,]
       officers responded to a prowler call and then it was upgraded to a burglary
       in progress at 3709 Kenwood. The victim Johnnie Cias (phonetic) advised
       that she was sitting in the residence when she saw a green van occupied by
       two male blacks in the . . . driveway of this particular house at 3709
       Kenwood.

              The suspects exited the vehicle, opened the rear of the van, and then
       observed [sic] the suspects go to the rear of 3709 Kenwood. . . .
       [W]itnesses observed suspect[s] take the TV from the home and place it in
       a van.

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              Officers (indiscernible) the prowler call and the description of the
       van. They saw the green van on . . . Highland and Shirlwood and Officer
       Moore reached his vehicle and the two individuals matching the description
       bailed and ran out of the van. Officers located them later and identified
       them as [the defendant] under a [b]lue Avalanche. Officers returned
       suspects to Officer Moore, who was able to positively identify them as the
       two individuals that ran from that vehicle.

        At the submission hearing, responding to questions from the trial court, the
defendant said that he understood with what he was charged, as well as to what he was
pleading. He said he had no questions for the court in this regard. He said he knew he
had a right to plead not guilty and go to trial, where he could testify if he wished but
could not be made to do so. He understood that his lawyer could subpoena witnesses for
a trial and would question witnesses who testified and that, if he chose not to testify, the
jury would be instructed not to hold it against him. He was advised by the court of the
specific punishments for each of the offenses and that he had a right to appeal a
conviction, with counsel appointed. In a final series of questions from the trial court, the
defendant said that he wished to waive his rights and plead guilty, that he was not being
forced to do so, that no promises had been made to him in this regard, that he understood
the convictions would go on his record and could affect future arrests, that he was
satisfied with appointed counsel, and that he had no questions for the court. The court
then found, based upon the defendant’s responses, that he understood his rights and the
process, that his pleas were free and voluntary, with no threats or coercion, and what the
defendant wished to do. Further, the court found that the defendant had been represented
by counsel under the guidelines required by law. Accordingly, the trial court accepted
the defendant’s pleas of guilty and sentenced him as previously set out. The court then
was advised by the State that the defendant had entered an open plea, meaning that the
lengths of the sentences, and their manner of service, would be determined by the court.

        At the sentencing hearing, following the defendant’s open plea to the charges, the
trial court went to great lengths explaining the sentences and why the defendant’s request
for alternative sentencing was denied:

              The Court does find that [the defendant] has an extensive record of
       previous history and criminal convictions in addition to that necessary to
       establish his range by law.

             The Court finds that his prior convictions amount to a career
       offender status, and so the Court will impose the sentences imposed.



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       The Court now is asked to consider the Jericho Project which for
purposes of the record is a mental health program that has been put together
by the Public Defender’s Office and working with other agencies to justify
mental health treatment and counseling and a transition period that lasts I
believe 120 days and then the follow-up would be with the agencies and
supervision.

       In this case, it would have to be under the community corrections
act, which was set up to provide relief to individuals who do not otherwise
qualify for probation because of their record.

       I have been a very strong advocate of the Jericho Project and I have
continued to work with the Public Defender’s Office and the staff and the
use of the Jericho Project. I think it serves a tremendous purpose within
our community.

       I think that mental health coupled with drug addiction are the two
driving forces that . . . cause the bulk, and by that I mean a large percentage
of the crimes that we face in Shelby County. People are either addicted to
drugs and/or addicted to drugs and with mental health problems.

       I am discouraged by the fact that every time we have cuts in funding
that we cut back programs to help the mentally ill.

      I believe that we should have more facilities available to assist
people in rehabilitation to get them off of drugs and I believe that if we
could control by medication or otherwise the mental illness and could get
people off of drugs, we could greatly curtail crime in our community.

        Unfortunately, we don’t seem to be able to accomplish that and we
are left with the alternative which is incarceration.

       I’m very much aware of those. I have reviewed and looked at the
sentencing considerations, the purposes for sentencing.

       There is a strong outcry in our community for some type of deterrent
factor and some type of issue to restrain defendants who continue to repeat
and repeat and repeat offenses and violating the sanctity of the home by
committing aggravated burglaries is a very serious offense.



                                      4
      And I’m very much disturbed by that and recognize it and so does
the community, and recognize that it is a large problem, and I also
recognize that a lot of it is often times driven by addiction to drugs.

       However, there is still the problem that we have in dealing with
attempting in some form or fashion to stop this plague of crime that we
have in our community.

       I am concerned with [the defendant’s] very lengthy record and I am
very much concerned that over the last five years now, we have a continual
pattern of committing these offenses.

       And in this particular series of cases, while on release he picks up
several new offenses, while on bond, picks up several offenses, that’s the
reason why the Court’s going to have to order that these two indictments,
13-04583 and 13-03314 have to be served consecutive[ly], by law, he was
on bond at the time for one at the time that he committed the other.

       I will order that counts one and two be served concurrently in each
of those separate indictments and that the two series of indictments have to
be served consecutively.

       As to whether or not I think he needs mental health treatment, it
would appear from the records that he does. As to whether or not I think
that he is a proper candidate for community corrections and the Jericho
Program, I’m sure that the Jericho Program could offer [the defendant]
some things that would be of benefit to him, but listening to the testimony
and reviewing the presentence report, reviewing the lengthy history, and the
nature of the crimes that [the defendant] has been involved with and the
pattern of repeating those while released under different types of
supervision, this Court has a concern that [the defendant] will not comply
with the conditions that are set for him, will not comply with the rules and
regulations that are set out in probation, and find that – or with community
corrections – I have a great deal of concern for that.

        I do find that his record is extensive. I find that his previous actions
and character weigh against him, the type of extraordinary relief, I do not
find that he can reasonably be expected to be rehabilitated based upon his
history over the last twenty years. And that during the period of time being
asked for me to consider him being under supervision for the next thirty
years, . . . I do find that the risk that he would violate this is great.
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              I do not find that I believe he would appear and abide by the terms of
       his probation for that period of time.

              I do not feel that society will be protected while [the defendant] is
       out.

              I think efforts have been made, maybe not the proper effort and
       maybe not sufficient efforts, but I think there has been some opportunities
       there.

              I do think that placing him on community corrections would very
       much depreciate the seriousness of this offense, series of offenses, and
       would not deter others like [the defendant] who are involved in home
       burglaries from continuing to commit the offenses.

              I wish that I had other alternatives to consider but I do not.

              But having taken all of those factors into account and considering
       the law as I understand it to be, I do not find that [the defendant] is a proper
       candidate for community corrections under the circumstances and I am
       respectfully going to deny the request.

        Subsequently, the defendant filed a motion to withdraw his pleas of guilty,
asserting that his pleas were unknowing because he had done so believing that he would
be placed in the Jericho Project of the Shelby County Public Defender’s Office. At the
subsequent evidentiary hearing, William Robilio testified that he was the Supervising
Attorney for the Jericho Project and did not recall whether a defendant sentenced to a
thirty-year sentence ever had been accepted into their program. He said that when the
program receives a referral, it is subject to approval by the court and no advice is given as
to the chances of placement in the program. As to the defendant in the present appeal,
Mr. Robilio said that he had been accepted into the program, but the trial court had not
yet approved his entry.

       Trial counsel who represented the defendant on both cases testified that he had
gone through each page of the presentence report with the defendant. The defendant told
counsel that he wanted to investigate admission into the Jericho Project, with which he
already was familiar. Initially, the defendant wanted to plead guilty to one of the
indictments, but not the other, because he had an affidavit from his co-defendant, Alonzo
Lee, which he believed exonerated him for that crime. However, Mr. Lee’s attorney said
the affidavit was signed under duress and, if called to the stand, his client would decline
                                              6
to testify. Counsel discussed many times the Jericho Project with the defendant and told
him it would be a “very close decision” as to whether he was admitted. Counsel told him
the two avenues for him to get into the program were to be placed into community
corrections or through a guilty verdict following a plea or as the result of a trial. Counsel
told him that, following all that would come out during a trial, there was “no way” to gain
entry if he followed that route. From the beginning, the defendant had said he did not
want to go to trial.

      During cross-examination, counsel said that the State did not agree to place the
defendant into the Jericho Project. Counsel said that he “never promised” this to the
defendant, and “[h]e was aware it was not guaranteed.”

       The defendant testified that trial counsel did not discuss with him whether he was
a Range III or career offender. They did not go over his prior convictions and arrests. He
said he had not known of the Jericho Project, and counsel told him about it. His counsel
said that he could not get into the project unless he pled guilty. Counsel told him that the
sentencing hearing was to determine whether he would be placed into the community
corrections program and that, if he was not, then he could “start over, go to trial, do all of
this other process stuff over.” The defendant said he had completed the tenth grade and
later received his GED.          He suffered from depression and was “somewhat”
schizophrenic.

      Following the evidentiary hearing, the trial court entered written findings of fact
and conclusions of law in which the court set out the background of the matter and
concluded that the defendant’s motion to withdraw his guilty pleas was denied:

              It appears to the Court that the [defendant] entered into a guilty plea.
       The plea was open to the Court with no negotiated amount of time. The
       Court advised the [defendant] of all of his rights at the time of the plea and
       the Court felt that the [defendant] fully understood his rights and waived
       said rights. Subsequently, the Court conducted a sentencing hearing at
       which time the Court determined that the [defendant] was a Career offender
       and that the offenses were committed while he was on bond for one of
       them. Therefore, the Court imposed a sentence of fifteen years in each case
       consecutive with each other. The [defendant] was seeking a Community
       Corrections sentence and admission into a program for mentally ill
       defendants, the Jeric[h]o Project. The Court denied the request and
       sentenced the defendant. Thereafter the [defendant] timely filed a Petition
       to Withdraw his Guilty Plea. At the conclusion of the hearing the Court
       found that the plea was freely and voluntarily entered with the advice of
       counsel, that the [defendant] knew what he was doing and that there was no
                                              7
       basis for allowing the plea to be withdrawn. The Court entered an Oral
       Finding of Fact and Conclusion of Law and hereby incorporates that ruling
       into this Order.

              It is therefore the finding of this Court that the Petition to Withdraw
       the [Defendant’s] Guilty Plea is not well taken and should be DENIED for
       the reasons set out in the Court’s Oral Finding of Fact and Conclusion of
       Law hereby incorporated into this Order.

                                       ANALYSIS

       On appeal, the defendant argues that the trial court abused its discretion in denying
the motion because, according to his view, the court considered only one factor in
determining whether a manifest injustice had occurred, while failing to consider the
defendant’s arguments that a fraud or mistake had occurred; the defendant did not
knowingly or understandingly enter his pleas of guilty; and he was denied the effective
assistance of counsel. The State disagrees with these arguments, as do we.

        Tennessee Rule of Criminal Procedure 32(f)(1) provides that a trial court may
grant a motion to withdraw a guilty plea “for any fair and just reason” before sentence is
imposed, or to correct manifest injustice after the sentence is imposed but before the
judgment becomes final. Granting a motion to withdraw a guilty plea to correct manifest
injustice may be warranted where (1) the plea was entered as a result of fear, fraud, or
misunderstanding; (2) the State failed to disclose exculpatory evidence as required by
Brady v. Maryland, 373 U.S. 83 (1963); (3) the plea was not knowingly, understandingly,
and voluntarily entered; or (4) the defendant was denied the effective assistance of
counsel in connection with entering the plea. State v. Crowe, 168 S.W.3d 731, 742
(Tenn. 2005). It is the defendant’s burden of establishing that the plea of guilty should be
withdrawn to prevent “manifest injustice.” State v. Turner, 919 S.W.2d 346, 355 (Tenn.
Crim. App. 1995). The decision whether to grant a motion to withdraw a plea of guilty
rests with the sound discretion of the trial court and will not be reversed absent an abuse
of discretion. State v. Drake, 720 S.W.2d 798, 799 (Tenn. Crim. App. 1986).

       To establish that he was denied the effective assistance of counsel, the petitioner
has the burden to show both that trial counsel’s performance was deficient and that
counsel’s deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

                                             8
       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must show a
reasonable probability that were it not for the deficiencies in counsel’s representation, he
would not have pled guilty but would instead have insisted on proceeding to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

        Before a guilty plea may be accepted, there must be an affirmative showing in the
trial court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S.
238, 242 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a
showing that the defendant was made aware of the significant consequences of the plea.
State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340).
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). The
trial court must determine if the guilty plea is “knowing” by questioning the defendant to
make sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d
at 542; Blankenship, 858 S.W.2d at 904.

       Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of
circumstantial factors in making this determination. Blankenship, 858 S.W.2d at 904.
These factors include: (1) the defendant’s relative intelligence; (2) his familiarity with
criminal proceedings; (3) whether he was represented by competent counsel and had the
opportunity to confer with counsel about alternatives; (4) the advice of counsel and the
court about the charges against him and the penalty to be imposed; and (5) the

                                             9
defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in
a jury trial. Id. at 904-05.

        In the written order denying the motion to withdraw, the court also incorporated
oral findings of fact and conclusions made by the court following the hearing. In those
findings, the court explained the considerations in denying the defendant’s earlier request
to be placed into the Jericho Project:

       Upon reviewing the presentence report, the facts of the case, the
       defendant’s extensive criminal history, the Court was of the opinion that
       alternative to incarceration was not proper in this case. Notwithstanding
       the mental illness issues that [the defendant] was suffering under, [the]
       Court did not feel that the Jericho Project was the proper sentence in this
       case and the Court denied the alternative to relief, denied Community
       Corrections, and denied his involvement in the Jericho Project.

        The trial court accredited trial counsel’s testimony at the evidentiary hearing over
that of the defendant:

               Subsequent to that [the defendant] made a motion to withdraw his
       guilty plea. We had a hearing last week in which at that time again the
       Court heard from Mr. Robilio regarding the Jericho Project, heard from
       [trial counsel] regarding his efforts to get [the defendant] into the Jericho
       Project.

              It’s obvious that [trial counsel] testified that he felt strongly that
       there was a good chance he could get [the defendant] into the Jericho
       Project but he advised [the defendant] throughout that it was a chance, that
       he’d have to petition the Court and that it was up to the Court.

               [The defendant] expressed that he understood that and was willing to
       go forward with the plea in an effort to attempt to get that into that
       program. It was very clear from all of the testimony that that was
       everybody’s desire, that everybody indicated that it was always understood
       that it was going to be up to the Court to make that determination. The
       Court quite frankly did not feel that [the defendant] should be placed in that
       program.

       The trial court did not find to be credible the defendant’s testimony that he
believed if he were not placed into the Jericho Program, he could then go to trial on his
cases:
                                            10
       Within a timely fashion the defendant filed a motion to set aside his
guilty plea. The only reason that I have heard from [the defendant] is that
he understood that if I denied him Community Corrections and denied him
access to the Jericho Project, he would start all over again and his case
could be scheduled for trial and we would just go forward in the normal
course of business.

       This Court is satisfied that that’s not true, that [the defendant] who is
a career offender has been in this system for many, many years, is very
familiar through pleas and otherwise how this system works. The Court
was satisfied when the Court entered his guilty plea that he advised [the
defendant] that he was giving up his right to go to trial, that he was waiving
all of his trial rights and that [the defendant] fully understood that at the
time he entered the plea. That’s the only valid reason that I have heard as
to why I should set aside this guilty plea.

       His extensive record, the fact that he has had multiple opportunities
in the past to go through the criminal justice system and been exposed
multiple times to guilty pleas and how guilty pleas work, and the Court is
of the opinion that [the defendant] unfortunately did not like the outcome of
the probation hearing and rightfully so. I will not say that I don’t blame
him and I understand his being upset that he did not get to go into the
Jericho Program. And I think at the time that I indicated for the record that
I’m very receptive to that program and all the work that they’re doing with
the mentally ill and attempting to get them out of the cycle of the revolving
door in and out of the criminal justice system. And I by no means was in
any way slighting that system. I just did not feel that [the defendant] was a
proper candidate for it and I said so at the time and I still feel that way.

        And unfortunately, the only real legal argument that I have heard
that I think merits anything is [the defendant is] not happy that he didn’t get
to go into the Jericho Project. I’m completely satisfied after my
recollection quite frankly of his guilty plea and a review of the transcript
indicates to me that [the defendant] fully understood what he was doing,
fully understood the decisions that he was making, that he entered his guilty
plea freely and voluntarily, no threats, no coercion with the understanding
that he was going to be allowed to request extraordinary relief, which he
did, which he was and which he did. And unfortunately for him he was
denied that.

                                      11
              So I don’t find that there’s any valid reason under the rules of
       procedure that would cause me to find that [the defendant’s] guilty plea was
       anything other than freely and voluntarily entered. And so for those
       reasons I am going to deny the motion to set the guilty plea aside.

        Before accepting pleas of guilty from the defendant, the trial court went to great
lengths to fully advise him as to the entire process and what his options were. Although
the defendant was given the opportunity to ask questions regarding the matters, he
responded that he had none to ask. The defendant’s presentence report includes ten pages
of prior convictions, beginning with his first series of arrests at age sixteen, including a
conviction for aggravated robbery, netting him a sentence of eight years in the state
penitentiary. Following his release on those convictions, he was arrested many times
over the next two decades for a variety of criminal conduct, amassing enough convictions
to be classified as a career offender. With all of his many arrests, it is obvious that he
made a substantial number of court appearances and was familiar with the system.
During his submission hearings, he was fully advised of his rights, the process was
explained to him, and he advised the court that he had no questions. Considering all of
this, and accrediting defense counsel, as the trial court did, the record easily supports the
determination that a manifest injustice has not occurred and the defendant is not entitled
to withdraw his pleas of guilty. Additionally, because the trial court accredited the
testimony of trial counsel, the defendant failed to prove his ineffective assistance of
counsel claim.

                                     CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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