        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 18, 2012

                  STATE OF TENNESSEE v. DENNY MCABEE

            Direct Appeal from the Criminal Court for Davidson County
                     No. 2011-A-717    Steve R. Dozier, Judge


              No. M2011-02628-CCA-R3-CD - Filed December 17, 2012


The petitioner, Denny McAbee, pled guilty in the Davidson County Criminal Court to
aggravated burglary. The trial court sentenced the petitioner to fourteen years in the
Tennessee Department of Correction. Subsequently, the petitioner filed a motion to set aside
his guilty plea, which the trial court denied. On appeal, the appellant challenges the trial
court’s ruling. Upon review, we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Denny McAbee.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel Harmon, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       At the guilty plea hearing, the State recited the following factual basis for the plea:

              [T]he State’s proof would have shown that . . . on January 3[],
              2011[,] at approximately 8:50 [a.m., the petitioner] was
              observed by Daniel Walker sitting on a porch in Robert
              [Clement’s] residence a[t] 1425 McGavock Pike. Mr. Walker
              heard a noise[,] and the [petitioner] was no longer on the side
              porch. Another witness[,] Carrie McKinsky (phonetic)[,] was
              walking a dog in the back yard of 1427 ½ A McGavock Pike
              [and] talking on a cell phone[. S]he saw this happen and called
              police. Officers responded to 1425 McGavock Pike[,] where
              one of the officers saw the [petitioner] coming off the front
              porch with a gree[n] bag in his hand. The bag contained a
              laptop computer. The [petitioner] was also in possession of the
              victim’s [iPod].

                      The [petitioner] was placed into the police vehicle at that
              time and gave the police the name of Brian Allan with the date
              of birth of 3/13/72, which was false. A pane of glass was
              broken out of the side door of that residence where the
              [petitioner] made entry. As the victim and witness [were] being
              interviewed, the [petitioner] escaped from custody. After a foot
              chase and a K-9 conducted track, the [petitioner] was placed
              into custody again in a back yard. In his back pocket[,] a blue
              tooth device was found and a gold ring. The [petitioner] was
              interviewed by Detective Beaty where in the interview the
              [petitioner] stated that he went to the victim’s residence with
              another unknown individual.

                      The total value of the property that was taken from the
              residence was more than $500. Therefore, fingerprints were
              taken from this case[,] and they were identified to the
              [petitioner].

        The petitioner pled guilty to aggravated burglary. The plea agreement provided that
the petitioner was a Range III persistent offender, that he was subject to a sentence between
twelve and fifteen years imprisonment, and that the trial court was to determine the exact
length and manner of service of the sentence. At the sentencing hearing, the trial court found
that the petitioner had poor rehabilitative potential, noting his extensive criminal history, his
failures on probation and parole, and that he committed the instant offense within ninety days
of his release from prison. The trial court imposed a fourteen-year sentence, forty-five
percent of which the petitioner was to serve in confinement before being eligible before
release. The trial court denied alternative sentencing due to the petitioner’s failure to
rehabilitate after “numerous prior attempts at alternative sentencing.”

      Thereafter, on June 29, 2011, the petitioner filed a motion to set aside his guilty plea.
The petitioner averred that prior to pleading guilty, he and defense counsel discussed

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community corrections, split confinement, and halfway houses geared toward treating the
petitioner’s drug addiction. The petitioner maintained that based upon the representations
of defense counsel, he pled guilty believing that he would receive an alternative sentence.

        At a hearing on the motion, the petitioner acknowledged he was told he would receive
a sentence between twelve and fifteen years. However, he maintained that he thought the
trial court could only impose a maximum of one year in confinement, with the balance of the
twelve- to fifteen-year sentence to be served in drug rehabilitation, a halfway house,
community corrections, or some combination of the three. The petitioner conceded that he
was not guaranteed a sentence of split confinement. He stated that trial counsel advised him
that he did not qualify for drug court but that he did qualify for community corrections.

       The petitioner said that counsel advised him that if he were accepted into a drug
rehabilitation program, he would be “fairly much guaranteed” to get community corrections.
He said counsel never told him that he could be ordered to serve the entire sentence in
confinement.

       The petitioner said that because of his age and history, he entered the plea. However,
he maintained that he would not have pled guilty and would have proceeded to trial had he
been aware the trial court could sentence him to twelve to fifteen years in prison, noting that
he had recently finished serving a fifteen-year sentence.

        On cross-examination, the petitioner acknowledged that he had a lengthy criminal
history and that he had entered numerous guilty pleas in the past. He said that he asked the
trial court for mercy at the sentencing hearing because he did not want to serve even one year
in confinement. He said he would have understood the plea agreement if trial counsel had
said “you [are] going to go in here in front of [the trial court], throw yourself at the mercy
of the [c]ourt, whatever, the most you [are] going to get is 15 years in prison, the least you
[are] going to get is a year [in prison].” The petitioner acknowledged that the plea form did
not state that he would only have to serve one year in confinement; however, he maintained
that the plea form did not state that he could be sentenced to fifteen years in prison. He did
not recall the trial court advising him at the plea hearing that he could receive twelve to
fifteen years in prison, maintaining that he would have stopped the proceedings if he had
been so advised.

        The petitioner said that he heard the State argue for a sentence of total incarceration
at the sentencing hearing. He said that was the first time he heard that he could be required
to serve his entire sentence in confinement. He acknowledged that he did not say anything.
The petitioner denied admitting at the guilty plea hearing that he broke into the victim’s
house to get money for cocaine. He testified that he thought the guilty plea hearing transcript

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had been altered. The petitioner said, “I just got through doing 15 years, was out 74 days.
On the first offer, accept 15 years at 45 percent, that would be crazy, wouldn’t it?”

        At the conclusion of the hearing, the trial court denied the petitioner’s motion, finding
that neither the petitioner’s testimony, the transcripts of the guilty plea hearing, or the
sentencing hearing supported the petitioner’s contentions. On appeal, the petitioner contests
the trial court’s ruling.

                                         II. Analysis

        Generally, a guilty plea cannot be withdrawn as a matter of right. State v. Mellon, 118
S.W.3d 340, 345 (Tenn. 2003). Nevertheless, Rule 32(f) of the Tennessee Rules of Criminal
Procedure provides that “[b]efore sentence is imposed, the court may grant a motion to
withdraw a guilty plea for any fair and just reason.” Tenn. R. Crim. P. 32(f)(1). However,
“[a]fter sentence is imposed but before the judgment becomes final, the court may set aside
the judgment of conviction and permit the defendant to withdraw the plea to correct manifest
injustice.” Tenn. R. Crim. P. 32(f)(2); see also State v. Green, 106 S.W.3d 646, 650 (Tenn.
2003).

        In the instant case, the petitioner did not indicate a desire to withdraw his plea until
after he was sentenced. Therefore, the petitioner was entitled to a withdrawal of his guilty
plea only to correct manifest injustice. Rule 32 does not provide a definition of manifest
injustice. State v. Crowe, 168 S.W.3d 731, 741-42 (Tenn. 2005). Regardless, our courts
have determined that

              [w]ithdrawal to correct 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, 83 S.
              Ct. 1194, 10 L. Ed. 2d 215 (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.

State v. Virgil, 256 S.W.3d 235, 240 (Tenn. Crim. App. 2008); see also State v. Turner, 919
S.W.2d 346, 355 (Tenn. Crim. App. 1995). However, “a defendant’s change of heart about
pleading guilty or a defendant’s dissatisfaction with the punishment ultimately imposed does
not constitute manifest injustice warranting withdrawal.” Crowe, 168 S.W.3d at 743.

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        The record reflects that at the guilty plea hearing, the trial court advised the petitioner
that he would receive a sentence between twelve and fifteen years and that the court would
determine the manner of service of the sentence. At the sentencing hearing, the petitioner
testified that he knew he would have to serve at least part of his sentence in confinement, but
he begged the trial court for drug treatment. As the trial court found, the petitioner’s
testimony at the hearing to withdraw his guilty plea is not supported by the record. We agree
with the trial court that the petitioner has failed to show that manifest injustice warrants the
withdrawal of his guilty plea.

                                        III. Conclusion

       In sum, we conclude that the trial court did not err in denying the petitioner’s motion
to withdraw his guilty pleas. Therefore, we affirm the judgment of the trial court.


                                                      _________________________________
                                                      NORMA McGEE OGLE, JUDGE




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