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State v. Desai

Court of Criminal Appeals of Tennessee, Nashville

October 3, 2017

STATE OF TENNESSEE
v.
BRIJESH MUKESH DESAI

          September 13, 2017 Session

         Appeal from the Circuit Court for Williamson County No. II-CR058776 James G. Martin, III, Judge

         Brijesh Mukesh Desai, the Defendant, entered a negotiated guilty plea to Class C felony issuing or passing a worthless check in the amount of $10, 000 or more but less than $60, 000. The plea agreement provided that the Defendant would be sentenced as a Range I standard offender; the sentence would be between three and six years; there would be a possibility of diversion; restitution would be $18, 871.34; and the manner of service was to be determined by the trial court at a later hearing. Following the sentencing hearing, the trial court sentenced the Defendant to six years' probation following the service of forty-five days in jail. The Defendant now appeals, claiming that the trial court erred in accepting his plea of guilty. However, the Defendant did not reserve the right to appeal a certified question of law or seek review of his sentence, nor do any other grounds for direct appeal under Tennessee Rule of Appellate Procedure 3(b) exist. Because the Defendant has no right to a direct appeal from his guilty plea, the appeal is dismissed.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Brijesh Mukesh Desai.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Kim R. Helper, District Attorney General; and Kelly A. Lawrence, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR. JUDGE

         Factual and Procedural Background

         The Defendant was indicted for Class B felony issuing or passing a worthless check in the amount of $60, 000 or more but less than $250, 000 with fraudulent intent to obtain articles of value from Toyota of Cool Springs. The indictment showed a September 9, 2014 offense date. On the day before his case was set for a jury trial, the Defendant, pro se, entered a negotiated guilty plea to Class C felony issuing or passing a worthless check in the amount of $10, 000 or more but less than $60, 000.[1] Based our review of the transcript of guilty plea hearing, the trial court conducted a thorough and exhaustive plea colloquy in which the trial court explained to the Defendant his rights, including an in-depth examination of the Defendant concerning his experience and training in representing himself and his knowledge of the law. The Defendant acknowledged that he understood his rights, had executed a written waiver of his right to counsel, and was voluntarily waiving his rights. The trial court accepted the guilty plea and set the case for a sentencing hearing, recommending that the Defendant consider hiring counsel for the sentencing hearing.

         The Defendant accepted the trial judge's recommendation and hired counsel for the sentencing hearing.[2] The pre-sentence report was entered as an exhibit without objection. Kris Krabill, the General Manager of Toyota of Cool Springs, testified that the Defendant and his family came to the dealership, purchased two new vehicles, and wrote a check for payment in full. When the check was returned, they contacted the Defendant, who immediately came to the dealership and assured them that the money was being wire transferred from his Scottrade account to the dealership account and provided the victim with a wire transfer number. The Defendant sent a screenshot of his purported Scottrade account statement showing a balance of $34, 371, 848 to Mr. Krabill's cell phone. The screenshot was entered as an exhibit. When the wire transfer did not come through, Mr. Krabill contacted the Defendant, who explained that he had a tax issue and was unable to use that account. The Defendant stated that he would send a cashier's check instead. When no payment was received, the dealership called the police.

         The Defendant testified that he made a mistake by "[w]riting a check that at the time [he] did not have the funds to cover . . . ." On cross-examination, the Defendant claimed that he was going to obtain the funds to pay for one vehicle from his parents. When asked where he was going to get the funds to cover the check for $68, 000, the Defendant said, "[F]rom a business deal that I was working on in London, England." When pressed, the Defendant said he did not have a business in London, only "contacts." He said the account with a balance of $34, 371, 848 was not an account he had access to, but it was an account that he hoped to be paid from if "the deal had closed." The Defendant also admitted that he had filed bankruptcy on July 25, 2014. His Chapter 7 Bankruptcy Petition was admitted as an exhibit. The Summary of Schedules showed assets of $705 and liabilities of $926, 712, which included an "auto deficiency" for $12, 000 to Toyota Motor Credit. At the conclusion of the sentencing hearing, the trial court sentenced the Defendant to six years, denied diversion, and placed the Defendant on probation after the service of forty-five days.

         The Defendant timely filed ...


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