Court of Criminal Appeals Opinions

Format: 04/24/2015
Format: 04/24/2015
Andrew Soimis v. State of Tennessee
M2014-01700-CCA-R3-HC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Leon C. Burns, Jr.

Petitioner, Andrew Soimis, filed a petition for writ of habeas corpus alleging that his judgment was void because he was convicted without an indictment.  The habeas corpus court summarily dismissed the petition.  Upon our review, we affirm the judgment of the habeas corpus court.

Putnam County Court of Criminal Appeals 04/24/15
State of Tennessee v. Tracy Lynn Carman-Thacker
M2014-00757-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Vanessa Jackson

A Coffee County jury found the Defendant, Tracy Lynn Carman-Thacker, guilty of willful abuse, neglect, or exploitation and false imprisonment. The Defendant appeals, asserting that the trial court erred when it: (1) failed to compel the State to make an election of offenses; (2) denied the Defendant’s motion for acquittal as to both charges; and (3) determined that the victim was competent to testify at trial. After a thorough review of the record and applicable law, we reverse and remand in part, and affirm in part.

Coffee County Court of Criminal Appeals 04/24/15
State of Tennessee v. Gary Sulo Alto
M2014-01159-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Thomas W. Graham

Gary Sulo Alto (“the Defendant”) pleaded guilty to theft of property valued at $10,000 but less than $60,000. After a sentencing hearing, the trial court denied alternative sentencing and ordered restitution in the amount of $60,000. On appeal, the Defendant argues that (1) the trial court erred when it denied alternative sentencing and (2) the trial court erred when it ordered restitution in the amount of $60,000 without considering the Defendant’s future ability to pay. Upon review, we affirm the trial court’s denial of alternative sentencing. However, because the trial court failed to make findings as to the Defendant’s future ability to pay restitution, and based on the record, we reduce the restitution from the ordered amount of $60,000 to $27,000 and affirm the judgment as to restitution as modified.

Marion County Court of Criminal Appeals 04/24/15
State of Tennessee v. John J. Ortega, Jr.
M2014-01042-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Michael R. Jones

Defendant, John J. Ortega, Jr., was indicted by the Montgomery County Grand Jury for two counts of rape of a child.  After a jury trial, Defendant was found guilty of aggravated sexual battery which was charged as a lesser included offense in Count One.  He was found not guilty in Count 2.  As a result, he was sentenced to nine years of incarceration.  Defendant appeals, arguing that aggravated sexual battery is not a lesser included offense of rape of a child.  Defendant did not object to the jury instructions at trial.  However, we have determined that aggravated sexual battery is no longer a lesser included offense of rape of a child under Tennessee Code Annotated section 40-18-110 as amended.  Therefore, the trial court’s instructions were in error.  However, we determine that the evidence is sufficient to support a conviction of the lesser included offense of child abuse.  Consequently, we modify Defendant’s conviction for aggravated sexual battery to child abuse and remand the matter to the trial court for entry of a corrected judgment and a new sentencing hearing.

Montgomery County Court of Criminal Appeals 04/23/15
Larry Stephen Brumit v. State of Tennessee
M2014-01039-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David M. Bragg

Larry Stephen Brumit (“the Petitioner”) appeals from the summary dismissal of his Petition for Writ of Error Coram Nobis. Upon review, we affirm the judgment of the coram nobis court.

Rutherford County Court of Criminal Appeals 04/23/15
James R. Cranmer v. State of Tennessee
M2013-02866-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Michael R. Jones

In 2011, the Petitioner, James R. Cranmer, pleaded guilty to one count of second degree murder, one count of attempted second degree murder, and two counts of reckless aggravated assault. The trial court sentenced him to an effective sentence of fifteen years in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel, and the post-conviction court held an evidentiary hearing after which it denied the petition. On appeal, the Petitioner contends that the post-conviction court erred when it denied his post-conviction petition because he received the ineffective assistance of counsel at trial, and he further contends that his guilty plea was not voluntary, knowing, or intelligent because the State committed a Brady violation. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

Montgomery County Court of Criminal Appeals 04/23/15
Nicholas Short v. State of Tennessee
M2014-00614-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Petitioner, Nicholas Short, was indicted by the Davidson County Grand Jury for one count of first degree premeditated murder and one count of felony murder in the perpetration of an especially aggravated robbery. Petitioner was convicted by a jury of first degree premeditated murder in count 1 and the lesser-included offense of second degree murder in count 2. The trial court merged the two offenses and sentenced Petitioner to a term of life imprisonment. Petitioner appealed his conviction, and this court affirmed. State v. Nicholas Short, No. M2010-01914-CCA-R3-CD, 2012 WL 1593174 (Tenn. Crim. App., May 7, 2012), perm. to app. denied (Tenn., Sept. 20, 2012). Petitioner filed a petition seeking post-conviction relief on the basis that his trial counsel provided ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied post-conviction relief. Petitioner appeals the post-conviction court’s denial of his post-conviction petition. Having carefully reviewed the record, we affirm the denial of post-conviction relief.

Davidson County Court of Criminal Appeals 04/22/15
State of Tennessee v. Anthony Dewayne Blaylock
W2014-01578-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Madison County jury convicted the Defendant, Anthony Dewayne Blaylock, of two counts of aggravated assault, one count of attempted aggravated assault, and one count of criminal trespass, and the trial court sentenced him to an effective sentence of eight years in confinement. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 04/22/15
State of Tennessee v. Cedric Robertson
W2014-01545-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant, Cedric Robertson, was convicted by a Madison County Circuit Court jury of the sale and the delivery of more than one-half ounce of marijuana, a Class E felony. See T.C.A. §§ 39-17-417 (Supp. 2012) (amended 2014), 39-17-415 (2014). The trial court merged the convictions and sentenced the Defendant as a Range II, multiple offender to four years’ confinement. On appeal, the Defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 04/22/15
State of Tennessee v. Detrick Cole
W2013-02766-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County jury found the Defendant, Detrick Cole, guilty of first degree premeditated murder and imposed a sentence of death. The Defendant’s conviction and sentence were affirmed by this Court, State v. Detrick Cole, No. W2002-01254-CCA-R3-DD, 2003 WL 22848969 (Tenn. Crim. App., at Jackson, Nov. 24, 2003), and by our Supreme Court, State v. Cole, 155 S.W.3d 885 (Tenn. 2005). The Defendant filed a petition for post-conviction relief alleging ineffective assistance of counsel, which was denied after a hearing. On appeal, this Court agreed with the Defendant’s contention that he had received the ineffective assistance of counsel during the penalty phase of his trial and remanded the case to the trial court for a new penalty phase proceeding. Detrick Cole v. State, No. W2008-02681-CCAR3-PC, 2011 WL 1090152, at *56 (Tenn. Crim. App., at Jackson, March 8, 2011), perm. app. denied (Tenn. July 14, 2011). On remand and prior to the new penalty phase proceeding, the Defendant filed a motion challenging the State’s introduction of his 1997 convictions in support of the prior violent felony aggravating circumstance, arguing that the violence of these convictions was ambiguous. See T.C.A. § 39-13-204(i)(2). The trial court denied the Defendant’s motion, concluding that the issue had been previously litigated and decided in the Defendant’s prior appeal. The Defendant then filed an extraordinary appeal, pursuant to Tennessee Rule of Appellate Procedure 10, which this Court denied. Thereafter, the Defendant agreed to accept a sentence of life without the possibility of parole, and a hearing was held to enter that sentence and a judgment of conviction reflecting that sentence. The Defendant appeals this judgment, contending that his sentence is illegal and void and should be set aside. He again argues that he is ineligible to receive this sentence because his 1997 convictions were insufficient to support the prior violent felony aggravating circumstance. After a thorough review of the record and applicable law, we dismiss the appeal.

Shelby County Court of Criminal Appeals 04/22/15
Alvertis Boyd v. State of Tennessee
W2014-00404-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris Craft

The Petitioner, Alvertis Boyd, was convicted of aggravated robbery, and the trial court sentenced him as a repeat violent offender to life imprisonment. This Court affirmed his conviction and sentence on appeal. State v. Alvertis Boyd, No. W2010-01513-CCA-R3-CD, 2011 WL 2586811, at *1 (Tenn. Crim. App., at Jackson, July 1, 2011), perm. app. denied (Tenn. Nov. 16, 2011). The Petitioner filed a petition seeking post-conviction relief, and, after a hearing, the post-conviction court denied the Petitioner relief. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 04/21/15
Anthony Washington v. James Holloway, Warden
W2014-02080-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joe H. Walker, III

The petitioner, Anthony Washington, appeals the Circuit Court for Lauderdale County’s denial of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

Lauderdale County Court of Criminal Appeals 04/20/15
State of Tennessee v. Mikel C. Hamrick
W2014-02307-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The Defendant, Mikel C. Hamrick, pleaded guilty to aggravated burglary, especially aggravated stalking, domestic assault, and theft and received an effective four-year sentence to be served consecutively to the sentences he received in two unrelated cases. Less than four years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence on the ground that he pleaded guilty to the aggravated burglary of his own home, a legal impossibility. The trial court summarily dismissed the motion for failure to state a colorable claim. On appeal, he contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/20/15
State of Tennessee v. Damien Clark
W2014-01729-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Carolyn W. Blackett

The Defendant, Damien Clark, was convicted of second degree murder in 2006 and received a twenty-year sentence at 100% service. Seven years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence because his sentence was in violation of Tennessee Code Annotated section 40-35-120(g) (2014). The trial court summarily denied relief for failure to state a colorable claim. On appeal, he contends that the trial court erred in denying him relief. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/20/15
State of Tennessee v. Talmadge Hurt
W2014-00513-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James M. Lammey

Defendant, Talmadge Hurt, was indicted by the Shelby County Grand Jury in September of 2009 for aggravated robbery and attempted aggravated robbery. He was tried with co-defendant Adrian Chaney for events that occurred at La Playita Mexican Restaurant in Memphis in April of 2007. The jury convicted Defendant of facilitation of aggravated robbery and facilitation of attempted aggravated robbery. After a sentencing hearing, Defendant was sentenced to consecutive sentences of ten years for facilitation of aggravated robbery and eight years for facilitation of attempted aggravated robbery. Defendant did not file a motion for new trial or seek a direct appeal. He filed a petition for post-conviction relief in October of 2011, in which he alleged, among other things, that he received ineffective assistance of counsel when trial counsel failed to file a motion for new trial. The post-conviction court granted leave for Defendant to file a delayed appeal pursuant to Tennessee Code Annotated section 40-30-113(a)(3) and Tennessee Supreme Court Rule 28, Section 9. Defendant filed a motion for new trial. The motion was denied by the trial court and this appeal followed. Defendant presents the following issues for our review on appeal: (1) whether the evidence was sufficient to support the convictions; and (2) whether the trial court erred by refusing to allow a defense witness to testify whether he could identify Defendant from a still photograph taken from surveillance video of the incident. After a review, we determine that the evidence was sufficient to support the convictions for aggravated robbery and attempted aggravated robbery. Additionally, we determine that the trial court did not err by excluding the opinion testimony of a lay witness that was not helpful to a determination of a fact in issue.

Shelby County Court of Criminal Appeals 04/20/15
State of Tennessee v. Brian Lee Johnson
M2013-02503-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John D. Wootten, Jr.

A Wilson County Criminal Court Jury convicted the appellant, Brian Lee Johnson, of driving under the influence (DUI). Subsequently, the trial court convicted him of DUI, fifth offense; violating a habitual traffic offender order; and driving on a revoked license, fourth offense. After a sentencing hearing, the trial court sentenced him to an effective four-year sentence to be served as 315 days in confinement and the remainder on supervised probation. On appeal, the appellant contends that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Wilson County Court of Criminal Appeals 04/20/15
State of Tennessee v. Justin Allen Stratton - concurring
E2014-00816-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert E. Cupp

I write separately because I respectfully disagree with that portion of the majority’s opinion which concludes that the facts relevant to the issue whether the three co-defendants were accomplices are subject to only one interpretation. In my mind, the following facts at least raise the inference that Ms. Holtsclaw was an accomplice.

Washington County Court of Criminal Appeals 04/17/15
State of Tennessee v. Justin Allen Stratton
E2014-00816-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Robert E. Cupp

The Defendant, Justin Allen Stratton, was convicted of first degree premeditated murder by a Washington County Criminal Court jury. See T.C.A. § 39-13-202 (2014). He was sentenced to life in prison. On appeal, he contends that the evidence is insufficient to support his conviction and that plain error exists because the jury was not instructed regarding corroboration of accomplice testimony. We affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 04/17/15
State of Tennessee v. Robert Walden, Jr.
M2014-01692-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Thomas W. Graham

The defendant, Robert Walden, Jr., appeals the revocation of the probationary sentence imposed for his Marion County Circuit Court conviction of theft of property valued at $500 or more but less than $1,000. Discerning no error, we affirm.

Marion County Court of Criminal Appeals 04/17/15
State of Tennessee v. Larry Douglas Clemons
M2014-00131-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge John D. Wootten, Jr.

Defendant, Larry Douglas Clemons, pled guilty in Case No. 12-CR-213 to four counts of trafficking for sexual servitude (Counts 1-4), one count of attempt to commit trafficking for sexual servitude (Count 5), especially aggravated sexual exploitation of a minor (Count 6), thirteen counts of aggravated sexual exploitation of a minor (Counts 7-19), and six counts of sexual exploitation of a minor (Counts 20-25). In Case No. 12-CR-236 Defendant pled guilty to one count of aggravated sexual exploitation of a minor, and in Case No. 12-CR-302 Defendant pled guilty to two counts of trafficking for sexual servitude (Counts 1-2) and five counts of statutory rape (Counts 3-7). The trial court ordered a portion of the sentences to be served consecutively for an effective one-hundred seventy-six-year sentence. In his sole issue on appeal, Defendant asserts that the trial court erred by ordering partial consecutive sentencing. After a thorough review of the record and the briefs, we affirm the judgments of the trial court. However, we remand for a corrected judgment in Count 20 of Case No. 2012-CR-213.

Smith County Court of Criminal Appeals 04/17/15
State of Tennessee v. Antonio J. Beasley, Sr.
E2014-01845-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Barry A. Steelman & Judge Rebecca Stern
The Defendant, Antonio J. Beasley, Sr., was convicted of various offenses during 1989 and 1990. In 1989, the Defendant pleaded guilty to larceny and received six years’ probation. In 1990, the Defendant pleaded guilty to attempt to commit arson and to possession of cocaine and was sentenced to concurrent terms of four years’ confinement for attempted arson and eleven months, twenty-nine days for possession of cocaine. Twenty-four years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence relative to the attempted arson and drug possession convictions because the court erroneously imposed concurrent sentences because the Defendant was “out on the grand larceny.” The trial court summarily dismissed the motion for failure to state a colorable claim. On appeal, he contends that the trial court erred by dismissing his motion. We affirm the judgment of the trial court. 
 
Hamilton County Court of Criminal Appeals 04/16/15
State of Tennessee v. Richard Thomas Kelley
M2014-00740-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John H. Gasaway, III

The defendant, Richard Thomas Kelley, was convicted after a jury trial of four counts of rape of a child, a Class A felony; three counts of aggravated sexual battery, a Class B felony; and one count of assault, a Class B misdemeanor. He was sentenced to thirty years’ imprisonment for each of the convictions for rape of a child, ten years’ imprisonment for each of the convictions for aggravated sexual battery, and six months’ imprisonment for the assault conviction, all to be served concurrently at 100%. On appeal, the defendant challenges the sufficiency of the convicting evidence. After a thorough review of the record, we conclude that the evidence is sufficient to support the verdicts, and we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 04/16/15
State of Tennessee v. Tommy Kaye Thompson
M2014-00596-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert Lee Holloway, Jr.

During the search of a recreational vehicle (“RV”) belonging to the defendant, Tommy Kaye Thompson, police uncovered approximately eight ounces of marijuana, two sets of scales, plastic baggies, and numerous firearms. The defendant challenged the search on the grounds that the search warrant, which was targeted at recovering security equipment allegedly stolen by the defendant’s grandson, was issued for a search of the house on the defendant’s property but did not extend to the RV, which was parked on a neighboring lot and tethered to the defendant’s property through an electrical cord. The trial court denied the motion to suppress, and a jury convicted the defendant of the possession of not less than one-half ounce or more than ten pounds of marijuana with the intention to sell, a Class E felony, and possession of drug paraphernalia, a Class A misdemeanor. He was acquitted of a firearms offense. On appeal, the defendant asserts that the trial court erred in denying his motion to suppress because the RV was outside the scope of the search warrant. We conclude that the search warrant authorized the search of the RV, and we accordingly affirm the judgments of the trial court.

Giles County Court of Criminal Appeals 04/15/15
Jarod Marges Phillips v. State of Tennessee
M2014-01374-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Seth W. Norman

Jarod Marges Phillips (“the Petitioner”) filed a petition for post-conviction relief claiming that his guilty plea was involuntary and unknowing and that he received ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. Upon review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 04/15/15
Terry Earl Jackson v. State of Tennessee
E2014-01511-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Don W. Poole
Petitioner, Terry Earl Jackson, appeals the trial court’s summary dismissal of his motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. He alleges that his sentences are illegal because his concurrent sentences had to run consecutively because he was on probation at the time of the offenses. After a thorough review, we affirm the judgment of the trial court.
 
Hamilton County Court of Criminal Appeals 04/14/15