Court of Criminal Appeals Opinions

Format: 03/25/2017
Format: 03/25/2017
State of Tennessee v. Travis Pallaria
E2016-00748-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David R. Duggan

The Defendant, Travis Pallaria, appeals as of right from the Blount County Circuit Court’s revocation of his community corrections sentence. The Defendant cites evidence excusing his violation and contends that the trial court was unduly harsh and abused its discretion in ordering the Defendant to serve the balance of his sentence in confinement. Following our review, we affirm the revocation and confinement order of the trial court.

Blount County Court of Criminal Appeals 02/09/17
State of Tennessee v. Billy Hill
E2015-00811-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Billy Hill, was convicted by a Knox County Criminal Court jury of second degree murder, a Class X felony, for the 1986 killing of his mother. See T.C.A. § 39-2-211 (1986) (repealed 1989). The trial court sentenced the Defendant to twenty-four years‘ confinement. On appeal, the Defendant contends that (1) the trial court erred by denying his motions to dismiss based upon lost and destroyed evidence, a due process violation created by the extensive pre-indictment delay, and a violation of his right to a speedy trial, (2) the trial court erred by allowing improper witness testimony, (3) the trial court erred by denying his motion for a mistrial after a witness violated a court order prohibiting testimony about the Defendant‘s alleged violent conduct against the witness, (4) the trial court erred by refusing to provide a jury instruction relative to the State‘s obligation to corroborate his statements, and (5) the prosecutor engaged in misconduct during closing argument. We have also considered whether the statute of limitations for second degree murder had expired before the commencement of the prosecution. Although we affirm the Defendant‘s conviction, we remand for the entry of a corrected judgment reflecting the proper felony classification for second degree murder at the time of the offense.

Knox County Court of Criminal Appeals 02/09/17
Eddie A. Medlock v. State of Tennessee
M2016-02460-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge John D. Wooten, Jr.

The Appellant, Eddie A. Medlock, is appealing the trial court’s order denying his petition for a writ of habeas corpus.  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

Trousdale County Court of Criminal Appeals 02/08/17
Michael Joseph Lugiai, Sr. v. State of Tennessee
M2016-00369-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

In July 2012, the Petitioner, Michael Joseph Lugiai, Sr., entered a “best interests” guilty plea to four counts of aggravated assault.  He timely filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel and that his plea was unknowing and involuntary.  Following a hearing on the petition, the post-conviction court denied relief.  After a thorough review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 02/08/17
State of Tennessee v. Robreka Jay Quan Sullivan
M2015-01407-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The Appellant, Robreka Jay Quan Sullivan, was found guilty by a Davidson County Criminal Court Jury of aggravated robbery and aggravated burglary, and she received a total effective sentence of ten years.  On appeal, the Appellant challenges the sufficiency of the evidence sustaining her convictions.  Specifically, she contends that the victim’s testimony was not credible and that the State proved, at most, that she was involved in the disposition of stolen property.  Upon review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 02/08/17
Herman Sowell, Jr. v. State of Tennessee
M2016-01037-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David M. Bragg

In 2011, the Petitioner, Herman Sowell, Jr., pleaded nolo contendreto attempted aggravated rape, attempted aggravated sexual battery, and incest, and the trial court sentenced him to fifteen years, at 30%.  The trial court ordered a “time served” sentence followed by probation.  In April 2013, after the statute of limitations had expired, the Petitioner filed a petition for post-conviction relief, using a separate case number but challenging as ineffective the representation of his counsel for the November 2011 case.  At some point thereafter, the trial court revoked the Petitioner’s probation.  The Petitioner amended his petition for post-conviction relief to challenge his November 2011 convictions.  The post-conviction court summarily dismissed the post-conviction petition.  We affirm the post-conviction court’s judgment.

Rutherford County Court of Criminal Appeals 02/07/17
State of Tennessee v. Roxann Lee Cruse
W2016-00119-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee Moore

The defendant, Roxann Lee Cruse, appeals the revocation of the probationary sentence imposed for her Dyer County Circuit Court guilty-pleaded convictions of the sale of a Schedule III narcotic. Discerning no error, we affirm.

Dyer County Court of Criminal Appeals 02/06/17
State of Tennessee v. Richard W. Wilburn
M2016-00704-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David M. Bragg

The Defendant, Richard W. Wilburn, was sentenced to an effective ten-year sentence for his guilty-pleaded convictions to one count of initiating the methamphetamine manufacturing process and three counts of driving on a revoked license, second offense or more.  On appeal, the Defendant contends that the trial court erred by applying enhancement factor 10—the Defendant had no hesitation about committing a crime when the risk to human life was high—to increase his sentence for initiating the manufacturing methamphetamine process because, he asserts, there was no proof that anyone was endangered by his actions.  He also submits that the trial court erred by denying any form of alternative sentencing based upon his need for drug treatment.  Following our review, we find no abuse of discretion in the trial court’s sentencing decision.  Accordingly, the judgments are affirmed.

Rutherford County Court of Criminal Appeals 02/06/17
State of Tennessee v. Wesley Howard Luthringer
M2016-00780-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

Wesley Howard Luthringer (“the Defendant”) was convicted of two counts of aggravated vehicular homicide by a Bedford County jury.  The trial court sentenced the Defendant to twenty-four years for each count to be served consecutively as a Range I standard offender.  On appeal, the Defendant argues that the evidence was insufficient for a rational juror to find him guilty of aggravated vehicular homicide beyond a reasonable doubt and that the trial court erred in ordering his sentences to be served consecutively.  After a thorough review of the record and case law, we affirm.

Bedford County Court of Criminal Appeals 02/06/17
State of Tennessee v. Misty Ann Miller
M2016-01165-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Monte Watkins

The defendant, Misty Ann Miller, appeals the trial court’s denial of her Rule 35 motion to modify the sentences imposed against her pursuant to a negotiated plea deal.  On appeal, the defendant argues the trial court abused its discretion in finding no new post-sentencing developments exist to justify a modification of her sentences.  After our review, we affirm the decision of the trial court.

Davidson County Court of Criminal Appeals 02/06/17
Mahlon Johnson v. State of Tennessee
W2016-00665-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James C. Beasley, Jr.

The Petitioner, Mahlon Johnson, appeals the denial of post-conviction relief for his convictions for sexual battery and aggravated assault. On appeal, he argues that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/31/17
State of Tennessee v. Rocky M. White
W2016-00283-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald H. Allen

Pro se Petitioner, Rocky White, appeals from the Madison County Circuit Court‟s summary dismissal of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. On appeal, the Petitioner argues that the trial court erred by summarily dismissing his motion. Because the sentences in this action have expired, we affirm the judgment of the trial court pursuant to Rule 20 of the Court of Criminal Appeals.

Madison County Court of Criminal Appeals 01/31/17
State of Tennessee v. DeKarlos Johnson
W2015-02412-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Glenn Ivy Wright

A Shelby County Criminal Court jury convicted the Defendant-Appellant, Dekarlos Johnson, of aggravated robbery, and the trial court imposed a sentence of nine years with a release eligibility of eighty-five percent. On appeal, Johnson argues: (1) the admission of his redacted statement negatively impacted the jury's verdict; (2) he was denied the opportunity to present evidence in his own defense; (3) the State committed prosecutorial misconduct during its closing argument; and (4) the cumulative effect of these errors entitles him to relief. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/31/17
State of Tennessee v. Marcus Deangelo Lee
W2016-00107-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James M. Lammey

Pro se Petitioner, Marcus Deangelo Lee, appeals from the Shelby County Criminal Court’s dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner argues that the trial court erred in dismissing his motion. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/31/17
Ronnie Hughes v. State of Tennessee
W2015-02131-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris Craft

The Petitioner, Ronnie Hughes, appeals the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that his guilty plea was involuntary and unknowing. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/31/17
State of Tennessee v. Eric D. Wallace
W2016-00907-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

Eric D. Wallace (“the Defendant”) filed a Motion to Correct Illegal Sentence under Rule 36.1 of the Tennessee Rules of Criminal Procedure, alleging that his sentences for first degree felony murder and attempted first degree murder were illegal because the trial court constructively amended the corresponding indictments by instructing the jury on “alternative theories for felony murder.” The trial court summarily denied relief, and this appeal followed. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/31/17
State of Tennessee v. Dantario Burgess, Rodriguez McNary and Joseph Jones-Cage
W2015-00588-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Robert Carter, Jr.

A Shelby County jury convicted the Defendants, Dantario Burgess, Rodriguez McNary, and Joseph Jones-Cage, of two counts of attempted first degree murder, one count of aggravated assault, and one count of reckless endangerment. Mr. Jones-Cage and Mr. McNary also were convicted of employing a firearm during the commission of a dangerous felony. Mr. Burgess also was convicted of employing a firearm during the commission of a dangerous felony having been previously convicted of a felony and of possessing a firearm after having been convicted of a felony involving the use or attempted use of violence. The trial court sentenced Mr. Burgess to an effective term of fifty-five years, Mr. Jones-Cage to an effective term of fifty years, and Mr. McNary to an effective term of forty-one years. On appeal, the Defendants raise the following issues either collectively or individually: (1) the trial court erred in denying Mr. Burgess‘ motion to suppress a witness‘s identification of him in a photographic lineup and in limiting the
cross-examination of the victim during the suppression hearing; (2) the failure to name the predicate felony in the indictment for employing a firearm during the commission of a dangerous felony voids the conviction; (3) the evidence is insufficient to support the convictions; (4) the trial court committed plain error in not allowing defense counsel to impeach the victim‘s testimony at trial with her statement to the police; (5) the malfunctioning of the recording equipment during the trial warranted a mistrial; (6) the sentences of Mr. Burgess and Mr. McNary are excessive; (7) the cumulative effect of the errors warrants a new trial; and (8) the trial court erred in denying Mr. Burgess‘ pro se petition for writ of error coram nobis. We conclude that the evidence is insufficient to support Mr. McNary‘s conviction for employing a firearm during the commission of a dangerous felony and reverse the conviction. We remand the matter for a new trial on possession of a firearm during the commission of a dangerous felony as a lesser-included offense. We also remand the case for entry of corrected judgments reflecting that Mr. Jones-Cage was convicted of attempted first degree murder in count one and is to serve 100 percent of his sentence for the firearm conviction in count three. We otherwise affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/31/17
James Floyd Thomas v. State of Tennessee
M2016-01630-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Forest Durard, Jr.

The petitioner, James Floyd Thomas, appeals the denial of post-conviction relief from his 2014 Bedford County Circuit Court
guilty-pleaded convictions of the promotion of methamphetamine manufacture and initiation of the process to manufacture methamphetamine, for which he received an effective sentence of 18 years.  Because the petitioner failed to file a timely petition for post-conviction relief, the post-conviction court’s order is affirmed.

Bedford County Court of Criminal Appeals 01/31/17
State of Tennessee v. Corey Forest
M2016-00463-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert Jones

The Defendant, Corey Forest, was indicted for possession of twenty-six grams of cocaine with the intent to sell in a drug-free school zone, possession of marijuana, and unlawful possession of a firearm.  The Defendant filed a pretrial motion to suppress the warrantless search of his vehicle.  The trial court denied the Defendant’s motion, and the Defendant pleaded guilty to the lesser-included offense of possession of more than .5 grams of a Schedule II substance and to unlawful possession of a firearm, and attempted to reserve a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) about whether the stop of the Defendant’s vehicle by law enforcement was lawful.  After review, because the Defendant has failed to properly comply with Rule 37, we dismiss the Defendant’s appeal.

Maury County Court of Criminal Appeals 01/31/17
State of Tennessee v. William M. Cole
W2015-01764-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn L. Peeples

The defendant, William M. Cole, was indicted for rape of a child and entered a best-interest guilty plea to incest on May 6, 2015. He was sentenced on September 8, 2015, to six years as a Range I, standard offender. On September 14, 2015, he filed a timely notice of appeal of his sentence. On September 28, 2015, he filed in the trial court a motion to withdraw his plea of guilty, arguing that he was not related to the victim by blood or marriage and, therefore, could not be found guilty of incest. In this direct appeal filed after his plea of guilty and sentencing, but before he sought to withdraw his guilty plea, he argues that his plea of guilty was involuntary and should be set aside and that the trial court failed to consider all relevant factors in sentencing him. The State responds that the defendant may attack the voluntariness of his plea only in a petition for post-conviction relief and not in a direct appeal. We agree with this response, as well as the State’s assertion that the defendant was properly sentenced. Accordingly, we affirm the judgment of the trial court.

Gibson County Court of Criminal Appeals 01/30/17
Terrell Loverson v. State of Tennessee
W2015-01381-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Terrell Loverson, appeals the denial of his petition for post-conviction relief, arguing the post-conviction court erred by concluding that appellate counsel rendered effective assistance. According to the petitioner, appellate counsel should have raised, as an issue on appeal, the trial court's denial of his request for a self-defense jury instruction. Following our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/30/17
State of Tennessee v. Stephanie Lynn Ferguson
M2016-01123-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Monte Watkins

The Defendant, Stephanie Lynn Ferguson, pleaded guilty to two counts of aggravated vehicular homicide and one count of vehicular assault in the Criminal Court for Davidson County.  Following a sentencing hearing, the trial court imposed an effective sentence of twenty-six years in the Department of Correction.  On appeal, the Defendant contends that her effective sentence does not comport with the fundamental purposes and principles of sentencing.  Specifically, she contends that the sentence imposed was not the “least severe measure necessary,” that the trial court ignored applicable mitigating factors, and that the court improperly determined she was a dangerous offender.  Upon review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 01/30/17
State of Tennessee v. Radames Antonio Rivera
M2016-00938-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jill Bartee Ayers

The defendant, Radames Antonio Rivera, was indicted for one count of first degree murder, one count of attempted tampering with evidence, and one count of unlawful possession of a weapon.  Following trial, the jury found the defendant guilty of one count of second degree murder.  The trial court sentenced the defendant to fifteen years of incarceration.  On appeal, the defendant argues the evidence was insufficient to support his conviction.  After our review, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 01/30/17
State of Tennessee v. Robin Bass
W2015-02484-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge W. Mark Ward

The Defendant, Robin Bass, was convicted of first degree murder in the perpetration of or attempt to perpetrate a robbery. See Tenn. Code Ann. § 39-13-202(a)(2). In this appeal as of right, the Defendant contends that the evidence was insufficient to sustain his conviction, arguing that there was no proof that he intended to rob the victim or that the murder occurred during the perpetration of or attempt to perpetrate a robbery. Additionally, the Defendant argues that the extrajudicial confessions used to convict him were uncorroborated. Following our review, the judgment is affirmed.

Shelby County Court of Criminal Appeals 01/27/17
State of Tennessee v. David Richardson
W2016-00174-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee V. Coffee

The defendant, David Richardson, appeals the trial court’s imposition of consecutive sentences upon remand for a new sentencing hearing. After review, we affirm the sentencing decision of the trial court.

Shelby County Court of Criminal Appeals 01/27/17