Court of Criminal Appeals Opinions

Format: 09/23/2018
Format: 09/23/2018
State of Tennessee v. Willie Mitchell
W2018-00101-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lee V. Coffee

Following a trial, a Shelby County jury found Defendant, Willie Mitchell, guilty of aggravated robbery and aggravated burglary. The trial court sentenced Defendant, as a career offender, to a total effective sentence of forty-five years in the Tennessee Department of Correction. On appeal, Defendant challenges both the sufficiency of the evidence as it relates to his conviction for aggravated robbery and the sentence imposed by the trial court. Following a thorough review, we affirm the judgments of conviction.

Shelby County Court of Criminal Appeals 09/12/18
Thiermo Mamadou Diallo v. State of Tennessee
M2017-01410-CCA-R3-ECN
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Thiermo Mamadou Diallo, filed a petition for writ of error coram nobis, seeking relief from his conviction of statutory rape, which was the result of a guilty plea, based upon the victim’s recantation of her allegations against him. The Petitioner acknowledged that the petition was untimely but alleged that due process justified tolling the statute of limitations. After a brief hearing on the issue, the coram nobis court dismissed the petition. On appeal, the Petitioner challenges this ruling. Upon review, we affirm the judgment of the coram nobis court.

Davidson County Court of Criminal Appeals 09/12/18
State of Tennessee v. Dinnie Merel Robertson
M2016-02409-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Russell Parkes

The Appellant, Dinnie Merel Robertson, was convicted in the Lawrence County Circuit Court in case number 31906 of two counts of felony vandalism, carrying a firearm with the intent to go armed, and misdemeanor reckless endangerment. Subsequently, he pled guilty in the Lawrence County Circuit Court in case number 33049 to two counts of retaliation for past action. The Appellant received an effective four-year sentence in case number 31906 and an effective two-year sentence in case number 33049 to be served consecutively as ten months in confinement followed by supervised probation. The Appellant then was convicted in the Lawrence County Circuit Court in case number 33414 of selling one-half gram or more of methamphetamine and selling Clonazepam and received an effective ten-year sentence to be served in confinement and consecutively to the effective six-year sentence. The trial court also revoked the Appellant’s probation in case numbers 31906 and 33049 and ordered that he serve his sentences in those cases in confinement. In this consolidated appeal, the Appellant contends that the evidence is insufficient to support his convictions in case number 33414, that the trial court erred by ordering that he serve his effective ten-year sentence in that case consecutively to his prior sentences, and that the trial court erred by denying his request for probation. He also contends that the trial court erred by revoking his probation in case numbers 31906 and 33049 and ordering that he serve those sentences in confinement. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court but remand the case for correction of the judgments.

Lawrence County Court of Criminal Appeals 09/12/18
State of Tennessee v. Joshua Cool
E2017-00877-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

The Defendant, Joshua Cool, was convicted by a Knox County Criminal Court jury of two counts of first degree premeditated murder, first degree felony murder, two counts of second degree murder, and criminally negligent homicide. See T.C.A. §§ 39-13-202 (2014) (first degree murder); 39-13-210 (2014) (second degree murder); 39-13-212 (2014) (criminally negligent homicide). After the appropriate merger, the trial court sentenced the Defendant to concurrent sentences of life imprisonment for two first degree premeditated murder convictions and to two years’ confinement for criminally negligent homicide. On appeal, the Defendant contends that (1) the evidence is insufficient to support his first degree murder convictions, (2) the trial court erred by denying his motion to suppress evidence recovered during a warrantless search and his subsequent police statement, and (3) the trial court erred by admitting various evidentiary items. We affirm the Defendant’s convictions, but we remand the case to the trial court for the entry of a corrected second degree murder judgment to reflect the offense as a Class A felony.

Knox County Court of Criminal Appeals 09/12/18
Richard Bryant Long v. State of Tennessee
M2018-00113-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Stella L. Hargrove

The petitioner, Richard Bryant Long, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Lawrence County Court of Criminal Appeals 09/12/18
State of Tennessee v. John Sears
W2017-00938-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lee V. Coffee

Defendant, John Sears, was convicted at trial of theft of property over the value of $60,000 for his theft of ownership interest in three real properties owned by family members. On appeal, Defendant argues that: (1) the evidence was insufficient for a rational juror to have found him guilty of theft of property over the value of $60,000 beyond a reasonable doubt; (2) the trial court erred in admitting lay witness testimony regarding the value of the stolen real property; and (3) cumulative error warrants the grant of a new trial. After a thorough review of the facts and applicable case law, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 09/10/18
State of Tennessee v. Anita H. Lane
W2017-01716-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Donald H. Allen

The Appellant, Anita H. Lane, pled guilty to theft of property valued $60,000 or more but less than $250,000, a Class B felony, with the trial court to determine the length and manner of service of the sentence. After a sentencing hearing, the trial court sentenced her as a Range I, standard offender to eleven years in confinement and ordered that she pay restitution to the victim in the amount of $255,033.05. On appeal, the Appellant contends that the trial court erred by ordering that she pay $255,033.05 in restitution when she had no ability to pay that amount and that the trial court erred by finding that she had made no effort to pay restitution to the victim when she paid the victim’s insurance carrier $100,000. The State concedes that the trial court erred by ordering restitution without making findings on the Appellant’s ability to pay but argues that the trial court properly rejected her $100,000 payment to the insurance company as a basis for mitigation. Based upon the oral arguments, the record, and the parties’ briefs, we agree that the trial court failed to make findings regarding the Appellant’s ability to pay restitution. Therefore, we reverse the trial court’s ordering that the Appellant pay $255,033.05 and remand the case for further proceedings consistent with this opinion. The judgment of the trial court is affirmed in all other respects.

Madison County Court of Criminal Appeals 09/10/18
Christopher Lewis v. State of Tennessee
M2017-01386-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David Alan Patterson

The Petitioner, Christopher Lewis, appeals from the Putnam County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance from his trial counsel because trial counsel (1) failed to call several witnesses at trial; and (2) failed to introduce evidence “of the weather during the weekend” of the victim’s death and “additional evidence . . . regarding . . . a large hole” in the backyard of the Petitioner and victim’s home. Following our review, we affirm the judgment of the post conviction court.

Putnam County Court of Criminal Appeals 09/07/18
State of Tennessee v. Troy Anthony Lozano
M2017-01250-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Ross Hicks

The defendant, Troy Anthony Lozano, appeals his Montgomery County Circuit Court jury convictions of simple possession of marijuana, possession of drug paraphernalia, operating a motor vehicle without two operable tail lights, and violation of the registration law. In this appeal, the defendant challenges the sufficiency of the convicting evidence and the denial of his motion to suppress. Discerning no error, we affirm.

Montgomery County Court of Criminal Appeals 09/07/18
State of Tennessee v. Raymond B. Thomas
W2017-02032-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Lee Moore, Jr.

A Dyer County jury convicted the Defendant, Raymond B. Thomas, of two counts of sale of dihydrocodeinone, a Schedule III controlled substance commonly referred to as Hydrocodone, within 1,000 feet of a school zone and sale of a controlled substance obtained through TennCare. The trial court sentenced the Defendant to concurrent terms of six years for each of his sale of dihydrocodeinone convictions and two years for the sale of a controlled substance obtained through TennCare conviction. On appeal, the Defendant asserts that the evidence is insufficient to support his convictions for sale of dihydrocodeinone within 1,000 feet of a public elementary school. After review, we affirm the trial court’s judgments.

Dyer County Court of Criminal Appeals 09/06/18
State of Tennessee v. Robert Burnette
W2017-02263-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County jury convicted the Defendant, Robert Burnette, of attempted first degree premeditated murder, employment of a firearm during the commission of a dangerous felony, and being a felon in possession of a weapon. The trial court sentenced the Defendant to life without the possibility of parole. On appeal, the Defendant claims that the trial court erred when it allowed an undisclosed and incompetent witness to testify, and that the evidence is insufficient to sustain his conviction for attempted first degree premeditated murder. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 09/06/18
In Re: AAA Bonding Company
M2017-01624-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Forest A. Durard, Jr.

The Appellant, AAA Bonding Company, executed as surety an appearance bond for a defendant charged with theft, following which a general sessions court judge issued a conditional order of forfeiture. The Appellant appealed to the circuit court, which remanded the case to the lower court for entry of a final judgment. The Appellant filed a notice of appeal with this court. After review, we dismiss for lack of appellate jurisdiction.

Bedford County Court of Criminal Appeals 09/06/18
State of Tennessee v. Durwin L. Rucker
M2017-02536-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Suzanne Lockert-Mash

The Appellant, Durwin L. Rucker, pled guilty in the Cheatham County Circuit Court to violating an order declaring him to be a motor vehicle habitual offender and driving under the influence (DUI) and received an effective four-year sentence to be served as sixty days in jail and the remainder on supervised probation. Subsequently, the trial court revoked his probation. On appeal, the Appellant contends that the trial court erred by ordering that he serve his effective four-year sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Cheatham County Court of Criminal Appeals 09/05/18
State of Tennessee v. Ryan Patrick Broadrick
M2017-01136-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Mark J. Fishburn

The Defendant, Ryan Patrick Broadrick, pled guilty to statutory rape, a Class E felony, in exchange for a three-year sentence on probation. Following a hearing, the trial court ordered that the Defendant was required to register as a sex offender. The Defendant appeals, arguing (1) that this court should review the trial court’s decision using a de novo standard of review, rather than an abuse of discretion with a presumption of reasonableness standard; (2) that the trial court was not authorized by Tennessee Code Annotated section 39-13-506(d)(2)(B) to consider anything other than the facts and circumstances of the statutory rape offense to which the Defendant pled guilty; (3) that due process principles prohibited the trial court from considering the nolled sexual exploitation of a minor count of the indictment that pertained to photographs found on the Defendant’s phone; (4) that due process of law afforded him the right to perform independent forensic testing of the photographs found on his phone; (5) that the trial court failed to articulate for the record how it took into account “the facts and circumstances of the offense” as required by the statute; and (6) that the photographs relied upon by the trial court did not depict minors engaged in sexual activity. After review, we affirm the judgments of the trial court. However, we remand the case for entry of judgment forms for each count of the indictment.

Davidson County Court of Criminal Appeals 09/04/18
State of Tennessee v. William Cole Nicholson
M2017-01761-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge William R. Goodman, III

The defendant, William Cole Nicholson, appeals his Montgomery County Circuit Court jury conviction of aggravated sexual battery. He challenges the sufficiency of the evidence supporting the element of unlawful sexual contact and the weight of the evidence supporting the guilty verdict. Discerning no error, we affirm.

Montgomery County Court of Criminal Appeals 09/04/18
State of Tennessee v. Aspyn Riner
M2017-01839-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stella L. Hargrove

A Maury County Circuit Court Jury convicted the Appellant, Aspyn Riner, of aggravated perjury, a Class D felony, and the trial court sentenced her as a Range I, standard offender to two years, six months to be served as six months in confinement and the remainder on supervised probation. On appeal, the Appellant claims that the trial court erred by denying her requests for judicial diversion and full probation and by ordering that she serve four calendar months in confinement before being eligible to earn good time credits. The State acknowledges that the trial court could not preclude the Appellant from earning good time credits but argues that the court properly sentenced her in all other respects. We agree with the State. Accordingly, the trial court’s denials of judicial diversion and full probation are affirmed, but the court’s ordering four months of confinement before becoming eligible for good time credits is reversed. The case is remanded to the trial court for correction of the judgment to so reflect.

Maury County Court of Criminal Appeals 09/04/18
State of Tennessee v. Eric Battle
W2017-01234-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County jury convicted the Defendant, Eric Battle, of one count of attempted first degree premeditated murder, five counts of aggravated assault, one count of employment of a firearm during the commission of a dangerous felony, and one count of being a convicted felon in possession of a firearm. On appeal, the Defendant claims that: (1) the trial court erred when it ruled that a witness’s proposed testimony was inadmissible; (2) the evidence was insufficient to sustain his convictions; and (3) the trial court erred when it declined to instruct the jury on self-defense. After a thorough review of the record and applicable law, we affirm the trial court’s judgments, but we remand for entry of corrected judgments.

Shelby County Court of Criminal Appeals 08/31/18
Kelvin Reed v. State of Tennessee
W2017-02419-CCA-R3-ECN
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The pro se Appellant, Kelvin Reed, appeals the Shelby County Criminal Court’s summary dismissal of his “Petition for Writ of Error Coram Nobis and Motion to Vacate Illegal Sentence.” Although Reed acknowledges that his petition for coram nobis relief was untimely, he argues that due process concerns require tolling of the one-year statute of limitations. He also contends, with regard to his motion to vacate his illegal sentence, that the trial court’s order was not a final order because it failed to dismiss his motion under Rule 36.1 and failed to make the appropriate legal determinations, thereby divesting this court of jurisdiction to hear this appeal. We affirm the trial court’s summary dismissal of Reed’s petition and motion.

Shelby County Court of Criminal Appeals 08/31/18
Lymus Levar Brown III v. State of Tennessee
W2017-01726-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Clayburn L. Peeples

A Haywood County jury convicted the Petitioner, Lymus Brown, of aggravated robbery, and the trial court sentenced him to thirty years in prison. State v. Lymus Brown, No. W2012-02298-CCA-R3-CD, 2013 WL 12181029, at *1 (Tenn. Crim. App., at Jackson, Nov. 26, 2013), perm. app. denied (Tenn. Apr. 8, 2014). This court affirmed his conviction on appeal. The Petitioner filed a petition for post-conviction relief in which he alleged that his trial counsel was ineffective in failing to interview a witness, failing to adequately cross-examine another witness, failing to allow him to testify, and failing to have the jury instructed on facilitation. The post-conviction court denied relief. After review, we affirm the post-conviction court’s judgment.

Haywood County Court of Criminal Appeals 08/31/18
State of Tennessee v. Tammy Tuttle
M2017-00788-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Tammy Tuttle, appeals her convictions of possession of not less than 14.175 grams (0.5 ounces) but not more than ten pounds of marijuana with the intent to sell and possession of 0.5 grams or more of cocaine with the intent to sell as well as the forfeiture of $1,098,050 in United States currency. The trial court sentenced Defendant to an effective eight year sentence to serve. On appeal, Defendant argues that the evidence is insufficient to sustain her convictions and that the trial court erred in ruling that the $1,098,050 was forfeited to the State. After a thorough review of the record, we hold that the evidence is sufficient for Defendant’s convictions and that we do not have jurisdiction to hear the forfeiture issue because the notice of appeal was untimely. Accordingly, we affirm the judgments of the trial court but remand for entry of corrected judgments in Counts Three and Four.

Maury County Court of Criminal Appeals 08/31/18
Devin Rogers v. State of Tennessee
W2017-01991-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey

The petitioner, Devin Rogers, appeals the denial of his petition for post-conviction relief, which petition challenged his 2013 conviction of aggravated robbery, alleging that he was deprived of the effective assistance of counsel at trial. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 08/30/18
Jereco Tynes v. State of Tennessee
W2018-00005-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The petitioner, Jereco Tynes, appeals the denial of his petition for post-conviction relief, which petition challenged his 2010 jury convictions of felony murder, aggravated robbery, and attempted aggravated robbery, alleging that he was deprived of the effective assistance of counsel at trial. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 08/30/18
State of Tennessee v. Darrin Keith Ward, Jr.
W2017-01516-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Lee Moore, Jr.

The Defendant, Darrin Keith Ward, Jr., appeals the trial court’s revocation of his community corrections sentence, arguing that the trial court abused its discretion by relying on stale information and insufficient evidence in deciding to revoke his sentence. After review, we affirm the revocation of the alternative sentence.

Dyer County Court of Criminal Appeals 08/30/18
Bruce M. Vann v. State of Tennessee
W2017-02194-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald H. Allen

The Petitioner, Bruce Marvin Vann, appeals from the Madison County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective for failing to call “alibi” witnesses during trial. Following our review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 08/30/18
State of Tennessee v. Houston Thomas Wilkes
W2017-00798-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald E. Parish

The Defendant, Houston Thomas Wilkes, appeals the trial court’s denial of his motion to withdraw his guilty plea, arguing that trial counsel coerced him into entering the guilty plea and that the State withheld potentially exculpatory evidence, such that his plea was not knowing and voluntary. He further argues that these circumstances led to manifest injustice, and the trial court therefore abused its discretion in refusing to allow the withdrawal of his guilty plea. After review, we affirm the denial of the motion to withdraw his guilty plea.

Carroll County Court of Criminal Appeals 08/30/18