Court of Criminal Appeals Opinions

Format: 02/13/2016
Format: 02/13/2016
State of Tennessee v. Gilberto Canales, Jr.
W2015-00359-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Clayburn Peeples

Defendant, Gilberto Canales, Jr., was indicted for one count of aggravated rape. After a jury trial, Defendant was convicted of the lesser-included offense of rape. On appeal, Defendant argues that the evidence is insufficient to support his conviction, that the trial court erred by admitting hearsay evidence, and that the prosecutor committed prosecutorial misconduct by making misleading statements and arguing improperly admitted evidence during closing argument. After a thorough review, we affirm the judgment of the trial court.

Gibson County Court of Criminal Appeals 11/19/15
Rodney Patterson v. State of Tennessee
M2015-00020-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Rodney Patterson, appeals as of right from the Davidson County Criminal Court’s dismissal of his petition for post-conviction relief.  The Petitioner contends that he received ineffective assistance from his trial counsel because (1) trial counsel failed to inform him that his conviction for vandalism of property valued at more than $500 but less than $1,000 was a felony rather than a misdemeanor; and (2) trial counsel failed to inform him that his sentence was to be served consecutively to his sentence for another offense.  Discerning no error, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 11/19/15
State of Tennessee v. Kendra Mahan
M2014-02534-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David A. Patterson

The Defendant, Kendra Mahan, appeals as of right from the White County Criminal Court’s revocation of her six-year probationary sentence and order of total  incarceration relative to her guilty-pleaded convictions for attempted introduction of contraband into a penal institution, aggravated burglary, and theft of property valued over $500.00 but less than $1,000.00.  The Defendant contends that she was not afforded due process because the trial court failed to make sufficient findings of fact.  The Defendant also submits that the evidence presented at the revocation hearing was insufficient to establish that a violation of the conditions of her probation—either failure to pay court costs and restitution or a failed drug test—occurred.  Following our review, we affirm the trial court’s revocation of the Defendant’s probationary sentence, but we remand for entry of an amended revocation order reflecting credit for time served and for correction of the “original sentence length.”

White County Court of Criminal Appeals 11/19/15
James Anthony Burgess v. State of Tennessee
M2015-00584-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge David A. Patterson

Petitioner, James Anthony Burgess, appeals the denial of his petition for writ of error coram nobis.  Because Petitioner has not identified any newly discovered evidence, we affirm the decision of the coram nobis court.

Putnam County Court of Criminal Appeals 11/19/15
Antonio Byrd v. State of Tennessee
W2015-00228-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Glenn Wright

The petitioner, Antonio Byrd, appeals from the Shelby County Criminal Court’s denial of his motion to reopen his 1999 petition for post-conviction relief. Because the petitioner failed to comply with the statutory requirements for appealing the denial of a motion to reopen a post-conviction petition, we are without jurisdiction to hear the appeal, and the appeal is dismissed.

Shelby County Court of Criminal Appeals 11/18/15
Jonathan Davis v. James M. Holloway, Warden
W2015-00650-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Jonathan Davis, appeals the summary dismissal of his second petition for writ of habeas corpus, which petition challenged his Maury County Circuit Court jury conviction of attempted aggravated robbery. Discerning no error, we affirm.

Lauderdale County Court of Criminal Appeals 11/18/15
State of Tennessee v. David Jerome Powell
W2015-00366-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald H. Allen

The Defendant-Appellant, David Jerome Powell, entered an open guilty plea to theft of property valued at more than $500 but less than $1000, driving on a cancelled, suspended or revoked license, and driving on a cancelled, suspended or revoked license, third offense, with the trial court to determine the length and manner of service of his sentence. See T.C.A. §§ 39-14-103, 55-50-504. Prior to the sentencing hearing, Powell filed a motion to withdraw his guilty plea, alleging that he had a constitutional right to a jury trial. The trial court denied the motion, finding no “just and fair reason to allow him to withdraw the plea.” At the sentencing hearing a few days later, the trial court merged the conviction for driving on a cancelled, suspended or revoked license with the conviction for driving on a cancelled, suspended or revoked license, third offense. The court then sentenced Powell to consecutive sentences of six years with a release eligibility of sixty percent for the conviction for theft and eleven months and twenty-nine days for the conviction for driving on a revoked license, third offense, and ordered these sentences served consecutively to sentences Powell had received for three other convictions in other courts. Thereafter, Powell appealed the trial court's denial of his motion to withdraw his guilty plea. Upon review, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 11/18/15
State of Tennessee v. Andrew Brian Santora
E2015-00177-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Don W. Poole

The defendant, Andrew Brian Santora, appeals the trial court’s revocation of his probation. He argues that the evidence is insufficient to support the revocation and that the trial court should have imposed an alternative sentence. Following our review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 11/17/15
Brandon S. Massengill v. State of Tennessee
E2015-00501-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge E. Shayne Sexton

The Petitioner, Brandon S. Massengill, appeals the Claiborne County Criminal Court’s dismissal of his petition for post-conviction relief from his conviction for resisting arrest or stop and his six-month suspended sentence. The Petitioner contends that the post-conviction court erred by dismissing his petition on the ground that he was not in custody for purposes of the Post-Conviction Procedure Act. We reverse the judgment of the post-conviction court and remand the case for an evidentiary hearing on the merits of the petition.

Claiborne County Court of Criminal Appeals 11/17/15
State of Tennessee v. Brandon D. Forbes
M2014-02492-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Mark J. Fishburn

Aggrieved of his Davidson County Criminal Court jury convictions of two counts of aggravated assault, the defendant, Brandon D. Forbes, appeals, challenging the admission of his prior conviction of aggravated robbery for impeachment purposes, the admission of certain testimony from a State’s witness, and the sufficiency of the convicting evidence.  Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 11/17/15
State of Tennessee v. Austin Wells
W2014-02448-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Glenn Ivy Wright

Defendant, Austin Wells, appeals his conviction for driving under the influence (“DUI”) and reckless driving, arguing that his warrantless arrest for the offenses was not supported by probable cause and that there is insufficient evidence to support his convictions. We conclude that Defendant has waived both of these issues and that he is not entitled to plain error relief. Accordingly, the judgments of the trial court are affirmed.

Shelby County Court of Criminal Appeals 11/16/15
State of Tennessee v. Jonathan T. Deal - concurring
E2015-00342-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Andrew M. Freiberg

I concur with the results of the majority, but I believe the trial court properly dismissed Defendant’s 36.1 request for exactly the right reason—Defendant’s sentence has long since expired. I respectfully disagree that a motion to correct an illegal sentence pursued via Rule 36.1 may not be dismissed soley because the sentence has been served and has expired. See Philander Butler v. State, W2014-01366-CCA-R3-CO, 2015 WL 4240256, at *3 (Tenn. Crim. App. July 14, 2015), perm. app. filed. I would have dissented from the orginal holding remanding the matter back to the trial court after the original trial judge summarily dismissed Defendant’s motion without conducting a hearing.1 See State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014 WL 2802910 (Tenn. Crim. App. June 17, 2014), no perm. app. filed.

Polk County Court of Criminal Appeals 11/13/15
State of Tennessee v. Travis Davison
W2015-00448-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge John Wheeler Campbell

The Petitioner, Travis Davison, appeals the trial court’s denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. 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.

Shelby County Court of Criminal Appeals 11/13/15
State of Tennessee v. Jonathan T. Deal
E2015-00342-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Andrew M. Freiberg

The defendant, Jonathan T. Deal, appeals the dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct his illegal sentence. In this appeal, the defendant asserts that the trial court erred by declaring his motion moot because his sentence had been served and had expired and that the court erred by concluding that the illegal sentence alignment was not a bargained-for element of his plea agreement. Because, under the circumstances of this case, Rule 36.1 cannot avail the defendant of meaningful relief, we affirm the judgment of the trial court declaring the motion moot.

Polk County Court of Criminal Appeals 11/13/15
James Drew Freeman v. State of Tennessee
M2014-02141-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Leon C. Burns, Jr.

The Petitioner, James Drew Freeman, appeals from the denial of post-conviction relief by the Criminal Court for White County.  He was convicted of second degree murder of his mother and sentenced to seventeen years’ imprisonment.  On appeal, the Petitioner argues that he received ineffective assistance of counsel because trial counsel failed to locate and call a witness.  Upon review, we affirm the judgment of the post-conviction court.

White County Court of Criminal Appeals 11/13/15
State of Tennessee v. Tapo T. Tabb and Douglas Ingram
M2014-00617-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Michael Binkley

The Defendant-Appellants, Tapo T. Tabb and Douglas Ingram, were convicted by a Williamson County jury of burglary and theft of property valued over $60,000.  The trial court sentenced the Defendants to 12 years’ confinement for their burglary convictions and 25 years’ confinement for their theft of property convictions, to be served consecutively for effective sentences of 37 years’ confinement.  On appeal, the Defendants argue that the trial court erred by (1) denying their motion to suppress evidence obtained pursuant to search warrants; (2) failing to instruct the jury on facilitation as a lesser-included offense of burglary; and (3) sentencing the Defendants to 37 years’ confinement.  In addition, Defendant Ingram argues that his right to a speedy trial was violated.  Upon our review, we affirm the judgments of the trial court.

Williamson County Court of Criminal Appeals 11/13/15
State of Tennessee v. Tracy Eugene Harris
E2014-01857-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Don W. Poole

The Petitioner, Tracy Eugene Harris, appeals from the Hamilton County Criminal Court's order denying his motion for pretrial jail credit pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. On appeal, the Petitioner argues that the trial court erred by overruling his motion for pretrial jail credit. The State responds that the Petitioner's argument is waived for failure to file a timely notice of appeal and that the trial court properly denied the Petitioner's motion. Following our review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 11/13/15
Antonious Jamal Brown v. State of Tennessee
W2014-01820-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn L. Peeples

The petitioner, Antonious Jamal Brown, appeals the denial of his petition for post-conviction relief from his first degree murder and aggravated assault convictions, arguing that he received ineffective assistance of counsel at trial and on appeal. Following our review, we affirm the judgment of the post-conviction court denying the petition.

Gibson County Court of Criminal Appeals 11/12/15
State of Tennessee v. Aaron D. Ostine
M2013-00467-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert E. Burch

A Cheatham County jury convicted the Defendant, Aaron D. Ostine, of first degree premeditated murder, first degree felony murder, and aggravated robbery.  The trial court merged the two murder convictions and imposed a life sentence.  The court then sentenced the Defendant to twelve years for the aggravated robbery conviction.  On appeal, the Defendant contends that: (1) the evidence is insufficient to support his convictions; (2) the trial court erred when it denied a motion to suppress his statements to police; and (3) the State engaged in prosecutorial misconduct during closing argument.  After a thorough review of the record and the applicable law, this Court affirmed the trial court’s judgment.  See State v. Aaron D. Ostine, No. M2013-00467-CCA-R3-CD, 2014 WL 2442988 (Tenn. Crim. App., at Nashville, May 28, 2014).  The Defendant filed a Rule 11 application, pursuant to the Tennessee Rules of Appellate Procedure, to the Tennessee Supreme Court.  Our Supreme Court granted the application and remanded the case to this Court for reconsideration in light of State v. Jackson, 444 S.W.3d 554 (Tenn. 2014).  After considering the facts and circumstances of this case as compared to those in Jackson, we again affirm the trial court’s judgment.

Cheatham County Court of Criminal Appeals 11/12/15
Twain Demario Vaughn v. State of Tennessee
M2014-01924-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County jury convicted the Petitioner, Twain Demario Vaughn, of one count of reckless homicide, one count of first-degree felony murder, one count of aggravated robbery, and two counts of attempted aggravated robbery.  The trial court merged the reckless homicide conviction with the felony murder conviction and sentenced the Petitioner to an effective sentence of life in prison.  This Court affirmed his convictions and sentence on appeal.  State v. Twain Demario Vaughn, No. M2006-01659-CCA-R3-CD, 2008 WL 110094, at *1 (Tenn. Crim. App., at Nashville, Jan. 9, 2008), no Tenn. R. App. P. 11 application filed.  The Petitioner filed a petition for post-conviction relief, alleging that he had received the ineffective assistance of counsel.  The post-conviction court dismissed the petition as time barred.  It then reversed its ruling, appointed counsel, and held a hearing after which it dismissed the Petitioner’s petition.  On appeal, the Petitioner contends that the post-conviction court erred because his trial counsel was ineffective for failing to: (1) introduce the victim’s toxicology report; (2) request more time to review videotaped statements that called into question the eye witnesses’ credibility; and (3) have the Petitioner’s competency evaluated.  After review, we conclude that the Petitioner’s petition was not filed within the statute of limitations and that he has not shown a statutory or due process ground for the tolling of the statute of limitations.  As such, we dismiss the petition as time barred.

Davidson County Court of Criminal Appeals 11/12/15
State of Tennessee v. Adrian Antonio Jones
M2015-00307-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Thomas W. Graham

The Defendant, Adrian Antonio Jones, pleaded guilty to several drug and other offenses occurring between 1992 and 1994.  According to plea agreements, he was granted concurrent sentencing.  In 2014, the Defendant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his concurrent sentencing for two of his pleas was illegal and that, since any subsequent sentencing was based upon his illegal sentence that those sentences are also “illegal.”  The trial court agreed that one of his convictions was statutorily required to run consecutively, and it granted his Rule 36.1 relief as to case number 8775.  The trial court held, however, that the other sentences were not illegal as they did not violate any statute.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Franklin County Court of Criminal Appeals 11/12/15
State of Tennessee v. Felix Hall
W2014-02199-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge James C. Beasley, Jr.

Appellant, Felix Hall, was convicted of theft of property valued at $10,000 or more but less than $60,000; burglary of a building other than a habitation; and theft of property valued at $500 or less. The trial court sentenced him to an effective term of twenty-seven years. On appeal, appellant contends that the trial court should have granted a mistrial during the State's rebuttal closing argument and that the evidence was insufficient to support his convictions. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 11/10/15
William Ford v. State of Tennessee
W2014-02105-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Glenn Ivy Wright

Petitioner, William Ford, appeals the denial of his petition for post-conviction relief from his conviction for first degree murder. Petitioner argues that he received ineffective assistance of counsel and that the trial court erred when it denied his motion for a continuance in order to be able to retain private counsel. Upon our review of the record, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/10/15
State of Tennessee v. Randy Cary
W2014-01336-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Donald E. Parish

A Carroll County Criminal Court Jury convicted the appellant, Randy Cary, of especially aggravated kidnapping, a Class A felony, aggravated rape, a Class A felony, aggravated assault, a Class D felony, and evading arrest, a Class A misdemeanor. After a sentencing hearing, the trial court merged the aggravated assault conviction into the aggravated rape conviction and sentenced the appellant as a Range III, career offender to an effective sentence of 120 years to be served at 100%. On appeal, the appellant claims that the trial court erred by denying a motion in which he requested that private counsel be allowed to assist with his trial, that the victim's injuries did not qualify as “serious bodily injury,” and that his effective sentence is excessive. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

Carroll County Court of Criminal Appeals 11/10/15
John Ivory v. State of Tennessee
W2015-00636-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Clayburn L. Peeples

Following the apparent denial of his petition for post-conviction relief, the Petitioner, John Ivory, filed a pro se motion to reconsider the denial of relief, which the post-conviction court denied without a hearing. On appeal, the Petitioner argues that the trial court erred in denying his motion to reconsider the denial of post-conviction relief. Because the Petitioner does not have an appeal as of right from the denial of such motion, we dismiss the appeal.

Gibson County Court of Criminal Appeals 11/09/15