Court of Criminal Appeals Opinions

Format: 01/26/2015
Format: 01/26/2015
In RE: A-Action Bonding Company
M2013-01526-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert L. Jones, Jude Stella L. Hargrove, Judge Jim T. Hamilton, Judge Robert L. Holloway

This is an appeal by A-Action Bonding Company of Columbia (“A-Action”) of an order of the Maury County Circuit Court, sitting en banc, which suspended the bonding authority of the company, its principal, and one of its agents based on its finding that the agent solicited an inmate at the county jail, in violation of Tennessee Code Annotated section 40-11-126(6).  The appellant argues that the court improperly considered as evidence a cell phone recording of a videotaped conversation between the agent and the inmate when the original jail videotape had been destroyed and the cell phone recording was made by a competitor and contained an altered version of the original.  We agree.  We also agree that, without the improperly admitted recording, there was insufficient evidence that the agent solicited business in violation of the statute.  Accordingly, we reverse the judgment of the trial court and dismiss the motion to suspend the bonding authority of A-Action, its principal, and its agent.

Maury County Court of Criminal Appeals 10/15/14
State of Tennessee v. John Robert Quinton Jackson
M2013-02172-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Michael R. Jones

The record in this matter is very sparse.  Much of our understanding of its history comes from the decision of this court in the defendant’s direct appeal, State v. John Robert Q. Jackson, No. M2012-00511-CCA-R3-CD, 2013 WL 791621 (Tenn. Crim. App. Mar. 4, 2013).  As best we can understand, the defendant, John Robert Quinton Jackson, pled guilty in February 2009 to five counts of aggravated burglary, two counts of automobile burglary, one count of theft over $10,000, and one count of theft over $1000, receiving an effective sentence of six years in community corrections.  In September 2009, he was served with a violation warrant and subsequently pled guilty to an additional count of aggravated burglary, receiving a four-year sentence in community corrections, to be served concurrently with the six-year community corrections sentence reinstated by the court.  Later, he was served with another violation warrant, based upon his participation in a home invasion and aggravated robbery.  Pursuant to Tennessee Rule of Criminal Procedure  36.1, he filed a motion for correction of an illegal sentence, which the trial court dismissed.  He appeals that dismissal.  Based upon our review, we affirm the trial court’s dismissal of his motion.

Montgomery County Court of Criminal Appeals 10/15/14
State of Tennessee v. Cary Arnaz Harbin, III
M2013-02742-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Dee David Gay

The Defendant, Cary Arnaz Harbin, III, was charged with violating the sexual offender registration act by establishing his primary residence within one thousand feet of a licensed day care facility.  See Tenn. Code Ann. § 40-39-211(a).  The trial court dismissed the charge, finding that the Defendant, convicted in Michigan in 2008 of criminal sexual conduct in the third degree, did not meet the statutory definition of “sexual offender.”  The State appeals the order of dismissal, arguing that the record was insufficient for the trial court to make this determination.  Following our review of the record and applicable authorities, we conclude that the Defendant, an out-of-state sexual offender required to register in Michigan, is subject to the requirements of Tennessee sexual offender registration act upon sufficient contact with this State.  Therefore, we reverse the order of the trial court dismissing the indicted charge and remand the case for further proceedings consistent with this opinion.

Sumner County Court of Criminal Appeals 10/15/14
State of Tennessee v. Brian Oneal Elliott
M2014-00083-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Jude Cheryl A. Blackburn

The appellant, Brian Oneal Elliott, challenges the length of the twenty-five-year maximum sentence the trial court imposed for his conviction of second degree murder.  Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 10/15/14
State of Tennessee v. Lawrence Pierce
E2014-00262-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Carroll L. Ross

The Defendant, Lawrence Pierce, appeals the Bradley County Criminal Court’s order revoking his probation for his convictions for violating the sex offender registry law and flagrant nonsupport and ordering his effective eight-year sentence into execution. The Defendant contends that the trial court abused its discretion by revoking his probation on the sole ground that he failed to pay restitution. We reverse the judgment of the trial court and remand the case for the trial court to make additional findings of fact and conclusions of law.

Bradley County Court of Criminal Appeals 10/14/14
Jerry Lynn Driver v. State of Tennessee
M2014-00015-CCA-R3-CO
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Jerry Lynn Driver, appeals as of right from the Davidson County Criminal Court’s summary dismissal of his “motion to set aside guilty plea or in the alternative petition for a writ of error coram nobis or a petition for a writ of habeas corpus.”  The Petitioner contends that the Criminal Court erred in summarily dismissing his motion as being untimely filed.  Discerning no error, we affirm the judgment of the Criminal Court.

Davidson County Court of Criminal Appeals 10/14/14
Kenzo A. Quezergue v. State of Tennessee
M2014-00150-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl Blackburn

Petitioner, Kenzo A. Quezergue, was indicted in Davidson County for first degree felony murder and employing a firearm during the commission of a dangerous felony.  Petitioner pled guilty to the lesser included offense of second degree murder in exchange for a sentence of forty years, to be served at 100% as a violent offender.  Petitioner filed a timely petition for post-conviction relief alleging, inter alia, that he received ineffective assistance of counsel.  After a hearing, the post-conviction court denied relief, finding that Petitioner had not proven his claims by clear and convincing evidence.  Upon thorough review of the record, we agree.  The judgment of the post-conviction court is affirmed.

Davidson County Court of Criminal Appeals 10/14/14
Demario Thomas v. State of Tennessee
W2013-01818-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey Jr.

The petitioner, Demario Thomas, appeals the denial of his petition for post-conviction relief, arguing that his guilty plea was unknowingly and involuntarily entered without the effective assistance of counsel. After review, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 10/10/14
Sam E. Stevenson v. State of Tennessee
W2013-02656-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan Jr.

The petitioner, Sam E. Stevenson, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

Madison County Court of Criminal Appeals 10/10/14
Felton McNeal v. State of Tennessee
W2013-02014-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The petitioner, Felton McNeal, appeals the denial of his petition for post-conviction relief, arguing that his guilty pleas were unknowingly and involuntarily entered without the effective assistance of counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 10/10/14
State of Tennessee v. Paul Edward Martin, Jr.
W2013-02311-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Nathan B. Pride

The defendant, Paul Edward Martin, Jr., was convicted by a Chester County Circuit Court jury of carjacking and aggravated robbery, Class B felonies, and sentenced to terms of twenty years on each conviction, to be served consecutively as a Range II offender in the Tennessee Department of Correction. On appeal, he argues that the trial court imposed an excessive sentence. After review, we affirm the judgments of the trial court.

Chester County Court of Criminal Appeals 10/10/14
State of Tennessee v. Allen Craft and Cedric Mims
W2013-01822-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Paula Skahan

Defendants Allen Craft and Cedric Mims were convicted of first degree felony murder, especially aggravated robbery, attempted voluntary manslaughter, and employing a firearm during the commission of a dangerous felony. The trial court sentenced each defendant to life for the felony murder conviction, with concurrent sentences of twenty years for the especially aggravated robbery conviction and two years for the attempted voluntary manslaughter conviction. The trial court also dismissed the charges of employing a firearm during the commission of a dangerous felony. On appeal, the defendants challenge the sufficiency of the evidence and the trial court’s refusal to grant a mistrial. Upon our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 10/10/14
State of Tennessee v. Travis Grover Richardson
E2013-02250-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Jon Kerry Blackwood

Defendant, Travis Grover Richardson, was convicted by a Carter County jury of aggravated robbery, two counts of felony evading arrest, two counts of felony aggravated assault, criminal simulation, and felony reckless endangerment. Following a sentencing hearing, the trial court ordered Defendant to serve a total effective sentence of thirty years’ incarceration. In this direct appeal, Defendant contends: (1) that he was improperly convicted of felony reckless endangerment as a lesser-included offense of attempted second degree murder; (2) that his two convictions for felony evading arrest violated his right to be free from double jeopardy; (3) that the evidence was insufficient to support his conviction for aggravated robbery and both of his convictions for aggravated assault; and (4) that he was improperly sentenced as a career offender based, in part, on offenses he committed as a juvenile. Upon our thorough review of the record and applicable law, we reverse Defendant’s conviction of felony reckless endangerment and merge Defendant’s two convictions for felony evading arrest into a single conviction. We affirm the remaining judgments of the trial court and remand for correction of the judgment forms.

Carter County Court of Criminal Appeals 10/10/14
Craig U. Quevedo v. State of Tennessee
M2014-00028-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Michael R. Jones

The Petitioner, Craig U. Quevedo, appeals the denial of his petition for post-conviction relief.  In 2002, the petitioner pled guilty and nolo contendere to seventy-nine counts of various sex crimes involving his minor stepdaughter for which he received an effective sentence of ninety-two years in the Department of Correction. After an unsuccessful direct appeal, the petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel at the guilty plea and sentencing phases.  This court affirmed the post-conviction court’s judgment with respect to counsel’s performance at the guilty plea phase but remanded to the post-conviction court with directions to enter an order stating its findings of fact and conclusions of law with respect to the sentencing phase issues.  On remand, the post-conviction court again denied relief.  In this appeal from our limited remand, the petitioner alleges that he received ineffective assistance of counsel at the sentencing hearing.  Specifically, he contends that counsel was deficient in failing to introduce additional positive evidence about the petitioner, namely the details of his military service, his employment history, and his involvement in various community activities.  Following review of the record, we affirm the denial of post-conviction relief.
 

Montgomery County Court of Criminal Appeals 10/10/14
State of Tennessee v. Charles Newsom
M2014-00168-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Defendant, Charles Newsom, was convicted of aggravated burglary upon his best interest guilty plea.  See T.C.A. § 39-14-403 (2014).  As part of the plea agreement, he accepted a three-year, Range I sentence, with the question of judicial diversion and the manner of service to be determined by the trial court.  The trial court denied judicial diversion and imposed a split-confinement sentence of one year of confinement followed by two years of probation.  On appeal, he contends that the trial court erred in denying judicial diversion.  We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 10/10/14
State of Tennessee v. Kenneth Brown
W2013-00329-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Lee V. Coffee

Appellant, Kenneth Brown, was convicted of one count of first degree premeditated murder, twelve counts of criminal attempt to commit first degree murder, twelve counts of aggravated assault, one count of employment of a firearm during a dangerous felony, and one count of reckless endangerment. The trial court merged the attempted murder and aggravated assault convictions. He was sentenced to life imprisonment plus 308 years. On appeal, appellant challenges the sufficiency of the evidence supporting his murder and attempted murder convictions and argues that the trial court erred by denying his motion to suppress his confession. Following our careful review of the record, the applicable law, and the briefs of the parties, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 10/09/14
State of Tennessee v. Robert Brian King
M2013-02168-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Monte Watkins

Defendant, Robert Brian King, was convicted by a Davidson County jury of assault.  As a result, he was sentenced to eleven months and twenty-nine days in incarceration, to be served on supervised probation after the service of ten days in incarceration.  Defendant was also ordered to pay restitution to the victim.  After the denial of a motion for new trial, Defendant appeals, challenging the sufficiency of the evidence and the trial court’s decision to exclude testimony on the basis that it constituted hearsay.  After our review, we determine that the evidence was sufficient to support the assault conviction where the jury weighed the credibility of the State’s witnesses and accredited their testimony.  Further, we determine that the trial court erred in excluding testimony as hearsay when the statements were not offered to prove the truth of the matter asserted but to prove their effect on the hearer.  However, we determine the error was harmless.  Accordingly, the judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 10/09/14
State of Tennessee v. Jeffery Scott Hutchinson
M2013-02746-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Franklin Lee Russell

The Defendant, Jeffery Scott Hutchinson, was convicted by a Bedford County jury of one count of initiating a process intended to result in the manufacture of methamphetamine, one count of promoting the manufacture of methamphetamine, and two counts of simple possession of methamphetamine.  He was thereafter convicted by a separate Bedford County jury of failure to appear.  At a consolidated sentencing hearing, the trial court imposed an effective eighteen-year sentence for all of these convictions.  In this direct appeal, the Defendant argues that the evidence is insufficient to support a jury’s finding that he knowingly failed to appear and that the trial court erred in imposing consecutive sentencing.  Finding no error, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 10/09/14
Johnny Young v. State of Tennessee
M2013-02209-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Monte Watkins

The Petitioner, Johnny Young, contends that he received the ineffective assistance of counsel at trial – citing multiple bases supporting his contention – and on appeal – citing counsel’s failure to file a motion for new trial – and asks this court to either grant him a new trial or a delayed appeal. After reviewing the record and the applicable authorities, we conclude that counsel was ineffective for failing to file a motion for new trial and, therefore, grant the Petitioner a delayed appeal.

Davidson County Court of Criminal Appeals 10/09/14
State of Tennessee v. Quincy Maurice Deal
M2013-02315-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The defendant, Quincy Maurice Deal, pled guilty, in three different cases, to two counts of aggravated robbery, Class B felonies; aggravated kidnapping, a Class B felony; possession of cocaine in a school zone with intent to sell or deliver, a Class B felony; and felon in possession of a weapon, a Class E felony.  The trial court sentenced the defendant to an effective term of fourteen years, to be served consecutively to his sentences in previous convictions for which he was on probation.  On appeal, the defendant argues that the trial court imposed an excessive sentence.  After review, we affirm the sentences imposed by the trial court.

Davidson County Court of Criminal Appeals 10/09/14
State of Tennessee v. Narceus Cox
W2014-00056-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Paula Skahan

The Defendant, Narceus Cox, pleaded guilty to one count of unlawful possession of a controlled substance, Oxycodone, with intent to sell. The trial court denied the Defendant’s request for judicial diversion and sentenced him to a three-year sentence involving split confinement. The Defendant asserts that the trial court erred when it denied his application for judicial diversion. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 10/08/14
State of Tennessee v. Phalanda D. Falls
E2014-00350-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge R. Jerry Beck

Appellant, Phalanda D. Falls, entered a guilty plea to evading arrest, a Class D felony, and driving with a suspended license, a Class B misdemeanor, and received an effective sentence of four years. Following a hearing to determine her request for alternative sentencing, the trial court denied the motion and ordered appellant to serve her sentence in the Tennessee Department of Correction. This appeal follows. Upon our review of the record, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 10/08/14
State of Tennessee v. Joseph Scott Morrell
E2013-02431-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Stacy Street

The defendant, Joseph Scott Morrell, appeals his Washington County Criminal Court jury conviction of third offense driving under the influence (“DUI”), claiming that the evidence was insufficient to support his conviction, that the verdict of the jury was not unanimous, and that the trial court should have dismissed the indictment or declared a mistrial following the State’s improper commentary during closing argument. Discerning no error, we affirm.

Washington County Court of Criminal Appeals 10/07/14
State of Tennessee v. James Dean Wells
M2013-01145-CCA-R9-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James G. Martin, III

The defendant was indicted for driving under the influence of an intoxicant (“DUI”), DUI per se, simple possession, leaving the scene of an accident, and DUI (second offense) after his vehicle struck a utility pole and small building.  The defendant refused law enforcement’s request to test his blood in order to determine his blood alcohol content.  The defendant’s blood was taken pursuant to Tennessee Code Annotated section 55-10-406(f)(2) (2012) and without a warrant, despite his refusal to submit to testing.  The defendant moved to suppress evidence of his blood alcohol content, alleging that his Fourth Amendment rights had been violated and that Tennessee Code Annotated section 55-10-406(f)(2) was unconstitutional.  The trial court granted the motion to suppress, concluding that the statute was unconstitutional.  The State sought and was granted permission to appeal, arguing that the blood was taken under exigent circumstances and that the implied consent law functioned to satisfy the consent exception to the warrant requirement.  After a thorough review of the record, we conclude that the blood draw violated the defendant’s right to be free from unreasonable searches and seizures because it was not conducted pursuant to an exception to the warrant requirement, and we affirm the suppression of the evidence.  We determine that, although the blood draw was taken pursuant to the statute, the statute did not dispense with the warrant requirement and is therefore not unconstitutional as applied to the defendant.

Williamson County Court of Criminal Appeals 10/06/14
Vernon Motley v. State of Tennessee
W2013-01185-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Vernon Motley, appeals the Shelby County Criminal Court’s denial of postconviction relief from his conviction for first degree premeditated murder and his sentence of life imprisonment. On appeal, he argues that the State’s Brady violation rendered counsels’ assistance ineffective. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 10/03/14