Court of Criminal Appeals Opinions

Format: 04/23/2017
Format: 04/23/2017
State of Tennessee v. Mark Brian Dobson a/k/a Mark B. Martin
M2015-00818-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County Criminal Court Jury convicted the Appellant, Mark Brian Dobson, of five counts of especially aggravated kidnapping, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony.  After a sentencing hearing, he received an effective seventy-year sentence.  On appeal, the Appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court improperly denied his motion for a continuance, (3) the trial court erred by admitting into evidence a recorded telephone call in which his mother mentioned a stolen firearm, (4) the indictment for the charge of employing a firearm during the commission of a dangerous felony was defective for failing to name the underlying dangerous felony, (5) the trial court improperly instructed the jury on employing a firearm during the commission of a dangerous felony, and (6) his effective sentence is excessive.  Based upon the record and the parties’ briefs, we conclude that the Appellant’s sentence for employing a firearm during the commission of a dangerous felony in count eleven must be modified and remand the case to the trial court for correction of that judgment and to correct a clerical error on the judgment for count twelve.  The judgments of the trial court are affirmed in all other respects.

Davidson County Court of Criminal Appeals 12/13/16
State of Tennessee v. Hayden Daniel Rutherford
M2016-00014-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Thomas W. Graham

The defendant, Hayden Daniel Rutherford, appeals his Sequatchie County Circuit Court guilty-pleaded conviction of robbery, claiming that the trial court erred by ordering that he serve his six-year sentence in confinement.  Discerning no error, we affirm.

Sequatchie County Court of Criminal Appeals 12/13/16
In Re: A-River City Bail Bond, Inc.
W2015-01578-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Lee V. Coffee

The appellant, A-River City Bail Bond, Inc., appeals its suspension from writing bonds in the Thirtieth Judicial District due to its failure to comply with the local rules. The appellant argues that a local rule requiring the posting of at least $75,000 in cash or certificate of deposit with the Criminal Court Clerk does not apply to it and that the trial court failed to provide it with procedural due process when suspending its ability to write bonds. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/12/16
Jimmy Newell v. Tamara Ford, Warden
W2016-00941-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge H. Walker, III

The Petitioner, Jimmy Newell, appeals the dismissal of his habeas corpus petition in which he challenged the legality of his two convictions for theft of property between $1,000 and $10,000 and his effective four-year sentence concurrently and with parole eligibility after service of thirty percent of his sentence. After a thorough review of the record, we conclude that the petition was properly dismissed, and we affirm the judgment of the habeas corpus court.

Hardeman County Court of Criminal Appeals 12/12/16
Heather McMurry v. State of Tennessee
E2016-00158-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Heather McMurry, appeals the post-conviction court's denial of her petition for post-conviction relief from her convictions of numerous drug offenses within 1,000 feet of a school zone and resulting effective twelve-year sentence with a mandatory eight years to be served in confinement. On appeal, the Petitioner contends that she received the ineffective assistance of trial counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 12/12/16
Rodney Glover v. State of Tennessee
M2016-00619-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge William R. Goodman, III

The Petitioner, Rodney Glover, was convicted of conspiracy to commit aggravated burglary, aggravated burglary, conspiracy to commit theft of property over $10,000, aggravated robbery, aggravated kidnapping, and theft of property under $500 and was sentenced to fifty years of incarceration to be served at 100%. This Court affirmed the judgments and sentence on appeal. State v. Rodney Glover, No. M2011-00854-CCA-R3-CD, 2012 WL 1071716, at *1 (Tenn. Crim. App., at Nashville, Mar. 28, 2012), no perm. app. filed. In 2013, the Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. We affirm the post-conviction court’s judgment.

Montgomery County Court of Criminal Appeals 12/12/16
State of Tennessee v. Candace Renee Bennett
M2016-00287-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth Norman

The Defendant, Candace Renee Bennett, pleaded guilty to attempted aggravated child neglect in exchange for an agreed eight-year sentence. The trial court ordered that the Defendant serve her sentence on probation and that her sentence run concurrently with a sentence in another case. The Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 contending that her sentence was illegal. She asked to withdraw her guilty plea and have the charges dismissed. The trial court denied her motion. On appeal, the Defendant contends that her sentence is illegal because it is not authorized by, and directly contravenes the criminal responsibility statute. After review, we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 12/12/16
Martrell Holloway v. State of Tennessee
W2015-01402-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Robert Carter, Jr.

Petitioner, Martrell Holloway, appeals the post-conviction court’s denial of post-conviction relief following an evidentiary hearing. The petition challenged Petitioner’s convictions for two counts of especially aggravated kidnapping, three counts of aggravated robbery, and one count of especially aggravated robbery. The convictions resulted from guilty pleas pursuant to a negotiated plea agreement with the Shelby County District Attorney’s Office which was approved by the trial  court for a total sentence of 18 years. After review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 12/09/16
Sheddrick Harris v. State of Tennessee
E2016-01573-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Stacy L. Street

The Petitioner, Sheddrick Harris, appeals the Johnson County Criminal Court’s summary dismissal of his petition for a writ of habeas corpus from his 2010 first degree murder and especially aggravated robbery convictions and his effective sentence of life without the possibility of parole plus sixty years. The Petitioner contends that the habeas corpus court erred by denying relief because the trial court judge was without jurisdiction to preside over his trial after signing the search warrant executed by the police. We affirm the judgment of the habeas corpus court.

Johnson County Court of Criminal Appeals 12/09/16
State of Tennessee v. Jeffrey Odom
M2015-02040-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge David M. Bragg

The Defendant, Jeffrey Odom, appeals the trial court’s dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 due to the Defendant’s failure to appear at the scheduled hearing.  Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.

Rutherford County Court of Criminal Appeals 12/09/16
State of Tennessee v. Tony Ladd Meeks
M2016-00285-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Thomas W. Graham

Defendant, Tony Ladd Meeks, is appealing the trial court’s order dismissing his motion to correct an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

Grundy County Court of Criminal Appeals 12/09/16
State of Tennessee v. Leo H. Odom
M2016-00523-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steve R. Dozier

Defendant, Leo H. Odom, is appealing the trial court’s denial of his motion to correct an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

Davidson County Court of Criminal Appeals 12/09/16
Douglas Marshall Mathis v. Bruce Westbrooks, Warden
M2016-01348-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Amanda J. McClendon

Petitioner, Douglas Marshall Mathis, appeals the summary dismissal of his third petition for habeas corpus relief.  Because Petitioner’s claims have been previously litigated and are not cognizable in a habeas corpus proceeding, we affirm the summary dismissal of the petition for habeas corpus relief.

Davidson County Court of Criminal Appeals 12/07/16
James Ray Jones, Jr. v. State of Tennessee
M2016-00922-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

The Petitioner, James Ray Jones, Jr., pleaded guilty to possession of over seventy pounds of marijuana in a drug-free school zone and received a sentence of twenty-five years in the Department of Correction.  The Petitioner filed a post-conviction petition, and the post-conviction court denied relief following a hearing.  On appeal, the Petitioner maintains that his guilty plea was not voluntary because the State coerced the Petitioner into accepting the offer by threatening to prosecute his brother.  After review, we affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 12/07/16
State of Tennessee v. Leopold Mpawinayo
M2015-00778-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

After a bench trial, the trial court found the Defendant, Leopold Mpawinayo, guilty of two counts of violating the habitual motor vehicle offender law and sentenced him to three years for each conviction, ordering that the sentences be served consecutively and on probation.  The Defendant’s probation officer filed an affidavit asserting that the Defendant had violated his probation by being arrested for aggravated assault with a deadly weapon and by failing to pay his probation fees and court costs.  The trial court held a hearing and found that the Defendant had violated his probation.  The trial court ordered intensive probation with GPS monitoring.  Shortly thereafter, police arrested the Defendant for four counts of aggravated assault.  The trial court held a hearing and found that the Defendant had again violated his probation.  The trial court revoked the Defendant’s probation and sentenced him to serve one year, at 100%, followed by a new six-year period of intensive supervised probation, with additional requirements.  On appeal, the Defendant contends that the trial court erred when it revoked his probation and when it added additional conditions to his probation.  After review, we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 12/07/16
State of Tennessee v. Brandon Depriest Fuller, Jr.
W2016-00456-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The defendant, Brandon Depriest Fuller, Jr., was convicted of reckless aggravated assault, a Class D felony. The trial court denied his request for judicial diversion and imposed a sentence of three years in the Department of Correction. On appeal, he argues that the trial court erred in denying judicial diversion and imposing a sentence of full confinement. After review, we affirm the judgment of the trial court denying the defendant's request for judicial diversion and imposition of a sentence of confinement.

Madison County Court of Criminal Appeals 12/07/16
State of Tennessee v. Tristan Delandis Grant
W2016-000941-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, Tristan Delandis Grant, was convicted by a Tipton County Circuit Court jury of aggravated robbery, a Class B felony, and theft under $500, a Class A misdemeanor. The trial court merged the theft conviction into the aggravated robbery conviction and sentenced the defendant to eight years in the Department of Correction. On appeal, the defendant challenges the sufficiency of the convicting evidence. After review, we affirm the judgment of the trial court.

Tipton County Court of Criminal Appeals 12/07/16
State of Tennessee v. Kevin Patterson aka John O'Keefe Varner aka John O'Keefe Kitchen-Concurring in part and dissenting in part
M2015-02375-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Walter C. Kurtz

I agree with the majority opinion’s conclusions with respect to the issues raised by Defendant in his direct appeal.  I respectfully disagree with the conclusion reached by the majority as it relates to section V of the opinion.  I am unable to agree with the statement that the trial court committed an error that breached a clear and unequivocal rule of law in sentencing Defendant to life without the possibility of parole pursuant to Tennessee Code Annotated section 40-35-120.

Coffee County Court of Criminal Appeals 12/07/16
State of Tennessee v. Kevin Patterson aka John O'Keefe Varner aka John O'Keefe Kitchen-Concurring
M2015-02375-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Walter Kurtz

I concur with the lead opinion.  I write separately because I am sympathetic to the common sense approach that Judge Easter uses in the separate opinion (dissenting in part) to determine that the pre-trial notice substantially complied with the requirements of Tennessee Code Annotated section 40-35-120.  After all, the violent nature of the prior offenses, second degree murder and facilitation of second degree murder, should be obvious, and who knows better than the Defendant that there were separate periods of incarceration, even if the Defendant does not know the dates of those periods.  An argument could also be made that a reasonable statutory interpretation of Tennessee Code Annotated section 40-35-120(i)(2) is that “shall” is mandatory as it relates to “[t]he district attorney general[’s] fil[ing] a statement with the court,” but “shall” is “merely directory” as it relates to “set[ting] forth the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses.”  See Tenn. Code Ann. § 40-35-120(i)(2); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012).  In Myers v. AMISUB (SFH), Inc., our supreme court stated: “To determine whether the use of the word ‘shall’ in a statute is mandatory or merely directory, we look to see ‘whether the prescribed mode of action is of the essence of the thing to be accomplished.’”  Id. (citing 3 Norman J. Singer & J.D. Singer, Statutes and Statutory Construction § 57:2 (7th ed. 2008)); see alsoHoldredge v. City of Cleveland, 218 Tenn. 239, 402 S.W.2d 709, 713 (1966) (“[A] provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute . . . shows that the legislature intended a compliance with such provision to be essential to the validity of the act . . . , the statute must be regarded as mandatory.”).  Arguably, the essence to be accomplished by section 40-35-120(i)(2) is to place a defendant on notice that the state intends to seek to have him found to be a repeat violent offender and thereby face a sentence of life without possibility of parole.  If this statement is correct, then the other requirements are “merely directory” and substantial compliance should be sufficient.

Coffee County Court of Criminal Appeals 12/07/16
State of Tennessee v. Kevin Patterson aka John O'Keefe Varner aka John O'Keefe Kitchen
M2015-02375-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: M2015-02375-CCA-R3-CD

The defendant, Kevin Patterson aka John O’Keefe Varner aka John O’Keefe Kitchen, appeals his Coffee County Circuit Court jury convictions of attempted second degree murder, aggravated assault, and possession of a firearm by a convicted felon, claiming that the trial court erred by refusing to sequester the jury, that the trial court should not have seated potential jurors who had served on the petit jury in a recent criminal trial, that the prosecutor’s closing argument was improper, and that the evidence was insufficient to support his conviction of attempted second degree murder.  Although we detect no error with regard to the defendant’s convictions, we find that the defendant’s sentence of life without the possibility of parole constitutes plain error because the State failed to comply with the notice requirements of Code section 40-35-120.  Accordingly, we affirm all of the defendant’s convictions as well as the five-year sentences imposed for the defendant’s convictions of aggravated assault and possession of a firearm by a convicted felon.  We reverse the trial court’s finding that the defendant was a repeat violent offender, vacate the sentence of life without the possibility of parole, and remand the case for resentencing within the appropriate sentencing range on the defendant’s conviction of attempted second degree murder.

Coffee County Court of Criminal Appeals 12/07/16
State of Tennessee v. Rodney Earl Jones
M2015-01373-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County jury convicted the Defendant, Rodney Earl Jones, of first degree felony murder and especially aggravated robbery. The trial court sentenced him to life for the first degree murder conviction and to twenty years for the especially aggravated robbery conviction, ordering the sentences to be served consecutively. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion for severance; (2) the trial court erred when it failed to instruct the jury about his co-defendant’s out of court statements; and (3) the evidence is insufficient to sustain his convictions. After review, we affirm the Defendant’s convictions.

Davidson County Court of Criminal Appeals 12/06/16
Gerald Collins v. State of Tennessee
W2016-00085-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Clayburn Peeples

The Petitioner, Gerald Collins, appeals from the denial of post-conviction relief by the Circuit Court for Gibson County. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that his guilty plea was involuntary. Upon review, we affirm the judgment of the post-conviction court.

Gibson County Court of Criminal Appeals 12/06/16
State of Tennessee v. Michael Halliburton
W2015-02157-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Robert Carter, Jr.

A Shelby County jury convicted the defendant, Michael Halliburton, as charged of one count of attempted first degree premeditated murder, two counts of aggravated assault, and one count of domestic assault. After imposing a sentence, the trial court granted the defendant's motion for a new trial and entered an order recusing itself from presiding over the new trial. Thereafter, the State filed an application for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, which this court granted. On remand, the defendant was given a new sentencing hearing and a hearing on his motion for new trial. The successor trial court, serving as thirteenth juror, approved the jury's verdict and merged the defendant's convictions for aggravated assault and domestic assault with his attempted first degree murder conviction before imposing a sentence of twenty-one years. The successor court then denied the defendant's motion for new trial. On appeal, the defendant argues: (1) the evidence is insufficient to sustain his convictions because he was insane at the time he committed the offenses or, alternatively, was incapable of forming the requisite culpable mental states for the offenses; (2) the trial court abused its discretion in admitting several items of evidence; (3) the trial court abused its discretion in granting the State's motion in limine and excluding the testimony of two defense witnesses; and (4) the trial court erred in denying his motion for a mistrial on the basis that the rule of sequestration was violated. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 12/06/16
State of Tennessee v. Harold Allen Vaughn
W2016-00131-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald H. Allen

The Defendant, Harold Allen Vaughn, and his co-defendants, were indicted by a Madison County Grand Jury for attempted first degree murder, aggravated assault, especially aggravated kidnapping, and especially aggravated robbery. Following a jury trial, the Defendant was convicted of attempted first degree murder resulting in serious bodily injury, aggravated assault, and especially aggravated robbery. The trial court merged the aggravated assault conviction into the attempted first degree murder conviction and sentenced the Defendant to an effective sentence of twenty-five years to be served in the Tennessee Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his convictions and that the trial court erred in failing to instruct the jury that his co-defendant was an accomplice as a matter of law. Upon review, we affirm the judgment of the trial court but remand for entry of a judgment form as to count two reflecting that the Defendant‟s aggravated assault conviction was merged with count one.

Madison County Court of Criminal Appeals 12/06/16
State of Tennessee v. Charles Travis Maples
E2016-00589-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven W. Sword

The defendant, Charles Travis Maples, appeals his Knox County Criminal Court jury convictions of three counts of the sale of cocaine in a drug-free school zone, arguing that the evidence was insufficient to support his convictions. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 12/05/16