Court of Criminal Appeals Opinions

Format: 03/25/2017
Format: 03/25/2017
Marcus Thomas v. State of Tennessee
W2015-02499-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James M. Lammey

The Petitioner, Marcus Thomas, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and entered an unknowing and involuntary guilty plea. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/07/16
Brian Gauldin v. State of Tennessee
W2016-00607-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Brian Gauldin, appeals from the denial of post-conviction relief by the Circuit Court for Dyer County. He was convicted of the sale of .5 grams or more of cocaine in a drug free zone and the sale of cocaine under .5 grams in a drug free zone and received an effective sentence of twenty years' incarceration. On appeal, the Petitioner argues that he received ineffective assistance of counsel based on trial counsel's failure to (1) present current photos of the location where the drug sales occurred to demonstrate that it was a “vacant lot” rather than a city park; (2) present an expert witness to rebut the State's explanation of a change in drug amounts listed in its reports between his first and second trials; (3) advise him that he would be sentenced as a Range III, Persistent Offender; and (4) challenge the racial composition of the jury. Upon review, we affirm the judgment of the post-conviction court.

Dyer County Court of Criminal Appeals 11/07/16
Marcus T. Johnson v. State of Tennessee
E2016-00642-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steven Wayne Sword

Marcus T. Johnson (“the Defendant”) pled guilty to sale of .5 grams or more of cocaine, a Class B felony. The Defendant was sentenced as a Range I standard offender to ten years of probation. The Defendant now appeals from the denial of his fourth Rule 36.1 motion. After reviewing the record and applicable law, we affirm.

Knox County Court of Criminal Appeals 11/07/16
State of Tennessee v. Timmy Thompson
E2016-00749-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge David Reed Duggan
The defendant, Timmy Thompson, received a six-year sentence to be served on Community Corrections after being convicted of criminal simulation involving a value over $10,000. After holding a hearing, the trial court determined the defendant materially violated the terms of his alternative sentence and ordered him to serve the remainder of his sentence in confinement. On appeal, the defendant argues that the trial court abused its discretion by refusing to impose another alternative sentence. We affirm the judgment of the trial court.
 
Blount County Court of Criminal Appeals 11/07/16
William Reynolds v. Cherry Lindamood, Warden
M2016-01312-CCA-R3-HC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Robert L. Jones

William Reynolds (“the Petitioner”) was indicted for sale of cocaine in an amount less than .5 grams in a school zone, a Class B felony.  He entered a negotiated plea to sale of .5 grams or more of cocaine, a Class B felony, and was sentenced to twelve years’ incarceration as a career offender with release eligibility after service of 60% of the sentence.  The Petitioner filed petition for writ of habeas corpus challenging his conviction which the habeas corpus court denied.  On appeal, the Petitioner claims that his judgment of conviction is void because the indictment was insufficient to support his plea to an increased amount of cocaine and that the habeas corpus court erred in summarily dismissing his Petition for Writ of Habeas Corpus.  After a review of the record and applicable law, we affirm the judgment of the habeas corpus court.

Wayne County Court of Criminal Appeals 11/07/16
State of Tennessee v. Luis Castanon
M2016-00797-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Seth W. Norman

Luis Castanon, the Petitioner, appeals the summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence.  Because the motion failed to state a colorable claim, we affirm the trial court’s summary denial of the motion.

Davidson County Court of Criminal Appeals 11/07/16
State of Tennessee v. Thomas L. Dowlen
M2015-01582-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John H. Gasaway, III

A jury convicted the defendant, Thomas L. Dowlen, of first degree (premeditated) murder. On appeal, the defendant asserts that the evidence is insufficient to support the verdict of guilt and that he is entitled to a new trial based on the prosecutor’s remarks during opening argument. After a thorough review of the record, we affirm the judgment of the trial court.

Robertson County Court of Criminal Appeals 11/07/16
State of Tennessee - Javonta Marquis Perkins - Concurring in part and dissenting in part
M2015-01025-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Randall Wyatt, Jr.

I agree with most of the conclusions set forth in the majority opinion.  I write separately, however, to respectfully dissent from the majority’s conclusion that Sergeant Sanderson qualified as an endangered third party, which elevated the evading arrest to a Class D felony.

Davidson County Court of Criminal Appeals 11/07/16
State of Tennessee v. Javonta Marquis Perkins
M2015-01025-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Randall Wyatt, Jr.

This is Defendant’s, Javonta Marquis Perkins, direct appeal from his conviction of evading arrest, a Class D felony.  On appeal, he argues that the evidence is insufficient to support his conviction and that the trial court erred by giving a jury instruction on criminal responsibility.  We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 11/07/16
State of Tennessee v. Bryant Jackson Harris - concurring
E2015-01724-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John F. Dugger, Jr.

I write separately to express my opinion that the trial court erred in its attempted curative instruction to the jury during cross-examination of Defendant. As noted in the majority opinion in its analysis of the mistrial issue, the prosecutor asked Defendant, “And it’s true . . . that you never told any police officer that came to the scene any of this, right?” Defendant objected on the basis that the question violated his constitutional right to remain silent. The trial court sustained Defendant’s objection. However, in the trial court’s attempt to minimize damage caused by the prosecutor’s question, the instruction to the jury included that, “The defendant has a constitutional right against self-incrimination.”

Hawkins County Court of Criminal Appeals 11/04/16
State of Tennessee v. Bryant Jackson Harris
E2015-01724-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John F. Dugger, Jr.

The Defendant, Bryant Jackson Harris, was convicted by a Hawkins County Criminal Court jury of first degree premeditated murder, first degree felony murder, and aggravated burglary, a Class C felony. See T.C.A. §§ 39-13-202(a)(1), (2) (2014) (first degree murder), 39-14-402 (2014) (aggravated burglary). The Defendant received an effective life sentence. On appeal, he contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by denying his motion for a judgment of acquittal, (3) the trial court erred by denying his motion for a new trial, and (4) the trial court erred by denying his motion for a mistrial. We affirm the judgments of the trial court but remand the case to the trial court for corrected judgments reflecting merger of the first degree felony murder conviction with the first degree premeditated murder conviction.

Hawkins County Court of Criminal Appeals 11/04/16
State of Tennessee v. Jonathon Wayne Thompson
M2016-00129-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Jonathon Wayne Thompson, was convicted of theft of property valued over $500 but less than $1000. He received a sentence of one year and six months, with 90 days to serve in incarceration on consecutive weekends and the remainder to be served on supervised probation. On appeal, Defendant challenges the sufficiency of the evidence and the trial court’s decision to deny full probation. Upon our review of the record, we affirm the judgment of the trial court.

Lawrence County Court of Criminal Appeals 11/04/16
State of Tennessee v. Leroy Myers, Jr.
M2015-01855-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

After a bench trial, the trial court issued a written order finding the Defendant, Leroy Myers, Jr., not guilty of the charged offense, aggravated assault, but guilty of reckless endangerment with a deadly weapon.  On appeal the Defendant asserts that reckless endangerment is not a lesser-included offense of aggravated assault under the facts of this case and that there was not an implicit amendment to the indictment to include reckless endangerment.  After review, we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 11/04/16
Kent L. Booher v. State of Tennessee
E2015-02218-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Paul G. Summers
The Petitioner, Kent L. Booher, appeals the Loudon County Criminal Court’s summary dismissal of his petition for post-conviction relief from his 2014 guilty plea convictions for two counts of statutory rape and his effective three-year sentence. The Petitioner contends that the post-conviction court erred by summarily dismissing his petition. We conclude that the Petitioner stated sufficient facts to constitute a colorable claim, and we remand the case to the post-conviction court for an evidentiary hearing.
 
Loudon County Court of Criminal Appeals 11/04/16
State of Tennessee v. Stephen Gerald Smith
M2015-00261-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge J. Curtis Smith

Stephen Gerard Smith, the Defendant, filed a pro se Motion for Reduction of Sentence pursuant to Tennessee Rule of Criminal Procedure 35 in which he asked the trial court to either reduce his sentence or to grant a new sentencing hearing.  Because the Defendant was erroneously sentenced as a career offender rather than a persistent offender for Class C felony aggravated assault and because the sentence was entered as the result of an agreement between the State and the Defendant, the trial court granted a new sentencing hearing.  Following the sentencing hearing, the trial court sentenced the Defendant to thirteen years’ incarceration as a Range III persistent offender for Class C felony aggravated assault and to a consecutive sentence of twelve years’ incarceration as a career offender for Class D felony attempted aggravated assault.  The Defendant was sentenced to eleven months and twenty-nine days for each of the three domestic assault convictions to be served concurrently with each other and with the felony sentences.  The Defendant claims the trial court abused its discretion in allowing him to proceed pro se in the motion hearing and in the imposition of the sentences.  Discerning no error, we affirm the judgments of the trial court.

Franklin County Court of Criminal Appeals 11/04/16
State of Tennessee v. Sedrick Darion Mitchell
M2016-00559-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge Forest A. Durard, Jr.

Sedrick Darion Mitchell (“the Defendant”) was convicted offailure to appear after a jury trial.  The trial court sentenced him to serve six years at sixty percent release eligibility in the Department of Correction.  On appeal, the Defendant argues that the evidence introduced at trial was insufficient and that the sentence imposed by the trial court is excessive and contrary to law.  After a thorough review of the record and applicable law, we affirm.

Bedford County Court of Criminal Appeals 11/04/16
State of Tennessee v. Kevin Dean Atkins
M2016-01636-CCA-R9-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Larry J. Wallace

The Defendant, Kevin Dean Atkins, appeals the trial court’s order setting aside a plea agreement whereby the Defendant pled guilty to public intoxication and admitted violating the terms of his probation for a prior conviction.  The Defendant filed a motion for permission to seek an interlocutory appeal of the trial court’s order pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, and his motion was granted.  On appeal, the State concedes that the trial court’s order violated the Defendant’s double jeopardy rights.  We agree and accept the State’s concession.  Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

Stewart County Court of Criminal Appeals 11/02/16
State of Tennessee v. Lamonez Deshaun Thaxton
M2016-00216-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Lamonez Deshaun Thaxton, appeals his Davidson County Criminal Court jury convictions of reckless endangerment and attempted especially aggravated robbery, claiming that the trial court erred by denying the defendant’s motion to exclude evidence, that the evidence was insufficient to sustain his convictions, and that the sentence imposed was excessive.  Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 11/02/16
State of Tennessee v. Quincy Terrell Brando Sharpe
M2015-00927-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Mark J. Fishburn

Defendant, Quincy Terrell Sharpe, was indicted by the Davidson County Grand Jury, along with his co-defendant DeAndre D. Rucker, for premeditated first degree murder.  Defendant and Rucker were tried jointly, and both were convicted as charged.  The trial court sentenced Defendant to a term of life imprisonment.  In this appeal as of right, Defendant contends that the prosecutor committed prosecutorial misconduct during closing argument and that the evidence was insufficient to support his conviction.  Following our review, we conclude that the Defendant is entitled to a reversal of his conviction based on prosecutorial misconduct by the State during closing argument.  Accordingly, we reverse the judgment of the trial court and remand for a new trial.

Davidson County Court of Criminal Appeals 11/02/16
James Robert Wilson v. State of Tennessee
M2016-00860-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve Dozier

A Davidson County jury convicted the Petitioner, James Robert Wilson, of especially aggravated robbery and first degree felony murder, and the trial court sentenced him to an effective sentence of life in prison.  The Petitioner appealed, and this Court affirmed the trial court’s judgments.  State v. James Robert Wilson, No. M2000-00760-CCA-R3-CD, 2002 WL 1050259, at *1 (Tenn. Crim. App., at Nashville, May 24, 2002), perm. app. denied (Tenn. Nov. 12, 2002).  In 2003, the Petitioner unsuccessfully sought post-conviction relief.  James Robert Wilson v. State, M2004-00933-CCA-R3-PC, 2005 WL 1378770, at *1 (Tenn. Crim. App., at Nashville, June 10, 2005), perm. app. denied (Oct. 31, 2005).  In 2016, the Petitioner filed a petition for habeas corpus relief contending that the trial court “constructively amended the indictment in this case” when it charged the jury using language that did not fully comport with the language used by the grand jury when it indicted him.  The habeas corpus court summarily dismissed the petition, and we affirm the habeas corpus court’s judgment.

Davidson County Court of Criminal Appeals 11/02/16
State of Tennessee v. Cephus D. Spicer
M2015-01739-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Royce Taylor

The defendant, Cephus D. Spicer, appeals his Rutherford County Circuit Court jury convictions of aggravated robbery, conspiracy to commit aggravated robbery, and unlawful possession of a firearm on a college campus, claiming that his due process rights were violated by the State’s reading of the indictment to the jury without proper instructions, that the prosecutor’s closing argument was improper, that the State failed to disclose exculpatory evidence, that the evidence was insufficient to sustain his convictions, and that the sentence imposed was excessive.  Discerning no error, we affirm.

Rutherford County Court of Criminal Appeals 11/01/16
State of Tennessee v. Gregory Scott Barnum
M2016-00313-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David D. Wolfe

The Defendant, Gregory Scott Barnum, was convicted of Class E felony indecent exposure and received a sentence of two years’ incarceration.  On appeal from his conviction, the Defendant asserts that the trial court erroneously found that he was a “sexual offender” based on his 1998 Kentucky convictions for indecent exposure and thus subject to enhanced punishment under Tennessee’s indecent exposure statute. Upon review, we affirm the judgment of the trial court.

Dickson County Court of Criminal Appeals 11/01/16
State of Tennessee v. Michael Glenn Holt
E2015-01892-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Bobby R. McGee
The Defendant, Michael Glenn Holt, entered guilty pleas in the Knox County Criminal Court to one count of theft over $500 but less than $1,000, a Class E felony, and one count of criminal trespass, a Class C misdemeanor, with an agreed combined sentence of four years with manner of service to be determined by the trial court. After failing to appear at his initial sentencing hearing, the Defendant was also charged, and subsequently pled guilty to, one count of failure to appear, a Class E felony, with the trial court to determine the length and manner of sentence. The trial court imposed a sentence of four years for the failure to appear charge, consecutive to his previous four-year sentence, for a total effective sentence of eight years’ imprisonment. On appeal, the Defendant argues that the trial court erred in imposing the maximum sentence on the failure to appear charge, that the trial court improperly denied the Defendant an alternative sentence, and that the trial court failed to consider whether the Defendant’s consecutive sentences were statutorily mandated. Upon review, we affirm the judgments of the trial court.
 
Knox County Court of Criminal Appeals 10/31/16
State of Tennessee v. Antonio Clifton
W2016-00176-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The Appellant, Antonio Clifton, appeals as of right from the Shelby County Criminal Court’s denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Appellant contends that the trial court erred in concluding that Rule 36.1 relief was not available because his illegal sentence had long ago expired. Following our review, we affirm the trial court’s denial of the Appellant’s Rule 36.1 motion.

Shelby County Court of Criminal Appeals 10/31/16
C.W.H. v. L.A.S.
E2015-01498-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert D. Philyaw

This is a custody case involving two children.2 C.W.H. (Father) and L.A.S. (Mother) modified, by an agreed order, an existing parenting plan for their children, P.H. and V.H. The modification continued Mother as the children's primary residential parent. Soon thereafter, Father learned that Mother worked in Nevada as a prostitute. He filed a motion seeking an emergency temporary custody order and a temporary restraining order. The juvenile court magistrate found that a material change in circumstances had occurred. It changed the identity of the children's primary residential parent from Mother to Father. Mother appealed to the trial court. After a hearing, the trial court (1) confirmed the magistrate's decision and (2) designated Father as the primary residential parent. Mother appealed to this Court. In the first appeal, we held that the trial court's order lacked a “best interest” analysis. As a result, we vacated that order and directed the trial court to (1) make a best interest analysis and thereafter (2) enter a new permanent parenting plan. On remand, the trial court (1) incorporated its past findings, (2) conducted a best interest analysis, and (3) held in Father's favor. Mother again appeals. We reverse because we hold that the evidence preponderates, in part but significantly, against the trial court's factual findings supporting its judgment.

Hamilton County Court of Criminal Appeals 10/31/16