Court of Criminal Appeals Opinions

Format: 07/31/2015
Format: 07/31/2015
Gary Wayne Bush v. State of Tennessee
M2014-00759-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge M. Keith Siskin

The Petitioner, Gary Wayne Bush, appeals the Rutherford County Circuit Court’s denial of post-conviction relief.  He was convicted of first degree murder and sentenced to life imprisonment in the Tennessee Department of Correction.  On appeal, the Petitioner argues that he received ineffective assistance of counsel because trial counsel failed to call the Petitioner to testify in his own defense.  Upon review, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 03/25/15
Jackie Ewing v. State of Tennessee
W2014-00273-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The petitioner, Jackie Ewing, was convicted of theft of property valued over $1000 and sentenced as a career offender to twelve years. On direct appeal, this court affirmed the petitioner’s conviction, and our supreme court denied permission to appeal. State v. Jackie Ewing, No. W2012-00376-CCA-R3-CD, 2012 WL 6206123, at *1 (Tenn. Crim. App. Dec. 11, 2012), perm. app. denied (Tenn. Apr. 9, 2013). Subsequently, he filed a pro se petition for post-conviction relief, alleging he received the ineffective assistance of counsel at trial. Counsel was appointed and, following an evidentiary hearing, the post-conviction court denied the petition. Based upon our review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 03/24/15
State of Tennessee v. Christopher Lee Cunningham and James Cleo Hardin
W2014-00230-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald H. Allen

The Defendant-Appellants, Christopher Lee Cunningham and James Cleo Hardin, were jointly convicted by a Madison County jury of one count of aggravated burglary and two counts of aggravated robbery. The trial court sentenced each defendant to an effective sentence of 22 years’ confinement. On appeal, the Defendants argue that (1) the evidence is insufficient to sustain their convictions for aggravated burglary and aggravated robbery, and (2) the trial court abused its discretion by imposing consecutive sentences. Upon review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 03/24/15
Brannon Blake Black v. State of Tennessee
W2014-01264-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William B. Acree

The Petitioner, Brannon Blake Black, appeals the post-conviction court's denial of relief from his conviction for rape, a Class B felony. On appeal, he argues that he received ineffective assistance of counsel in connection with his guilty plea. Upon review, we affirm the judgment of the post-conviction court.

Obion County Court of Criminal Appeals 03/23/15
State of Tennessee v. Kenneth Moses
E2014-01013-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert H. Montgomery, Jr.

Defendant, Kenneth Moses, was charged by presentment for one count of rape of a child and one count of incest. A  jury found Defendant guilty as charged. The trial court sentenced Defendant to consecutive sentences of 25 years for rape of a child and six years for incest. In this appeal as of right, Defendant contends that the evidence was insufficient to support his convictions and that the trial court abused its discretion by ordering his sentences to run consecutively. After a thorough review of the record, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 03/20/15
State of Tennessee v. Billy Ray Allen
E2014-00967-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery. Jr.
Trial Court Judge: Judge R. Jerry Beck

The Defendant, Billy Ray Allen, was convicted by a Sullivan County Criminal Court jury of facilitation of possession with the intent to sell or to deliver twenty-six grams or more of cocaine, a Class C felony. See T.C.A. §§ 39-17-417(a) 4) (2010) (amended 2012, 2014) (possession with intent to sell and to deliver); 39-11-403(a) (2014) (facilitation). The trial court sentenced the Defendant as a Range II, multiple offender to six years’ confinement. In this delayed appeal, the Defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 03/20/15
Doyle Haney v. State of Tennessee
E2014-00462-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

The Petitioner, Doyle Haney, appeals the Cocke County Circuit Court’s denial of his two petitions for post-conviction relief. In case number 3457, the Defendant was convicted of the sale of 0.5 grams or more of cocaine and received a thirty-year sentence. In case number 4924, he was convicted of delivering 0.5 grams or more of cocaine and received a thirty-year sentence. The sentences were ordered to be served concurrently. On appeal, the Petitioner contends that the trial court erred by denying post-conviction relief because he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Cocke County Court of Criminal Appeals 03/20/15
Derrick Richardson v. State of Tennessee
E2014-01554-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Petitioner, Derrick Richardson, appeals the Hamilton County Criminal Court’s denial of his two motions to reopen his post-conviction proceedings relative to his first degree felony murder conviction and resulting life sentence. The Petitioner contends that the post-conviction court erred by denying his motions. We dismiss the appeal for lack of jurisdiction because the Petitioner failed to comply with the statutory requirements governing an appeal from the denial of a motion to reopen post-conviction proceedings.

Hamilton County Court of Criminal Appeals 03/20/15
Thomas Edward Kotewa v. Brenda Jones, Warden
W2014-01290-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Joe H. Walker, III

Pro se petitioner, Thomas Edward Kotewa, appeals the summary dismissal of his petition for habeas corpus relief by the Lauderdale County Circuit Court. In this appeal, the Petitioner argues that the habeas corpus court erred in denying his petition because the trial court lacked subject matter jurisdiction to accept his plea of guilty. Upon our review, we affirm the judgment of the habeas court.

Lauderdale County Court of Criminal Appeals 03/19/15
State of Tennessee v. James Pennock
W2013-02526-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge R. Lee Moore Jr.

The Defendant-Appellant, James Pennock, was convicted by a Dyer County jury of three counts of sale of a Schedule II controlled substance. On appeal, the Defendant argues that (1) the evidence is insufficient to establish the Defendant's identity as the person who committed the offenses; (2) the trial court erred in instructing the jury regarding eyewitness identification testimony; and (3) the trial court erred in allowing the co-defendant, Nora Gibson, to testify without proper notice provided to the Defendant. Upon our review, we affirm the judgments of the trial court.

Dyer County Court of Criminal Appeals 03/19/15
Christopher M. Black v. State of Tennessee
M2014-01607-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Monte Watkins

In 2006, the Petitioner, Christopher M. Black, was convicted by a Davidson County jury of two counts of aggravated rape and two counts of aggravated robbery, for which the Petitioner received an effective sentence of 50 years in the Department of Correction.  On direct appeal, this Court affirmed the Petitioner’s convictions and sentence.Thereafter, the Petitioner filed a petition for post-conviction relief, which was denied following a hearing.  On appeal from the denial of post-conviction relief, the Petitioner contends that he received ineffective assistance of counsel based upon trial counsel’s failure to hire a DNA expert to analyze the evidence against the Petitioner.  Following our review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 03/19/15
State of Tennessee v. David Muangkhot
M2014-01029-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Franklin L. Russell

In January 2005, David Muangkhot (“the Defendant”) pleaded guilty to one count of sale of a Schedule I controlled substance and one count of possession of a Schedule I controlled substance with the intent to sell.  Pursuant to a plea agreement, the trial court imposed concurrent, 10-year sentences and ordered the Defendant to serve his sentence in confinement.  Following the completion of a boot camp program, the Defendant was released and placed on supervised probation for the remainder of his sentence pursuant to Tennessee Code Annotated section 40-20-206.  In April 2014, the trial court issued a violation of probation warrant and, following a hearing, revoked the Defendant’s probation and imposed the Defendant’s original sentence.  On appeal, the Defendant argues that the trial court abused its discretion by ordering him to serve his sentence.  Upon review, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 03/19/15
State of Tennessee v. Levar O. Williams
E2014-01068-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carroll L. Ross

The petitioner, Levar O. Williams, appeals the trial court’s denial of his motion to correct an illegal sentence. Following our review of the briefs of the parties, the record, and the applicable authorities, we conclude that the petitioner failed to file a timely notice of appeal and that the “interest of justice” does not warrant waiver of the timely notice requirement. As a result, we dismiss his appeal.

Bradley County Court of Criminal Appeals 03/19/15
State of Tennessee v. Derishon Wadlington-Dissenting
W2013-02521-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge William B. Acree, Jr.

I respectfully dissent. First, I disagree with the majority’s conclusion that the trial judge determined that the officers lacked probable cause to arrest Defendant. The majority quoted the trial court’s ruling, which I interpret bases the decision on the fact that the officers took Defendant into custodial arrest in violation of a statute that mandated the issuance of a citation in lieu of custodial arrest. The trial court’s reasoning was that since custodial arrest was invalid, the resulting search was invalid, and thus all evidence found in Defendant’s purse must be suppressed.

Obion County Court of Criminal Appeals 03/18/15
State of Tennessee v. Derishon Wadlington
W2013-02521-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Williams B. Acree, Jr.

The defendant, Derishon Wadlington, was detained in a Union City Walmart store, after being observed attempting to leave the premises without paying for a belt, which she had in her possession. Union City police officers were called and, taking the defendant into custody, found a small clear bag containing a green leafy substance in her purse. At the jail, her purse was inventoried and found to contain a large clear bag containing a white powder, which was determined to be cocaine. She filed a motion to suppress the evidence, which was granted after the trial court determined that the officers lacked probable cause to arrest the defendant. The State appealed. Following our review, we conclude that the officers had probable cause to arrest the defendant, and, thus, the subsequent search of her purse was lawful. Accordingly, we reverse the trial court’s suppression of the evidence and remand the matter to the trial court.

Obion County Court of Criminal Appeals 03/18/15
State of Tennessee v. Marquize Berry-Concurring In Part, Dissenting In Part
W2014-00785-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge J. Robert Carter, Jr.

I concur in the excellent lead opinion by Judge Witt. I write separately, however, because I do not agree that the judgment form for Count 3 needs to be corrected. In this case, the learned trial judge entered a judgment on Count 3 to effectuate the jury‟s finding of guilty of a violation of Tennessee Code Annotated section 39-17-1324(b)(1), the offense of employing a firearm during the commission of a dangerous felony. When an offender does not have a prior felony, the punishment for violation of this statute is at least a mandatory minimum six-year sentence in the department of correction. Tenn. Code Ann. § 39-24-1324(h)(1).

Shelby County Court of Criminal Appeals 03/18/15
State of Tennessee v. Marquize Berry
W2014-00785-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The defendant, Marquize Berry, appeals his Shelby County Criminal Court jury conviction of attempted second degree murder, claiming that the evidence was insufficient to support his conviction. We affirm but order certain clerical amendments to the judgments.

Shelby County Court of Criminal Appeals 03/18/15
State of Tennessee v. Charles B. Davis
M2013-01903-CCA-R3-CD
Authoring Judge: Special Judge Larry J. Wallace
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted Defendant, Charles B. Davis, of one count of theft of property valued between $1,000 and $10,000, one count of theft of property valued under $500, and one count of employing a firearm during the commission of a dangerous felony.  In addition, the Defendant pleaded guilty to one count of aggravated burglary but was acquitted of an additional count of aggravated burglary.  The trial court sentenced the Defendant to an effective sentence of twenty years in the Tennessee Department of Correction as a Range II, persistent offender.  On appeal, the Defendant asserts that: (1) the trial court erred in denying the Defendant’s motion for judgment of acquittal as to Counts 2 and 5 as there was insufficient evidence to support his convictions for theft of property and employing a firearm during a dangerous felony and (2) the trial erred when it denied his motion for new trial because the trial court failed to properly function as the thirteenth juror as the verdicts were against the weight of the evidence. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Davidson County Court of Criminal Appeals 03/18/15
State of Tennessee v. Marcus Traveno Cox, Jr.
M2014-01442-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant-Appellant, Marcus Traveno Cox, Jr., was indicted by a Marshall County Grand Jury for one count of solicitaion of aggravated perjury and one count of improper influence of a juror, Class A misdemeanors. Cox entered an open plea of guilty to solicitation of aggravated perjury, and count two was dismissed. After a sentencing hearing, the trial court imposed the maximum sentence of 11 months and 29 days in the county jail, to be served consecutively to his sentences in another case. The sole issue presented for our review is whether the trial court erred in sentencing Cox. Upon review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 03/17/15
State of Tennessee v. James R. Bristow
M2014-00595-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge David A. Patterson

Defendant, James Bristow, was charged by indictment with vehicular homicide by intoxication, vehicular homicide by recklessness, driving under the influence of an intoxicant (DUI), and DUI per se.  Defendant pleaded guilty to vehicular homicide by intoxication with an agreed nine-year sentence, and the manner of service to be determined by the trial court.  The remaining counts were dismissed in accordance with the agreement.   After a sentencing hearing, the trial court ordered Defendant to serve his nine-year sentence in confinement.   On appeal, Defendant argues that he should have received an alternative sentence.   After a thorough review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Clay County Court of Criminal Appeals 03/17/15
State of Tennessee v. William Kenneth Lawson
M2014-00612-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Larry B. Stanley, Jr.

The defendant, William Kenneth Lawson, appeals the revocation of his probationary sentence. He pled guilty to possession of a controlled substance with intent to deliver and violation of his habitual traffic offender status. As a result, he was sentenced to an effective term of eight years on supervised probation. Subsequently, a violation warrant was issued alleging that the defendant had violated the terms and conditions of his probation agreement by being arrested on new charges. Following a hearing, the trial court ordered revocation of the probation and that the defendant serve the remainder of his sentence in incarceration. On appeal, the defendant contends that there is not sufficient evidence in the record to support the court’s finding that a violation occurred. Following review of the record, we conclude that there was no abuse of discretion in the court’s decision to revoke probation. As such, the judgment of the trial court is affirmed.

Warren County Court of Criminal Appeals 03/17/15
Harvey Taylor v. State of Tennessee
M2014-00541-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Monte Watkins

Petitioner, Harvey Taylor, pled guilty to rape on August 20, 2009. On October 11, 2012, Petitioner filed a petition for writ of error coram nobis, citing newly discovered evidence. The coram nobis court appointed counsel, who filed an amended petition. The State filed a motion to dismiss on the ground that the petition was untimely. Counsel then filed a motion to withdraw. The coram nobis court granted both the motion to withdraw and the motion to dismiss. On appeal, Petitioner argues that the coram nobis court erred in allowing his original counsel to withdraw without responding to the State’s motion to dismiss and by dismissing his petition as untimely without holding an evidentiary hearing to determine whether due process required tolling of the statute of limitations. Upon our review of the record, we determine that Petitioner’s claims, if true, would not entitle him to coram nobis relief and would not warrant tolling the statute of limitations. Therefore, we affirm the judgment of the coram nobis court.

Davidson County Court of Criminal Appeals 03/16/15
State of Tennessee v. Ashley Marie Witwer
M2014-00834-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Appellant, Ashley Marie Witwer, brings a certified question of law regarding whether the retroactive application of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, as amended in 2012, to her conviction for promoting prostitution is an unconstitutional ex post facto law. After careful review of the parties’ briefs, the record, and the applicable law, we determine that the law is constitutional. Accordingly, the judgment of the criminal court is affirmed.

Davidson County Court of Criminal Appeals 03/16/15
State of Tennessee v. Jeremy Wendell Thorpe
M2014-00169-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Monte WAtkins

Following a jury trial, Defendant, Jeremy Wendell Thorpe, was found guilty as charged of aggravated arson, a Class A felony, and vandalism of a structure of a value of sixty thousand ($60,000.00) dollars or more, a Class B felony. He was sentenced to concurrent sentences of seventeen years for the aggravated arson conviction and nine years for the vandalism conviction. In his appeal of right, Defendant challenges the legal sufficiency of the evidence to support his conviction for aggravated arson. Specifically, Defendant argues that the State failed to prove beyond a reasonable doubt that he “knowingly” committed the offense. An integral part of this issue is Defendant’s assertion that aggravated arson requires a “result-of-conduct” knowing mens rea. Defendant asserts there are conflicting opinions of this Court as to this issue. The State initially argues that Defendant’s motion for new trial was filed one day late, and that as a result, the notice of appeal was not timely filed. The State urges this Court to dismiss Defendant’s appeal. In a reply brief, Defendant concedes his motion for new trial was filed late by one day and although the notice of appeal was also late, the timely filing of the notice of appeal should be waived. The State declined to address Defendant’s argument that aggravated arson is a “result-of-conduct” offense. Defendant does not challenge the vandalism conviction. After a through review of the record, the parties’ briefs, and the applicable law, we conclude that the State’s argument that the notice of appeal was filed late is void of merit. Notwithstanding the fact the State waived argument on the “knowing” mens rea definition for aggravated arson, we conclude that aggravated arson is not a result-of-conduct offense. Following our review of the record, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 03/16/15
Louis Dancy v. State of Tennessee
W2014-00330-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Louis Dancy, appeals the post-conviction court‟s denial of relief from his conviction for second degree murder. On appeal, the Petitioner argues that he received ineffective assistance of counsel at trial. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 03/16/15