Court of Criminal Appeals Opinions

Format: 09/21/2014
Format: 09/21/2014
Bill D. Sizemore V. State of Tennessee
M2013-01378-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Robbie T. Beal

Petitioner, Billy D. Sizemore, was convicted of theft over $1,000 and sentenced to twelve years as a career offender.  Petitioner filed the instant petition for post-conviction relief, in which he alleged that he received ineffective assistance of counsel.  Following an evidentiary hearing, the post-conviction court denied relief.  On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel: (1) failed to challenge the value of the stolen goods and (2) failed to seek a continuance after the State filed a late notice of intent to seek enhanced punishment.  After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Perry County Court of Criminal Appeals 08/21/14
William L. Vaughn v. State of Tennessee
M2010-02191-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Monte D. Watkins

Following a remand from this court, the petitioner, William L. Vaughn, acting pro se, was permitted a second evidentiary hearing on certain ineffective assistance of counsel claims which he had not presented in the first hearing on his petition for post-conviction relief.  As we will set out, he filed massive pleadings, complaining of a multitude of wrongs visited upon him, from the moment of his arrest through his direct appeal.  The evidentiary hearing was lengthy and free-swinging, with the post-conviction court’s concluding that the petitioner’s claims were “incredible” and, ultimately, without merit.  We agree.  Doggedness cannot substitute for substance.  The post-conviction court’s denial of relief is affirmed.

Davidson County Court of Criminal Appeals 08/21/14
State of Tennessee v. Terry Odell Lucas
M2013-02389-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge John H. Gasaway, III

A Robertson County Grand Jury indicted appellee for possession of over 0.5 grams of cocaine with the intent to sell.  The charges were dismissed after the trial court granted appellee’s motion to suppress evidence.  The State appeals the trial court’s granting of the motion to suppress and argues that appellee’s arrest and search were proper.  Following a thorough review of the record, we reverse the ruling of the trial court, reinstate the indictment, and remand for further proceedings consistent with this opinion.

Robertson County Court of Criminal Appeals 08/21/14
State of Tennessee v. Somer D. Wild
E2013-01777-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John F. Dugger, Jr.

The defendant, Somer D. Wild, was indicted for driving under the influence, a Class A misdemeanor. After the trial court denied her motion to suppress the legality of the traffic stop, the defendant pled guilty to the offense and was sentenced to eleven months and twenty-nine days, suspended following the service of forty-eight hours in jail. As part of her plea of guilty, the defendant reserved as a certified question of law the legality of the traffic stop of her vehicle. Following our review of the record and the video recording of the traffic stop, we conclude that the trial court erred in denying the motion to suppress. Accordingly, we reverse the judgment of conviction and dismiss the indictment.

Hamblen County Court of Criminal Appeals 08/20/14
Cumecus R. Cates v. State of Tennessee
E2014-00011-CCA-R3-CD
Authoring Judge: Judge Joe H. Walker, III
Trial Court Judge:

The pro se petitioner appeals the summary dismissal of his motion to correct an illegal sentence, per Tennessee Rule of Criminal Procedure 36.1. Following our review of the parties' briefs, the record, and the applicable law, we find the petitioner’s motion stated a colorable Rule 36.1 claim for review of illegal sentences. Therefore, we reverse the trial court's summary dismissal and remand for proceedings consistent with this opinion.

Knox County Court of Criminal Appeals 08/20/14
State of Tennessee v. Tycorrian M. Taylor
E2013-02875-CCA-R3-CD
Authoring Judge: Judge Joe H. Walker, III
Trial Court Judge: Judge Bob R. McGee

The defendant appeals the sentence imposed for conviction of attempted voluntary manslaughter and aggravated assault. Finding no error, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 08/20/14
State of Tennessee v. Iris A. Jones-Concurring in Part and Dissenting in Part
M2013-00938-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Larry J. Wallace

Joseph M. Tipton, P.J., concurring in part; dissenting in part.

I respectfully disagree with the majority opinion’s conclusion that this court may consider the State’s appeal of the trial court’s granting judicial diversion as an appeal as of right pursuant to Tennessee Rule of Appellate Procedure 3(c)(4), but I believe the court can accept the appeal pursuant to Tennessee Rule of Appellate Procedure 10 as an extraordinary appeal.  In this regard, I agree with the majority opinion’s conclusion that the trial court erred in granting judicial diversion.

Cheatham County Court of Criminal Appeals 08/20/14
State of Tennessee v. Iris A. Jones
M2013-00938-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Larry J. Wallace

A Cheatham County jury convicted the Defendant, Iris A. Jones, of driving under the influence (“DUI”), first offense, and vehicular assault.  The Defendant filed an application seeking judicial diversion.  The trial court merged the DUI conviction into the vehicular assault conviction and granted the Defendant’s motion for judicial diversion.  On appeal, the State contends that the trial court abused its discretion when it found that the Defendant was eligible for judicial diversion.  After a thorough review of the record and applicable authorities, we conclude that the Defendant is not a “qualified defendant” for judicial diversion.  Accordingly, the case is reversed and remanded to the trial court for further proceedings consistent with this opinion.

Cheatham County Court of Criminal Appeals 08/20/14
State of Tennessee v. Lona Parker
W2013-02446-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge W. Mark Ward

Appellant, Lona Parker, was indicted for and convicted of theft of property valued at more than $1,000 but less than $10,000, a Class D felony. The trial court sentenced him to twelve years in the Tennessee Department of Correction as a career offender. He now appeals, challenging the sufficiency of the convicting evidence. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/20/14
State of Tennessee v. Marcus Moore
W2013-02763-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Lee V. Coffee

Appellant, Marcus Moore, entered guilty pleas without recommended sentences to two counts of burglary of a building, a Class D felony. Following a sentencing hearing, the trial court imposed sentences of twelve years as a career offender for each count to be served consecutively to each other. Appellant now challenges the trial court’s alignment of his sentences. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 08/20/14
Joseph Kindred v. Jerry Lester, Warden
W2014-00066-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joe H. Walker III

In 2010, the Petitioner, Joseph Kindred, pleaded guilty to multiple counts involving conspiracy to sell drugs within a school zone, and the trial court sentenced the Petitioner to sixteen years in the Tennessee Department of Correction. In 2013, the Petitioner filed a petition for habeas corpus relief, which was summarily dismissed by the habeas corpus court. On appeal, the Petitioner alleges that the habeas corpus court erred when it dismissed his petition, contending that the trial court did not have the jurisdiction or authority to sentence him for the conspiracy convictions because he was not indicted for conspiracy. After a thorough review of the record and applicable authorities, we affirm the habeas court’s judgment.

Lauderdale County Court of Criminal Appeals 08/19/14
State of Tennessee v. Stevie Gibson
W2013-02015-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge James Lammey Jr.

Stevie Gibson (“the Defendant”) was convicted by a jury of two counts of second degree murder and one count of aggravated robbery. The trial court merged the two murder convictions and sentenced the Defendant to serve an effective term of thirty-seven years’ incarceration. In this direct appeal, the Defendant challenges the sufficiency of the evidence and his sentence. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 08/19/14
State of Tennessee v. Emmett Lamon Roseman
M2013-02150-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lee Russell

The appellant, Emmett Lamon Roseman, pled guilty to possession of marijuana, the sale of crack cocaine, the delivery of crack cocaine, and three counts of failure to appear.  The trial court imposed a total effective sentence of twenty years in the Tennessee Department of Correction.  On appeal, the appellant challenges the length of the sentences and the imposition of consecutive sentencing.  Upon review, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 08/19/14
State of Tennessee v. Phillip Smith
W2013-02280-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald Allen

The Defendant, Phillip Smith, was convicted by a Chester County jury for rape of a child, for which he received a sentence of 25 years to be served in the Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction and that he is entitled to a new trial due to prosecutorial misconduct. Upon our review, we affirm the judgment of the trial court.

Chester County Court of Criminal Appeals 08/18/14
State of Tennessee v. Jimmy Dale Qualls
W2013-01440-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge J. Weber McCraw

The Defendant, Jimmy Dale Qualls, was convicted by a Hardeman County Circuit Court jury of thirty-seven counts of sexual battery by an authority figure, Class C felonies. See T.C.A. § 39-13-527 (2010). The trial court sentenced the Defendant as a Range I, standard offender to five years for each conviction and ordered partial consecutive sentences. The thirty-seven counts were separated into seven groups for sentencing purposes. Group A contained counts 1 through 6, Group B contained Counts 7 and 8, Group C contained Counts 9 through 14, Group D contained Counts 15 though 20, Group E contained Counts 21 through 26, Group F contained Counts 27 through 32, and Group G contained Counts 33 to 37. The court ordered each group to run consecutively to each other, for an effective thirty-five-year sentence. The court further ordered the effective thirty-five-year sentence. On appeal, he contends that the State failed to make a proper election of the offenses and that the evidence is insufficient to support his convictions. We conclude that the State failed to make an adequate election of the offenses, and we reverse the judgments of the trial court and remand the case for a new trial.

Hardeman County Court of Criminal Appeals 08/18/14
State of Tennessee v. Demarcus Ant-Juan Nelson
E2013-01414-CCA-R3-CD
Authoring Judge: Judger Jeffrey S. Bivins
Trial Court Judge: Judge Steven W. Sword

Demarcus Ant-Juan Nelson (“the Defendant”) pleaded guilty to possession with intent to sell .5 grams or more of a substance containing cocaine within 1000 feet of a school. Pursuant to the plea agreement, the trial court sentenced the Defendant to twenty years’ incarceration. The plea agreement provided for reservation of a certified question of law as to whether the Defendant’s seizure was lawful. After a thorough review of the record and the applicable law, we conclude that the Defendant is entitled to no relief. However, we remand this matter to the trial court for entry of corrected judgment orders indicating that count two was dismissed. In all other respects, we affirm the judgment of the trial court.
 

Knox County Court of Criminal Appeals 08/18/14
State of Tennessee v. Fred Arnold McMahan
E2013-02800-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David Duggan

The Defendant, Fred Arnold McMahan, pled guilty to multiple felony drug offenses, and the trial court sentenced him to a fifteen-year Community Corrections sentence, consecutive to a ten-year prison sentence in another criminal case. In July 2013, the Defendant’s Community Corrections officer filed an affidavit alleging that the Defendant had violated his Community Corrections sentence by failing to report for intake, and, after a hearing, the trial court ordered the Defendant to serve the remainder of his sentence in confinement. On appeal, the Defendant contends that the trial court erred when it revoked his Community Corrections sentence because there was insufficient evidence presented to support the revocation. After a thorough review of the record and applicable authorities, we conclude that the trial court did not err when it revoked the Defendant’s Community Corrections sentence, and we affirm the trial court’s judgment.

Blount County Court of Criminal Appeals 08/15/14
Rhonda Jo Elfin v. Steven C. Loveday
E2014-00669-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ben W. Hooper, II

The appellant (“Mother”) appeals from an order of the trial court entered on February 24, 2014, which partially granted the Petition and Amended Petition to Modify filed by the appellee (“Father”) in this post-dissolution proceeding. The February 24, 2014 order stated that “any other issues not addressed in this Agreed Order are reserved for further hearing upon motion of either party, including but not limited to, whether or not Father owes retroactive child support.” It is clear that the order appealed from does not resolve all issues raised in the proceedings below. The Notice of Appeal also was filed more than thirty (30) days from the date of entry of the February 24, 2014 order. As a result of these jurisdictional defects, we have no jurisdiction to consider this appeal.

Sevier County Court of Criminal Appeals 08/15/14
James Glenn Collins, Jr. v. State of Tennessee
E2013-01940-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

The Petitioner, James Glenn Collins, Jr., appeals as of right from the Knox County Criminal Court’s summary dismissal of his petition for post-conviction relief. The Petitioner contends that the post-conviction court erred by dismissing his petition for having been untimely filed. Discerning no error, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 08/14/14
Gene S. Rucker v. State of Tennessee
E2014-00405-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Barry A. Steelman

The Petitioner, Gene S. Rucker, was convicted of aggravated arson and criminally negligent homicide, for which he was sentenced to an effective sentence of twenty-two years. On direct appeal, this Court affirmed his convictions and sentence. State v. Gene Shelton Rucker, Jr., No. E2002-02101-CCA-CCA-R3-CD, 2004 WL 2827004 (Tenn. Crim. App., at Knoxville, Dec. 9, 2004), perm. app. denied (Tenn. March 21, 2005). Subsequently the Petitioner filed a petition for post-conviction relief, which was denied on the grounds that it was time barred. This Court affirmed the post-conviction court’s judgment denying relief. Gene S. Rucker v. State, No. E2007-00380-CCA-R3-PC, 2007 WL 2405133 (Tenn. Crim. App., at Knoxville, Aug. 24, 2007) no Tenn. R. App. P. 11 app. filed. On February 18, 2013, the Petitioner filed a motion to reopen his petition for post-conviction relief. The postconviction court denied the motion to reopen, and the Petitioner appeals that decision. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 08/14/14
State of Tennessee v. Michael Smith
W2013-01190-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey Jr.

A Shelby County jury found the Defendant, Michael Smith, guilty of aggravated assault and evading arrest. The trial court sentenced the Defendant to ten years for the aggravated assault conviction and eleven months and twenty-nine days for the evading arrest conviction. The trial court ordered the sentences to run consecutively. The Defendant asserts that: (1) the trial court committed plain error by failing to compel an election in count one; (2) the indictment for aggravated assault fails to state an offense; (3) the trial court improperly allowed the victim to testify about the Defendant’s prior bad acts; (4) the trial court improperly denied the Defendant’s request for a mistrial after the State explored the Defendant’s conviction and defense in an unrelated case; (5) the trial court committed plain error when it failed to compel the State to provide the trial court an audio recording of the victim’s statement; (6) the trial court improperly instructed the jury on flight; (7) the trial court improperly ruled that the Defendant’s prior convictions could be used for impeachment purposes should he testify at trial; (8) the evidence is insufficient to sustain his conviction for evading arrest; (9) the trial court abused its discretion when it denied the Defendant’s request to sit at counsel table; and (10) his sentence is excessive. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 08/13/14
Joe Ross v. State of Tennessee
W2013-02555-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris Craft

The Petitioner, Joe Ross, appeals the Shelby County Criminal Court’s denial of his petition for writ of habeas corpus. The Petitioner entered guilty pleas to five counts of aggravated robbery, four counts of especially aggravated kidnapping, and one count of aggravated rape, for which he received an effective sentence of 25 years confinement. On appeal, the Petitioner argues that his sentence is illegal on the face of the judgment because it does not include mandatory supervision for life. Because the Petitioner’s judgment does not reflect the statutory requirement of mandatory lifetime community supervision, we conclude that the judgment for aggravated rape is illegal and void. We vacate the Petitioner’s sentence for aggravated rape and remand to the habeas court for an evidentiary hearing to determine whether the illegal sentence was a bargained-for element of the Petitioner’s plea agreement.

Shelby County Court of Criminal Appeals 08/13/14
State of Tennessee v. David Morrow
W2014-00338-CCA-R3-CO
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Glenn Wright

Appellant pleaded guilty to failure to appear and unlawful possession of a controlled substance with intent to sell or deliver. Appellant later filed a Motion to Correct Illegal Sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed. On appeal, appellant argues that the trial court erred by summarily dismissing his motion without appointing counsel after he had stated a colorable claim for relief. The State concedes that this case should be remanded to the trial court because appellant stated a colorable claim for relief pursuant to Rule 36.1. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

Shelby County Court of Criminal Appeals 08/13/14
State of Tennessee v. Rodriquez Jones
W2014-00193-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge J. Robert Carter Jr.

Appellant, Rodriquez Jones, was convicted of aggravated sexual battery and sentenced to ten years in the Tennessee Department of Correction. On appeal, he argues that the evidence was insufficient to support his conviction and that the assistant district attorney general committed prosecutorial misconduct during closing arguments. Following our review, we affirm the judgment of the trial court; however, we must remand this matter to the trial court to correct the judgment form.

Shelby County Court of Criminal Appeals 08/13/14
State of Tennessee v. Phillip Harris
W2013-01028-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris B. Craft

The Defendant-Appellant, Phillip Harris, was indicted by a Shelby County Criminal Court Grand Jury for six counts of attempted second degree murder and one count of unlawful employment of a firearm during the attempt to commit a dangerous felony. Following a jury trial, Harris was convicted of one count of attempted second degree murder (count two), five counts of misdemeanor reckless endangerment (counts one, three, four, five, and six), and one count of unlawful employment of a firearm during the attempt to commit a dangerous felony (count seven). The trial court sentenced Harris to twelve years for the attempted second degree murder conviction and to a mandatory consecutive sentence of six years for the unlawful employment of a firearm during the attempt to commit a dangerous felony. The court also imposed sentences of eleven months and twenty-nine days for each of the reckless endangerment convictions and ordered these sentences served concurrently with the sentence for attempted second degree murder. On appeal, Harris argues: (1) the evidence is insufficient to sustain his convictions, and (2) his sentence is excessive. Upon review, we affirm the convictions and remand for resentencing as to the conviction for attempted second degree murder.

Shelby County Court of Criminal Appeals 08/13/14