Court of Criminal Appeals Opinions

Format: 01/29/2015
Format: 01/29/2015
State of Tennessee v. Edward Carter
W2014-00538-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant-Appellant, Edward Carter, was convicted by a Madison County jury of attempted theft of property valued at more than $500 but less than $1,000, a Class A misdemeanor. The trial court ordered the Defendant to serve 11 months and 29 days in the county jail, suspended to community corrections. The sole issue presented for our review is whether the evidence is sufficient to support the conviction. Upon review, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 12/30/14
State of Tennessee v. Andrew Barry Diebold
W2014-00466-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn Peeples

The defendant, Andrew Barry Diebold, entered pleas of guilty to possession of marijuana with the intent to manufacture, deliver, or sell and possession of drug paraphernalia. He was sentenced, respectively, to two years as a standard offender, to serve ninety days, with one year and nine months of unsupervised probation, and to ninety days at 75%. As a condition of his pleas, he reserved as a certified question if the warrantless search of his backpack by a law enforcement officer was illegal. The search was made by the defendant’s father, who was a lieutenant with the Brownsville Police Department, as the backpack was in the passenger side of the father’s truck, which the defendant had been operating. We conclude that the certified question is not dispositive of the case and, therefore, dismiss the appeal.

Haywood County Court of Criminal Appeals 12/30/14
State of Tennessee v. Albert Jackson
W2014-00050-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

The defendant, Albert Jackson, was convicted by a Shelby County Criminal Court jury of attempted voluntary manslaughter, a Class D felony; aggravated assault, a Class C felony; employing a firearm during the commission of a felony, a Class C felony; reckless endangerment with a deadly weapon, a Class E felony; and felon in possession of a handgun, a Class E felony. He was sentenced to an effective term of twenty-four years in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 12/30/14
State of Tennessee v. Boyce Turner
E2013-02304-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Stacy L. Street

The Defendant, Boyce Turner, was indicted by the Washington County Grand Jury on two counts of driving under the influence (“DUI”), two counts of DUI 4th offense, evading arrest, resisting arrest, and driving on a revoked license. The Defendant refused law enforcement’s request to submit to a blood test to determine his blood alcohol content, and his blood was taken, without a warrant and over his objections, pursuant to Tennessee Code Annotated section 55-10-406(f)(2) (2012). The trial court subsequently granted the Defendant’s motion to suppress evidence of his blood alcohol content test, concluding that the Defendant’s Fourth Amendment rights were violated. In this appeal, the State argues that the trial court erred in granting the Defendant’s motion to suppress because the Defendant consented to the test by driving on the roads in Tennessee and exigent circumstances justified the warrantless search. Upon our review of the record, we affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 12/30/14
Antonio Williams v. State of Tennessee
E2014-00419-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Mary B. Leibowitz

Antonio Williams (“the Petitioner”) pleaded guilty to three counts of possession with intent to sell a Schedule II controlled substance within a drug-free zone and agreed to a revocation of probation on a prior sentence. Pursuant to his plea agreement, the Petitioner received a total effective sentence of ten years to be served at 100%. In this appeal from the denial of post-conviction relief, the Petitioner contends that the post-conviction court erred in finding: (1) that his plea was intelligently and voluntarily made; and (2) that trial counsel’s performance was not deficient. After a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 12/30/14
State of Tennessee v. Lashay Nicole Scruggs
W2014-00091-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Weber McCraw

Lashay Nicole Scruggs (“the Defendant”) appeals from the trial court’s denial of judicial diversion. On appeal, the Defendant argues that the trial court abused its discretion by (1) placing heavy emphasis on charges listed as “pending” in the pre-sentence report but that were actually disposed of prior to the sentencing hearing; (2) placing emphasis on the presence of marijuana in the Defendant’s system when marijuana use was not an element of vehicular manslaughter as charged in this case; and (3) placing emphasis on the need to deter others from driving irresponsibly when there was no evidence of such a need in the record. Upon review, we find that the trial court did not abuse its discretion and affirm the judgment of the trial court.

Fayette County Court of Criminal Appeals 12/30/14
Alicia Shane Lovera v. State of Tennessee
W2014-00794-CCA-R3-HC
Authoring Judge: Judge Robert L. Holloway Jr.
Trial Court Judge: Judge John W. Campbell

In 1996, the Petitioner, Alicia Shayne Lovera, was found guilty by a jury of first degree premeditated murder of her husband. On the morning of the sentencing hearing in which the State was seeking a sentence of life without the possibility of parole, the Petitioner agreed to plead guilty to first degree premeditated murder in return for a sentence of life with the possibility of parole. In March 1999, the Petitioner filed a petition for post-conviction relief. Following a hearing, the trial court denied relief, and the Petitioner appealed. This Court affirmed the trial court’s denial of post-conviction relief. On December 19, 2013, the Petitioner filed a writ of habeas corpus alleging the judgment of conviction was void on its face because it was entered upon her plea of guilty after she had been found guilty by a jury. The habeas corpus court dismissed the petition without an evidentiary hearing for failure to state a claim. After a thorough review of the record, we affirm.

Shelby County Court of Criminal Appeals 12/30/14
Frederick O. Edwards v. State of Tennessee
W2014-01463-CCA-R3-CO
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge William B. Acree

The Petitioner, Frederick O. Edwards, appeals the Weakley County Circuit Court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The Petitioner contends that the trial court erred by treating his Rule 36.1 motion as a petition for post-conviction relief and further asserts that he has presented a colorable claim for relief. We agree that the trial court’s treatment of the Petitioner’s motion to correct an illegal sentence as a petition for post-conviction relief was error, but because we conclude that the Petitioner has not presented a colorable claim, the trial court’s order denying relief is affirmed.

Weakley County Court of Criminal Appeals 12/30/14
State of Tennessee v. Katius J. Williams
W2013-02542-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Russell Lee Moore, Jr.

The Defendant, Katius J. Williams, was indicted on one count each of aggravated burglary, aggravated rape, and aggravated robbery. See Tenn. Code Ann. §§ 39-13-402, -13-502, -14-403. Following a jury trial, the Defendant was convicted of aggravated burglary, aggravated rape, and the lesser-included offense of theft of property valued at $500 or less. See Tenn. Code Ann. §§ 39-14-103, -105. The trial court sentenced the Defendant as a Range II, multiple offender to an effective forty-year sentence. On appeal, the Defendant contends (1) that the evidence was insufficient to sustain his convictions; (2) that the trial court erred by making “no findings as to why maximum sentences were appropriate”; and (3) that the total effective sentence was excessive. Following our review, we affirm the judgments of the trial court.

Dyer County Court of Criminal Appeals 12/30/14
Thaddeus Johnson v. State of Tennessee
W2014-00053-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Glenn Ivy Wright

Petitioner, Thaddeus Johnson, was convicted of first degree murder and attempted first degree murder. For these crimes, he received a life sentence and a consecutive twenty-five year sentence. Petitioner timely filed a petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial and on appeal. The post-conviction court denied relief, finding that Petitioner failed to prove his claims by clear and convincing evidence. In this appeal, Petitioner challenges the dismissal of his petition and also alleges ineffective assistance at the post-conviction hearing. After reviewing the parties’ briefs, the record, and applicable law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 12/29/14
State of Tennessee v. Leslie Allen Ware, Jr.
E2013-02855-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The defendant, Leslie Allen Ware, Jr., appeals his Sullivan County Criminal Court jury convictions of conspiracy to possess 26 grams or more of cocaine with intent to sell or deliver, possession of 26 grams or more of cocaine for sale or delivery, maintaining a dwelling where controlled substances are used or sold, facilitation of theft, facilitation of conspiracy to commit robbery, and two counts of criminally negligent homicide. The defendant received an effective sentence of 36 years. He claims on appeal that the sentences imposed by the trial court were excessive. Discerning no error, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 12/29/14
Glyn Terrance Dale, Sr. v. State of Tennessee
E2014-00552-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Bob R. McGee

The Petitioner, Glyn Terrance Dale, Sr., appeals as of right from the Knox County Criminal Court’s dismissal of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective for introducing into evidence at trial two statements the victim made to an investigator from the Department of Children Services (DCS). Following our review, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 12/29/14
State of Tennessee v. Christian Philip Van Camp
E2013-00667-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Rex H. Ogle

Defendant, Christian Philip Van Camp, was indicted for driving under the influence, driving while his blood alcohol was in excess of the legal limit, and failing to maintain his proper lane of traffic. Defendant moved to suppress evidence obtained as a result of the traffic stop, arguing that it was not properly supported by either probable cause or reasonable suspicion. After a hearing, the trial court denied his motion. After a bench trial, Defendant was convicted as charged. On appeal, Defendant argues that the trial court erred in failing to suppress the evidence obtained as a result of the unconstitutional seizure of his vehicle. Upon our review of the record, we conclude that the officer had reasonable suspicion to conduct a brief investigatory stop based on information received from a known citizen informant. Therefore, we affirm the judgments of the trial court.

Cocke County Court of Criminal Appeals 12/29/14
State of Tennessee v. James D. Wooden
E2014-01069-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Carroll L. Ross

Appellant, James D. Wooden, appeals the trial court’s summary denial of his motion to correct an illegal sentence, as permitted by Tennessee Rule of Criminal Procedure 36.1, for lack of jurisdiction because the sentences have already expired. Although the trial court had jurisdiction to consider the motion, we determine Appellant has failed to state a colorable claim entitling him to relief and, therefore, affirm the denial of the motion.

Bradley County Court of Criminal Appeals 12/26/14
State of Tennessee v. Coty Shane Smith
E2014-00490-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Amy F. Reedy

Defendant, Coty Shane Smith, pled guilty to one count of second degree murder. The trial court sentenced him to an effective sentence of twenty-five years in the Tennessee Department of Correction. On appeal, Defendant contends that the trial court imposed an excessive sentence by improperly applying an enhancement factor and imposing a sentence that is disproportionate to the sentence received by one of the co-defendants in his case and to sentences received in other second degree murder convictions throughout the state. After a thorough review of the record and the applicable authorities, we affirm the judgment of the trial court.

Monroe County Court of Criminal Appeals 12/26/14
Misty Jane Brunelle v. State of Tennessee
E2014-00292-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge John F. Dugger, Jr.

Petitioner, Misty Jane Brunelle, was convicted of three counts of aggravated child abuse in relation to broken bones sustained by her infant daughter. Her convictions and sentences were affirmed on appeal. State v. Misty Brunelle, E2006-00467-CCA-R3-CD, 2007 WL 2026616 (Tenn. Crim. App. July 13, 2007), perm. app. denied (Tenn. Oct. 22, 2007) (“Brunelle I”). Petitioner then filed a post-conviction petition, which was denied. This Court affirmed the denial of the post-conviction petition on the basis of ineffective assistance of counsel, but reversed the lower court’s determination that no newly discovered evidence existed. Misty Jane Brunelle v. State, No. E2010-00662-CCA-R3-PC, 2011 WL 2436545 (Tenn. Crim. App. June 16, 2011), perm. app. denied (Tenn. Oct. 18, 2011) (“Brunelle II”). Petitioner then filed a petition for writ of error coram nobis, claiming that newly discovered evidence existed which may have resulted in a different outcome had it been presented at trial. After a hearing, the coram nobis court denied the petition. Based upon a thorough review of the law, record, and arguments in this case, we hold that the coram nobis court did not abuse its discretion in denying the petition. Therefore, we affirm the decision of the coram nobis court.

Greene County Court of Criminal Appeals 12/26/14
State of Tennessee v. John Talley - concurring in results
E2014-01313-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Barry A. Steelman

I concur in results only, and I write separately in order to express my disagreement with the statement in the lead opinion by Judge Easter that if the sentences have been fully served, “the controversy is moot.” I respectfully submit that this conclusion is erroneous.

Hamilton County Court of Criminal Appeals 12/26/14
State of Tennessee v. John Talley
E2014-01313-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Barry A. Steeleman

Appellant, John Talley, appeals the trial court’s summary denial of his motion to correct illegal sentences, imposed over twenty-eight years ago, filed pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court found it lacked jurisdiction because the sentences have already expired and because the trial court could not determine that the “sentence[s] are illegal.” We determine, because of the broadness of Rule 36.1, the trial court had jurisdiction to consider the motion and that Appellant stated a colorable claim, as currently defined. Accordingly, the judgment of the Criminal Court is remanded for further proceedings consistent with this opinion.

Hamilton County Court of Criminal Appeals 12/26/14
Dexter Frank Johnson v. State of Tennessee
E2014-00659-CCA-R3-ECN
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Barry A. Steelman

Pro se Petitioner, Dexter Frank Johnson, appeals the summary dismissal of his third motion seeking to reopen his post-conviction proceedings and/or the denial of a writ of coram nobis by the Criminal Court of Hamilton County. He further claims that the post-1 conviction court erred by failing to appoint counsel to assist him with his petition because he is illiterate. Upon our review, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 12/23/14
State of Tennessee v. Jerome Wall
W2014-00782-CCA-R3-CO
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge John W. Campbell

Appellant, Jerome Wall, pleaded guilty to aggravated robbery and robbery. Appellant subsequently filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed because appellant’s sentences had expired. On appeal, appellant argues that the trial court erred by summarily dismissing his motion because an illegal sentence may be challenged at any time pursuant to Rule 36.1 and that on remand, his case should be assigned to a different trial judge because the trial judge was not impartial as to the Rule 36.1 motion. The State concedes to appellant’s Rule 36.1 argument and states in its brief that this case should be reversed and remanded to the trial court. 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 12/23/14
Vincent Sims v. State of Tennessee
W2014-00166-CCA-R3-PD
Authoring Judge: Judge Robert L. Holloway Jr.
Trial Court Judge: Judge Chris Craft

The Petitioner, Vincent Sims, appeals from the denial of his petition for writ of error coram nobis, in which he claimed he is intellectually disabled and, therefore, ineligible for the death penalty. On appeal, the Petitioner contends that the trial court erred in denying his petition for writ of error coram nobis and his stand-alone claim under the intellectual disability provisions in Tennessee Code Annotated section 39-13-203. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/23/14
State of Tennessee v. Lester Arnold Clouse
M2013-02633-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Senior Judge Donald P. Harris

Appellant, Lester Arnold Clouse, was convicted of aggravated assault, a Class C felony; simple assault, a Class A misdemeanor; and resisting arrest, a Class B misdemeanor.  After merger of the resisting arrest conviction with the aggravated assault conviction, the trial court sentenced him to fifteen years and eleven months, twenty-nine days, respectively.  Appealing from his convictions and sentences, appellant argues that: (1) the trial court improperly denied his motion to suppress; (2) the trial court failed to approve the verdicts as thirteenth juror; (3) the evidence was insufficient to support his assault convictions; and (4) the trial court erred in sentencing him to fifteen years in confinement consecutive to other outstanding sentences.  Following our review, we affirm the convictions.  However, we reverse appellant’s sentences and remand this cause for a new sentencing hearing.

White County Court of Criminal Appeals 12/23/14
Octavious Taylor v. State of Tennessee
W2014-00678-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Mark Ward

The petitioner, Octavious Taylor, filed pro se in 2013 a timely petition for post-conviction relief challenging his 2012 Shelby County, guilty-pleaded convictions of aggravated robbery and especially aggravated robbery for which he received an effective 21-year sentence to be served at 100 percent in the Department of Correction. The petitioner asserted that his guilty pleas were not knowingly, intelligently, or voluntarily made and that his trial counsel rendered ineffective assistance. Following the appointment of counsel, the filing of an amendment to the petition, and an evidentiary hearing, the post-conviction court denied relief. In this timely appeal, the petitioner advances his claim of an infirm guilty plea. Because the record supports the decision of the post-conviction court, we affirm its judgment.

Shelby County Court of Criminal Appeals 12/22/14
State of Tennessee v. Demarcus Keyon Cole
W2013-02850-CA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan Jr.

The defendant, Demarcus Keyon Cole, was convicted by a Madison County jury of first degree felony murder and especially aggravated robbery, a Class A felony, and was sentenced by the trial court to consecutive terms of life and twenty years, to be served consecutively to a six-year sentence for a previous conviction. The sole issue the defendant raises on appeal is whether the evidence is sufficient to sustain his convictions. Following our review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 12/22/14
State of Tennessee v. Jason Lee Fisher
M2014-00615-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Lee Russell

The Defendant, Jason Lee Fisher, was convicted by a Marshall County Circuit Court jury of felony escape, a Class E felony.  See T.C.A. § 39-16-605(a) (2014).  The trial court sentenced the Defendant to six years’ confinement at 60% service to be served consecutively to a previous sentence.  On appeal, the Defendant contends that the evidence is insufficient to support his conviction and that the trial court erred by denying his motion for a judgment of acquittal.  We affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 12/22/14