Court of Criminal Appeals Opinions

Format: 02/23/2019
Format: 02/23/2019
Antonio Howard v. State of Tennessee
W2018-00786-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The Petitioner, Antonio Howard, filed a petition for post-conviction relief, alleging, among other things, that trial counsel was ineffective for failing to file a timely motion for new trial. After a review of the record, we hold that the Petitioner’s trial counsel was deficient in this regard and that the Petitioner was presumptively prejudiced by the deficiency. Therefore, we reverse the judgment of the post-conviction court denying the petition and remand this case with instructions to that court that it grant the Petitioner a delayed appeal, beginning with the right to file a delayed motion for new trial.

Shelby County Court of Criminal Appeals 01/24/19
State of Tennessee v. Jasper Lee Vick
W2018-00823-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris Craft

A Shelby County jury convicted the Defendant, Jasper Lee Vick, of one count of especially aggravated kidnapping, two counts of aggravated kidnapping, and one count of sexual battery. The trial court merged his convictions for aggravated kidnapping into his conviction for especially aggravated kidnapping and sentenced the Petitioner, as a Range II offender, to an effective sentence of forty years of incarceration. After multiple appeals and remands, this court ordered that the Defendant be sentenced as a Range I offender and reduced his sentence to twenty-six years. State v. Vick, 242 S.W.3d 792, 795 (Tenn. Crim. App. 2007). The Defendant filed this, his second Rule 36.1 motion to correct an illegal sentence, and asked the trial court to credit him for pretrial jail credits. The trial court denied the Defendant’s motion, finding that his judgments appeared correct. On appeal, the Defendant maintains that he has not been awarded the proper amount of jail credits. After review, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 01/23/19
State of Tennessee v. Horatio Lamont Harrison
W2017-01798-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Kyle C. Atkins

The Defendant, Horatio Lamont Harrison, was indicted for driving under the influence (DUI), failure to yield, violation of the financial responsibility law, and violation of the implied consent law. See Tenn. Code Ann. §§ 55-8-131, -10-401, -10-406, -12-139. The Defendant filed a motion to suppress all evidence gathered during his traffic stop. The trial court concluded that the traffic stop was not supported by probable cause, granted the Defendant’s suppression motion, and dismissed the indictments. On appeal, the State contends that the trial court erred in granting the Defendant’s suppression motion. Following our review, we conclude that the trial court erred by not considering the State’s alternative theory attempting to establish that the stop was supported by probable cause or a reasonable suspicion. Accordingly, we reverse the judgments of the trial court and remand the case for a new suppression hearing.

Madison County Court of Criminal Appeals 01/23/19
Ercil K. Rayford v. Tennessee Board Of Parole, et al
W2018-00863-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joe H. Walker, III

In 1992, the Petitioner, Ercil K. Rayford, pleaded guilty to especially aggravated robbery and aggravated robbery for an effective sentence of thirty years. On April 23, 2018, the Petitioner filed a pro se writ of habeas corpus, alleging that his sentence had expired on July 12, 1999. The habeas corpus court denied the petition because the record failed to establish that the Petitioner’s sentence had expired. On appeal, the Petitioner maintains that his sentence has expired. After review, we affirm the habeas corpus court’s dismissal.

Hardeman County Court of Criminal Appeals 01/23/19
State of Tennessee v. Marico Vales
W2018-00424-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The Defendant, Marico Vales, was convicted by a Shelby County Criminal Court jury of first degree felony murder and especially aggravated robbery. See T.C.A. §§ 39-13-202 (2018) (first degree murder); 39-13-403 (2018) (especially aggravated robbery). The trial court sentenced the Defendant to concurrent terms of life imprisonment and twenty-five years. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/23/19
Morris Rucker v. State of Tennessee
M2018-00987-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Morris Rucker, appeals the Davidson County Criminal Court’s summary denial of his petition requesting DNA analysis of evidence pursuant to the Post-Conviction DNA Analysis Act of 2001. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 01/23/19
State of Tennessee v. Abbie Leann Welch - concurring in part and dissenting in part
E2018-00240-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge G. Scott Green

I write separately in this case to note my concerns and to reiterate that “burglary is a serious offense with serious consequences. . . . [It] is no petty crime.” State v. Office of the Public Defender ex rel. Muqqddin, 285 P.3d 622, 636 (N.M. 2012). The facts are simple and not in dispute. The Defendant, who previously had been banned from a retail store, entered the same retail store and shoplifted several clothing items valued under $100. Minutes later, the Defendant’s friends returned the stolen items in exchange for a store gift card or credit. This factual scenario is ordinarily prosecuted as a criminal trespass and shoplifting/theft, both misdemeanor offenses with a penalty of no more than eleven months and twenty-nine days. See, e.g., State v. Constance Elaine Archer, No. M2012-00154-CCA-R3-CD, 2012 WL 5188079, at *1 (Tenn. Crim. App. Oct. 19, 2012). Remarkably, the Defendant here was charged with and convicted of theft by shoplifting as described above and burglary, a felony with a penalty of two to twelve years imprisonment.

Knox County Court of Criminal Appeals 01/23/19
State of Tennessee v. Abbie Leann Welch
E2018-00240-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge G. Scott Green

Defendant, Abbie Leann Welch, entered a Walmart store and stole merchandise after she had received notification that she was banned from all Walmart properties. Defendant was convicted at a bench trial of one count of misdemeanor theft and one count of burglary. On appeal, Defendant argues that the burglary conviction should be dismissed because the burglary statute, Tennessee Code Annotated section 39-14-402, does not apply to entry into buildings open to the public. Upon our review, we hold that the burglary statute is not unconstitutionally vague and affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 01/23/19
State of Tennessee v. Jacquet Moore
W2017-02058-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James M. Lammey, Jr.

In November 2014, a Shelby County grand jury indicted the defendant, Jacquet Moore, for an aggravated rape committed in 2000. A jury convicted the defendant as charged and he received a sixty-year sentence. On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction and the trial court’s evidentiary rulings prohibiting him from eliciting testimony from witnesses regarding the area of the crime being one “known for prostitution” and from cross-examining the State’s DNA expert on an unidentified individual’s DNA found on the victim’s vaginal swab. Based upon our review of the record, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/18/19
Kentrail Sterling v. State of Tennessee
W2018-00989-CCA-R3-HC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge John Wheeler Campbell

The pro se petitioner, Kentrail Sterling, appeals the denial of his petition for writ of habeas corpus by the Shelby County Criminal Court, arguing the trial court erred in summarily dismissing the petition as the judgments against him are void for lack of subject matter jurisdiction. After our review, we affirm the summary dismissal of the petition pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 01/18/19
Adonis Lashawn McLemore v. State of Tennessee
M2018-00351-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Mark J. Fishburn

The Petitioner, Adonis Lashawn McLemore, appeals from the denial of post-conviction relief, alleging that trial counsel was ineffective in failing to impeach a witness, to present an alibi witness, and to rebut the State’s expert witness. Upon our review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 01/18/19
State of Tennessee v. Sommer Leininger
M2017-02020-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Stella L. Hargrove

The Defendant, Sommer Leininger, appeals as of right, from the Maury County Circuit Court’s revocation of her diversionary sentence and order of six months’ incarceration for her conviction for reckless aggravated assault. Tenn. Code Ann. § 39-13-102. The Defendant contends that (1) the trial court abused its discretion by ordering her to serve six months of split confinement instead of probation and (2) the trial court improperly restricted her ability to accumulate good behavior credits while incarcerated. Following our review, we affirm the judgment of the trial court in part but reverse and remand the case for entry of a corrected judgment removing the trial court’s restriction on the Defendant’s ability to accumulate good behavior credits.

Maury County Court of Criminal Appeals 01/18/19
Mario Johnson v. State of Tennessee
W2017-02461-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The Petitioner, Mario Johnson, appeals from the denial of his petition for post-conviction relief, wherein he challenged his jury convictions for aggravated assault and misdemeanor reckless endangerment. On appeal, the Petitioner alleges that he received ineffective assistance from his attorneys (1) because counsel1 failed to seek a hearing under Tennessee Rule of Evidence 609 to determine which of the Petitioner’s former convictions could have been used against him at trial had he chosen to testify; and (2) because lead counsel failed to present any mitigation witnesses at the sentencing hearing. After a thorough review of the record, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/17/19
Robert Wade v. State of Tennessee
W2017-01042-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Chris B. Craft

The Petitioner, Robert Wade, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that his plea agreement was not knowingly and voluntarily entered into because of his trial counsel’s ineffective assistance. Discerning no error, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/17/19
State of Tennessee v. Soncerae Lobbins
W2017-01398-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Paula Skahan

A Shelby County jury convicted the Defendant, Soncearae Lobbins, of two counts of aggravated kidnapping and one count of robbery. The trial court sentenced the Defendant to ten years of incarceration. On appeal, the Defendant claims that: (1) the evidence is insufficient to support her convictions; (2) the trial court erred when it failed to require the State to make a proper election of offenses; (3) the trial court’s jury instructions failed to ensure that the jury’s verdicts were unanimous as to each conviction; and (4) the trial court committed errors during sentencing. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 01/17/19
State of Tennessee v. Lesergio Duran Wilson
M2017-01950-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County grand jury indicted Lesergio Duran Wilson, the defendant, with first degree premeditated murder as a result of the death of David Hurst, the victim. Following trial, the jury returned a guilty verdict, for which the defendant received a life sentence. On appeal, the defendant challenges the trial court’s exclusion of his experts, denial of his motion to recuse the trial court, admission of certain photographic evidence, admission of evidence related to the actions of the victim’s girlfriend following his death, jury instructions regarding the use of deceptive practices by law enforcement, and imposition of a consecutive sentence. Discerning no errors, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 01/17/19
State of Tennessee v. Joshua Hill
E2018-00619-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge G. Scott Green

The Defendant, Joshua Hill, appeals the trial court’s revocation of his probation, arguing that the court should have imposed an alternative sentence rather than ordering him to serve the balance of his original sentence incarcerated and therefore abused its discretion. After thorough review, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 01/17/19
State of Tennessee v. Martinos Derring
W2017-02290-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Lee V. Coffee

Defendant, Martinos Derring, was convicted by a jury of robbery, theft, felony evading arrest, and evading arrest. The trial court sentenced Defendant to a total effective sentence of fourteen years, eleven months, and twenty-nine days. Defendant appealed, asserting various challenges to his convictions and effective sentence. On appeal, we determine that the trial court should have merged Defendant’s convictions for robbery and theft and committed a clerical error by marking the box rendering Defendant infamous for misdemeanor evading arrest. For those reasons, we reverse and remand to the trial court for entry of amended judgment forms. In all other respects, the judgments of the trial court are affirmed.

Shelby County Court of Criminal Appeals 01/16/19
Jay R. Hassman v. State of Tennessee
W2018-00784-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, Jay R. Hassman, pled guilty to unspecified charges in August of 2016 in exchange for a four-year sentence to be served on probation. The trial court subsequently revoked Defendant’s probation after a hearing and ordered Defendant to serve his original sentence. Defendant filed a “Motion for New Revocation Hearing” in which he argued that he received ineffective assistance of counsel at the revocation hearing. The trial court denied relief on the basis that the motion was untimely as a motion for reduction of sentence under Tennessee Rule of Criminal Procedure 35 and that the motion could not be construed as a petition for post-conviction relief. After a review of the scant record, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Madison County Court of Criminal Appeals 01/16/19
State of Tennessee v. Mack Transou
W2018-01009-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, Mack Transou, seeks appellate review of his motion to reopen his post-conviction petition, which has its origin in the rapes he committed over seventeen years ago. After a review of the filings in this case, we conclude that Defendant failed to meet the procedural requirements for seeking review of the dismissal of his motion and that Defendant’s claims are devoid of merit and frivolous. Therefore, we dismiss the appeal.

Madison County Court of Criminal Appeals 01/16/19
State of Tennessee v. Gregory L. Hatton
M2018-00909-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Robert L. Jones

The pro se Defendant, Gregory L. Hatton, appeals the Giles County Circuit Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. After review, we affirm the judgment of the trial court.

Giles County Court of Criminal Appeals 01/16/19
Lorenza Zackery v. State of Tennesse
M2018-00944-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The Petitioner, Lorenza Zackery, appeals the Davidson County Criminal Court’s denial of his petition for writ of habeas corpus. On appeal, the Petitioner argues that his convictions are invalid because the trial court clerk failed to file-stamp his judgments of conviction. We affirm the judgment of the habeas corpus court.

Davidson County Court of Criminal Appeals 01/16/19
State of Tennessee v. James Arthur Johnson
M2018-00337-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Mark J. Fishburn

The pro se Defendant, James Arthur Johnson, appeals the Davidson County Criminal Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. After review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 01/16/19
Natasha Bates v. State of Tennessee
E2017-01613-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Sandra Donaghy

The Petitioner, Natasha Bates, appeals the Bradley County Criminal Court’s denial of her petition for post-conviction relief from her convictions of two counts of first degree felony murder and two counts of aggravated child neglect and resulting effective sentence of two consecutive life terms. On appeal, the Petitioner contends that the trial court should have granted her motions to suppress evidence and that she received the ineffective assistance of trial counsel. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

Bradley County Court of Criminal Appeals 01/16/19
Larry Johnson v. State of Tennessee
W2017-00503-CCA-R3-ECN
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The Petitioner, Larry Johnson, appeals from the Shelby County Criminal Court’s denial of his petition for a writ of error coram nobis from his 1999 conviction for first degree premeditated murder and his sentence of life imprisonment. The Petitioner contends that the court erred by denying relief. We affirm the judgment of the coram nobis court.

Shelby County Court of Criminal Appeals 01/15/19