Court of Criminal Appeals Opinions

Format: 11/22/2017
Format: 11/22/2017
Larry McNutt v. State of Tennessee
W2016-01086-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Glenn Ivy Wright

Petitioner, Larry McNutt, appeals the post-conviction court’s denial of relief from his convictions for reckless endangerment and aggravated assault. On appeal, Petitioner argues that he received ineffective assistance of counsel. After a thorough review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 09/08/17
Everett Russ v. State of Tennessee
W2017-00133-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris Craft

The petitioner, Everett Russ, appeals the denial of his petition for post-conviction relief from his 2012 Shelby County Criminal Court jury convictions of two counts of aggravated sexual battery. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 09/08/17
State of Tennessee v. Kevin Watkins, III
W2016-02481-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

The Defendant, Kevin Watkins, III, pleaded guilty to two counts of aggravated burglary and agreed to allow the trial court to determine the length and manner of service of his sentence. The trial court subsequently ordered the Defendant to serve concurrent six-year and three-year sentences in confinement. On appeal, the Defendant contends that the trial court erred when it applied two enhancement factors to his sentence and when it denied him alternative sentencing. After review, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 09/08/17
Brooke Whitaker v. Trinity Minter, Warden
W2017-00127-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Joseph Walker

Petitioner, Brooke Whitaker, appeals the Lauderdale County Circuit Court’s dismissal of her petition for writ of habeas corpus. Because we determine that Petitioner has failed to file a timely notice of appeal or provide a reason as to why the timely filing of the notice of appeal should be waived, the appeal is dismissed.

Lauderdale County Court of Criminal Appeals 09/08/17
State of Tennessee v. Kevin Lynn Morris
W2017-00126-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Kyle Atkins

The Defendant, Kevin Lynn Morris, was convicted by a Chester County jury of aggravated burglary, theft of property valued at $500 or less, vandalism, and evading arrest. His sole issue on appeal is that the trial court erred by denying his motion for new trial based on newly discovered evidence. Upon review, we affirm the judgment of the trial court.

Chester County Court of Criminal Appeals 09/08/17
State of Tennessee v. Marcus Jermaine Brooks
W2016-02071-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Madison County Circuit Court Jury convicted the Appellant, Marcus Jermaine Brooks, of aggravated assault by strangulation, a Class C felony, and the trial court sentenced him as a Range II, multiple offender to eight years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 09/08/17
Jeffrey King v. State of Tennessee
M2016-02166-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Dee David Gay

The petitioner, Jeffrey King, pleaded guilty to multiple drug and money laundering crimes, and the trial court sentenced him to forty years of incarceration to be served at 100%. The petitioner attempted to reserve certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) about whether wiretaps used in the investigation of the crime were lawful. This Court determined that the petitioner was not entitled to relief on the basis of the certified questions and affirmed the judgments on appeal. State v. King, 437 S.W.3d 856, 889 (Tenn. Crim. App. 2013). In 2015, the petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel and, after a hearing, the post-conviction court denied relief. After review, we affirm the post-conviction court’s judgment.

Sumner County Court of Criminal Appeals 09/08/17
Joseph Anthony Saitta, Jr. v. State of Tennessee
M2017-00081-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Larry B. Stanley, Jr.

The petitioner, Joseph Anthony Saitta, Jr., appeals the denial of post-conviction relief from his Warren County Circuit Court conviction for rape of a child. The petitioner alleges he received ineffective assistance of counsel and that the cumulative effect of trial counsel’s errors resulted in the denial of a fair trial. Discerning no error, we affirm the judgment of the post-conviction court.

Warren County Court of Criminal Appeals 09/08/17
State of Tennessee v. Robin Kathern Burton
E2016-01597-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Alex E. Pearson

The Defendant, Robin Kathern Burton, was indicted by a Hawkins County grand jury of one count of possession of a controlled substance with the intent to deliver and received a sentence of four years, with six months to be served in confinement. In this appeal as of right, the Defendant argues that the trial court abused its discretion in ordering her to serve a portion of her sentence in confinement. Upon review, we affirm the judgment of the trial court.

Hawkins County Court of Criminal Appeals 09/07/17
State of Tennessee v. Alonzo Christopher Downey
M2017-00304-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County trial judge convicted the Defendant, Alonzo Christopher Downey, of domestic assault sentenced him to serve eleven months and twenty-nine days of probation. On appeal, the Defendant contends that the evidence is insufficient to support his conviction. After review, we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 09/07/17
State of Tennessee v. Gary Robert Buchanan
M2016-01872-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl Blackburn

The Defendant, Gary Robert Buchanan, appeals the trial court’s imposition of an effective fourteen-year sentence upon resentencing following the revocation of his community corrections. After review, we affirm the sentencing decision of the trial court.

Davidson County Court of Criminal Appeals 09/07/17
State of Tennessee v. Yolanda N. Shedd
M2016-02102-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Curtis Smith

The Defendant, Yolanda N. Shedd, was indicted for one count of assault, a Class A misdemeanor. See Tenn. Code Ann.
§ 39-13-101. The Defendant was ultimately convicted by a jury of the lesser-included offense of attempted assault, a Class B misdemeanor. See Tenn. Code Ann. §§ 39-12-101, -12-107(a), -13-101. The trial court imposed a sentence of six months to be served on unsupervised probation. On appeal, the Defendant contends (1) that she received ineffective assistance of counsel because her trial counsel had a conflict of interest; (2) that she received ineffective assistance of counsel because trial counsel failed to “properly cross-examine” one of the State’s witnesses; and (3) that the trial court improperly interfered with trial counsel’s cross-examination of one of the State’s witnesses. However, our review of the record reveals that the Defendant failed to raise these issues in a timely motion for new trial; thereby, waving full appellate review. Additionally, we conclude that plain error review of the issues is not warranted. Accordingly, we affirm the judgment of the trial court.

Franklin County Court of Criminal Appeals 09/07/17
State of Tennessee v. Kimberly Reynolds
E2016-01934-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge R. Jerry Beck

Following the Defendant’s, Kimberly Reynolds, guilty-pleaded convictions for one count of theft of property valued at $1,000 or more and six counts of obtaining a controlled substance by fraud, the trial court imposed a sentence of three years’ incarceration for the theft charge and three years on community corrections for the fraud convictions to be served consecutively. Regarding her sentence of confinement, the Defendant appeals, arguing that she is a suitable candidate for alternative sentencing pursuant to the statutory considerations outlined in Tennessee Code Annotated section 40-35-103. Following our review, we affirm the trial court’s alternative sentencing decision.

Sullivan County Court of Criminal Appeals 09/06/17
State of Tennessee v. John H. Brichetto, Jr.
E2016-01001-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Paul G. Summers

A Morgan County Criminal Court jury convicted the Defendant-Appellant, John H. Brichetto, Jr., and his wife of theft of property valued at $60,000 or more but less than $250,000, a Class B felony, and Mr. Brichetto was subsequently sentenced as a Range I, standard offender to ten years’ incarceration. In exchange for a reduced sentence for his wife, Mr. Brichetto executed a written waiver of his post-judgment rights, including the right to seek relief from his conviction or sentence, the right to appeal, the right to file a petition for post-conviction relief, and the right to collaterally attack his conviction. The trial court, after determining that Mr. Brichetto knowingly and voluntarily agreed to the waiver, accepted the written waiver and sentenced Mr. Brichetto’s wife in accordance with the settlement agreement. Thereafter, Mr. Brichetto filed a motion to reduce his sentence pursuant to Tennessee Rule of Criminal Procedure 35, which the trial court denied without a hearing after reiterating that Mr. Brichetto knowingly and voluntarily waived his right to seek relief from his sentence. The court later entered a supplemental order denying the Rule 35 motion on the basis that it was untimely. On appeal, Mr. Brichetto argues (1) the trial court erred in denying his Rule 35 motion on the basis that it was untimely, and (2) the trial court erred in denying this motion based on his written waiver because the waiver is void. We affirm the judgment of the trial court.

Morgan County Court of Criminal Appeals 09/06/17
State of Tennessee v. Adam D. Little, Alias
E2016-02385-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Adam D. Little, alias, appeals as of right from the Knox County Criminal Court’s revocation of his probation and reinstatement of the remainder of his nine-year sentence for selling less than fifteen grams of heroin within 1,000 feet of a public park. On appeal, the Defendant asserts that the trial court abused its discretion by revoking his probation because the State failed to establish that he violated the law by a preponderance of the evidence. Following our review, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 09/06/17
State of Tennessee v. Raymond Arthur Klein
M2017-00061-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge William R. Goodman, III

The defendant, Raymond Arthur Klein, appeals his convictions and sentences for aggravated sexual battery and criminal attempt to commit rape of a child. The defendant argues there is insufficient evidence to support the jury’s verdict. Additionally, the defendant argues a violation of his Sixth Amendment right to confront the witnesses against him because he was not permitted to introduce the results of a polygraph examination from a prior investigation. Finally, the defendant argues his sentence was improperly ordered to be served consecutively to a prior sexual battery conviction. Following our review, we affirm the judgments and sentence of the trial court.

Montgomery County Court of Criminal Appeals 09/06/17
State of Tennessee v. Mark Anthony Thomas
W2016-00122-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge R. Lee Moore, Jr.

The Appellant, Mark Anthony Thomas, appeals the revocation of his probation to serve the remainder of his sentence in the Tennessee Department of Correction. The State has filed a motion requesting that this Court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 09/05/17
State of Tennessee v. Eric Sims
W2016-02049-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James M. Lammey

Following a jury trial, Eric Sims, the defendant, was convicted of one count of first degree murder, six counts of attempted first degree murder, and six counts of employment of a firearm during attempted first degree murder. The trial court imposed an effective sentence of life in prison plus one hundred and eighty-six years. On appeal, the defendant challenges the sufficiency of the evidence to sustain his convictions, the admission of evidence regarding his gang affiliation, and the length of his sentence. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 09/05/17
State of Tennessee v. Xavier Todd
W2016-02083-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James M. Lammey

The Defendant, Xavier Todd, appeals from the Shelby County Criminal Court’s dismissal of his motion to correct illegal sentences. The Defendant pleaded guilty to ten offenses, and he received an effective thirty-year sentence. His individual sentences were imposed concurrently to each other and concurrently to a federal sentence. On appeal, he contends that the trial court erred in dismissing his motion. We affirm the dismissal.

Shelby County Court of Criminal Appeals 09/05/17
Dean Heath v. State of Tennessee
W2016-00786-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge W. Mark Ward

The Petitioner filed a pro se petition for post-conviction relief. The post-conviction court summarily dismissed the petition because it was not timely filed and the Petitioner failed to present any factual allegations or documents allowing the tolling of the statute of limitations. On appeal, the Petitioner concedes that his petition was untimely filed but argues that the statute of limitations should be tolled and his petition addressed on its merits. The Petitioner also contends that this court should treat his motion to vacate, which was denied by the trial court, as a properly-filed petition for post-conviction relief. After a thorough review of the record and applicable case law, we affirm.

Shelby County Court of Criminal Appeals 09/05/17
State of Tennessee v. Eric Washington aka Erik Brock
W2016-00669-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Carolyn W. Blackett

Defendant, Eric Washington, appeals from the trial court’s revocation of probation for his convictions for aggravated assault, domestic assault, and vandalism under $500 and order that he serve his effective ten-year sentence in confinement. Defendant contends that the trial court abused its discretion by allowing hearsay testimony at the revocation hearing and that the evidence was insufficient to support the revocation. Upon our review of the record, we hold that the trial court erred by admitting hearsay testimony without a finding of good cause or reliability and that the trial court erred in revoking Defendant’s probation on a ground for which there was a lack of evidence in the record. Accordingly, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

Shelby County Court of Criminal Appeals 09/05/17
State of Tennessee v. Charles Fowlkes - concurring
E2016-02386-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Don W. Poole

I concur with the majority’s opinion affirming the trial court’s judgment based on the failure of the Defendant to strictly comply with the prerequisites established in State v. Preston, 759 S.W.2d 647 (Tenn. 1988).

Hamilton County Court of Criminal Appeals 09/05/17
State of Tennessee v. Charles Fowlkes
E2016-02386-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Don W. Poole

The Defendant, Charles Fowlkes, entered a guilty plea to driving under the influence (DUI) in exchange for a sentence of eleven months and twenty-nine days to be served on probation after the service of forty-eight hours in the Hamilton County jail. The Defendant reserved a certified question of law challenging the denial of his motion to suppress, which alleged that he was unconstitutionally stopped and seized. Following our review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 09/05/17
State of Tennessee v. Kaylon Sebron Bailey
E2015-01127-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Rebecca J. Stern

Following a mistrial for juror misconduct, the Defendant-Appellant, Kaylon Sebron Bailey, was convicted as charged by a Hamilton County Criminal Court jury of first degree premeditated murder and possession of a firearm after having been convicted of a felony drug offense. See T.C.A. §§ 39-13-202, 39-17-1307(b)(1)(B) (Supp. 2011). The trial court imposed a life sentence for the murder conviction before sentencing Bailey, pursuant to an agreement between the parties, as a Range I, standard offender to a concurrent two-year sentence for the firearm offense. On appeal, Bailey argues (1) the trial court erred in admitting the victim’s statements identifying him as the perpetrator of the shooting, and (2) the evidence is insufficient to sustain his convictions.1 We affirm Bailey’s convictions but remand the case for entry of a corrected judgment in Count 1 reflecting an indicted and conviction offense of first degree premeditated murder in violation of Tennessee Code Annotated section 39-13-202 and a corrected judgment in Count 2 reflecting an indicted offense of possession of a firearm after having been convicted of a felony drug offense in violation of Tennessee Code Annotated section 39- 17-1307.

Hamilton County Court of Criminal Appeals 09/05/17
James Howard Hurtch v. State of Tennessee
M2016-00539-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, James Howard Hurtch, appeals the denial of his petition for post-conviction relief by the Davidson County Criminal Court. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that his guilty plea was involuntary and unknowing. After review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 09/05/17