Court of Criminal Appeals Opinions

Format: 05/29/2015
Format: 05/29/2015
Alvertis Boyd v. State of Tennessee
W2014-00404-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris Craft

The Petitioner, Alvertis Boyd, was convicted of aggravated robbery, and the trial court sentenced him as a repeat violent offender to life imprisonment. This Court affirmed his conviction and sentence on appeal. State v. Alvertis Boyd, No. W2010-01513-CCA-R3-CD, 2011 WL 2586811, at *1 (Tenn. Crim. App., at Jackson, July 1, 2011), perm. app. denied (Tenn. Nov. 16, 2011). The Petitioner filed a petition seeking post-conviction relief, and, after a hearing, the post-conviction court denied the Petitioner relief. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 04/21/15
Anthony Washington v. James Holloway, Warden
W2014-02080-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joe H. Walker, III

The petitioner, Anthony Washington, appeals the Circuit Court for Lauderdale County’s denial of his pro se petition for writ of habeas corpus. 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.

Lauderdale County Court of Criminal Appeals 04/20/15
State of Tennessee v. Mikel C. Hamrick
W2014-02307-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The Defendant, Mikel C. Hamrick, pleaded guilty to aggravated burglary, especially aggravated stalking, domestic assault, and theft and received an effective four-year sentence to be served consecutively to the sentences he received in two unrelated cases. Less than four years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence on the ground that he pleaded guilty to the aggravated burglary of his own home, a legal impossibility. The trial court summarily dismissed the motion for failure to state a colorable claim. On appeal, he contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/20/15
State of Tennessee v. Damien Clark
W2014-01729-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Carolyn W. Blackett

The Defendant, Damien Clark, was convicted of second degree murder in 2006 and received a twenty-year sentence at 100% service. Seven years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence because his sentence was in violation of Tennessee Code Annotated section 40-35-120(g) (2014). The trial court summarily denied relief for failure to state a colorable claim. On appeal, he contends that the trial court erred in denying him relief. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/20/15
State of Tennessee v. Talmadge Hurt
W2014-00513-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James M. Lammey

Defendant, Talmadge Hurt, was indicted by the Shelby County Grand Jury in September of 2009 for aggravated robbery and attempted aggravated robbery. He was tried with co-defendant Adrian Chaney for events that occurred at La Playita Mexican Restaurant in Memphis in April of 2007. The jury convicted Defendant of facilitation of aggravated robbery and facilitation of attempted aggravated robbery. After a sentencing hearing, Defendant was sentenced to consecutive sentences of ten years for facilitation of aggravated robbery and eight years for facilitation of attempted aggravated robbery. Defendant did not file a motion for new trial or seek a direct appeal. He filed a petition for post-conviction relief in October of 2011, in which he alleged, among other things, that he received ineffective assistance of counsel when trial counsel failed to file a motion for new trial. The post-conviction court granted leave for Defendant to file a delayed appeal pursuant to Tennessee Code Annotated section 40-30-113(a)(3) and Tennessee Supreme Court Rule 28, Section 9. Defendant filed a motion for new trial. The motion was denied by the trial court and this appeal followed. Defendant presents the following issues for our review on appeal: (1) whether the evidence was sufficient to support the convictions; and (2) whether the trial court erred by refusing to allow a defense witness to testify whether he could identify Defendant from a still photograph taken from surveillance video of the incident. After a review, we determine that the evidence was sufficient to support the convictions for aggravated robbery and attempted aggravated robbery. Additionally, we determine that the trial court did not err by excluding the opinion testimony of a lay witness that was not helpful to a determination of a fact in issue.

Shelby County Court of Criminal Appeals 04/20/15
State of Tennessee v. Brian Lee Johnson
M2013-02503-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John D. Wootten, Jr.

A Wilson County Criminal Court Jury convicted the appellant, Brian Lee Johnson, of driving under the influence (DUI). Subsequently, the trial court convicted him of DUI, fifth offense; violating a habitual traffic offender order; and driving on a revoked license, fourth offense. After a sentencing hearing, the trial court sentenced him to an effective four-year sentence to be served as 315 days in confinement and the remainder on supervised probation. On appeal, the appellant contends that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Wilson County Court of Criminal Appeals 04/20/15
State of Tennessee v. Justin Allen Stratton - concurring
E2014-00816-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert E. Cupp

I write separately because I respectfully disagree with that portion of the majority’s opinion which concludes that the facts relevant to the issue whether the three co-defendants were accomplices are subject to only one interpretation. In my mind, the following facts at least raise the inference that Ms. Holtsclaw was an accomplice.

Washington County Court of Criminal Appeals 04/17/15
State of Tennessee v. Justin Allen Stratton
E2014-00816-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Robert E. Cupp

The Defendant, Justin Allen Stratton, was convicted of first degree premeditated murder by a Washington County Criminal Court jury. See T.C.A. § 39-13-202 (2014). He was sentenced to life in prison. On appeal, he contends that the evidence is insufficient to support his conviction and that plain error exists because the jury was not instructed regarding corroboration of accomplice testimony. We affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 04/17/15
State of Tennessee v. Robert Walden, Jr.
M2014-01692-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Thomas W. Graham

The defendant, Robert Walden, Jr., appeals the revocation of the probationary sentence imposed for his Marion County Circuit Court conviction of theft of property valued at $500 or more but less than $1,000. Discerning no error, we affirm.

Marion County Court of Criminal Appeals 04/17/15
State of Tennessee v. Larry Douglas Clemons
M2014-00131-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge John D. Wootten, Jr.

Defendant, Larry Douglas Clemons, pled guilty in Case No. 12-CR-213 to four counts of trafficking for sexual servitude (Counts 1-4), one count of attempt to commit trafficking for sexual servitude (Count 5), especially aggravated sexual exploitation of a minor (Count 6), thirteen counts of aggravated sexual exploitation of a minor (Counts 7-19), and six counts of sexual exploitation of a minor (Counts 20-25). In Case No. 12-CR-236 Defendant pled guilty to one count of aggravated sexual exploitation of a minor, and in Case No. 12-CR-302 Defendant pled guilty to two counts of trafficking for sexual servitude (Counts 1-2) and five counts of statutory rape (Counts 3-7). The trial court ordered a portion of the sentences to be served consecutively for an effective one-hundred seventy-six-year sentence. In his sole issue on appeal, Defendant asserts that the trial court erred by ordering partial consecutive sentencing. After a thorough review of the record and the briefs, we affirm the judgments of the trial court. However, we remand for a corrected judgment in Count 20 of Case No. 2012-CR-213.

Smith County Court of Criminal Appeals 04/17/15
State of Tennessee v. Antonio J. Beasley, Sr.
E2014-01845-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Barry A. Steelman & Judge Rebecca Stern
The Defendant, Antonio J. Beasley, Sr., was convicted of various offenses during 1989 and 1990. In 1989, the Defendant pleaded guilty to larceny and received six years’ probation. In 1990, the Defendant pleaded guilty to attempt to commit arson and to possession of cocaine and was sentenced to concurrent terms of four years’ confinement for attempted arson and eleven months, twenty-nine days for possession of cocaine. Twenty-four years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence relative to the attempted arson and drug possession convictions because the court erroneously imposed concurrent sentences because the Defendant was “out on the grand larceny.” The trial court summarily dismissed the motion for failure to state a colorable claim. On appeal, he contends that the trial court erred by dismissing his motion. We affirm the judgment of the trial court. 
 
Hamilton County Court of Criminal Appeals 04/16/15
State of Tennessee v. Richard Thomas Kelley
M2014-00740-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John H. Gasaway, III

The defendant, Richard Thomas Kelley, was convicted after a jury trial of four counts of rape of a child, a Class A felony; three counts of aggravated sexual battery, a Class B felony; and one count of assault, a Class B misdemeanor. He was sentenced to thirty years’ imprisonment for each of the convictions for rape of a child, ten years’ imprisonment for each of the convictions for aggravated sexual battery, and six months’ imprisonment for the assault conviction, all to be served concurrently at 100%. On appeal, the defendant challenges the sufficiency of the convicting evidence. After a thorough review of the record, we conclude that the evidence is sufficient to support the verdicts, and we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 04/16/15
State of Tennessee v. Tommy Kaye Thompson
M2014-00596-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert Lee Holloway, Jr.

During the search of a recreational vehicle (“RV”) belonging to the defendant, Tommy Kaye Thompson, police uncovered approximately eight ounces of marijuana, two sets of scales, plastic baggies, and numerous firearms. The defendant challenged the search on the grounds that the search warrant, which was targeted at recovering security equipment allegedly stolen by the defendant’s grandson, was issued for a search of the house on the defendant’s property but did not extend to the RV, which was parked on a neighboring lot and tethered to the defendant’s property through an electrical cord. The trial court denied the motion to suppress, and a jury convicted the defendant of the possession of not less than one-half ounce or more than ten pounds of marijuana with the intention to sell, a Class E felony, and possession of drug paraphernalia, a Class A misdemeanor. He was acquitted of a firearms offense. On appeal, the defendant asserts that the trial court erred in denying his motion to suppress because the RV was outside the scope of the search warrant. We conclude that the search warrant authorized the search of the RV, and we accordingly affirm the judgments of the trial court.

Giles County Court of Criminal Appeals 04/15/15
Jarod Marges Phillips v. State of Tennessee
M2014-01374-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Seth W. Norman

Jarod Marges Phillips (“the Petitioner”) filed a petition for post-conviction relief claiming that his guilty plea was involuntary and unknowing and that he received ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. Upon review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 04/15/15
Terry Earl Jackson v. State of Tennessee
E2014-01511-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Don W. Poole
Petitioner, Terry Earl Jackson, appeals the trial court’s summary dismissal of his motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. He alleges that his sentences are illegal because his concurrent sentences had to run consecutively because he was on probation at the time of the offenses. After a thorough review, we affirm the judgment of the trial court.
 
Hamilton County Court of Criminal Appeals 04/14/15
Derek Williamson v. State of Tennessee
M2014-00183-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Dee David Gay

The Petitioner, Derek Williamson, appeals the Sumner County Criminal Court’s denial of his petition for post-conviction relief from his conviction for first degree murder and his life sentence. He contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Sumner County Court of Criminal Appeals 04/14/15
State of Tennessee v. Derek C. Miller
M2014-01169-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James G. Martin, III

Defendant, Derek C. Miller, appeals his conviction for attempted tampering with evidence.  He argues that the trial court wrongly denied his motion for judgment of acquittal as to the charged offense of tampering with evidence because the evidence adduced by the State was insufficient to support this charge.  According to Defendant, had the trial court not erred in denying his motion, the trial court would have been precluded from charging the jury with the lesser-included crime of attempt, of which Defendant was ultimately convicted.  After careful review of the parties’ briefs, the record, and the applicable law, we conclude that Defendant is not entitled to relief.  Accordingly, the judgment of the trial court is affirmed.

Perry County Court of Criminal Appeals 04/14/15
State of Tennessee v. George A. Mikita
M2014-00650-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mitchell Keith Siskin

Defendant, George A. Mikita, was implicated in two separate home invasions and charged with various crimes as a result.  Defendant entered guilty pleas to two counts of aggravated burglary, one count of theft of property valued at $1,000 or more, and one count of theft of property valued at $500 or more.  Defendant was sentenced to an effective sentence of thirteen years after a sentencing hearing.  Defendant appeals, challenging the trial court’s imposition of consecutive sentences under a theory dubbed “just desserts.”  After a review, we determine there is no evidence that the trial court abused its discretion in sentencing Defendant to an effective sentence of thirteen years.  Consequently, the judgments of the trial court are affirmed.

Rutherford County Court of Criminal Appeals 04/13/15
State of Tennessee v. Marcus Anthony Robey
M2014-00773-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Mitchell Keith Siskin

Defendant, Marcus Anthony Robey, timely filed a motion to withdraw his guilty plea to the Class C felony offense of possessing a firearm at a time when he had previously been convicted of a felony offense involving the use or attempted use of force, violence, or a deadly weapon. The motion was filed after sentence had been imposed pursuant to a negotiated plea agreement which involved other convictions that are not a part of this appeal. Following an evidentiary hearing, the trial court denied the motion. After review of the record and the briefs of the parties, we affirm the judgment of the trial court.

Rutherford County Court of Criminal Appeals 04/13/15
Dericko Jackson v. State of Tennessee
W2014-01453-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris Craft

In 1998, the Petitioner, Dericko Jackson, pleaded guilty to first degree felony murder, especially aggravated robbery, and aggravated assault. The trial court entered the agreed sentences of life imprisonment for the felony murder conviction, fifteen years for the especially aggravated robbery conviction, and three years for the aggravated assault conviction. The life sentence and the fifteen-year sentence were ordered to run consecutively, and the three-year sentence was ordered to run concurrently with the life sentence. The judgment forms for each of the three convictions reflect that the Petitioner is entitled to 480 days of pretrial jail credit. The Petitioner filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, asserting that his sentence was illegal because the life sentence and the fifteen-year sentence both reflected 480 days of jail credit, and the jail credit should have only been applied to one of these convictions. The trial court summarily denied the motion, and the Petitioner appealed. On appeal, the Petitioner asserts that the trial court erred when it summarily dismissed his petition because he stated a colorable claim that his sentence is illegal. After review, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 04/13/15
Tommy Nunley v. State of Tennessee
W2014-01776-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge John Wheeler Campbell

Petitioner, Tommy Nunley, appeals the denial of his petition for relief under the Post-Conviction DNA Analysis Act of 2001. Because the post-conviction court properly determined that the evidence sought for analysis had been lost or destroyed, Petitioner is not entitled to relief. Accordingly, the decision of the post-conviction court is affirmed.

Shelby County Court of Criminal Appeals 04/13/15
State of Tennessee v. Amber Renee Terry
W2014-01628-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge C. Creed McGinley

Defendant, Amber Renee Terry, pled guilty to theft of property valued at $10,000 or more and official misconduct and was sentenced to a total effective sentence of three years, suspended to supervised probation. After a hearing, the trial court denied judicial diversion. Upon our review of the record, we determine that the trial court did not abuse its discretion in denying judicial diversion. Therefore, the judgments of the trial court are affirmed.

Hardin County Court of Criminal Appeals 04/13/15
John C. Crim v. State of Tennessee-Concurring in part and dissenting in part
M2014-00948-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge David Earl Durham

I respectfully dissent from that portion of the majority’s opinion which affirms part of the post-conviction court’s summary dismissal of the post-conviction petition. A colorable claim was made in the pro se petition. The post-conviction court clearly erred by summarily dismissing the petition. I conclude that upon remand under these circumstances the interests of justice dictate that the entire pro se petition must be considered by the post-conviction court. It may be that some of Petitioner’s claims have been waived or previously determined - but that should be determined after a full hearing. This court should not sanction a rush to judgment when a trial court has erred as in this case. Accordingly, I would respectfully reverse the order of the post-conviction court without affirming any portion of it.

Wilson County Court of Criminal Appeals 04/13/15
John C. Crim v. State of Tennessee
M2014-00948-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge David Earl Durham

Petitioner, John C. Crim, appeals the summary dismissal of his petition for post-conviction relief for failure to state a colorable claim.  After careful review of the parties’ briefs, the record, and the applicable law, we conclude that the petition alleged a colorable claim of ineffective assistance of counsel, thereby entitling Petitioner to appointed counsel and to an opportunity to amend his petition with the aid of post-conviction counsel.  Additional claims made by Petitioner were previously determined during his direct appeal and were, therefore, properly dismissed.  Accordingly, the judgment of the post-conviction court is affirmed in part, reversed in part, and remanded.

Wilson County Court of Criminal Appeals 04/13/15
Frederick Moore v. State of Tennessee
W2014-01740-CCA-R3-ECN
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Roy B. Morgan, Jr.

Appellant, Frederick Moore, appeals the denial of his petition for writ of error coram nobis in which he challenged his convictions for first degree premeditated murder, felony murder, aggravated kidnapping, and two counts of tampering with evidence and his effective sentence of life imprisonment plus twenty years. We affirm the judgment of the coram nobis court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Madison County Court of Criminal Appeals 04/09/15