Court of Criminal Appeals Opinions

Format: 08/28/2016
Format: 08/28/2016
State of Tennessee v. Shecky Dotson
W2015-00746-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James M. Lammey

Shecky Dotson (“the Defendant”) was indicted in Count 1 for driving while under the influence of an intoxicant (“DUI”), in Count 2 for reckless driving, and in Count 3 for DUI per se. In a separate document, the grand jury presented that the Defendant had one prior conviction for DUI. After a jury trial, the Defendant was acquitted in Count 1 and Count 2 and convicted in Count 3. On appeal, the Defendant argues that the trial court should have suppressed the results of his blood alcohol test. Specifically, he contends that the trial court erred in finding the Defendant gave actual consent for a blood draw and erred in finding the Defendant failed to revoke his implied consent. After a thorough review of the record, we have determined that, based on a totality of the circumstances, the Defendant freely and voluntarily gave actual consent for a blood draw and that the trial court did not err in denying the Defendant's motion to suppress the results of the warrantless blood draw. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 07/13/16
Joey Godwin v. State of Tennessee
W2015-01535-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Clayburn Peeples

The petitioner, Joey Godwin, appeals the denial of his petition for post-conviction relief. The petitioner is currently serving two consecutive thirty-year sentences for his two convictions for sale of .5 grams or more of cocaine. On appeal, he contends that the post-conviction court erred in denying his petition because he received ineffective assistance of counsel. Specifically, he contends that trial counsel was ineffective by: (1) not allowing the petitioner to testify at his trial; (2) failing to file a motion for change of venue; and (3) advising the petitioner to reject a twelve-year plea offer from the State. Following review of the record, we conclude that the post-conviction court did not err and affirm the denial of post-conviction relief.

Gibson County Court of Criminal Appeals 07/13/16
State of Tennessee v. Earl Jerome Lee, Jr.
W2015-00968-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Donald H. Allen

Defendant, Earl Jerome Lee, Jr., filed various pro se motions seeking relief from his convictions in case numbers 87-467 and 87-347 in the Madison County Circuit Court. One motion sought relief pursuant to Tennessee Rule of Criminal Procedure (Tenn. R. Crim. P.) 36.1 based upon the fact that he received illegal concurrent sentences upon his guilty pleas in 1988. One of the sentences was for forty years of imprisonment, so the sentences have not all expired. Defendant asserted that concurrent sentencing was illegal pursuant to Tenn. R. Crim. P. 32(c)(3)(C) because he was on bond for the felony offenses in case number 87-347 when he committed the offenses in case number 87-467, and he was convicted of all the felonies. Another motion was “for exculpatory evidence” and yet another was “for review extraordinary appeal.” Defendant’s notice of appeal in the present case was filed May 13, 2015, appealing the trial court’s judgments filed May 1, 2015, which denied the three motions. For the reasons stated below, we affirm the judgments of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Madison County Court of Criminal Appeals 07/13/16
Brandon L. Kirk v. State of Tennessee
M2015-01203-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge William R. Goodman, III

Following two jury trials, Petitioner, Brandon L. Kirk, was convicted of various offenses which resulted in a total effective sentence of 22 years.  All convictions were affirmed on appeal.  State v. Brandon L. Kirk, No. M2012-01331-CCA-R3-CD, 2013 WL 3148276 (Tenn. Crim. App. June 18, 2013).  Petitioner filed a pro se petition for post-conviction relief.  Counsel was appointed and an amended petition was filed.  Following an evidentiary hearing in which only Petitioner and trial counsel testified, the post-conviction court denied relief.  Petitioner has appealed, asserting that trial counsel rendered ineffective assistance of counsel.  After a thorough review, we affirm the judgment of the post-conviction court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Robertson County Court of Criminal Appeals 07/13/16
State of Tennessee v. Michael Brown
M2015-02139-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Jude Forest A. Durard, Jr.

The defendant, Michael Brown, appeals the trial court’s decision to require him to serve sixty days in confinement for his conviction for sexual contact with an inmate, a Class E felony.  After a thorough review of the record, we conclude that the trial court did not abuse its discretion in sentencing, and we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 07/13/16
State of Tennessee v. Marcus T. Johnson
E2016-00004-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Marcus T. Johnson, entered a guilty plea in 2011 to the sale of cocaine and received a ten-year sentence. In 2015, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting the correction of an illegal sentence. The trial court summarily denied relief. On appeal, the Defendant contends that the trial court erred by dismissing the motion. We affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 07/13/16
State of Tennessee v. Lindsey Brooke Lowe
M2014-00472-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Dee David Gay

The parents of the defendant, Lindsey Brooke Lowe, discovered the body of one of her newborn twins in a laundry basket in her bedroom.  A second deceased newborn was also found in the basket, and the defendant gave an incriminating statement to police.  A jury convicted the defendant of two counts of first degree (felony) murder, two counts of first degree (premeditated) murder, and two counts of aggravated child abuse, a Class A felony.  The trial court merged the first degree murder convictions for each victim.  The defendant received a life sentence for each first degree murder conviction and a twenty-five year sentence for each aggravated child abuse conviction, all to be served concurrently.  On appeal she asserts that the evidence was insufficient to support the verdicts; that the trial court erred in not suppressing her statement; that the trial court was biased; that the trial court denied her the right to testify in her defense; that the burden of proof was shifted to the defense; that her motion for a change of venue should have been granted; that the physical evidence obtained through a search warrant should have been suppressed; that the trial court erred in excluding expert testimony regarding her ability to waive her right to remain silent; that the trial court erred in various other evidentiary decisions; and that she is entitled to relief under the theory of cumulative error.  After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

Sumner County Court of Criminal Appeals 07/12/16
Russell Freels v. State of Tennessee
E2016-00021-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Paul G. Summers, Sr.

The Petitioner, Russell Freels, appeals the Washington County Criminal Court’s summary dismissal of his petition for post-conviction relief. The Petitioner contends that the post-conviction court erred in dismissing his ineffective assistance of trial counsel claim as having been untimely filed. He argues for the first time on appeal that he is constitutionally entitled to effective assistance of post-conviction counsel in his first petition for relief and that due process requires tolling of the statute of limitations. Discerning no error, we affirm the judgment of the post-conviction court.

Washington County Court of Criminal Appeals 07/12/16
State of Tennessee v. Joseph Anthony Szostak, III
M2015-01634-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Russell Parkes

Defendant, Joseph Anthony Szostak, III, appeals from the trial court’s revocation of probation. Defendant asserts on appeal that the trial court abused its discretion in revoking his probation by not articulating a “willful” failure to pay costs, by failing to consider Defendant’s reason for not paying, and by considering prior violations not applicable to the current proceeding. Defendant also contends that the trial court abused its discretion in sentencing Defendant by not considering principles of sentencing and by denying Defendant’s request for an alternative sentence. After review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 07/11/16
State of Tennessee v. Earl Junior Pike
M2015-01573-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

The Appellant, Earl Junior Pike, is appealing the trial court’s order denying his motion to correct an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

Davidson County Court of Criminal Appeals 07/11/16
State of Tennessee v. Donald Ray Sachs
M2016-00054-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Forest A. Durard, Jr.

The Appellant, Donald Ray Sachs, appeals the trial court’s denial of his motion for a reduction of sentence.  Because the Appellant’s motion was not timely filed, the judgment of the trial court is affirmed.

Bedford County Court of Criminal Appeals 07/11/16
State of Tennessee v. Franklin Childs, Jr.
E2015-01817-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Sandra Donaghy

After an unsuccessful motion to dismiss the indictment against him, the Defendant, Franklin Childs, Jr., pled guilty to one count of promoting the manufacture of methamphetamine and sought to reserve a certified question of law.   See Tenn. R. Crim. P. 37(b)(2).  In this appeal, he attempts to challenge the trial court’s refusal to grant his pre-trial motion to dismiss, alleging that the State’s failure to preserve evidence foreclosed his right to a fundamentally fair trial and that dismissal of the indictment was the only appropriate remedy.  Following our review, we conclude that we do not have jurisdiction to decide this appeal because the issue presented is not dispositive.  Consequently, the appeal is dismissed.

Bradley County Court of Criminal Appeals 07/08/16
Eric Parker v. State of Tennessee
E2016-00298-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James F. Goodwin, Jr.

Pro se petitioner, Eric Parker, appeals the Sullivan County Criminal Court's summary dismissal of his petition for post-conviction relief. On appeal, he argues that his petition contains sufficient factual support to establish colorable claims for relief and that the post-conviction court erred by dismissing his petition without a hearing. Upon review, we reverse the judgment of the post-conviction court with regard to the petitioner's ineffective assistance of counsel claim and remand for appointment of counsel and an opportunity to amend the petition for post-conviction relief as it relates to that claim. In all other respects, the judgment of the post-conviction court is affirmed.

Sullivan County Court of Criminal Appeals 07/08/16
State of Tennessee v. Randall T. Beaty
M2014-00130-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Dee David Gay

I respectfully dissent from that portion of the majority's opinion which modifies a judgment to impose a conviction for a lesser included offense even though there is legally sufficient evidence to sustain the conviction for the greater offense.  I concur in all other aspects of the majority’s opinion.

Sumner County Court of Criminal Appeals 07/08/16
State of Tennessee v. Randall T. Beaty
M2014-00130-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Dee David Gay

Defendant, Randall T. Beaty, was indicted for first degree felony murder and aggravated child abuse.  After a jury trial, he was convicted of reckless homicide and aggravated assault, which were charged to the jury as lesser included offenses.  He received consecutive sentences of four years for reckless homicide and six years for aggravated assault, for an effective ten-year sentence to be served in the Department of Correction.  On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by allowing Detective Bachman to testify in violation of the rule of sequestration; (3) that the trial court erred by excluding a proffer by Amber Peveler; (4) that the trial court erred in failing to merge his convictions on double jeopardy grounds; and (5) that the trial court erred by ordering consecutive sentencing.  As to the alleged violation of the rule of sequestration, we hold, pursuant to State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010), that the State had the rightunder Tennessee Rule of Evidence 615 to designate an investigating officer as exempt from sequestration and the designated investigating officer can remain in the courtroom during the testimony of other witnesses.  We further recognize, as a matter of plain error, that the jury’s verdict for aggravated assault failed to specify the mens rea with which the Defendant acted, and we conclude that the Defendant’s judgment of conviction for knowing aggravated assault, a Class C felony, must be modified to reflect a conviction for reckless aggravated assault, a Class D felony.  We, therefore, modify the conviction in Count 2 to a Class D felony reckless aggravated assault, find sufficient evidence to support the conviction, and modify Defendant’s sentence in Count 2 to four years’ incarceration to be served consecutively to the four year sentence for reckless homicide. We also conclude that the conviction for reckless aggravated assault does not merge with the conviction for reckless homicide.  All other aspects of Defendant’s convictions are affirmed.

Sumner County Court of Criminal Appeals 07/08/16
State of Tennessee v. Aimee Denise Wallace
E2015-01962-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Alex E. Pearson

Aimee Denise Wallace (“the Defendant”) pleaded guilty to one count of possession of drug paraphernalia and requested that she be placed on judicial diversion. The trial court, after acknowledging that the Defendant was a “qualified defendant” for judicial diversion under Tennessee Code Annotated section 40-35-313(a)(1)(B)(i), denied the Defendant’s request based solely upon the fact that she had a prior conviction for a class A misdemeanor. On appeal, the Defendant asks this court to reverse the trial court’s order denying judicial diversion, conduct a de novo review, and order that the Defendant be placed on judicial diversion. The State concedes that the trial court erred. After review, we conclude that the trial court erred because it denied judicial diversion without considering and weighing all the relevant factors. Because the trial court failed to conduct an evidentiary hearing, the record before us is not sufficient for us to conduct a de novo review. The judgment of the trial court is reversed and remanded for reconsideration and a hearing on the issue of judicial diversion.

Greene County Court of Criminal Appeals 07/07/16
Howard Hawk Willis v. State of Tennessee
E2015-00235-CCA-R3-ECN
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jon Kerry Blackwood

The Petitioner, Howard Hawk Willis, appeals the Washington County Criminal Court's summary dismissal of his pro se petition for writ of error coram nobis. The Petitioner seeks relief from his two premeditated first degree murder convictions and the resulting sentences of death, arguing (1) the coram nobis court abused its discretion in summarily dismissing his petition without taking into account due process considerations; (2) the coram nobis court's grounds for dismissal were erroneous; and (3) his pro se petition satisfied the coram nobis pleading requirements and, to the extent that it did not, he should be granted an evidentiary hearing given the pro se nature of the petition. Upon review, we affirm the judgment of the coram nobis court.

Washington County Court of Criminal Appeals 07/07/16
State of Tennessee v. Rebekah Dearmond
M2015-01955-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Robert Jones

The defendant, Rebekah Dearmond, appeals from her Maury County Circuit Court guilty-pleaded conviction of second offense driving under the influence (“DUI”), claiming that the trial court erred by denying her motion to suppress.  Because the defendant failed to properly preserve a certified question of law for our review, the appeal is dismissed.

Maury County Court of Criminal Appeals 07/07/16
State of Tennessee v. Bernard Nelson
M2015-01690-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Ross H. Hicks

A Montgomery County jury convicted the Defendant, Bernard Nelson, of two counts of indecent exposure.  On appeal, the Defendant asserts that the State breached its duty to preserve potentially exculpatory evidence.  The Defendant also contends that the convicting evidence is insufficient to sustain his convictions.  We affirm the trial court’s judgments.

Montgomery County Court of Criminal Appeals 07/06/16
State of Tennessee v. Lemonique Scherod Johnson
M2015-00595-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stella Hargrove

A Maury County Circuit Court Jury convicted the Appellant, Lemonique Scherod Johnson, of facilitation of aggravated robbery.  The trial court sentenced the Appellant as a Range III, persistent offender to twelve years in the Tennessee Department of Correction.  On appeal, the Appellant challenges the sufficiency of the evidence sustaining his conviction, contending that the alleged victim was a participant in the robbery, that the evidence did not support a conviction of facilitation aggravated robbery because the victim was not “in fear,” and that the Appellant was not involved in the robbery.  Upon review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 07/06/16
State of Tennessee v. Richard Dale Smith
E2015-01596-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Don W. Poole

After the trial court denied his motion to suppress, the Defendant, Richard Dale Smith, pled guilty to driving under the influence (“DUI”). See Tenn. Code Ann. § 55-10-401. As a condition of his guilty plea, he sought to reserve the right to appeal a certified question of law challenging the trial court's denial of his motion to suppress. Following our review of the record, we dismiss the appeal because the Defendant failed to properly certify his question of law in accordance with Tennessee Rule of Criminal Procedure 37(b)(2).

Hamilton County Court of Criminal Appeals 07/06/16
State of Tennessee v. Christopher Lindsey
E2015-02135-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge R. Jerry Beck

The Defendant, Christopher Lindsey, appeals from the trial court's revocation of his community corrections sentence and order that he serve the balance of his sentence in confinement. On appeal, the Defendant contends that the trial court erred in admitting a certified copy of his nolo contendere plea to a shoplifting charge in violation of Tennessee Rule of Evidence 410; that the court erred by “tolling” his community corrections sentence; and that the trial court did not properly calculate his pretrial jail credits or credit for time served on community corrections. Following our review, we affirm the judgments of the trial court. However, we remand this case to the trial court for the correction of inaccuracies in the revocation order relating to the calculation of credit for time-served.

Sullivan County Court of Criminal Appeals 07/06/16
Ronnie Mills v. State of Tennessee
E2015-01066-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Ronnie Mills, appeals as of right from the Knox County Criminal Court’s denial of his petition for post-conviction relief. On appeal, he contends that his pleas were unknowing and involuntary due to counsel’s misinforming him regarding the specific terms of his plea agreement with the State and counsel’s subsequent failure to get those terms in writing or object when the alleged agreement was not honored. Following our review, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 07/06/16
State of Tennessee v. Mark Stephen Williams
E2015-01393-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge E. Shayne Sexton

The defendant, Mark Stephen Williams, appeals the trial court’s revocation of his probation after a revocation hearing at which the defendant was not represented by counsel. He argues that he did not knowingly and voluntarily waive his right to counsel. Following our review, we conclude that the defendant did not execute a knowing and voluntary waiver of his right to counsel. We reverse the judgment of the trial court and remand this case for the appointment of counsel.

Union County Court of Criminal Appeals 07/06/16
State of Tennessee v. Dennis Sprawling-Concurring
W2014-02511-CCA-R9-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Carolyn Wade Blackett

Although I concur with the majority's conclusion that the trial court did not err in suppressing the Defendant's blood test results and agree that the trial court's judgment should be affirmed, I write separately because I cannot agree with the inclusion of two sentences in the majority opinion concerning the adoption of a good faith exception to the exclusionary rule in Tennessee. The first sentence is: “We believe that Tennesseans have adjusted well for over three decades under our State's constitution without adoption of any good faith exception….” The second sentence is: “We should not alter Tennessee Law.”

Shelby County Court of Criminal Appeals 07/05/16