Court of Criminal Appeals Opinions

Format: 10/15/2018
Format: 10/15/2018
Christopher Howard v. State of Tennessee
W2017-01890-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Lee Moore, Jr.

The Petitioner, Christopher A. Howard, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance. After review, we affirm the denial of the petition.

Dyer County Court of Criminal Appeals 08/21/18
State of Tennessee v. Robert Allison Franklin
E2017-00334-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Don W. Poole

The Hamilton County Grand Jury indicted Robert A. Franklin, the Defendant-Appellant, for driving under the influence of an intoxicant (DUI by impairment), driving while the alcohol concentration in his blood or breath was 0.08% or more (DUI per se), violating the financial responsibility law, and violating the vehicle registration law. Prior to trial, Franklin filed a motion to suppress evidence from his search, seizure, and arrest on the basis that the sobriety checkpoint where this evidence was obtained was unconstitutional. After the trial court denied this motion to suppress, Franklin filed a motion to reconsider, which was also denied. Franklin next filed a motion to dismiss the indictment, or in the alternative, to exclude the evidence from his blood test, arguing that Code section 55-10- 413 is unconstitutional because it creates a fee system that violates the right to due process and a fair trial. Although Franklin’s request to dismiss the indictment or exclude the evidence was denied, the trial court granted his request for a jury instruction regarding the fee in Code Section 55-10-413(f). Thereafter, during voir dire, Franklin asserted that the State engaged in purposeful discrimination in violation of Batson v. Kentucky, 476 U.S. 79 (1986), when it used its peremptory challenges to exclude two African-American individuals from the jury pool. At the ensuing trial, the jury convicted Franklin of DUI per se and violating the vehicle registration law but acquitted him of DUI by impairment, and the State dismissed the charge for violating the financial responsibility law. On appeal, Franklin argues that the trial court erred in: (1) denying his motion to suppress because the checkpoint was unconstitutional; (2) overruling his Batson challenge; and (3) denying his motion to dismiss the indictment, or in the alternative, to exclude the evidence based on the unconstitutionality of Tennessee Code Annotated section 55-10-413(f) (2017). Because the trial court erred in denying the motion to suppress given the unconstitutionality of the checkpoint, we reverse the judgments of the trial court, vacate Franklin’s convictions, and dismiss the charges. 

Hamilton County Court of Criminal Appeals 08/21/18
State of Tennessee v. Decarlos M. Murphy
M2017-02017-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Decarlos M. Murphy, appeals as of right, from the Davidson County Criminal Court’s revocation of his probationary sentence and order of incarceration for the remainder of his twelve-year sentence. The Defendant contends that the trial court abused its discretion by ordering his sentence into execution instead of reinstating him to community corrections or probation with a mental health and substance abuse treatment. Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/21/18
Larry Carpenter v. State of Tennessee
E2017-00589-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John F. Dugger

The Petitioner, Larry Carpenter, appeals from the Hawkins County Criminal Court’s denial of his petition for post-conviction relief from his 2015 guilty pleas to attempted second degree murder and especially aggravated robbery, for which he is serving an effective twenty-year sentence. The Petitioner contends that (1) he received the ineffective assistance of counsel and (2) his guilty pleas were involuntary. We affirm the judgment of the post-conviction court.

Hawkins County Court of Criminal Appeals 08/21/18
State of Tennessee v. Benny S. Towns
M2017-02292-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Royce Taylor

The defendant, Benny S. Towns, appeals from the entry of an order denying his “Motion to Discharge Community Supervision.” On appeal, the defendant asserts the trial court erred in not conducting a hearing on the motion and requests the matter be remanded for the same. Following our review of the record, we conclude the defendant’s motion is premature and he is not entitled to relief.

Rutherford County Court of Criminal Appeals 08/21/18
Kevin D. Buford v. State of Tennessee
M2017-01340-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Petitioner, Kevin D. Buford, appeals the post-conviction court’s denial of his petition for post-conviction relief. The post-conviction court found that although Petitioner’s appellate counsel was deficient for not timely filing his application for permission to appeal to the Tennessee Supreme Court, Petitioner was not prejudiced because the Tennessee Supreme Court would have ultimately denied the appeal. On appeal, the State concedes that Petitioner was entitled to a delayed appeal. Accordingly, we reverse the judgment of the post-conviction court and remand for further proceedings in compliance with Tennessee Supreme Court Rule 28.

Davidson County Court of Criminal Appeals 08/21/18
State of Tennessee v. Devin Buckingham
W2016-02350-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Mark Ward

A Shelby County Criminal Court Jury convicted the Appellant, Devin Buckingham, of first degree premeditated murder, and the trial court sentenced him to life. On appeal, the Appellant contends that the evidence is insufficient to support the conviction; that the trial court erred by ruling that defense counsel’s notes, taken during counsel’s interview of a defense witness, qualified as Jencks material; and that the trial court erred by prohibiting defense counsel from questioning a defense witness about the victim’s prior bad acts. Based upon the oral arguments, the record, and the parties’ briefs, we find no reversible error and affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/20/18
State of Tennessee v. Jermel Brown
W2017-01681-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

Defendant, Jermel Brown, appeals his Shelby County Criminal Court convictions for aggravated robbery, criminal attempt to commit aggravated robbery, and aggravated assault, for which he received a total effective sentence of twenty-six years’ incarceration. Defendant challenges the sufficiency of the evidence to support his convictions, arguing that the State failed to adequately prove his identity as a perpetrator of the offenses. Following a thorough review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 08/20/18
State of Tennessee v. Lavelle Moore
W2016-00336-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The Defendant, Lavelle Moore, was convicted by a Shelby County Criminal Court jury of two counts of theft of merchandise over $1000, a Class D felony, under alternate theories. The trial court merged the convictions and sentenced the Defendant as a career offender to twelve years at 60% in the Department of Correction, to be served consecutively to his sentence in another case. The sole issue the Defendant raises on appeal is whether the evidence is sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/20/18
State of Tennessee v. Lloyd Rush Pratt, Jr.
M2017-01317-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Joseph Woodruff

Defendant, Lloyd Rush Pratt, Jr., appeals from his convictions for driving as an habitual motor vehicle offender, driving under the influence, and failure to exercise due care, for which he received an effective sentence of one year with 120 days to serve followed by supervised probation. Defendant argues on appeal that the trial court erred in denying a mistrial, that the State committed a Brady violation, and that the trial court allowed statements of a witness to be admitted despite her unavailability at trial. For the following reasons, we determine that the trial court erred in denying a mistrial and improperly admitting hearsay evidence. The judgments of the trial court are reversed and remanded.

Perry County Court of Criminal Appeals 08/20/18
State of Tennessee v. Robert L. Smith
M2017-01569-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Franklin L. Russell

Defendant, Robert L. Smith, was convicted of two counts of reckless aggravated assault in case number 18093 and of failure to appear in case number 18094 and received a total effective sentence of thirteen years with release eligibility after service of thirty-five percent of the sentence. On appeal, Defendant argues that the evidence is insufficient for a rational juror to have found him guilty of two counts of reckless aggravated assault and that his sentence is excessive. After a thorough review of the facts and applicable case law, we affirm the trial court’s judgments.

Bedford County Court of Criminal Appeals 08/20/18
State of Tennessee v. Kenneth Mark Jones
W2017-01607-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Russell Lee Moore, Jr.

On May 25, 2017, the Defendant, Kenneth Mark Jones, was convicted by a jury for the sale of less than 0.5 grams of cocaine, a Class C felony. See Tenn. Code Ann. § 39-17-417(a)(3). The trial court subsequently sentenced the Defendant to three years confinement as a Range I, standard offender. On appeal, the Defendant contends that the evidence was insufficient to sustain his conviction because he was merely guilty of facilitation. Following our review, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 08/17/18
Nicholas Watkins v. State of Tennessee
W2017-01633-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Kyle C. Atkins

The Petitioner, Nicholas Watkins, appeals from the Madison County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that his guilty pleas were not knowingly and voluntarily entered because of his trial counsel’s ineffective assistance. Discerning no error, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 08/17/18
Daramis Sharkey v. State of Tennessee
W2017-01961-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Chris Craft

The Petitioner, Daramis Sharkey, appeals as of right from the denial of his petition for post-conviction relief, wherein he challenged the validity of his guilty pleas to three counts of aggravated rape and four counts of aggravated burglary. On appeal, the Petitioner contends that he did not enter into his original guilty plea knowingly and voluntarily because his attorney provided ineffective assistance of counsel by inappropriately pressuring the Petitioner to enter into a plea deal rather than proceed with the jury trial. Following our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/17/18
Tony Thomas v. State of Tennessee
W2017-02221-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee V. Coffee

The petitioner, Tony Thomas, appeals the summary dismissal of his petition for post-conviction relief, which petition challenged his 2010 conviction of aggravated sexual battery. In this appeal, the petitioner contends that the post-conviction court erred by summarily dismissing his petition on grounds that he had filed more than one petition for post-conviction relief and that the grounds in his petition had been previously determined. The post-conviction court correctly determined that the petitioner’s claim that he was deprived of the effective assistance of counsel at trial was previously determined; that portion of the court’s order so holding is affirmed. Because the postconviction court erred by concluding that (1) the petitioner had filed more than one petition for
post-conviction relief and (2) the remainder of the petitioner’s claims for post-conviction relief had been previously determined, that portion of the court’s order is reversed. The case is remanded for an evidentiary hearing on those claims not previously determined.

Shelby County Court of Criminal Appeals 08/17/18
State of Tennessee v. Kendall Southall
M2017-01975-CCA-R3-CO
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James G. Martin, III

The Petitioner, Kendall Southall, appeals from the Williamson County Circuit Court’s denial of his motion to terminate costs from his drug-related convictions between 1992 and 2002. The Petitioner contends that the trial court erred by denying relief because multiple pending civil actions existed to collect unpaid costs relative to the convictions and that the ten-year statute of limitations period prohibits the State from attempting to collect the costs. We dismiss the appeal because this court lacks jurisdiction to consider it.

Williamson County Court of Criminal Appeals 08/17/18
State of Tennessee v. Dewayne Cross
E2018-00047-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge David R. Duggan

The pro se Defendant, Dewayne Cross, appeals the Blount 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. We affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Blount County Court of Criminal Appeals 08/17/18
Willis Holloway v. State of Tennessee
W2017-01573-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Willis Holloway, was convicted of two counts of aggravated robbery, two counts of aggravated kidnapping, and one count of aggravated burglary, and the trial court imposed an effective forty-four year sentence in the Tennessee Department of Correction. On appeal, this court affirmed the Petitioner’s conviction and sentence. See State v. Charles Jackson and Willis Holloway, No. W2010-01133-CCA-R3-CD, 2012 WL 543047, at *1 (Tenn. Crim. App., at Jackson, Feb. 17, 2012), perm. app. denied (Tenn. June 22, 2012). Subsequently, the Petitioner filed a petition for post-conviction relief, and the post-conviction court denied relief. Willis Holloway v. State, No. W2014-02444-CCA-R3-PC, 2015 WL 6122155, at *1 (Tenn. Crim. App., at Jackson, Oct. 16, 2015), perm. app. denied (Tenn. March 23, 2016). The Petitioner then filed a “Petition for Extraordinary Relief,” the subject of this appeal, asserting: (1) his sentences were void for duplicity; (2) his indictments were void because the charges were vague; (3) two of the indictments were defective; (4) the trial court constructively amended the indictments; and (5) trial and post-conviction counsel were ineffective. The postconviction court, treating the petition as one for post-conviction relief, found that the Petitioner’s claims had either been previously determined or waived because the Petitioner failed to raise them in his earlier appeals and denied relief. After review, we affirm.

Shelby County Court of Criminal Appeals 08/16/18
Timothy A. Baxter v. State of Tennessee
W2017-01073-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Roy Morgan, Jr.

The petitioner, Timothy A. Baxter, appeals the summary dismissal of his petition for writ of habeas corpus. Because the notice of appeal was untimely and because the interests of justice do not warrant waiver of the timely filing in this case, the appeal is dismissed.

Madison County Court of Criminal Appeals 08/16/18
State of Tennessee v. Christopher Lee Smith
E2016-01612-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Elizabeth C. Asbury

A Campbell County Criminal Court Jury convicted the Appellant, Christopher Lee Smith, of driving under the influence (DUI), 5th offense; DUI, per se; driving on a revoked license; and violating the financial responsibility law. The trial court merged the DUI convictions and sentenced the Appellant as a Range II, multiple offender to a total effective sentence of three years, to be suspended after service of 150 days in confinement. On appeal, the Appellant contends that (1) he should have been tried on the original indictment, not the amended indictment; (2) the trial court should have granted a mistrial after the State informed the jury that the Appellant acted “feloniously,” thereby informing the jury that the Appellant had prior DUI convictions; and (3) the proof was insufficient to sustain his DUI convictions, arguing that the State failed to prove that he acted “feloniously” as alleged in the indictment. Upon review, we note that the judgment of conviction in count one incorrectly reflects that the charged offense was DUI, 3rd offense; accordingly, the case is remanded to the trial court for entry of a corrected judgment reflecting that the charged offense in count one was DUI, 5th offense. The trial court’s judgments are affirmed in all other respects.

Campbell County Court of Criminal Appeals 08/16/18
State of Tennessee v. Nicholas Zamarron
M2017-02123-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve Dozier

The Defendant, Nicholas Zamarron, pleaded guilty to conspiracy to deliver 0.5 gram or more of cocaine and to three counts of possession with the intent to deliver 0.5 gram or more of cocaine. See T.C.A. § 39-17-417 (2014). He received a total effective sentence of ten years’ incarceration. On appeal, he contends that the trial court erred by denying alternative sentencing. We affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/16/18
State of Tennessee v. Timothy A. Crowell
M2016-01980-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Criminal Court Jury found the Appellant guilty of aggravated robbery. The trial court sentenced the Appellant as a Range II, multiple offender to eighteen years in the Tennessee Department of Correction. On appeal, the Appellant contends that (1) the trial court erred by allowing the State to introduce proof from a portion of a surveillance video that was not preserved for trial; (2) the trial court erred by allowing a State’s witness to testify regarding hearsay evidence; (3) the trial court erred by allowing a photograph lineup that had not been introduced as evidence to be taken into the jury deliberations room; (4) the evidence is not sufficient to sustain his conviction of aggravated robbery; and (5) the length of his sentence is excessive. On appeal, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 08/16/18
State of Tennessee v. Christopher Osteen
W2018-00380-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

The Defendant, Christopher Osteen, appeals as of right from the Madison County Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Defendant complains that the trial court improperly enhanced his sentences based upon judicially determined facts in violation of Blakely v. Washington, 542 U.S. 296 (2004). Additionally, he asserts that he received the ineffective assistance of counsel because his trial counsel failed to object to the aforementioned Blakely violation. Following our review, we affirm.

Madison County Court of Criminal Appeals 08/15/18
Clinton Austin v. State of Tennessee
W2017-02374-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Glenn Wright

The petitioner, Clinton Austin, appeals the denial of his petition for post-conviction relief, which petition challenged his 2014 conviction of aggravated sexual battery, alleging that he was deprived of the effective assistance of counsel at trial. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 08/15/18
Marlon McKay v. State of Tennessee
W2017-00202-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey, Jr.

A Shelby County jury convicted the Petitioner, Marlon McKay, of felony murder and attempted aggravated robbery. The trial court sentenced the Petitioner to an effective sentence of life plus six years. This Court affirmed the trial court’s judgments on appeal. State v. Marlon McKay, No. W2010-01785-CCA-MR3C, 2011 WL 5335285 (Tenn. Crim. App., at Jackson, Nov. 4, 2011), perm. app. denied (Tenn. Apr. 12, 2012). The Petitioner filed a petition for post-conviction relief in which he alleged, as relevant on appeal, that his trial counsel was ineffective for: (1) not challenging his forty-eight hour hold when his arrest was not supported by probable cause; and (2) not timely filing a motion for new trial or a notice of appeal. The post-conviction court denied relief, and the Petitioner appeals. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 08/15/18