Court of Criminal Appeals Opinions

Format: 03/31/2015
Format: 03/31/2015
Dale Wayne Wilbanks v. State of Tennessee
E2013-00229-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John F. Dugger

The Petitioner, Dale Wayne Wilbanks, entered a best interest plea with an agreed upon sentence of twenty years for second degree murder and a concurrent twenty-five years for attempted first degree murder. The Petitioner filed a motion to withdraw his guilty plea and a petition seeking post-conviction relief. After a hearing, the post-conviction court denied the Petitioner relief. The Petitioner now appeals, maintaining that his guilty plea was involuntary and that he received the ineffective assistance of counsel. We affirm the postconviction court’s judgments.

Hawkins County Court of Criminal Appeals 01/28/15
State of Tennessee v. Richard Barefoot
M2014-01028-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Dee David Gay

In 2014 the Defendant, Richard Barefoot, pleaded guilty to identity theft, fraudulent use of a credit card, and theft of property.  The trial court sentenced him to fifteen years in the Tennessee Department of Correction.  The Defendant reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) about whether the trial court improperly denied his motion to dismiss by holding that the time limitation for prisoner transfer as proscribed by the Interstate Compact on Detainers was not applicable.  After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Sumner County Court of Criminal Appeals 01/28/15
State of Tennessee v. Timothy Roy Bozza
M2013-02537-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Cheryl Blackburn

The Defendant, Timothy Roy Bozza, was convicted of first degree murder by a Davidson 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 the trial court erred in denying him counsel of his choice.  We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 01/28/15
State of Tennessee v. Bobby Daniel Pettie
M2014-00113-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Lee Russell

The Defendant, Bobby Daniel Pettie, was found guilty by a Bedford County Circuit Court jury of initiating the manufacture of methamphetamine, a Class B felony, promotion of methamphetamine manufacture, a Class D felony, possession of a firearm during the commission of a dangerous felony, a Class D felony, and possession of methamphetamine, a Class A misdemeanor.  See T.C.A. §§ 39-17-435 (2014), 39-17-433 (2014), 39-17-1324 (2014), 39-17-418 (2014).  The trial court sentenced the Defendant to sixteen years for initiating the manufacture of methamphetamine, six years for promotion of methamphetamine manufacture, six years for possession of a firearm during the commission of a dangerous felony, and eleven months, twenty-nine days for possession of methamphetamine.  The court ordered the initiating the manufacture of methamphetamine and the promotion of methamphetamine manufacture sentences be served concurrently with each other and consecutively to the possession of a firearm during the commission of a dangerous felony and to the possession of methamphetamine sentences, for an effective sentence of twenty-two years, eleven months, and twenty-nine days.  On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by denying his motion to suppress, and (3) his sentence is excessive.  We affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 01/28/15
State of Tennessee v. Richard Alan Hatchel
W2014-00486-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Joe H. Walker III

Defendant, Richard Alan Hatchel, was indicted by the Tipton County Grand Jury for first degree premeditated murder and felony reckless endangerment under T.C.A. § 39-13- 103(b)(3). Defendant was convicted as charged by a jury. Following a sentencing hearing, the trial court sentenced Defendant to life imprisonment for his first degree murder conviction and three years for his reckless endangerment conviction, with the sentences to be served concurrently. In this appeal as of right, Defendant asserts and the State concedes that the evidence is insufficient to support Defendant’s conviction for reckless endangerment because the proof at trial showed that Defendant was inside the house, and an element of the offense for which Defendant was charged is that he discharged a firearm from outside of the house. Defendant also asserts that the evidence was insufficient to sustain his conviction for first degree premeditated murder. After a careful review of the record before us, we conclude that the evidence was sufficient to support Defendant’s conviction for first degree premeditated murder, but the evidence was insufficient to support Defendant’s conviction for felony reckless endangerment as charged. Accordingly, the judgment of conviction for first degree murder is affirmed. The judgment of conviction for felony reckless endangerment is reversed and the charge of felony reckless endangerment is dismissed with prejudice.

Tipton County Court of Criminal Appeals 01/27/15
State of Tennessee v. Benjamin Lepard aka Benjamine Lepard
W2014-00170-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Paula L. Skahan

Defendant, Benjamin Lepard, a/k/a Benjamine Lepard, appeals from the trial court’s order revoking his probation as to all four convictions he received in 2010 as a result of negotiated guilty pleas entered on July 27, 2010. He received sentences of three years in each of three of the convictions and a sentence of eight years in the fourth conviction. The three-year sentences were ordered to be served concurrently with each other but consecutively to the eight-year sentence, for an effective sentence of eleven years. The order of probation reflects that Defendant would stay in custody for an additional eight months and be released to probation “for a period of 11 years.” Defendant was also ordered to “go to inpatient rehab on release” on March 25, 2011. A violation of probation warrant was filed on November 15, 2013. After a hearing, the trial court revoked probation on all convictions and ordered Defendant to serve the entire effective sentence of eleven years by incarceration. After a thorough review of the appellate record and the arguments of the parties, we affirm the trial court’s judgment insofar as it rules that Defendant violated a condition of probation and that the suspended sentence should be revoked. However, under the particular circumstances of this case, we reverse the trial court’s judgment insofar as it ordered the entire effective sentence of eleven years to be served. Under rather peculiar and disturbing circumstances, the judgments were altered without the trial court’s direction, and we are unable to conclude whether the effective three-year sentence was to be served prior to the eight-year sentence. Accordingly, we remand for the trial court to enter amended judgments setting forth the details of the manner of service of the effective eleven-year sentence, specifically whether the three-year sentence was to be served prior to the eight-year sentence.

Shelby County Court of Criminal Appeals 01/27/15
State of Tennessee v. Michael Baker aka Michael Simmons
W2013-02184-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

Michael Baker a/k/a Michael Simmons (“the Defendant”) was charged with first degree murder in the attempt to commit robbery, criminal attempt: especially aggravated robbery, and criminal attempt: aggravated robbery. The jury convicted the Defendant as charged, and the trial court sentenced him to life plus ten years. On appeal, the Defendant argues the evidence was insufficient to support his convictions. After a review of the record and applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/27/15
State of Tennessee v. Marquez Williams
W2013-02764-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

Following a jury trial, the Defendant, Marquez Williams, was convicted of aggravated robbery and sentenced to 11 years in the Department of Correction. In this direct appeal, the Defendant challenges the sufficiency of the evidence as it relates to his identification as the perpetrator of the offense. The Defendant also challenges the length of his sentence. Following a thorough review of the record and applicable authority, we affirm the judgment of trial court.

Shelby County Court of Criminal Appeals 01/27/15
David Lee Leggs v. State of Tennessee
M2014-00866-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl A. Blackburn

Petitioner, David Lee Leggs, appeals the denial of his petition for post-conviction relief. He claims that he received ineffective assistance of counsel during trial and on appeal. After thorough review, we affirm the decision of the post-conviction court.

 

Davidson County Court of Criminal Appeals 01/27/15
State of Tennessee v. Don Arturo Hyler
M2014-00221-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Mark J. Fishburn

The defendant, Don Arturo Hyler, was convicted of the sale of 26 grams or more of cocaine and possession of 300 grams or more of cocaine with intent to sell in a drug-free school zone and received a total effective sentence of fifteen years at 100%.  On appeal, he argues that the evidence is insufficient to support his convictions; that the court should have instructed the jury as to the lesser-included offense of facilitation; that the State made an improper reference in the opening statement regarding prior bad acts of the defendant; and for failing to grant a severance of charges for trial.  Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 01/27/15
State of Tennessee v. Nicholas Kieth Phillips
M2013-02705-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge M. Keith Siskin

A Rutherford County Circuit Court Jury convicted the appellant, Nicholas Keith Phillips, of two counts of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony.  After a sentencing hearing, he received an effective forty-year sentence to be served at 100%.  On appeal, the appellant contends that the evidence is insufficient to support the convictions and that his dual convictions for the offenses violate principles of double jeopardy.  Based upon the oral arguments, the record, and the parties’ briefs, we affirm the appellant’s convictions of aggravated sexual battery but conclude that his dual convictions of rape of a child violate double jeopardy principles and must be merged. Moreover, because the trial court improperly sentenced the appellant, the case is remanded to the trial court for resentencing.

Rutherford County Court of Criminal Appeals 01/27/15
State of Tennessee v. Nico Farmer
W2013-02736-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The defendant, Nico Farmer, was convicted by a Shelby County Criminal Court jury of felony murder and attempted aggravated assault, a Class D felony, and was sentenced to consecutive terms of life and eight years. He raises four issues on appeal: (1) whether the evidence is sufficient to sustain his convictions; (2) whether the trial court erred in ruling that his prior aggravated robbery convictions could be used to impeach his testimony; (3) whether the trial court erred by not charging the jury on self-defense; and (4) whether the trial court imposed an excessive sentence by enhancing his sentence for attempted aggravated assault and ordering that the sentences be served consecutively. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/23/15
State of Tennessee v. Larry Futrell and Terrell Smith
W2013-01192-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

Following a jury trial, the Defendants, Larry Futrell and Terrell Smith, were convicted of aggravated robbery. On appeal, the Defendants contend that the evidence presented at trial was insufficient to support their convictions. Mr. Smith also contends that the trial court erred in sentencing him to 26 years in the Department of Correction. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/23/15
State of Tennessee v. Michael J. Inman
E2013-01227-CCA-R3-CD
Authoring Judge: Judge David A. Patterson
Trial Court Judge: Judge David Reed Duggan

The defendant, Michael Jerome Inman a/k/a Michael Jerome Bivens, entered guilty pleas to six offenses: five counts of theft, which were three Class D felonies, a Class E felony, and a Class A misdemeanor, as well as one count of criminal impersonation, a Class B misdemeanor. He eceived an effective fourteen-year sentence to be served on community corrections. A warrant was issued for violation of the terms of his community corrections sentence. After a hearing, the trial court found that the defendant had violated the terms of his community corrections sentence and ordered him to serve his sentence in the penitentiary. The defendant now appeals, arguing that the trial court abused its discretion in ordering the defendant to serve his sentence in confinement; and, whether the defendant had a right to be present in court when his letter to the clerk requesting jail credit was discussed. After a thorough review of the record, we affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 01/23/15
State of Tennessee v. James Henry Allen
E2014-00529-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Robert E. Cupp

Defendant, James Henry Allen, was indicted by the Washington County Grand Jury for premeditated first degree murder, unlawful possession of a deadly weapon with the intent to employ it in the commission of a first degree murder, and a violation of an order of protection in connection with the murder of his ex-wife’s cohabiting boyfriend. During trial, the trial court dismissed the charge related to a violation of an order of protection. Defendant was convicted by a jury of first degree murder and unlawful possession of a deadly weapon with the intent to employ it in the commission of a first degree murder. As a result, he was sentenced to an effective life sentence with the possibility of parole. He appeals, challenging the admission into evidence of his statement to the police, the 911 tape, and the damaged trailer door, as well as the sufficiency of the evidence. After a thorough review of the record and applicable authorities, we determine: (1) the trial court properly admitted Defendant’s statement into evidence where there was no requirement that it be recorded; (2) the trial court properly admitted the 911 tape into evidence as an excited utterance and to rebut Defendant’s assertion that shots were fired from inside the trailer; (3) the trial court properly admitted the trailer door into evidence where there was ample secondary evidence to support the conclusion that the shots were fired from outside the trailer; and (4) the evidence was sufficient to support the conviction for first degree murder. As a result, the judgments of the trial court are affirmed.

Washington County Court of Criminal Appeals 01/23/15
State of Tennessee v. Tianna M. Amyx
E2014-00820-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Jerry Beck

The defendant, Tianna M. Amyx, pled guilty to aggravated burglary, a Class C felony, and theft over $500, a Class E felony, and was sentenced as a Range I, standard offender to concurrent terms of four years and two years, respectively, with the manner of service to be determined by the trial court. On appeal, she argues that the trial court erred in denying alternative sentencing. After review, we affirm the sentencing decision of the trial court.

Sullivan County Court of Criminal Appeals 01/23/15
State of Tennessee v. Patrick Leighton Ryan, Jr.
W2014-00327-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Weber McCraw

The defendant, Patrick Leighton Ryan, Jr., was convicted of misdemeanor theft under $500 and sentenced to eleven months and twenty-nine days of supervised probation, with credit for time served. On appeal, he argues that the trial court erred both by not requiring the State to make an election of offenses or giving a special jury instruction as to unanimity, in excluding a police property inventory from 2005, and in not taking judicial notice of the Grand Junction Police Manual and that the evidence is insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

Hardeman County Court of Criminal Appeals 01/22/15
State of Tennessee v. Carmel Borum aka Carnel Borum
W2014-00179-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Mark Ward

The defendant, Carmel Borum, also known as Carnel Borum, appeals his Shelby County Criminal Court jury convictions of two felonies – theft and evading arrest. He received an effective sentence of 18 years as a persistent offender. On appeal, he claims that the trial court erroneously admitted testimony about the value of the property in question and that the evidence was insufficient to support the convictions. Based upon our review of the record, the briefs, and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/22/15
State of Tennessee v. Artterraces Buchanan
W2014-00058-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris Craft

The Defendant-Appellant, Artterraces Buchanan, pleaded guilty to one count of reckless aggravated assault, a Class D felony. See T.C.A. § 39-13-102. The trial court denied the Defendant’s request for judicial diversion and imposed a two-year sentence involving split confinement. On appeal, the Defendant contends that the trial court erred in denying his application for judicial diversion. Upon our review of the record, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/22/15
Kenneth Eugene Black v. State of Tennessee
E2014-00872-CCA-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Bob R. McGee

The petitioner, Kenneth Eugene Black, appeals the denial of his petition for post-conviction relief. He pled guilty to two counts of sale of a schedule I controlled substance within a school zone, Class B felonies. As part of the agreement, he received concurrent eight-year Range I sentences to be served at 100%, which is the drug-free school zone release eligibility. The petitioner now contends that he is entitled to post-conviction relief because his guilty plea was not entered knowingly and voluntarily because he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective by failing to provide the petitioner with all discovery materials prior to his accepting the plea. Following review of the record and applicable law, we affirm the denial of post-conviction relief.
 

Knox County Court of Criminal Appeals 01/22/15
Gregory D. Valentine v. State of Tennessee
M2014-00977-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Dee David Gay

The Petitioner, Gregory D. Valentine, appeals the Sumner County Criminal Court’s summary dismissal of his pro se petition for post-conviction relief as waived or previously determined.  The State responds that the post-conviction court properly dismissed the Petitioner’s claims without a hearing.   Upon review, we reverse and remand for further proceedings with regard to the Petitioner’s ineffective assistance of counsel claim.

Sumner County Court of Criminal Appeals 01/21/15
State of Tennessee v. Alexa Williams aka Elizabeth Williams EL
W2014-01457-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Donald Parish

The defendant, Alexa Williams, also known as Elizabeth Williams El, timely appeals pro se her Carroll County Circuit Court jury convictions of one count each of driving a motor vehicle while the privilege to drive was suspended, driving an unregistered automobile, and operating a motor vehicle without evidence of financial responsibility. The defendant claims on appeal (1) that “the trial court erred by issuing an in personam judgment without personal jurisdiction over the blood and flesh woman” and (2) that “the trial court erred in procuring a trial without evidence of a motor vehicle or traffic on the highway.” Upon our review of the record and the briefs in this case, we affirm the judgments of the trial court.

Carroll County Court of Criminal Appeals 01/20/15
State of Tennessee v. Andrew Joseph Aborizk
M2013-02835-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Grand Jury returned an indictment against Defendant, Andrew Joseph Aborizk, charging him with theft of property valued at more than $1,000 but less than $10,000.  Following a jury trial , Defendant was convicted of theft of property valued at more than $500 but less than $1,000.  The trial court imposed a sentence of two years as a Range One standard offender  to be served on supervised probation.  On appeal, Defendant argues that the evidence was insufficient to support his theft conviction because the State failed to prove identity of the perpetrator beyond a reasonable doubt. After a thorough review of the record, we affirm Defendant’s conviction for theft of property valued at more than $500 but less than $1,000.

Davidson County Court of Criminal Appeals 01/20/15
Monroe Dodson, Jr. v. State of Tennessee
M2014-00073-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steve R. Dozier

Petitioner, Monroe Dodson, Jr., pled guilty to one count of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony.  After a sentencing hearing, Petitioner received an effective sentence of eighty-two years.  He now appeals the denial of his petition for post-conviction relief, alleging that his guilty plea was the result of ineffective assistance of counsel at trial.  After a thorough review of the record, we affirm the post-conviction court’s finding that Petitioner has failed to prove his ineffectiveness claim.

Davidson County Court of Criminal Appeals 01/20/15
State of Tennessee v. Ryan T. Brandon
E2014-00591-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge E. Eugene Eblen, Jr.

Defendant, Ryan T. Brandon, was convicted of public intoxication and evading arrest. He received sentences of eleven months, twenty-nine days of supervised probation for evading arrest and thirty days of supervised probation for public intoxication. The sentences were ordered to be served concurrently. On appeal, Defendant challenges the trial court’s denial of his motion for judgment of acquittal on the evading arrest charge, limitation of his crossexamination of the arresting officer, and failure to instruct the jury as to the defense of necessity. We hold that Defendant waived any claim of error with regard to the motion for judgment of acquittal by continuing to participate in the trial after the close of the State’s proof by calling his own witness. However, we review the issue for sufficiency of the evidence. Based upon our review of the record, we hold that the evidence is insufficient to support the charge of evading arrest. The trial court’s judgment as to that conviction is hereby reversed and dismissed. We hold that the evidence is sufficient to support Defendant’s conviction for public intoxication. We also hold that the trial court’s exclusion of impeachment evidence, though in error, was harmless beyond a reasonable doubt. Finally, we hold that Defendant’s claim as to the jury instructions has been waived for failure to include the jury instructions in the record. The trial court’s judgment as to the public intoxication conviction is hereby affirmed.

Roane County Court of Criminal Appeals 01/16/15