Court of Criminal Appeals Opinions

Format: 05/24/2015
Format: 05/24/2015
State of Tennessee v. William Kenneth Lawson
M2014-00612-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Larry B. Stanley, Jr.

The defendant, William Kenneth Lawson, appeals the revocation of his probationary sentence. He pled guilty to possession of a controlled substance with intent to deliver and violation of his habitual traffic offender status. As a result, he was sentenced to an effective term of eight years on supervised probation. Subsequently, a violation warrant was issued alleging that the defendant had violated the terms and conditions of his probation agreement by being arrested on new charges. Following a hearing, the trial court ordered revocation of the probation and that the defendant serve the remainder of his sentence in incarceration. On appeal, the defendant contends that there is not sufficient evidence in the record to support the court’s finding that a violation occurred. Following review of the record, we conclude that there was no abuse of discretion in the court’s decision to revoke probation. As such, the judgment of the trial court is affirmed.

Warren County Court of Criminal Appeals 03/17/15
Harvey Taylor v. State of Tennessee
M2014-00541-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Monte Watkins

Petitioner, Harvey Taylor, pled guilty to rape on August 20, 2009. On October 11, 2012, Petitioner filed a petition for writ of error coram nobis, citing newly discovered evidence. The coram nobis court appointed counsel, who filed an amended petition. The State filed a motion to dismiss on the ground that the petition was untimely. Counsel then filed a motion to withdraw. The coram nobis court granted both the motion to withdraw and the motion to dismiss. On appeal, Petitioner argues that the coram nobis court erred in allowing his original counsel to withdraw without responding to the State’s motion to dismiss and by dismissing his petition as untimely without holding an evidentiary hearing to determine whether due process required tolling of the statute of limitations. Upon our review of the record, we determine that Petitioner’s claims, if true, would not entitle him to coram nobis relief and would not warrant tolling the statute of limitations. Therefore, we affirm the judgment of the coram nobis court.

Davidson County Court of Criminal Appeals 03/16/15
State of Tennessee v. Ashley Marie Witwer
M2014-00834-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Appellant, Ashley Marie Witwer, brings a certified question of law regarding whether the retroactive application of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, as amended in 2012, to her conviction for promoting prostitution is an unconstitutional ex post facto law. After careful review of the parties’ briefs, the record, and the applicable law, we determine that the law is constitutional. Accordingly, the judgment of the criminal court is affirmed.

Davidson County Court of Criminal Appeals 03/16/15
State of Tennessee v. Jeremy Wendell Thorpe
M2014-00169-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Monte WAtkins

Following a jury trial, Defendant, Jeremy Wendell Thorpe, was found guilty as charged of aggravated arson, a Class A felony, and vandalism of a structure of a value of sixty thousand ($60,000.00) dollars or more, a Class B felony. He was sentenced to concurrent sentences of seventeen years for the aggravated arson conviction and nine years for the vandalism conviction. In his appeal of right, Defendant challenges the legal sufficiency of the evidence to support his conviction for aggravated arson. Specifically, Defendant argues that the State failed to prove beyond a reasonable doubt that he “knowingly” committed the offense. An integral part of this issue is Defendant’s assertion that aggravated arson requires a “result-of-conduct” knowing mens rea. Defendant asserts there are conflicting opinions of this Court as to this issue. The State initially argues that Defendant’s motion for new trial was filed one day late, and that as a result, the notice of appeal was not timely filed. The State urges this Court to dismiss Defendant’s appeal. In a reply brief, Defendant concedes his motion for new trial was filed late by one day and although the notice of appeal was also late, the timely filing of the notice of appeal should be waived. The State declined to address Defendant’s argument that aggravated arson is a “result-of-conduct” offense. Defendant does not challenge the vandalism conviction. After a through review of the record, the parties’ briefs, and the applicable law, we conclude that the State’s argument that the notice of appeal was filed late is void of merit. Notwithstanding the fact the State waived argument on the “knowing” mens rea definition for aggravated arson, we conclude that aggravated arson is not a result-of-conduct offense. Following our review of the record, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 03/16/15
Louis Dancy v. State of Tennessee
W2014-00330-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Louis Dancy, appeals the post-conviction court‟s denial of relief from his conviction for second degree murder. On appeal, the Petitioner argues that he received ineffective assistance of counsel at trial. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 03/16/15
State of Tennessee v. Howard Hawk Willis
E2012-01313-CCA-R3-DD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Jon Kerry Blackwood

A Washington County jury convicted appellant, Howard Hawk Willis, of two counts of premeditated first degree murder and one count of felony murder in the perpetration of a kidnapping. Following the penalty phase, the jury sentenced appellant to death on each conviction. The trial court merged the felony murder conviction into one of the convictions for premeditated first degree murder. On appeal, appellant asserts that: (1) the trial court erred in finding that appellant implicitly waived and forfeited his right to counsel and requiring him to proceed pro se at trial; (2) the trial court erred in denying appellant’s motion to suppress his statements; (3) the searches of the residence and the storage unit were unconstitutional; (4) the trial court erred in denying appellant’s multiple motions to continue the trial; (5) the trial court erred in staying appellant’s funding and other privileges used in preparation for trial after this court granted an interlocutory appeal; (6) the evidence is insufficient to support the convictions; (7) the trial court erred in denying appellant’s ex parte motions for expert services for a crime scene expert and a false confession expert; (8) the trial court failed to apply a higher standard of due process in all aspects of the case; (9) the trial court erred in admitting certain photographs; (10) the prosecutor made improper statements during closing arguments in both phases of the trial; (11) the trial court erred in instructing the jury during the guilt phase; (12) the aggravating ircumstances upon which the State relied were not stated in the indictment; (13) the trial court erred in denying appellant’s motion to preclude for-cause removal of jurors who were not death qualified; (14) Tennessee’s death penalty statute is unconstitutional; (15) the trial court erred in failing to advise appellant with respect to his testimony during the penalty phase; (16) the trial court failed to make an adequate inquiry into appellant’s competency to waive  is right to present mitigating evidence; (17) the trial court erred in instructing the jury during the penalty phase; (18) the trial court erred in admitting victim impact evidence; (19) the proportionality review is unconstitutional; and (20) cumulative error warrants reversal. Following our thorough review, we affirm the judgments of the trial court

Washington County Court of Criminal Appeals 03/13/15
State of Tennessee v. Anthony Wells
W2014-00185-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris Craft

The defendant, Anthony Wells, appeals his Shelby County Criminal Court jury conviction of voluntary manslaughter, claiming that the evidence was insufficient to support his conviction, that the sentence imposed by the trial court was excessive, and that the trial court erred by refusing to admit certain hearsay statements. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 03/13/15
Roger G. Van Blarcom v. State of Tennessee
M2012-00949-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Don R. Ash

The petitioner, Roger G. Van Blarcom, was initially charged with first degree murder, a Class A felony, and several other crimes. In exchange for the dismissal of the other charges and a reduction of the first degree murder charge, the petitioner pled guilty to second degree murder, a Class A felony, and agreed to an out-of-range sentence of thirty years to be served at 100%. He now appeals the denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel and that his guilty plea was not knowing and voluntary. After reviewing the record, the briefs of the parties, and the applicable law, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 03/12/15
State of Tennessee v. Ashley Wheeler
W2013-02765-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge James M. Lammey

Defendant, Ashley Wheeler, was indicted by the Shelby County Grand Jury for two counts of forgery valued at $1,000 or more, but less than $10,000, in Counts 1 and 2. In Count 3, Defendant was indicted for attempted theft of property valued at $1,000 or more, but less than $10,000. Following a jury trial, Defendant was convicted as charged. Following a sentencing hearing, the trial court merged Count 1 with Count 2 and sentenced Defendant to two years for her forgery conviction and one year for her attempted theft conviction. The trial court ordered Defendant’s sentences to be served concurrently and suspended on probation. In this appeal as of right, Defendant asserts that: 1) the prosecutor committed prosecutorial misconduct by making improper comments during closing argument; 2) the evidence was insufficient to support her convictions; and 3) the trial court abused its discretion by denying her requests to be granted judicial diversion and to be sentenced as an especially mitigated offender. Having carefully reviewed the record before us, we conclude that the comments of the prosecutor during closing argument constitute prosecutorial misconduct rising to the level of plain error. We therefore reverse the judgments of the trial court and remand this case for a new trial.

Shelby County Court of Criminal Appeals 03/11/15
State of Tennessee v. Kevin Dewitt Ford
M2014-01401-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Appellant, Kevin Dewitt Ford, appeals from the trial court’s summary dismissal of his pro se “Motion for Order Correcting Error in Judgment” filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Having reviewed the record and the briefs of the parties, we conclude that Appellant has failed to state a cognizable claim for relief, and therefore, the trial court did not err in summarily dismissing Appellant’s motion. Accordingly, the judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 03/11/15
State of Tennessee v. Donnell Tunstall
W2014-00257-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Chris Craft

Defendant, Donnell Tunstall, was convicted of attempted second degree murder, employing a firearm during the commission of a dangerous felony, and aggravated assault. He received an effective sentence of thirty-two years for these crimes. Defendant now appeals his convictions, claiming insufficient evidence and improper admission of unfairly prejudicial evidence regarding his previous arrest for the murder of the victim’s brother. After careful review, we conclude that the evidence was sufficient to support all of the convictions but that the admission of specific pieces evidence was improper and not harmless. Accordingly, the convictions are reversed and remanded for a new trial.

Shelby County Court of Criminal Appeals 03/10/15
State of Tennessee v. Lemaricus Devall Davidson
E2013-00394-CCA-R3-DD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Walter C. Kurtz

The defendant, Lemaricus Devall Davidson, appeals the Knox County Criminal Court jury convictions of two counts of first degree murder, two counts of especially aggravated robbery, two counts of especially aggravated kidnapping, three counts of aggravated rape, and one count of facilitation of aggravated rape that he received for his role in the January 2007 deaths of C.N. and C.C. The defendant claims that: the trial court 2 erred by refusing to suppress evidence obtained during the searches of his residence, his statements to the police following his arrest, and evidence obtained during searches of his person; the trial court erred by admitting into evidence postmortem photographs of the victims; the trial court should have excluded testimony and evidence regarding fingerprint examination and ballistics testing; the trial court erred by permitting courtroom spectators to wear buttons emblazoned with photographs of the victims during the guilt phase; the State violated his constitutional rights by intercepting and examining privileged communications to and from his attorneys; structural constitutional error occasioned by the out-of-court behavior of the trial judge entitles him to a new trial; the second successor trial judge erred by concluding that he could fulfill the statutory duty of thirteenth-juror review; the evidence was insufficient to support his convictions; errors related to the presentment require dismissal of the charges; the trial court erred by permitting jurors to submit questions for the witnesses; the trial court erred by allowing spectators to remain in the courtroom while jurors reviewed the defendant’s videotaped statement as part of their deliberations; the trial court should have dismissed the presentment due to constitutional deficiencies in the jury venire; the trial court erred by refusing to allow him to present evidence of the economic costs associated with the implementation of the death penalty; and the trial court erred by excusing those jurors who were not “death qualified.” The defendant also raises a number of challenges to the death penalty in general and its application in this case specifically. Because we conclude that no reversible error attends the convictions or sentences in this case and because it is our view, after a mandatory review, that the sentences of death imposed in this case were not disproportionate, we affirm the judgments of the trial court. We detect, however, clerical errors that require that the case be remanded for entry of corrected judgment forms.

Knox County Court of Criminal Appeals 03/10/15
State of Tennessee v. James Stubblefield, III
M2014-01178-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Michael R. Jones

The defendant, James Stubblefield, III, appeals the sentencing decision of the trial court following the revocation of his community corrections sentence. The defendant pled guilty to aggravated burglary, forgery, and driving on a revoked license. He was subsequently sentenced to an effective four-year community corrections sentence as a Range I, standard offender. A violation warrant issued alleging that the defendant had violated the terms and conditions of his community corrections agreement. Following a hearing, the trial court found the defendant to be in violation and revoked the community corrections sentence, ordering that the balance of the four-year sentence be served in incarceration. On appeal, the defendant does not contest the revocation of community corrections itself. Instead, he challenges only the trial court’s decision to order service of the entire sentence in confinement. Following review of the record, the decision of the trial court is affirmed.

Robertson County Court of Criminal Appeals 03/10/15
State of Tennessee v. Thomas Lee Carey, Jr. - Concurring
M2013-02483-CCA-R3-CD
Authoring Judge: Presiding Judge: Thomas T. Woodall
Trial Court Judge: Mark J. Fishburn

I concur in the results reached in the majority opinion. I do not join in that portion of the opinion which holds that admission into evidence of the autopsy report itself was not a violation of the Confrontation Clause.

Davidson County Court of Criminal Appeals 03/10/15
State of Tennessee v. Thomas Lee Carey, Jr.
M2013-02483-CCA-R3-CD
Authoring Judge: Robert L. Holloway, Jr.
Trial Court Judge: Mark J. Fishburn

1998, Thomas Lee Carey, Jr. (“the Defendant”) was indicted in connection with the 1996 death of Michael Dickerson. The State entered a nolle prosequi as to the charges in 1999. In 2010, the Defendant was re-indicted for the same incident. After a trial, the jury returned guilty verdicts of first degree felony murder, second degree murder, and especially aggravated kidnapping. The Defendant raises four issues on appeal: (1) whether the evidence is sufficient to support his conviction for felony murder; (2) whether the trial court erred in denying the Defendant’s motion for speedy trial; (3) whether the trial court erred in admitting the testimony of a medical examiner who did not conduct the autopsy of the victim; and (4) whether the trial court erred by allowing the State to recall a witness. After a review of the M2013-02483-CCA-R3-CDrecord and applicable law, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 03/10/15
Gregory Glen Phillips v. State of Tennessee
E2014-00544-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Petitioner, Gregory Glen Phillips, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief from his 2012 guilty plea to felony reckless endangerment and his two-year sentence. The Petitioner contends that he received the ineffective assistance of counsel and that his guilty plea was unknowingly and involuntarily entered. We affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 03/09/15
State of Tennessee v. Rico Vales
W2014-00048-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Carolyn Wade Blackett

Appellant, Rico Vales, stands convicted of two counts of aggravated assault, Class C felonies, and being a felon in possession of a handgun, a Class E felony. He received concurrent sentences of fifteen years for each aggravated assault conviction and six years for the handgun conviction. Appellant raises two issues for our review: (1) whether the evidence was sufficient to support his conviction of aggravated assault against one of the victims and (2) whether his right to a trial by an impartial jury was violated by pre-trial contact between a juror and one of his witnesses and the prior acquaintance of the juror and that witness. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 03/09/15
State of Tennessee v. James Allen Ballew
M2014-00378-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Leon C. Burns, Jr.

Defendant, James Allen Ballew, was indicted by the White County Grand Jury for one count of theft of property valued at $10,000 or more but less than $60,000, a Class C felony, from White County Lumber Company.  On January 29, 2013, Defendant entered a guilty plea to theft of property valued at $500 or more but less than $1,000, a Class E felony.  Pursuant to a negotiated plea agreement, Defendant received a two-year sentence to be served on probation and agreed to pay restitution, with the amount to be determined at a subsequent hearing.  A restitution hearing was conducted.  At the conclusion of the hearing, the trial court took the matter under advisement and requested that the State provide the court with a revised pecuniary loss list, including items recovered by the victim.  All that is contained in the transcript from the subsequent hearing is a brief colloquy wherein the trial court said, “we’ve agreed that an order will be submitted on restitution?” and the prosecutor replied, “Yes, your honor.”  The appellate record does not contain a separate order for restitution.  However, an amended judgment was entered, which states that Defendant is ordered to pay restitution in the amount of $11,000 to White County Lumber.  The amended judgment is silent as to the time or manner of payment.  Defendant appeals, arguing that the amount of restitution was unreasonable and unsupported by the evidence and that the trial court did not consider Defendant’s ability to pay restitution.  The State argues that the record is inadequate to allow for appellate review, and therefore, the trial court’s order of restitution should be presumed correct.  We conclude that there is nothing in the record to indicate whether the trial court made a ruling as to the amount of restitution or if an agreement was reached.  Defendant’s ability to pay restitution was apparently not considered by the trial court, and the trial court failed to include the repayment terms on the judgment form.  It is problematic that there is no indication that Defendant’s counsel was present in open court when the trial judge and the prosecutor had their brief colloquy.  Restitution, when appropriate, is just as much an integral part of a sentence as the length of sentence and the manner of service of the sentence.  See T.C.A. § 40-35-104(c)(2).  Thus, there must be something more in the record setting forth restitution other than what is contained in this record.  Moreover, the amended judgment incorrectly states that Defendant was convicted of a Class D felony.  Accordingly, we reverse the judgment of the trial court as to restitution and remand this case for a new restitution hearing and entry of an amended judgment that reflects the amount of restitution and the manner of payment, as well as that Defendant’s conviction offense as a Class E felony.

White County Court of Criminal Appeals 03/09/15
State of Tennessee v. Brian Allen Osborne
M2014-00352-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge David Earl Durham

In October 2011, the Macon County Grand Jury indicted Brian Allen Osborne (“the Defendant”) for aggravated arson, a Class A felony.  Following a jury trial, the Defendant was convicted as charged and sentenced to 20 years in the Department of Correction.  In this direct appeal, the Defendant contends:  (1) the trial court erred by ruling that proffered testimony from a defense witness was inadmissible hearsay; (2) the trial court provided misleading and prejudicial jury instructions on the defense of intoxication; (3)  the trial court erroneously instructed the jury that aggravated arson was both a result-of-conduct and nature-of-conduct offense; (4) the evidence was insufficient to sustain his conviction; and (5) the trial court erred in its application of enhancement and mitigating factors, resulting in an unjust and improper sentence.  Upon review, we affirm the judgment of the trial court.

Macon County Court of Criminal Appeals 03/09/15
State of Tennessee v. Gary D. Scales
M2014-01094-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Defendant, Gary D. Scales, was indicted by the Davidson County grand jury for one count of robbery.  A jury found Defendant guilty of the charged offense, and the trial court sentenced Defendant to serve 15 years in the Tennessee Department of Correction as a Persistent offender.  Defendant appeals his conviction and asserts that the evidence was insufficient to support his conviction.  Having carefully reviewed the record before us, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/09/15
State of Tennessee v. Christopher Bell
W2014-00504-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Paula Skahan

Appellant, Christopher Bell, pleaded guilty to especially aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and aggravated criminal trespass. The trial court sentenced appellant to an effective seventeen-year sentence. Appellant reserved a certified question of law arguing that the juvenile court did not properly conduct his transfer hearing from juvenile court to criminal court. Following our review of the briefs, the record, and the applicable law, we conclude that appellant’s transfer hearing was properly conducted and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 03/04/15
William Newson v. State of Tennessee
W2014-00867-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Roy B. Morgan, Jr.

Petitioner, William Newson, pleaded guilty to driving under the influence of an intoxicant (DUI) with an agreed sentence of eleven months twenty nine days, with forty-eight hours to serve and the remainder on probation. The sentence was to be served concurrently with a parole violation and a violation of an order of protection in unrelated cases. Petitioner filed a timely petition for post-conviction relief alleging that trial counsel promised him that his DUI guilty plea would result in his release from jail after serving the forty-eight hours as described in the guilty plea agreement and that he would return to probation. Petitioner now appeals the trial court’s denial of his petition for post-conviction relief, in which he alleged that his guilty plea was not knowingly, voluntarily, and intelligently entered due to the ineffective assistance of trial counsel. Having reviewed the record before us, we affirm the judgment of trial court.

Madison County Court of Criminal Appeals 03/04/15
State of Tennessee v. Ronald Chery, Daryn W. Chery and John K. St. Cloud
M2013-02845-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge James G. Martin, III

Appellants Ronald Chery, Daryn W. Chery, and John K. St. Cloud were charged in a presentment with thirteen counts of aggravated burglary, thirteen counts of varying degrees of theft, and one count of conspiracy to commit theft of property valued at more than $60,000.  Appellants filed a motion to dismiss the presentment on the grounds that they had been previously charged with one count of aggravated burglary and evading arrest that were so closely related to the subsequent thirteen burglaries and thefts that joinder of the offenses was mandatory.  Following a hearing on the motion to dismiss, the trial court denied relief. Each appellant pleaded guilty to five counts of aggravated burglary, and the State dismissed all theft counts and the conspiracy count.  As part of the plea agreement, appellants reserved a certified question pertaining to the necessity of mandatory joinder of the subsequent thirteen burglaries with the first burglary and related offenses pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure.  Following our review, we affirm the judgments of the trial court. 

Williamson County Court of Criminal Appeals 03/04/15
State of Tennessee v. Charlie E. Mullican
M2014-01122-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Larry B. Stanley

Defendant, Charlie E. Mullican, pled guilty pursuant to a negotiated plea agreement, to driving under the influence of an intoxicant (DUI), second offense, and possession of a handgun while under the influence of intoxicants.  He properly reserved a certified question of law for appeal.  The question of the law is dispositive of the case.  After a thorough review we affirm the judgment of the trial court.

Warren County Court of Criminal Appeals 03/04/15
Maurice Edward Carter v. State of Tennessee
M2014-00750-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David Earl Durham

In December 2009, the Petitioner, Maurice Edward Carter, pled guilty to one count of aggravated statutory rape and one count of criminal exposure to HIV and received an effective sentence of 20 years.  Pursuant to his plea agreement, the Petitioner reserved a certified question of law concerning the trial court’s denial of his motions to suppress evidence and his statement.  On direct appeal, this Court determined that the certified question was not dispositive of the Petitioner’s case and dismissed the appeal.  Thereafter, the Petitioner filed a post-conviction petition but was denied relief.  The Petitioner now appeals, contending that he received ineffective assistance of counsel based upon trial counsel’s failure to:  (1) properly preserve the certified question of law; (2) adequately explain to the Petitioner the possible outcomes of his direct appeal; and (3) address in the certified question of law the issue of the legality of the officer’s opening a locked box found in the Petitioner’s vehicle.  The Petitioner further contends that his guilty plea was unknowing and involuntary based upon trial counsel’s ineffectiveness and the trial court’s failure to ensure that the Petitioner understood the ramifications and possible outcomes of his appeal of a certified question of law.  Following review, we affirm the judgment of the post-conviction court.

Smith County Court of Criminal Appeals 03/03/15