Court of Criminal Appeals Opinions

Format: 02/13/2016
Format: 02/13/2016
Russell Leaks v. State of Tennessee
M2014-02324-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mark J. Fishburn

The Petitioner, Russell Leaks, filed a petition for habeas corpus relief.  He contended that he was entitled to relief because he was arrested without a warrant while he was on probation.  The habeas corpus court summarily dismissed the petition, and the Petitioner appealed.  Upon review, we affirm the judgment of the habeas corpus court.

Davidson County Court of Criminal Appeals 12/10/15
Troy Lynn Fox v. State of Tennessee
M2015-00249-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John D. Wootten, Jr.

The Petitioner, Troy Lynn Fox, appeals the Wilson County Criminal Court’s summary dismissal of his petition for post-conviction relief from his conviction of first degree premeditated murder and resulting sentence of life in the Department of Correction.  On appeal, he contends that his petition states a colorable claim for relief under the Post-Conviction Procedure Act, thus entitling him to counsel and to an evidentiary hearing. The State concedes that the trial court erred.  Based upon the record and the parties’ briefs, we agree with the Petitioner and the State, reverse the trial court’s order dismissing the petition, and remand this case to the trial court for the appointment of counsel and an evidentiary hearing.

Wilson County Court of Criminal Appeals 12/10/15
State of Tennessee v. Sabrina Howard
W2014-02309-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr
Trial Court Judge: Judge James M. Lammey

Sabrina Howard (“the Defendant”) appeals from the Shelby County Criminal Court’s denial of her motion to suspend the remainder of her sentence. The Defendant contends that the trial court abused its discretion by denying the motion without an evidentiary hearing. Because the record shows that the motion was untimely, we affirm the order of the trial court.

Shelby County Court of Criminal Appeals 12/09/15
Joyce Watkins v. Brenda Jones, Warden
W2015-00147-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Chris Craft

The Petitioner, Joyce Watkins, appeals the Shelby County Criminal Court's denial of her petition for habeas corpus relief from her 1988 convictions for first degree murder and aggravated rape and her effective life sentence. The Petitioner contends that the habeas corpus court erred by denying relief because the indictment failed to confer jurisdiction upon the trial court. We affirm the judgment of the habeas corpus court.

Shelby County Court of Criminal Appeals 12/09/15
State of Tennessee v. Nicky Lowe Evans
W2014-01459-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Donald H. Allen

The appellant, Nicky Lowe Evans, pled guilty in the Madison County Circuit Court to two counts of theft of property valued $10,000 or more but less than $60,000, a Class C felony; four counts of theft of property valued $1,000 or more but less than $10,000, a Class D felony; and five counts of operating a home improvement business without a license, a Class A misdemeanor. After a sentencing hearing, the appellant received an effective sentence of ten years, eleven months, and twenty-nine days in confinement. On appeal, the appellant contends that the length and manner of service of his sentences is excessive. Based upon the record and the parties' briefs, we conclude that the appellant's conviction in count one, theft of property valued $10,000 or more but less than $60,000, must be reversed and the charge dismissed. The appellant's sentences for his remaining convictions are affirmed. However, the judgments of conviction for counts seven through eleven reflect the incorrect convicted offense. Therefore, the case is remanded to the trial court for the correction of those judgments.

Madison County Court of Criminal Appeals 12/09/15
Steven O. Hughes-Mabry v. State of Tennessee
E2015-00398-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge R. Jerry Beck

The Petitioner, Steven O. Hughes-Mabry, appeals the Sullivan County Circuit Court‘s denial of his petition for post-conviction relief from his convictions of possession of 0.5 gram or more of cocaine with the intent to sell or deliver within 1000' of a school zone, introduction of contraband into a penal institution, and driving on a suspended license, for which he is serving an effective fifteen-year sentence. He contends that the post-conviction court erred in denying relief on his ineffective assistance of counsel claims and that the court erred in excluding evidence relevant to an issue that was not raised in the petitions. We affirm the judgment of the post-conviction court.

Sullivan County Court of Criminal Appeals 12/09/15
State of Tennessee v. Randy Lane
E2014-01117-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Bobby R. McGee

After a bench trial, the Knox County Criminal Court convicted the appellant, Randy Lane, of five counts of aggravated burglary and six counts of felony theft of property and sentenced him to a total effective sentence of eight years. On appeal, the appellant challenges the trial court's denial of his motion to suppress his statement, arguing that he made the statement as part of a plea agreement that turned out to be unenforceable. The State responds that the appellant is not entitled to relief because the State and the appellant entered into a subsequent agreement, which he materially breached. Based upon the record and the parties' briefs, we agree with the appellant that the trial court should have granted his motion to suppress. Therefore, his convictions are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Knox County Court of Criminal Appeals 12/07/15
State of Tennessee v. Kevin Lynn Montgomery
E2015-00461-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

The Defendant, Kevin Lynn Montgomery, pleaded guilty to two counts of sexual battery and received an effective four-year sentence. More than five years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence or permit him to withdraw his guilty pleas because lifetime community supervision was not authorized by statute. The trial court denied the motion after an evidentiary hearing. On appeal, he contends that the trial court erred in denying his motion. We affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 12/07/15
State of Tennessee v. Deborah M. Nowakowski
M2014-02336-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge John D. Wootten, Jr.

The Defendant-Appellant, Deborah Nowakowski, was convicted by a Wilson County jury of driving under the influence (DUI) and driving on a revoked license.  At a subsequent bench trial, the trial court found that Nowakowski had five previous DUI convictions and one previous conviction for driving on a revoked license.  She was therefore convicted of DUI, sixth offense, and violating the Motor Vehicle Habitual Offenders Act (MVHOA).  She received a total effective sentence of twelve years, eleven months and twenty-nine days’ incarceration.  On appeal, the sole issue presented for our review is whether the trial court erred in holding harmless the erroneous admission of a statement referencing Nowakowski’s prior DUI convictions.  Discerning no reversible error, we affirm the judgment of the trial court.

Wilson County Court of Criminal Appeals 12/04/15
Eric Bernard Howard v. State of Tennessee
M2015-00603-CCA-R3-HC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Deanna B. Johnson

Petitioner, Eric Bernard Howard, appeals from the trial court’s dismissal of his pro se petition for writ of habeas corpus in which he alleged various constitutional violations concerning his convictions and seventeen-year sentence for two counts of aggravated robbery.  On appeal, Petitioner argues that the trial court erred by summarily dismissing his petition without a hearing and that his convictions are void because of his diminished mental capacity at the time of the offenses.  After a thorough review, we affirm the judgment of the habeas corpus court.

Hickman County Court of Criminal Appeals 12/04/15
Douglas L. Lyle, Sr. v. State of Tennessee
E2015-00105-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jon Kerry Blackwood

The petitioner, Douglas L. Lyle, Sr., appeals the post-conviction court's denial of his petition for relief from his aggravated sexual battery conviction, asserting that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court denying relief.

Knox County Court of Criminal Appeals 12/04/15
Tony Reed Hildebrand v. State of Tennessee
E2014-02259-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Lisa Rice

Petitioner, Tony Reed Hildebrand, filed a pro se motion for post-conviction relief in which he alleged ineffective assistance of counsel, alleged that he was “falsely accused,” and insisted that a “court order [was] not honored.” The post-conviction court denied relief and dismissed the petition without a hearing. After our review, we conclude that the petition alleged a colorable claim of ineffective assistance of counsel and Petitioner was entitled to appointed counsel, if found to be indigent, and to an opportunity to amend his petition. Accordingly, the judgment of the post-conviction court is reversed, and the case is remanded.

Carter County Court of Criminal Appeals 12/04/15
State of Tennessee v. Aurelio Garcia Sanchez - Concurring
M2014-01997-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David Earl Durham

Although I concur with lead opinion’s conclusion that the trial court did not abuse its discretion in ordering consecutive sentencing, I write separately to express my opinion that the imposition of a 125-year sentence to be served at 100% pushes to the limit the presumption of reasonableness underState v. Pollard, 432 S.W.3d 851 (Tenn. 2013) and State v. Bise, 380 S.W.3d 682 (Tenn. 2012).  Without diminishing the seriousness of the offense of rape of a child, I would note that the 125-year sentence is over twice as long as a life sentence for first degree murder, 60 years.

Macon County Court of Criminal Appeals 12/04/15
State of Tennessee v. Aurelio Garcia Sanchez - Concurring
M2014-01997-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge David Earl Durham

          First, I concur in Judge Holloway’s separate opinion, and with the results reached in the lead opinion.  Second, I write to remind both the State and the defense bar that under binding precedent from our supreme court that “[s]imply stated, polygraph evidence is inadmissible.”  State v. Sexton, 368 S.W.3d 371, 409 (Tenn. 2012).  The results of polygraph examinations are inherently unreliable, they are thus not probative, and they lack relevance.  A defendant’s willingness or refusal to take a polygraph test is not admissible.  Id.  The trial court should have sua sponte ruled that all evidence of the polygraph examination in this case must be excluded.  I know of no exception to the rule of inadmissibility of such evidence.  Whether the threat or use of a polygraph examination might someday be argued by a defendant as evidence of an involuntary statement or as evidence of coercion, and thus be an exception to the rule of inadmissibility, is not raised in this case.

Macon County Court of Criminal Appeals 12/04/15
State of Tennessee v. Aurelio Garcia Sanchez
M2014-01997-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David Earl Durham

A Macon County jury convicted the Defendant, Aurelio Garcia Sanchez, of five counts of rape of a child.  The trial court sentenced the Defendant to serve consecutive twenty-five year sentences for each conviction, for an effective sentence of 125 years in the Tennessee Department of Correction.  On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion to suppress his statement to police; (2) the evidence is insufficient to sustain his convictions; and (3) the trial court erred when it imposed consecutive sentences.  After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

Macon County Court of Criminal Appeals 12/04/15
State of Tennessee v. Tavarus Detterio Griffin
W2014-02114-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Weber McCraw

Following a jury trial, the Defendant, Tavarus Detterio Griffin, was convicted of two counts of aggravated robbery and two counts of aggravated kidnapping.  In this appeal as of right, the Defendant contends that: (1) the evidence is insufficient to support his convictions; (2) the entire jury pool was tainted when, during voir dire, a juror mentioned that she had been called for jury service at the Defendant’s first trial on these charges; (3) the jury foreman’s comment, prior to the beginning of deliberations, that he knew the Defendant was guilty constituted juror misconduct; and (4) the prosecutor’s use of testimony from the Defendant’s allocution at his first trial to impeach him with a prior inconsistent statement constituted reversible error.  Following our review, we affirm the judgments of the trial court.

Hardeman County Court of Criminal Appeals 12/03/15
Jamell Faulkner v. State of Tennessee
W2014-01994-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Jamell Faulkner, filed a petition for post-conviction relief from his convictions of second degree murder and especially aggravated burglary and the accompanying effective sentence of fifteen years.  The Petitioner alleged that his lead counsel and his co-counsel were ineffective and that his guilty pleas were not knowingly and voluntarily entered.  The post-conviction court denied the petition, and the Petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

Lauderdale County Court of Criminal Appeals 12/03/15
Jerry Kirkpatrick v. State of Tennessee
E2015-00036-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steven W. Sword

The petitioner, Jerry Kirkpatrick, appeals the denial of his petition for post-conviction from his convictions for burglary and theft of property over $1,000, arguing that he received ineffective assistance of counsel at trial. After review, we affirm the denial of the petition.

Knox County Court of Criminal Appeals 12/03/15
State of Tennessee v. Kermit Penley
E2015-00426-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John F. Dugger, Jr.

The petitioner, Kermit Penley, appeals the denial of his Rule 36.1 Motion to Correct an Illegal Sentence. He argues that he received a sentence of “life with the possibility of parole” with his parole eligibility occurring after service of eighty-five percent of his sentence, and he contends that this sentence is not authorized by statute. Following our review, we conclude that the petitioner was sentenced to life imprisonment and that his sentence is not illegal. We affirm the judgment of the trial court

Greene County Court of Criminal Appeals 12/03/15
State of Tennessee v. Christopher Lee Byrge
E2015-00014-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Donald Ray Elledge

Defendant, Christopher Lee Byrge, was convicted of aggravated sexual battery and received a nine-year sentence. He appeals his conviction, arguing that: (1) the trial court erred in denying Defendant's motion to suppress his admissions; (2) the trial court erred by not requiring the State to elect the specific date on which the alleged offense occurred; (3) the trial court erred by giving a sequential jury instruction; (4) the trial court erred in denying Defendant's request for a special jury instruction on corroboration of admissions against interest; and (5) the evidence was insufficient to support his conviction. After a careful review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the trial court.

Anderson County Court of Criminal Appeals 12/03/15
State of Tennessee v. Kenneth Dwayne Mitchell
E2014-02542-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge R. Jerry Beck

Following his arrest at a sobriety checkpoint on October 7, 2011, the Defendant, Kenneth Dwayne Mitchell, was indicted for driving under the influence (“DUI”), possession of drug paraphernalia, and driving with a blood alcohol content (“BAC”) of .08% or greater (“DUI per se”). See Tenn. Code Ann. §§ 39-17-425 & 39-17-425. Following a jury trial, the Defendant was convicted of DUI per se and acquitted of the remaining charges. In this appeal as of right, the Defendant contends that the trial court erred in denying his motion to suppress, arguing that his seizure at the sobriety checkpoint was unreasonable because adequate notice of the roadblock was not provided. Discerning no error, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 12/03/15
Cayetano Flores v. State of Tennessee
M2014-02257-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steve R. Dozier

Petitioner, Cayetano Flores, appeals the denial of his petition for post-conviction relief.  He argues that his trial counsel provided ineffective assistance by operating under a conflict of interest, inadequately discussing various aspects of the case and the details of the plea agreement, and failing to file a motion to sever.  After a careful review of the record, we affirm the prost-conviction court’s denial of post-conviction relief.

Davidson County Court of Criminal Appeals 12/02/15
Mario D. Thomas v. State of Tennessee
W2015-00748-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Joseph H. Walker, III

In this appeal, pro se Petitioner Mario D. Thomas challenges the Hardeman County Circuit Court’s summary dismissal of his petition for writ of habeas corpus relief.  Upon our review, we affirm the judgment of the habeas corpus court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Hardeman County Court of Criminal Appeals 11/30/15
State of Tennessee v. Douglas Zweig
W2015-00449-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge John Wheeler Campbell

Petitioner, Douglas Zweig, was convicted in 1981 of attempt to commit a felony: to wit, third degree burglary.  See Tenn. Code Ann. § 39-603 (1975).  He was sentenced to serve eleven months, twenty-nine days in the Shelby County Correctional Center, but the trial court suspended his sentence to two years of probation after service of thirty days in confinement.  In 2014, he filed a motion under Tennessee Rule of Criminal Procedure 36, requesting that the trial court correct the judgment to reflect that he was convicted of a misdemeanor rather than a felony.  The trial court denied his petition.  Upon review, we conclude that petitioner’s conviction was a felony and, therefore, affirm the judgment of the trial court. 

Shelby County Court of Criminal Appeals 11/30/15
State of Tennessee v. Steven J. Ballou
E2015-00399-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Sandra Donaghy

The defendant, Steven J. Ballou, pled guilty to one count of evading arrest, a Class D felony, and received a sentence of five years to be served consecutively to a prior sentence. As part of his guilty plea, the defendant reserved two certified questions of law. In the first question, he argues that an eighteen-month pre-indictment delay caused substantial prejudice to his right to a fair trial and was an intentional delay by the State to gain a tactical advantage over the defendant. In the second, he contends that the loss of police cruiser dashboard camera videos that contained potentially exculpatory evidence violated his right to a fair trial. Following our review, we affirm the judgment of the trial court as to the first certified question of law and conclude that we do not have jurisdiction to consider the second certified question.

Bradley County Court of Criminal Appeals 11/30/15