Court of Criminal Appeals Opinions

Format: 10/22/2014
Format: 10/22/2014
Eugene Mark Hogbin v. State of Tennessee
M2014-00085-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Robert E. Burch

Petitioner, Eugene Mark Hogbin, was convicted of two counts of aggravated sexual battery and sentenced to an effective sentence of twenty years.  Petitioner filed the instant petition for post-conviction relief, in which he alleged that he received ineffective assistance of counsel.  Following an evidentiary hearing, the post-conviction court denied relief.  On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel told petitioner that she would win his case at trial.  After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Cheatham County Court of Criminal Appeals 07/30/14
Tiffany Davis v. Brenda Jones, Warden
M2014-00386-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Forest A. Durard

The petitioner, Tiffany Davis, appeals the Marshall County Circuit Court’s dismissal of her petition for writ of habeas corpus.  In the petition, she challenged her Marshall County drug convictions, which had resulted in an effective sentence of 30 years in the Department of Correction.  Because we agree with the habeas corpus court that the petitioner’s claims of double jeopardy violations and ineffective assistance of counsel do not render her convictions void, we affirm that court’s dismissal of the petition.

Marshall County Court of Criminal Appeals 07/30/14
Cyrus Deville Wilson v. State of Tennessee
M2013-01807-CCA-R3-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth Norman

The petitioner, Cyrus Deville Wilson, appeals the denial of his petition for the writ of error coram nobis.  The petitioner is currently serving a life sentence following his conviction for first degree murder.  In his petition, the petitioner contended that he was entitled to relief because of recently recanted testimony by an eyewitness to the murder.  The error coram nobis court concluded that the recantation was not credible and denied relief.  On appeal, the petitioner contends that the court erred in denying relief because it improperly assessed the evidence presented and applied an incorrect legal standard.  After a review of the record, we affirm.

Davidson County Court of Criminal Appeals 07/30/14
State of Tennessee v. Demontre Chavez Brown
M2013-02091-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Lee Russell

In this appeal, the Defendant, Demontre Chavez Brown, challenges his conviction for aggravated robbery, a Class B felony, and subsequent sentence of twelve years’ incarceration. Specifically, he alleges that (1) the evidence was insufficient to support his conviction because the witnesses’ testimonies had material inconsistencies and his co-defendant’s testimony was inadequately corroborated; (2) the trial court improperly allowed his co-defendant to testify because the State did not provide him with sufficient notice of such; and (3) the trial court’s imposition of the maximum sentence was excessive because the Defendant’s record contained mostly petty juvenile offenses. Upon consideration of the record and relevant case law, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 07/30/14
Milton L. Kirk Jr. v. State of Tennessee
W2013-00544-CCA-R3-PC
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Senior Judge Don R. Ash

Milton L. Kirk, Jr., (“the Petitioner”) was convicted by a jury of sale of .5 grams or more of cocaine. The Petitioner then pleaded guilty to tampering with evidence and possession with intent to sell or deliver cocaine. The trial court sentenced the Petitioner to an effective sentence of sixteen years’ incarceration. The Petitioner subsequently filed for postconviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that he received ineffective assistance of counsel at trial and that his guilty plea was constitutionally invalid. Upon our thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Dyer County Court of Criminal Appeals 07/29/14
Christopher Scott Chapman v. Henry Steward, Warden
W2013-02361-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Christopher Scott Chapman, appeals as of right from the Lake County Circuit Court’s dismissal of his petition for a writ of habeas corpus. The Petitioner contends that he was denied pretrial jail credits. Discerning no error, we affirm the judgment of the habeas corpus court.

Lake County Court of Criminal Appeals 07/29/14
State of Tennessee v. Michael Jarrod Brady
W2013-02784-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roy B. Morgan Jr.

A jury convicted the defendant, Michael Jarrod Brady, of aggravated robbery, a Class B felony. The defendant’s sole issue on appeal is a challenge to the sufficiency of the evidence. Because we find that the evidence is sufficient to sustain the verdict, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 07/29/14
State of Tennessee v. Bobby Charles Farley Jr.
W2013-02055-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Donald H. Allen

A jury convicted the Defendant, Bobby Charles Farley, Jr., of driving under the influence (“DUI”); unlawful carrying of a weapon; violating the financial responsibility law; and violating the seatbelt law. After a hearing, the trial court imposed an effective sentence of eleven months, twenty-nine days, to be served in the county jail. In this direct appeal, the Defendant challenges the sufficiency of the evidence underlying his DUI offense and the trial court’s instructions to the jury. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 07/29/14
State of Tennessee v. Burton W. Webb
E2013-02107-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Rebecca J. Stern

The Defendant, Burton W. Webb, pleaded guilty to three counts of reckless aggravated assault, Class D felonies, two counts of vehicular assault, Class D felonies, and driving under the influence (DUI) second offense, a Class A misdemeanor. See T.C.A. §§ 39-13-102, 39-13-106, 55-10-401 (2010). The trial court merged the DUI conviction with the vehicular assault convictions and sentenced the Defendant as a Range I, standard offender to two years for each reckless aggravated assault conviction and to three years for each vehicular assault conviction. The court ordered consecutive service of the vehicular assault convictions, for an effective six-year sentence. On appeal, the Defendant contends that the trial court erred (1) by applying certain enhancement factors to the vehicular assault convictions, (2) by denying alternative sentencing, and (3) by ordering consecutive sentences. Although we conclude that the trial court erroneously applied two enhancement factors, the lengths and the manner of service of the sentences are proper. We also conclude that the trial court erred by failing to state its factual findings underlying its conclusion that consecutive sentences were warranted pursuant to State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). We remand the case in order for the court to state its factual findings on the record.

Hamilton County Court of Criminal Appeals 07/29/14
State of Tennessee v. Pedro Ignacio Hernandez
M2013-01321-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Monte Watkins

The defendant, Pedro Ignacio Hernandez, appeals from his Davidson County Criminal Court jury convictions of three counts of rape of a child, one count of attempted rape of a child, and five counts of aggravated sexual battery, claiming that the trial court erred by deeming him competent to stand trial; that the trial court erred by denying a motion to suppress his pretrial statement to police; that the trial court erred by denying a motion to suppress the results of DNA testing conducted using DNA that was unconstitutionally obtained; that the trial court erred by allowing the State to present evidence that the defendant displayed a photograph of his genitalia to the victim; that the evidence was insufficient to support two of the defendant’s convictions of rape of a child; that dual convictions of rape of a child in count one and aggravated sexual battery in count twelve were prohibited by principles of due process; and that the trial court erred by imposing consecutive sentences and by sentencing the defendant as a Range II offender.  Because the trial court erroneously imposed a Range II sentence for the defendant’s convictions of rape of a child in violation of constitutional ex post facto protections, the sentence for each conviction of rape of a child is modified from a sentence of 28 years to a sentence of 25 years.  The judgments of the trial court are affirmed in all other respects.

Davidson County Court of Criminal Appeals 07/29/14
Scott Clevenger v. State of Tennessee
E2013-01786-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge O. Duane Slone

In this appeal, the Petitioner, Scott Clevenger, contends that he received ineffective assistance of counsel at trial. Specifically, he alleges that trial counsel failed to meet with him an adequate amount of times and failed to give him a copy of the discovery materials so that he could make an informed decision about his case. After considering the record and the applicable authorities, we affirm the judgment of the post-conviction court.

Grainger County Court of Criminal Appeals 07/29/14
State of Tennessee v. Terry Scott Yarbrough
M2013-02125-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Mark Fishburn

Appellant, Terry Scott Yarbrough, pleaded guilty to driving under the influence (“DUI”), first offense, and received a sentence of eleven months, twenty-nine days, with all but forty-eight hours suspended to supervised probation.  As a condition of the plea agreement, appellant reserved the right to certify a question of law challenging the trial court’s denial of a motion to suppress.  Following our review, we conclude that we do not have jurisdiction to address the certified question of law because it does not comply with the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2) and State v. Preston, 759 S.W.2d 647 (Tenn. 1988).  Accordingly, the appeal is dismissed.

Davidson County Court of Criminal Appeals 07/29/14
State of Tennessee v. Janet Lynn Jared
M2013-01739-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge David Patterson

Appellant, Janet Lynn Jared, was convicted of theft over $10,000.  She was sentenced to six years, with the sentence to be served on probation if she paid restitution of over $82,000 to her victims.  To satisfy the judgment, she sold the family farm, but the sale resulted in net proceeds of only about $48,000.  The State subsequently filed a motion to order that the remaining amount of restitution be paid.  After several hearings, the Criminal Court ordered that Appellant pay the remainder of her obligation at the rate of $500 a month.  Appellant does not challenge the amount of restitution ordered by the Criminal Court, but she contends on appeal that the Court erred by ordering a payment schedule without considering her means and ability to pay, in violation of Tennessee Code Annotated section 40-35-304(d).  The State asks us to dismiss this appeal because under Tennessee Rule of Appellate Procedure 3(b) there is no appeal as of right from a decision to modify the conditions of probation.  We agree with the State.  This appeal is dismissed.

Putnam County Court of Criminal Appeals 07/29/14