Court of Criminal Appeals Opinions

Format: 06/23/2017
Format: 06/23/2017
State of Tennessee v. John Talley
E2016-00213-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Barry A. Steelman

Defendant, John Talley, appeals as of right from the Hamilton County Criminal Court’s denial of his motion under Tennessee Rule of Criminal Procedure 36.1 to correct an illegal sentence. Defendant contends that the trial court erred by concluding that relief was not available because his illegal sentence had expired. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 04/07/17
State of Tennessee v. Michael Chris Luthi
M2016-00427-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Vanessa A. Jackson

A Coffee County grand jury indicted the Defendant, Michael Chris Luthi, for DUI, third offense, DUI per se, and violation of the seat belt statute.  The Defendant filed a motion to suppress the evidence found as a result of a search of his vehicle, contending that the trooper did not have reasonable suspicion to support the stop.  The trial court denied the motion.  A Coffee County jury convicted the Defendant of DUI, third offense and of violating the seat belt statute.  On appeal, the Defendant contends that the trooper could not have seen that the Defendant was not wearing his seat belt and, thus, lacked reasonable suspicion to stop the Defendant’s vehicle.  After review, we affirm the judgments of the trial court.

Coffee County Court of Criminal Appeals 04/07/17
State of Tennessee v. Freddy Lee Penley
E2015-01960-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Alex E. Pearson

The defendant, Freddy Lee Penley, appeals his Greene County Criminal Court guilty-pleaded convictions of filing a false report and leaving the scene of an accident, claiming that the trial court erred by ordering that he serve his entire three-year sentence in confinement. Discerning no error, we affirm.

Greene County Court of Criminal Appeals 04/07/17
Demetrius Armstrong v. State of Tennessee
W2016-00775-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Clayburn Peeples

The Petitioner, Demetrius Armstrong, appeals the denial of his petition for postconviction relief by the Gibson County Circuit Court. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that his guilty plea was involuntary and unknowing. Upon review, we affirm the judgment of the post-conviction court.

Gibson County Court of Criminal Appeals 04/06/17
State of Tennessee v. Edward Sample
W2016-00175-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

The defendant, Edward Sample, was convicted of the unauthorized use of a motor vehicle, attempted second degree murder, employing a firearm during the commission of attempted second degree murder, aggravated assault, intentionally evading arrest in a motor vehicle, and evading arrest. He was sentenced, respectively, to eleven months and twenty-nine days, twelve years, six years, six years, two years, and eleven months and twenty-nine days. The trial court found him to be a dangerous offender and ordered that all sentences be served consecutively, resulting in a total effective sentence of twentyseven years, eleven months and twenty-eight days. On appeal, the defendant argues that the trial court erred by admitting into evidence a recording of his jailhouse phone call, by charging the jury regarding his admission against interest, and by enhancing his sentences and ordering that they be served consecutively. Additionally, he argues that double jeopardy results from his convictions for attempted second degree murder and employing a firearm during its commission and that the State’s closing argument was improper. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/06/17
Demond Hughes v. State of Tennessee
W2016-00414-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Chris Craft

The Petitioner, Demond Hughes, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his 2012 convictions for especially aggravated robbery, aggravated robbery, and aggravated rape and his effective twenty-five-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/06/17
State of Tennessee v. Wendall Curtis Doree
M2015-00395-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James G. Martin, III

The Appellant, Wendall Curtis Doree, was convicted by a Perry County Circuit Court Jury of especially aggravated kidnapping, aggravated robbery, aggravated burglary, unlawful employment of a firearm during the commission of a dangerous offense, theft over $1,000, and facilitation of vandalism over $1,000.  The trial court merged the theft conviction with the aggravated robbery conviction and imposed a total effective sentence of twenty-two years.  On appeal, the Appellant challenges the sufficiency of the evidence sustaining his especially aggravated kidnapping conviction, contending that in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), the State failed to adduce sufficient proof that the confinement of the victim was not incidental to the aggravated robbery and was sufficient, standing alone, to sustain his conviction of especially aggravated kidnapping.  Upon review, we affirm the judgments of the trial court.

Perry County Court of Criminal Appeals 04/06/17
State of Tennessee v. Tory Hardison
M2015-01188-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Russell Parkes

The Appellant, Tory Hardison, pled guilty in the Giles County Circuit Court to the sale of .5 grams or more of cocaine, the sale of less than .5 grams of cocaine, the possession of .5 grams or more of cocaine with the intent to sell, and the possession of alprazolam with the intent to sell.  Pursuant to the plea agreement, the Appellant received a total effective sentence of twenty years, which was suspended to community corrections.  Thereafter, the trial court revoked the Appellant’s community corrections sentences for failure to comply with the terms of release and ordered the Appellant to serve his original sentences in confinement.  On appeal, the Appellant contends that his judgments of conviction are illegal and cannot be revoked.  In the alternative, he contends that the trial court abused its discretion by revoking his community corrections sentences and ordering him to serve his sentences in confinement.  Upon review, we conclude that the case must be remanded to the trial court for entry of corrected judgments.  The judgments of the trial court are affirmed in all other respects.

Giles County Court of Criminal Appeals 04/06/17
Robert Murphy v. State of Tennessee
M2016-00071-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph A. Woodruff

The Petitioner, Robert Murphy, appeals the Lewis County Circuit Court’s denial of his petition for post-conviction relief from his convictions of two counts of rape, two counts of aggravated sexual battery, and two counts of incest and resulting effective sentence of forty-eight years to be served at 100%.  On appeal, the Petitioner contends that the post-conviction court erred by finding that his petition was barred by the statute of limitations because due process required that the statute of limitations be tolled.  Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

Lewis County Court of Criminal Appeals 04/06/17
Cordell L. Butler v. State of Tennessee
M2015-01708-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Cordell L. Butler, filed in the Davidson County Criminal Court a petition for post-conviction relief from his convictions of conspiracy to sell over fifty grams of hydromorphone and possession of over fifty grams of hydromorphone.  The Petitioner alleged that his trial counsel was ineffective and that his guilty pleas were not knowing and voluntary.  The post-conviction court denied the petition, and the Petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 04/06/17
State of Tennessee v. George P. Watkins, III-Dissenting
W2015-02095-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald H. Allen

I respectfully disagree with the majority's conclusion that the trial court committed plain error by including “that the defendant acted either intentionally, knowingly, or recklessly” in its jury instruction for possession of a firearm with intent to go armed during the commission of or attempt to commit a dangerous felony (hereinafter “the possession offense”). After a review of the entire record and applicable law, I do not agree that “a clear and unequivocal rule of law [was] breached” or that “consideration of the error is necessary to do substantial justice.” State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).

Madison County Court of Criminal Appeals 04/05/17
State of Tennessee v. George P. Watkins, III
W2015-02095-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald H. Allen

The Defendant-Appellant, George P. Watkins, III, was convicted by a Madison County Circuit Court jury of one count of possession of marijuana with intent to sell (Count 1), one count of possession of marijuana with intent to deliver (Count 2), one count of possession of drug paraphernalia (Count 3), and two counts of possession of a firearm with the intent to go armed during the commission of a dangerous felony (Counts 4 and 5). See T.C.A. §§ 39-17-417(a), -425, -1324(a). The trial court, after merging Count 2 with Count 1 and Count 5 with Count 4, sentenced Watkins to two years at thirty percent for the possession of marijuana with intent to sell conviction, eleven months and twenty-nine days for the possession of drug paraphernalia conviction, and three years at one hundred percent for the firearm conviction. The court then ordered the sentences for the marijuana and drug paraphernalia convictions served concurrently and ordered the sentence for the firearm conviction served consecutively to the other sentences in accordance with Code section 39-17-1324(e), for an effective sentence of five years. On appeal, Watkins argues that (1) the trial court committed plain error when it instructed the jury on the mental states of “knowingly” and “recklessly” for the offenses of possession of a firearm with the intent to go armed during the commission of a dangerous felony, and (2) the evidence is insufficient to sustain his firearm convictions. Because the erroneous jury instruction for the firearm offenses constitutes plain error, we reverse and vacate the judgments in Counts 4 and 5 and remand the case for a new trial on these counts. We also remand the case for entry of corrected judgments in Counts 1 and 2.

Madison County Court of Criminal Appeals 04/05/17
State of Tennessee v. Helkie Nathan Carter
M2015-00280-CCA-R9-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Jude Mark J. Fishburn

Helkie Nathan Carter (“the Defendant”) was indicted for the following counts: (1) driving under the influence (“DUI”)—third offense; (2) driving with a blood alcohol concentration (“BAC”) of .08 or more (“DUI per se”)—third offense; (3) violation of the habitual motor vehicle offender statute; and (4) driving on a revoked license.  The Defendant’s motion to suppress evidence obtained during a mandatory blood draw was granted by the trial court.  The State sought and was granted permission to appeal, arguing that the Defendant gave both actual and implied consent to the blood draw and that, if the good-faith exception is adopted in Tennessee, it should apply to this case.  Upon review, we concluded that the Defendant’s actual consent was not freely and voluntarily given; that Tennessee’s implied consent law did not, by itself, operate as an exception to the warrant requirement; and that the Tennessee Supreme Court had yet to recognize a good-faith exception to the exclusionary rule and it was not the role of this court to do so.  State v. Helkie Nathan Carter, No. M2015-00280-CCA-R9-CD, 2016 WL 3044216, at *1 (Tenn. Crim. App. May 20, 2016).  Accordingly, we affirmed the trial court’s granting of the Defendant’s motion to suppress.  Id.  On March 8, 2017, the Tennessee Supreme Court granted the State’s application for permission to appeal and remanded the case to this court for reconsideration in light of the supreme court’s recent opinion in State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016).  Upon reconsideration in light of Reynolds, we conclude that the good-faith exception to exclusionary rule applies in this case and that suppression of evidence derived from the testing of the Defendant’s blood was not required.  Accordingly, the judgment of the trial court suppressing the results of the warrantless blood draw is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Davidson County Court of Criminal Appeals 04/05/17
Robert Kizer v. State of Tennessee
M2016-01215-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Larry J. Wallace

In 2009, the Petitioner, Robert Kizer, pleaded guilty to sale of cocaine and was sentenced to twelve years of incarceration, with all but ninety days to be served on Community Corrections.  In 2010, a Community Corrections violation warrant was issued, prompting the Petitioner to file a motion for post-conviction relief alleging that his sentence was incorrect and that he received the ineffective assistance of counsel.  In 2012, a second violation warrant was issued, and, in 2013, the trial court revoked the Petitioner’s Community Corrections sentence and dismissed his post-conviction petition.  Later in 2013, the Petitioner filed a second petition for post-conviction relief.  The post-conviction court held a hearing in 2015 following which it denied the petition.  On appeal, the Petitioner claims that he received the ineffective assistance of counsel during his guilty plea hearing because his attorney lacked “legal authority” to represent him and because his attorney had a conflict of interest.  After review of the record and applicable authorities, we affirm the post-conviction court’s judgment.

Houston County Court of Criminal Appeals 04/05/17
L. B. Rittenberry, Jr. v. State of Tennessee
M2016-00409-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mark J. Fishburn

Petitioner, L.B. Rittenberry, Jr., was convicted of second degree murder despite his claim of self-defense.  He appeals the denial of his petition for post-conviction relief, which alleged ineffective assistance of trial counsel.  Petitioner argues that the post-conviction court erred by finding that he was not prejudiced by trial counsel’s failure to adequately investigate the victim’s prior history of violence.  We affirm the decision of the post-conviction court.

Davidson County Court of Criminal Appeals 04/05/17
Marcus L. Branner v. State of Tennessee
E2016-00956-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven W. Sword

The petitioner, Marcus L. Branner, appeals the summary dismissal of his 2013 petition for post-conviction relief, which challenged his 2001 convictions of second degree murder and attempted second degree murder. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 04/03/17
State of Tennessee v. Janet Michelle Stanfield, Tony Alan Winsett, and Justin Bradley Stanfield
W2015-02503-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jeff Parham

The Defendants, Janet Michelle Stanfield, Tony Alan Winsett, and Justin Bradley Stanfield, were indicted by the Obion County Grand Jury for various drug and firearm offenses following a warrantless search of their house. The Defendants filed motions to suppress the evidence seized, and the trial court granted the motions and dismissed the case. The State appeals, asserting that the warrantless search was valid and the evidence was admissible. Upon review, we affirm the judgment of the trial court.

Obion County Court of Criminal Appeals 03/31/17
Harold Bernard Schaffer v. State of Tennessee
W2016-00115-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge R. Lee Moore, Jr.

The Petitioner, Harold Bernard Schaffer, appeals from the Dyer County Circuit Court’s denial of his petition for post-conviction relief from his conviction for first degree felony murder, for which he is serving a life sentence. The Petitioner contends that the postconviction court erred in denying relief on his ineffective assistance of counsel claims. We affirm the judgment of the post-conviction court.

Dyer County Court of Criminal Appeals 03/31/17
Charles E. Wagner v. State of Tennessee
E2016-00823-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Charles E. Wagner, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his 2011 convictions for especially aggravated kidnapping, aggravated kidnapping, kidnapping, aggravated assault, assault, aggravated criminal trespass, and false imprisonment and his effective nineteen-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 03/31/17
State of Tennessee v. Nicole Irizzary
M2016-00465-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Larry J. Wallace

The defendant, Nicole Irizzary, pled nolo contendere to voluntary manslaughter as a lesser-included offense of second degree murder (Count 1), possession of a Schedule II Drug (Count 2), and child abuse and neglect as a lesser-included offense of aggravated child abuse (Count 3).  The trial court sentenced the defendant to concurrent, four-year sentences for Counts 1 and 2, to run consecutively to a four-year sentence for Count 3.  The trial court denied the defendant’s request for alternative sentencing and ordered the effective eight-year sentence to be served in confinement.  On appeal, the defendant argues the trial court abused its discretion by denying her request for alternative sentencing and committed plain error by improperly relying on the defendant’s silence at the sentencing hearing.  Following our review, we affirm the judgment of the trial court.

Stewart County Court of Criminal Appeals 03/31/17
State of Tennessee v. Julian Agnew
W2016-00908-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

Julian Agnew (“the Defendant”) was convicted by a Shelby County jury of one count of aggravated robbery. The trial court sentenced the Defendant to ten years and six months in the Department of Correction with release eligibility after service of eighty-five percent of the sentence. On appeal, the Defendant argues that the trial court abused its discretion by allowing prosecutorial misconduct in closing arguments and that the evidence at trial was insufficient for a rational juror to have found him guilty of aggravated robbery beyond a reasonable doubt. After a thorough review of the record and case law, we affirm.

Shelby County Court of Criminal Appeals 03/30/17
State of Tennessee v. Paul William Purvis
W2016-00386-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Clayburn Peeples

The Defendant, Paul William Purvis, entered a best interest guilty plea to theft of property valued over $10,000, a Class C felony. The guilty plea was entered several years after the State had filed a notice that it intended to seek enhanced punishment. The State's notice listed twelve prior convictions and stated that it would seek to sentence the Defendant as a Range II, multiple offender. The parties did not negotiate a sentence as part of the plea agreement but left determination of the sentence up to the court. At the sentencing hearing, the State sought to have the Defendant sentenced as a Range III, persistent offender. The trial court sentenced the Defendant to ten years' imprisonment as a Range III, persistent offender, and the Defendant appeals, asserting that he is entitled to be sentenced as a Range II offender due to the State's inadequate notice. After a thorough review of the record, we conclude that the State's notice was ambiguous. However, because the Defendant has not shown that he investigated the ambiguity and has not shown prejudice from the ambiguous notice, we affirm the judgment of the trial court.

Gibson County Court of Criminal Appeals 03/30/17
State of Tennessee v. Roosevelt Pitts, III
M2016-01879-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge David M. Bragg

The Defendant, Roosevelt Pitts III was convicted of robbery, three counts of reckless endangerment, leaving the scene of an accident, and vandalism.  The trial court sentenced the Defendant to an effective eighteen years in prison.  On appeal, the Defendant argues that the State discriminated against prospective jurors by excusing them for race-based reasons and that the State engaged in prosecutorial misconduct during closing arguments.  The State contends that the Defendant has waived these issues by providing this court with an insufficient record.  Because the record provided for review is insufficient to allow us to consider the issues raised, we affirm the judgments of the trial court.

Rutherford County Court of Criminal Appeals 03/30/17
State of Tennessee v. Van Trent
E2015-00354-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Jerry Beck

The Appellant, Van Trent, was convicted by a Sullivan County Criminal Court Jury of five counts of facilitation of dogfighting. The Appellant received concurrent sentences of eleven months and twenty-nine days for each conviction, sixty days of which was to be served in confinement and the remainder on probation. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his convictions, the trial court's instructing the jury on lesser-included offenses over the Appellant's objection, the denial of the Appellant's right to counsel, the admissibility of expert testimony regarding the causation of scarring to the dogs, the introduction of the Appellant's appearance bond as rebuttal proof, and the trial court's denial of full probation. Upon review, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 03/30/17
State of Tennessee v. Jamie Paul Click
E2015-01769-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Richard R. Vance

The Defendant, Jamie Paul Click, was convicted of one count each of selling heroin within a drug-free school zone, delivering heroin within a drug-free school zone, and casually exchanging marijuana; and two counts each of delivering heroin and selling heroin. The trial court merged the three delivery convictions with the corresponding sale convictions and imposed an effective sentence of eighty years’ incarceration. In this appeal as of right, the Defendant raises challenges to the following: (1) the trial court’s refusal to sever the offenses, contending that each drug deal should have been tried separately because his conduct was not part of a common scheme or plan and, additionally, that evidence of the drug-free school zone deal was prejudicial to the other counts; (2) the sufficiency of the convicting evidence supporting his various convictions for sale and delivery of heroin, arguing that all of the transactions were merely casual exchanges and that there was inadequate proof that the one transaction occurred within a drug-free school zone; and (3) various aspects of the trial court’s sentencing decision, including the Defendant’s range classification, the length of his sentences, the imposition of consecutive sentences, and the subsequent denial of his motion to reduce his total effective sentence. Following our review of the record, we affirm the judgments of the trial court.

Sevier County Court of Criminal Appeals 03/30/17