Court of Criminal Appeals Opinions

Format: 10/21/2017
Format: 10/21/2017
James Mellon v. State of Tennessee
E2016-02040-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert R. McGee

The Petitioner, James Mellon, appeals as of right from the denial of his petition for post-conviction relief. On appeal, the Petitioner contends that he received ineffective assistance of counsel because trial counsel failed to present a viable defense. Following our review, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 07/20/17
State of Tennessee Christopher Lynn Taylor
E2016-01720-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald R. Elledge

The Defendant, Christopher Lynn Taylor, appeals as of right from the trial court’s order of total incarceration after his second violation of his six-year probationary sentence. The Defendant contends that the trial court erred in determining that he was a danger to society and by denying his request for drug treatment in the Community Corrections Program. Following our review, we discern no error. Thus, we affirm the judgments of the trial court.

Anderson County Court of Criminal Appeals 07/20/17
State of Tennessee v. Lester Arnold Clouse
M2016-00707-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Larry B. Stanley, Jr.

A White County jury convicted Defendant, Lester Arnold Clouse, of aggravated assault, assault, and resisting arrest. The trial court merged the resisting arrest conviction into the aggravated assault conviction and sentenced Defendant to an effective fifteen-year sentence as a Range III, persistent offender, to be served consecutively to other outstanding sentences. On direct appeal, this court affirmed Defendant’s convictions but reversed his sentence and remanded the case for a new sentencing hearing. See State v. Lester Arnold Clouse, No. M2013-02633-CCA-R3-CD, 2014 WL 7332181, at *1 (Tenn. Crim. App. Dec. 23, 2014). Following a sentencing hearing on remand, the trial court imposed an effective fourteen-year sentence as a Range III, persistent offender to be served consecutively to his sentences for other convictions. On appeal, Defendant challenges the trial court’s finding that he qualified as a persistent offender, the length of his sentence, and the imposition of partial consecutive sentences. After a thorough review of the record and the applicable law, we affirm Defendant’s sentences for aggravated assault and assault, and we reduce Defendant’s sentence for resisting arrest, a Class B misdemeanor, to six months. We remand the case to the trial court for entry of a corrected judgment on the resisting arrest conviction to reflect that the conviction is merged into Defendant’s aggravated assault conviction in accordance with the trial court’s prior findings.

White County Court of Criminal Appeals 07/20/17
State of Tennessee v. Demarcus Lashawn Blackman
M2016-01098-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge F. Lee Russell
The Defendant, Demarcus Lashawn Blackman, was indicted by a Marshall County grand jury for the sale and delivery of .5 grams or more of cocaine in violation of Tennessee Code Annotated sections 39-17-417(a)(2) and (3) (2010). He was later convicted by a jury as charged. Following a sentencing hearing, the trial court merged the convictions and imposed twelve years’ incarceration. In this appeal as of right, the Defendant argues that the evidence is insufficient to support his convictions and that the trial court abused its discretion in imposing its sentence. We affirm the judgments of the trial court.
 
Marshall County Court of Criminal Appeals 07/20/17
State of Tennessee v. Jennifer Hodges
M2016-01057-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Jill Bartee Ayers

Defendant, Jennifer Hodges, pleaded nolo contendere to six counts of statutory rape, a Class D felony, and one count of solicitation of a minor, a Class E felony. Defendant was sentenced to four years for each count of aggravated statutory rape and two years for solicitation. All sentences were ordered to run concurrently for an effective four-year sentence. The effective sentence was suspended, and she was placed on probation for four years. On appeal, Defendant contends that the trial court erred by not granting her request for judicial diversion and that the trial court erred by sentencing her to the maximum sentences for her convictions.

Montgomery County Court of Criminal Appeals 07/20/17
State of Tennessee v. John Lowery
E2016-00587-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Bobby R. McGee

Petitioner, John Lowery, appeals from the trial court’s denial of his petition for writ of error coram nobis. Eleven years after Petitioner’s convictions and sentences were affirmed on direct appeal, Petitioner filed a petition for writ of error coram nobis, which was summarily dismissed by the trial court. In his petition, Petitioner asserted that two witnesses recanted their identification of Petitioner as the shooter, and a previously unknown witness said that Petitioner was not at the scene of the crime. On appeal, this court reversed the court’s summary dismissal of the petition and remanded for an evidentiary hearing. On remand, the State filed a response, asserting that the statute of limitations had run. Following an evidentiary hearing, the trial court denied relief, finding the two witnesses who recanted not credible and that the testimony of the newly discovered witness did not meet the test that it “might have” changed the outcome of the trial. Having reviewed the entire record and the briefs of the parties, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 07/19/17
State of Tennessee v. Jason William Kirk
W2016-01940-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Kyle Atkins

The Appellant, Jason William Kirk, appeals the Madison County Circuit Court’s denial of his motion to withdraw his guilty pleas to theft of property valued $10,000 or more and evading arrest and resulting effective fifteen-year sentence. Based upon the record and the parties’ briefs, we affirm the trial court’s denial of the motion.

Madison County Court of Criminal Appeals 07/19/17
Jeffrey S. Petty v. State of Tennessee
M2016-01488-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Larry J. Wallace

The Petitioner, Jeffrey S. Petty, appeals the Dickson County Circuit Court’s denial of his petition for post-conviction relief.  On appeal, he argues that trial counsel was ineffective by (1) failing to move for a mistrial based on juror misconduct; (2) failing to file a motion to suppress evidence found in the Petitioner’s car; and (3) failing to include certain issues in his motion for new trial.  Upon our review, we affirm the judgment of the post-conviction court.

Dickson County Court of Criminal Appeals 07/19/17
Anthony Dodson v. Blair Leibach, Warden
M2016-000578-CCA-R3-HC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge John D. Wootten, Jr.

Petitioner, Anthony Dodson, appeals from the trial court’s summary dismissal of his pro se petition for writ of habeas corpus in which he alleged that his conviction for attempted first degree murder is illegal. After a thorough review, we affirm the judgment of the trial court.

Trousdale County Court of Criminal Appeals 07/19/17
State of Tennessee v. Timothy Reynolds
M2016-02181-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Timothy Reynolds, pled guilty to the sale of less than .5 grams of cocaine. As a result of the guilty plea he was sentenced to six years with one year to serve and the remainder to be served on supervised probation. After Defendant’s probation was partially revoked on two separate occasions, a third probation violation resulted in the complete revocation of probation. Defendant appeals the revocation of probation. We affirm the trial court’s decision to revoke Defendant’s probation.

Giles County Court of Criminal Appeals 07/19/17
State of Tennessee v. Ricky Lee Palmer
M2016-02153-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steve R. Dozier

Defendant, Ricky Lee Palmer, appeals from his conviction of aggravated assault for which he was sentenced to six years. On appeal, he challenges the sufficiency of the evidence. We determine that the evidence was monumentally sufficient to sustain the conviction for aggravated assault. Therefore, the judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 07/19/17
David C. Duncan v. State of Tennessee
M2017-00277-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Nearly thirty-five years from the date Petitioner, David C. Duncan, burglarized the home of, raped, and then killed a victim in Sumner County, he appeals the summary denial of his petition for writ of error coram nobis. Upon our review of the record, not only is the petition untimely filed, it also fails to allege any newly discovered evidence that may have affected the outcome of Petitioner's trial. Therefore, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 07/19/17
John H. Brichetto, Jr. v. State of Tennessee
E2016-01855-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Paul G. Summers

The Petitioner, John H. Brichetto, Jr., and his wife were convicted of Class B felony theft of property. The Petitioner was sentenced to ten years’ incarceration. As part of an agreement for a reduced sentence for his wife, the Petitioner executed a written waiver of his right to appeal, his right to file for post-conviction relief, and his right to collaterally attack his conviction. The Petitioner then filed a petition for post-conviction relief. Finding that the waiver was entered knowingly, intelligently, and voluntarily, the post-conviction court summarily dismissed the petition. Following our review, we affirm the judgment of the post-conviction court.

Morgan County Court of Criminal Appeals 07/18/17
State of Tennessee v. Paul Avery Reno
M2016-01903-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Thomas W. Graham

The Defendant, Paul Avery Reno, pleaded guilty to statutory rape, a Class E felony. See T.C.A. § 39-113-506 (2014). Pursuant to the plea agreement, the Defendant agreed to a six-year sentence as a Range III offender, with the method and manner of service to be determined by the trial court. The court ordered him to serve his sentence in confinement. On appeal, the Defendant contends that the court erred by (1) denying judicial diversion, (2) denying alternative sentencing, and (3) ordering the Defendant to register as a sex offender. We affirm the judgment of the trial court but remand for a new sentencing hearing.

Sequatchie County Court of Criminal Appeals 07/18/17
State of Tennessee v. Micah Alexander Cates
E2014-01322-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

The Tennessee Supreme Court has remanded this case for reconsideration in light of State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016). See State v. Micah Alexander Cates, No. E2014-01322-CCA-R3-CD, 2015 WL 5679825, at *1-6 (Tenn. Crim. App. Sept. 28, 2015), perm. app. granted, case remanded (Tenn. Nov. 16, 2016). Relevant to the current remand, this court concluded in the previous appeal that a new trial was necessary because the warrantless blood draw was not justified by exigent circumstances and that the evidence obtained from the blood draw should have been suppressed. Upon further review, we conclude that the good-faith exception to the exclusionary rule permitted the admission of the relevant evidence, and we affirm the judgment of the trial court.

Carter County Court of Criminal Appeals 07/17/17
State of Tennessee v. Whitney Kristina Harris
E2016-00604-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Stacy L. Street

The Defendant, Whitney Kristina Harris, was convicted upon her guilty pleas of tampering with evidence, a Class C felony, and accessory after the fact to first degree murder, a Class E felony. See T.C.A. §§ 39-16-503 (2014) (tampering with evidence), 39-11-411 (2014) (accessory after the fact). The Defendant pleaded guilty as a Range II offender as a term of the plea agreement and agreed to an effective ten-year sentence. The manner of service of her sentence was reserved for the trial court’s determination. On appeal, the Defendant contends that the trial court erred in imposing incarceration rather than an alternative sentence. We affirm the judgments of the trial court, and we remand the case for correction of a clerical error on the accessory after the fact judgment.

Carter County Court of Criminal Appeals 07/17/17
Shawn Bough v. State of Tennessee
E2017-00015-CCA-R3-ECN
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Shawn Bough, appeals from the Knox County Criminal Court’s denial of his petition for a writ of error coram nobis regarding his convictions for felony murder and especially aggravated robbery, for which he is serving an effective life sentence. The coram nobis court dismissed the petition after a hearing because it determined the newly discovered evidence was not credible and would not have led to a different result at the trial. On appeal, the Petitioner contends that the court erred by dismissing the petition. We affirm the judgment of the coram nobis court.

Knox County Court of Criminal Appeals 07/17/17
State of Tennessee v. Anna Chick
M2016-01907-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Joseph A. Woodruff

The defendant, Anna Chick, appeals her Williamson County Circuit Court conviction of failure to appear, see T.C.A. 39-16-609, arguing that Code section 39-16-609 is unconstitutional; that the evidence was insufficient to support her conviction; that the trial court erred by admitting certain evidence in violation of the defendant’s constitutional right to confront the witnesses against her; that the State failed to establish that the offense was committed before the finding of the indictment; and that the six-year sentence imposed in this case constitutes unconstitutionally cruel and unusual punishment. Discerning no error, we affirm the judgment of the trial court.

Williamson County Court of Criminal Appeals 07/17/17
Joletta Summers v. State of Tennessee
W2016-02157-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Carolyn W. Blackett

Petitioner, Joletta Summers, appeals the denial of her petition for post-conviction relief from her convictions for voluntary manslaughter, attempted voluntary manslaughter, and employment of a firearm during the commission of a dangerous felony. On appeal, Petitioner asserts that she received ineffective assistance of counsel because trial counsel mentioned during opening statement an inculpatory statement that was never introduced into evidence; failed to adequately argue for severance of her case from her codefendant’s; failed to object to the State’s improper closing argument; failed to file a timely motion for new trial; and failed to argue on appeal that the trial court erred in failing to specify the predicate felony in the jury instructions for the employment of a firearm charge. Upon our review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 07/14/17
State of Tennessee v. Dewayne Jones
W2016-00074-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter, Jr.

The Defendant, Dwayne Jones, was convicted by a Shelby County Criminal Court jury of aggravated assault, a Class C felony, and was sentenced by the trial court as a Range I, standard offender to five years of incarceration. The trial court also imposed the $7000 fine assessed by the jury. The Defendant raises three issues on appeal: whether the trial court lacked subject-matter jurisdiction due to the Defendant’s pending petition to remove the case to federal court, pursuant to 28 U.S.C. § 1443; whether the evidence is sufficient to sustain his conviction because the proof did not show that the victim suffered serious bodily injury; and whether the trial court erred in imposing the $7000 fine without making any specific findings of fact regarding the Defendant’s financial circumstances and ability to pay. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 07/14/17
State of Tennessee v. Arnold Travis Nunnery
M2016-01932-CCA-R9-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Deanna B. Johnson

The Defendant was indicted for driving under the influence of an intoxicant (DUI); driving with a blood alcohol concentration of .08 or more (DUI per se); DUI, second offense; and unlawful possession of a weapon. The Defendant filed a motion to suppress evidence obtained as a result of a blood draw taken pursuant to a search warrant, and the trial court granted the motion. The State sought and was granted permission to appeal pursuant to Tennessee Rule of Appellate Procedure 9. We hold that the police officer’s execution of the search warrant was unconstitutional, that exigent circumstances did not justify the blood draw, and that the good faith exception does not apply. Accordingly, we affirm the trial court’s judgment suppressing the results of the blood draw and remand the case to the trial court for further proceedings consistent with this opinion.

Lewis County Court of Criminal Appeals 07/13/17
State of Tennessee v. Robert Allen Territo
M2016-00548-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Brody N. Kane

Pro se petitioner, Robert Allen Territo, appeals the summary dismissal of his Rule 36.1 motion to correct an illegal sentence by the Circuit Court for Jackson County. On appeal, the petitioner argues that (1) he should have been sentenced as a Range I offender; (2) the trial court erred by improperly enhancing his sentence above the statutory minimum; (3) the trial court violated Rule 11 by accepting his guilty plea; and (4) he received ineffective assistance of counsel. Upon review, we affirm the judgment of the trial court.

Jackson County Court of Criminal Appeals 07/13/17
State of Tennessee v. Willie Hardy, Jr. - concurring in part, dissenting in part
M2016-01748-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Ross Hicks

I agree with the majority's conclusion that the evidence was sufficient to support the Defendant's conviction for aggravated robbery and that the record supports the length of the Defendant's within-range sentences. However, I respectfully dissent from the majority's conclusion regarding the trial court's imposition of consecutive sentences.

Montgomery County Court of Criminal Appeals 07/13/17
State of Tennessee v. Willie Hardy, Jr.
M2016-01748-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Ross Hicks

The defendant, Willie Hardy, Jr., appeals his Montgomery County Circuit Court jury conviction of aggravated robbery, claiming that the evidence was insufficient to support his conviction and that the sentence imposed was excessive. Because the trial court failed to make the requisite findings, we vacate the trial court’s imposition of consecutive sentencing and remand for the limited purpose of making the appropriate findings on this issue. In all other respects, we affirm the judgment of the trial court.

Montgomery County Court of Criminal Appeals 07/13/17
State of Tennessee v. Sean Farris
W2016-01778-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Robert Carter, Jr.

A jury convicted the Defendant, Sean Farris, of aggravated robbery, and the trial court sentenced the Defendant to serve ten years and six months in the Tennessee Department of Correction. On appeal, the Defendant asserts that: (1) the trial court improperly allowed the admission of prior convictions; (2) the trial court unreasonably limited crossexamination of the victim; (3) the evidence is insufficient to sustain his conviction; and (4) his sentence is excessive. We affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 07/12/17