Court of Criminal Appeals Opinions

Format: 12/11/2018
Format: 12/11/2018
State of Tennessee v. Rodricus Antwan Johnson
W2018-00950-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

Rodricus Antwan Johnson, Movant, filed a Tennessee Rule of Criminal Procedure 36.1 motion seeking correction of what he claimed was an illegal sentence because the trial court applied enhancement factors that were required by Blakely v. Washington, 542 U.S. 296 (2004) to be determined by the jury. The trial court summarily dismissed the motion for failure to state a colorable claim. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 12/11/18
Darrell Malone v. State of Tennessee
W2018-00524-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Paula Skahan

The Petitioner, Darrell Malone, appeals the Shelby County Criminal Court’s summary dismissal of his petition for post-conviction relief from his 2016 conviction for attempt to commit rape and his four-year sentence. The Petitioner contends that the post-conviction court erred by determining that his petition was untimely. We reverse the judgment of the post-conviction court and remand the case for consideration of the issues raised in the petition.

Shelby County Court of Criminal Appeals 12/11/18
Victor Thompson v. State of Tennessee
W2017-00679-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Clayburn Peeples

Petitioner, Victor Thompson, appeals the denial of his post-conviction petition. Petitioner argues that he was denied the right to testify at trial, and trial counsel was ineffective for failing to request a Momon hearing. Following a review of the briefs of the parties and the entire record, we affirm the judgment of the post-conviction court.

Gibson County Court of Criminal Appeals 12/11/18
Brent Allen Blye v. State of Tennessee
E2017-02176-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William K. Rogers

In 2006, the Petitioner, Brent Allen Blye, was convicted by a jury of various drug offenses, and later entered guilty pleas to several other unrelated offenses, for which he received an effective sentence of thirty years’ confinement. State v. Brent Allen Blye, No. E2008-00976-CCA-R3-CD, 2011 WL 529515, at *1 (Tenn. Crim. App. Feb. 14, 2011), perm. app. denied (Tenn. May 25, 2011). On direct appeal, this court determined that the issues raised pertaining to his jury convictions were waived based on trial counsel’s failure to timely file a motion for new trial and reviewed those convictions for sufficiency of the evidence only. His remaining issues, pertaining to his guilty pleas, were reviewed and affirmed. The Petitioner later filed a post-conviction petition seeking relief based on trial counsel’s failure to timely file a motion for new trial and ineffective assistance of trial counsel based on failure to assert a certain defense theory. After conducting a full evidentiary hearing as to both issues, the post-conviction court denied relief, a decision which was later reversed, in part, by this court. Brent A. Blye v. State, No. E2012-02626-CCA-R3-PC, 2013 WL 3973468 (Tenn. Crim. App. Aug. 5, 2013), no perm. app. filed. In that case, this court remanded to the post-conviction court on the issue of the delayed appeal, id. at *12; however, we affirmed the court’s denial of the Petitioner’s claim of ineffective assistance of trial counsel based on his failure to pursue a certain defense theory. The Petitioner was granted a delayed appeal on remand and filed a timely motion for new trial, which was denied by the trial court. Upon review of the delayed appeal, we affirmed the Petitioner’s felony drug convictions, but reversed and remanded his misdemeanor drug convictions for a new trial. State v. Brent Allen Blye, No. E2014-00220-CCA-R3-CD, 2015 WL 4575279 (Tenn. Crim. App. July 30, 2015), perm. app. denied (Tenn. Jan. 14, 2016). The Petitioner subsequently filed a “second” petition for post-conviction relief, the subject of this appeal, alleging ineffective assistance of trial counsel, which was summarily dismissed by the post-conviction court. After an exhaustive review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Sullivan County Court of Criminal Appeals 12/11/18
State of Tennessee v. Stephen Doantae Lester
E2017-02154-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Thomas C. Greenholtz

Defendant, Stephen Doantae Lester, was convicted of felony murder and especially aggravated robbery. On appeal, Defendant argues that the evidence is insufficient to support his convictions; that the trial court erred by admitting evidence of Defendant’s gang affiliation and rank; that Defendant was deprived of a fair trial by statements made by the State during closing arguments and by juror misconduct; that the trial court erred in failing to instruct the jury on certain lesser-included offenses; and that the cumulative effect of these errors deprived Defendant of a fair trial. Upon our review of the record, we affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 12/10/18
State of Tennessee vs. Reuben Eugene Mitchell - concurring in part, dissenting in part
E2017-01739-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve W. Sword

I agree with the majority’s conclusion that the evidence was sufficient to support the Defendant’s arson conviction. I respectfully dissent from the majority’s conclusion that the evidence is insufficient to support the Defendant’s conviction for filing a false insurance claim.

Knox County Court of Criminal Appeals 12/07/18
State of Tennessee v. Reuben Eugene Mitchell
E2017-01739-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve W. Sword

A Knox County jury convicted the Defendant, Reuben Eugene Mitchell, of arson and filing a false insurance claim valued between $10,000 and $60,000, and the trial court sentenced him to four years of probation. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions. After review, we conclude that the evidence is insufficient to sustain the Defendant’s conviction for filing a false insurance claim, and we vacate the judgment and dismiss that charge. We affirm the Defendant’s conviction for arson.

Knox County Court of Criminal Appeals 12/07/18
Angel Geovanna Hurtado v. State of Tennessee
M2017-00908-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County jury convicted Petitioner, Angel Geovanna Hurtado, of three counts of aggravated child abuse, one count of child neglect, and one count of reckless aggravated assault. She was sentenced to serve twenty-five years in the Tennessee Department of Correction. The judgment was affirmed on direct appeal. State v. Angel Geovanna Hurtado, No. M2014-00180-CCA-R3CD, 2014 WL 7417763 (Tenn. Crim. App. Dec. 30, 2014). Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court dismissed the petition. Petitioner has appealed, asserting that she is entitled to relief based upon her trial counsel’s ineffective assistance of counsel. Following a review of the briefs of the parties and the entire record, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 12/06/18
State of Tennessee v. Wayford Demonbreum, Jr.
M2017-01844-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Brody N. Kane

Defendant, Wayford Demonbreum, Jr., appeals the denial of his Motion for Correction or Reduction of Sentence filed pursuant to Tennessee Rule of Criminal Procedure 35. In this appeal, Defendant argues that his sentence should be reduced because his plea agreement stated the offense to which he pleaded guilty as attempted possession of marijuana in an amount less than 70 pounds, which is a Class E felony. T.C.A. § 39-17-417(i)(13); T.C.A. § 39-12-107(a). The State responds that the trial court did not abuse its discretion in denying Defendant’s motion, having determined that the plea agreement was erroneous, and Defendant understood that he was pleading guilty to the offense of attempted possession of marijuana in an amount more than 70 pounds, a Class C felony, for which Defendant was sentenced as a Range I offender to six years. Upon our review, we affirm the judgment of the trial court.

Wilson County Court of Criminal Appeals 12/06/18
State of Tennessee v. Kayla Marie Anderson
M2018-00015-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge David L. Allen

The Defendant, Kayla Marie Anderson, pled nolo contendere to theft of property valued over five hundred dollars for her role in arranging a drug transaction during which the victim was robbed. The Defendant preserved as certified questions several issues related to her arrest, her interview, and the search of her telephone pursuant to two separate warrants. Because the record reveals the existence of inculpatory evidence not derived from the arrest, interview, or search, we determine that the questions are not dispositive and dismiss the appeal.

Maury County Court of Criminal Appeals 12/06/18
William Farmer v. State of Tennessee
W2017-00729-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, William Farmer, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he challenged his guilty plea to carjacking and his tenyear sentence. On appeal, the Petitioner contends that he received ineffective assistance of counsel and that his guilty plea was not knowingly entered. After a review of the record and applicable law, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 12/05/18
State of Tennessee v. Ronald Jones
W2017-00754-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey

The Defendant, Ronald Jones, was convicted of the second degree murder of the victim and sentenced to serve 25 years. On appeal, he argues that the evidence was insufficient to support the conviction. We disagree and affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/05/18
State of Tennessee v. Michael Wayne Parsons
W2018-00144-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joe H. Walker, III

The Defendant, Michael Wayne Parsons, was convicted by a Tipton County jury of felony failure to appear, a Class E felony, and was sentenced by the trial court as a Range II, multiple offender to three years in the Department of Correction. On appeal, he argues: (1) that he is entitled to diplomatic immunity from prosecution because he is an ambassador of the “Tsilhqot’in Nation, Country of Chilcotin” and (2) that the indictment was insufficient to confer jurisdiction over his person because it lists his name in all capital letters, which denotes a corporation rather than a “live man.” Because the notice of appeal was untimely, we dismiss the appeal.

Tipton County Court of Criminal Appeals 12/05/18
State of Tennessee v. John Matthew Cabe
M2017-02340-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Forest A. Durard, Jr.

Defendant, John Matthew Cabe, was indicted for tampering with evidence after selling an item, which was the subject of a theft investigation, from his pawnshop. After a jury trial, Defendant was convicted of attempted tampering with evidence. On appeal, Defendant contends that he was improperly charged with tampering with evidence because the Pawnbrokers Act of 1988 is a specific statute which governs his conduct as a pawnbroker, and he argues that the evidence was insufficient to support his conviction for attempted tampering with evidence. After a thorough review of the record and the applicable statutes, we conclude that the Pawnbrokers Act of 1988 specifically governs the actions of a pawnbroker in his or her official capacity, thereby precluding prosecution for tampering with evidence. Accordingly, the judgment of the trial court is reversed and vacated.

Marshall County Court of Criminal Appeals 12/03/18
State of Tennessee v. Darrell Grant Fisher
M2017-01966-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steve R. Dozier

The defendant, Darrell Grant Fisher, entered an open plea to four counts of sexual battery by an authority figure. The trial court sentenced the defendant to five years on two counts and four years on the remaining two counts with all sentences to be served consecutively for an effective sentence of eighteen years. On appeal, the defendant claims the trial court erred in imposing consecutive terms. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 12/03/18
Marvin Christopher Long v. State of Tennessee
M2017-01758-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Monte D. Watkins

The Petitioner, Marvin Christopher Long, filed for post-conviction relief, alleging that his trial counsel and his appellate counsel were ineffective. The post-conviction court dismissed the petition upon finding that the Petitioner previously filed for post-conviction relief and that he failed to state a claim upon which relief could be granted. On appeal, the Petitioner challenges the dismissal of the petition. Upon review, we affirm the post-conviction court’s dismissal of the Petitioner’s claim regarding the effectiveness of appellate counsel. However, we remand to the post-conviction court for entry of an order ruling on the Petitioner’s claims regarding the effectiveness of trial counsel.

Davidson County Court of Criminal Appeals 12/03/18
Leroy Sexton v. State of Tennessee
M2017-00698-CCA-WR-CO
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge E. Shayne Sexton

Dr. William Diebold seeks review of the post-conviction court’s denial of his motion to quash a judicial subpoena compelling him to testify at a hearing on behalf of the Petitioner, who is seeking post-conviction relief in an underlying criminal case. Dr. Diebold, a practicing physician, contends that he is exempt from subpoena to the hearing but subject to subpoena to a deposition pursuant to Tennessee Code Annotated section 24-9-101. Based upon the oral arguments, the record, and the parties’ briefs, we agree with Dr. Diebold that he is statutorily exempt from subpoena to the hearing but subject to subpoena to a deposition. Therefore, the post-conviction court erred by failing to grant Dr. Diebold’s motion to quash. Accordingly, the judgment of the post-conviction court is reversed, and the motion to quash is granted.

Fentress County Court of Criminal Appeals 11/30/18
Don Edward Carter v. State of Tennessee
W2018-00285-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Weber McCraw

The Petitioner, Don Edward Carter, appeals from the McNairy County Circuit Court’s dismissal of his petition for post-conviction relief from his convictions of two counts of first degree murder, for which he is serving concurrent life sentences. On appeal, he contends that (1) the post-conviction court erred in dismissing his petition as untimely without a hearing to determine whether due process required tolling of the statute of limitations, (2) he received the ineffective assistance of counsel, and (3) prosecutorial misconduct in the conviction proceedings deprived him of his rights to due process and a fair trial. We affirm the judgment of the post-conviction court.

McNairy County Court of Criminal Appeals 11/30/18
State of Tennessee v. Kenneth S. Gourley
W2017-00919-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Lee Moore

The Appellant, Kenneth S. Gourley, appeals the trial court’s order revoking his probationary sentence and ordering him to serve the remainder of his sentence in confinement. Upon review, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 11/30/18
State of Tennessee v. Tracy Arnold
W2018-00307-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The Defendant, Tracy Arnold, appeals the Henderson County Circuit Court’s revocation of her probation related to her convictions for attempted aggravated child abuse and neglect. After a review of the record and applicable law, we affirm the trial court’s judgment.

Henderson County Court of Criminal Appeals 11/30/18
Albert Jackson v. State of Tennessee
W2017-01589-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Mark Ward

A Shelby County jury convicted the Petitioner, Albert Jackson, of attempted voluntary manslaughter, employing a firearm during the commission of a felony, reckless endangerment with a deadly weapon, and being a felon in possession of a handgun, and the trial court sentenced the Petitioner to an effective sentence of twenty-four years of incarceration. State v. Albert Jackson, No. W2014-00050-CCA-R3-CD, 2014 WL 7432000, at *1 (Tenn. Crim. App., at Jackson, Dec. 30, 2014), no Tenn. R. App. P. 11 application filed. This court affirmed the convictions on appeal. Id. The Petitioner filed a petition for post-conviction relief challenging the jury instructions and claiming that his trial counsel was ineffective. Appointed counsel added a request for a delayed Rule 11 application. The post-conviction court denied the petition and a delayed appeal. On appeal, the Petitioner contends that the
post-conviction court erred when it denied his request for a delayed Rule 11 appeal and when it denied his petition for post-conviction relief. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 11/29/18
State of Tennessee v. Breyon Bates
W2017-01930-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant, Breyon Bates, was convicted by a Madison County Circuit Court jury of possession of .5 grams or more of cocaine with the intent to deliver, a Class B felony; simple possession of cocaine, a Class A misdemeanor; and resisting arrest and criminal impersonation, both Class B misdemeanors. The trial court merged the simple possession count into the possession with intent to deliver count and sentenced the Defendant as a Range II, multiple offender to concurrent terms of 18 years for the felony cocaine conviction and six months for each of the misdemeanor convictions, for an effective term of 18 years in the Department of Correction, to be served consecutively to the sentence for an offense for which the Defendant was on probation at the time he committed the instant offenses. On appeal, the Defendant challenges the sufficiency of the evidence in support of his felony conviction and argues that the trial court erred by not charging the jury with casual exchange under Tennessee Code Annotated section 39-17-419. Following our review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 11/29/18
State of Tennessee v. Martrice Thomas
W2017-02489-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

On September 21, 2017, the Defendant, Martrice Thomas, was convicted of first-degree premeditated murder. The trial court sentenced her to life imprisonment in the Department of Correction. The Defendant argues on appeal that the evidence is insufficient to sustain her conviction. After thorough review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/29/18
State of Tennessee v. Merrico Jackson
W2017-01782-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey

The Defendant, Merrico Jackson, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. On appeal, the Defendant argues that the trial court erred in: (1) denying his request for a continuance; (2) failing to exclude a witness statement written on the back of a photograph array due to a discovery violation; (3) ruling that photographs of text messages and the call log from the Defendant’s phone were properly authenticated; and (4) excluding testimony about alleged witness intimidation by the State. After review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/29/18
State of Tennessee v. Marcus Williams
W2018-00498-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

On March 2, 2018, the Defendant, Marcus Williams, was convicted of two counts of identity theft; two counts of theft of property over $500 but less than $1000; one count of fraudulent use of a credit/debit card over $1000 but less than $10,000; and two counts of fraudulent use of a credit/debit card over $500 but less than $1000. He was sentenced as a Range II, multiple offender to a total effective sentence of twenty-four years, to be served consecutively to a prior twenty-year sentence, for a combined total of forty-four years. On appeal, the Defendant asserts that there is insufficient evidence to sustain his convictions and that the trial court abused its discretion in denying his motion to sever the offenses. After thorough review, we dismiss this appeal.

Shelby County Court of Criminal Appeals 11/29/18