Court of Criminal Appeals Opinions

Format: 10/24/2014
Format: 10/24/2014
State of Tennessee v. Omar Robinson
E2014-00393-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Carroll L. Ross

Appellant, Omar Robinson, pleaded guilty to two counts of possession of cocaine with intent to sell and two counts of simple possession of marijuana. Appellant later filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed, holding that appellant’s sentence had expired. On appeal, appellant argues that the trial court erred by summarily dismissing his motion because an illegal sentence may be challenged at any time pursuant to Rule 36.1. The State concedes that this case should be remanded to the trial court. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

Loudon County Court of Criminal Appeals 10/22/14
State of Tennessee v. Caleb Lawrence Mullins
W2013-02691-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

The Defendant, Caleb Lawrence Mullins, pleaded guilty to second degree murder, theft of property, and tampering with evidence. The trial court sentenced him to serve an effective sentence of thirty-seven years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court misapplied one enhancement factor and two consecutive sentencing factors. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 10/22/14
O'Neal Johnson v. State of Tennessee
W2013-02313-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The petitioner, O’Neal Johnson, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 10/21/14
State of Tennessee v. John Brent
W2013-01252-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Paula Skahan

The defendant, John Brent, was convicted of aggravated robbery and aggravated burglary, for which he was sentenced, respectively, to thirty years at 100% and fifteen years at 45%, the sentences to be served concurrently. On appeal, he argues that he is entitled to a new trial because the court erred in allowing into evidence a photograph of a pair of scissors which were similar to those in the victim’s home; that the evidence was insufficient to support either of his convictions; and that his sentence is excessive. Following our review, we conclude that the defendant’s claims are without merit and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 10/21/14
State of Tennessee v. Delquan Bolton
W2013-00539-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The defendant, Delquan Bolton, was convicted by a Shelby County Criminal Court jury of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony. He was sentenced to terms of twenty-five years and ten years, respectively, to be served concurrently in the Department of Correction. On appeal, he argues that the trial court erred in admitting character evidence and that the evidence is insufficient to sustain his convictions. After review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 10/21/14
State of Tennessee v. Cynthia Gail Harvey
M2013-02391-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge George C. Sexton

The Defendant, Cynthia Gail Harvey, appeals from her Humphreys County jury conviction for felony theft, (1) challenging the trial court’s denial of her motion to dismiss for lack of a speedy trial and (2) contending that she received ineffective assistance of counsel at trial. Upon considering the relevant authorities and the record, we affirm the judgment of the trial court.

Humphreys County Court of Criminal Appeals 10/21/14
State of Tennessee v. Ibrahim Talafhah
M2013-01556-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge David Earl Durham

The Defendant, Ibrahim Talafhah, was convicted after a bench trial in the Wilson County Criminal Court of harassment, a Class A misdemeanor.  See T.C.A. § 39-17-308(a)(2) (2014).  The trial court sentenced the Defendant to serve ten days in jail with the balance of his eleven-month, twenty-nine-day sentence to be served on probation.  On appeal, the Defendant contends that the trial court erred by denying him his constitutional right to a jury trial.  We conclude that the Defendant was denied his right to a jury trial, and we reverse the judgment of the trial court and remand the case for a new trial.

Wilson County Court of Criminal Appeals 10/21/14
State of Tennessee v. Antonio Lamont Freeman
M2013-01813-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Dee David Gay

The defendant, Antonio Lamont Freeman, was convicted of one count of possession of contraband in a penal facility, a Class C felony. On appeal, the defendant argues: (1) the trial court abused its discretion in removing the defendant from the courtroom during his trial; (2) the trial court abused its discretion by introducing evidence into the record during the motion for new trial; (3) the trial judge’s alleged continued acts of prejudice warrant a new trial; (4) the State committed prosecutorial misconduct when it assumed facts not in evidence; (5) the trial court abused its discretion by denying the motion for new trial based upon newly discovered evidence; and (6) numerous grounds of ineffective assistance of counsel.  After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 10/16/14
State of Tennessee v. Daryll Shane Stanley
E2013-01739-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Bobby R. McGee

Defendant, Daryll Shane Stanley, was charged by presentment with four counts of aggravated rape, one count of attempted first degree murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. Defendant was tried in a bench trial. Defendant appeals from his convictions as charged on all counts except one count of especially aggravated kidnapping, in which he was acquitted. Defendant was sentenced to 25 years for each of his 7 convictions, and his sentences were ordered to be served consecutively for a total effective sentence of 175 years. In this appeal as of right, Defendant raises the following issues for our review: 1) whether the 16-year delay between the presentment of charges and Defendant’s trial violated his right to a speedy trial; 2) whether he was denied due process by the State’s failure to preserve evidence; 3) whether the evidence was sufficient to sustain Defendant’s convictions for four counts of aggravated rape; and 4) whether the trial court’s comments at the conclusion of the bench trial indicated that the trial court found Defendant guilty of the lesser-included offense of theft of property in count 8 charging especially aggravated robbery. Having carefully reviewed the record before us, we affirm the judgments of the trial court in counts one through six, but we conclude that Defendant’s conviction for especially aggravated robbery in count eight should be modified to a conviction for Class A misdemeanor theft and remand this case to the trial court for entry of a modified judgment.

Knox County Court of Criminal Appeals 10/15/14
State of Tennessee v. Jameson Delgizzi a/k/a Decharme
M2013-02864-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Timothy L. Easter

The defendant, Jameson Delgizzi, also known as Decharme, pled no-contest to attempted aggravated sexual battery, a Class C felony, and agreed to be sentenced outside his range, as a Range III offender, with the sentence and manner of service to be determined by the trial court.  Following a sentencing hearing, the defendant received a sentence of eleven years in the Department of Correction.  On appeal, he argues that an eleven-year term is excessive and that he should have been granted probation or split confinement.  After review, we affirm the sentencing decision of the trial court.

Hickman County Court of Criminal Appeals 10/15/14
In RE: A-Action Bonding Company
M2013-01526-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert L. Jones, Jude Stella L. Hargrove, Judge Jim T. Hamilton, Judge Robert L. Holloway

This is an appeal by A-Action Bonding Company of Columbia (“A-Action”) of an order of the Maury County Circuit Court, sitting en banc, which suspended the bonding authority of the company, its principal, and one of its agents based on its finding that the agent solicited an inmate at the county jail, in violation of Tennessee Code Annotated section 40-11-126(6).  The appellant argues that the court improperly considered as evidence a cell phone recording of a videotaped conversation between the agent and the inmate when the original jail videotape had been destroyed and the cell phone recording was made by a competitor and contained an altered version of the original.  We agree.  We also agree that, without the improperly admitted recording, there was insufficient evidence that the agent solicited business in violation of the statute.  Accordingly, we reverse the judgment of the trial court and dismiss the motion to suspend the bonding authority of A-Action, its principal, and its agent.

Maury County Court of Criminal Appeals 10/15/14
State of Tennessee v. John Robert Quinton Jackson
M2013-02172-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Michael R. Jones

The record in this matter is very sparse.  Much of our understanding of its history comes from the decision of this court in the defendant’s direct appeal, State v. John Robert Q. Jackson, No. M2012-00511-CCA-R3-CD, 2013 WL 791621 (Tenn. Crim. App. Mar. 4, 2013).  As best we can understand, the defendant, John Robert Quinton Jackson, pled guilty in February 2009 to five counts of aggravated burglary, two counts of automobile burglary, one count of theft over $10,000, and one count of theft over $1000, receiving an effective sentence of six years in community corrections.  In September 2009, he was served with a violation warrant and subsequently pled guilty to an additional count of aggravated burglary, receiving a four-year sentence in community corrections, to be served concurrently with the six-year community corrections sentence reinstated by the court.  Later, he was served with another violation warrant, based upon his participation in a home invasion and aggravated robbery.  Pursuant to Tennessee Rule of Criminal Procedure  36.1, he filed a motion for correction of an illegal sentence, which the trial court dismissed.  He appeals that dismissal.  Based upon our review, we affirm the trial court’s dismissal of his motion.

Montgomery County Court of Criminal Appeals 10/15/14
State of Tennessee v. Cary Arnaz Harbin, III
M2013-02742-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Dee David Gay

The Defendant, Cary Arnaz Harbin, III, was charged with violating the sexual offender registration act by establishing his primary residence within one thousand feet of a licensed day care facility.  See Tenn. Code Ann. § 40-39-211(a).  The trial court dismissed the charge, finding that the Defendant, convicted in Michigan in 2008 of criminal sexual conduct in the third degree, did not meet the statutory definition of “sexual offender.”  The State appeals the order of dismissal, arguing that the record was insufficient for the trial court to make this determination.  Following our review of the record and applicable authorities, we conclude that the Defendant, an out-of-state sexual offender required to register in Michigan, is subject to the requirements of Tennessee sexual offender registration act upon sufficient contact with this State.  Therefore, we reverse the order of the trial court dismissing the indicted charge and remand the case for further proceedings consistent with this opinion.

Sumner County Court of Criminal Appeals 10/15/14
State of Tennessee v. Brian Oneal Elliott
M2014-00083-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Jude Cheryl A. Blackburn

The appellant, Brian Oneal Elliott, challenges the length of the twenty-five-year maximum sentence the trial court imposed for his conviction of second degree murder.  Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 10/15/14
State of Tennessee v. Lawrence Pierce
E2014-00262-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Carroll L. Ross

The Defendant, Lawrence Pierce, appeals the Bradley County Criminal Court’s order revoking his probation for his convictions for violating the sex offender registry law and flagrant nonsupport and ordering his effective eight-year sentence into execution. The Defendant contends that the trial court abused its discretion by revoking his probation on the sole ground that he failed to pay restitution. We reverse the judgment of the trial court and remand the case for the trial court to make additional findings of fact and conclusions of law.

Bradley County Court of Criminal Appeals 10/14/14
Jerry Lynn Driver v. State of Tennessee
M2014-00015-CCA-R3-CO
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Jerry Lynn Driver, appeals as of right from the Davidson County Criminal Court’s summary dismissal of his “motion to set aside guilty plea or in the alternative petition for a writ of error coram nobis or a petition for a writ of habeas corpus.”  The Petitioner contends that the Criminal Court erred in summarily dismissing his motion as being untimely filed.  Discerning no error, we affirm the judgment of the Criminal Court.

Davidson County Court of Criminal Appeals 10/14/14
Kenzo A. Quezergue v. State of Tennessee
M2014-00150-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl Blackburn

Petitioner, Kenzo A. Quezergue, was indicted in Davidson County for first degree felony murder and employing a firearm during the commission of a dangerous felony.  Petitioner pled guilty to the lesser included offense of second degree murder in exchange for a sentence of forty years, to be served at 100% as a violent offender.  Petitioner filed a timely petition for post-conviction relief alleging, inter alia, that he received ineffective assistance of counsel.  After a hearing, the post-conviction court denied relief, finding that Petitioner had not proven his claims by clear and convincing evidence.  Upon thorough review of the record, we agree.  The judgment of the post-conviction court is affirmed.

Davidson County Court of Criminal Appeals 10/14/14
Demario Thomas v. State of Tennessee
W2013-01818-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey Jr.

The petitioner, Demario Thomas, appeals the denial of his petition for post-conviction relief, arguing that his guilty plea was unknowingly and involuntarily entered without the effective assistance of counsel. After review, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 10/10/14
Sam E. Stevenson v. State of Tennessee
W2013-02656-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan Jr.

The petitioner, Sam E. Stevenson, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

Madison County Court of Criminal Appeals 10/10/14
Felton McNeal v. State of Tennessee
W2013-02014-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The petitioner, Felton McNeal, appeals the denial of his petition for post-conviction relief, arguing that his guilty pleas were unknowingly and involuntarily entered without the effective assistance of counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 10/10/14
State of Tennessee v. Paul Edward Martin, Jr.
W2013-02311-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Nathan B. Pride

The defendant, Paul Edward Martin, Jr., was convicted by a Chester County Circuit Court jury of carjacking and aggravated robbery, Class B felonies, and sentenced to terms of twenty years on each conviction, to be served consecutively as a Range II offender in the Tennessee Department of Correction. On appeal, he argues that the trial court imposed an excessive sentence. After review, we affirm the judgments of the trial court.

Chester County Court of Criminal Appeals 10/10/14
State of Tennessee v. Allen Craft and Cedric Mims
W2013-01822-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Paula Skahan

Defendants Allen Craft and Cedric Mims were convicted of first degree felony murder, especially aggravated robbery, attempted voluntary manslaughter, and employing a firearm during the commission of a dangerous felony. The trial court sentenced each defendant to life for the felony murder conviction, with concurrent sentences of twenty years for the especially aggravated robbery conviction and two years for the attempted voluntary manslaughter conviction. The trial court also dismissed the charges of employing a firearm during the commission of a dangerous felony. On appeal, the defendants challenge the sufficiency of the evidence and the trial court’s refusal to grant a mistrial. Upon our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 10/10/14
State of Tennessee v. Travis Grover Richardson
E2013-02250-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Jon Kerry Blackwood

Defendant, Travis Grover Richardson, was convicted by a Carter County jury of aggravated robbery, two counts of felony evading arrest, two counts of felony aggravated assault, criminal simulation, and felony reckless endangerment. Following a sentencing hearing, the trial court ordered Defendant to serve a total effective sentence of thirty years’ incarceration. In this direct appeal, Defendant contends: (1) that he was improperly convicted of felony reckless endangerment as a lesser-included offense of attempted second degree murder; (2) that his two convictions for felony evading arrest violated his right to be free from double jeopardy; (3) that the evidence was insufficient to support his conviction for aggravated robbery and both of his convictions for aggravated assault; and (4) that he was improperly sentenced as a career offender based, in part, on offenses he committed as a juvenile. Upon our thorough review of the record and applicable law, we reverse Defendant’s conviction of felony reckless endangerment and merge Defendant’s two convictions for felony evading arrest into a single conviction. We affirm the remaining judgments of the trial court and remand for correction of the judgment forms.

Carter County Court of Criminal Appeals 10/10/14
Craig U. Quevedo v. State of Tennessee
M2014-00028-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Michael R. Jones

The Petitioner, Craig U. Quevedo, appeals the denial of his petition for post-conviction relief.  In 2002, the petitioner pled guilty and nolo contendere to seventy-nine counts of various sex crimes involving his minor stepdaughter for which he received an effective sentence of ninety-two years in the Department of Correction. After an unsuccessful direct appeal, the petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel at the guilty plea and sentencing phases.  This court affirmed the post-conviction court’s judgment with respect to counsel’s performance at the guilty plea phase but remanded to the post-conviction court with directions to enter an order stating its findings of fact and conclusions of law with respect to the sentencing phase issues.  On remand, the post-conviction court again denied relief.  In this appeal from our limited remand, the petitioner alleges that he received ineffective assistance of counsel at the sentencing hearing.  Specifically, he contends that counsel was deficient in failing to introduce additional positive evidence about the petitioner, namely the details of his military service, his employment history, and his involvement in various community activities.  Following review of the record, we affirm the denial of post-conviction relief.
 

Montgomery County Court of Criminal Appeals 10/10/14
State of Tennessee v. Charles Newsom
M2014-00168-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Defendant, Charles Newsom, was convicted of aggravated burglary upon his best interest guilty plea.  See T.C.A. § 39-14-403 (2014).  As part of the plea agreement, he accepted a three-year, Range I sentence, with the question of judicial diversion and the manner of service to be determined by the trial court.  The trial court denied judicial diversion and imposed a split-confinement sentence of one year of confinement followed by two years of probation.  On appeal, he contends that the trial court erred in denying judicial diversion.  We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 10/10/14