Court of Criminal Appeals Opinions

Format: 03/26/2015
Format: 03/26/2015
State of Tennessee v. Maxwell Monroe Hodge
E2014-01059-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Robert H. Montgomery, Jr.

Convicted of rape by a Sullivan County Criminal Court jury, the defendant, Maxwell Monroe Hodge, appeals and claims that the evidence is insufficient to support his conviction and that the definition of “sexual penetration” expressed in Tennessee Code Annotated section 39-13-501(7) is impermissibly vague relative to that subsection’s use of the terms “genital or anal openings.” Discerning no error, we affirm the judgment of the criminal court.

Sullivan County Court of Criminal Appeals 03/26/15
State of Tennessee v. Jeremy Danielle McWherter
M2014-00974-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John H. Gasaway, III

Defendant, Jeremy McWherter, pled guilty in the Montgomery County Criminal Court to the offense of especially aggravated robbery. Defendant received a sentence of eight years to serve one year in confinement followed by seven years of probation. On March 26, 2014, a probation violation warrant was issued. Following a hearing, the trial court revoked probation and ordered Defendant to serve the balance of his sentence by incarceration. Defendant appeals, and does not challenge the revocation of probation, but argues that the trial court erred by ordering the entire sentence to be served by incarceration and not granting him a furlough to enter an alcohol rehabilitation program. We affirm the judgment of the trial court.

Montgomery County Court of Criminal Appeals 03/26/15
Crystal Miranda Kirby v. State of Tennessee
W2014-00679-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Crystal Miranda Kirby, appeals the denial of her petition for writ of habeas corpus, arguing that her judgment for first degree murder is void and illegal on its face because of the trial court’s merger of her second degree murder conviction into the first degree murder conviction after separate judgments had already been entered and the jury had been dismissed. Following our review, we affirm the judgment of the habeas court summarily denying the petition.

Shelby County Court of Criminal Appeals 03/26/15
Trutonio Yancey v. State of Tennessee
W2014-00328-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Trutonio Yancey, was convicted of aggravated robbery, especially aggravated kidnapping, carjacking, and employing a firearm during the commission of a dangerous felony and received an effective sentence of twenty years. On direct appeal, this court affirmed the petitioner’s aggravated robbery and especially aggravated kidnapping convictions but reversed the carjacking and firearm convictions and remanded for a new trial. The Tennessee Supreme Court denied application for permission to appeal. State v. Trutonio Yancey and Bernard McThune, No. W2011-01543-CCA-R3-CD, 2012 WL 4057369, at (Tenn. Crim. App. Sept. 17, 2012), perm. app. denied (Tenn. Jan. 14, 2013). Subsequently, he filed a pro se petition for post-conviction relief, alleging he received the ineffective assistance of counsel at trial. Counsel was appointed and, following an evidentiary hearing, the post-conviction court denied the petition. Based upon our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 03/26/15
Corey Alan Bennett v. State of Tennessee
E2015-00143-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Bob R. McGee

The pro se appellant, Corey Alan Bennett, appeals as of right from the Knox County Criminal Court’s order summarily dismissing his petition for post-conviction relief. Because the record reflects that the appellant filed a subsequent petition for post-conviction relief, we affirm the order of the Knox County Criminal Court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Knox County Court of Criminal Appeals 03/25/15
Corey Alan Bennett v. State of Tennessee
E2014-02097-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Bob R. McGee

The pro se appellant, Corey Alan Bennett, appeals as of right from the Knox County Criminal Court’s order summarily dismissing his petition for post-conviction relief. Because the record reflects that the appellant filed a subsequent petition for post-conviction relief, we affirm the order of the Knox County Criminal Court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Knox County Court of Criminal Appeals 03/25/15
Gary Wayne Bush v. State of Tennessee
M2014-00759-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge M. Keith Siskin

The Petitioner, Gary Wayne Bush, appeals the Rutherford County Circuit Court’s denial of post-conviction relief.  He was convicted of first degree murder and sentenced to life imprisonment in the Tennessee Department of Correction.  On appeal, the Petitioner argues that he received ineffective assistance of counsel because trial counsel failed to call the Petitioner to testify in his own defense.  Upon review, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 03/25/15
Jackie Ewing v. State of Tennessee
W2014-00273-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The petitioner, Jackie Ewing, was convicted of theft of property valued over $1000 and sentenced as a career offender to twelve years. On direct appeal, this court affirmed the petitioner’s conviction, and our supreme court denied permission to appeal. State v. Jackie Ewing, No. W2012-00376-CCA-R3-CD, 2012 WL 6206123, at *1 (Tenn. Crim. App. Dec. 11, 2012), perm. app. denied (Tenn. Apr. 9, 2013). Subsequently, he filed a pro se petition for post-conviction relief, alleging he received the ineffective assistance of counsel at trial. Counsel was appointed and, following an evidentiary hearing, the post-conviction court denied the petition. Based upon our review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 03/24/15
State of Tennessee v. Christopher Lee Cunningham and James Cleo Hardin
W2014-00230-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald H. Allen

The Defendant-Appellants, Christopher Lee Cunningham and James Cleo Hardin, were jointly convicted by a Madison County jury of one count of aggravated burglary and two counts of aggravated robbery. The trial court sentenced each defendant to an effective sentence of 22 years’ confinement. On appeal, the Defendants argue that (1) the evidence is insufficient to sustain their convictions for aggravated burglary and aggravated robbery, and (2) the trial court abused its discretion by imposing consecutive sentences. Upon review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 03/24/15
Brannon Blake Black v. State of Tennessee
W2014-01264-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William B. Acree

The Petitioner, Brannon Blake Black, appeals the post-conviction court's denial of relief from his conviction for rape, a Class B felony. On appeal, he argues that he received ineffective assistance of counsel in connection with his guilty plea. Upon review, we affirm the judgment of the post-conviction court.

Obion County Court of Criminal Appeals 03/23/15
State of Tennessee v. Kenneth Moses
E2014-01013-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert H. Montgomery, Jr.

Defendant, Kenneth Moses, was charged by presentment for one count of rape of a child and one count of incest. A  jury found Defendant guilty as charged. The trial court sentenced Defendant to consecutive sentences of 25 years for rape of a child and six years for incest. In this appeal as of right, Defendant contends that the evidence was insufficient to support his convictions and that the trial court abused its discretion by ordering his sentences to run consecutively. After a thorough review of the record, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 03/20/15
State of Tennessee v. Billy Ray Allen
E2014-00967-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery. Jr.
Trial Court Judge: Judge R. Jerry Beck

The Defendant, Billy Ray Allen, was convicted by a Sullivan County Criminal Court jury of facilitation of possession with the intent to sell or to deliver twenty-six grams or more of cocaine, a Class C felony. See T.C.A. §§ 39-17-417(a) 4) (2010) (amended 2012, 2014) (possession with intent to sell and to deliver); 39-11-403(a) (2014) (facilitation). The trial court sentenced the Defendant as a Range II, multiple offender to six years’ confinement. In this delayed appeal, the Defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 03/20/15
Doyle Haney v. State of Tennessee
E2014-00462-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

The Petitioner, Doyle Haney, appeals the Cocke County Circuit Court’s denial of his two petitions for post-conviction relief. In case number 3457, the Defendant was convicted of the sale of 0.5 grams or more of cocaine and received a thirty-year sentence. In case number 4924, he was convicted of delivering 0.5 grams or more of cocaine and received a thirty-year sentence. The sentences were ordered to be served concurrently. On appeal, the Petitioner contends that the trial court erred by denying post-conviction relief because he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Cocke County Court of Criminal Appeals 03/20/15
Derrick Richardson v. State of Tennessee
E2014-01554-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Petitioner, Derrick Richardson, appeals the Hamilton County Criminal Court’s denial of his two motions to reopen his post-conviction proceedings relative to his first degree felony murder conviction and resulting life sentence. The Petitioner contends that the post-conviction court erred by denying his motions. We dismiss the appeal for lack of jurisdiction because the Petitioner failed to comply with the statutory requirements governing an appeal from the denial of a motion to reopen post-conviction proceedings.

Hamilton County Court of Criminal Appeals 03/20/15
Thomas Edward Kotewa v. Brenda Jones, Warden
W2014-01290-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Joe H. Walker, III

Pro se petitioner, Thomas Edward Kotewa, appeals the summary dismissal of his petition for habeas corpus relief by the Lauderdale County Circuit Court. In this appeal, the Petitioner argues that the habeas corpus court erred in denying his petition because the trial court lacked subject matter jurisdiction to accept his plea of guilty. Upon our review, we affirm the judgment of the habeas court.

Lauderdale County Court of Criminal Appeals 03/19/15
State of Tennessee v. James Pennock
W2013-02526-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge R. Lee Moore Jr.

The Defendant-Appellant, James Pennock, was convicted by a Dyer County jury of three counts of sale of a Schedule II controlled substance. On appeal, the Defendant argues that (1) the evidence is insufficient to establish the Defendant's identity as the person who committed the offenses; (2) the trial court erred in instructing the jury regarding eyewitness identification testimony; and (3) the trial court erred in allowing the co-defendant, Nora Gibson, to testify without proper notice provided to the Defendant. Upon our review, we affirm the judgments of the trial court.

Dyer County Court of Criminal Appeals 03/19/15
Christopher M. Black v. State of Tennessee
M2014-01607-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Monte Watkins

In 2006, the Petitioner, Christopher M. Black, was convicted by a Davidson County jury of two counts of aggravated rape and two counts of aggravated robbery, for which the Petitioner received an effective sentence of 50 years in the Department of Correction.  On direct appeal, this Court affirmed the Petitioner’s convictions and sentence.Thereafter, the Petitioner filed a petition for post-conviction relief, which was denied following a hearing.  On appeal from the denial of post-conviction relief, the Petitioner contends that he received ineffective assistance of counsel based upon trial counsel’s failure to hire a DNA expert to analyze the evidence against the Petitioner.  Following our review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 03/19/15
State of Tennessee v. David Muangkhot
M2014-01029-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Franklin L. Russell

In January 2005, David Muangkhot (“the Defendant”) pleaded guilty to one count of sale of a Schedule I controlled substance and one count of possession of a Schedule I controlled substance with the intent to sell.  Pursuant to a plea agreement, the trial court imposed concurrent, 10-year sentences and ordered the Defendant to serve his sentence in confinement.  Following the completion of a boot camp program, the Defendant was released and placed on supervised probation for the remainder of his sentence pursuant to Tennessee Code Annotated section 40-20-206.  In April 2014, the trial court issued a violation of probation warrant and, following a hearing, revoked the Defendant’s probation and imposed the Defendant’s original sentence.  On appeal, the Defendant argues that the trial court abused its discretion by ordering him to serve his sentence.  Upon review, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 03/19/15
State of Tennessee v. Levar O. Williams
E2014-01068-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carroll L. Ross

The petitioner, Levar O. Williams, appeals the trial court’s denial of his motion to correct an illegal sentence. Following our review of the briefs of the parties, the record, and the applicable authorities, we conclude that the petitioner failed to file a timely notice of appeal and that the “interest of justice” does not warrant waiver of the timely notice requirement. As a result, we dismiss his appeal.

Bradley County Court of Criminal Appeals 03/19/15
State of Tennessee v. Derishon Wadlington-Dissenting
W2013-02521-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge William B. Acree, Jr.

I respectfully dissent. First, I disagree with the majority’s conclusion that the trial judge determined that the officers lacked probable cause to arrest Defendant. The majority quoted the trial court’s ruling, which I interpret bases the decision on the fact that the officers took Defendant into custodial arrest in violation of a statute that mandated the issuance of a citation in lieu of custodial arrest. The trial court’s reasoning was that since custodial arrest was invalid, the resulting search was invalid, and thus all evidence found in Defendant’s purse must be suppressed.

Obion County Court of Criminal Appeals 03/18/15
State of Tennessee v. Derishon Wadlington
W2013-02521-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Williams B. Acree, Jr.

The defendant, Derishon Wadlington, was detained in a Union City Walmart store, after being observed attempting to leave the premises without paying for a belt, which she had in her possession. Union City police officers were called and, taking the defendant into custody, found a small clear bag containing a green leafy substance in her purse. At the jail, her purse was inventoried and found to contain a large clear bag containing a white powder, which was determined to be cocaine. She filed a motion to suppress the evidence, which was granted after the trial court determined that the officers lacked probable cause to arrest the defendant. The State appealed. Following our review, we conclude that the officers had probable cause to arrest the defendant, and, thus, the subsequent search of her purse was lawful. Accordingly, we reverse the trial court’s suppression of the evidence and remand the matter to the trial court.

Obion County Court of Criminal Appeals 03/18/15
State of Tennessee v. Marquize Berry-Concurring In Part, Dissenting In Part
W2014-00785-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge J. Robert Carter, Jr.

I concur in the excellent lead opinion by Judge Witt. I write separately, however, because I do not agree that the judgment form for Count 3 needs to be corrected. In this case, the learned trial judge entered a judgment on Count 3 to effectuate the jury‟s finding of guilty of a violation of Tennessee Code Annotated section 39-17-1324(b)(1), the offense of employing a firearm during the commission of a dangerous felony. When an offender does not have a prior felony, the punishment for violation of this statute is at least a mandatory minimum six-year sentence in the department of correction. Tenn. Code Ann. § 39-24-1324(h)(1).

Shelby County Court of Criminal Appeals 03/18/15
State of Tennessee v. Marquize Berry
W2014-00785-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The defendant, Marquize Berry, appeals his Shelby County Criminal Court jury conviction of attempted second degree murder, claiming that the evidence was insufficient to support his conviction. We affirm but order certain clerical amendments to the judgments.

Shelby County Court of Criminal Appeals 03/18/15
State of Tennessee v. Charles B. Davis
M2013-01903-CCA-R3-CD
Authoring Judge: Special Judge Larry J. Wallace
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted Defendant, Charles B. Davis, of one count of theft of property valued between $1,000 and $10,000, one count of theft of property valued under $500, and one count of employing a firearm during the commission of a dangerous felony.  In addition, the Defendant pleaded guilty to one count of aggravated burglary but was acquitted of an additional count of aggravated burglary.  The trial court sentenced the Defendant to an effective sentence of twenty years in the Tennessee Department of Correction as a Range II, persistent offender.  On appeal, the Defendant asserts that: (1) the trial court erred in denying the Defendant’s motion for judgment of acquittal as to Counts 2 and 5 as there was insufficient evidence to support his convictions for theft of property and employing a firearm during a dangerous felony and (2) the trial erred when it denied his motion for new trial because the trial court failed to properly function as the thirteenth juror as the verdicts were against the weight of the evidence. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Davidson County Court of Criminal Appeals 03/18/15
State of Tennessee v. Marcus Traveno Cox, Jr.
M2014-01442-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant-Appellant, Marcus Traveno Cox, Jr., was indicted by a Marshall County Grand Jury for one count of solicitaion of aggravated perjury and one count of improper influence of a juror, Class A misdemeanors. Cox entered an open plea of guilty to solicitation of aggravated perjury, and count two was dismissed. After a sentencing hearing, the trial court imposed the maximum sentence of 11 months and 29 days in the county jail, to be served consecutively to his sentences in another case. The sole issue presented for our review is whether the trial court erred in sentencing Cox. Upon review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 03/17/15