COURT OF CRIMINAL APPEALS OPINIONS

Cameron Winselle v. State of Tennessee
W2013-01491-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge James M. Lammey Jr.

The Petitioner, Cameron Winselle, appeals from the Shelby County Criminal Court’s denial of his motion to reopen his petition for post-conviction relief. However, this court is without jurisdiction in this case because the Petitioner failed to comply with the requirements of Tennessee Code Annotated section 40-30-117(c). Accordingly, the appeal is dismissed.

Shelby Court of Criminal Appeals

Christopher Rodney Butler v. State of Tennessee
W2013-01245-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Roy B. Morgan Jr.

Petitioner, Christopher Rodney Butler, appeals the dismissal of his petition for post-conviction relief in which he alleged ineffective assistance of counsel at trial. More specifically he contends that (1) trial counsel failed to “solicit” the testimony of Albert Sweat; (2) trial counsel failed to depose the State’s witnesses prior to trial; and (3) trial counsel failed to obtain video surveillance footage from the cameras at the “Mix Factory in Jackson, Tennessee showing that he had been approached by a young black man, who drove him to the purported crime scene.” After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel, and we accordingly affirm the judgment of the post-conviction court.

Madison Court of Criminal Appeals

State of Tennessee v. Brandon Churchman
W2013-00175-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Mark Ward

The defendant was convicted by a jury of reckless homicide, first degree (felony) murder and two counts of facilitation of attempted first degree murder. These convictions all sprang from an incident in which shots were fired at three men in a car during an attempted robbery. To establish the defendant’s identity as the murderer the State introduced evidence at trial of a separate carjacking and shooting committed by the defendant and an accomplice several hours prior to the homicide. The defendant, who had pled guilty to the attempted first degree murder of the carjacking victim prior to trial on the instant charges, asserts on appeal that the two incidents were subject to mandatory joinder and that he could not be tried for the charges in the present indictment after he had pled guilty to the attempted first degree murder. He also appeals the trial court’s decision to admit the evidence of the carjacking, the trial court’s limits on cross-examination of a witnesses, the trial court’s evidentiary decisions regarding hearsay, and the trial court’s denial of a mistrial. After a thorough review of the record, we conclude that there was no error and we affirm the judgments of the trial court.

Shelby Court of Criminal Appeals

Walter Ware v. State of Tennessee
W2013-01079-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree Jr.

The petitioner, Walter Ware, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of trial counsel. Based upon our review, we affirm the judgment of the post-conviction court.

Obion Court of Criminal Appeals

State of Tennessee v. Ronald W. Damon
M2012-02263-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Don R. Ash

The Defendant, Ronald W. Damon, was convicted by a Rutherford County Circuit Court jury of two counts of especially aggravated kidnapping, Class A felonies; aggravated robbery, a Class B felony; aggravated burglary, a Class C felony; and conspiracy to commit aggravated burglary, a Class D felony. See T.C.A. §§ 39-13-305 (2010) (especially aggravated kidnapping), 39-13-402 (2010) (aggravated robbery), 39-14-403 (aggravated burglary), 39-12-103 (2010) (criminal conspiracy). The trial court sentenced the Defendant to consecutive terms of twenty-three years as a violent offender for each of the especially aggravated kidnapping convictions, eleven years as a Range I, standard offender for aggravated robbery, nine years as a Range II, multiple offender for aggravated burglary, and seven years as a Range II, multiple offender for conspiracy to commit aggravated burglary. On appeal, the Defendant contends that (1) the trial court erred in denying his motion for a judgment of acquittal or a new trial, (2) the evidence is insufficient to support his convictions, (3) the court erred in allowing an eight-day break in the trial between the proof and the closing arguments, (4) the court erred in excluding the testimony of a 9-1-1 operator regarding one of the victim’s statements, (5) the court erred in admitting testimony about a letter he wrote, (6) the court erred in admitting evidence of his prior bad acts, (7) the court erred in allowing the State to play portions of a video recording of his pretrial statement, (8) the court erred in allowing a jail inmate to testify without being subject to cross-examination about the truthfulness or falsity of his prior testimony in another matter, (9) the court erred in admitting testimony about his financial problems despite the witness’s lack of personal knowledge, (10) the court erroneously admitted evidence in his first trial that resulted in a hung jury but would have resulted in an acquittal if the evidence had not been admitted, and (11) the court erred during sentencing. We affirm the judgments of the trial court.

Rutherford Court of Criminal Appeals

Crystle D. Rutherford v. State of Tennessee
M2013-01575-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner, Crystle D. Rutherford, appeals the summary dismissal of her pro se petition for post-conviction relief as untimely. In June 2010, she pled guilty to two counts of facilitation of first degree premeditated murder and one count of especially aggravated robbery. She is currently serving a total effective sentence of fifty years in the Department of Correction. In March 2013, the petitioner filed a pro se petition alleging multiple grounds for post-conviction relief. The post-conviction court summarily dismissed the petition as untimely. On appeal, the petitioner addresses only her asserted grounds for relief, and she fails to address the finding of untimeliness. Following our review of the record, we affirm the dismissal of the petition for post-conviction relief.

Davidson Court of Criminal Appeals

Junior P. Samuel v. State of Tennessee
M2013-01272-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve Dozier

The petitioner, Junior P. Samuel, appeals the post-conviction court’s summary dismissal of his petition for relief as time-barred. The petitioner is currently serving an effective thirty-two year sentence in the Department of Correction following his convictions for five counts of rape and one count of sexual battery by an authority figure in 2008. In April 2013, the petitioner filed the instant pro se petition for post-conviction relief alleging that he was denied his right to the effective assistance of counsel. The post-conviction court summarily dismissed the petition after concluding that it was filed outside the statute of limitations. On appeal, the petitioner contends that the dismissal was improper because due process required tolling the statute of limitations. Specifically, he contends that he was mislead by appellate counsel into believing that appellate counsel was continuing the appellate process following the denial of the direct appeal. Following review of the record, we affirm the dismissal of the petition.

Davidson Court of Criminal Appeals

State of Tennessee v. Mitchell Nathaniel Scott
M2013-01169-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The defendant, Mitchell Nathaniel Scott, entered a plea of guilty to one count of aggravated child abuse. Prior to a sentencing hearing, the defendant filed a motion to withdraw his guilty plea, which the trial court denied. On appeal, the defendant contends that the trial court erred in denying his motion because he provided sufficient evidence to demonstrate a “fair and just reason” that would justify the withdrawal of his guilty plea. After a review of the record, we affirm the judgment of the trial court.

Davidson Court of Criminal Appeals

State of Tennessee v. Julie Fuller aka Julie Cole
W2013-00900-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James Lammey Jr.

The defendant, Julie Fuller a.k.a. Julie Cole, appeals the trial court’s denial of her motion for correction of an illegal sentence and/or reduction of sentence. On August 9, 2012, the defendant pleaded guilty to theft of property over $10,000, a Class C felony. The defendant was sentenced as a persistent offender to serve ten years at thirty percent. On appeal, the defendant argues that her sentence was illegal and that the trial court erred and abused its discretion by failing to modify it. Following a review of the record, we reverse the trial court’s denial of the motion and remand to correct the judgment.

Shelby Court of Criminal Appeals

Newt Carter v. State of Tennessee
W2013-0506-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Roy Morgan Jr.

A Madison County jury convicted Petitioner, Newt Carter, of aggravated rape and aggravated burglary. He received an effective sentence of twenty years to be served at 100 percent incarceration for the aggravated rape to be served consecutively to five years to be served at thirty percent incarceration for the aggravated burglary. State v. Newt Carter, No. W2009-00600-CCA-R3-CD, 2010 WL 2349207, at *1 (Tenn. Crim. App., at Jackson, June 11, 2010), perm. app. denied, (Tenn. Nov. 12, 2010). Petitioner filed a petition for post-conviction relief. After holding evidentiary hearings on the petition, the post-conviction court denied the petition. Petitioner appeals the denial of the petition and argues that he was afforded ineffective assistance of counsel. We have reviewed the record on appeal and conclude that the post-conviction court correctly denied the petition. Therefore, we affirm the denial of the petition for post-conviction relief.

Madison Court of Criminal Appeals

State of Tennessee v. William Matthew Black
M2013-00612-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Monte D. Watkins

The Defendant, William Matthew Black, was convicted by a Davidson County Criminal Court jury of second degree murder, a Class A felony. See T.C.A. § 39-13-210 (2010). The trial court imposed a Range I sentence of nineteen years’ confinement as a violent offender. On appeal, he contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erred by admitting into evidence his police statement, (3) the trial court erred by permitting the State to strike potential jurors on the basis of race, and (4) the trial court erred by failing to include aggravated assault in the jury instructions. We affirm the judgment of the trial court.

Davidson Court of Criminal Appeals

State of Tennessee v. Alvin Brewer and Patrick Boyland
W2012-02282-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley Jr.

In this consolidated appeal, the defendants, Alvin Brewer and Patrick Boyland, stand convicted of multiple crimes in two separate cases. In case number 11-02360, defendant Brewer was convicted by a jury of two counts of false imprisonment, two counts of robbery, one count of aggravated burglary, and one count of assault. Defendant Boyland was convicted of two counts of false imprisonment, one count of robbery, one count of facilitation of robbery, one count of aggravated burglary, and one count of assault. Each received effective twenty-eight year sentences as Range II multiple offenders. In this case, both have raised the following issues for review on appeal: (1) whether the trial court erred by failing to charge criminal attempt to the jury when the proof of a completed robbery was controverted and not overwhelming; (2) whether the trial court erred by improperly commenting on the evidence by referring to the home residents as “victims” in the jury charge; (3) whether there is sufficient evidence to support the convictions; and (4) whether the trial court erred in failing to force the State to make an election as to the aggravated assault charge when the proof presented showed two separate assaults. Following review, we have concluded that no reversible error has been established and affirm the judgments and resulting sentences. However, the judgment for facilitation of robbery in Count 4 for defendant Boyland incorrectly indicates that he was convicted of a Class C felony. In actuality, it should reflect conviction of a D felony, and we remand for entry of a corrected judgment form. In case number 11-02361, the defendants incurred multiple convictions. Defendant Boyland was convicted of especially aggravated kidnapping, aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and three counts of facilitation of aggravated assault. During the motion for new trial hearing, the trial court granted a motion for judgment of acquittal with regard to the especially aggravated kidnapping conviction. Following a sentencing hearing, defendant Boyland was sentenced to an effective forty-eight year sentence. Defendant Brewer was convicted of especially aggravated kidnapping, aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and three counts of aggravated assault. As with defendant Boyland, the trial court granted a motion for judgment of acquittal with regard to the especially aggravated kidnapping conviction, and defendant Brewer was sentenced to an effective forty-eight year sentence in the Department of Correction. On appeal, the defendants argue: (1) that the employing a firearm offense is void for failure to allege a predicate felony; (2) alternatively, that the firearm conviction should be reversed because the trial court improperly instructed the jury and provided improper verdict forms; (3) that the trial court erred in allowing a witness to testify in violation of rule 404(b); (4) that the evidence is insufficient to support the convictions; (5) that the trial court erred in refusing to merge the conviction for aggravated robbery with the convictions for aggravated assault and facilitation of aggravated assault, respective to each defendant, in violation of double jeopardy protections; (6) alternatively, that if merger is not applicable, then the trial court erred in failing to compel an election for the aggravated assault and facilitation of aggravated assault; and (7) that the trial court erred in allowing Mr. Clarence Mann to testify when his name was not endorsed on the indictment. Additionally, the State raises an issue for appeal, that being that the trial court erred in granting the motion for judgment of acquittal with regard to the especially aggravated kidnapping convictions of both defendants. Following review, the convictions for each defendant for employing a firearm during the commission of a dangerous felony are reversed. Moreover, we have determined that the court did erroneously refuse to merge defendant Boyland’s conviction for facilitation of aggravated assault and defendant Brewer’s conviction for aggravated assault into their respective aggravated robbery convictions. Moreover, the judgment of conviction form for defendant Brewer’s aggravated assault conviction in Count 8 fails to specify a release eligibility. Additionally, the trial court’s granting of motions for judgment of acquittal as to the charge of especially aggravated kidnapping for both defendants is reversed, and the judgments should be re-instated. As such, the case is remanded for sentencing on the especially aggravated kidnapping convictions and for further proceedings and actions necessary in accordance with this opinion. The convictions and sentences are affirmed in all other respects.

Shelby Court of Criminal Appeals

State of Tennessee v. Michael Presson
W2012-00023-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Roy B. Morgan Jr.

A Madison County jury convicted the Defendant, Michael Presson, of ten counts of attempted aggravated sexual battery, one count of aggravated sexual battery, and eleven counts of rape of a child. The trial court sentenced the Defendant to an effective sentence of thirty-five years of confinement. On direct appeal from his convictions, the Defendant contends that: (1) the evidence presented at trial was insufficient to sustain his convictions; (2) the trial court erred when it refused to admit into evidence the medical record for one of the victims; (3) the trial court violated Tennessee Rule of Evidence 615 by allowing the State’s designated witness to be present during the victims’ testimony, without requiring the designated witness to testify first; (4) the State improperly used an exhibit and commented on a jury questionnaire during closing arguments, violating the Defendant’s Sixth Amendment right to a fair trial; (5) the trial court improperly instructed the jury as to the mens rea elements of the crimes; (6) the trial court erred when it imposed consecutive sentences; and (7) the trial court erred when it placed the victim’s medical records under seal and denied the Defendant the opportunity to review the records. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

Madison Court of Criminal Appeals

State of Tennessee v. James H. Saint, Jr.
M2013-01511-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, James H. Saint, Jr., was convicted of six counts of aggravated sexual battery and was ordered to serve a sixty-six-year sentence. The petitioner brings this post-conviction action where he alleges that he received the ineffective assistance of counsel in that: (1) trial counsel failed to sufficiently inform the petitioner regarding the details of his settlement offer; (2) trial counsel failed to adequately prepare both himself and the petitioner for trial; and (3) trial counsel failed to adequately cross-examine the petitioner’s wife at trial. After a thorough review of the record, we conclude that the petitioner has not established that counsel performed deficiently or that any deficiency prejudiced the petitioner. We accordingly affirm the denial of his petition.

Davidson Court of Criminal Appeals

State of Tennessee v. Alvin Brewer and Patrick Boyland
W2012-02281-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley Jr.

In this consolidated appeal, the defendants, Alvin Brewer and Patrick Boyland, stand convicted of multiple crimes in two separate cases. In case number 11-02360, defendant Brewer was convicted by a jury of two counts of false imprisonment, two counts of robbery, one count of aggravated burglary, and one count of assault. Defendant Boyland was convicted of two counts of false imprisonment, one count of robbery, one count of facilitation of robbery, one count of aggravated burglary, and one count of assault. Each received effective twenty-eight year sentences as Range II multiple offenders. In this case, both have raised the following issues for review on appeal: (1) whether the trial court erred by failing to charge criminal attempt to the jury when the proof of a completed robbery was controverted and not overwhelming; (2) whether the trial court erred by improperly commenting on the evidence by referring to the home residents as “victims” in the jury charge; (3) whether there is sufficient evidence to support the convictions; and (4) whether the trial court erred in failing to force the State to make an election as to the aggravated assault charge when the proof presented showed two separate assaults. Following review, we have concluded that no reversible error has been established and affirm the judgments and resulting sentences. However, the judgment for facilitation of robbery in Count 4 for defendant Boyland incorrectly indicates that he was convicted of a Class C felony. In actuality, it should reflect conviction of a D felony, and we remand for entry of a corrected judgment form. In case number 11-02361, the defendants incurred multiple convictions. Defendant Boyland was convicted of especially aggravated kidnapping, aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and three counts of facilitation of aggravated assault. During the motion for new trial hearing, the trial court granted a motion for judgment of acquittal with regard to the especially aggravated kidnapping conviction. Following a sentencing hearing, defendant Boyland was sentenced to an effective forty-eight year sentence. Defendant Brewer was convicted of especially aggravated kidnapping, aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and three counts of aggravated assault. As with defendant Boyland, the trial court granted a motion for judgment of acquittal with regard to the especially aggravated kidnapping conviction, and defendant Brewer was sentenced to an effective forty-eight year sentence in the Department of Correction. On appeal, the defendants argue: (1) that the employing a firearm offense is void for failure to allege a predicate felony; (2) alternatively, that the firearm conviction should be reversed because the trial court improperly instructed the jury and provided improper verdict forms; (3) that the trial court erred in allowing a witness to testify in violation of rule 404(b); (4) that the evidence is insufficient to support the convictions; (5) that the trial court erred in refusing to merge the conviction for aggravated robbery with the convictions for aggravated assault and facilitation of aggravated assault, respective to each defendant, in violation of double jeopardy protections; (6) alternatively, that if merger is not applicable, then the trial court erred in failing to compel an election for the aggravated assault and facilitation of aggravated assault; and (7) that the trial court erred in allowing Mr. Clarence Mann to testify when his name was not endorsed on the indictment. Additionally, the State raises an issue for appeal, that being that the trial court erred in granting the motion for judgment of acquittal with regard to the especially aggravated kidnapping convictions of both defendants. Following review, the convictions for each defendant for employing a firearm during the commission of a dangerous felony are reversed. Moreover, we have determined that the court did erroneously refuse to merge defendant Boyland’s conviction for facilitation of aggravated assault and defendant Brewer’s conviction for aggravated assault into their respective aggravated robbery convictions. Moreover, the judgment of conviction form for defendant Brewer’s aggravated assault conviction in Count 8 fails to specify a release eligibility. Additionally, the trial court’s granting of motions for judgment of acquittal as to the charge of especially aggravated kidnapping for both defendants is reversed, and the judgments should be re-instated. As such, the case is remanded for sentencing on the especially aggravated kidnapping convictions and for further proceedings and actions necessary in accordance with this opinion. The convictions and sentences are affirmed in all other respects.

Shelby Court of Criminal Appeals

State of Tennessee v. Travis Darnell Kendrick
M2013-01638-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Michael R. Jones

The defendant, Travis Darnell Kendrick, was found to be in violation of the terms and conditions of his probation agreement and was sentenced to serve the remainder of his sentence in confinement. On appeal, the defendant claims that the trial court abused its discretion by ordering the remainder of his sentence to be served in incarceration. After review of the record, we find no abuse of discretion and affirm the judgment of the trial court.

Robertson Court of Criminal Appeals

State of Tennessee v. Justin Shelton
M2013-01812-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Forest A. Durard, Jr.

Appellant, Justin Shelton, was indicted by the Lincoln County Grand Jury on two counts of reckless endangerment and two counts of vandalism. Appellant pled guilty and was sentenced to two years on each count for a total effective sentence of eight years. The trial court suspended the sentences and ordered Appellant to probation. Subsequently, a probation violation warrant was filed which alleged that Appellant had not reported to his probation officer; failed to pay fines; and failed to provide proof of employment. Petitioner also pled guilty to another offense. At a hearing, Petitioner pled guilty to the probation violation. The trial court ordered Appellant to serve the balance of his sentence in incarceration. Appellant appeals. After a review of the record and authorities, we determine that the trial court did not abuse its discretion in revoking Appellant’s probation as there was evidence to support the conclusion of the trial court that a violation of the conditions of probation occurred. Accordingly, the judgment of the trial court is affirmed.

Lincoln Court of Criminal Appeals

State of Tennessee v. Danny R. Mays
W2013-01052-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

A Madison County jury convicted the Defendant, Danny R. Mays, of felony evading arrest, reckless driving, driving on a cancelled, suspended or revoked license, leaving the scene of an accident, violation of the registration law, criminal trespass, vandalism, and possession of marijuana. The trial court sentenced the Defendant to an effective sentence of eight years. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions for felony evading arrest, reckless driving, driving on a cancelled, suspended or revoked license, and possession of marijuana. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgments.

Madison Court of Criminal Appeals

Tim Smith v. State of Tennessee
W2013-00432-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas Jr.
Trial Court Judge: Judge W. Mark Ward

The Petitioner, Tim Smith, challenges his conviction for aggravated kidnapping, alleging that his guilty plea was not knowingly and voluntarily entered because he did not understand the ramifications of his plea, noting that trial counsel erroneously advised him that he would be eligible for release after he had served eighty-five percent of his sentence. Upon consideration of the record and the applicable authorities, we conclude that the Petitioner failed to prove that his plea was unknowingly and involuntarily entered and affirm the judgment of the post-conviction court.

Shelby Court of Criminal Appeals

Ramsey Harris v. State of Tennessee
E2013-01770-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Carroll L. Ross

Petitioner, Ramsey Harris, pleaded guilty to aggravated assault, false reporting to a law enforcement officer, and two counts of felony theft of property. He received an effective sentence of twenty years as a Range III offender. As part of the plea agreement, several other charges were dismissed. In his post-conviction proceedings, petitioner asserts that numerous errors with respect to trial counsel’s advice to him regarding the guilty plea to false reporting amounted to ineffective assistance of counsel. Following our review, we affirm the denial of post-conviction relief.

Bradley Court of Criminal Appeals

George Scott Mason v. State of Tennessee
M2013-01170-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Robert G. Crigler

The Petitioner, George Scott Mason, appeals the post-conviction court’s denial of relief for his conviction of possession of a Schedule II substance for resale. On appeal, the Petitioner argues that the post-conviction court erred in failing to make specific findings of fact and conclusions of law and that he received ineffective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.

Bedford Court of Criminal Appeals

State of Tennessee v. William G. Barnett, Jr.
M2013-01176-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge M. Keith Siskin

The petitioner, William G. Barnett, Jr., pled guilty to four counts of aggravated statutory rape, Class D felonies, and one count of attempted solicitation of sexual exploitation of a minor, a Class A misdemeanor. Based upon the imposition of consecutive sentencing, the petitioner was sentenced to serve three years in the Department of Correction, followed by three years of probation. At the guilty plea hearing, the State noted that the petitioner asked to be allowed to reserve a certified question of law to appeal. The State read the petitioner’s question on the record, and the handwritten and signed statement was included in the record. It stated, “I would like to reserve my right to appeal the decision on the motion to dismiss.” The petitioner filed notice of direct appeal. Thereafter, the petitioner filed a petition for the writ of habeas corpus, which the trial court summarily dismissed based upon the pending direct appeal. The petitioner appealed that dismissal. This court has now consolidated those two issues into a single case. Thus, the issues presently before us are: (1) whether the defendant’s direct appeal of his certified question is properly before this court; and (2) whether the trial court properly dismissed the petition for the writ of habeas corpus. Upon review, we conclude that the certified question is not properly before this court and dismiss that portion of the appeal. However, with regard to habeas corpus relief, the petitioner has established what may be an illegal sentence. Remand to the trial court is necessary for further factual findings and actions taken in accordance with this opinion.

Rutherford Court of Criminal Appeals

State of Tennessee v. Howard Brackson Carrier
E2013-00247-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge R. Jerry Beck

A Sullivan County jury convicted appellant, Howard Brackson Carrier, of first degree premeditated murder, felony murder committed during the perpetration of a burglary, attempted first degree murder, and aggravated burglary, for which he received a sentence of life for the merged murder convictions, fifteen years, and three years, respectively. After the trial but before the hearing on the motion for a new trial, defense counsel discovered new evidence indicating that one of the State’s witnesses had falsely testified that a knife sharpener found at the murder scene belonged to appellant. At the motion for a new trial hearing, appellant argued that the testimony was crucial because it formed the basis for premeditation and intent. The trial court denied the motion, and this appeal follows. Herein, appellant raises one issue for our review: whether the witness’s false testimony necessitates a new trial. Following our review, we affirm the judgments for attempted first degree murder and aggravated burglary. We affirm the convictions for first degree premeditated murder and felony murder but vacate the judgments and remand the case to the trial court for entry of a single judgment for first degree murder noting merger of the two convictions.

Sullivan Court of Criminal Appeals

Steven Aaron Page v. State of Tennessee
M2013-01267-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Monte Watkins

Petitioner, Steven Aaron Page, pled guilty in Davidson County to one count of aggravated child abuse. Pursuant to the plea, Petitioner was sentenced to fifteen years to be served at 100 percent. Petitioner subsequently filed a petition for post-conviction relief arguing that he was afforded ineffective assistance of counsel and that he entered his guilty plea unknowingly and involuntarily. The post-conviction court denied the petition. Petitioner appealed. After a thorough review of the record, we conclude that the post-conviction court did not err in denying the petition. Therefore, we affirm the denial of the petition.

Davidson Court of Criminal Appeals

Kristopher Smith v. State of Tennessee
W2013-01135-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge John W. Campbell

The petitioner, Kristopher Smith, appeals the denial of his bid for post-conviction relief from his 2009 Shelby County Criminal Court jury convictions of aggravated kidnapping and rape, claiming that the ruling in State v. White, 362 S.W.3d 559 (Tenn. 2012), requires dismissal of his aggravated kidnapping conviction and that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Shelby Court of Criminal Appeals