COURT OF CRIMINAL APPEALS OPINIONS

Roger Harris vs. State
E1999-02056-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Lynn W. Brown
The petitioner, convicted of first degree murder and reckless endangerment, filed a pro se petition for post-conviction relief in March 1995. The petition was amended several times, first by the petitioner, then by the public defender, and ultimately by private counsel. The trial court summarily dismissed the petition by order because it was not "verified by any oath or affirmation." We reverse and remand, holding that the original petition was filed under a statute that did not require verification by oath or affirmation and, in the alternative, that the affirmation executed by the private counsel is sufficient under the current law.

State vs. Daniel Christian Russell
M1999-00202-CCA-R3-CD
Authoring Judge: Sr. Judge L. Terry Lafferty
Trial Court Judge: J. O. Bond
The appellant, Daniel Christian Russell, referred herein as "the defendant," appeals as of right from the judgment of the Wilson County Circuit Court imposing concurrent sentences for aggravated assault and vandalism. The trial court imposed sentences totaling five (5) years to be served concurrently in the Department of Correction. The defendant presents two appellate issues: 1) whether the length of the sentences imposed by the trial court are excessive; and 2) whether the trial court erred by denying the defendant's request for probation. Because the defendant received illegal concurrent sentences, we vacate the judgments of conviction and remand the case for further proceedings.

Michael A. Rhodes vs. State
M2000-00369-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: James K. Clayton, Jr.
This is an appeal arising from the summary dismissal of a petition for post-conviction relief. The trial court's dismissal was based upon the failure to file the petition within the one-year statute of limitations. Upon review of the record, we reverse and remand for further proceedings since the petition was filed within one year of the date of the final action of the Tennessee Supreme Court in the direct appeal.

State vs. Lawrence Sherrill
W1999-01488-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: C. Creed Mcginley
This appeal results from the defendant's conviction by a Carroll County jury for introducing contraband into a penal institution. He was sentenced to six years incarceration and fined $2,500. On appeal, the defendant asserts that the trial court erred in not granting his motion for a new trial based on the lack of evidence to corroborate the testimony of his accomplice required for a conviction. After careful review of the record, we affirm the judgment of the trial court.

State vs. Ralph Dewayne Moore
E1999-02743-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: E. Eugene Eblen

State vs. William Blaine Campbell
E1999-02208-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Lynn W. Brown
The defendant appeals the sentence imposed for the offense of furnishing alcohol to a minor. The defendant contends that he should have been granted judicial diversion and full probation. We affirm the trial court.

Joseph Lebron Derrick vs. State
E1999-02646-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Stephen M. Bevil
The Defendant was convicted by a Hamilton County jury of second degree murder and was sentenced to twenty-years incarceration. On direct appeal, this Court affirmed his conviction and sentence, and the Tennessee Supreme Court denied permission to appeal. The Defendant subsequently filed a post-conviction petition, alleging that he was denied his right to effective assistance of counsel and his right to a fair trial. The post-conviction court denied post-conviction relief. We conclude that the Defendant was denied neither his right to effective assistance of counsel at trial nor his right to a fair trial. Accordingly, we affirm the judgment of trial court denying post-conviction relief.

State vs. Gary Anthony Burns
E1999-02610-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Phyllis H. Miller
The Defendant, Gary Anthony Burns, pleaded guilty to two counts of theft over $500.00. The trial court sentenced the Defendant as a Range I standard offender to two years on each theft count and ordered the sentences to be served concurrently. The trial court then suspended the two-year sentence and ordered the Defendant to be placed on six years probation after service of ninety days in the Sullivan County jail, day for day. The Defendant now appeals, arguing that the trial court unlawfully denied him alternative sentencing. We conclude that the Defendant's sentence is proper and therefore affirm the judgment of the trial court.

State vs. Allen Bowers, Jr.
E1999-00882-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Thomas W. Graham
A Bledsoe County jury convicted the Defendant of rape of a child, and the trial court sentenced the Defendant to eighteen years in the Tennessee Department of Correction. The Defendant now appeals, arguing (1) that his conviction should be reversed because a prospective juror for this case stated in the presence of other prospective jurors that he had been a prospective juror in a previous criminal case in which the Defendant was on trial; (2) that the trial court erred by not ordering a new trial for the Defendant based on a letter that the Defendant's mother received from the victim subsequent to the Defendant's trial in which the victim stated that "nothing happened" between the Defendant and the victim; (3) that the trial court erred by not granting the Defendant a new trial based on evidence presented during the hearing on the Defendant's motion for new trial that a document introduced into evidence at trial as a filed divorce complaint had actually not been filed and contained prejudicial and improper statements about the Defendant; (4) that the State, during its closing argument, improperly mentioned facts not in the record; (5) that the trial court erroneously instructed the jury concerning a "deadlock" in a supplemental instruction; and (6) that the trial court erred by giving the jury the dictionary definition of "captious" and by sending the definition in writing to the jury room without reading it to the jury. After a thorough review of the record, we find no reversible error and therefore affirm the judgment of the trial court.

State vs. Doyle Stevens
E1999-02097-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
In July 1999, the defendant entered a plea of nolo contendre on two counts of vehicular homicide and one count of aggravated assault. The defendant contends that the trial court erred by not granting judicial diversion. We conclude that the defendant was not a "qualified defendant" for judicial diversion. His 1992 conviction for driving while under the influence of an intoxicant qualifies as a Class A misdemeanor, and therefore he is not "qualified" for judicial diversion. Accordingly, we affirm the judgment of the trial court.

State vs. Robert Bentley Miller
E1999-00970-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: R. Jerry Beck
The Defendant, pursuant to a plea agreement, pleaded guilty as a Range II multiple offender to two counts of facilitation of the sale of a Schedule IV drug (a Class E felony) and three counts of facilitation of the sale of a Schedule VI drug (a Class A misdemeanor). The Defendant received sentences of three years for each of the felonies and eleven months, twenty-nine days for each of the misdemeanors. All five sentences were to be served concurrently, for an effective sentence of three years. The manner of service of the sentence was not part of the plea agreement but was to be decided by the trial court after a sentencing hearing. At the sentencing hearing, the trial court determined that the sentence should be served in the Department of Correction. In this appeal, the Defendant argues that he was wrongfully denied probation or alternative sentencing. Finding no merit to the Defendant's argument, we affirm the ruling of the trial court.

State vs. Robert Wayman
E1999-02042-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: E. Eugene Eblen
The defendant pled guilty to reckless vehicular homicide, simple possession of marijuana, and sale of a Schedule VI controlled substance. The trial court sentenced the defendant to four years incarceration in the Tennessee Department of Correction (DOC), and the defendant appeals from this sentence, requesting probation. We affirm the sentence of incarceration from the trial court.

State vs. John Clark Garrison
E1999-00121-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Lynn W. Brown
On August 3, 1992, the defendant pled guilty to two counts of theft under Tennessee Code Annotated sections 39-14-103, -105(4). The defendant was sentenced to two consecutive nine-year sentences and ordered to pay restitution in the amount of $51,000. On June 8, 1999, the defendant filed a Motion to Correct Illegal Sentence. It was denied. In this appeal, the defendant contends that 1) the trial court erred in its finding that the defendant's sentence of incarceration and restitution was legal as a matter of law; and 2) the trial court erred by finding that the defendant knowingly and voluntarily entered into a plea agreement involving an illegal sentence. After a careful review, we find no merit in these issues, and find that the defendant's sentence is legal. The defendant's sentence of incarceration and the court's imposition of restitution is affirmed.

State vs. Marilyn Skaggs
M1999-00428-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Stella L. Hargrove
The Defendant pleaded guilty to one count of aggravated burglary, one count of theft, and three counts of forgery. The Defendant was sentenced to serve sixty days in jail followed by six years of supervised probation. Subsequently, the Defendant's probation officer alleged that the Defendant violated the terms of her probation for numerous reasons. Following a hearing, the Defendant's probation was revoked. The Defendant now argues the following: (1) that the trial court erred in admitting as an exhibit a computer printout of summary notes, (2) that the trial court erred in admitting as an exhibit a faxed copy of an affidavit in lieu of the actual affidavit, and (3) that the court erred in revoking the Defendant's probation. After a review of the record and applicable law, we find no merit to the Defendant's contentions and thus affirm the judgment of the trial court.

Morgan Lewis Ray vs. State
M1999-00531-CCA-R3-CD
Authoring Judge: Per Curiam

Morgan Lewis Ray appeals his conviction by a jury in the Bedford County Circuit Court of one count of driving under the influence, fifth offense, a class A misdemeanor, and one count of driving on a revoked license, second or subsequent offense, a class A misdemeanor. The trial court imposed a sentence of eleven months and twenty-nine days incarceration in the Bedford County Jail for driving under the influence, requiring service of one hundred percent of the sentence. The trial court also imposed a sentence of eleven months and twenty-nine days incarceration for driving on a revoked license, requiring service of seventy-five percent of the sentence. On appeal, the appellant presents the following issue for review: whether the evidence produced at trial was sufficient to support both convictions. Following a review of the record and parties' briefs, we affirm the judgment of the trial court.

Morgan Lewis Ray vs. State
M1999-00531-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: W. Charles Lee
Morgan Lewis Ray appeals his conviction by a jury in the Bedford County Circuit Court of one count of driving under the influence, fifth offense, a class A misdemeanor, and one count of driving on a revoked license, second or subsequent offense, a class A misdemeanor. The trial court imposed a sentence of eleven months and twenty-nine days incarceration in the Bedford County Jail for driving under the influence, requiring service of one hundred percent of the sentence. The trial court also imposed a sentence of eleven months and twenty-nine days incarceration for driving on a revoked license, requiring service of seventy-five percent of the sentence. On appeal, the appellant presents the following issue for review: whether the evidence produced at trial was sufficient to support both convictions. Following a review of the record and parties' briefs, we affirm the judgment of the trial court.

State vs. Susan Blackburn
M1999-00295-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Donald P. Harris
The Defendant, Susan Blackburn, was charged with driving under the influence of an intoxicant and driving with a blood alcohol content of .10 percent or more. She was subsequently tried by jury in Williamson County and found guilty of third-offense driving under the influence. In this appeal as of right, the Defendant argues that the trial court erred by overruling her motion for mistrial based on prosecutorial misconduct, by improperly instructing the jury concerning the Defendant's level of blood alcohol concentration, by allowing the prosecutor to make improper remarks during closing arguments, and by improperly denying the Defendant's motion to suppress the results of her blood tests. We hold that the trial court properly overruled the Defendant's motion for mistrial based on prosecutorial misconduct, that the trial court properly instructed the jury with regard to the Defendant's blood alcohol concentration, that the trial court did not abuse its discretion by overruling the Defendant's objection to remarks made during closing arguments, and that the trial court did not err by overruling the Defendant's motion to suppress the results of her blood tests. Accordingly, we affirm the Defendant's conviction.

State vs. Robert D. Ring
E1999-02088-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: R. Jerry Beck
After pleading guilty to vehicular homicide by intoxication, a Class B felony, the trial court ordered the defendant to serve his eight-year sentence on intensive probation, in-house arrest circumstances, subject further to the following conditions: (a) zero use of alcohol; (b) not own or drive an automobile; (c) alcohol counseling after evaluation; (d) payment of liquidated restitution to the victim's family within twenty-four (24) months; (e) any other conditions deemed prudent after intake of the Probation Department. The State appeals and asserts that the trial court erred in placing this defendant on probation because the trial court failed to consider the victim's impact testimony at the sentencing hearing. We agree that the trial court misapplied the applicable law characterizing the victim's impact testimony as a "victim's impact statement" and unduly limited the consideration of such statement to enhancing and mitigating factors. However, after de novo review of the record, we affirm the trial court's judgment, after considering all evidence presented, including the victim's impact testimony, concluding that the factors favoring an alternative sentence, specifically intensive probation, clearly outweigh any factors favoring incarceration.

Daylon Demetric Roberts vs. State
E1999-02180-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Ray L. Jenkins
The Defendant was convicted of murder perpetrated in an attempt to commit a robbery. His conviction was affirmed on appeal to this Court, and the Tennessee Supreme Court denied permission to appeal. The Defendant subsequently filed a petition for post-conviction relief. After an evidentiary hearing, the trial court denied the petition. The Defendant now appeals the trial court's denial of post-conviction relief, arguing that conflicts with his attorneys prevented the attorneys from providing him effective assistance of counsel at trial and that the trial court forced him to proceed to trial despite those conflicts. Finding no error in the record before us, we affirm the judgment of the trial court.

State vs. Billy Joe Phillips,a.k.a. Billy Joe West, a.k.a Joseph L. Phillips
E1999-00542-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: E. Eugene Eblen
The defendant was convicted by a jury of one count of driving while his driver's license was revoked, one count of criminal impersonation, and was found guilty of violating the implied consent law. The defendant claims there was insufficient evidence introduced to support his convictions. After a careful review, we affirm the defendant's conviction of criminal impersonation and reverse and dismiss the defendant's conviction for driving on a revoked driver's license.

Jack P. Carr vs. David Mills, Warden
E2000-00156-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: E. Eugene Eblen
The petitioner sought writ of habeas corpus, alleging that he was entitled to relief because the judgments of conviction were not signed by the trial judge. We hold unsigned judgments do not render judgments void, such as entitles a defendant to habeas corpus relief. We affirm the trial court's dismissal.

State vs. Greg Hartman
E2000-00685-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Thomas W. Graham
The Defendant was convicted by a Rhea County jury of attempt to commit kidnapping. The Defendant now appeals arguing that there was insufficient evidence presented at trial to convict him of attempt to commit kidnapping. Finding no error, we affirm the judgment of the trial court.

State vs. Matthew Johnston
E1999-00496-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: E. Eugene Eblen
A Roane County jury convicted the Defendant of theft of an automobile valued at greater than $1,000.00, a Class D felony. He now appeals, arguing that the trial court erred in failing to instruct the jury on the lesser-included offense of unauthorized use of an automobile. We conclude that the trial court erred in failing to instruct the jury on the requested lesser-included offense but that the error was harmless beyond a reasonable doubt. Therefore, we affirm the judgment of the trial court.

State vs. Shannon Prier
W1999-01436-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Joseph H. Walker, III
The defendant appeals her conviction for theft over $1,000 for which she received a two-year suspended sentence. The defendant comes before this court raising the following issues: 1) whether the evidence was sufficient to support her conviction; and 2) whether the trial court properly denied her petition for judicial diversion. We affirm the judgment of the trial court.

State of Tennessee v. Carlos Mcdonald
W1999-01459-CCA-R3-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: Chris B. Craft