Court of Criminal Appeals Opinions

Format: 05/17/2022
Format: 05/17/2022
Marlon Sontay v. State of Tennessee
M2020-01312-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jennifer Smith

The Petitioner, Marlon Sontay, appeals from the Davidson County Criminal Court’s denial of post-conviction relief from his convictions for rape of a child, aggravated sexual battery, and rape.  On appeal, the Petitioner contends that the post-conviction court erred by denying relief on his ineffective assistance of trial counsel claim.  We affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 03/22/22
Tavares Dewayne Buchanan v. State of Tennessee
M2021-00391-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Mark J. Fishburn

The petitioner, Tavares Dewayne Buchanan, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel.  Following our review, we affirm the post-conviction court’s denial of the petition.

Davidson County Court of Criminal Appeals 03/22/22
Marlon Jermaine Johnson v. State of Tennessee
M2021-00679-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jennifer Smith

The Petitioner, Marlon Jermaine Johnson, acting pro se, appeals the Davidson County Criminal Court’s summary dismissal of his petition for habeas corpus relief from his convictions for the sale of less than .5 grams of cocaine in violation of Tennessee Code Annotated section 39-17-417(c)(2)(A) and for possession with intent to sell .5 grams or more of cocaine in violation of Tennessee Code Annotated section 39-17-417(c)(1).  On appeal, the Petitioner argues his sentence is illegal because the trial court entered his judgment incorrectly, resulting in errors on the face of the judgment.  Upon our review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.

Davidson County Court of Criminal Appeals 03/22/22
State of Tennessee v. Jo C. Borden
W2021-00305-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Kyle C. Atkins

Jo C. Borden, Defendant, pled guilty in an open plea in case number 19-360-3 to two counts of retaliation for past action and, in case number 19-361-3, to one count of vehicular assault; three counts of reckless aggravated assault; one count of reckless endangerment with a vehicle; and three counts of driving on a revoked license. The trial court sentenced Defendant to an effective sentence of five years in case number 19-360-3 and to an effective sentence of ten years in case number 19-361-3, and it aligned the sentences in the two cases consecutively. On appeal, Defendant argues that the trial court improperly sentenced him as a Range III, persistent offender, that it erred by imposing a sentence of confinement, and that it abused its discretion by aligning his sentences consecutively. After a thorough review, we determine that the trial court did not abuse its discretion by imposing consecutive sentences or by denying alternative sentencing but that the trial court erred in sentencing Defendant as a Range III, persistent offender. Accordingly, we remand for resentencing consistent with this opinion.

Henderson County Court of Criminal Appeals 03/21/22
State of Tennessee v. Dashun Shackleford
E2020-01712-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Steven Wayne Sword

The Defendant-Appellant, Dashun Shackleford, was convicted by a Knox County Criminal Court jury as charged in a twenty-count indictment; four alternative counts each of aggravated robbery against four victims and four corresponding counts of criminal gang offense enhancement. The trial court merged the aggravated robbery convictions into four counts and imposed a total effective sentence of twenty years’ incarceration to be served at 85 percent. On appeal, the Defendant argues that (1) the evidence is insufficient to support his gang enhancement convictions; and (2) the gang enhancement counts violate his constitutional rights to due process and expressive association. Upon our review, we conclude that the State failed to sufficiently prove the gang enhancement counts and failed to comply with the notice requirements mandated by Tennessee Code Annotated § 40-35- 121(g). Accordingly, we reverse and vacate the judgments in Counts 13 through 16, and remand for resentencing as to those counts. Because the gang enhancements are no longer applicable to the Defendant’s case, we decline to address the constitutional questions raised in this appeal.

Knox County Court of Criminal Appeals 03/18/22
State of Tennessee v. McArthur Bobo
W2021-00650-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris Craft

The Defendant-Appellant, McArthur Bobo, was convicted by a Shelby County criminal court jury of second-degree murder in 2009. Following a remand from our supreme court, the trial court held a new hearing on the Defendant’s motion for new trial on May 12, 2021, which the trial court denied. On appeal, the Defendant contends that the trial court erred 1) in denying the motion for new trial because it was unable to act as thirteenth juror in determining the sufficiency of the evidence; 2) in failing to grant a mistrial or striking the testimony of a witness whose written statement was allegedly not provided to the Defendant; 3) in denying the Defendant’s motion to suppress; 4) in admitting jailhouse calls into evidence; 5) in allowing testimony that children were present near the shooting scene; and 6) in failing to grant a mistrial based on a totality of all errors. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 03/17/22
State of Tennessee v. Joshua V. Lowe
M2020-01480-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stella L. Hargrove

The Appellant, Joshua V. Lowe, pled guilty in the Maury County Circuit Court to theft of property valued at $10,000 or more but less than $60,000.  Pursuant to the plea agreement, the Appellant received a sentence of six years in the Tennessee Department of Correction and was placed on probation.  The trial court ordered restitution in the amount of $52,000 to be paid in monthly installments of $773.  On appeal, the Appellant contends that the trial court abused its discretion by failing to consider the Appellant’s ability to pay when setting the amount of restitution.  Upon review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 03/17/22
James A. McCurry v. State of Tennessee
W2021-00130-CCA-R3-PC
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Roy B. Morgan, Jr.

Petitioner, James A. McCurry, appeals the denial of his post-conviction petition, arguing that the post-conviction court erred in finding that he received the effective assistance of counsel at trial. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 03/16/22
Jerry P. Haley v. State of Tennessee
W2021-00777-CCA-R3-ECN
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Joe H. Walker, III

The petitioner, Jerry P. Haley, appeals the denial of his petition for writ of error coram nobis by the Lauderdale County Circuit Court, arguing the coram nobis court erred in summarily dismissing the petition because newly discovered evidence exists which is material to his case. After our review, we affirm the denial of the petition.

Lauderdale County Court of Criminal Appeals 03/16/22
Troy Springfield v. State of Tennessee
W2021-00462-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

The petitioner, Troy Springfield, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Madison County Court of Criminal Appeals 03/16/22
Rashad Dewayne Seay, Jr. v. State of Tennessee
M2020-01287-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Brody N. Kane

A Wilson County jury convicted the Petitioner, Rashad Dewayne Seay, Jr., of two counts of the sale of .5 grams or more of a Schedule II controlled substance, and the trial court sentenced him to consecutive sentences of eighteen years for each offense.  The Petitioner timely filed a petition for post-conviction relief, which the court summarily dismissed as untimely.  On appeal, we reversed the summary dismissal.  Rashad Dewayne Seay, Jr. v. State, No. M2017-01128-CCA-R3-PC, 2018 WL 3203442, at *1 (Tenn. Crim. App., at Nashville, June 29, 2018), no perm. app. filed.  On remand, the post-conviction court held an evidentiary hearing after which it filed a written order denying the Petitioner relief.  On appeal, the Petitioner contends that the post-conviction court erred because his trial counsel was ineffective for failing to ensure the Petitioner was present during the jury instructions, failing to ensure that the jury was properly instructed, failing to adequately investigate and prepare an identification expert, and failing to inform the Petitioner of the consequences of withdrawing his direct appeal.  After review, we affirm the post-conviction court’s judgment.

Wilson County Court of Criminal Appeals 03/15/22
State of Tennessee v. Misty Rose Brown
M2020-01721-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Stella L. Hargrove

The Defendant-Appellant, Misty Rose Brown, acting pro se, was convicted of one count of child abuse and neglect and one count of facilitation of rape of a child following a trial.  The trial court sentenced the Defendant to twelve years for the facilitation conviction and eleven months and twenty-nine days for the child abuse and neglect conviction, to be served concurrently.  The Defendant, again acting pro se, appeals her convictions and argues that the evidence is insufficient to sustain her convictions.  Upon review, we affirm the judgment of the trial court.

Giles County Court of Criminal Appeals 03/15/22
Clarence E. McCaleb v. State of Tennessee
E2021-00201-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Kyle A. Hixson

The Petitioner, Clarence E. McCaleb, appeals from the Knox County Criminal Court’s dismissal of his petition for post-conviction DNA analysis. The petition sought DNA testing of a fork found on the victim’s bedroom floor. The Petitioner now appeals, arguing that DNA analysis of the fork would result in a reasonable probability that he would not have been prosecuted or convicted if DNA profiles inconsistent with the Petitioner’s and the victim’s were discovered. Following our review, we affirm the judgment of the postconviction court.

Knox County Court of Criminal Appeals 03/10/22
Melvin R. King, III v. State of Tennessee
E2021-00037-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Melvin R. King, III, appeals the denial of his petition for post-conviction relief from his convictions and effective life sentence for first degree felony murder, aggravated burglary, employing a firearm during the commission of a dangerous felony, three counts of especially aggravated kidnapping, reckless aggravated assault, attempted especially aggravated robbery, and aggravated animal cruelty. The Petitioner alleges that trial counsel was ineffective for: (1) failing to pursue intoxication as a defense; (2) failing to file a motion to suppress the Petitioner’s police statement because he was intoxicated when he gave it; (3) failing to adequately cross-examine a victim-witness who tampered with evidence at the crime scene and who gave an inconsistent prior statement; (4) failing to discuss the evidence tampering and inconsistent statement in closing argument; and (5) failing to poll the jurors to ensure they were not influenced by an improper communication from one of the jurors to the District Attorney General. In addition, the Petitioner argues that the cumulative effect of these errors deprived him of a fair trial. We affirm.

Knox County Court of Criminal Appeals 03/10/22
State of Tennessee v. James David Duncan
E2020-01532-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jeffery Hill Wicks

The Defendant, James David Duncan, was convicted by a Morgan County Criminal Court jury of attempted second degree murder, a Class B felony, and aggravated assault, a Class C felony. See T.C.A. §§ 39-13-210 (Supp. 2017) (subsequently amended) (second degree murder), 39-12-101 (2018) (criminal attempt), 39-13-102(a)(l)(A)(i) (Supp. 2017) (subsequently amended). The trial court sentenced the Defendant to sixteen years for attempted second degree murder and to eight years for aggravated assault, with the sentences to be served concurrently to each other and consecutively to an Anderson County conviction. On appeal, the Defendant contends that ( 1) prosecutorial misconduct occurred during voir dire, opening statement, and closing argument, (2) he is entitled to plain error relief because the trial court failed to conduct a hearing pursuant to Tennessee Rule of Evidence 404(b) regarding prior bad act evidence, (3) the court erroneously instructed the jury, and (4) cumulative trial errors require relief. We affirm the judgments of the trial court.

Morgan County Court of Criminal Appeals 03/08/22
State of Tennessee v. Gary Wayne Garrett
M2021-00272-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steve R. Dozier

Gary Wayne Garrett filed a Tennessee Rule of Criminal Procedure 36 motion seeking correction of clerical errors in his judgments of conviction.  Mr. Garrett claimed that he was entitled to pretrial jail credit on various counts, several of which were ordered to be served consecutively.  The trial court issued a comprehensive written order finding that the judgments correctly awarded pretrial jail credit and dismissed the motion.  We determine that this appeal is frivolous and affirm the dismissal of the motion.

Davidson County Court of Criminal Appeals 03/08/22
Timothy A. Baxter v. Grady Perry
M2020-01654-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Chancellor Christopher V. Sockwell

The Petitioner, Timothy A. Baxter, appeals the summary dismissal of his petition for writ of habeas corpus.  Discerning no error, we affirm the judgment of the habeas corpus court.  

Wayne County Court of Criminal Appeals 03/08/22
Jayson Bryant Collier v. State of Tennessee
M2021-00209-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William R. Goodman III

The Petitioner, Jayson Bryant Collier, appeals the denial of his petition for post-conviction relief from his convictions for possession of one-half ounce or more of marijuana with the intent to sell or deliver within 1000 feet of a school, possession of a firearm with the intent to go armed during the commission of a dangerous felony, theft of property valued at five hundred dollars or less, unlawful possession of drug paraphernalia, driving on a revoked license, and speeding.  On appeal, he argues that he received ineffective assistance of counsel, that his sentence violates the Eighth Amendment to the United States Constitution and article I, section 16 of the Tennessee Constitution, and that his sentence is illegal under Tennessee Rule of Criminal Procedure 36.1.  After reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgment of the post-conviction court.    

Montgomery County Court of Criminal Appeals 03/08/22
State of Tennessee v. John Foxx
E2020-01711-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge G. Scott Green

Defendant, John Foxx, was convicted following a jury trial of sale of less than .5 grams of a Schedule II controlled substance, delivery of less than .5 grams of a Schedule II controlled substance, and simple possession. The trial court ordered Defendant to serve an effective fifteen-year sentence after application of the criminal street gang enhancement statute. On appeal, Defendant argues that the trial court erred in applying the criminal street gang enhancement statute because the statute is unconstitutional and because the evidence was insufficient to support application of the criminal street gang enhancement statute. Following our review of the entire record and the parties’ briefs, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 03/08/22
State of Tennessee v. Noel Maltese
M2020-00518-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Senior Judge Robert E. Lee Davies

The Appellant, Noel Maltese, was convicted in the Williamson County Circuit Court of conspiracy to commit theft of property valued $250,000 or more, a Class B felony, and criminal simulation, a Class E felony, and received an effective eight-year sentence to be served as forty-eight hours in jail followed by supervised probation.  On appeal, the Appellant contends that the evidence is insufficient to support the convictions and that the trial court erred by allowing the State to cross-examine her about a codefendant’s having to serve a lengthy prison sentence for similar conduct for which the Appellant was on trial.  Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Williamson County Court of Criminal Appeals 03/07/22
State of Tennessee v. Sterling White
E2021-00307-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven Sword

The Defendant, Sterling White was convicted by a Knox County Criminal Court jury of evading arrest, a Class E felony; reckless driving, a Class B misdemeanor; and leaving the scene of an accident, a Class B misdemeanor. See T.C.A. §§ 39-16-603 (2018) (subsequently amended) (evading arrest), 55-10-205 (2020) (reckless driving), 55-10-102 (Supp. 2017) (subsequently amended) (leaving the scene). The trial court sentenced the Defendant as a persistent offender to six years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred by denying his motion for a continuance. We affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 03/07/22
State of Tennessee v. Andrea Gonzalez Martinez
M2020-01648-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steve R. Dozier

The defendant, Andrea Gonzalez Martinez, pleaded guilty to felon in possession of a handgun, and the trial court imposed a sentence of sixteen years’ incarceration in the Tennessee Department of Correction.  On appeal, the defendant argues the trial court erred in denying his request for alternative sentencing.  After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.  

Davidson County Court of Criminal Appeals 03/07/22
State of Tennessee v. Vernell Evans
M2021-00963-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jennifer Smith

The petitioner, Vernell Evans, appeals the denial of his Rule 36.1 motion to correct an illegal sentence, asserting his sentences are illegal because the trial court incorrectly imposed 100% service requirements for each sentence.  Discerning no error, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/07/22
Danny Ray Lacy v. State of Tennessee
M2020-01644-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery Jr.
Trial Court Judge: Judge Christopher V. Sockwell

The Petitioner, Danny Ray Lacy, appeals the Wayne County Circuit Court’s summary dismissal of his petition for a writ of habeas corpus for his first degree murder conviction, for which he received a sentence of life imprisonment without the possibility of parole.  The Petitioner contends that the habeas corpus court erred by summarily dismissing his petition.  We affirm the judgment of the habeas corpus court.

Wayne County Court of Criminal Appeals 03/07/22
State of Tennessee v. Darius Henderson
W2020-01725-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Donald H. Allen

Defendant, Darius Henderson, was convicted following a jury trial of one count of theft of property valued over $2,500 but less than $10,000 (Count 1) and one count of evading arrest while operating a vehicle (Count 2). Based on Defendant’s prior Tennessee convictions and a Georgia conviction, the trial court sentenced Defendant as a Range III persistent offender to consecutive sentences of twelve years in Count 1, and six years in Count 2. On appeal, Defendant argues that the trial court erred in sentencing him as a Range III persistent offender because he had only four prior Tennessee felonies and the State did not submit proof that Defendant’s Georgia conviction qualified as a felony conviction in a foreign jurisdiction. See T.C.A. §40-35-107. Following our review, we reverse the judgment of the trial court and remand for Defendant to be sentenced as a Range II offender.

Madison County Court of Criminal Appeals 03/04/22