APPELLATE COURT OPINIONS

This is a State appeal of the Hardin County Circuit Court’s grant of post-conviction relief. The Petitioner was convicted by a jury of various drug related offenses including sale of .5 grams or more of a Schedule II controlled substance within 1000 feet of a school zone, see Tenn. Code Ann. §§ 39-17-417(c)(1), 39-17-432(b)-(c), for which he received an effective sentence of 25 years with no parole. State v. Marlon Yarbro, No. W2015-00475-CCA-R3-CD, 2015 WL 5813383, at *3 (Tenn. Crim. App. Oct. 5, 2015), perm. app. denied (Tenn. Feb. 18, 2016). After his conviction was affirmed by this court, the Petitioner filed a pro se petition for post-conviction relief which did not include as grounds for relief that trial counsel was ineffective in advising the Petitioner of his sentence range or a due process claim based on the Petitioner’s rejection of a more favorable settlement offer from the State. Post-conviction counsel was appointed, and no amendments were filed. An evidentiary hearing was held, and the post-conviction court granted the Petitioner relief based on the evidence adduced at the post-conviction hearing. The State now appeals, raising the following issues: (1) whether the postconviction court may, on its own initiative, constructively amend a post-conviction petition; (2) if the constructive amendment were proper and if the basis for relief was that the petitioner’s rejection of the State’s plea offer was unknowing, whether that basis is a cognizable ground for post-conviction relief where there is no constitutional right to a knowing and voluntary rejection of a plea offer; and (3) if the constructive amendment were proper and if the basis for relief was ineffective assistance of counsel, whether the post-conviction court erred in granting relief where the court did not conduct the Strickland two-pronged analysis. Upon our review, we affirm the judgment of the postconviction court.

A Shelby County jury convicted Defendant, Maurice Gray, of aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, convicted felon in possession of a firearm, convicted felon in possession of a handgun, and evading arrest. Defendant received a total effective sentence of twenty-nine years. On appeal, Defendant argues the following: (1) the evidence was insufficient for a rational juror to have found Defendant guilty on all charges beyond a reasonable doubt; (2) the trial court erred in ordering partially consecutive sentence alignment; and (3) the trial court erred in failing to merge counts three, four, and five. After a thorough review of the facts and applicable case law, we affirm Defendant’s judgments of conviction but remand for merger of counts four and five.

The Defendant, Tyson Reed King, was found guilty by a Maury County Circuit Court jury of destroying, tampering with, or fabricating evidence and of unlawful possession of drug paraphernalia. See T.C.A. §§ 39-16-503 (2014) (destruction, tampering, or fabrication of evidence), 39-17-425 (2014) (unlawful possession of drug paraphernalia). The trial court sentenced the Defendant, a Range II offender, to serve nine years at 35% for destroying, tampering with, or fabricating evidence and to eleven months, twenty-nine days for unlawful possession of drug paraphernalia. The sentences were imposed to run concurrently. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

I join the majority in affirming the post-conviction court’s denial of the petitioner’s petition for post-conviction relief. However, I write separately to dissent from the majority’s holding that a hearing on a motion to withdraw a guilty plea, which a defendant files after sentencing but before the judgment becomes final, does not constitute a “critical stage” of the proceedings and, therefore, does not provide the constitutional right to the effective assistance of counsel.

The Petitioner, Oscar Armando Delgado, appeals the denial of his petition for post-conviction relief, arguing that trial counsel was ineffective for not fully advising him of the immigration consequences of his plea or providing him with a Spanish language interpreter, thereby rendering his guilty plea unknowing and involuntary. Following our review, we affirm the judgment of the post-conviction court.

The defendant, Kaylecia Woodard, was convicted of two counts of aggravated robbery and received an effective sentence of fifteen years. The sentence was vacated on appeal and the case was remanded for re-sentencing. On remand, the defendant was sentenced to ten years’ incarceration. On appeal the defendant contends the trial court erred in applying enhancement factor (2) and in improperly weighing the enhancement factor. Upon our review of the record, arguments of the parties, and pertinent authorities, we affirm the judgment of the trial court.

Defendant, Brandon Gillenwater, appeals from the Sullivan County Criminal Court’s judgment denying him alternative sentencing. Defendant’s counsel has filed a motion to withdraw from representation pursuant to Rule 22 of the Rules of the Tennessee Court of Criminal Appeals. We conclude that counsel’s motion is well-taken and, in accordance with Rule 22(F), affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Defendant, Jamal P. Hicks, was convicted of sexual battery in 2004. As a result of that conviction, Defendant was declared a registered sex offender and required to comply with the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004. T.C.A. § 40-39-201. et seq. In 2016, Defendant was convicted by a jury of falsifying a registration form, failing to report a change in circumstance on a registration form, and perjury. As a result, he received an effective sentence of three years. On appeal, Defendant argues that the trial court improperly admitted three exhibits at trial and that the evidence was insufficient to support the convictions. After a thorough review, we conclude that the trial court improperly admitted several exhibits at trial and, as a result, the evidence is insufficient to support the judgments. Consequently, Defendant’s convictions are reversed and vacated.

The Defendant, Joshua Cool, was convicted by a Knox County Criminal Court jury of two counts of first degree premeditated murder, first degree felony murder, two counts of second degree murder, and criminally negligent homicide. See T.C.A. §§ 39-13-202 (2014) (first degree murder); 39-13-210 (2014) (second degree murder); 39-13-212 (2014) (criminally negligent homicide). After the appropriate merger, the trial court sentenced the Defendant to concurrent sentences of life imprisonment for two first degree premeditated murder convictions and to two years’ confinement for criminally negligent homicide. On appeal, the Defendant contends that (1) the evidence is insufficient to support his first degree murder convictions, (2) the trial court erred by denying his motion to suppress evidence recovered during a warrantless search and his subsequent police statement, and (3) the trial court erred by admitting various evidentiary items. We affirm the Defendant’s convictions, but we remand the case to the trial court for the entry of a corrected second degree murder judgment to reflect the offense as a Class A felony.

The Appellant, Dinnie Merel Robertson, was convicted in the Lawrence County Circuit Court in case number 31906 of two counts of felony vandalism, carrying a firearm with the intent to go armed, and misdemeanor reckless endangerment. Subsequently, he pled guilty in the Lawrence County Circuit Court in case number 33049 to two counts of retaliation for past action. The Appellant received an effective four-year sentence in case number 31906 and an effective two-year sentence in case number 33049 to be served consecutively as ten months in confinement followed by supervised probation. The Appellant then was convicted in the Lawrence County Circuit Court in case number 33414 of selling one-half gram or more of methamphetamine and selling Clonazepam and received an effective ten-year sentence to be served in confinement and consecutively to the effective six-year sentence. The trial court also revoked the Appellant’s probation in case numbers 31906 and 33049 and ordered that he serve his sentences in those cases in confinement. In this consolidated appeal, the Appellant contends that the evidence is insufficient to support his convictions in case number 33414, that the trial court erred by ordering that he serve his effective ten-year sentence in that case consecutively to his prior sentences, and that the trial court erred by denying his request for probation. He also contends that the trial court erred by revoking his probation in case numbers 31906 and 33049 and ordering that he serve those sentences in confinement. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court but remand the case for correction of the judgments.

The Petitioner, Thiermo Mamadou Diallo, filed a petition for writ of error coram nobis, seeking relief from his conviction of statutory rape, which was the result of a guilty plea, based upon the victim’s recantation of her allegations against him. The Petitioner acknowledged that the petition was untimely but alleged that due process justified tolling the statute of limitations. After a brief hearing on the issue, the coram nobis court dismissed the petition. On appeal, the Petitioner challenges this ruling. Upon review, we affirm the judgment of the coram nobis court.

Following a trial, a Shelby County jury found Defendant, Willie Mitchell, guilty of aggravated robbery and aggravated burglary. The trial court sentenced Defendant, as a career offender, to a total effective sentence of forty-five years in the Tennessee Department of Correction. On appeal, Defendant challenges both the sufficiency of the evidence as it relates to his conviction for aggravated robbery and the sentence imposed by the trial court. Following a thorough review, we affirm the judgments of conviction.

The Petitioner, Derrick Chambers, appeals from the denial of his petition for postconviction relief, wherein he challenged the validity of his guilty plea to attempted first degree murder. On appeal, the Petitioner alleges that he received ineffective assistance from his trial counsel because trial counsel (1) “failed to adequately investigate, or prepare for trial, develop defenses, speak to witnesses, file motions, or meet with the [Petitioner] to prepare for trial”; (2) “failed to object to raise a statutory claim with respect to charging him with attempted murder by using a firearm and employing a firearm in the commission of the same offense”; and (3) coerced him into pleading guilty by providing incorrect advice. The Petitioner further contends that, but for trial “counsel’s ineffective representation,” he “would have received a greatly reduced sentence.” After a thorough review of the record, we affirm the judgment of the postconviction court.

The petitioner, Larry Wade, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel upon the entry of his guilty plea and during the subsequent hearing on the motion to withdraw his guilty plea. Following our review, we affirm the denial of the petition and further conclude the petitioner does not have a constitutional right to effective assistance of counsel during a hearing on a motion to withdraw a guilty plea after sentence has been imposed.

The petitioner, Richard Bryant Long, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

The Appellant, Anita H. Lane, pled guilty to theft of property valued $60,000 or more but less than $250,000, a Class B felony, with the trial court to determine the length and manner of service of the sentence. After a sentencing hearing, the trial court sentenced her as a Range I, standard offender to eleven years in confinement and ordered that she pay restitution to the victim in the amount of $255,033.05. On appeal, the Appellant contends that the trial court erred by ordering that she pay $255,033.05 in restitution when she had no ability to pay that amount and that the trial court erred by finding that she had made no effort to pay restitution to the victim when she paid the victim’s insurance carrier $100,000. The State concedes that the trial court erred by ordering restitution without making findings on the Appellant’s ability to pay but argues that the trial court properly rejected her $100,000 payment to the insurance company as a basis for mitigation. Based upon the oral arguments, the record, and the parties’ briefs, we agree that the trial court failed to make findings regarding the Appellant’s ability to pay restitution. Therefore, we reverse the trial court’s ordering that the Appellant pay $255,033.05 and remand the case for further proceedings consistent with this opinion. The judgment of the trial court is affirmed in all other respects.

Defendant, John Sears, was convicted at trial of theft of property over the value of $60,000 for his theft of ownership interest in three real properties owned by family members. On appeal, Defendant argues that: (1) the evidence was insufficient for a rational juror to have found him guilty of theft of property over the value of $60,000 beyond a reasonable doubt; (2) the trial court erred in admitting lay witness testimony regarding the value of the stolen real property; and (3) cumulative error warrants the grant of a new trial. After a thorough review of the facts and applicable case law, we affirm the trial court’s judgment.

The defendant, Troy Anthony Lozano, appeals his Montgomery County Circuit Court jury convictions of simple possession of marijuana, possession of drug paraphernalia, operating a motor vehicle without two operable tail lights, and violation of the registration law. In this appeal, the defendant challenges the sufficiency of the convicting evidence and the denial of his motion to suppress. Discerning no error, we affirm.

The Petitioner, Christopher Lewis, appeals from the Putnam County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance from his trial counsel because trial counsel (1) failed to call several witnesses at trial; and (2) failed to introduce evidence “of the weather during the weekend” of the victim’s death and “additional evidence . . . regarding . . . a large hole” in the backyard of the Petitioner and victim’s home. Following our review, we affirm the judgment of the post conviction court.

A Shelby County jury convicted the Defendant, Robert Burnette, of attempted first degree premeditated murder, employment of a firearm during the commission of a dangerous felony, and being a felon in possession of a weapon. The trial court sentenced the Defendant to life without the possibility of parole. On appeal, the Defendant claims that the trial court erred when it allowed an undisclosed and incompetent witness to testify, and that the evidence is insufficient to sustain his conviction for attempted first degree premeditated murder. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

A Dyer County jury convicted the Defendant, Raymond B. Thomas, of two counts of sale of dihydrocodeinone, a Schedule III controlled substance commonly referred to as Hydrocodone, within 1,000 feet of a school zone and sale of a controlled substance obtained through TennCare. The trial court sentenced the Defendant to concurrent terms of six years for each of his sale of dihydrocodeinone convictions and two years for the sale of a controlled substance obtained through TennCare conviction. On appeal, the Defendant asserts that the evidence is insufficient to support his convictions for sale of dihydrocodeinone within 1,000 feet of a public elementary school. After review, we affirm the trial court’s judgments.

The Appellant, AAA Bonding Company, executed as surety an appearance bond for a defendant charged with theft, following which a general sessions court judge issued a conditional order of forfeiture. The Appellant appealed to the circuit court, which remanded the case to the lower court for entry of a final judgment. The Appellant filed a notice of appeal with this court. After review, we dismiss for lack of appellate jurisdiction.

The Appellant, Durwin L. Rucker, pled guilty in the Cheatham County Circuit Court to violating an order declaring him to be a motor vehicle habitual offender and driving under the influence (DUI) and received an effective four-year sentence to be served as sixty days in jail and the remainder on supervised probation. Subsequently, the trial court revoked his probation. On appeal, the Appellant contends that the trial court erred by ordering that he serve his effective four-year sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

A Maury County Circuit Court Jury convicted the Appellant, Aspyn Riner, of aggravated perjury, a Class D felony, and the trial court sentenced her as a Range I, standard offender to two years, six months to be served as six months in confinement and the remainder on supervised probation. On appeal, the Appellant claims that the trial court erred by denying her requests for judicial diversion and full probation and by ordering that she serve four calendar months in confinement before being eligible to earn good time credits. The State acknowledges that the trial court could not preclude the Appellant from earning good time credits but argues that the court properly sentenced her in all other respects. We agree with the State. Accordingly, the trial court’s denials of judicial diversion and full probation are affirmed, but the court’s ordering four months of confinement before becoming eligible for good time credits is reversed. The case is remanded to the trial court for correction of the judgment to so reflect.

The defendant, William Cole Nicholson, appeals his Montgomery County Circuit Court jury conviction of aggravated sexual battery. He challenges the sufficiency of the evidence supporting the element of unlawful sexual contact and the weight of the evidence supporting the guilty verdict. Discerning no error, we affirm.