APPELLATE COURT OPINIONS

The defendant, Chrystal Tollison, appeals her White County Criminal Court guilty-pleaded conviction of child neglect, claiming that the trial court erred by denying her bid for judicial diversion.  Discerning no error, we affirm.

The Defendant, Henri Brooks, entered a guilty plea to a charge of making a false entry on an election document, a Class D felony. The Defendant, who was completing a term as a County Commissioner for Shelby County at the time of the offense, listed an incorrect address on a document related to her bid for the position of Shelby County Juvenile Court Clerk. The trial court held a sentencing hearing during which the primary contested issue was the Defendant‘s request for judicial diversion. The trial court ultimately denied diversion and instead sentenced the Defendant to two years of probation. On appeal, the Defendant argues that the trial court abused its discretion in denying diversion because it failed to weigh the factors it was required to consider in denying diversion, because it relied on improper evidence in making the decision, and because the denial was in part based on the Defendant‘s exercise of her First Amendment rights. After a thorough review of the record, we conclude that the trial court improperly relied on evidence outside the record in reaching its decision. Accordingly, we reverse the denial of diversion, and we remand for a new sentencing hearing.

The petitioner, Gloria House, appeals the summary dismissal of her motion to reopen her petition for post-conviction relief or, in the alternative, petition for writ of error coram nobis, which pleading challenged her 1993 convictions of nine counts of aggravated burglary, three counts of felony theft, and seven counts of misdemeanor theft. Discerning no error, we affirm the summary dismissal of the petition.

Following a jury trial, the Defendant, Gerald Lamont Byars, was convicted of attempted possession of 0.5 grams or more of cocaine with intent to sell, attempted possession of 0.5 grams or more of cocaine with intent to deliver, simple possession of marijuana, and possession of drug paraphernalia. The jury also found that the two attempted cocaine possession offenses constituted criminal gang offenses, and the Defendant received enhanced punishment—a sixteen-year sentence, with the attempted cocaine possession counts and the gang enhancement counts all being merged into a single conviction. He now appeals as of right, arguing (1) that the evidence was insufficient to support his attempted cocaine possession convictions and the gang enhancement violations; (2) that the trial court erred by qualifying a Haywood County Sheriff's Officer as an expert in gang activity; (3) that the gang enhancement statute, Tennessee Code Annotated section 40-35-121, is unconstitutional, entitling him to plain error relief; and (4) that his sixteen-year sentence is excessive. Following our review of the record, we ascertain no error in the guilt phase of the trial on the underlying attempted cocaine possession offenses in Counts 1 and 2. However, because the criminal gang enhancement statute as employed by the State in the guilt phase of the trial on Counts 5 and 6 violates the Due Process Clause of the Fourteenth Amendment and is facially unconstitutional, plain error requires us to reverse the judgments of the trial court in Counts 1, 2, 5, and 6, vacate and dismiss the criminal gang enhancements in Counts 5 and 6, and remand for modification of the judgments in Counts 1 and 2 and a new sentencing hearing on those counts. Because the Defendant does not challenge his misdemeanor convictions or sentences in Counts 3 and 4, those judgments are affirmed.

The Defendant, Fred Birchfield, was found guilty by a Morgan County Criminal Court jury of second degree murder, a Class A felony, and reckless homicide, a Class D felony. See T.C.A. §§ 39-13-210 (2014) (second degree murder), 39-13-215 (2014) (reckless homicide). The trial court sentenced the Defendant to consecutive terms of eighteen years for second degree murder and three years for reckless homicide, for an effective twenty-one-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his second degree murder conviction and (2) the trial court erred by failing to grant his motion for a change of venue. We affirm the judgments of the trial court.

The Petitioner, Daniel Adam Barnes, filed in the Cheatham County Circuit Court a petition for post-conviction relief from his conviction of violating Tennessee Code Annotated section 39-13-111 and the accompanying sentence of eleven months and twenty-nine days. The Petitioner alleged that his counsel was ineffective by failing to challenge the sufficiency of the evidence on direct appeal. The post-conviction court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

The Appellant, Charles R. Presley, appeals the trial court’s revocation of his probation and its order that he serve his eight-year sentence for identity theft in confinement. The Appellant contends that the evidence was not sufficient to show that he “was actually on probation, what the probation conditions were, or whether he was advised of his probation conditions.” Upon review, we affirm the judgment of the trial court.

The Petitioner, Mansour Bin El Amin, filed a petition for post-conviction relief from his conviction of theft of property valued at $1,000 or more but less than $10,000. In the petition, the Petitioner alleged that his trial counsel was ineffective. The Petitioner also filed a motion for the post-conviction court to approve funds for a private investigator to locate witnesses for the Petitioner’s case. The post-conviction court denied the petition and the motion, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

A jury convicted the Defendant, David Banks, of attempted rape of a child, a Class B felony; two counts of aggravated sexual battery, Class B felonies; and one count of child abuse, a Class A misdemeanor, for crimes he committed against two child victims. The Defendant appeals, asserting that the evidence is insufficient to support the verdicts. The Defendant also asserts that the trial court erred in refusing to permit an employee of the Department of Children's Services (“DCS”) to testify regarding a note she had written which stated that one of the victims had manifested behavioral issues, including lying. Because the evidence was sufficient to allow a rational trier of fact to convict the Defendant and because there was no error in the exclusion of the evidence, we affirm the judgments of the trial court.

The Defendant, Christopher Allen, entered a guilty plea to one count of aggravated burglary, a Class C felony, with sentencing to be determined by the trial court. At the sentencing hearing, the trial court found that the Defendant was a Range I standard offender and imposed a five-year prison sentence to be served consecutively with a prior eleven-month and twenty-nine-day sentence. The trial court also required the Defendant to pay restitution to his victim. The Defendant appeals the trial court's denial of alternative sentencing. We conclude that the trial court did not err in sentencing the Defendant to a term of imprisonment. Accordingly, we affirm the judgment of the trial court.

The Petitioner, Cedric Mims, appeals the denial of his petition for post-conviction relief in which he challenged his convictions of felony murder, especially aggravated robbery, and attempted voluntary manslaughter and his effective sentence of life in prison. On appeal, the Petitioner contends that he was denied his right to the effective assistance of counsel. We affirm the post-conviction court's denial of relief.

The Defendant, Christopher Bostick, was found guilty by a Shelby County Criminal Court jury of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony. See T.C.A. §§ 39-15-522 (2014), 39-13-504 (2014). The trial court sentenced the Defendant to consecutive terms of twenty-five years for rape of a child and nine years for aggravated sexual battery, for an effective sentence of thirty-four years at 100% service. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred by limiting his cross-examination of the victim’s sister and the forensic interviewer. We affirm the judgments of the trial court.

Gregory D. Valentine, Sr., (“the Petitioner”) entered a “best interest” plea to twenty counts of identity theft, six counts of criminal simulation, and one count each of forgery, theft of property valued between $10,000 and $60,000, and money laundering. The Petitioner received an effective sentence of twelve years and eight months; he was ordered to serve thirty-two months with a seventy-five percent release eligibility in the county jail and ten years with a thirty percent release eligibility on probation. The Petitioner filed three pro se motions to set aside his guilty pleas, which the trial court summarily denied. The Petitioner appealed, and this court reversed and remanded for a hearing on the motions to set aside the Petitioner’s guilty pleas. On remand, the trial court denied the Petitioner’s motions. The Petitioner appealed, and this court affirmed the trial court’s denial. The Petitioner then filed a petition for post-conviction relief, which the post-conviction court summarily denied. The Petitioner appealed the denial, and this court reversed and remanded for a hearing on the issue of ineffective assistance of counsel. After this court remanded this case, the Petitioner filed a motion to recuse, which the post-conviction court denied after a hearing. The post-conviction court held an evidentiary hearing on the Petitioner’s petition for post-conviction relief and denied relief. On appeal, the Petitioner argues that the post-conviction court erred in denying post-conviction relief and by denying his motion to recuse. After a thorough review of the record and applicable case law, we affirm.

The Petitioner, Christopher D. Hodge, appeals the Lauderdale County Circuit Court's summary dismissal of his petition requesting DNA analysis of evidence pursuant to the Post-Conviction DNA Analysis Act of 2001. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The Petitioner, Kenneth Gaines, appeals the Shelby County Criminal Court's summary denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Because the motion failed to state a colorable claim for relief, we affirm the judgment of the trial court.

The Petitioner, Alfonso Chalmers, appeals the denial of his petition for the writ of error coram nobis in which he challenged his conviction for premeditated first degree murder and resulting sentence of life in prison. The Petitioner filed a petition for the writ of error coram nobis, alleging that newly discovered mental health records reveal that he was diagnosed as psychotic and, therefore, unable to be convicted for premeditated first degree murder. The coram nobis court summarily dismissed the petition, finding that it was time-barred, was meritless, and raised issues previously determined by this court. Following review of the record and applicable law, we affirm the judgment of the coram nobis court in accordance with Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

The Petitioner, Miko Burl, appeals the trial court’s denial of his motion for the correction of an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Following review of the record and applicable law, we affirm the judgment of the trial court in accordance with Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

The Petitioner, Janell Morton, appeals the denial of her petition for post-conviction relief in which she challenged her guilty pleas to attempted first degree murder and especially aggravated kidnapping and her effective sentence of thirteen and one-half years. On appeal, the Petitioner contends that she was denied her right to the effective assistance of counsel and that as a result, her pleas were unknowing and involuntary. We affirm the post-conviction court’s denial of relief.

Defendant, Terry Sherrod, pled guilty in two separate cases to domestic assault and possession of a Schedule IV drug with the intent to sell or deliver. As a result of the guilty pleas, he received an effective sentence of four years to be served on Community Corrections. Subsequently, an affidavit and warrant were filed alleging Defendant violated the conditions of his sentence. After a hearing, the trial court revoked Defendant’s Community Corrections sentence and ordered him to serve the remainder of his original sentence of four years with credit for 580 days. Defendant appeals the revocation. After a review, we determine that the trial court did not abuse its discretion by determining that Defendant violated the terms of his Community Corrections sentence. Accordingly, the judgment of the trial court is affirmed. However, we remand the case for the entry of proper judgment forms for the charges that were dismissed as a result of the guilty plea.

The Defendant, Matthew Melton Jackson, pleaded guilty to one count of aggravated kidnapping, one count of aggravated robbery, one count of theft of property valued over $500, and two counts of aggravated rape, and the trial court sentenced him to an effective sentence of twenty-five years, to be served at 100%. This Court affirmed the Defendant’s sentence on appeal. State v. Matthew Melton Jackson, No. M2001-01999-CCA-R3-CD, 2003 WL 288432, at *1 (Tenn. Crim. App., at Nashville, Feb. 7, 2003), perm. app. denied (Tenn. May 12, 2003). The Defendant then unsuccessfully filed two petitions for post-conviction relief and two petitions for writs of habeas corpus, and this Court affirmed the lower courts’ denial of relief in each regard. The Defendant then filed a Tennessee Rule of Criminal Procedure 36.1 motion to correct his allegedly illegal sentence, which the trial court summarily dismissed. We affirm the trial court’s judgment.

Defendant, Juan Diego Vargas, was convicted by a Davidson County jury of first degree murder and sentenced to life imprisonment. On appeal, he challenges the sufficiency of the evidence. After a review, we affirm the judgment of the trial court. However, it appears that the trial court failed to enter a judgment form dismissing Count Three of the indictment. Accordingly, we remand for entry of a judgment form dismissing Count Three of the indictment.

The petitioner, Curtis Coleman, appeals the trial court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The petitioner has failed to state a colorable claim for relief under Rule 36.1; therefore, we affirm the summary dismissal of the petitioner’s motion pursuant to Rule 20, Rules of the Court of Criminal Appeals.

In 1991, the Defendant, Michael O. Brown, was convicted of sale of cocaine, and the trial court sentenced him to eleven years of incarceration.  In 1996, the Defendant was convicted of sale of cocaine, and the trial court sentenced him to twenty years of incarceration to be served consecutively to his sentence for the 1991 conviction.  In 2006, the Defendant filed a motion to correct an illegal sentence.  The trial court concluded that the Defendant’s 1991 sentence had been improperly enhanced, so it modified the sentence to eight years.  The trial court further concluded that this modification did not affect the Defendant’s sentence for his 1996 conviction.  After filing multiple motions to correct an illegal sentence from 2006 to 2008, the Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 in 2016, contending that his 1991 conviction was illegal and had been vacated, making the trial court’s use of it as an enhancement for his 1996 sentence improper.  The trial court dismissed the Defendant’s motion and denied his subsequent motion to reconsider.  The Defendant appeals, contending that his sentence for his 1996 conviction was improperly enhanced and that the trial court erred when it denied his motion to reconsider.  After a thorough review of the record, we affirm the trial court’s judgment.

In 2011, the Petitioner, Jermaine Burdette, entered a best interest plea to three counts of especially aggravated kidnapping and three counts of aggravated robbery, and the trial court sentenced him to 111 years of incarceration. This Court affirmed his conviction and sentences on direct appeal. State v. Jermaine Burdette, No. W2011-01938-CCA-R3-CD, 2012 WL 6726525, at *1 (Tenn. Crim. App., at Jackson, Dec. 26, 2012), perm. app. denied (Tenn. May 9, 2013). In 2014, the Petitioner filed a petition for post-conviction relief, alleging that he had received the ineffective assistance of counsel, that his plea was unknowingly and involuntarily entered, and that the State had violated Brady v. Maryland, 373 U.S. 83 (1963), by failing disclose exculpatory evidence until the day before trial. After a hearing, the post-conviction court denied relief. We affirm the post-conviction court's judgment.

The Petitioner, Austin Myles Tomlin, pleaded guilty to two counts of vehicular homicide by intoxication, and the trial court sentenced him to ten years for each count, to be served consecutively.  The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing.  On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition because his trial counsel was ineffective for failing to properly advise him regarding his guilty plea.  After review, we affirm the post-conviction court’s judgment.