APPELLATE COURT OPINIONS

Following a jury trial in the Dyer County Circuit Court, Defendant, Daniel McCaig, was found guilty of misdemeanor theft. Defendant appeals this conviction. The theft charge was in Circuit Court by virtue of Defendant’s appeal from a conviction for the offense following a bench trial in the Dyersburg Municipal Court. The Dyersburg Municipal Court also partially revoked Defendant’s probation in an unrelated offense. Defendant appealed both judgments to the Circuit Court for de novo review. Defendant was sentenced by the Circuit Court to serve 11 months and 29 days in the Dyer County Jail for the theft conviction. The Circuit Court judge (hereinafter “trial judge”) also revoked his probation on the other case and ordered him to serve that sentence concurrently with the sentence for theft. Defendant has also appealed to this court the revocation of probation. In this appeal, Defendant raises the following issues for our review: 1) the evidence was insufficient to support his theft conviction; and 2) his due process rights were violated by the State’s failure to provide written notice of the allegation against him which was the basis for the trial court’s revocation of probation. Having reviewed the record and the briefs of the parties, we conclude that the evidence was sufficient to support Defendant’s conviction for theft. We also conclude that the written notice to Defendant of his probation violation did not include the theft charge, and therefore, that ground cannot be a basis to revoke probation. Furthermore, the trial court failed to base its decision on a de novo review. Therefore, we affirm Defendant’s theft conviction and reverse the trial court’s revocation of Defendant’s probation, and dismiss the probation violation warrant.

The Defendant, Timothy Andrew Bishop, appeals his convictions for two counts of child abuse, a Class D felony.  The Defendant challenges the trial court’s admission of lay opinion testimony from a detective regarding the victim’s bruises, the prosecutor’s statements during closing argument, and the admission of a hearsay statement under the then existing state of mind exception. He also asserts on appeal that the trial court erred in admitting, under the excited utterance exception to the rule against hearsay, the victim’s statements at school that the Defendant was responsible for his bruises.  After a thorough review, we conclude that the hearsay statements admitted as excited utterances were admitted in error and that the error was not harmless.  Accordingly, we reverse and remand for a new trial.

The Petitioner, Larry Hunt, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his aggravated robbery, aggravated kidnapping, and aggravated rape convictions, for which he is serving an effective thirty-two-year sentence. He contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

The Petitioner, Maurice Dotson, appeals the Madison County Circuit Court's denial of his petition for post-conviction relief from his convictions of possessing marijuana with intent to sell and deliver, possessing a firearm during the commission of a dangerous felony, possessing drug paraphernalia, and theft of property valued under five hundred dollars and resulting effective eleven-year sentence. On appeal, the Petitioner contends that his guilty pleas were involuntary and that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The petitioner, Charles T. Hartley, appeals the denial of his petition for post-conviction relief. The petitioner, originally indicted for rape of a child, entered an Alford plea to the lesser offense of attempted aggravated sexual battery and received a sentence of ten years to be served on supervised probation. The petitioner filed a petition for post-conviction relief arguing: (1) the judgments in his case were illegal because they did not reflect the sentence of mandatory supervision for life; and (2) he received ineffective assistance of counsel. The post-conviction court dismissed the petition finding that it was barred by the statute of limitations and also ruled that if an appellate court concluded that the petition was not barred, that the petitioner received effective assistance of counsel. On appeal, the petitioner argues that the trial court erred when it dismissed his petition. Following our review, the judgment of the post-conviction court is affirmed.

In December 2014, the Madison County Grand Jury indicted Jakeil Malik Waller (“the Defendant”) and the Defendant’s brother, Jernigal Blackwell, for second degree murder and aggravated assault. Following a trial, a jury convicted the Defendant of second degree murder and felony reckless endangerment, as a lesser included offense of aggravated assault, and the trial court sentenced the Defendant to an effective sentence of twenty-seven years’ incarceration. On appeal, the Defendant contends that: (1) the evidence was insufficient to support his conviction for second degree murder; (2) the prosecutor committed misconduct during closing argument; and (3) the trial court abused its discretion by admitting two photographs of the victim that were not relevant to any issue at trial. Upon review, we affirm the judgments of the trial court.

The trial court summarily dismissed the Appellant’s “motion for new trial or evidentiary hearing on the grounds of ineffective assistance of counsel.”  The trial court properly treated the pleading as a subsequent petition seeking post-conviction relief and denied the same without a hearing.  The trial court’s ruling is hereby affirmed.

Sherry Ann Claffey (“the Defendant”) entered a no contest plea to two counts of vehicular homicide as a result of reckless conduct. Following a hearing, the trial court denied judicial diversion, sentenced the Defendant to concurrent terms of five years on each count, and ordered the Defendant to serve 200 days in confinement and to serve the balance of her sentence on probation. On appeal, the Defendant argues that because the trial court failed to properly consider the factors  applicable to judicial diversion, no presumption of reasonableness should apply to the trial court’s denial of judicial diversion, and this court should conduct a de novo review of the record and grant judicial diversion. After a review of the record and applicable law, we conclude that because the trial court unduly considered irrelevant facts concerning the death  of victims and facts not supported by the proof concerning the Defendant’s prescription drug usage to support the three factors on which it relied to deny judicial diversion, no presumption of reasonableness applies. After reviewing the record de novo, we hold that judicial diversion should be granted to the Defendant and reverse the judgments of the trial court.

The Tennessee Supreme Court has remanded this case for reconsideration in light of State v. Willie Duncan, --- S.W.3d. ---, No. W2013-02554-SC-R11-CD, 2016 WL 6024007 (Tenn. Oct. 14, 2016). See State v. Angela Ayers, No. W2014-00781-CCA-R3-CD, 2015 WL 4366633 (Tenn. Crim. App. July 16, 2015) (“Ayers I”), perm. app. filed, case remanded (Tenn. Oct. 31, 2016). Relevant to the current remand, this court concluded in the previous appeal that the State‟s failures to identify the underlying dangerous felony in the indictment count related to employing a firearm during the commission of a dangerous felony and to charge a separate offense that was an enumerated dangerous felony rendered the indictment count relative to the employing a firearm during the commission of a dangerous felony defective. Upon further review, we conclude that in lieu of identifying the enumerated dangerous felony in the indictment count charging employing a firearm during the commission of a dangerous felony, the indictment must charge separately at least one enumerated dangerous felony in order to provide a defendant with adequate notice of the charged offense. Under the circumstances in this case, we conclude that the count charging employing a firearm during the commission of a dangerous felony is defective because it failed to provide the Defendant adequate notice of the charged offense. We affirm the judgments of the trial court relative to the voluntary manslaughter and false report convictions, but we reverse the employing a firearm during the commission of a dangerous felony judgment, vacate the conviction, and dismiss the charge.

The defendant, Hayden Daniel Rutherford, appeals his Sequatchie County Circuit Court guilty-pleaded conviction of robbery, claiming that the trial court erred by ordering that he serve his six-year sentence in confinement.  Discerning no error, we affirm.

A Davidson County Criminal Court Jury convicted the Appellant, Mark Brian Dobson, of five counts of especially aggravated kidnapping, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony.  After a sentencing hearing, he received an effective seventy-year sentence.  On appeal, the Appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court improperly denied his motion for a continuance, (3) the trial court erred by admitting into evidence a recorded telephone call in which his mother mentioned a stolen firearm, (4) the indictment for the charge of employing a firearm during the commission of a dangerous felony was defective for failing to name the underlying dangerous felony, (5) the trial court improperly instructed the jury on employing a firearm during the commission of a dangerous felony, and (6) his effective sentence is excessive.  Based upon the record and the parties’ briefs, we conclude that the Appellant’s sentence for employing a firearm during the commission of a dangerous felony in count eleven must be modified and remand the case to the trial court for correction of that judgment and to correct a clerical error on the judgment for count twelve.  The judgments of the trial court are affirmed in all other respects.

The Defendant, Candace Renee Bennett, pleaded guilty to attempted aggravated child neglect in exchange for an agreed eight-year sentence. The trial court ordered that the Defendant serve her sentence on probation and that her sentence run concurrently with a sentence in another case. The Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 contending that her sentence was illegal. She asked to withdraw her guilty plea and have the charges dismissed. The trial court denied her motion. On appeal, the Defendant contends that her sentence is illegal because it is not authorized by, and directly contravenes the criminal responsibility statute. After review, we affirm the trial court’s judgment.

The Petitioner, Rodney Glover, was convicted of conspiracy to commit aggravated burglary, aggravated burglary, conspiracy to commit theft of property over $10,000, aggravated robbery, aggravated kidnapping, and theft of property under $500 and was sentenced to fifty years of incarceration to be served at 100%. This Court affirmed the judgments and sentence on appeal. State v. Rodney Glover, No. M2011-00854-CCA-R3-CD, 2012 WL 1071716, at *1 (Tenn. Crim. App., at Nashville, Mar. 28, 2012), no perm. app. filed. In 2013, the Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. We affirm the post-conviction court’s judgment.

The Petitioner, Heather McMurry, appeals the post-conviction court's denial of her petition for post-conviction relief from her convictions of numerous drug offenses within 1,000 feet of a school zone and resulting effective twelve-year sentence with a mandatory eight years to be served in confinement. On appeal, the Petitioner contends that she received the ineffective assistance of trial counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The Petitioner, Jimmy Newell, appeals the dismissal of his habeas corpus petition in which he challenged the legality of his two convictions for theft of property between $1,000 and $10,000 and his effective four-year sentence concurrently and with parole eligibility after service of thirty percent of his sentence. After a thorough review of the record, we conclude that the petition was properly dismissed, and we affirm the judgment of the habeas corpus court.

The appellant, A-River City Bail Bond, Inc., appeals its suspension from writing bonds in the Thirtieth Judicial District due to its failure to comply with the local rules. The appellant argues that a local rule requiring the posting of at least $75,000 in cash or certificate of deposit with the Criminal Court Clerk does not apply to it and that the trial court failed to provide it with procedural due process when suspending its ability to write bonds. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Petitioner, Martrell Holloway, appeals the post-conviction court’s denial of post-conviction relief following an evidentiary hearing. The petition challenged Petitioner’s convictions for two counts of especially aggravated kidnapping, three counts of aggravated robbery, and one count of especially aggravated robbery. The convictions resulted from guilty pleas pursuant to a negotiated plea agreement with the Shelby County District Attorney’s Office which was approved by the trial  court for a total sentence of 18 years. After review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Defendant, Leo H. Odom, is appealing the trial court’s denial of his motion to correct an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

Defendant, Tony Ladd Meeks, is appealing the trial court’s order dismissing his motion to correct an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

The Defendant, Jeffrey Odom, appeals the trial court’s dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 due to the Defendant’s failure to appear at the scheduled hearing.  Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.

The Petitioner, Sheddrick Harris, appeals the Johnson County Criminal Court’s summary dismissal of his petition for a writ of habeas corpus from his 2010 first degree murder and especially aggravated robbery convictions and his effective sentence of life without the possibility of parole plus sixty years. The Petitioner contends that the habeas corpus court erred by denying relief because the trial court judge was without jurisdiction to preside over his trial after signing the search warrant executed by the police. We affirm the judgment of the habeas corpus court.

The Petitioner, James Ray Jones, Jr., pleaded guilty to possession of over seventy pounds of marijuana in a drug-free school zone and received a sentence of twenty-five years in the Department of Correction.  The Petitioner filed a post-conviction petition, and the post-conviction court denied relief following a hearing.  On appeal, the Petitioner maintains that his guilty plea was not voluntary because the State coerced the Petitioner into accepting the offer by threatening to prosecute his brother.  After review, we affirm the post-conviction court’s judgment.

The defendant, Kevin Patterson aka John O’Keefe Varner aka John O’Keefe Kitchen, appeals his Coffee County Circuit Court jury convictions of attempted second degree murder, aggravated assault, and possession of a firearm by a convicted felon, claiming that the trial court erred by refusing to sequester the jury, that the trial court should not have seated potential jurors who had served on the petit jury in a recent criminal trial, that the prosecutor’s closing argument was improper, and that the evidence was insufficient to support his conviction of attempted second degree murder.  Although we detect no error with regard to the defendant’s convictions, we find that the defendant’s sentence of life without the possibility of parole constitutes plain error because the State failed to comply with the notice requirements of Code section 40-35-120.  Accordingly, we affirm all of the defendant’s convictions as well as the five-year sentences imposed for the defendant’s convictions of aggravated assault and possession of a firearm by a convicted felon.  We reverse the trial court’s finding that the defendant was a repeat violent offender, vacate the sentence of life without the possibility of parole, and remand the case for resentencing within the appropriate sentencing range on the defendant’s conviction of attempted second degree murder.

Petitioner, Douglas Marshall Mathis, appeals the summary dismissal of his third petition for habeas corpus relief.  Because Petitioner’s claims have been previously litigated and are not cognizable in a habeas corpus proceeding, we affirm the summary dismissal of the petition for habeas corpus relief.

I concur with the lead opinion.  I write separately because I am sympathetic to the common sense approach that Judge Easter uses in the separate opinion (dissenting in part) to determine that the pre-trial notice substantially complied with the requirements of Tennessee Code Annotated section 40-35-120.  After all, the violent nature of the prior offenses, second degree murder and facilitation of second degree murder, should be obvious, and who knows better than the Defendant that there were separate periods of incarceration, even if the Defendant does not know the dates of those periods.  An argument could also be made that a reasonable statutory interpretation of Tennessee Code Annotated section 40-35-120(i)(2) is that “shall” is mandatory as it relates to “[t]he district attorney general[’s] fil[ing] a statement with the court,” but “shall” is “merely directory” as it relates to “set[ting] forth the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses.”  See Tenn. Code Ann. § 40-35-120(i)(2); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012).  In Myers v. AMISUB (SFH), Inc., our supreme court stated: “To determine whether the use of the word ‘shall’ in a statute is mandatory or merely directory, we look to see ‘whether the prescribed mode of action is of the essence of the thing to be accomplished.’”  Id. (citing 3 Norman J. Singer & J.D. Singer, Statutes and Statutory Construction § 57:2 (7th ed. 2008)); see alsoHoldredge v. City of Cleveland, 218 Tenn. 239, 402 S.W.2d 709, 713 (1966) (“[A] provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute . . . shows that the legislature intended a compliance with such provision to be essential to the validity of the act . . . , the statute must be regarded as mandatory.”).  Arguably, the essence to be accomplished by section 40-35-120(i)(2) is to place a defendant on notice that the state intends to seek to have him found to be a repeat violent offender and thereby face a sentence of life without possibility of parole.  If this statement is correct, then the other requirements are “merely directory” and substantial compliance should be sufficient.