APPELLATE COURT OPINIONS

In 2014, the Petitioner, Misty Ellis, pleaded guilty to robbery, and the trial court imposed the sentence agreed to by the parties of six years at 100%. In 2015, the Petitioner filed a petition for habeas corpus relief, contending that her release eligibility percentage was illegal because it was in direct contravention of the release eligibility statute, Tennessee Code Annotated section 40-35-501. The habeas corpus court dismissed the Petitioner’s petition for failure to comply with habeas corpus statutory filing requirements. On appeal, the Petitioner contends that the habeas corpus court erred when it dismissed her petition because she complied with the filing requirements and because her agreed-to sentence is illegal. The State counters that the habeas corpus court properly dismissed her petition because the judgment form does not show any illegality in the Petitioner’s plea-bargained sentence. After a thorough review of the record, we affirm the habeas corpus court’s dismissal of the Petitioner’s petition for habeas corpus relief.

In this appeal as of right by the State, the State challenges the ruling of the trial court dismissing the case as barred by the misdemeanor statute of limitations. Because no document in the record qualifies as a valid arrest warrant and no other event occurred to timely commence the prosecution in this case, we affirm the judgment of the trial court.

Defendant, Milta Blanchard, filed a motion under Tennessee Rule of Criminal Procedure 36.1 alleging that the judgments against him were illegal because he was out on bond in one of his cases when he was arrested on the three other cases. The trial court granted Defendant’s motion and vacated three of the judgments against him. The trial court determined that the judgment for the offense for which Defendant was on bond was not illegal as it occurred first in time. On appeal, Defendant argues that the trial court erred in correcting his illegal sentences on the concession of the State without first appointing counsel, holding a hearing, or providing him the opportunity to withdraw his plea. After review of the record and the briefs, we conclude that the trial court lacked authority to grant Defendant’s motion and that the judgments against Defendant should be reinstated.

In 2011, a Davidson County jury convicted the Petitioner, Trinidad Martinez Flores, of multiple offenses involving the possession and sale of more than 300 pounds of marijuana. The trial court sentenced the Petitioner to fifty-six years of incarceration. This Court affirmed the Petitioner’s convictions and sentence on appeal. State v. Trinidad Martinez Flores, No. M2012-00285-CCA-R3-CD, 2013 WL 3497644, at *1 (Tenn. Crim. App., at Nashville, July 11, 2011), perm. app. denied (Tenn. Nov. 13, 2013). The Petitioner filed a petition for post-conviction relief alleging that his trial counsel represented him ineffectively. After a hearing, the post-conviction court denied the petition. On appeal, the Petitioner contends his trial counsel failed to adequately represent him, noting that the Board of Professional Responsibility subsequently disbarred trial counsel for fraudulently billing the state. On appeal, we conclude that, considering the weight of the evidence, counsel’s representation did not prejudice the Petitioner. As such, the Petitioner is not entitled to relief.

Defendant, Cedric Jones, appeals his convictions for three counts of aggravated rape, one count of aggravated sexual battery, and one count of aggravated kidnapping and his total effective sentence of thirty-seven years. Defendant argues (1) that the evidence is insufficient to sustain his convictions; (2) that the trial court erred when it revoked his bond for failure to appear; (3) that the trial court erred when it denied his motions for recusal; (4) that the trial court erred when it did not allow Defendant to represent himself at trial; (5) that the State committed prosecutorial misconduct during closing argument; and (6) that the trial court erred during sentencing. Upon our thorough review, we affirm the judgments of the trial court.

The Defendant, Felicia Jones, was arrested without a warrant for driving under the influence (DUI) and possession of drug paraphernalia. The Defendant consented to a bench trial in Sullivan County General Sessions Court and was found guilty of both offenses. The Defendant then appealed to the Sullivan County Criminal Court. On appeal, the Defendant filed a motion to dismiss the charges against her, arguing that the affidavit of complaint filed after her arrest was void, that prosecution had never commenced in this matter, and that the applicable statute of limitations had expired. The trial court granted the Defendant's motion to dismiss, and the State now appeals. The State contends that the fact that the affidavit of complaint was sworn before a notary public rather than a qualified judicial officer was a mere technical defect that had “no impact on validity.” Following our review, we affirm the judgments of the trial court.

The Petitioner, Curtis Dwayne Staggs, appeals the Lawrence County Circuit Court’s denial of his petition for post-conviction relief from his convictions of first degree premeditated murder, first degree felony murder, and aggravated robbery and resulting effective sentence of life plus twelve years. On appeal, the Petitioner contends that he received the ineffective assistance of counsel because trial counsel failed to raise the statute of limitations as a defense against his aggravated robbery charge and because counsel failed to request a jury instruction cautioning the jury to evaluate the weight and credibility of a witness’s testimony in light of the witness’s agreement with the State. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The Petitioner, Michael E. Stewart, appeals the Polk County Criminal Court’s denial of his petition for post-conviction relief from his 2005 convictions for first degree premeditated murder, first degree felony murder, kidnapping, and tampering with evidence and his effective sentence of life plus eight years. The Petitioner contends that (1) the post-conviction court failed to make proper findings of fact and conclusions of law relative to each ineffective assistance of counsel claim and (2) he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

I dissent from the majority’s conclusion affirming the trial court’s denial of relief on the petitioner’s aggravated robbery conviction, which extends his life sentence an additional twelve years. With regard to this conviction, I agree with the petitioner’s argument that he received ineffective assistance of counsel based on trial counsel’s failure to raise the statute of limitations as a defense. Here, the petitioner’s indictment for aggravated robbery stated that the offense occurred on June 19, 1992. However, the indictment itself was not issued until July 29, 2010, eighteen years after the commission of the offense and ten years after the eight-year statute of limitations had expired. T.C.A. §§ 39-13-402(b), 40-1-101(b)(2). The indictment was untimely on its face because the prosecution commenced well after the expiration of the limitations period. Even though counsel explained that he did not raise the statute of limitation as a defense because it is “on hold” when “the defendant either lives out of state or conceals the crime[,]” our law requires the State to plead specific facts in the indictment to toll the statute of limitations. State v. Davidson, 816 S.W.2d 316, 318 (Tenn. 1991) (stating that the burden is on the State to “plead[] and prove[] that certain specific facts toll the statute of limitations”) (emphasis in original); see also State v. Tidwell, 775 S.W.2d 379, 389 (Tenn. Crim. App. 1989) (“When an indictment or presentment is brought after the expiration of the statute of limitations, it must be pleaded and proved that certain specific facts tolled the statute of limitations.”); State v. Thorpe, 614 S.W.2d 60, 65 (Tenn. Crim. App. 1980) (stating that in situations where a statute of limitations may be tolled, “the specific facts which toll the limitation period must be pleaded and proved”); State v. Comstock, 326 S.W.2d 669, 671 (Tenn. 1959) (“[W]here the indictment is brought after the period of limitations has expired, it must be pleaded and proved that certain specific facts toll the statute of limitations[.]”). The record shows that this was not done in this case.

The defendant, Marlin C. Goff, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2005 convictions of rape of a child and failure to appear. Discerning no error, we affirm.

Following a jury trial in Shelby County, Defendant, Dariun Bailey, was convicted of second degree murder, aggravated assault, and reckless endangerment. He received concurrent sentences of twenty-two years for second degree murder, three years for aggravated assault, and two years for reckless endangerment. On appeal, Defendant argues that the evidence was insufficient to support his convictions and that the State violated Brady v. Maryland by failing to notify him of the gunpowder residue kit and having the kit tested. After a thorough review of the record, we affirm the judgments of the trial court.

Following a jury trial, the Defendant, Brandan Dane Windrow, was convicted of aggravated assault involving the use or display of a deadly weapon, a Class C felony, and vandalism of property valued at $1,000 or more but less than $10,000, a Class D felony. See Tenn. Code Ann. §§ 39-13-102; -14-408; -11-105. He received a total effective sentence of fourteen years to be served at thirty-five percent. On appeal, he contends that the evidence was insufficient to prove that he acted intentionally or knowingly. Following our review, we affirm the judgments of the trial court.

In 2015, the Defendant, Kevin O’Donnell Stone, pleaded guilty to violating his probation in case numbers 2011-CR-486 and 2011-CR-103 and to possession of cocaine in case number 2013-CR-528. The trial court revoked the Defendant’s probation and ordered him to serve the balance of his three-year sentence in confinement. The trial court also sentenced the Defendant to a concurrent sentence of five years of incarceration for the possession of cocaine conviction. On appeal, the Defendant contends that the trial court erred when it ordered him to serve his sentences in confinement instead of ordering an alternative sentence. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgments.

The Defendant, Sharod Winford Moore, appeals as of right from his jury conviction for first degree premeditated murder. See Tenn. Code Ann. § 39-13-202. On appeal, the Defendant contends: (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred in overruling his motion for change of venue; (3) that the trial court erred in denying his request to present evidence of the victim’s propensity for violence; (4) that the trial court erred in denying his request to charge the jury with Tennessee Pattern Jury Instruction 42.09(a), designating Jason McCollum as an accomplice as a matter of law; (5) that the trial court erred in allowing an “incompetent” witness, Clifford Watkins, to testify; (6) that the trial court erred in denying a request to cross-examine Mr. Watkins regarding a previous arrest and subsequent determination by the Middle Tennessee Mental Health Institute that he was incompetent to stand trial; (7) that the trial court erred in denying his pre-trial motion to keep the State from eliciting testimony that the Defendant was a member of the Vice Lords gang; (8) that the prosecutor engaged in misconduct during closing argument “by misstating [the] law concerning the definition of reasonable doubt”; and (9) that the District Attorney General’s Office committed a Brady violation by providing defense counsel with “redacted ‘exculpatory’ witness statements,” foreclosing counsel’s ability to determine whether those “witness[es] could provide exculpatory testimony.” Following our review, we determine that the Defendant’s failure to timely file a motion for new trial results in waiver of all issues except for sufficiency of the evidence. Furthermore, we conclude that the evidence was sufficient to support the Defendant’s conviction. The judgment of the trial court is affirmed.

Defendant, Richard Wayne Ferguson, pled guilty to twenty-seven felonies and three misdemeanors for property-related crimes committed in November and December of 2014. As a result, he was sentenced to an effective sentence of twenty-seven years as a Range I, standard offender. Defendant appeals his convictions, arguing that the sentences imposed by the trial court are excessive. After a review, we determine that the trial court did not abuse its discretion in sentencing Defendant to an effective sentence of twenty-seven years.

The appellant, Jessica Tramel, pled guilty in the Washington County Criminal Court to theft of property valued $60,000 or more and received an eight-year sentence to be served in confinement. The trial court also determined that she owed $193,314.64 restitution. On appeal, the appellant claims that the trial court erred by denying her request for alternative sentencing and by applying only one-half of an insurance company's payment to the victim to the amount of restitution. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

The Defendant, Jessica Scronce, pleaded guilty to theft of property valued between $10,000 and $60,000. Pursuant to the plea agreement, the trial court sentenced the Defendant to six years as a Range I, standard offender. The sentence was suspended after 120 days to be served on weekends. A violation of probation warrant was subsequently issued, and, after a hearing, the trial court revoked the Defendant's probation and ordered service of the balance of the sentence in confinement. The Defendant appeals the trial court's order that she serve her sentence in confinement. We affirm the trial court's judgment.

DeMarcus Ant-Juan Nelson (“the Petitioner”) filed a pro se petition for post-conviction relief which included a request for permission to file a delayed application to appeal to the Tennessee Supreme Court pursuant to Tennessee Rule of Appellate Procedure 11 and other post-conviction relief claims. The post-conviction court entered a single order that granted the delayed appeal and dismissed the remaining claims. On appeal, the Petitioner argues that the post-conviction court erred when the court did not stay his remaining post-conviction claims pursuant to Tennessee Supreme Court Rule 28 until after the final disposition of the delayed appeal. After a review of the record and applicable law, the judgment of the post-conviction court is reversed in part, and this case remanded for further proceedings consistent with this opinion.

Defendant, Thomas Santelli, was convicted of one count of driving under the influence (DUI), one count of DUI second offense, and one count of violating the implied consent law. Defendant received a sentence of eleven months and twenty-nine days suspended to probation with all but 100 days to be served in periodic confinement pursuant to court order. Defendant raises the following arguments on appeal: (1) the trial court erred in excluding evidence of a prior traffic stop; (2) the trial court erred in allowing lay opinion testimony of Defendant's impairment; (3) the prosecutor committed prosecutorial misconduct during closing argument; (4) the evidence was insufficient to sustain his conviction; and (5) there was a constructive amendment to the indictment and a fatal variance between the indictment and the evidence presented at trial. Upon our review of the record, we affirm the judgments of the trial court but remand for reconsideration of the manner of service of Defendant's sentence.

The Appellant, Terrell Burgess, appeals as of right from the Shelby County Criminal Court's summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Appellant contends that his motion stated a colorable claim for relief; therefore, the trial court erred in summarily denying the motion. Discerning no error, we affirm the judgment of the trial court.

The Defendant-Appellant, Joshua Andrew Mansfield, entered a guilty plea to possession of marijuana with intent to sell or deliver in exchange for a sentence of one year of incarceration at thirty percent release eligibility and a $2,000 fine. As a condition of his plea, Mansfield reserved a certified question of law challenging the denial of his motion to suppress, which alleged that he was unconstitutionally seized and detained. Following our review, we affirm the judgment of the trial court.

The Defendant, Quadarius Deshun Martin, was convicted by a Madison County jury of two counts of aggravated assault, a Class C felony. See T.C.A. § 39-13-102. Following a sentencing hearing, the trial court imposed an effective sentence of five years in the Tennessee Department of Correction (TDOC). On appeal, the Defendant argues that the trial court misapplied the statutory enhancement and mitigation factors and improperly denied him an alternative sentence. Upon review, we affirm the judgments of the trial court.

William Jermaine Stripling (“the Defendant”) was convicted of two counts of sale of less than .5 grams of cocaine in a drug-free zone and two counts of delivery of less than .5 grams of cocaine in a drug-free zone. His convictions merged, leaving him with one conviction for sale of less than .5 grams of cocaine in a drug-free zone. In a bifurcated proceeding, the Defendant's sentence was enhanced pursuant to the criminal gang offenses enhancement statute, Tennessee Code Annotated section 40-35-121. On appeal, the Defendant argues that the criminal gang offenses enhancement statute is facially unconstitutional. Specifically, the Defendant contends that the criminal gang offenses enhancement statute violates due process because it is overly broad and void for vagueness and that it violates his First Amendment right to free association and expression. Additionally, the Defendant argues there was insufficient evidence to support his convictions. Upon review, we conclude that the criminal gang offenses enhancement statute is unconstitutional because it violates substantive due process. However, we hold that the evidence was sufficient to support the Defendant's convictions of sale and delivery of less than .5 grams of cocaine within a drug-free zone. The judgments of the trial court are affirmed in part, modified in part, and reversed in part.