APPELLATE COURT OPINIONS

Following his arrest at a sobriety checkpoint on October 7, 2011, the Defendant, Kenneth Dwayne Mitchell, was indicted for driving under the influence (“DUI”), possession of drug paraphernalia, and driving with a blood alcohol content (“BAC”) of .08% or greater (“DUI per se”). See Tenn. Code Ann. §§ 39-17-425 & 39-17-425. Following a jury trial, the Defendant was convicted of DUI per se and acquitted of the remaining charges. In this appeal as of right, the Defendant contends that the trial court erred in denying his motion to suppress, arguing that his seizure at the sobriety checkpoint was unreasonable because adequate notice of the roadblock was not provided. Discerning no error, we affirm the judgment of the trial court.

Petitioner, Cayetano Flores, appeals the denial of his petition for post-conviction relief.  He argues that his trial counsel provided ineffective assistance by operating under a conflict of interest, inadequately discussing various aspects of the case and the details of the plea agreement, and failing to file a motion to sever.  After a careful review of the record, we affirm the prost-conviction court’s denial of post-conviction relief.

A Davidson County jury convicted the Petitioner, Joseph Dejuan Webster, of first degree premeditated murder, and the trial court sentenced him to life in prison.  The Petitioner appealed, arguing that there was newly discovered evidence.  This Court affirmed the Petitioner’s conviction.  State v. Joseph Dejuan Webster, No M2007-00050-CCA-R3-CD, 2008 WL 2229208, at *1 (Tenn. Crim. App., at Nashville, May 29, 2008), perm. app. denied (Tenn. Dec. 8, 2008).  In May 2014, the Petitioner filed a petition for writ of error coram nobis, alleging that one of the key witnesses against him at trial had recanted her trial testimony in a sworn statement.  The coram nobis court held a hearing, and, after expressing doubt as to the witness’s testimony, dismissed the petition for writ of error coram nobis.  On appeal, the Petitioner contends that the coram nobis court erred and asserts that he is entitled to coram nobis relief on the basis of the witness’s recanted testimony.  After a thorough review of the record and applicable authority, we affirm the trial court’s judgment.

The defendant, Steven J. Ballou, pled guilty to one count of evading arrest, a Class D felony, and received a sentence of five years to be served consecutively to a prior sentence. As part of his guilty plea, the defendant reserved two certified questions of law. In the first question, he argues that an eighteen-month pre-indictment delay caused substantial prejudice to his right to a fair trial and was an intentional delay by the State to gain a tactical advantage over the defendant. In the second, he contends that the loss of police cruiser dashboard camera videos that contained potentially exculpatory evidence violated his right to a fair trial. Following our review, we affirm the judgment of the trial court as to the first certified question of law and conclude that we do not have jurisdiction to consider the second certified question.

Petitioner, Douglas Zweig, was convicted in 1981 of attempt to commit a felony: to wit, third degree burglary.  See Tenn. Code Ann. § 39-603 (1975).  He was sentenced to serve eleven months, twenty-nine days in the Shelby County Correctional Center, but the trial court suspended his sentence to two years of probation after service of thirty days in confinement.  In 2014, he filed a motion under Tennessee Rule of Criminal Procedure 36, requesting that the trial court correct the judgment to reflect that he was convicted of a misdemeanor rather than a felony.  The trial court denied his petition.  Upon review, we conclude that petitioner’s conviction was a felony and, therefore, affirm the judgment of the trial court. 

In this appeal, pro se Petitioner Mario D. Thomas challenges the Hardeman County Circuit Court’s summary dismissal of his petition for writ of habeas corpus relief.  Upon our review, we affirm the judgment of the habeas corpus court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Defendant, Blake Edward Childress, was convicted by a Hamblen County Jury of incest. He was sentenced to six years in incarceration. On appeal, he argues that (1) the trial court improperly denied a motion to suppress; (2) the trial court improperly allowed introduction of evidence of prior bad acts; and (3) the evidence was insufficient to support the conviction. After a review, we determine Defendant properly invoked his right to counsel and, thereafter, was improperly subjected to continued discussion by a detective that produced an incriminating response. Consequently, the subsequent confession by Defendant was obtained in violation of his Fifth Amendment right to counsel, and the trial court should have granted the motion to suppress. We determine the subsequent introduction of the confession at trial was not harmless error, and the judgment of the trial court is reversed and remanded for new trial.

The Defendant, Corey Antuan Gray, was convicted by a Madison County Circuit Court jury of four counts of attempted first degree murder; four counts of aggravated assault; four counts of employing a firearm during the commission of a dangerous felony; and one count of evading arrest. Following a sentencing hearing, the trial court merged the attempted murder and aggravated assault convictions and sentenced the Defendant as a Range I, standard offender to consecutive sentences of twenty years for each count of attempted murder, six years for each count of employing a firearm during a dangerous felony, and one year and six months for evading arrest. On appeal, the Defendant argues that the evidence was insufficient to support all four of the convictions for attempted first degree murder and that his sentence is excessive. Upon our review, we affirm the judgments of the trial court.

Deangelo Jackson (“the Defendant”) was indicted with one count each of especially aggravated robbery, attempted second-degree murder, and employing a firearm during the commission of a dangerous felony. After a jury trial, the trial court entered judgments of conviction for especially aggravated robbery and facilitation of attempted second-degree murder and imposed an effective thirty-two-year sentence. On appeal, the Defendant raises two issues: (1) whether the evidence was sufficient to support his convictions and (2) whether the trial court erred when it held that the State would be allowed to impeach the Defendant’s testimony with evidence of his prior convictions for theft and felon in possession of a handgun. Discerning no error, we affirm the judgments of the trial court.

The Petitioner, Ronnie L. Johnson, appeals as of right from the Wilson County Criminal Court’s dismissal of his petition for a writ of error coram nobis.  The Petitioner contends that the coram nobis court abused its discretion in dismissing his petition.  Discerning no error, we affirm the judgment of the coram nobis court.

A Dickson County Circuit Court Jury convicted the appellant, James Denver Case, of first degree felony murder, aggravated robbery, a Class B felony, and aggravated burglary, a Class C felony, and the trial court immediately sentenced him to life in prison for the murder conviction.  After a sentencing hearing, the trial court sentenced him to eight years for aggravated robbery and three years for aggravated burglary with all of the sentences to be served concurrently.  On appeal, the appellant contends that the evidence is insufficient to support the convictions, that the trial court erred by instructing the grand jury in the presence of the jury venire, and that the trial court erred by allowing the deliberating jury to view a video in the courtroom without the appellant’s being present. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

The Appellant, Andre De'Lane Ross, appeals from the Hamilton County Criminal Court's denial of his Tennessee Rule of Criminal Procedure 36 motion for correction of a clerical error on the face of his possession of cocaine judgment. In this appeal, the Appellant submits that the trial court erred in denying his motion because, at the guilty plea hearing, the court found that his plea to this charge lacked a sufficient factual basis but a guilty judgment was, thereafter, erroneously entered. Based on our review, we dismiss the appeal.

Defendant, John Traion Davis, filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Upon our review of the record, we affirm the trial court’s summary dismissal for failure of Defendant to state a colorable claim.

The Defendant-Appellant, Thomas Mitchell, was convicted by a Shelby County jury of burglary of a building, a Class D felony. See Tenn. Code Ann. § 39-14-402(a)(1). As a Range III, persistent offender, he was sentenced to ten years in the Tennessee Department of Correction. On appeal, the Defendant-Appellant argues that the evidence was insufficient to support his conviction and that the trial court abused its discretion in applying certain enhancement factors. Discerning no reversible error, we affirm the judgment of the trial court.

Reluctantly and respectfully, I dissent from the majority opinion in this case. The Tennessee Rule of Criminal Procedure 36.1 movant in this case stated a colorable claim to relief, and based upon the current wording of the rule, that is all that is required. See Tenn. R. Crim. P. 36.1(b).

The Petitioner, Tyrone Musgrave, appeals from the denial of post-conviction relief arising from his guilty plea to one count of burglary, a Class D felony, and one count of retaliation for past action, a Class E felony. On appeal, he argues that he received ineffective assistance of counsel in relation to his guilty pleas because counsel did not spend adequate time meeting with him and failed to fully explain the consequences of his plea agreement. Upon review, we affirm the judgment of the post-conviction court.

The defendant, William Earl Starks, 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. Discerning no error, we affirm.

A Shelby County jury convicted Mario Norfleet and Terence Mitchell of theft of property valued at more than $60,000. The trial court sentenced Defendant Norfleet, as a career offender, to serve thirty years in the Tennessee Department of Correction. The trial court sentenced Defendant Mitchell, as a standard offender, to eight years suspended to ten years of probation after the service of ten months and twelve days in jail. On appeal, Defendant Norfleet asserts that: (1) the State made improper statements during closing argument to the jury; (2) there is a variance between the indictment and the evidence presented at trial; (3) the trial court failed to properly instruct the jury on the lesser-included offense of attempted theft; and (4) the trial court improperly sentenced Defendant Norfleet as a career offender. Defendant Mitchell also challenges the prosecutor's statements made during closing argument as improper, but additionally asserts that: (1) the evidence is insufficient to sustain his conviction; (2) the trial court improperly admitted testimony from a witness that referenced his gang affiliation; (3) the trial court improperly ordered restitution; and (3) the cumulative effect of these errors deprived him of a fair trial. After a thorough review of the record and applicable law, we affirm the trial court's judgments but remand for the entry of a corrected judgment pertaining to Defendant Mitchell's order of restitution.

The petitioner, Jerry Kevin Duke, appeals the denial of his petition for writ of error coram nobis, arguing that the statute of limitations should be tolled based on newly discovered evidence of new medical evidence and withheld exculpatory evidence of the child rape victim’s inconsistent statements.  The petitioner further argues that the newly discovered evidence may have resulted in a different verdict had it been presented at trial.  Following our review, we affirm the judgment of the coram nobis court denying the petition.

Defendant, Eugene Bernard Cuddy, III, was indicted in a three-count indictment by the Sullivan County Grand Jury for possession of Oxycodone, a Schedule II controlled substance, with intent to sell or deliver, possession of drug paraphernalia, and possession of Alprazolam, a Schedule IV controlled substance, with intent to sell or deliver. Defendant filed a motion to suppress evidence seized during a search of Defendant's person. Following a hearing, the trial court denied Defendant's motion to suppress. Defendant was convicted as charged. The trial court sentenced Defendant to an effective sentence of seven years' incarceration. In this appeal as of right, Defendant contends that: 1) the trial court erred by denying Defendant's motion to suppress; 2) the evidence is insufficient to sustain his convictions; 3) the trial court erred by instructing the jury that it could infer Defendant's intent from the amount of controlled substances Defendant possessed; and 4) the trial court abused its discretion in sentencing Defendant. Having reviewed the entire record and the briefs of the parties, we find no error. Accordingly, the judgments of the trial court are affirmed.

The Petitioner, Santos Castillo Mechado, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2013 convictions for kidnapping and attempted aggravated robbery.  The Petitioner contends that he received the ineffective assistance of counsel.  We affirm the judgment of the post-conviction court.

Petitioner, Daniel Wade Wilson, appeals the summary dismissal of his petition for a writ of habeas corpus. Petitioner alleges that his conviction for felony murder is void because the trial court violated the law of the case doctrine by merging the conviction for second degree murder into the conviction for felony murder in direct contravention of this Court’s directions upon remand of Petitioner’s direct appeal. Petitioner also alleges that his conviction for felony murder violates the constitutional protection against double jeopardy because he was already serving a sentence for the second degree murder conviction before he was retried for felony murder. Upon our review of the record, we find that the trial court did not violate the law of the case doctrine and that Petitioner has failed to provide an adequate record for review of his double jeopardy claim. Therefore, we affirm the judgment of the habeas corpus court.

The defendant, Kenneth Leigh McPeak, appeals the revocation of the probationary sentence imposed for his Rutherford County Circuit Court convictions of attempted rape.  Discerning no error, we affirm.

John Daniel Simmons (“the Defendant”) was indicted with two counts of sexual battery by an authority figure after he was alleged to have engaged in illegal sexual touching of K.L. Following a jury trial, the Defendant was convicted as charged.  On appeal, the Defendant argues that (1) the trial court erred when it permitted the State to call Daniel Burnell and Tony Pham as witnesses because the State did not give sufficient notice of its intent to call them as witnesses; (2) the trial court erred when it permitted David Estes to testify about hearsay statements made by Dewanna Williams; and (3) the evidence was insufficient to support his convictions.  Upon review of the record and applicable law, we conclude that the trial court committed reversible error when it permitted Mr. Pham to testify after allowing the Defendant only a few minutes in the middle of trial to speak with him.  Additionally, we conclude that the trial court committed reversible error when it admitted hearsay within hearsay during Mr. Estes’s testimony.  We reverse the judgments of the trial court and remand the case for a new trial. 

Petitioner, Khalfani Marion, was convicted of four counts of aggravated robbery, a Class B felony, and one count of especially aggravated kidnapping, a Class A felony. After merger of the four counts of aggravated robbery into two counts of aggravated robbery, the trial court imposed consecutive sentences of twenty years for the especially aggravated kidnapping conviction and nine years for each aggravated robbery conviction. Following petitioner's unsuccessful direct appeal, he filed a petition for post-conviction relief. The post-conviction court held an evidentiary hearing and denied relief. Appealing therefrom, petitioner raises eight instances of ineffective assistance of counsel: (1) whether trial counsel reasonably investigated petitioner's case; (2) whether trial counsel erred in failing to file a motion to sever petitioner's case from his codefendants; (3) whether trial counsel erred by failing to have petitioner sentenced under the 1989 Sentencing Act as written prior to the 2005 amendments; (4) whether trial counsel failed to object to the trial court's decision not to instruct the jury on facilitation; (5) whether trial counsel erred by failing to introduce evidence of petitioner's mental health history; (6) whether trial counsel failed to advise petitioner of the State's plea offer and sentence exposure; (7) whether trial counsel failed to impeach the State's witnesses on their identification of petitioner; and (8) whether trial counsel erred in failing to present mitigating evidence at the sentencing hearing. Following our review, we affirm the judgment of the post-conviction court.