APPELLATE COURT OPINIONS

Appellant, Derron Guy, pleaded guilty to two counts of carjacking, one count of aggravated robbery, two counts of employing a firearm during the commission of a dangerous felony, one count of attempted carjacking, and one count of possession of a firearm with the intent to go armed during the attempt to commit a felony. Pursuant to the terms of his guilty plea, he received an effective sentence of 22.2 years in confinement. In this motion to correct an illegal sentence, filed pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, he argues that: (1) his effective sentence extends beyond that permitted by statute; (2) his plea improperly “coupled” different offender ranges within the same proceeding; and (3) the trial court's failure to sever the offenses rendered his sentence illegal. The trial court summarily dismissed the motion for appellant's failure to state a colorable claim. We affirm the judgment of the trial court.

A Davidson County jury found the Petitioner, James Arthur Johnson, guilty of two counts of first degree felony murder and one count of aggravated robbery.  The trial court sentenced the Petitioner to a total effective sentence of life plus eleven years in the Tennessee Department of Correction.  On appeal, this Court affirmed the Petitioner’s convictions and sentence.  State v. James Arthur Johnson, No. M2009-01147-CCA-R3-CD, 2010 WL 3323796, at *1 (Tenn. Crim. App., at Nashville, Aug. 24, 2010), perm. app. denied (Tenn. August 24, 2010).  The Petitioner filed a petition seeking post-conviction relief based upon his allegation that he received the ineffective assistance of counsel at trial.  The post-conviction court denied the petition after a hearing.  On appeal, after a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

Petitioner, Antonio Lamont Scales, was convicted in Davidson County Criminal Court for the offenses of attempted second degree murder of one victim and reckless aggravated assault of another victim.  His co-defendant at trial was convicted of the same offenses.  On appeal, Petitioner challenged the sufficiency of the evidence to sustain the convictions, the trial court’s failure to provide the “missing witness” instruction to the jury, and the sentences imposed by the trial court.  The convictions were affirmed, but the sentences were vacated and the case was remanded for resentencing.  See State v. Timothy Washington Lyons and Antonio Lamont Scales, No. M2009-02524-CCA-R3-CD, 2011 WL 300141, at *1 (Tenn. Crim. App. Jan. 18, 2011).  After resentencing, no further appeal was instituted by Petitioner.  His effective sentence after remand was twenty years, down from twenty-two years originally imposed by the trial court.  Petitioner subsequently filed a petition for post-conviction relief which was dismissed after an evidentiary hearing.  This appeal followed.  After a thorough review, we affirm the judgment of the post-conviction court.

Defendant, Randall T. Beaty, was indicted for first degree felony murder and aggravated child abuse.  After a jury trial, he was convicted of reckless homicide and aggravated assault, which were charged to the jury as lesser-included offenses.  He received consecutive sentences of four years for reckless homicide and six years for aggravated assault, for an effective ten-year sentence to be served in the Department of Correction.  On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by allowing Detective Bachman to testify in violation of the rule of sequestration; (3) that the trial court erred by excluding a proffer by Amber Peveler; (4) that the trial court erred in failing to merge his convictions on double jeopardy grounds; and (5) that the trial court erred by ordering consecutive sentencing.  As to the alleged violation of the rule of sequestration, we hold, pursuant to State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010), that the State had the rightunder Tennessee Rule of Evidence 615 to designate an investigating officer as exempt from sequestration and the designated investigating officer can remain in the courtroom during the testimony of other witnesses.  We further conclude that, because the jury was instructed that both knowing or intentional aggravated assault and reckless aggravated assault were lesser-included offenses of aggravated child abuse, but the verdict form listed only aggravated assault without specifying the mens rea with which Defendant acted, Defendant’s conviction for aggravated assault must be reversed and the case remanded for a new trial on the offense of knowing aggravated assault.  After a thorough review of the record, we determine that there was no error as to Defendant’s remaining issues and affirm the conviction for reckless homicide and the judgment in all other respects.

The Petitioner, Rodney Patterson, appeals as of right from the Davidson County Criminal Court’s dismissal of his petition for post-conviction relief.  The Petitioner contends that he received ineffective assistance from his trial counsel because (1) trial counsel failed to inform him that his conviction for vandalism of property valued at more than $500 but less than $1,000 was a felony rather than a misdemeanor; and (2) trial counsel failed to inform him that his sentence was to be served consecutively to his sentence for another offense.  Discerning no error, we affirm the judgment of the post-conviction court.

Defendant, Gilberto Canales, Jr., was indicted for one count of aggravated rape. After a jury trial, Defendant was convicted of the lesser-included offense of rape. On appeal, Defendant argues that the evidence is insufficient to support his conviction, that the trial court erred by admitting hearsay evidence, and that the prosecutor committed prosecutorial misconduct by making misleading statements and arguing improperly admitted evidence during closing argument. After a thorough review, we affirm the judgment of the trial court.

The petitioner, Frederick Greene, was convicted of first degree (premeditated) murder and received a sentence of life imprisonment. The petitioner appeals the denial of his petition for post-conviction relief. On appeal, he contends that he received ineffective assistance of counsel. Following our review, we affirm the judgment of the post-conviction court.

Petitioner, James Anthony Burgess, appeals the denial of his petition for writ of error coram nobis.  Because Petitioner has not identified any newly discovered evidence, we affirm the decision of the coram nobis court.

The Defendant, Kendra Mahan, appeals as of right from the White County Criminal Court’s revocation of her six-year probationary sentence and order of total  incarceration relative to her guilty-pleaded convictions for attempted introduction of contraband into a penal institution, aggravated burglary, and theft of property valued over $500.00 but less than $1,000.00.  The Defendant contends that she was not afforded due process because the trial court failed to make sufficient findings of fact.  The Defendant also submits that the evidence presented at the revocation hearing was insufficient to establish that a violation of the conditions of her probation—either failure to pay court costs and restitution or a failed drug test—occurred.  Following our review, we affirm the trial court’s revocation of the Defendant’s probationary sentence, but we remand for entry of an amended revocation order reflecting credit for time served and for correction of the “original sentence length.”

The Defendant-Appellant, David Jerome Powell, entered an open guilty plea to theft of property valued at more than $500 but less than $1000, driving on a cancelled, suspended or revoked license, and driving on a cancelled, suspended or revoked license, third offense, with the trial court to determine the length and manner of service of his sentence. See T.C.A. §§ 39-14-103, 55-50-504. Prior to the sentencing hearing, Powell filed a motion to withdraw his guilty plea, alleging that he had a constitutional right to a jury trial. The trial court denied the motion, finding no “just and fair reason to allow him to withdraw the plea.” At the sentencing hearing a few days later, the trial court merged the conviction for driving on a cancelled, suspended or revoked license with the conviction for driving on a cancelled, suspended or revoked license, third offense. The court then sentenced Powell to consecutive sentences of six years with a release eligibility of sixty percent for the conviction for theft and eleven months and twenty-nine days for the conviction for driving on a revoked license, third offense, and ordered these sentences served consecutively to sentences Powell had received for three other convictions in other courts. Thereafter, Powell appealed the trial court's denial of his motion to withdraw his guilty plea. Upon review, we affirm the judgment of the trial court.

The petitioner, Jonathan Davis, appeals the summary dismissal of his second petition for writ of habeas corpus, which petition challenged his Maury County Circuit Court jury conviction of attempted aggravated robbery. Discerning no error, we affirm.

The petitioner, Antonio Byrd, appeals from the Shelby County Criminal Court’s denial of his motion to reopen his 1999 petition for post-conviction relief. Because the petitioner failed to comply with the statutory requirements for appealing the denial of a motion to reopen a post-conviction petition, we are without jurisdiction to hear the appeal, and the appeal is dismissed.

The defendant, Andrew Brian Santora, appeals the trial court’s revocation of his probation. He argues that the evidence is insufficient to support the revocation and that the trial court should have imposed an alternative sentence. Following our review, we affirm the judgment of the trial court.

Aggrieved of his Davidson County Criminal Court jury convictions of two counts of aggravated assault, the defendant, Brandon D. Forbes, appeals, challenging the admission of his prior conviction of aggravated robbery for impeachment purposes, the admission of certain testimony from a State’s witness, and the sufficiency of the convicting evidence.  Discerning no error, we affirm.

The Petitioner, Brandon S. Massengill, appeals the Claiborne County Criminal Court’s dismissal of his petition for post-conviction relief from his conviction for resisting arrest or stop and his six-month suspended sentence. The Petitioner contends that the post-conviction court erred by dismissing his petition on the ground that he was not in custody for purposes of the Post-Conviction Procedure Act. We reverse the judgment of the post-conviction court and remand the case for an evidentiary hearing on the merits of the petition.

Defendant, Austin Wells, appeals his conviction for driving under the influence (“DUI”) and reckless driving, arguing that his warrantless arrest for the offenses was not supported by probable cause and that there is insufficient evidence to support his convictions. We conclude that Defendant has waived both of these issues and that he is not entitled to plain error relief. Accordingly, the judgments of the trial court are affirmed.

The Petitioner, James Drew Freeman, appeals from the denial of post-conviction relief by the Criminal Court for White County.  He was convicted of second degree murder of his mother and sentenced to seventeen years’ imprisonment.  On appeal, the Petitioner argues that he received ineffective assistance of counsel because trial counsel failed to locate and call a witness.  Upon review, we affirm the judgment of the post-conviction court.

The defendant, Jonathan T. Deal, appeals the dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct his illegal sentence. In this appeal, the defendant asserts that the trial court erred by declaring his motion moot because his sentence had been served and had expired and that the court erred by concluding that the illegal sentence alignment was not a bargained-for element of his plea agreement. Because, under the circumstances of this case, Rule 36.1 cannot avail the defendant of meaningful relief, we affirm the judgment of the trial court declaring the motion moot.

The Petitioner, Travis Davison, appeals the trial court’s denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. The State has filed a motion requesting that this court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

I concur with the results of the majority, but I believe the trial court properly dismissed Defendant’s 36.1 request for exactly the right reason—Defendant’s sentence has long since expired. I respectfully disagree that a motion to correct an illegal sentence pursued via Rule 36.1 may not be dismissed soley because the sentence has been served and has expired. See Philander Butler v. State, W2014-01366-CCA-R3-CO, 2015 WL 4240256, at *3 (Tenn. Crim. App. July 14, 2015), perm. app. filed. I would have dissented from the orginal holding remanding the matter back to the trial court after the original trial judge summarily dismissed Defendant’s motion without conducting a hearing.1 See State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014 WL 2802910 (Tenn. Crim. App. June 17, 2014), no perm. app. filed.

The Petitioner, Tracy Eugene Harris, appeals from the Hamilton County Criminal Court's order denying his motion for pretrial jail credit pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. On appeal, the Petitioner argues that the trial court erred by overruling his motion for pretrial jail credit. The State responds that the Petitioner's argument is waived for failure to file a timely notice of appeal and that the trial court properly denied the Petitioner's motion. Following our review, we affirm the judgment of the trial court.

The Defendant-Appellants, Tapo T. Tabb and Douglas Ingram, were convicted by a Williamson County jury of burglary and theft of property valued over $60,000.  The trial court sentenced the Defendants to 12 years’ confinement for their burglary convictions and 25 years’ confinement for their theft of property convictions, to be served consecutively for effective sentences of 37 years’ confinement.  On appeal, the Defendants argue that the trial court erred by (1) denying their motion to suppress evidence obtained pursuant to search warrants; (2) failing to instruct the jury on facilitation as a lesser-included offense of burglary; and (3) sentencing the Defendants to 37 years’ confinement.  In addition, Defendant Ingram argues that his right to a speedy trial was violated.  Upon our review, we affirm the judgments of the trial court.

The Defendant, Adrian Antonio Jones, pleaded guilty to several drug and other offenses occurring between 1992 and 1994.  According to plea agreements, he was granted concurrent sentencing.  In 2014, the Defendant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his concurrent sentencing for two of his pleas was illegal and that, since any subsequent sentencing was based upon his illegal sentence that those sentences are also “illegal.”  The trial court agreed that one of his convictions was statutorily required to run consecutively, and it granted his Rule 36.1 relief as to case number 8775.  The trial court held, however, that the other sentences were not illegal as they did not violate any statute.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

A Davidson County jury convicted the Petitioner, Twain Demario Vaughn, of one count of reckless homicide, one count of first-degree felony murder, one count of aggravated robbery, and two counts of attempted aggravated robbery.  The trial court merged the reckless homicide conviction with the felony murder conviction and sentenced the Petitioner to an effective sentence of life in prison.  This Court affirmed his convictions and sentence on appeal.  State v. Twain Demario Vaughn, No. M2006-01659-CCA-R3-CD, 2008 WL 110094, at *1 (Tenn. Crim. App., at Nashville, Jan. 9, 2008), no Tenn. R. App. P. 11 application filed.  The Petitioner filed a petition for post-conviction relief, alleging that he had received the ineffective assistance of counsel.  The post-conviction court dismissed the petition as time barred.  It then reversed its ruling, appointed counsel, and held a hearing after which it dismissed the Petitioner’s petition.  On appeal, the Petitioner contends that the post-conviction court erred because his trial counsel was ineffective for failing to: (1) introduce the victim’s toxicology report; (2) request more time to review videotaped statements that called into question the eye witnesses’ credibility; and (3) have the Petitioner’s competency evaluated.  After review, we conclude that the Petitioner’s petition was not filed within the statute of limitations and that he has not shown a statutory or due process ground for the tolling of the statute of limitations.  As such, we dismiss the petition as time barred.

A Cheatham County jury convicted the Defendant, Aaron D. Ostine, of first degree premeditated murder, first degree felony murder, and aggravated robbery.  The trial court merged the two murder convictions and imposed a life sentence.  The court then sentenced the Defendant to twelve years for the aggravated robbery conviction.  On appeal, the Defendant contends that: (1) the evidence is insufficient to support his convictions; (2) the trial court erred when it denied a motion to suppress his statements to police; and (3) the State engaged in prosecutorial misconduct during closing argument.  After a thorough review of the record and the applicable law, this Court affirmed the trial court’s judgment.  See State v. Aaron D. Ostine, No. M2013-00467-CCA-R3-CD, 2014 WL 2442988 (Tenn. Crim. App., at Nashville, May 28, 2014).  The Defendant filed a Rule 11 application, pursuant to the Tennessee Rules of Appellate Procedure, to the Tennessee Supreme Court.  Our Supreme Court granted the application and remanded the case to this Court for reconsideration in light of State v. Jackson, 444 S.W.3d 554 (Tenn. 2014).  After considering the facts and circumstances of this case as compared to those in Jackson, we again affirm the trial court’s judgment.