APPELLATE COURT OPINIONS

The Petitioner, Stacy Lee Fleming, appeals the Tipton County Circuit Court’s denial of postconviction relief from his conviction for delivery of .5 grams or more of cocaine. On appeal, the Petitioner argues that he received ineffective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.

Appellant, Willie Duncan, was convicted by a Shelby County jury of especially aggravated kidnapping, especially aggravated robbery, aggravated robbery, aggravated burglary, and employing a firearm during the commission of a dangerous felony. On appeal, Appellant raises several issues: 1) the indictment for the charge of employing a firearm during the commission of a dangerous felony is defective for failing to name the underlying felony; 2) the jury instructions on the charge of employing a firearm during the commission of a dangerous felony were improper; 3) the evidence presented at trial was insufficient to support the convictions; 4) a statement about Appellant’s juvenile record requires a new trial under plain error review; 5) the trial court abused its discretion by imposing excessive sentences; and 6) the trial court abused its discretion by imposing partially consecutive sentences. Upon review of the record, we find that the evidence is sufficient to support Appellant’s convictions, that the statement about Appellant’s juvenile record does not constitute plain error, and that the trial court did not abuse its discretion in sentencing Appellant. However, we find that the indictment for employing a firearm during the commission of a dangerous felony is fatally flawed for failing to name the predicate felony. We also note a clerical error on the judgment form for the charge of aggravated robbery which requires remand for the entry of a corrected judgment. Therefore, we affirm the trial court’s judgments in part, reverse and dismiss in part, and affirm and remand in part.

The Defendant-Appellant, Richard Griffis, was convicted by a Madison County jury of theft of property valued at $1,000 or more but less than $10,000, a Class D felony. See T.C.A. §§ 39-14-103, -105 (2012). The trial court sentenced him as a Range I, standard offender to four years’ incarceration, suspended to supervised probation. The sole issue presented for our review is whether the evidence is sufficient to support the conviction. Upon review, we affirm the judgment of the trial court.

Appellant, Kenneth Kirkwood, was convicted by a Shelby County jury of especially aggravated robbery, especially aggravated kidnapping, use of a firearm in the commission of a dangerous felony, and aggravated burglary. Following a sentencing hearing, the court imposed a total effective sentence of forty-five years, to be served at 100%. Appellant filed a motion for new trial, which was denied. He argues on appeal that the jury verdict was against the weight of the evidence, that counsel was ineffective, and that the trial court erred by not granting him a continuance on his motion for new trial. After thoroughly reviewing the evidence, we affirm the trial court.

Appellant, Richard Cleophus Smith, was indicted by presentment by the Knox County Grand Jury for felony murder, first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, evading arrest by motor vehicle, evading arrest, aggravated assault, reckless endangerment, leaving the scene of an accident involving injury, driving while privilege suspended, and failure to provide proof of financial responsibility. At the conclusion of a jury trial, the jury found Appellant guilty of all charges except aggravated assault for which he was found guilty of the lesser included offense of reckless endangerment. The trial court sentenced Appellant to an effective sentence of life plus twenty-six years. On appeal, Appellant argues that: (1) the evidence was insufficient; (2) that the trial court constructively amended the presentment charging driving while license suspended, after jeopardy attached by instructing the jury on the offense of driving without a license in possession; (3) that the trial court erred in denying Appellant’s request for a special jury instruction; (4) that the trial court erred in allowing the testimony of two officers; (5) the trial court erred in denying his request for notes and memoranda generated by State witnesses when generating their reports; and (5) the trial court erred in imposing consecutive sentences. We have thoroughly reviewed the record on appeal. We affirm all judgments except the judgment for driving without a license in possession which must be dismissed because the trial court constructively amended the presentment by giving the contested jury instruction.

The Petitioner, Lakeith Humphrey, appeals the Shelby County Criminal Court’s denial of post-conviction relief from his conviction for first degree premeditated murder and his sentence of life imprisonment. On appeal, he argues that trial counsel was ineffective in failing to challenge the legal accuracy of the special jury instruction regarding premeditation given at trial. Upon review, we affirm the judgment of the post-conviction court.

Appellant, Tonya Michelle Stoltz, was indicted by the Madison County Grand Jury for initiation of a process to manufacture methamphetamine and possession of methamphetamine. At the close of the State’s proof, the trial court granted Appellant’s motion for acquittal as to initiation of a process to manufacture methamphetamine but denied it as to the possession charge. The jury found Appellant guilty of possession of methamphetamine. After a sentencing hearing, the trial court sentenced Appellant to eleven months and twenty-nine days at 75% service in incarceration. After Appellant’s motion for a new trial was denied, she appealed, arguing that the evidence presented at trial was insufficient to sustain the conviction for possession of methamphetamine. After a review of the record and applicable authorities, we determine that the evidence is sufficient and that the conviction for possession of methamphetamine should be affirmed.

The Defendant, Brenda Judy Moss, pled guilty to theft over $60,000, a Class B felony, with the trial court to determine the length and manner of the sentence.  The trial court subsequently ordered a ten-year split confinement sentence, with the Defendant to serve one year in jail followed by nine years of supervised probation.  The Defendant asserts that the sentence is excessive and that split confinement was improper based upon the facts of the case.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

The Defendant, Daniel Mosby, appeals from the Shelby County Criminal Court’s order revoking his community corrections sentence. The Defendant previously entered a guilty plea to aggravated burglary and, pursuant to the plea agreement, was sentenced to 10 years to be served in the community corrections program with credit for time served. On appeal, the Defendant argues that the trial court abused its discretion in revoking his community corrections sentence and ordering him to serve his original sentence in confinement. Upon review, we affirm the judgment of the trial court.

Appellant, Curtis Taylor, was indicted by the Shelby County Grand Jury in a multi-count indictment for first degree murder (Count 1), attempted first degree murder (Count 2), possession of a firearm after having been convicted of a felony (Count 3), and use of a firearm during the commission of a dangerous felony (Count 4). After a jury trial, Appellant was convicted of voluntary manslaughter in Count 1, and was convicted of the offenses as charged in Counts 2 through 4. According to the judgment forms, Appellant was sentenced to ten years in Count 1, fifteen years in Count 2, four years in Count 3, and ten years in Count 4, for a total effective sentence of thirty-five years. However, the transcript of the sentencing hearing reflects a sentence of two years in Count 3, but the same total effective sentence. After the denial of a motion for new trial, Appellant presents the following issues for our review on appeal: (1) whether the evidence is sufficient to sustain the conviction for voluntary manslaughter; and (2) whether the trial court properly sentenced Appellant. After a review of the record and applicable authorities, we affirm the judgments and sentences. However, because the judgment forms do not accurately reflect the sentence as imposed by the trial court during the sentencing hearing, the matter is remanded for entry of corrected judgments to reflect that Appellant was sentenced to two years in Count 3, possession of a firearm after having been convicted of a felony, and that the sentences in Counts 1, 2, and 4 are to run consecutively to each other but concurrently to the sentence in Count 3, for a total effective sentence of thirty-five years. Accordingly, the matter is affirmed and remanded for further proceedings consistent with this opinion.

In this divorce action, Wife appeals the trial court’s valuation of Husband’s ownership interest in three businesses, determination of Husband’s income, division of marital assets, duration of rehabilitative alimony awarded to her, amount of child support Husband was ordered to pay, and the amount of attorney’s fees awarded to her. We determine that the trial court accepted the calculation of a $134,085.00 promissory note as a liability for one business co-owned by Husband but failed to require value of the same amount as a note receivable for the business collecting payment on the debt, owned 50% by Husband. We therefore increase the trial court’s valuation of the business collecting payment on the debt by one-half the amount of the applicable note receivable, or $67,042.50. We also determine that the trial court erred by attributing to Husband the full liability for the third business, a limited liability company in which Husband owns a one-half interest. We accordingly reduce the allocation for that liability by one-half, or $45,689.50, increasing the total modification of the value of Husband’s net assets awarded by the trial court by the amount of $112,732.00. We award to Wife 48% of this increase, or $54,111.36, commensurate with what we determine to be the trial court’s equitable distribution of marital property, and we remand for a determination regarding the proper method of distribution for this additional award to Wife. We affirm the trial court’s judgment in all other respects.

The Petitioner, Annette Tran Hamby, appeals the Bradley County Criminal Court’s denial of her petition for post-conviction relief from her 2008 conviction for first degree murder and resulting life sentence. The Petitioner contends that the post-conviction court erred by denying her relief because she received the ineffective assistance of counsel. Specifically, she alleges that trial counsel was ineffective for failing to request an independent mental evaluation to rebut the evaluation presented by the prosecution at trial. After considering the record and the applicable authorities, we affirm the judgment of the post-conviction court.

Appellant, David Orlando Avinger, was indicted by a Davidson County grand jury for first degree premeditated murder, first degree felony murder, and especially aggravated robbery.  After a jury trial, Appellant was convicted of the lesser included offense of second degree murder, as well as the charged offenses of felony murder and especially aggravated robbery.  The trial court merged the convictions for second degree murder and felony murder, and Appellant was sentenced to an effective life sentence.  On appeal, Appellant challenges the sufficiency of the convicting evidence and alleges that the trial court impermissibly limited defense counsel’s cross-examination of a witness.  After reviewing the record, we find that the evidence was sufficient to convict Appellant and that there was no error in the ruling of the trial court related to the limitation of the witness’s testimony.  Accordingly, we affirm the judgments of the trial court.

The Petitioner, Anthony Brown, appeals the Shelby County Criminal Court’s denial of postconviction relief from his convictions for possession with intent to deliver cocaine and possession of marijuana and resulting twenty-year sentence. He contends that he received the ineffective assistance of counsel at trial, specifically, that trial counsel failed (1) to crossexamine the State’s witnesses regarding trial testimony that was inconsistent with that given at the preliminary hearing and (2) to question witnesses about drug paraphernalia found at the scene, in keeping with his defense strategy. After considering the record and the relevant authorities, we affirm the judgment of the post-conviction court.

The Defendant, Jerry Kirkpatrick, was indicted for burglary and theft of property valued at $1,000 or more but less than $10,000, both Class D felonies. See Tenn. Code Ann. §§ 39-14-103, -105, -402. Following a jury trial, the Defendant was acquitted of the burglary charge and convicted of the theft charge. The trial court sentenced the Defendant as a Range II, multiple offender to seven years. The trial court ordered the Defendant’s sentence to run consecutively to his sentence for a prior conviction. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction because the testimony of his accomplice was not sufficiently corroborated and (2) that the trial court erred in ordering his sentence to be served consecutively to a prior sentence. Following our review, we affirm the judgment of the trial court.

Appellant, Brian Gauldin, was indicted by the Dyer County Grand Jury for two counts of the sale of .5 grams or less of cocaine in a drug free zone, one count of the sale of a schedule III controlled substance in a drug free zone, and one count of the sale of .5 grams of more of cocaine in a drug free zone. Prior to trial, the State chose to nolle prosequi one count of the sale of .5 grams or less of cocaine in a drug free zone and one count of the sale of a schedule III controlled substance in a drug free zone. After a jury trial, Appellant was found guilty of one count of the sale of .5 grams or more of cocaine in a drug free zone and one count of the sale of .5 grams or less of cocaine in a drug free zone. Appellant was sentenced to an effective sentence of twenty years as a Range IV, Persistent Offender. Appellant appeals, arguing that the evidence was insufficient to support the convictions. After a review of the record and applicable authorities, we determine that the evidence was sufficient to support the convictions. Consequently, the judgments of the trial court are affirmed.

The Petitioner, Christopher Fielder, appeals from the Shelby County Criminal Court’s denial of post-conviction relief, contending that he received the ineffective assistance of counsel at trial. Specifically, the Petitioner alleges that trial counsel failed to request a jury instruction on merger of the offenses, tasking it with determining whether the kidnapping of the victim was beyond that necessary to complete the especially aggravated robbery. After considering the record and the applicable authorities, we affirm the judgment of the postconviction court.

A Davidson County Criminal Court Jury convicted the appellant, Ladarron S. Gaines, of evading arrest while operating a motor vehicle in which the flight or attempt to elude created a risk of death or injury to innocent bystanders or other third parties, a Class D felony.  After a sentencing hearing, the trial court sentenced him as a Range II, multiple offender to eight years in confinement.  On appeal, the appellant contends that the evidence is insufficient to support the conviction, that the trial court erred by denying his motion to exclude testimony regarding a surveillance video, and that his sentence is excessive.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Petitioner, Billy D. Sizemore, was convicted of theft over $1,000 and sentenced to twelve years as a career offender.  Petitioner filed the instant petition for post-conviction relief, in which he alleged that he received ineffective assistance of counsel.  Following an evidentiary hearing, the post-conviction court denied relief.  On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel: (1) failed to challenge the value of the stolen goods and (2) failed to seek a continuance after the State filed a late notice of intent to seek enhanced punishment.  After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

A Robertson County Circuit Court Jury convicted the appellant, Gabriel Torres, of rape of a child, a Class A felony, and the trial court sentenced him to twenty-five years in confinement to be served at 100%.  On appeal, the appellant contends that the evidence is insufficient to support the conviction and that the trial court failed to fulfill its role as the thirteenth juror.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

In 2007, a Sullivan County jury convicted the Petitioner, Tracy Lynn Cope, of especially aggravated kidnapping, aggravated kidnapping, and false imprisonment, and the trial court sentenced him to an effective sentence of forty years. State v. Tracy Lynn Cope, No. E2009-00435-CCA-R3-CD, 2010 WL 2025469 (Tenn. Crim. App., at Knoxville, May 20, 2010), perm. app. denied (Tenn. Sept. 22, 2010). After the Petitioner filed two petitions for post-conviction relief, both of which were denied, he filed a petition for a writ of error coram nobis, which the trial court summarily dismissed. On appeal, the Petitioner contends that the lower court erred when it dismissed his petition. After a thorough review of the record and applicable authorities, we affirm the coram nobis court’s judgment.

A Robertson County Grand Jury indicted appellee for possession of over 0.5 grams of cocaine with the intent to sell.  The charges were dismissed after the trial court granted appellee’s motion to suppress evidence.  The State appeals the trial court’s granting of the motion to suppress and argues that appellee’s arrest and search were proper.  Following a thorough review of the record, we reverse the ruling of the trial court, reinstate the indictment, and remand for further proceedings consistent with this opinion.

Following a remand from this court, the petitioner, William L. Vaughn, acting pro se, was permitted a second evidentiary hearing on certain ineffective assistance of counsel claims which he had not presented in the first hearing on his petition for post-conviction relief.  As we will set out, he filed massive pleadings, complaining of a multitude of wrongs visited upon him, from the moment of his arrest through his direct appeal.  The evidentiary hearing was lengthy and free-swinging, with the post-conviction court’s concluding that the petitioner’s claims were “incredible” and, ultimately, without merit.  We agree.  Doggedness cannot substitute for substance.  The post-conviction court’s denial of relief is affirmed.

A Cheatham County jury convicted the Defendant, Iris A. Jones, of driving under the influence (“DUI”), first offense, and vehicular assault.  The Defendant filed an application seeking judicial diversion.  The trial court merged the DUI conviction into the vehicular assault conviction and granted the Defendant’s motion for judicial diversion.  On appeal, the State contends that the trial court abused its discretion when it found that the Defendant was eligible for judicial diversion.  After a thorough review of the record and applicable authorities, we conclude that the Defendant is not a “qualified defendant” for judicial diversion.  Accordingly, the case is reversed and remanded to the trial court for further proceedings consistent with this opinion.

Joseph M. Tipton, P.J., concurring in part; dissenting in part.

I respectfully disagree with the majority opinion’s conclusion that this court may consider the State’s appeal of the trial court’s granting judicial diversion as an appeal as of right pursuant to Tennessee Rule of Appellate Procedure 3(c)(4), but I believe the court can accept the appeal pursuant to Tennessee Rule of Appellate Procedure 10 as an extraordinary appeal.  In this regard, I agree with the majority opinion’s conclusion that the trial court erred in granting judicial diversion.