APPELLATE COURT OPINIONS

I am writing separately to express my disagreement with the majority opinion's assertion that a trial judge's ruling with regard to hearsay is subject to review under an abuse of discretion standard. I am persuaded that the analysis of State v. Gilley, 297 S.W.3d 739 (Tenn. Crim. App. 2008), perm. app. denied, (Tenn. Feb. 17, 2009), is the appropriate method for reviewing issues involving hearsay.

The Defendant, Dallas Jay Stewart, was convicted by a Marshall County Circuit Court jury of nine counts of rape of a child, Class A felonies; fourteen counts of aggravated sexual battery, Class B felonies; and one count of exhibition of harmful material to a minor, a Class A misdemeanor. See T.C.A. §§ 39-13-522; 39-13-504; 39-17-911 (2010). The trial court sentenced him as a Range I offender to twenty-five-years’ confinement for each count of rape of a child, twelve-years’ confinement for each count of aggravated sexual battery, and eleven-months, twenty-nine-days’ confinement for exhibition of harmful material to a minor. The counts against each victim were ordered to be served consecutively for an effective fifty-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to sustain his convictions, (2) the trial court improperly denied his motion to suppress, (3) the trial court erred in failing to merge some of his aggravated sexual battery convictions, and (4) his sentence was excessive. We affirm the judgments of the trial court for exhibition of harmful material (Count 1), five counts of aggravated sexual battery (Counts 10, 13, 23, 24, and 25), and one count of rape of a child (Count 2). We vacate the aggravated sexual battery judgment for Count 26 and dismiss the charge. Because the trial court failed to merge the convictions for eight counts of aggravated sexual battery (Counts 4, 6, 8, 12, 15, 17, 19 and 21) and eight counts of rape of a child (Counts 3, 5, 7, 11, 14, 16, 18, and 20), we vacate the convictions and order the trial court to enter judgments reflecting merger of these aggravated sexual battery convictions into the rape of a child convictions.

The Petitioner, Jeremy Young, appeals from the denial of his petition for post-conviction relief. He contends (1) that his guilty plea to first-degree murder was not knowingly and voluntarily entered and (2) that he was denied the effective assistance of counsel because his trial attorneys allowed their hired agents to unduly influence him into pleading guilty, failed to seek a change of venue, and led him to believe that he could get his conviction overturned on post-conviction relief. After consideration of the record and the applicable authorities, we affirm the judgment of the post-conviction court.

Petitioner, Michael Jermaine Harris, was convicted of aggravated arson in 2009 and was sentenced to nineteen years. He unsuccessfully appealed his conviction and sentence. See State v. Michael Jermaine Harris, No. E2009-01383-CCA-R3-CD, 2010 WL 3155196, at *1 (Tenn. Crim. App. Aug. 10, 2010). Petitioner filed the instant petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial. Following an evidentiary hearing, the post-conviction court denied relief. On appeal, petitioner argues that he received ineffective assistance of counsel when counsel failed to prepare adequately for trial, failed to obtain an expert witness, failed to procure an alibi witness, and failed to adequately cross-examine one of the police officers involved. Following our review of the parties’ arguments, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Petitioner, Antonio Wyatt, filed a petition for writ of habeas corpus in the court wherein he was convicted. Upon motion of the State, the trial court dismissed the petition without an evidentiary hearing based upon Petitioner’s failure to show in the petition “that his judgments are either void or that his sentence has expired.” Petitioner timely filed a notice of appeal. Petitioner asserts the judgments are void because the trial court ordered Petitioner to serve the one-year portion of incarceration of a split confinement sentence “day for day 100%” and because the trial court refused to allow Petitioner statutorily mandated pre-trial jail credits. While some of the documents in the record presented by Petitioner indicate irregularities in the judgments which could lead to a determination that the sentencing portions are void, we conclude that Petitioner is not entitled to relief because he is no longer “restrained of his liberty” by the challenged convictions. We therefore affirm the judgment of the trial court.

Upon remand by our supreme court, see State v. Cooper, 321 S.W.3d 501 (Tenn. 2010), Defendant Ralph Byrd Cooper, Jr., was resentenced by the trial court to serve sixty (60) years as a career offender for his conviction of aggravated rape, a Class A felony. Defendant appeals his sentence, asserting as his sole issue that the trial court erred by determining he was a “career offender.” After a thorough review, we affirm the judgment of the trial court.

In this procedurally complex case, the Defendant, Duvale Vashawn Pruitt, pled nolo contendere to multiple drug-related charges, and the trial court sentenced him to an effective sentence of ten years of probation. The Defendant’s probation officer filed two probation violation warrants, one in September and another in October of 2007. After a hearing, the trial court ordered the Defendant to serve ninety days in jail and then start his probationary sentence again. In February 2011, the Defendant’s probation officer filed a third probation violation warrant based upon the Defendant’s possession of a switchblade knife at a courthouse, and the trial court issued a warrant for the Defendant’s arrest. After a hearing, the trial court revoked the Defendant’s probation and ordered him to serve his ten-year sentence in the Tennessee Department of Correction. This Court affirmed the trial court’s revocation of the Defendant’s sentence on appeal. State v. Duvale  Vashawn Pruitt, No. E2011-01995-CCA-R3-CD, 2012 WL 4762115, at *1, 6 (Tenn. Crim. App., at Knoxville, Oct. 8, 2012), no Tenn. R. App. P. 11 application filed. On December 11, 2012, after our opinion was filed, the Defendant filed a “Motion seeking recall of the previously adjudicated probation violation warrants in which [the trial court] sentenced and ordered Petitioner on May 27, 2011, to serve the balance of his sentence, or ten years at thirty percent, in confinement.” The trial court dismissed the motion, and the Defendant filed a notice of appeal. On appeal, the Defendant contends that the trial court erred when it dismissed his motion because the capias and detainer lodged against him for a probation violation should have been recalled because he had satisfied his sentence by serving time in federal custody. After a thorough review of the record and applicable authorities, we conclude the Defendant has no right to appeal the trial court’s denial of his motion. As such, the Defendant’s appeal is dismissed.

Petitioner, Reginald D. Hughes, appeals from the trial court’s summary dismissal of the pro se third petition for habeas corpus relief filed by Petitioner. After a thorough review of the record and the briefs, we affirm the judgment of the habeas corpus trial court.

Defendant pled guilty to fourteen counts of aggravated burglary, Class C felonies; one count of burglary of an automobile, a Class E felony; four counts of theft of property with a value in excess of $10,000 but less than $60,000, Class C felonies; seven counts of theft of property with a value in excess of $1,000 but less than $10,000, Class D felonies; one count of theft of property with a value in excess of $500 but less than $1,000, a Class E felony; and five counts of theft of property with a value less than $500, Class A misdemeanors. The defendant was sentenced as a Range I, standard offender to six years for each aggravated burglary, two years for the burglary of the automobile, six years for each Class C felony theft of property, four years for each Class D felony theft of property, two years for each Class E felony theft of property, and eleven months and twenty-nine days for each misdemeanor theft of property. The trial court ordered partial consecutive sentencing, resulting in an overall effective sentence of twenty-two years. The defendant now appeals the trial court’s sentencing decision, urging that the trial court erred in its application of certain enhancement and mitigation factors. Because a trial court’s mere error in the application of statutory enhancing and mitigating factors no longer provides any basis for reversing a defendant’s sentence, and because the defendant’s sentences are generally consistent with the principles and purposes of the Sentencing Act, we affirm the judgments of the trial court.

The Defendant, James Harding Dalton, pleaded guilty to especially aggravated burglary, a Class B felony. See T.C.A. § 39-14-404 (2010). The trial court sentenced him as a Range I, standard offender to eleven years’ confinement. On appeal, the Defendant contends that the court erred in sentencing. We affirm the judgment of the trial court.

The appellant, Christopher Lee Davis, was convicted of attempted first degree murder, a Class A felony; aggravated robbery, a Class B felony; carjacking, a Class B felony; and attempted especially aggravated kidnapping, a Class B felony. On direct appeal, our supreme court affirmed the appellant’s convictions but remanded for resentencing on the issue of consecutive sentencing. See State v. Davis, 354 S.W.3d 718, 721-22 (Tenn. 2011). On remand, the trial court again ordered partial consecutive sentencing, which resulted in an overall effective sentence of forty-nine years. On appeal, the appellant challenges the imposition of consecutive sentencing. Upon review, we affirm the judgments of the trial court.

Appellant, Jay Earl Haynes, was indicted by the Dyer County Grand Jury in August 2009, for two counts of rape in connection with the anal rape of the two mentally-incapacitated grandsons of Appellant’s live-in girlfriend. Appellant argues that the evidence was insufficient to support his convictions because he could not have known that the victims were mentally incapacitated and that the trial court erred in imposing consecutive sentences. After a thorough review of the record, we conclude that there is ample evidence upon which a reasonable trier of fact could find that Appellant knew of the victims’ mental incapacity and that his criminal activity was so extensive as to support the imposition of consecutive sentences. Therefore, we affirm the judgments of the trial court.

Appellant, Leman E. Russell, pled guilty to one count of possession of over .5 grams of cocaine with intent to sell or deliver in Dyer County in January 2006. He received a sentence of ten years with six months incarceration and nine and a half years on Community Corrections. Because of various violations and adjudications, Appellant was placed on probation on February 3, 2011. On September 27, 2011, a probation violation warrant was filed alleging that Appellant violated the terms of his probation. After a hearing, the trial court revoked Appellant’s probation and ordered him to serve his original ten-year sentence in confinement. Appellant filed a timely notice of appeal. After a review of the record and authorities, we determine that the trial court did not abuse its discretion in revoking Appellant’s probation and imposing his original sentence because there was evidence to support the conclusion of the trial court that a violation of the conditions of probation occurred. Accordingly, the judgment of the trial court is affirmed.

The pro se petitioner, Leon Barnett Collier, appeals the Wayne County Circuit Court’s dismissal of his petition for writ of habeas corpus, arguing that the court erred in summarily dismissing the petition because the State failed to comply with the statutory requirement of attaching to its response its authority for detaining him. Because the petitioner has failed to state a cognizable claim for habeas corpus relief, we affirm the summary dismissal of the petition pursuant to Rule 20, Rules of the Court of Criminal Appeals.

James Daniel Vaughn (“the Defendant”) was convicted by a jury of one count of second degree murder and three counts of reckless endangerment with a deadly weapon. Following a sentencing hearing, the trial court sentenced the Defendant to an effective sentence of twenty years’ incarceration. On appeal, the Defendant argues that the evidence presented at trial was insufficient to support his convictions. After a thorough review of the record and the applicable law, we affirm the Defendant’s convictions.

Appellant, Stephen Dewayne Baker, was indicted by the Putnam County Grand Jury in January of 2010 for one count of first degree murder, one count of felony murder, one count of aggravated robbery, one count of arson, and one count of tampering with evidence. Appellant was convicted by a jury of all offenses as charged in the indictment. At a sentencing hearing, the trial court merged the first degree murder conviction with the felony murder conviction and imposed a life sentence. Appellant was also ordered to serve twelve years for the aggravated robbery conviction, six years for the arson conviction, and six years for the tampering with evidence conviction. The trial court ordered the arson and tampering with the evidence convictions to be served concurrently with each other but consecutively to the life sentence and sentence for aggravated robbery, for a total effective sentence of life imprisonment plus eighteen years. After the denial of a motion for new trial, Appellant initiated this appeal. On appeal, Appellant contends: (1) the trial court erred by denying a change of venue; (2) the trial court erred by denying Appellant’s motion to suppress; (3) the evidence was insufficient to support the convictions; (4) the trial court erred by admitting evidence of Appellant’s prior bad acts; (5) the trial court erred in admitting the dying declarations of the victim; (6) the trial court erred in admitting testimony of Harold Harp about Appellant’s behavior; and (7) the trial court erred in admitting a photograph of the victim’s body. After a review of the record, we conclude that the trial court: (1) did not err in denying a change of venue where there was no proof that the jury pool was tainted from exposure to information about the incident; (2) did not abuse its discretion in denying the motion to suppress where consent for the search was valid and the search warrant was properly procured; (3) properly admitted evidence of Appellant’s drug use and past violent behavior; (4) properly admitted the dying declaration and excited utterances of the victim; (5) properly admitted the testimony of Mr. Harp; and (6) properly admitted photographs of the victim’s body. Additionally, we determine that the evidence was sufficient to support the convictions. Accordingly, the judgments of the trial court are affirmed.

The defendant, Jaron Lee Goodson, entered an open plea agreement to one count of aggravated sexual battery, a Class B felony. Following a sentencing hearing, the trial court sentenced the defendant to a term of twelve years, at 100%, in the Department of Correction. On appeal, he contends that the trial court erred in determining the length of the sentence. Following review of the record, we affirm the sentence as imposed.

Michael L. McMahan (“the Petitioner”) entered a guilty plea to one count of aggravated burglary, five counts of especially aggravated kidnapping, three counts of aggravated rape, two counts of aggravated sexual battery, and two counts of aggravated robbery. Pursuant to his plea agreement, the trial court sentenced the Petitioner to an effective sentence of twenty-five years. The Petitioner subsequently filed for post-conviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that his plea was constitutionally invalid and that he received ineffective assistance of counsel in conjunction with his plea submission hearing. Upon our thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Petitioner, Christopher Scott Chapman, pled guilty to aggravated assault in Davidson County in 2005. As a result, he was sentenced to four years in incarceration. The sentence was suspended, and Petitioner was ordered to probation. In 2008, Petitioner was indicted by the Sumner County Grand Jury for attempted first degree murder. After a jury trial, Petitioner was convicted of the lesser included offense of aggravated assault. Petitioner was sentenced to six years in incarceration to be served consecutively to the Davidson County sentence. Petitioner filed two petitions for writ of habeas corpus in August and September of 2012 in the Lake County Circuit Court challenging the Sumner County conviction. The petitions were denied because they were unverified and did not present proper grounds for habeas corpus relief. Petitioner filed two additional petitions for habeas corpus relief in Lake County, again challenging the Sumner County conviction for aggravated assault. The habeas corpus court denied the petitions, determining that the claims were not cognizable in a petition for habeas corpus relief. Petitioner appeals, arguing that the habeas corpus court improperly denied habeas corpus relief. After a review of the record and applicable authorities, we determine that the habeas corpus court properly denied habeas corpus relief where Petitioner failed to show that his judgment was void.

Appellant, Joseph Beasley Seay, was indicted by the Wilson County Grand Jury for one count of possession of more than .5 grams of cocaine; one count of driving on a canceled, suspended, or revoked license; and one count of driving on a canceled, suspended, or revoked license, second offense. Appellant filed a motion to suppress the cocaine discovered during the search of a pill fob on his key ring. He subsequently pled guilty to one count of possession of more than .5 grams of cocaine and reserved a certified question for appeal. The remaining counts were dismissed. Pursuant to the plea agreement, Appellant was sentenced to eight years as a Range I, standard offender. After a review of the record on appeal, we have concluded that the trial court did not err in denying Appellant’s motion to suppress. Therefore, we affirm the judgment of the trial court.

The Petitioner, Ashad RA Muhammad Ali, appeals the habeas corpus court’s summary dismissal of his petition for relief. He contends that the habeas corpus court erroneously concluded that his petition failed to state a cognizable claim for relief, noting (1) that this court has held that the trial court’s failure to include pre-trial jail credits on the judgment of conviction is a proper basis for habeas corpus relief and (2) that his judgment of conviction on “count three contains a facial error [because] count three cannot be ordered to run both consecutively and concurrently to the same sentence.” Following our review of the record and the applicable authorities, we affirm the judgment of the habeas corpus court.

An Anderson County jury convicted the Petitioner, Jerry Orlando Weaver, of two counts of facilitation of less than one-half gram of cocaine for sale or delivery, and the trial court sentenced him to twelve years for each conviction. The trial court ordered the sentences to run consecutively for a total effective sentence of twenty-four years. The Petitioner appealed, contending that the trial court erred when it sentenced him as a career offender and when it ordered consecutive sentences. State v. Jerry Orlando Weaver, No. E2009-01767-CCA-R3-CD, 2010 WL 2490762, at *1 (Tenn. Crim. App., at Knoxville, April 28, 2010), no Tenn. R. App. P. 11 application filed. This Court dismissed the appeal based upon the Petitioner’s failure to timely file his notice of appeal and because none of the Petitioner’s issues warranted consideration in the “interest of justice.” The Petitioner filed a petition for post-conviction relief. As a result of the petition, the post-conviction court granted the Petitioner a delayed appeal. Accordingly, the Petitioner proceeds with his appeal to this Court. After a thorough review of the record and applicable authorities, we conclude that the Petitioner’s delayed appeal lacks merit  Accordingly, we affirm the judgment of the trial court.

The Defendant, Demario Darnell Thompson, was convicted by a Madison County Circuit Court jury of possession of a firearm with the intent to go armed during the commission of a dangerous felony, a Class D felony, possession of marijuana with the intent to sell, a Class E felony, possession of marijuana with the intent to deliver, a Class E felony, and possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. §§ 39-17-1324, 39-17-417, and 39-17-425 (2010). The trial court merged the two convictions for possession of marijuana into a single count of possession of marijuana with the intent to sell. The court sentenced the Defendant as a Range I, standard offender to four years’ confinement for possession of a firearm during the commission of a dangerous felony, two years’ confinement for possession of marijuana with the intent to sell, and eleven months, twenty-nine days’ confinement for possession of drug paraphernalia and ordered partial consecutive sentencing for an effective six-year sentence. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Petitioner, Michael L. Smith, appeals from the trial court’s summary dismissal of the pro se petition for habeas corpus relief filed by Petitioner. After a thorough review of the record and the briefs, we affirm the judgment of the habeas corpus trial court.

The defendant, Michael Smith, was convicted by a Shelby County Criminal Court jury of assault, a Class A misdemeanor, and aggravated burglary, a Class C felony, and sentenced as a multiple offender to concurrent terms of eleven months, twenty-nine days and seven years, respectively, in the Tennessee Department of Correction. In this pro se appeal, the defendant argues that: (1) the trial court erred in constructively amending the indictments in its charge to the jury; (2) the evidence is insufficient to sustain his convictions; (3) the State failed to provide sufficient notice in the indictment regarding the charge of aggravated burglary; (4) the trial court erred in failing to recuse itself prior to trial; (5) the trial court erred in failing to apply the appropriate standard to adjudicate the non-structural constitutional errors he raised in the motion for new trial; (6) he was denied a fair trial by the trial court impermissibly restricting his cross-examination of the victim; (7) he was denied a fair trial because the State did not give advanced notice that Officer Michael Garner would testify at trial; (8) the State knowingly introduced false testimony and evidence; (9) he was denied a fair trial because the trial court failed to make a determination regarding the admissibility of his prior convictions before he chose not to testify; (10) the State violated the Jencks Act by failing to provide a recording of a conversation between Kimberly Chrestman and the prosecutor; (11) he was denied a fair trial by Kimberly Chrestman’s testifying about his prior bad acts; (12) the State committed prosecutorial misconduct in closing argument; (13) the trial court failed to give appropriate jury instructions; (14) the trial court erred in its sentencing determination; and (15) the trial court erred in revoking his bond. After review, we conclude that the trial court erred in constructively amending the indictment in its charge to the jury and that the defendant’s convictions must be reversed and the case remanded for a new trial. In the event of further appellate review, we have assessed the defendant’s remaining issues and discern no additional error.