APPELLATE COURT OPINIONS

Appellant, Stephen Miguel Hernandez, and co-defendant, Justin Dexter Brummett, were indicted by the Davidson County Grand Jury in October of 2010 for first degree murder and aggravated robbery. After a jury trial, Appellant was found guilty of felony murder and the lesser included offense of facilitation of aggravated robbery. As a result of the convictions, Appellant was sentenced to life in prison for the felony murder conviction and five years for the facilitation of aggravated robbery conviction, to be served concurrently with the life sentence. After the denial of a timely motion for new trial, Appellant appealed. On appeal, he challenges the sufficiency of the evidence, particularly the credibility of his accomplice’s testimony. After a thorough review of the record and authorities, we determine that the testimony of co-defendant Brummett was sufficiency corroborated by other State witnesses. Further, the jury assessed the credibility of the witnesses and determined that the evidence was sufficient to support convictions for felony murder and facilitation of aggravated robbery, a task within their province. Accordingly, the judgment of the trial court is affirmed.

The Petitioner, James Wallie Robertson, appeals the Lawrence County Circuit Court’s summary dismissal of his petition for post-conviction relief from his 1995 guilty pleas to first degree murder, aggravated kidnapping, aggravated burglary, automobile burglary, two counts of forgery, and passing a forged check and his effective sentence of life imprisonment plus twenty-five years. He contends that the trial court erred by summarily dismissing his petition without appointing counsel or holding an evidentiary hearing. We affirm the judgment of the trial court.

A Williamson County Circuit Court Jury convicted the appellant, Robert Jason Burdick, of rape, aggravated kidnapping, and aggravated burglary. The trial court imposed a total effective sentence of thirty years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s denial of his motion to suppress, the sufficiency of the evidence sustaining his convictions, and the trial court’s jury instructions regarding the kidnapping offense in light of State v. White, 362 S.W.3d 559 (Tenn. 2012). Upon review, we affirm the judgments of the trial court.

Defendant, Marcus Terrell Church, was indicted by a Davidson County Grand Jury for aggravated robbery and especially aggravated kidnapping. His first trial ended in a mistrial. At a subsequent trial, Defendant was convicted as charged. The trial court imposed concurrent sentences of fifteen years as a Range II offender for aggravated robbery and twenty-five years as a Range I offender for especially aggravated kidnapping. On appeal, Defendant argues: (1) the trial court erred in denying his motion to suppress identification evidence; (2) the trial court improperly admitted evidence that Defendant committed an unrelated purse-snatching during the kidnapping in this case; (3) the trial court erred in admitting hearsay testimony concerning Defendant’s nickname; and (4) the trial court improperly sentenced Defendant. After a thorough review of the record, we affirm the judgments of the trial court.

I concur in the results reached and most of the reasoning in the majority opinion. I do not believe, however, that this court’s standard of review of hearsay in State v. Gilley, 297 S.W.3d 739 (Tenn. Crim. App. 2008), was "repudiated" or rejected by our supreme court in Pylant v. State, 263 S.W.3d 854, 871 n.26 (Tenn. 2008). In fact, the supreme court noted that the trial court’s ruling was error under either standard of review. Id. This is certainly not a rejection of Gilley.

I write separately to express my belief that in Pylant v. State, 263 S.W.3d 854, 871 n.26 (Tenn. 2008), the Tennessee Supreme Court indeed "repudiated" or rejected the de novo standard for review of hearsay issues adopted by the Court of Criminal Appeals in State v. Gilley, 297 S.W.3d 739, 759-60 (Tenn. Crim. App. 2008). The word "repudiate" means "to reject as having no authority or binding force." Webster’s New Universal Unabridged Dictionary 1636 (2nd ed. 1996). When I first joined Judge Witt’s decision in Gilley, I believed that we were setting forth a new and correct standard of review for hearsay issues and that we were providing a clear first step for any such analysis in the trial court. I still have nothing but respect for both Judge Witt’s reasoning and his conclusion in that case.

Appellant, Wesley Dawone Coleman, was indicted by the Obion County Grand Jury for aggravated burglary, theft of property valued at over $500, and evading arrest. After a jury trial, Appellant was convicted of theft of property valued at over $500, aggravated burglary, and evading arrest. As a result of the convictions, Appellant received an effective sentence of ten years. Appellant appeals, challenging the sufficiency of the evidence for the theft and aggravated burglary convictions as well as his sentence. After a review of the record and applicable authorities, we conclude that the evidence was sufficient to support the convictions and that the trial court did not abuse its discretion in sentencing Appellant as a Range II, multiple offender, to ten years in incarceration.

This direct appeal presents a certified question of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure. After the trial court denied his motion to suppress, the Defendant, Michael D. Boone, entered a guilty plea in the Davidson County Criminal Court to possession with intent to sell or deliver .5 grams or more of a substance containing cocaine, a Class B felony, and possession with intent to sell or deliver not less than one-half ounce or more than ten pounds of marijuana, a Class E felony. The trial court ordered the agreed sentence of twenty-four years in the Tennessee Department of Correction. Boone properly reserved the following certified question of law: “Does the affidavit of probable cause in the warrant . . . contain sufficient information to establish a nexus between the residence to be searched and criminal activity; and, if so, does the affidavit further contain reliable information of ongoing criminal activity so as to establish probable cause . . . ?” After a thorough review of the record and applicable authorities, we conclude that the trial court did not err when it determined the affidavit provided sufficient probable cause to support the search warrant. As such, we affirm the trial court’s order denying the Defendant’s motion to suppress, and we affirm the Defendant’s judgments of conviction.

Appellant, Lee Weaver, Jr., was indicted by the Hardin County Grand Jury for one count of aggravated assault based upon an altercation with his wife which resulted in her broken arm; one count of felony evading arrest; one count of reckless endangerment; and one count of resisting arrest. He entered a negotiated plea to the charges which resulted in an effective sentence of three years. Appellant requested alternative sentencing. After a hearing, the trial court denied his request. On appeal, Appellant argues that the trial court erred in denying his request to serve his sentence in Community Corrections or in the alternative to some form of probation. After a review of the record, we conclude: (1) that Appellant is not eligible for Community Corrections because he committed aggravated assault which is an offense against a person; and (2) that the trial court did not abuse its discretion in denying probation because it was necessary to avoid depreciating the seriousness of the offense. Therefore, we affirm the judgments of the trial court.

Because of the great deference afforded to a magistrate judge when making a probable cause determination, I concur with the conclusion reached by the majority in this case. I write separately, however, to express my reluctance in affirming the Defendant’s convictions. As an initial matter, there are several concerns with the affidavit. It contained a single introductory statement that the detective “received information that illegal narcotics were at the premises of 1409 Jackson Street.” However, it failed to provide the source of this information, the point in time when this information was received by the detective, or any specific details regarding the target residence or the illegal narcotics activity. Nothing in the affidavit established that the confidential informant knew that “John” was engaged in the sale of illegal narcotics from the target residence, that the target residence had been under police surveillance, or that any surveillance had uncovered illegal narcotics activity at or around the target residence. There is simply nothing in the affidavit connecting the confidential informant to the Defendant or the target residence. Finally, the affidavit failed to show any effort by law enforcement to identify the Defendant or establish that the target residence was, in fact, the Defendant’s home.
 

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B from the denial of a motion to recuse the trial court judge from presiding over a civil action in which one of the Defendants served on a non-profit board with the trial court judge. Having reviewed the Plaintiff’s petition for recusal appeal pursuant to Rule 10B of the Rules of the Tennessee Supreme Court, we affirm the Trial Court’s denial of the motion to recuse.

Defendant, Roy Demond Duncan, was convicted by a jury for attempted second degree murder, aggravated assault, and employment of a firearm during the attempt to commit a dangerous felony. The trial court merged Defendant’s aggravated assault conviction with his attempted second degree murder conviction and sentenced him to ten years, and Defendant received a sentence of ten years in Count 3 to be served consecutively, for a total effective sentence of 20 years. Defendant raises the following issues on appeal: 1) the trial court erred by giving a jury instruction as to Count 3 that unduly influenced the jury to find Defendant guilty of attempted second degree murder; 2) Defendant could not properly be convicted of both attempted second degree murder and employing a firearm during the attempt to commit a dangerous felony; and 3) the trial court erred by not bifurcating the trial to allow the jury to determine if Defendant had a prior felony conviction at the time of the offenses for the purposes of determining Defendant’s sentence. After a careful review of the record, we affirm Defendant’s convictions but remand this case for a jury determination regarding Count 3 as to whether Defendant had a prior felony conviction pursuant to Tenn. Code Ann. § 39-17-1324(f). Upon remand, the trial court shall also enter a corrected judgment in Count 3 to reflect that the offense for which Defendant was convicted in Count 3 is a Class C, rather than a Class D, felony.

The petitioner, Gerald Sanford, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance by not hiring DNA and blood spatter experts to testify at his trial. Following our review, we affirm the denial of the petition.

The defendant, Michael J. Fryar, appeals a certified question of law from the Sumner County Criminal Court, where he pleaded guilty to aggravated burglary. Because the prosecution of the aggravated burglary charge began before the expiration of the applicable statute of limitations, we affirm the judgment of the trial court.

The appellant, Charles Clevenger, was convicted in the Knox County Criminal Court of two counts of aggravated robbery, one count of felony evading arrest, three counts of misdemeanor simple possession, three counts of felony simple possession, possession of a legend drug, failure to obey a traffic control device, and violation of the financial responsibility law. After a sentencing hearing, he received an effective forty year sentence. On appeal, the appellant contends that the evidence is insufficient to support the aggravated robbery convictions, that the trial court erred by ruling he could be impeached with prior convictions if he decided to testify, and that some of his convictions violate double jeopardy protections. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the evidence is insufficient to support the appellant’s conviction for aggravated robbery by violence and that the conviction must be reversed. Moreover, we conclude that his convictions for misdemeanor simple possession of oxycodone, felony simple possession of oxycodone, and possession of a legend drug are multiplicitous with his remaining aggravated robbery conviction. Therefore, those three convictions are vacated and the charges are dismissed. The appellant’s remaining convictions and resulting effective forty-year sentence are affirmed.

The Petitioner, Richard C. Taylor, pled guilty to first degree premeditated murder and agreed to a life sentence. The Petitioner filed a pro se petition for post-conviction relief making several contentions regarding his competency. The Petitioner then filed a motion requesting a mental evaluation. The trial court held a hearing wherein it determined that the Petitioner had filed his petition beyond the statute of limitations. The trial court further determined, however, that the statute of limitations should be tolled if the Petitioner was, in fact, incompetent. It ordered the Petitioner to provide an affidavit from a treating physician saying he was incompetent at the time he entered his plea. The Petitioner failed to so do, and the trial court summarily dismissed the Petitioner’s petition. On appeal, the Petitioner contends that the trial court erred when it dismissed his petition because he was mentally incompetent to enter his guilty plea. After a thorough review of the record and applicable authorities, we conclude there exists no error in the judgment of the post-conviction court. Accordingly, the judgment of the trial court is affirmed.

This matter is before the Court upon the State’s motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, John W. Smith, has appealed the Davidson County Circuit Court order dismissing his second petition for writ of habeas corpus in which Petitioner alleged that: (1) his sentence is illegal; and (2) his guilty plea was not knowingly or voluntarily entered. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

Appellant, William Patrick Peebles, and his two co-defendants, were indicted by the Davidson County Grand Jury for three counts of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of use of a firearm during commission of a dangerous felony. After a jury trial, Appellant was convicted of all charges. The trial court sentenced Appellant to an effective sentence of fifty-eight years. On appeal, Appellant argues that the trial court erred in allowing the State to offer in evidence a videotape of an interview conducted by an officer, that the evidence was insufficient to support his convictions, and that the trial court erred in imposing consecutive sentences. After thorough review of the record, we determine that Appellant’s issues have no merit. Therefore, we affirm the judgments of the trial court.

Brenda Faye Brewington, Petitioner, was convicted by a Sumner County jury of two counts of aggravated child abuse of children age eight and under and two counts of child neglect of children under age six. The trial court sentenced Petitioner to an effective sentence of twenty-five years to be served at 100 percent. Petitioner was unsuccessful on direct appeal. State v. Brenda Faye Brewington and Brian Dewayne Brewington, No. M2007-01725-CCA-R3-CD, 2009 WL 142321 (Tenn. Crim. App., at Nashville, Jan. 21, 2009). Petitioner subsequently filed a petition for post-conviction relief arguing that she received ineffective assistance of counsel. The post-conviction court denied the petition after an evidentiary hearing. On appeal, Petitioner argues that the post-conviction court erred in denying her petition and that she received ineffective assistance of counsel because her trial counsel was a Sumner County constable at the time he represented her. She argues that his representation was deficient because there is a statutory prohibition on the practice of law by constables in the county for which they serve and that there is an inherent conflict when an attorney is a constable and represents a client for criminal charges. She also argues that this deficiency resulted in prejudice. We conclude that there is no statutory prohibition on the practice of law by a constable. However, such a situation does constitute a conflict so that representation of a client by a constable would be below the competence required of criminal representation. Nonetheless, the post-conviction court did not err in denying the petition because Petitioner was unable to prove that she was prejudiced by the deficient representation provided by trial counsel. Therefore, we affirm the denial of the petition.

This case presents an appeal to this Court after remand by order of the Tennessee Supreme Court. The Defendant, Kenneth D. Hubanks, appeals the trial court’s denial of his motion to suppress evidence obtained during the execution of a search warrant at his residence. The Defendant entered a plea of nolo contendre to his charges, felony cocaine possesion, felony marijuana possession, and possession of drug parahernalia but reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). In this appeal, the Defendant raises the issue of whether the affidavit upon which the search warrant was issued established probable cause to search his residence. After review, we hold no error occurred. Accordingly, the judgment of the trial court is affirmed.

Appellant, Daniel Ray Prince, entered pleas without recommended sentences to one count of burglary of a building other than a habitation and two counts of theft of property valued at $10,000 or more but less than $60,000. The two counts of theft of property merged into one count by operation of law. Following a sentencing hearing, the trial court sentenced appellant as a Range II, multiple offender to two six-year sentences to be served concurrently with each other but consecutively to sentences imposed in other jurisdictions. He appeals the trial court’s sentencing him as a Range II offender and imposing partial consecutive sentences. Discerning no error, we affirm the judgments of the trial court.

The Defendant, Michael Webster, challenges his bench trial conviction for theft of property, over $500, a Class E felony, contending that there was insufficient evidence presented at trial to prove his knowing commission of the offense and that the value of the property exceeded $500. After a review of the record and the applicable authorities, we conclude that the evidence was insufficient to prove that the property at issue exceeded $500, modify the conviction to theft of property, $500 or less, a Class A misdemeanor, and remand the case to the trial court for resentencing.

The Maury County grand jury indicted appellant, Jonathan Carl Davidson, for driving under the influence, second offense, and violation of the open container law. Following an unsuccessful motion to suppress the evidence, appellant entered a guilty plea to driving under the influence, second offense. Pursuant to the plea agreement, the State dismissed the violation of the open container law charge, and the trial court sentenced appellant to eleven months, twenty-nine days in the county jail, with forty-five days to serve. As a condition of the plea agreement, appellant reserved the right to certify a question of law challenging the legality of the initial traffic stop. Following our review, we affirm the trial court’s judgment.

The petitioner, Timothy Chatman, appeals the dismissal of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that his guilty pleas were knowing and voluntary and that he received effective assistance of trial counsel. Following our review, we affirm the dismissal of the petition.

The defendant, Terry Fossett, was convicted by a Shelby County Criminal Court jury of rape of a child, a Class A felony, and statutory rape by an authority figure, a Class C felony. He was sentenced to twenty-five years at 100% on the rape of a child conviction and three years as a Range I offender on the statutory rape conviction, to be served concurrently in the Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his convictions and that the State should have obtained a psychological examination of the victim. After review, we affirm the judgments of the trial court.