APPELLATE COURT OPINIONS

The Defendant, Vincent John Elliott, Jr., pled guilty to second degree murder and reserved a certified question of law concerning whether his right to a speedy trial was violated. Also on appeal, the Defendant argues that the trial court abused its discretion by sentencing him to eighteen years instead of the minimum sentence of fifteen years. Upon review, we conclude that we lack jurisdiction to review the Defendant’s certified question and respectfully dismiss that portion of the appeal. We further conclude that the trial court acted within its discretion in sentencing the Defendant. Accordingly, we respectfully affirm the Defendant’s conviction and sentence in all respects.

Following his conviction for first degree murder, the Petitioner, Jose Lemanuel Hall, filed a petition for post-conviction relief alleging that he was denied the effective assistance of counsel. The post-conviction court denied the petition after an evidentiary hearing. On appeal, the Petitioner argues that trial counsel failed to meet with him adequately and failed to object to the State’s opening statement. He also argues that the requirement to show actual prejudice in post-conviction proceedings is overly burdensome and conflicts with constitutional protections. We respectfully affirm the judgment of the post-conviction court.

Defendant, Juan Lasean Perry, appeals the denial of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct an illegal sentence. Discerning no error, we affirm.

The Petitioner, Cody Ricky Cofer, was convicted in the Cumberland County Criminal
Court of two counts of first degree felony murder and one count of attempted especially
aggravated robbery and received an effective sentence of two consecutive life terms. The
Petitioner filed a petition for writ of error coram nobis based on newly discovered evidence,
and the coram nobis court denied the petition without a hearing because the petition was
untimely. On appeal, the Petitioner claims that the coram nobis court erred by summarily
denying the petition without first considering whether the statute of limitations should be
tolled on due process grounds. The State argues that we should dismiss the appeal because
the Petitioner’s notice of appeal also was untimely. Based upon the oral arguments, the
record, and the parties’ briefs, we agree with the State and conclude that the appeal should
be dismissed.

The Defendant, Antwain Tapaige Sales, appeals the Bedford County Circuit Court’s order dismissing his claim that his judgments of conviction for second degree murder and attempted second degree murder are fraudulent and void. After review, we conclude that the appeal should be dismissed.

A Madison County jury found the Defendant, Montreal Portis Robinson, guilty of felony
murder in the perpetration of a theft, especially aggravated kidnapping, robbery, and theft
of property. On appeal, the Defendant argues that the evidence is insufficient to sustain
his convictions. We conclude that the evidence is sufficient to support the Defendant’s
convictions for especially aggravated kidnapping and robbery. However, we also conclude
that the evidence is insufficient to support the Defendant’s convictions for theft and felony
murder in the perpetration of a theft. Accordingly, we dismiss the theft charge, and we
modify the Defendant’s conviction for felony murder to that of second degree murder as a
lesser-included offense. We respectfully remand the case for further proceedings
consistent with this opinion, including the entry of a modified judgment and a sentencing
hearing on the conviction for second degree murder.

Defendant, Lester Tolliver, appeals as of right from his jury conviction for aggravated rape,
for which he received a sentence of twenty-five years. On appeal, Defendant contends that
the evidence was insufficient to support his conviction and that the trial court erred by (1)
admitting hearsay statements, specifically the victim’s reporting the rape to a friend and
the victim’s statement to a police officer; (2) admitting the victim’s testimony that she had
been sexually assaulted previously; (3) admitting testimony from an expert witness
regarding why a victim might lie about having had sexual activity in the days preceding a
sexual assault; and (4) denying Defendant’s request for a special jury instruction.
Following our review, we affirm.

The Petitioner, Tyler D. Bolton, appeals the Washington County Criminal Court’s denial of his petition for post-conviction relief from his guilty-pleaded convictions for possession of twenty-six grams or more of methamphetamine with intent to sell, unlawful possession of a firearm, and two counts of aggravated burglary.  On appeal, the Petitioner argues that the post-conviction court erred by denying his motion in limine to exclude jail call recordings from the post-conviction hearing.  The Petitioner also argues that the post-conviction court erred by denying relief on his claims alleging that he received the ineffective assistance of trial counsel by trial counsel’s failing to adequately investigate the Petitioner’s mental health history and request a mental health evaluation prior to advising him to accept a plea offer.  We affirm the judgment of the post-conviction court.

The Defendant, Frank M. Green, was convicted by a Davidson County Criminal Court jury of rape in Counts 1 and 3 and assault by extremely offensive or provocative physical contact in Counts 2 and 4 and was acquitted of the charge of aggravated kidnapping in Count 5. The Defendant filed a post-trial motion for judgment of acquittal as to the rape conviction in Count 3 and the assault conviction in Count 4. The trial court denied this motion but merged Count 3 with Count 1 and merged Count 4 with Count 2. Following a sentencing hearing, the trial court imposed a sentence of ten years for each of the rape convictions and a sentence of eleven months and twenty-nine days for each of the assault convictions and ordered the rape and assault convictions served concurrently, for an effective sentence of ten years. On appeal, the Defendant argues: (1) the State’s faulty election of offenses led the trial court to provide erroneous and misleading jury instructions, which undermined the integrity of the jury’s verdict; (2) the evidence is insufficient to sustain the convictions in count 3 for rape and count 4 for assault; and (3) the convictions in Counts 2 and 4 reflect the incorrect offense class and sentence. Because the State failed to demonstrate beyond a reasonable doubt that errors regarding the election, the charge, and the supplemental jury instructions were harmless, we reverse the Defendant’s convictions and remand the case for a new trial on the offenses of rape in Counts 1 and 3 and the offenses of assault by extremely offensive or provocative physical contact in Counts 2 and 4.

I agree with the majority’s conclusion that the State’s election of the offenses was flawed and that the trial court erred in instructing the jury pursuant to the State’s faulty election. Cf. State v. Ellis, 89 S.W.3d 584, 596 (Tenn. Crim. App. 2000) (“[B]ecause the election requirement is ‘fundamental, immediately touching the constitutional rights of an accused,’ a trial court has a duty even absent a request by the defendant to ensure the timely election of offenses by the State and to properly instruct the jury concerning the requirement of a unanimous verdict.” (quoting Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973)). I part ways with the majority regarding the remedy to which the Defendant is entitled for the double jeopardy issue which resulted from the State’s flawed election and the court’s reliance upon the election in its jury instructions.

Michael Mosley, Defendant, claims the evidence was insufficient to support his conviction of attempted aggravated assault, that the trial court erred by not requiring the State to make an election as to the precise definition of serious bodily injury for which a conviction was being sought, and that the trial court erred by denying Defendant’s request for two special jury instructions. Discerning no error, we affirm the judgment of the trial court.

A Sumner County jury convicted the defendant, Steven Lamont Anderson, of unlawful possession of a firearm after being convicted of a felony involving violence and unlawful possession of a handgun by a convicted felon, for which he received an agreed-upon sentence of twelve years in confinement. On appeal, the defendant contends the evidence presented at trial was insufficient to support his convictions. The defendant also argues the trial court erred in denying his motion to suppress and in sentencing the defendant as a Range II offender. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

The Defendant, Marlon Jackson, appeals the trial court’s revocation of his three-year
probationary sentence for attempted possession of methamphetamine with the intent to sell
or deliver. The trial court revoked the Defendant’s probation after determining that he
materially violated his probation sentence for engaging in criminal activity and being
charged with new offenses. On appeal, the Defendant asserts that the trial court abused its
discretion when it revoked his probation because the evidence to support the violation was
“inconclusive, contradictory, and based upon unreliable hearsay.” After review, we
conclude that the record supports the trial court’s finding that the Defendant violated the
terms of his probation sentence.

Fredrick Munn, Defendant, appeals from the Shelby County Criminal Court’s order
revoking his probation and ordering him to serve his original three-year sentence in
confinement. Upon review, we reverse the judgment of the trial court and remand for a
new revocation hearing.

Defendant, Mark Eric Howard, was convicted after a jury trial of second degree murder, a
Class A felony, and sentenced to twenty-five years in confinement. On appeal, Defendant
argues that the evidence was insufficient to support his conviction for second degree
murder. After a thorough review of the record, we affirm the judgment of the trial court.

The Petitioner’s original and untimely petition for post-conviction relief was dismissed on the merits because all his claims were either waived or previously determined. Thereafter, the Petitioner filed a second petition alleging that the statute of limitations for his first petition should have been tolled due to his then mental incompetency. The post-conviction court dismissed the second petition, finding that the Petitioner was not mentally incompetent. On appeal, we conclude that, because the Petitioner’s first petition was resolved on the merits, any second or subsequent petition is barred, and any issue regarding the timely filing of the first petition is immaterial. Accordingly, we respectfully affirm the judgment of the post-conviction court.

The Defendant, Kristopher Johnson, was convicted by a Knox County Criminal Court jury
of two counts of facilitation of first degree felony murder, a Class A felony; two counts of
criminally negligent homicide, a Class E felony; two counts of aggravated robbery, a Class
B felony; tampering with evidence, a Class C felony; aggravated burglary, a Class C
felony; and aggravated assault, a Class C felony. See T.C.A. §§ 39-11-403 (2018)
(facilitation), 39-13-202(a)(2) (2018) (subsequently amended) (first degree felony murder),
39-13-212(a) (2018) (criminally negligent homicide), 39-13-402 (2018) (aggravated
robbery), 39-16-503 (2018) (tampering with evidence), 39-14-403 (2018) (repealed and
replaced by § 39-13-1003) (aggravated burglary), 39-13-102 (Supp. 2017) (subsequently
amended) (aggravated assault). The court merged the criminally negligent homicide
convictions with the facilitation of first degree felony murder convictions. The court
sentenced the Defendant, a Range II offender, to thirty years for each of the counts of the
facilitation of first degree felony murder, eighteen years at 85% for each of the counts of
aggravated robbery, ten years for tampering with evidence, ten years for aggravated
burglary, and ten years for aggravated assault. The court imposed partially consecutive
sentencing, with an effective sentence of seventy years. On appeal, the Defendant contends
that: (1) the evidence is insufficient to support his convictions for the homicide and robbery
offenses, (2) the court erred in allowing the State to introduce evidence of the Defendant’s
street gang affiliation, (3) he was denied his fundamental right to cross-examine two
witnesses, (4) the court erred in ruling that a witness’s statement was hearsay, (5) the court
erred in determining that no violation of Tennessee Rule of Evidence 615 regarding
sequestration of witnesses occurred, (6) cumulative trial errors require reversal, and (7) the
court erred in its application of a sentencing enhancement factor. We affirm the judgments
of the trial court.

The Defendant, Charles Hollon, has been charged with second degree murder through the
delivery of fentanyl pursuant to Tennessee Code Annotated section 39-13-210(a)(3). In
this interlocutory appeal, the issue is whether the State must prove beyond a reasonable
doubt that the Defendant knew the substance being unlawfully distributed or delivered was
fentanyl or carfentanil. In a proposed jury instruction, the trial court held that it did, but
we respectfully disagree. Instead, we hold that the State may satisfy this element by
proving beyond a reasonable doubt that (i) the defendant disregarded a substantial and
unjustifiable risk that the substance delivered to the user was fentanyl or carfentanil; and
(ii) the defendant’s disregard of that risk constitutes a gross deviation from the standard of
care that an ordinary person would exercise under all the circumstances as viewed from the
defendant’s standpoint. Accordingly, we respectfully vacate the trial court’s order and
remand the case for further proceedings.

The Defendant, Harrison Alexander Mason, was convicted in the Fayette County Circuit
Court of three counts of rape of a child, three counts of aggravated sexual battery, and one
count of solicitation of a minor and received an effective sentence of fifty-seven years in
confinement. On appeal, the Defendant contends that the trial court committed plain error
by failing to exclude statements made by the victim during her forensic interviews pursuant
to Tennessee Rule of Evidence 404(b); that the trial court committed plain error by giving
a “vague” curative instruction and waiting until the final jury charge to give the instruction;
and that the trial court’s errors require reversal of the convictions under the cumulative
error doctrine. Based upon the oral arguments, the record, and the parties’ briefs, we affirm
the judgments of the trial court.

The defendant, Quincy M. Gordon, entered an open plea to one count of forgery, and based
on his prior Michigan convictions, the trial court sentenced the defendant as a Range III,
career offender to six years’ incarceration in the Tennessee Department of Correction. On
appeal, the defendant argues the trial court erred in sentencing him as a Range III, career
offender based on his out-of-state convictions. Following our review, we reverse the
judgment of the trial court and remand for a new sentencing hearing.

Daniel Benson Taylor, Petitioner, appeals from the dismissal of his Renewed Petition for
Writ of Habeas Corpus (“the Renewed Petition”). Because the Renewed Petition does not
comply with the procedural requirements of Tennessee Code Annotated sections 29-21-
107(a) and (b)(1), (3), and (4), we affirm the judgment of the habeas corpus court.

Following a jury trial, the Defendant, Roderick Turner, was convicted in the Dyer County
Circuit Court of three counts of aggravated assault, a Class C felony, and one count of
convicted felon in possession of a handgun, a Class E felony. The trial court sentenced the
Defendant as a Range III, persistent offender to ten years for each aggravated assault
conviction and four years for the convicted felon in possession of a handgun conviction
and ordered that the sentences be served consecutively, for a total effective sentence of
thirty-four years in the Tennessee Department of Correction. On appeal, the Defendant
contends that the evidence is insufficient to sustain his aggravated assault convictions and
that the trial court erred in ordering consecutive sentences. Based on our review, we affirm
the judgments of the trial court. We remand for the entry of corrected judgments in counts
one and two to reflect that the Defendant’s convictions for misdemeanor assault were
merged into the aggravated assault convictions involving the same victims.

The Petitioner-Appellant, Chad V. Hughes, entered a guilty plea to exploitation of a minor by electronic means, a class C felony, and theft of property less than $1000, a class A misdemeanor.1 Pursuant to the plea agreement, the Petitioner received a suspended sentence of five years’ probation for the conviction of exploitation of a minor by electronic means and time served for the theft conviction. As part of the special conditions of probation, the Petitioner was subject to the requirements of the sex offender registry and required to have no contact with his ex-wife, his step-daughter-victim, or his biological daughter without a juvenile/divorce court order. The Petitioner now appeals the denial of post-conviction relief, alleging ineffective assistance of trial counsel in failing to pursue a bond reduction, in failing to conduct a pre-trial investigation, in failing to retain a digital forensic examiner, and in failing to advise the Petitioner of the legal implications that pleading guilty to exploitation of a minor by electronic means would have on his dependency and neglect case. Based on trial counsel’s alleged deficiencies, the Petitioner argues that his guilty plea was not knowingly and voluntarily entered. Upon our review, we affirm.

The Petitioner, Justus G. Onyiego, was convicted in the Shelby County Criminal Court of
two counts of aggravated rape based on alternative theories. The trial court sentenced the
Petitioner to seventeen years for each conviction and merged the convictions. This court
affirmed the convictions, and the Petitioner filed a petition for post-conviction relief,
claiming that he received the ineffective assistance of counsel at trial and on appeal. The
post-conviction court held an evidentiary hearing, granted relief, and ordered a new trial
for both counts based on trial counsel’s failure to request jury instructions on any lesserincluded
offenses. The State appeals, claiming that the post-conviction court erred by
granting relief, and the Petitioner cross-appeals, claiming that the post-conviction court
erred by denying relief on his various other claims of ineffective assistance of counsel, that
the cumulative effect of trial counsel’s errors warrants relief, and that the post-conviction
court erred by denying his requests for funding for an investigator and a DNA expert.
Based on the oral arguments, the record, and the parties’ briefs, we reverse the postconviction
court’s granting relief for the Petitioner’s conviction of aggravated rape causing
bodily injury and reinstate his conviction for that offense. The judgment of the postconviction
court is affirmed in all other respects, and the case is remanded to the trial court
for further proceedings consistent with this opinion.

The defendant, Crystal Ann Michael, was convicted by a Coffee County jury of theft of property under $1,000, a Class A misdemeanor, and sentenced to sixty days in jail. On appeal, the defendant argues the evidence is insufficient to sustain her conviction. After review, we affirm the judgment of the trial court.