APPELLATE COURT OPINIONS

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner, Steven R. Chance, appeals the trial court’s dismissal of his petition for habeas corpus relief. Upon a review of the record, we are persuaded that the habeas corpus court was correct that the Petitioner is not entitled to habeas corpus relief. This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

The petitioner, Alonzo Fishback, appeals the post-conviction court’s denial of his petition for post-conviction relief from his convictions for especially aggravated kidnapping, aggravated assault, and possession of a weapon during the commission of an offense. He argues that he received the ineffective assistance of counsel at trial and on appeal. After review, we affirm the denial of the petition.

The petitioner, Andrew Soimis, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of counsel. Following our review, we affirm the denial of the petition.

The petitioner, Dwane Washington, appeals the post-conviction court’s ruling that he failed to prove prejudice by clear and convincing evidence after his case was remanded for a determination of prejudice. The proper standard of review was whether the petitioner had shown that there was a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial. After a careful review, we conclude that the post-conviction court used the wrong standard in requiring the petitioner to prove prejudice by clear and convincing evidence and that the record before us clearly establishes that there was a reasonable probability that, but for trial counsel’s inaccurate assurances that the petitioner was eligible for boot camp, he would not have pled guilty and would have insisted on going to trial. We reverse the judgment of the post-conviction court, vacate the petitioner’s judgment of conviction, and remand the case for a trial.

I agree with my colleagues that the common law writ of certiorari is the proper means to have this court address the trial court’s actions regarding improperly reducing the felony theft charge to unauthorized use of an automobile. I differ, though, in how the issue is addressed. I also agree with Judge Thomas that a new sentencing hearing is in order.

The Defendant, Scott D. Julian, was convicted by a Knox County Criminal Court jury of three counts of sexual battery by an authority figure, a Class C felony, and sexual exploitation of a minor, a Class D felony. See T.C.A. §§ 39-13-527, 39-17-1003 (2010). He was sentenced as a Range I, standard offender to three years’ probation for each of the sexual battery convictions and to two years’ confinement for the sexual exploitation conviction, to be served concurrently. On appeal, he contends that (1) the evidence was insufficient to support his convictions, (2) the State’s failure to provide a more specific bill of particulars deprived him of a fair trial and the ability to prepare a defense, (3) the trial court erred by denying his request to question witnesses about the existence of a sexual relationship between the victim and a witness, (4) the trial court erred by admitting a recorded telephone conversation between the Defendant and the victim, and (5) the State’s election of the offenses in counts three and five were not specific enough to ensure jury unanimity. We affirm the judgments of the trial court.

In this State appeal, the State challenges the Madison County Circuit Court’s decision dismissing the charges against the defendant and expunging them from her record, claiming that the trial court was without jurisdiction to take the action because the judgment had become final. Discerning no error, we affirm the judgment of the circuit court.

In this State appeal, the State contends that the trial court erroneously interfered with its plea negotiations with the defendant. The State has no right to appeal via the Tennessee Rules of Appellate Procedure. Because the State’s claim in case number 33292 regarding the trial court’s acceptance of the defendant’s guilty plea to a community corrections violation is not reviewable via the common law writ of certiorari, a majority has concluded, albeit on different grounds, that the State’s claim in that regard should be dismissed. Because the record establishes that the trial court acted outside its authority in case number 35646, a majority has reviewed the State’s claims in that case via the common law writ of certiorari and has concluded that the trial court was without authority to accept the defendant’s plea of guilty to the lesser included offense of unauthorized use of an automobile without the consent of the State. In consequence, the conviction of the unauthorized use of an automobile is vacated and reversed, and that count of the indictment is remanded to the trial court for further proceedings on the original charge of theft of property valued at more than $1,000 but less than $10,000. With regard to the sentences imposed in both cases, a majority of the court that does not include the author of this opinion has concluded, on differing grounds, that a remand for resentencing is appropriate.

A Tipton County Circuit Court jury convicted the appellant, Tony Arness Degraffreed, 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 one hundred percent. On appeal, the appellant contends that (1) the evidence is insufficient to support the conviction, (2) the trial court erred by refusing to require the jury to determine whether his penetration of the victim was digital or penile, and (3) the State improperly commented on the appellant’s failure to testify during it closing argument. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

I agree with the majority’s conclusion that the trial court was without authority to reduce the charge of theft of property valued at more than $1,000 but less than $10,000 and that the Defendant’s conviction of unauthorized use of an automobile is void. However, I respectfully disagree with the majority’s conclusion that the common law writ of certiorari does not provide the State with an avenue in which to appeal the entirety of the trial court’s actions. While I agree that the trial court effectively rejected the plea agreement, the trial court merely imposed a sentence of its own choosing without affording the State an opportunity to participate in a sentencing hearing. See State v. Leath, 977 S.W.2d 132, 136 (Tenn. Crim. App. 1998) (concluding that the trial court “exceeded its authority by unilaterally reducing the [defendant’s] sentence”). Moreover, I believe that the trial court violated Rule 11 of the Tennessee Rules of Criminal Procedure by advising the Defendant of the sentence he would receive if he decided to plead guilty in the absence of an agreement with the State. Rule 11 provides, “The district attorney general and the defendant’s attorney, or the defendant when acting pro se, may discuss and reach a plea agreement. The court shall not participate in these discussions.” If the Tennessee Rules of Criminal Procedure effectively prohibit the trial court from participating in the plea negotiation process, these rules most certainly must prohibit the trial court from excluding the State from the negotiation process and crafting its own agreement with the Defendant. Accordingly, I believe that the trial court exceeded its authority in this case and that the case should be remanded for a sentencing hearing.

The Defendant-Appellant, Undray Luellen, was indicted by the Shelby County Criminal Court for three counts of especially aggravated kidnapping, one count of aggravated robbery, and one count of aggravated burglary. The aggravated robbery count was dismissed during trial, without opposition from the State, following the defense’s motion for judgment of acquittal. At the conclusion of the jury trial, Luellen was convicted of two counts of especially aggravated kidnapping, a Class A felony; one count of aggravated kidnapping, a Class B felony, and one count of aggravated criminal trespass, a Class A misdemeanor. He was sentenced as a Range I, violent offender to two consecutive sentences of twenty-two years for the especially aggravated kidnapping convictions and a concurrent ten-year sentence for the aggravated kidnapping conviction. He was also sentenced to a concurrent sentence of eleven months and twenty-nine days for the aggravated criminal trespass conviction. The trial court merged the aggravated kidnapping conviction involving the child victim with the especially aggravated kidnapping conviction involving the child victim. The trial court then imposed an effective sentence of forty-four years in the Tennessee Department of Correction. In this appeal, Luellen argues: (1) the trial court erred in admitting three items of testimony; (2) the trial court erred in refusing to consolidate his two indictments for especially aggravated kidnapping; (3) the trial court erred in ruling that his prior conviction for aggravated robbery was admissible for impeachment purposes; (4) the cumulative errors at trial required a reversal; and (5) his sentence was excessive. Upon review, we affirm the judgments of the trial court but remand for entry of a corrected judgment to insert a service  percentage of seventy-five percent for the aggravated criminal trespass conviction.

A Shelby County Criminal Court jury convicted the defendant, Gary Bohannon, of one count of premeditated first degree murder, see T.C.A. § 39-13-202(a)(1) (2006), for which he received a life sentence. In addition to challenging the sufficiency of the evidence to support his conviction, the defendant also contends that the trial court erroneously admitted as evidence at trial (1) a witness’s statement to law enforcement, (2) a crime scene photograph of the deceased victim, and (3) a tape recording of the 9-1-1 telephone call reporting the shooting. Discerning no reversible error, we affirm the judgment of the trial court.

The petitioner, John Britt, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief. Following a jury trial, the petitioner was convicted of two counts of solicitation to commit first degree murder and is currently serving consecutive eight-year sentences. On appeal, the petitioner contends that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective for failing to use the entrapment defense at trial. Following review of the record, we conclude no error exists and affirm the judgment of the post-conviction court.

The Defendant-Appellant, Jamar McField, was convicted by a Hamilton County jury of first degree felony murder and aggravated child abuse. He received a life sentence with the possibility of parole for felony murder and a concurrent sentence of twenty years for aggravated child abuse. On appeal, McField claims: (1) the trial court erred 1 in denying his motion to suppress; (2) the insufficiency of the evidence; (3) the trial court improperly ruled that an autopsy photograph was admissible; and (4) the trial court misapplied an enhancement factor during sentencing. Upon review, we affirm the judgments of the trial court.

The Petitioner, Willis Ayers, appeals as of right from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner was convicted of second degree murder and facilitation of especially aggravated robbery and received an effective sentence of 36 years in the Tennessee Department of Correction. He challenges the performance of trial counsel. Following our review, we affirm the judgment of the postconviction court.

A Bedford County Circuit Court jury convicted the defendant of one count of aggravated robbery, see T.C.A. 39-13-402(a)(1) (2006), for which he received a sentence of 11 years’ incarceration. In addition to challenging the sufficiency of the evidence to support his conviction, the defendant argues on appeal that the trial court erred by (1) denying his motion to suppress the photographic lineup identification, (2) denying his motion to suppress evidence, (3) allowing testimony concerning an officer’s identification of him as a suspect, (4) denying his motion to recuse the trial judge, (5) denying his motions for mistrial, and (6) ordering his sentence to be served consecutively to previously imposed sentences. Discerning no reversible error, we affirm the judgment of the trial court.

The Defendant, Steven F. Smith, appeals as of right from the Sullivan County Criminal Court’s revocation of probation and order of incarceration. The Defendant contends that the trial court erred in rejecting his defense of insanity. Following our review, we affirm the judgment of the trial court.

I concur in the majority’s conclusion that the trial court properly revoked the Defendant’s probation. However, I disagree with the majority’s conclusion that the defense of insanity does not apply to probation violations. I believe the defense can apply in certain cases.

A Washington County Criminal Court jury convicted the appellant, Doris Ann Whaley, of first degree premeditated murder, and the trial court sentenced her to life. On appeal, the appellant contends that (1) the evidence is insufficient to support the conviction, (2) the trial court violated Tennessee Rule of Evidence 611(a) by convincing her son to testify against her, (3) the trial court erred by admitting evidence regarding a telephone conversation the appellant had with a witness after the appellant’s son testified, and (4) the trial court erred by refusing to give the jury a flight instruction. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

The appellant, Tracy J. Brooks, pled guilty in the McMinn County Circuit court to driving under the influence (DUI) and received a sentence of eleven months, twenty-nine days to be served as forty-eight hours in jail and the remainder on probation. As a condition of her plea, the appellant reserved a certified question of law, namely whether the police officer had reasonable suspicion to initiate a traffic stop. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

The petitioner, Richard T. Hanke, Sr., appeals the denial of post-conviction relief by the Circuit Court of Madison County. He pled guilty to simple robbery, aggravated burglary, aggravated assault, possession of a weapon with intent to employ during the commission of a felony, retaliation for past action, and two counts of kidnapping. He received an effective sentence of fourteen years. In this appeal, he claims he received ineffective assistance of counsel and requests a delayed appeal in which to challenge his sentence. Upon review, we reverse the judgment of the post-conviction court and grant a delayed appeal.

The Defendant-Appellant, Albert Dorsey, was convicted by a Shelby County jury of first degree premeditated murder and sentenced to life without the possibility of parole. On appeal, Dorsey claims: (1) his conviction was not supported by sufficient evidence; (2) the aggravating circumstance used to impose his sentence of life without the possibility of parole was not supported by sufficient evidence; and (3) the trial court erred by admitting several photographs of the victim. Upon review, we affirm the judgment of the trial court.

The petitioner, Christopher Carter, appeals the denial of his petition for post-conviction relief. In this appeal, he contends that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

A Shelby County Criminal Court jury convicted the defendant, Anthony Boyland, of first degree murder committed in the perpetration of an aggravated burglary, see T.C.A. § 39-13-202(a)(2)(2006); aggravated assault by the use of a deadly weapon, see id. § 39-13-102(a)(1)(B); and aggravated burglary, see id. § 39-14-403(a), and the trial court imposed an effective life sentence in the custody of the Department of Correction. In addition to attacking the sufficiency of the evidence to support his convictions, the defendant contends that the trial court erred by (1) determining that he was competent to stand trial, (2) excluding evidence of a mental disease or defect that would have negated mens rea, (3) excluding evidence of a victim’s pending criminal charges, (4) denying his special requests for jury instructions concerning imperfect self-defense and passion, and (5) instructing the jury concerning flight. Discerning no error, we affirm the judgments of the trial court.

The Defendant, Calvin Austin, was indicted for aggravated robbery, aggravated burglary, and employment of a firearm during the commission of a dangerous felony. The trial court dismissed the employment of a firearm charge. Following a jury trial, the trial court declared a mistrial as to the aggravated burglary charge because the jury had failed to reach a verdict on that count. The Defendant was convicted of the lesser-included offense of robbery, a Class C felony, and sentenced as a Range III, persistent offender to 14 years in the Tennessee Department of Correction. In this appeal as of right, the Defendant contends that the evidence is insufficient to sustain his conviction of robbery. We affirm the judgment of the trial court.