APPELLATE COURT OPINIONS

On January 17, 2007, Petitioner, Joshua Jacobs, pled guilty in the Warren County Circuit Court to one count of first degree murder, one count of aggravated burglary, and one count of aggravated rape. On October 7, 2009, the post-conviction court received and filed a pro se petition for post-conviction relief for Petitioner. The post-conviction court summarily dismissed the petition as time-barred. On appeal to this Court, Petitioner argues that the postconviction court erred because applying the statute of limitations to his case is a denial of due process. We have reviewed the record on appeal and find that there is no violation of Petitioner's due process rights in the dismissal of his time-barred petition. Therefore, we affirm the decision of the post-conviction court.

The petitioner, Marico Finnie, appeals from the post-conviction court's order granting him partial post-conviction relief in the form of a delayed appeal from his multiple aggravated rape, aggravated robbery, and facilitation of aggravated rape convictions. He argues that because his successful post-conviction claim was based on appellate counsel's ineffective assistance in not raising meritorious issues in his direct appeal, and he never requested a delayed appeal, the court instead should have vacated his convictions and remanded for new trials. The State agrees that a delayed appeal is not the appropriate avenue of relief but contends that appellate counsel's deficiency resulted in prejudice only with respect to the consecutive sentencing imposed and in two of the aggravated rape convictions where the State failed to make a proper election of offenses. The State, therefore, argues that the petitioner should be afforded new trials for the two aggravated rape convictions as well as a new sentencing hearing for all the convictions. We agree with the State that a delayed appeal is not the appropriate relief but disagree with its contention that the petitioner suffered prejudice in only two of his rape cases as a result of counsel's deficient performance in failing to raise the election issue on appeal. We further disagree with both the petitioner's and the State's position that the trial court failed to make sufficient findings in support of the imposition of consecutive sentencing or that counsel was ineffective for failing to raise this issue on appeal. Accordingly, we reverse the judgment of the post-conviction court in part, vacate the petitioner's convictions in indictment numbers 00-10546, 00-10542, 00-10554, and 00-10545, and remand for new trials for those offenses.

Petitioner, Gary C. Bullington, was convicted of driving under the influence ("DUI"), felony evading arrest, driving on a revoked license, and two counts of vehicular assault. State v. Bullington, No. M2005-02227-CCA-R3-CD, 2006 WL 1816325, at *1 (Tenn. Crim. App., at Nashville, June 27, 2006), perm. app. denied, (Tenn. Oct. 30, 2006). Petitioner filed a pro se petition for post-conviction relief. The post-conviction court initially determined that the petition was not time-barred because Petitioner did not receive notice of the denial of permission to appeal. After a hearing, the post-conviction court determined that counsel was ineffective in two areas but denied post-conviction relief on the basis that Petitioner did not suffer prejudice as a result of the deficiency. Petitioner now appeals the denial of postconviction relief. After a review of the record, we determine Petitioner has failed to show that he was prejudiced by counsel's actions. Accordingly, the judgment of the postconviction court is affirmed.

The Defendant, James Paris Johnson, appeals his convictions by a jury in the Campbell County Criminal Court for aggravated assault, a Class C felony, and public intoxication, a Class C misdemeanor. The Defendant was sentenced as a Range III, persistent offender to twelve years in prison for the aggravated assault and to thirty days' incarceration for the public intoxication, to be served concurrently. The Defendant contends that (1) the evidence is insufficient to sustain his conviction for aggravated assault, (2) the trial court erred by sentencing him as a Range III, persistent offender; and (3) he was denied the effective assistance of counsel. We hold that the trial court erred by sentencing the Defendant as a Range III, persistent offender. We affirm the Defendant's convictions, but we remand the case for resentencing for the aggravated assault conviction.

A Lincoln County jury convicted the Petitioner, Tony E.Cannon, Jr., of attempted second degree murder, aggravated assault, and felony reckless endangerment, and the trial court imposed an effective sentence of twelve years. On direct appeal, this Court affirmed the Petitioner's convictions and sentence. State v. Tony E. Cannon, Jr., No. M2007-00557- CCA-R3-CD, 2008 WL 2448341, at *1 (Tenn. Crim. App., at Nashville, June 18, 2008), no Tenn. R. App. P. 11 application filed. The Petitioner then filed a petition for post-conviction relief in which he alleged that he received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. On appeal, the Petitioner contends the post-conviction court erred when it dismissed his petition. After a thorough review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

The petitioner, Robert Allen Crawford, appeals the Washington County Criminal Court's denial of post-conviction relief and claims that his convictions of first degree murder, criminally negligent homicide, aggravated burglary, aggravated assault, and reckless endangerment were the results of the ineffective assistance of trial counsel. Following an evidentiary hearing on the petitioner's timely petition for post-conviction relief, the criminal court denied relief. Upon our review of the record and the parties' briefs, we affirm the order of the criminal court.

In this capital case, the defendant, Joel Richard Schmeiderer, was convicted of first degree premeditated murder in connection with the strangling death of a fellow inmate. The jury imposed a sentence of death for the murder based on two aggravating circumstances. The Court of Criminal Appeals affirmed. On automatic appeal pursuant to Tennessee Code Annotated section 39-13-206(a)(1), we designated the following issues for oral argument: 1) whether the trial court abused its discretion by denying the defendant's motion for a second continuance; 2) whether this denial of a continuance violated the defendant's constitutional right to present mitigation evidence during the sentencing phase; 3) whether the trial court erred by allowing the State to introduce into evidence and argue a non-statutory aggravating circumstance during the sentencing phase; 4) whether the prosecutor's closing argument during the sentencing phase constituted plain error mandating reversal; and 5) whether the sentence of death is disproportionate or invalid under the mandatory review of Tennessee Code Annotated section 39-13-206(c)(1). Having carefully reviewed the record and relevant legal authority, we conclude that none of the errors alleged by the defendant warrant relief. With respect to issues not herein specifically addressed, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are published hereafter as an appendix. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

The petitioner, Robert Clay Priest, who pleaded guilty in the Blount County Circuit Court to multiple offenses and was sentenced to 29 years' confinement, appeals from that court's dismissal of his petition for post-conviction relief. On appeal, he claims that he was mentally incompetent to enter into a plea agreement, that the trial court failed to ask him to enter a guilty plea, and that the post-conviction court erroneously excluded his expert witness. We discern no error and affirm the order of the circuit court.

The Defendant, Charles Reginald Underwood, Jr., pled guilty to three counts of third offense driving on a revoked or suspended license, a Class A misdemeanor; violation of the seat belt law, a Class C misdemeanor; and speeding, a Class C misdemeanor. See T.C.A. __ 55-50- 504 (Supp. 2009); 55-9-603(2008); 55-8-302 (2008). The defendant also entered a best interest guily plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to facilitation of a false report of child abuse, a Class A misdemeanor. T.C.A. _ 37-1-413 (2005). At the sentencing hearing, the trial court imposed an effective sentence of three years, eleven months, and twenty-five days, to be served on split confinement involving six months of jail service followed by probation conditioned upon community corrections participation. On appeal, the defendant contends that the trial court erred in imposing confinement and in denying his motion to reduce his sentence. We affirm the judgments of the trial court.

Brothers Ako Hassan Nejad and Aso Hassan Nejad were found guilty of conspiracy to commit first degree murder, a Class A felony, and each received a twenty-five-year sentence as a Range I, standard offender. Ako Nejad was also found guilty of attempted second degree murder, a Class B felony, and received an additional consecutive sentence of twelve years. On appeal, the defendants claim that: the evidence was insufficient to support their convictions; their indictments were insufficient; a mistrial should have been declared after a witness testified that one of the brothers was a gang member; certain inculpatory evidence was improperly admitted; newly discovered evidence discredits the State's theory of motive; and their sentences were excessive. We reject each of these claims and affirm their convictions and sentences.

The defendant, James Edward Farrar, Jr., appeals the revocation of his probation, alleging that the State presented insufficient evidence to establish that he violated the terms of his probationary sentence. We reverse the judgment of the trial court.

The Defendants, Nelson Aguilar Gomez and Florinda Lopez, were charged with: Count One, first degree felony murder during the perpetration of aggravated child abuse; Count Two, first degree felony murder during the perpetration of aggravated child neglect; Counts Three and Four, aggravated child abuse occurring on or about March 3, 2007; and Count Five, aggravated child abuse occurring in February 2007. Aggravated child abuse is a Class A felony. See Tenn. Code Ann. _ 39-15-402(b). The defendants were tried jointly before a jury. Defendant Gomez was convicted of both counts of felony murder, Count One merging into Count Two, and sentenced to life with the possibility of parole. He was also convicted of all three counts of aggravated child abuse and sentenced as a violent offender to twenty-five years for each conviction. The trial court ordered him to serve his Count Three and Count Four aggravated child abuse sentences concurrently with each other and his life sentence, and ordered him to serve his Count Five aggravated child abuse sentence consecutively to his other sentences, for a total effective sentence of life plus twenty-five years in the Department of Correction. On her felony murder charges, Defendant Lopez was convicted of two counts of the lesser-included offense of facilitation of first degree murder, a Class A felony. See Tenn. Code Ann. _ 39-11-403, -13-204(a). Count One was merged into Count Two. Defendant Lopez was also convicted of aggravated child abuse under Counts Three and Four. She was acquitted of aggravated child abuse as charged in Count Five. She was sentenced as a Range I, standard offender to twenty-five years for her facilitation of first degree murder conviction and sentenced as a violent offender to twenty-five years for each of her two aggravated child abuse convictions. The trial court ordered her to serve these sentences concurrently, for a total effective sentence of twenty-five years in the Department of Correction. In this direct appeal, Defendant Gomez contends that: (1) the trial court erred in admitting evidence of certain prior bad acts, in violation of Tennessee Rule of Evidence 404(b); (2) the State presented evidence insufficient to convict him and that the trial court therefore erred in failing to grant his motion for a judgment of acquittal; and (3) the trial court erred in ordering consecutive sentencing. Defendant Lopez contends that: (1) the trial court erred in denying her pre-trial motion to include non-citizens on the jury; (2) the trial court erred in preventing her from introducing an entire statement she made to police after the State impeached her using part of that statement; (3) the trial court erred in admitting evidence of Defendant Gomez's prior bad acts; (4) the State presented evidence insufficient to convict her; and (5) the trial court erred in imposing the maximum sentence for each of her convictions. After our review, we reverse and dismiss Defendant Gomez's Count Five conviction of aggravated child abuse. In all other respects, we affirm the judgments of the trial court.

The Defendant, Michael Deshay Peoples, Jr., was charged with one count of first degree felony murder, one count of especially aggravated robbery, a Class A felony, two counts of aggravated robbery, a Class B felony, and one count of aggravated kidnapping, a Class B felony. See Tenn. Code Ann. __ 39-13-403(b), -402(b), -304(b)(1). One count of aggravated robbery was "nol prossed" by the State prior to the defendant's trial. Following a jury trial, the defendant was convicted of all four remaining offenses as charged. In this direct appeal, the defendant contends that: (1) the State presented evidence insufficient to convict him; and (2) the trial court erred when it allowed testimony regarding the count of aggravated robbery that was "nol prossed" prior to the defendant's trial. After our review, we affirm the judgments of the trial court.

A Davidson County jury convicted the Petitioner, Harlen Roy Lamont Zirker, of two counts of rape of a child and four counts of aggravated sexual battery, for which he was sentenced to a total, effective sentence of seventy-two years to be served at 100%. The petitioner appealed, and this Court affirmed his convictions and sentence. State v. Harlen Roy L. Zirker, aka Anthony Lamont Zirker, No. M2003-02546-CCA-CCA-R3-CD, 2005 WL 1122646 at *1, *16 (Tenn. Crim. App. May 12, 2005), perm. app. denied (Tenn. Oct. 31, 2005). Subsequently the petitioner filed a petition for post-conviction relief and two amended petitions thereafter, which he then voluntarily dismissed. Shortly after the dismissal, the petitioner filed a second petition for post-conviction relief, which the post conviction court summarily dismissed because it was the petitioner's second such petition and because it was untimely. The petitioner now appeals the summary dismissal of his second petition. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

The Defendant, Anthony DeWayne Hood, appeals from his conviction by a jury in the Union County Criminal Court for sexual battery by an authority figure, a Class C felony, for which he was sentenced as a Range I, standard offender to six years in the Department of Correction. On appeal, the defendant contends that: (1) the evidence is insufficient to support his conviction, (2) the trial court denied his right to a fair trial when it responded in the jury's presence to the defendant's motion for judgment of acquittal that the burden had been met, (3) the trial court erred in allowing the State to introduce irrelevant, unfairly prejudicial, and improper character evidence, (4) there was prosecutorial misconduct because the State misstated the evidence during opening statement and closing argument and commented on the credibility of a witness, and (5) his sentence is excessive because the trial court misapplied an enhancement factor and denied alternative sentencing. We conclude that the trial court committed reversible error when it stated in the jury's presence that the State's burden of proof had been met. We reverse the judgment of the trial court and remand the case for a new trial.

The Defendant, Evetta Mai McGee, pled guilty to rape, and the trial court sentenced her to eleven years. On appeal, the defendant contends the trial court erred when it enhanced her sentence beyond the statutory minimum without explanation. After a thorough review of the record and applicable law, we affirm the trial court's judgment.

The petitioner, Patrick Joseph Rigger, appeals from the Knox County Criminal Court's denial of post-conviction relief from his general sessions court guilty-pleaded convictions of misdemeanor evading arrest and misdemeanor possession of a weapon. Although the postconviction court determined that the Knox County General Sessions Court's procedure of communicating to defendants en masse the litany of constitutional rights prior to accepting pleas of guilty did not satisfy the rigors of due process principles, the post-conviction court denied relief to the petitioner. The petitioner appeals and claims that the lower court erred in failing to find that his guilty pleas were involuntary, unknowing, and/or unintelligent. He also claims that the warrant alleging his illegal possession of a weapon inadequately charged an offense and that his actual innocence of that charge entitled him to post-conviction relief. Because the record supports the post-conviction court's order, we affirm.

The appellant, William Comfort, pled guilty in the Warren County Circuit Court to attempted aggravated sexual battery, a Class C felony, and was sentenced to eight years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's imposition of an eight-year sentence and the denial of alternative sentencing. Upon review, we affirm the judgment of the trial court.

The Petitioner, Joe Clark Mitchell, appeals from the dismissal of his petition for a writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

A Perry County grand jury indicted the Petitioner, Darrell John Penner, for two counts of rape of a child. The Petitioner pled guilty to aggravated sexual battery, and the trial court sentenced him to ten years at 100% in the Department of Correction. The Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered. The postconviction court denied relief after a hearing, and the Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the postconviction court.

The Defendant, Dawn Fox Newhouse, pleaded guilty to theft of services over $10,000, a Class C felony. See Tenn. Code Ann. _ 39-14-105(4). She was sentenced as a Range I, standard offender to four years and six months and was placed on probation. The trial court subsequently found that the Defendant violated her probation and sentenced her to serve 180 days in the Robertson County Jail. The trial court later modified its order and allowed the Defendant to serve her 180 days on weekends. Several months later, the Board of Probation and Parole alleged that the Defendant violated her probation again by incurring a new arrest. After a hearing, the trial court found that the Defendant violated her probation a second time and ordered that she serve the remainder of her sentence in the Department of Correction. In this appeal, the Defendant contends that the trial court erred by revoking her probation. After a review of the record, we conclude that the trial court did not abuse its discretion by revoking the Defendant's probation. The judgment of the trial court is affirmed.

The petitioner, Ronald A. Barker, appeals from the habeas corpus court's summary dismissal of his petition for writ of habeas corpus. Discerning no error, we affirm the judgment of the habeas corpus court.

The Petitioner, Chris Jones, appeals his denial of post-conviction relief. The Petitioner pled guilty to two counts of sale of cocaine in an amount more than .5 grams, a Class B felony, and one count of sale of cocaine in an amount less than .5 grams, a Class C felony. Pursuant to a plea agreement, the Petitioner received sentences of 12 years for each of the Class B felonies and 6 years for the Class C felony. The trial court ordered the sentences to be served concurrently with one another but consecutively to a ten-year sentence imposed in a separate case. In this appeal as of right, the Petitioner contends that he received the ineffective assistance of counsel at his guilty plea hearing. Following our review, we affirm the judgment of the post-conviction court.

The defendant, Patrick M. Lonie, was charged by presentment with twelve counts of especially aggravated sexual exploitation of a minor and ten counts of aggravated sexual battery. In an open plea, he pled guilty to four counts of especially aggravated sexual exploitation of a minor. Following a sentencing hearing, he was sentenced as a Range I offender to one term of eleven years and three terms of ten years, with two of the sentences to be served consecutively, for an effective sentence of twenty-one years. On appeal, he argues that the trial court erred in its application of Tennessee Code Annotated section 40-35- 115 to the Tennessee Protection of Children Against Sexual Exploitation Act of 1990, Tenn. Code Ann. _ 39-17-1001, et seq., and that, as a result, he should not have received consecutive sentences. Following our review, we affirm the judgments of the trial court and remand for entry of corrected judgments to reflect the conviction offenses as especially aggravated sexual exploitation of a minor.