APPELLATE COURT OPINIONS

The petitioner, William Thompson, filed in the Bledsoe County Circuit Court a petition for a writ of habeas corpus. The habeas corpus court denied the petition, finding that the petitioner’s sentence was not illegal. On appeal, the petitioner challenges the habeas corpus court’s ruling. In response, the State 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. Upon review of the record and the parties’ briefs, we conclude that the petition was properly denied. Accordingly, the State’s motion is granted and the judgment of the trial court is affirmed.

The defendant, Koy Owens, pled guilty to simple assault, a Class A misdemeanor, and to solicitation of aggravated assault, a Class E felony. He received concurrent sentences of seven days for assault and one-and-a-half years for solicitation. The trial court denied in part and granted in part the defendant’s petition to have his sentence suspended. The trial court ordered the defendant to serve forty-five days in confinement, day-for-day, on a non-consecutive basis and imposed two years probation. On appeal, the defendant argues that the trial court erred by refusing to fully suspend his sentence. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

The defendant, Oscar Torres, Jr., was convicted by a Blount County jury of two counts of rape of a child, a Class A felony, for which he received an effective sentence of twenty years at 100% in the Department of Correction. On appeal, he argues that the evidence was insufficient to sustain his convictions and that the trial court committed reversible error by admitting improper rebuttal testimony from the victim. Following our review, we affirm the judgments of the trial court.

The petitioner, Reginald Dion Hughes, appeals the circuit ¹ court’s order summarily dismissing his pro se petition for writ of habeas corpus. Following our review of the record and applicable law, we affirm the court’s order.

The defendant, James Leonard Corder, was convicted of driving on a revoked license and violating the Habitual Motor Vehicle Offender Act. The defendant was sentenced to six years in confinement.  On appeal, the defendant argues that the evidence was not sufficient to sustain his conviction. The defendant also argues that the statute cited in the warrant for the defendant’s arrest was different from the statute cited in the defendant’s indictment, and therefore “an error.” Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

The petitioner, Stacy Johnson, was convicted of eight counts of burglary of a motor vehicle, two counts of burglary of a building, and theft of property over $1000. He received an effective sentence of thirty years. He seeks post-conviction relief arguing that he received the ineffective assistance of counsel at trial. He appeals the trial court’s denial of post-conviction relief, arguing that his trial counsel was ineffective in failing to move to sever his indictments and in failing to investigate an alibi defense and defense witnesses. We affirm the judgment of the trial court.

The Appellant, Quincy Bryan Banks, was convicted by a Davidson County jury of two counts of aggravated rape and one count of especially aggravated kidnapping. For these Class A felony convictions, Banks received concurrent twenty-three-year sentences for each aggravated rape conviction, to be served consecutively to a twenty-three-year sentence for especially aggravated kidnapping. On appeal, Banks challenges his convictions and resulting sentences, specifically asserting: (1) that the evidence is insufficient to support each of his three convictions and that the conviction for especially aggravated kidnapping violates the due process holding of State v. Anthony; and (2) that the aggregate sentence of forty-six years is excessive based upon: (a) misapplication of enhancing factors with regard to the length of the respective sentences; and (b) the erroneous imposition of consecutive sentences. After review, we conclude that Banks’ challenges to his convictions are without merit. Accordingly, the convictions are affirmed. With regard to sentencing, however, we conclude that because Banks was sentenced under provisions of the June 7, 2005 sentencing amendments for crimes committed in November 2004, without a waiver of his ex post facto protections as required by statute, remand for a new sentencing hearing is required. Furthermore, because the sentencing record fails to demonstrate the requisite considerations for the imposition of consecutive sentencing, the case is also remanded for reconsideration of that issue and for entry of corrected judgment forms in accordance with this opinion.

The petitioner, Otis Morris, appeals the post-conviction court’s denial of his petition for post-conviction relief. On appeal, he argues that he entered into an unknowing and involuntary guilty plea to the charge of attempted second degree murder. After a thorough review of the record and the parties’ briefs, the judgment of the post-conviction court denying post-conviction relief is affirmed.

Appellant, Alexander Guzman-Chavez, pled guilty to aggravated assault, with an agreed sentence of six years as a Range I offender. The parties agreed that the trial court would determine the manner of service of the sentence, and, after a hearing, the court sentenced Appellant to incarceration, denying him an alternative sentence. On appeal, Appellant contends that the trial court erred by: (1) considering enhancement factors when deciding the manner by which Appellant should serve his sentence; (2) improperly applying enhancement factor number (10), that the risk to human life was high, because a fetus is not a person for purposes of this enhancement factor; and (3) denying him an alternative sentence based, in part, on his facial expression during the sentencing hearing. Because it appears from the record that the trial court properly considered and applied the applicable enhancement factors and based its denial of an alternative sentence on appropriate considerations, the judgment of the trial court is affirmed.

In August 2004, the petitioner, John Grider, entered a “best interest” guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), to one count of second degree murder, a Class A felony. The trial court sentenced the petitioner to twenty years in the Department of Correction. In June 2005, the petitioner filed a petition for post-conviction relief. Following a January 2006 hearing, the post-conviction court denied the petition. The petitioner appeals, alleging that he received the ineffective assistance of counsel in that counsel failed to adequately communicate with him during the time leading to his plea and failed to file a motion to suppress his statements to police. After reviewing the record, we conclude that petitioner did not receive ineffective assistance of counsel and therefore affirm the judgment of the post-conviction court.

I concur with the result reached by the majority, but write separately to more closely examine various statutes which are applicable, either directly or indirectly, to the issue in this case. The source of the contested issue is Tennessee Code Annotated section 39-17-1322 which provides in full as follows:

The Petitioner, Terry D. Brewer, appeals the Lake County Circuit Court’s summary dismissal of his petition for the writ of habeas corpus. On appeal, Brewer argues that the indictment under which he was charged was defective, and, as a result, the Henderson County Circuit Court was without subject matter jurisdiction to enter judgments of conviction and resulting sentence of forty-five years. As such, Brewer asserts that his convictions for aggravated rape, aggravated sexual battery, and incest are void. After review, we conclude that the alleged defect is non-jurisdictional in nature and, because it was not raised prior to trial, it is waived. See Tenn. R. Crim. P. 12(f). Accordingly, summary dismissal is affirmed.

I concur in the results but would have deferred to the trial court’s rationale for dismissing the indictments had it availed the State a prior opportunity to resist the dismissal.

Appellee, Tracy C. Clark, was indicted by the Williamson County Grand Jury for possession of a weapon on school grounds. Appellee filed a motion to dismiss the indictment based on a claim of self-defense, averring that the facts would not support a conviction for the offense. The trial court dismissed the indictment after conducting a pre-trial evidentiary hearing and determining that Appellee could not be convicted because he acted in self-defense. The State filed an untimely notice of appeal. This Court, in the interest of justice, accepted the late-filed notice of appeal. Because we determine that the trial court improperly conducted a pre-trial evidentiary hearing on the motion to dismiss which essentially involved resolution of the question of Appellee’s guilt or innocence, we reverse the trial court’s ruling and remand the case for reinstatement of the indictment.

Defendant Christopher Carney and Defendant Anthony Mitchell were each indicted for the sale and delivery of cocaine, a Schedule II drug. In both cases, the trial court dismissed the indictments, and the State now appeals. The cases were consolidated for purposes of appeal. After a thorough review, we reverse the trial court’s dismissal of the indictments as to each Defendant and remand to the trial court for further proceedings.

As a result of stealing funds from her employer, in 2002, Appellant, Laura June Mays, was convicted by a Hardeman County jury of theft of property between $10,000 and $60,000. Upon her conviction, the trial court placed Appellant on probation with a requirement that she and her co-defendant make restitution in the amount of $42,000. On January 5, 2006, Appellant’s probation was extended.  Appellant failed to make payments pursuant to the January 5, 2006 order. On October 31, 2006, a probation violation warrant was filed. Following a hearing, the trial court revoked Appellant’s probation for failure to pay restitution. On appeal, Appellant argues that the trial court erred in revoking her probation without taking into account her ability to pay. We reverse and remand the trial court’s decision because the evidence preponderates against the trial court’s findings that Appellant has willfully refused to pay her restitution or make a bona fide attempt to obtain the means to pay her restitution.

A Shelby County Criminal Court jury convicted the defendant, James Scott of one count of driving under the influence of an intoxicant (DUI), fourth offense. On appeal, he alleges that the trial court erred in denying his motion to dismiss the indictment for selective prosecution and his attempt to impeach a witness without viewing the pertinent parts of a video he claimed supported both claims, that the trial court erred in imposing more than the presumptive minimum sentence, and that the trial judge erred in failing to recuse himself for the ruling on the motion for new trial. Upon review, we reverse the trial court’s order overruling the motion for new trial and remand.

A Shelby County Jury convicted the Petitioner, Bobby Joe Lester, of attempted first degree murder, especially aggravated kidnapping, two counts of aggravated assault, and coercion of a witness. The trial court merged the aggravated assault conviction with the conviction for attempted first degree murder and sentenced the Petitioner to an effective eighty-five year sentence. The conviction and sentences were affirmed by this Court on direct appeal. State v. Bobby Joe Lester, No. W2004-00842-CCA-R3-CD, 2005 WL 1798763 (Tenn. Crim. App., at Jackson, July 28, 2005). The Petitioner filed a petition for post-conviction relief, amended by appointed counsel, alleging he did not receive the effective assistance of counsel. The post-conviction court dismissed the petition after a hearing. On appeal, the Petitioner contends that he is entitled to post-conviction relief because his trial counsel was ineffective by: (1) failing to request the jury be instructed on facilitation; (2) failing to adequately argue in the motion for new trial that his convictions for especially aggravated kidnapping and attempted first degree murder violate due process, citing State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); and (3) failing to object to testimony from the victim about a prior rape. The Petitioner also contends that his appellate counsel was ineffective for failing to argue the Anthony issue on appeal. After reviewing the issues and applicable authorities, we affirm the post-conviction court’s judgment.

Petitioner, George Langford, appeals the trial court’s dismissal of his Petition for Writ of Error Coram Nobis and/or Petition for Post-Conviction Relief in which he contended that the trial court’s instructions to the jury violated his constitutional right to due process. After a thorough review, we affirm the judgment of the trial court.

Defendant, Timothy Swofford, presents for review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). Defendant entered a plea of guilty to one count of driving under the influence (DUI), first offense, a Class A misdemeanor. The trial court sentenced Defendant to eleven months, twenty-nine days, to be suspended after serving forty-eight hours in confinement. As a condition of his guilty plea, Defendant properly reserved a certified question of law as to whether he was subjected to an unconstitutional traffic stop. After a review of the record, we affirm the judgment of the trial court.

This is a State appeal from an order dismissing the indictment against the Defendant, Cedric Ruron Saine. The Defendant was indicted for possession with the intent to sell more than 300 grams of cocaine. The issue presented for our review is whether the trial court erred in granting the motion to suppress evidence seized from the Defendant’s residence and vehicle or, more specifically, whether the search warrant affidavit contained sufficient facts to establish probable cause that drugs were located inside the Defendant’s home and, if not, whether the warrantless search of the Defendant’s car was supported by exigent circumstances. After a review of the record and the applicable authorities, we affirm the order of the trial court granting the Defendant’s motion to suppress the evidence discovered during the search of his residence, but we reverse the decision to suppress the drugs found during the search of the Defendant’s car. We vacate the order dismissing the indictment, and the case is remanded for further proceedings consistent with this opinion.

A Putnam County jury convicted Appellant, William Floyd Cartwright, of first degree premeditated murder. He was sentenced to life imprisonment with the possibility of parole. On appeal, Appellant contends that the evidence is insufficient to sustain his conviction because the State did not prove that he acted with premeditation. We affirm the judgment of the trial court because the evidence sufficiently supports the conviction.

The defendant, Steven Ray Tallent, pleaded guilty to a charge of domestic assault and was sentenced in the Blount County Circuit Court to a sentence of 11 months and 29 days, which was suspended to supervised probation. On May 30, 2007, the court revoked the probation and ordered the defendant to serve 11 months and 29 days in confinement. From that order, the defendant appeals and claims a lack of evidence. Upon review, we affirm the judgment below.

The defendant, Charles Edward Stanley, was convicted by a Cumberland County criminal court jury of rape, a Class B felony, and was sentenced as a Range I, standard offender to nine years in the Department of Correction. On appeal, the defendant contends that the evidence is not sufficient to support his conviction and that the trial court erred in sentencing him. We affirm the judgment of the trial court.

The Defendant, Terrell Antron Greer, was convicted upon a jury verdict of one count of the sale or delivery of less than .5 grams of cocaine, a Class C felony, and he was sentenced to five years or that conviction. He was likewise convicted of two counts of the sale or delivery of more than .5 grams of cocaine, Class B felonies, and he was sentenced to eleven years for each of those convictions. All of his sentences were ordered to be served concurrently in the Department of Correction as a Range I, standard offender. In this appeal, he asserts that the evidence was not sufficient to support his convictions and that his sentences are excessive. Following our review of the appellate record, the parties’ briefs, and applicable law, we affirm the judgments of the trial court.