APPELLATE COURT OPINIONS

I concur with Judge Peay’s opinion in this case. I write separately to point out that, in my opinion, a finding by the trial judge that the district attorney general did not consider all relevant factors in denying pretrial diversion does not necessarily lead to the conclusion that pretrial diversion will be granted. Even though the district attorney general may have abused his discretion by failing to consider all relevant factors, the denial may be justified after all relevant factors are considered. If such is the case, in a manner somewhat analogous to a “harmless error” analysis, the denial of pretrial diversion should be upheld.

The defendant, Shamarcus Antwan Hunt, was convicted of the sale of cocaine under .5 grams, a Class C felony, and possession of cocaine over .5 grams with intent to manufacture, deliver, or sell, a Class B felony. He was sentenced, respectively, to eight years and twelve years in the Department of Correction, to be served consecutively. On appeal, he argues that the evidence was insufficient to support his convictions and that the trial court should have declared a mistrial following allegedly improper remarks by the prosecutor during closing arguments. Following our review, we affirm the judgments of the trial court but remand for entry of corrected judgments to reflect that the defendant’s sentences are to be served consecutively, rather than concurrently.

The original trial of this case took place in Montgomery County. Judge John H. Peay presided over the trial of the appellant and his co-defendant, Brett Patterson, which resulted in two convictions for felony murder, one conviction for first degree burglary, and one conviction for aggravated rape for each defendant. The jury sentenced the appellant to death. The appellant’s co-defendant received a life sentence. On direct appeal to the Supreme Court, the appellant’s convictions were affirmed, but the death penalty was set aside and the case was remanded for a new sentencing hearing. State v. Cauthern, 778 S.W.2d 39 (Tenn. 1989). On remand, Judge Peay granted the appellant’s motion to transfer the case out of Montgomery
County. The new sentencing hearing was held in Gibson County.

The Appellant, Bruce Cole, appeals as of right his sentences for five convictions of sale of a Schedule II controlled substance. The Appellant argues on appeal that the trial court erred when it enhanced his sentences and ordered them to be served consecutively. Following a careful review of the record on appeal, we remand the case to the trial court for a new sentencing hearing.

The petitioner, Claude Sharkey, pro se, appeals the summary dismissal of his petition for habeas corpus relief. He claims that his indictments were deficient and that his sentences were improper. After review, we conclude his judgments are facially valid with no jurisdictional defect or illegal sentences. The summary dismissal is affirmed.

The defendant, Shundell L. Dickerson, was convicted of facilitation of first degree murder (Class A felony) and sentenced as a Range III, persistent offender to sixty years in prison. He appeals his conviction and sentence. He argues the trial court erred in: (1) precluding him from entering into evidence an anonymous letter mailed to the police in which other persons were named as responsible for the crime; (2) limiting the questioning of a witness regarding his expectations of favorable treatment in exchange for his testimony; and (3) allowing the prosecutor to make improper remarks during closing argument. Finally, the defendant argues enhancement factors were improperly applied to increase his sentence. After careful review, we affirm the judgment from the trial court.

The defendant, Thomas M. Sullivan, was convicted of reckless homicide, a Class D felony. He requested judicial diversion or probation, but the court denied those motions and imposed a sentence of two years in confinement. On appeal, he contends that the trial court erred in denying his request for judicial diversion or alternative sentencing. After careful review, we conclude no error exists and affirm the judgment from the trial court.

The petitioner, Maurice Lashaun Nash, appeals the post-conviction court’s denial of his petition for post-conviction relief. On appeal, he argues that he received the ineffective assistance of counsel.  After a thorough review of the record and the parties’ briefs, the judgment of the post-conviction court denying post-conviction relief is affirmed.

The Appellant, Lamont Christopher Brown,1 appeals the order of the Madison County Circuit Court revoking his probation. In January 2006, in two separate cases, Brown entered guilty pleas to misdemeanor possession of cocaine, misdemeanor possession of a Schedule IV controlled substance, Class C felony sale of cocaine, and two counts of Class B sale of .5 grams or more of cocaine and received an effective sentence of ten years in the Department of Correction. The sentences were suspended, and Brown was placed on supervised probation. In  September 2006, a probation violation warrant was filed, in both cases, alleging numerous violations of the terms of Brown’s probation. Following a hearing, Brown’s probation was revoked, resulting in the reinstatement of his original sentences, which were ordered to be served in confinement. On appeal, Brown argues that “the trial court erred in revoking [Brown’s] probation and ordering that [Brown] serve his sentence.”  Finding no abuse of discretion, the judgment of the trial court is affirmed.

A Marion County Circuit Court jury convicted the defendant, Edward Poe, of one count of manufacturing a controlled substance, one count of attempted possession of a controlled substance with intent to sell, and one count of felony possession of drug paraphernalia. On appeal, he alleges that a directed verdict should have been granted based on the insufficiency of evidence as a whole, as well as based on insufficient evidence for the paraphernalia charge because there was no proof of intent to deliver the paraphernalia. He also alleges that the convictions for manufacturing a controlled substance and felony possession of drug paraphernalia were inconsistent and that the court should not have excluded testimony from a court clerk regarding the filing of the January 23, 2002 search warrant. Upon review, we affirm the judgments as modified.

THOMAS T. WOODALL, J., concurring in part and dissenting in part. I respectfully dissent from that portion of the majority opinion which reverses the convictions for rape of a child and dismisses those five counts of the indictment.

The Appellant, Alec Joseph Mesot, was convicted by a Montgomery County jury of five counts of rape of a child and one count of sexual exploitation of a minor. On appeal, Mesot challenges only his convictions for rape of a child, asserting: (1) that the evidence is insufficient to support the convictions because: (a) the State failed to sufficiently corroborate his confessions in order to independently establish the corpus delicti of the offenses and (b) the State failed to prove the element of penetration; and (2) that the trial court erred by failing to sua sponte provide a limiting instruction with regard to the introduction of pornographic images recovered from Mesot’s computer. Following review of the record, we conclude that the State has failed to produce independent evidence to corroborate Mesot’s confessions, which alone support the corpus delicti of the crimes of rape of a child. Accordingly, the evidence is insufficient with regard to those convictions. As such, the judgment of the trial court is reversed, and the five convictions for rape of a child are dismissed. Mesot’s remaining issues are without merit.

The defendant, Ronald Frank Webb, was convicted by a Cumberland County Criminal Court jury of driving under the influence, third offense, a Class A misdemeanor, for which the court sentenced him to eleven months and twenty-nine days, with 120 days to be served in jail at seventy-five percent release eligibility. The defendant claims on appeal that the trial court erred in giving lengthy and confusing instructions to the jury and in commenting that the instructions were confusing. We affirm the judgment of the trial court pursuant to Tennessee Court of Criminal Appeals Rule 20.

On August 10, 2006, Petitioner, Xavier C. Parks, pleaded guilty in Hardeman County to a single count of aggravated burglary and he was sentenced to six years of incarceration as a Range I Standard Offender. Petitioner did not appeal the sentence. On November 6, 2006, Petitioner filed a pro se post-conviction petition. He used a form post-conviction petition provided by the State of Tennessee and simply checked the boxes beside two common grounds alleged in post-conviction proceedings: (1) “conviction was based on unlawfully induced guilty plea or guilty plea involuntarily entered without understanding of the nature and consequences of the plea;” and (9) “denial of effective assistance of counsel.” The petition contained no facts which would support these alleged grounds for collateral relief, and the post-conviction judge dismissed the petition for that reason.  We are constrained to agree with the post-conviction court and, therefore, affirm the dismissal.

The Defendant, Alex L. Vance, pled guilty to reckless aggravated assault, a Class D felony, and reckless endangerment, a Class A misdemeanor. Sentencing was left to the discretion of the trial court. The trial court sentenced him to three years for the felony conviction and ordered that he serve four months in the county jail, with the remainder to be served on probation. He was also sentenced to a concurrent term of eleven months and twenty-nine days for the misdemeanor offense. On appeal, the Defendant argues that the trial court erred by denying his request for judicial diversion and by ordering a sentence of split confinement rather than full probation. Following our review, we affirm the sentences imposed by the trial court.

A Grundy County jury convicted the Defendant, Randy Bray, of two counts of first-degree murder, and he was sentenced to two life sentences. On appeal, the Defendant alleges that: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it instructed the jury on flight. After a thorough review of the applicable record and law, we affirm the judgments of the trial court.

The petitioner, William Earl Wilson, appeals the denial of his petition for post-conviction relief and argues that his guilty plea was not entered into knowingly and voluntarily and that he did not receive effective assistance of counsel. On December 8, 2005, the petitioner entered a plea of guilty to aggravated robbery, a Class B felony, and was sentenced to twenty years as a career offender. Specifically, the petitioner argues that his level of education and history of mental illness should invalidate his guilty plea and that counsel should have had him evaluated for competency prior to entering the guilty plea. After careful review, we affirm the judgment from the post-conviction court.

The Petitioner, Patrick Smotherman, pled guilty to selling more than .5 grams of cocaine. He petitioned the court for post-conviction relief, claiming that he did not receive the effective assistance of counsel and that his guilty plea was not voluntarily, knowingly, or intelligently entered. The post-conviction court denied relief, and it is from this judgment that the Petitioner now appeals. After reviewing the evidence and applicable law, we conclude that the post-conviction court did not err, and we affirm the judgment.

The petitioner, Jerry Graves, was convicted by a Knox County jury of first degree felony murder and especially aggravated robbery and received sentences of life and twenty-three years. He seeks post-conviction relief, contending that his trial counsel was ineffective. On appeal, he argues that the trial court erred in denying post-conviction relief because his trial counsel was ineffective in adopting a self-defense strategy at trial. We affirm the judgment of the trial court.

The petitioner, Young Bok Song, 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 trial counsel. Following our review, we affirm the denial of the petition.

The petitioner, Quintell Hardy, appeals the denial of his petition for post-conviction relief from his conviction for second degree murder, arguing that he was denied the effective assistance of counsel and that his guilty plea was unknowing and involuntary. Following our review, we affirm the denial of the petition.

After a bench trial, the Defendant, Jamshid Maghami, was convicted of three counts of unlawfully maintaining an automobile graveyard. The trial court subsequently conducted a sentencing hearing and ordered consecutive terms of thirty days on each count. Five days were ordered to be served in the local jail, with the balance of the sentences to be served on probation. In this direct appeal, the Defendant argues that the evidence is insufficient as a matter of law to support his convictions and that the trial court erred by ordering consecutive sentences. Following a review of the sparse record, we affirm the judgments of the trial court.

After a bench trial, the Defendant, Jamshid Maghami, was convicted of three counts of unlawfully maintaining an automobile graveyard. The trial court subsequently conducted a sentencing hearing and ordered consecutive terms of thirty days on each count. Five days were ordered to be served in the local jail, with the balance of the sentences to be served on probation. In this direct appeal, the Defendant argues that the evidence is insufficient as a matter of law to support his convictions and that the trial court erred by ordering consecutive sentences. Following a review of the sparse record, we affirm the judgments of the trial court.

In 2001, a Cannon County jury convicted the Petitioner, Ellis Junior Burnett, of aggravated arson,2 and he received a twenty-three-year sentence. The conviction was affirmed by this Court on direct appeal. Subsequently, the Petitioner filed a petition for post-conviction relief, which was heard by the post-conviction court and denied. The Petitioner now appeals, claiming the post-conviction erred when it: (1) failed to give him a full and fair post-conviction evidentiary hearing; (2) denied his claim of ineffective assistance of counsel; (3) denied his claim that the trial court failed to properly instruct the jury as to lesser included offenses; and (4) denied his claim that the trial court failed to properly instruct the jury on circumstantial evidence. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court

I agree with the results reached and most of the reasoning in the majority opinion. However, I respectfully disagree with the majority opinion’s conclusion that the fact that the trial court had a duty to instruct the jury on applicable lesser included offenses foreclosed a claim of ineffective assistance of counsel based upon counsel’s failure to request such instructions.