APPELLATE COURT OPINIONS

The defendant, Tommy L. Holmes, was convicted of aggravated rape, a Class A felony, and sentenced as a violent offender to twenty-four years in the Department of Correction. He presents six issues on appeal: (1) whether he forfeited his right to counsel; (2) whether the jury was properly instructed on lesser-included offenses; (3) whether the evidence was sufficient to establish the bodily injury element of aggravated rape; (4) whether the trial court erred in answering the jury’s question regarding what constitutes bodily injury; (5) whether there was prosecutorial misconduct during closing argument; and (6) whether the trial court erred by excluding certain evidence the defendant offered. Following our review, we conclude that his claims are without merit. However, we additionally conclude that, before determining that the defendant had forfeited his right to counsel, the trial court should have conducted an evidentiary hearing. Accordingly, we remand to the trial court for an evidentiary hearing as to this claim.

Petitioner, Edmund George Zagorski, appeals from the dismissal of his post-conviction relief petition. He was previously convicted of two (2) counts of first degree murder and sentenced to death by electrocution. Zagorski contends the trial court erred in dismissing his petition for post-conviction relief and presents to this Court the following issues for review: (1) whether the jury charge on the “heinous, atrocious or cruel” aggravating circumstance was unconstitutional; (2)  whether he received effective assistance of counsel regarding the motion to suppress his statements; (3) whether he received effective assistance of counsel due to the failure of counsel to present mitigating evidence at his sentencing hearing; (4) whether the trial court’s denial of certain expert services and the failure of trial counsel to request other expert services violated his constitutional rights; and (5) whether the state withheld exculpatory evidence from trial counsel. Finding that the petition for post-conviction relief was properly dismissed, we AFFIRM the judgment of the trial court.

In January 2004, a Sevier County grand jury indicted the defendant, Rod Mills, on one count of theft over $10,000, a Class C felony. The defendant waived his right to a jury trial. In May 2006, a bench trial was held and the defendant was found guilty on the sole count of the indictment. The trial court sentenced the defendant to five years in prison as a Range I, standard offender. The defendant appeals, alleging that the evidence was insufficient to support his conviction. We conclude that the evidence was insufficient to prove that the defendant possessed the requisite mental state and therefore reverse the judgment of the trial court and dismiss the case.

The petitioner, Daniel Lynn Owen, pled guilty to arson (Class A felony) and setting fire to personal property (Class E felony), agreeing to a concurrent sentence of ten years for arson and two years for setting fire to personal property, as a Range II, multiple offender. The original judgment incorrectly listed the conviction for arson as a Class B felony rather than a Class C felony, and the trial court later amended the judgment to correctly indicate the petitioner had been convicted of a Class C felony. The petitioner filed this appeal to contest the amended judgment. We conclude that correcting a clerical mistake does not trigger a Tennessee Rule of Appellate Procedure 3 appeal as of right. No error exists, and the appeal is dismissed.

The petitioner, Carlos Sommerville, was convicted of first degree felony murder, second degree murder, and attempted first degree murder. The murders were merged, and the petitioner is serving an effective life sentence. The petitioner appeals from the trial court’s summary dismissal of his post-conviction petition. He contends his petition contained an allegation of ineffective assistance of trial counsel, which should have protected the petition from summary dismissal. After review, we conclude the post-conviction court improperly summarily dismissed the petition because it did state a basis to support the petitioner’s claim of ineffective assistance of counsel.

The petitioner, Homer T. Rivers, appeals from the Hardeman County Circuit Court’s dismissal of his post-conviction petition. He claims that the trial court erred in dismissing his petition for failure to state a colorable claim and seeks appointment of counsel and an evidentiary hearing. The state agrees that the trial court should not have dismissed the petition. We agree and reverse the dismissal and remand the case for further proceedings.

The defendant, Frank Brzezowski, was convicted of two counts of aggravated assault and three counts of aggravated rape and was sentenced to an effective term of twenty-two years to be served at 100%. On appeal, he argues that: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in denying his motion for new trial; and (3) the trial court erred in its sentencing determination. Upon our review of the record and the parties’ briefs, we affirm the defendant’s convictions, but remand for a new sentencing hearing.

David G. Hayes, Judge, separate concurring.

The defendant, Janice Burnette, was convicted of theft of property valued between $1,000 and $10,000, and was sentenced to three years, suspended after service of thirty days with the balance on probation. On appeal, she argues that: (1) there was a material and highly prejudicial variance between the indictment and the evidence presented at trial; (2) there was a material variance between the indictment and the jury charge; (3) the trial court erred in denying her request that the jury be instructed she was indicted for theft of pseudoephedrine not general merchandise; (4) the charge given to the jury was insufficient; (5) the indictment was flawed and the trial court cured it by giving the jury the general theft charge; (6) she was denied her 6th Amendment right to face her accusers and be adequately prepared to defend herself against the charge of theft of general merchandise; (7) the state did not meet its burden of proof as to theft of pseudoephedrine products; and (8) the state’s closing argument was improper. After our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Blount County- The Defendant, Trisha Plemmons, appeals the revocation of her community corrections sentence. Finding no error on the part of the trial court, we affirm.

The Petitioner, Marcus Deangelo Lee aka Marcus Jones, appeals the trial court's denial of his petition for coram nobis relief. 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 conclude that the State’s motion is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

This appeal arises from the Benton County Circuit Court’s continued denial of pretrial diversion notwithstanding approval by the District Attorney General and previous reversal by this Court. This is the second interlocutory appeal in this matter. Upon due consideration of the record and the parties’ briefs, we reverse the circuit court’s judgment and remand for entry of an order approving the pretrial diversion agreement between the prosecutor and the defendants.

The petitioner, Ronald Ian Quimby, was found guilty of incest (Class C felony) by a Giles County jury on November 12, 2003. On November 12, 2004, he agreed to a five-year sentence in the Department of Correction as a Range I, standard offender. On that day, the petitioner also pled guilty to five additional charges of incest, each carrying a five-year sentence, to be served consecutively for a total effective sentence of thirty years. On appeal, the petitioner contends that trial counsel was ineffective and argues that: (1) he did not knowingly, voluntarily, or intelligently waive his right to appeal his conviction; (2) counsel was not adequately prepared for trial; and (3) counsel failed to advise him regarding sentencing. After careful review, we conclude that counsel rendered effective assistance, and we affirm the judgment of the post-conviction court.

The Petitioner, John E. Lynch, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to assert a ground that would entitle him to habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

The defendant, Leah Joy Ward, was found guilty by a jury of first degree premeditated murder. She was sentenced to life imprisonment. The only issue presented on appeal is whether the evidence supports the element of premeditation. After review, we conclude the evidence was sufficient and affirm the conviction.

The Defendant, Anthony Tyrone Robertson, appeals from the order of the Montgomery County Circuit Court revoking his probation. In July of 2000, the Defendant pled guilty to sexual battery and received a six-year sentence as a Range III, persistent offender. The sentence was suspended following service of one year in the county jail, and the Defendant was placed on probation. On July 16, 2004, a warrant was issued, wherein it was alleged that the Defendant violated the conditions of his probation. The warrant was twice amended to include additional violations. After a hearing, the trial court concluded that the Defendant violated the conditions of his probationary sentence and ordered that his original six-year sentence to the Department of Correction be reinstated. On appeal, the Defendant argues that the trial court abused its discretion by revoking his probation and ordering that the remainder of his sentence be served in confinement. After a review of the record, the judgment of the trial court is affirmed.

The petitioner, Guillermo Matias Juan, pled guilty in the Hamilton County Criminal Court to second degree murder and received a sentence of sixty years incarceration in the Tennessee Departmentof Correction. Thereafter, the petitioner filed a petition for habeas corpus relief,  alleging that his sentence was void because he did not have the requisite criminal history to qualify as a persistent offender. The habeas corpus court denied the petition, and the petitioner appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

A Shelby County jury convicted the defendant, Alton Tappan, of aggravated burglary and theft of property valued at $1,000 or more but less than $10,000. The trial court imposed an effective incarcerative sentence of 14 years. On appeal, the defendant challenges the sufficiency of the convicting evidence and complains that his sentence is excessive because the State failed to prove an offender range above Range I. Our review assures us that the evidence is sufficient and that the defendant was properly sentenced. We therefore affirm the convictions and sentence.

The petitioner, Steven L. Anderson, appeals from the summary dismissal of his pro se petition for writ of habeas corpus. On appeal, he contends: the trial court did not follow the proper procedures for processing his petition for writ of habeas corpus; the court improperly dismissed his petition; and his right against double jeopardy was violated. After careful review, we conclude that no error exists and affirm the dismissal of the petition.

The Petitioner, Ulysses Richardson , appeals the trial court's denial of his petition for post-conviction relief. 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. The petition for post-conviction relief fails as it is a second such petition and as it is barred by the statute of limitations. The petition similarly fails if considered as a petition for habeas corpus relief, a motion to reopen a petition for post-conviction relief or a petition for writ of error coram nobis. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

The Petitioner, Thomas M. Powell, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to assert a ground that would entitle him to habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

The defendant, Savalas O. McNeal, was convicted by a Madison County jury of possession of cocaine with the intent to sell and deliver and received a ten-year sentence to the Department of Correction as a Range II, multiple offender. On appeal, the defendant contends that the evidence was insufficient to support his conviction. We conclude that the evidence was sufficient, and we affirm the judgment of the trial court.

The Appellant, William T. Utley, was convicted by a Chester County jury of the Class D felonies of burglary and theft of property over $1000. Following a sentencing hearing, the trial court imposed concurrent four-year sentences of incarceration for each conviction. On appeal, Utley has raised three issues for our review: (1) whether the evidence is sufficient to support the convictions; (2) whether the trial court erred by failing to instruct the jury on voluntary intoxication; and (3) whether the court erred in denying alternative sentencing. Following review of the record, we find no error and affirm the judgments of conviction and resulting sentences.

The Appellant, Kim McGill, appeals the Shelby County Criminal Court’s denial of her petition for post-conviction relief. McGill pled guilty to aggravated robbery and received a sentence of 7.2  years, as a mitigated offender, to be served in the Department of Correction. On appeal, she asserts that trial counsel was ineffective for failing to advise her of the right to request recusal of the trial judge based upon the judge’s comments to the Appellant following her request to obtain private counsel. Following review, we affirm the denial of the petition.

The defendant, Herbert Cope, was convicted by an Overton County Criminal Court jury of sale of a Schedule II controlled substance (morphine), a Class C felony, and was sentenced by the trial court as a Range II offender to nine years in the Department of Correction. On appeal, he argues that the trial court imposed an excessive sentence by failing to apply applicable mitigating factors and erroneously applying an inapplicable enhancement factor. Following our review, we affirm the judgment of the trial court.