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, Rules of the Court of Criminal Appeals. The petitioner, Cumecus R. Cates, has appealed the trial court's order summarily dismissing his petition for the writ of habeas corpus. In that petition, the petitioner sought a writ of habeas corpus to release him from various sentences. We are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

A Marshall County Circuit Court jury convicted the appellant, Dwayne Tyrone Simmons, of aggravated burglary and theft of property valued less than $500. The trial court sentenced the appellant to concurrent sentences of eight years, ten months for the aggravated burglary conviction and nine months, eighteen days for the theft conviction. In this appeal, the appellant raises various issues, including that the evidence is insufficient to support his aggravated burglary conviction and that he was unable to present photographs of the home in question to the jury. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

This is a direct appeal as of right upon a certified question of law. See Tenn. R. Crim. P. 37(b)(2). The Defendant, Paul Dotterweich, was convicted of DUI and underage consumption, both Class A misdemeanors, following his entry of guilty pleas. The Defendant received concurrent sentences of eleven months, twenty-nine days and loss of driving privileges for one year. On appeal, the Defendant argues that the trial court erred by failing to suppress the evidence upon which his convictions were based because the evidence was obtained during an unlawful investigatory stop. We affirm the judgments of the trial court.

The appellant, Daniel Lee Cook, pled guilty in the Williamson County Circuit Court to reckless burning, and the trial court sentenced him to eleven months, twenty-nine days to be served as thirty days in jail and the remainder on probation. The trial court also ordered the appellant to pay restitution in the amount of one hundred fifty dollars per month for five years. On appeal, the appellant claims that the State failed to prove the fair market value of the destroyed property and that the trial court erred by ordering a payment schedule that extended beyond the maximum statutory term of probation supervision that could have been imposed for the offense. We conclude that the evidence was sufficient for the trial court to determine the amount of the victim's loss. However, the trial court erred regarding the restitution payment schedule. Therefore, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

The Defendant, Robert Riggs, was convicted by a jury of three counts of misapplication of contract funds. His convictions were affirmed by this Court on direct appeal. See State v. Robert B. Riggs, No. E2000-01983-CCA-R3-CD, 2002 WL 1364031 (Tenn. Crim. App., Knoxville, June 25, 2002). The Tennessee Supreme Court denied the Defendant's application for permission to appeal. The Defendant subsequently filed a pro se petition for post-conviction relief, while he remained incarcerated. The State responded by filing a motion to dismiss on the grounds that the petition had been filed outside the statute of limitations. The Defendant contested the State's motion but the trial court granted it without a hearing. The Defendant now appeals the summary dismissal of his petition for post-conviction relief. We reverse the trial court's ruling and remand this matter for an evidentiary hearing on the timeliness of the Defendant's petition.

The Defendant, Preston Kiser, pled guilty to multiple counts of passing worthless checks, theft under $500, theft over $500, forgery, reckless driving, and driving on a suspended license. For these offenses, the Defendant received an effective sentence of three years as a Range I, standard offender. The Defendant was ordered to serve his sentence on community corrections. Following a subsequent revocation hearing, the Defendant's community corrections sentence was revoked and the trial court ordered him to serve his sentence in confinement. The Defendant now appeals the trial court's revocation order. We affirm the judgments of the trial court.

I concur in the result reached by the majority in this case, i.e., that the search of the defendant's car was permissible. However, I dissent to the extent that the majority opinion implies that probable cause existed upon the arrival of the described vehicle. I would not find probable cause had the driver, in a similar vehicle, been an individual not associated with Bobby Perkins, the target of this operation.

The petitioner, Randy L. May, sought a writ of habeas corpus from the Wayne County Circuit Court, claiming that his 1981 life sentence had been rendered void by the Board of Probation and Parole's order that not only denied parole but also mandated, according to the petitioner, that he serve the balance of his sentence. The circuit court granted the state's motion to dismiss the petition without a hearing, and the petitioner appealed. We affirm the dismissal of the petition.

On May 24, 2004, the petitioner, Patrick S. Riley, filed a petition for post-conviction relief that challenged his January 11, 2002 conviction of aggravated burglary. The post-conviction court dismissed the petition as being barred by the statute of limitations set forth in Tennessee Code Annotated section 40-30-102(a) (2003). The petitioner now appeals. We affirm the dismissal of the petition.

The defendant, Michael E. Raines, pled guilty in the Davidson County Criminal Court to attempt to commit second degree murder, a Class B felony. Pursuant to the plea agreement, the trial court sentenced the defendant as a Range I, standard offender to eight years with the trial court to determine the manner of service of the sentence. After a sentencing hearing, the trial court ordered that the defendant serve his sentence in confinement. The defendant appeals, claiming that he should have received alternative sentencing. We affirm the judgment of the trial court.

Defendant, Samuel Eugene Webster, was charged with aggravated kidnapping and aggravated rape. Pursuant to a negotiated plea agreement, he pled guilty to simple rape, a Class B felony, with a sentence of eight years and the manner of service to be decided by the trial court following a sentencing hearing. The charge of aggravated kidnapping was dismissed. Following a sentencing hearing, he was sentenced to serve eight years in the Department of Correction. On appeal, Defendant argues that the trial court erred in denying his request for alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court.

The petitioner, Timothy Dewayne Gardner, was convicted by a jury in the Robertson County Circuit Court of possessing over 300 grams of cocaine with intent to sell. The petitioner received a sentence of seventeen years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed for post-conviction relief, alleging that he received ineffective assistance of counsel. The post-conviction court denied the petition, and the petitioner now appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The Petitioner, Lavely Brown, was convicted of first degree murder, armed robbery, and aggravated kidnapping, and the trial court sentenced him, as a Range II offender, to life imprisonment for the murder conviction, and two concurrent sentences of forty years for the armed robbery and aggravated kidnapping convictions. On appeal, this Court affirmed the Petitioner's convictions and sentences. The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, the Petitioner contends the post-conviction court erred when it dismissed his petition because: (1) the State withheld exculpatory information from him; (2) the State committed prosecutorial misconduct in its closing arguments; (3) the trial court conducted an improper ex parte conference with an appellate court judge; (4) the trial court improperly instructed the jury; and (5) he received ineffective assistance counsel. After thoroughly reviewing the record and the applicable law, we conclude that there exists no reversible error in the judgment of the post-conviction court.

Following a jury trial, Defendant, Kenna Jean Parrott, was found guilty of theft of property over $60,000, a Class B felony, and forgery of books and records valued at over $60,000, a Class B felony. The trial court sentenced Defendant as a Range I, standard offender, to eight years for each offense and ordered Defendant's sentences to run concurrently. The trial court ordered six months of the effective eight-year sentence to be served in jail, and the remainder of the effective sentence in Community Corrections. Defendant does not challenge the length or manner of service of her sentence. In her appeal, Defendant challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

The defendant appeals his conviction for second degree murder on the grounds of (1) insufficient evidence to support the verdict and (2) the sentence, pursuant to Blakely issues. After review, we find sufficient evidence to support the verdict. The Tennessee sentencing structure is not impacted by Blakely, therefore, the sentence is affirmed.

Following a jury trial, Defendant, Carey Ray Faught, was found guilty of carjacking, a Class B felony. At the conclusion of the sentencing hearing, the trial court sentenced Defendant as a Range I, standard offender, to nine years. The trial court ordered Defendant's sentence for the current offense to be served consecutively to the sentence he was currently serving in case No. 71405. On appeal, Defendant argues (1) that the trial court erred in not granting his motion to suppress the victim's pre-trial identification; (2) that the evidence was insufficient to support his conviction for carjacking; (3) that the trial court erred in sentencing Defendant above the minimum of the range for a Range I, standard offender, convicted of a Class B felony; and (4) that the trial court erred in ordering Defendant to serve his sentence for the current offense consecutively to his sentence in case No. 71405. After a thorough review of the record, we affirm the judgments of the trial court.

I respectfully dissent from the majority’s opinion insofar as it places the defendant on judicial diversion. As set forth in the majority opinion, a trial court is obliged to consider a multitude of factors in determining whether to grant a request for judicial diversion. See State v. Cutshaw, 967 S.W.2d 332, 343-44 (Tenn. Crim. App. 1997); State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). A trial court is further required to state on the record the weighing process it uses in balancing all of the factors and the calculus relied upon in reaching the ultimate conclusion. See State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998). When the trial court follows this procedure and provides a comprehensive record of its decision-making process, then this Court should affirm the trial court’s ruling so long as there is any substantial evidence to support it. See Cutshaw, 967 S.W.2d at 344. However, it is only when the trial court satisfies its obligations in reviewing a request for judicial diversion that this Court is given the opportunity for meaningful appellate review.

The defendant, Harold L. Cassell, entered an agreed plea to domestic assault, a Class A misdemeanor, and applied for judicial diversion, pursuant to Tennessee Code Annotated section 40-35-313. The trial court imposed a sentence of 11 months and 29 days to be served on probation and denied the application for judicial diversion. On appeal, the defendant challenges the denial of judicial diversion. Upon review, we reverse the judgment of the trial court and grant judicial diversion. The cause is remanded for the imposition of conditions of the probationary term.

The appellant, Clayton Wilburn Eslick, was convicted by a jury in the Marshall County Circuit Court of six counts of passing worthless checks. The trial court imposed a total effective sentence of six years incarceration in the Tennessee Department of Correction. On appeal, the appellant argues that the evidence was insufficient to sustain his convictions. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

The defendant, Lacey Jones, was convicted of four counts of especially aggravated kidnapping, one count of aggravated burglary, and two counts of aggravated robbery. The trial court merged the aggravated robbery convictions into the convictions for especially aggravated kidnapping and ordered a concurrent sentence of thirty-five years for each of the four counts. The trial court ordered the aggravated burglary sentence of seven years to be served consecutively, for an effective sentence of forty-two years. In this appeal of right, the defendant argues that his convictions for especially aggravated kidnapping and aggravated robbery violate principles of due process; that the trial court erred by merging the aggravated robbery convictions into the especially aggravated kidnapping convictions; and that the trial court erred by ordering consecutive sentencing. The judgments of the trial court are affirmed.

The appellant, Wanda Joyce Drake, pled guilty in the Cannon County Circuit Court to conspiracy to manufacture methamphetamine, possession of a weapon during a felony, and possession of methamphetamine. The appellant received a total effective sentence of two years incarceration in the Tennessee Department of Correction. On appeal, the appellant argues that the trial court erred in denying probation. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

The appellant, Jimmy Ray Rogers, was convicted by a jury of introducing contraband into a penal institution, possession of marijuana, and driving on a revoked license. He received a total effective sentence of nine years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction for introduction of contraband into a penal institution and the length of the sentence imposed for that conviction. Upon our review of the record and the parties' briefs, we conclude that the appellant's conviction and sentence for introducing contraband into a penal institution should be affirmed; the appellant's conviction for possession of marijuana should merge into his conviction for introducing contraband into a penal institution; a corrected judgment should be entered reflecting that the appellant was found not guilty of possession of drug paraphernalia; and the appellant's conviction for driving on a revoked license should be reinstated. Therefore, this case is remanded to the trial court for sentencing on the appellant's conviction for driving on a revoked license and for correction of the judgments.

The appellant, Brenda Bowers, was convicted by a jury of theft of property worth less than $500 dollars. The trial court sentenced the appellant to eleven (11) months and twenty-nine (29) days and ordered the appellant to serve six (6) months of the sentence in incarceration and the remainder of the sentence on probation. After the denial of a motion for new trial, the appellant appealed, presenting the following issues: (1) whether the State improperly introduced evidence of a prior bad act of the appellant; (2) whether the appellant received ineffective assistance of counsel; and (3) whether the trial court correctly sentenced the appellant. For the following reasons, we affirm the judgment of the trial court.

Defendant, Chris Edward Smith, was convicted of the sale of less than 0.5 grams of cocaine, a Class C felony, and was sentenced as a Range III, persistent offender to ten years imprisonment. On appeal, Defendant argues (1) that the evidence was insufficient to support his conviction; (2) that the trial court erred in overruling Defendant's objection to the prosecutor's peremptory challenge of the only African-American prospective juror in the venire; and (3) that the trial court erred when it mistakenly informed the jury that Defendant was also charged with possession of drug paraphernalia. Defendant does not challenge his sentence on appeal. Following a thorough review of the record, we affirm the judgment of the trial court.

The defendant, Toney Jason Hale, pled guilty in the Bedford County Circuit Court to three counts of burglary of an automobile, a Class E felony, and escape from a penal institution, a Class E felony. He committed these offenses while serving an effective ten-year sentence on probation for crimes committed in Marshall County. The defendant was sentenced as a Range I, standard offender to one year, six months for each conviction, pursuant to a negotiated plea agreement, with the issue of consecutive sentencing to be decided by the trial court. After a sentencing hearing, the trial court ordered two of the three sentences for the burglary convictions to be served concurrently with each other but consecutively to the sentence for the third conviction. The trial court further ordered these sentences to run consecutively to his sentence for the escape offense and consecutively to his previous ten-year sentence, for an effective sentence of fourteen years, six months in the Tennessee Department of Correction. On appeal, the defendant contends that the trial court erred by ordering consecutive sentences. We affirm the trial court.