APPELLATE COURT OPINIONS

The appellant pled guilty to aggravated assault. At sentencing, the trial court imposed a three-year sentence to be served on probation. In this appeal, the appellant argues the trial court erred by denying judicial diversion. We affirm the judgment of the trial court.

The petitioner, Robert R. McCray, petitioned the Sullivan County Criminal Court for a writ of habeas corpus to gain release from that court's 18-month sentence imposed for a conviction of selling a counterfeit controlled substance. The court denied the petition, and the petitioner appealed. The state has moved this court to affirm the order via memorandum opinion pursuant to Tennessee Court of Criminal Appeals Rule 20. We sustain the state's motion and affirm the order pursuant to Rule 20.

The petitioner, Elmer Fritts, appeals from the trial court's order dismissing his petition for 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 of the Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

The Appellant, Edward Chumney, appeals the revocation of his probation by the Madison County Circuit Court. On appeal, Chumney argues that the trial court was without authority to revoke his probation because the violation warrants were issued after his sentence of probation had expired.  After review, we agree that three of his sentences had expired; however, his two sentences for aggravated burglary had not. Accordingly, we affirm revocation of his two sentences for aggravated burglary and reverse and vacate revocation of his sentences for misdemeanor theft, class E felony theft, and class D felony theft. The case is remanded for correction of the records below to reflect this holding and for other proceedings consistent with this opinion.

The petitioner, Carl Ed Leming, pled guilty in the Hamilton County Circuit Court to two counts of aggravated rape. He received consecutive sentences of forty years incarceration in the Tennessee Department of Correction, with release eligibility after serving thirty percent of his sentence. Subsequently, the petitioner filed in the Bledsoe County Circuit Court a petition for a writ of habeas corpus, alleging that his sentence was illegal because he received statutorily impermissible release eligibility. The court dismissed the petitioner's petition for a writ of habeas corpus, and the petitioner now appeals. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

The petitioner appeals the summary dismissal of his petition for post-conviction relief, arguing that he should have been appointed post-conviction counsel to assist him with his petition. We conclude that the petitioner alleges a colorable claim for relief under the less stringent standards afforded to a pro se petitioner and that the petitioner’s request for counsel should have been granted.  Accordingly, we reverse the dismissal of the petition and remand the case to the post-conviction court for the appointment of counsel.

The majority concludes that modification of the defendant’s sentence is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

The petitioner, Jeffery Lee Miller, was convicted by a jury in the Montgomery County Circuit Court of premeditated first degree murder. The petitioner received a sentence of life imprisonment in the Tennessee Department of Correction without the possibility of parole. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition. The petitioner now appeals.  Upon our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

On appeal, the defendant challenges: (1) the sufficiency of the evidence; (2) the sentence imposed, in light of Blakely v. Washington; and (3) the denial of alternative sentencing. Following our review, we conclude that there was sufficient evidence presented, such that a reasonable jury could reject the theory of diminished capacity and find the defendant guilty of the convicted offenses.  Further, it appears that the enhancement factors were applied errantly in light of Blakely. Therefore, we reduce the sentence to the presumptive minimum and remand the matter for a determination of the defendant’s suitability for alternative sentencing.

Defendant,Ronald Lynn Chatman, was indicted for the offense of especially aggravated kidnapping, a Class A felony. Following a jury trial, Defendant was convicted of the lesser included offense of facilitation of especially aggravated kidnapping, a Class B felony. The trial court sentenced Defendant to nine years imprisonment as a Range I, standard offender. In his appeal, Defendant challenges the sufficiency of the convicting evidence, and argues that the trial court erred in not granting Defendant’s request for a probated sentence. After a thorough review of the record, we affirm the judgment of the trial court.

I respectfully disagree with the majority’s conclusion that the defendant did not open the door to cross-examination concerning other felonies involving dishonesty. This defendant’s record is extensive, and all but one of his thirteen convictions involve acts of dishonesty. The defendant’s credibility was an issue when he chose to testify. For me, it is a close question of whether the questions asked by the defendant’s attorney opened the door for further examination. By this I mean it appears that defense counsel was clearly trying to convey the defendant’s record consisted only of misdemeanor offenses. I trust the trial court heard the inflections in defense counsel’s voice that he used to emphasize “misdemeanor” in his questioning. Although his questions contained true statements, the inflections used in asking the questions by defense counsel could surely place an undue emphasis on “misdemeanor,” creating a misimpression on a jury. I believe the cavalier answers given by the defendant further opened the door when he answered, “I guess, yeah,” and “O.K.” The defendant had an extensive criminal record. His first arrest was at age nineteen, and he is now thirty-two. The record reveals that the defendant had never accumulated more than three years of good conduct without being arrested. His answers to the specific questions by defense counsel were answered in such a way that a jury could mistakenly believe that his brushes with the law were so infrequent or minor that he had difficulty remembering them. I believe this line of questions was designed to convey a false impression to the jury. Tennessee Rule of Evidence 609 envisions impeachment by the State of a criminal defendant if he or she chooses to testify. Here, defense counsel sought to lessen the sting of the state’s impeachment or to steal the state’s thunder, a permissible tactic. However, this permissible trial tactic must be employed with the utmost caution or the door will be opened for the State to cross-examine on his entire record. Under the facts of this case, I conclude the trial court was correct in ruling that the defendant opened the door to further impeachment.

The petitioner, Christopher Duwan Robertson, appeals the dismissal by the Davidson County Criminal Court of his petition for post-conviction relief. After review of the record, we affirm.

The majority concludes that application of enhancing factor (21), adjudication of a delinquent act by a juvenile which would constitute a felony if committed by an adult, is inapplicable in this case under the holding of Blakely. I respectfully disagree. The decision in Blakely v. Washington, 124 S. Ct. 2531, 2536-37 (2004), applied Apprendi, which recognized the Almendarez-Torres holding permitting sentencing enhancement based upon a prior guilty plea, as opposed to the necessity of a jury conviction, because guilty pleas are “entered pursuant to proceedings with substantial procedural safeguards of their own.”   Apprendi v. New Jersey, 120 S. Ct. 2348, 2361 (2000). Similarly, I find that juvenile adjudications in this state are entered pursuant to proceedings with substantial procedural safeguards and constitutional protections of their own. A panel of this court recently concluded that enhancement factor (21) is not implicated under Blakely. The panel reasoned:

The constitutional protections of due process and a finding that the delinquent charge has been proven beyond a reasonable doubt, as required by United States v. Almendarez-Torres, 512 U.S. 224, 243, 118 S. Ct 1219, 1230 (1998), are integral to an adjudication of delinquency in this state. State v. Strickland, 532 S.W.2d 912, 921 (Tenn. 1975); Tenn. Code Ann. § 37-1-129(b) (2003); Tenn. R. Juv. P. 28(d)(2).

The Defendant, Ricky Lynn Earls, was convicted by a jury of four counts of forgery, Class E felonies, and one count of theft under $500, a Class A misdemeanor. The trial court subsequently merged two of the forgery counts into the remaining two counts. After a hearing, the trial court sentenced the Defendant as a career offender to an effective sentence of twelve years. The Defendant’s sentence was affirmed on direct appeal. See State v. Ricky Lynn Earls, No. M2001-00112-CCA-R3-CD, 2002 WL 1586286 (Tenn. Crim. App., Nashville, July 18, 2002). The Defendant subsequently filed for post-conviction relief alleging ineffective assistance of counsel.  After a hearing, the trial court denied relief. This appeal followed. The sole issue before us is whether the Defendant suffered from the ineffective assistance of counsel due to defense counsel’s failure to file timely a motion for new trial. We find that the Defendant is entitled to relief on the grounds of ineffective assistance of counsel. Accordingly, we reverse the trial court’s ruling and remand this cause with instructions that the trial court grant the Defendant a delayed appeal.

The defendant appeals his burglary conviction and argues that the trial court erred in finding that he “opened the door” to cross-examination regarding his prior burglary convictions. Upon thorough review, we conclude that defense counsel’s pattern of questioning did not open the door to cross-examination on prior burglary convictions initially ruled inadmissible. We hold that the trial court erred in reversing itself and allowing cross-examination as to the convictions; therefore, we reverse the judgment of the trial court and remand for a new trial.

A Shelby County jury convicted the defendant, Larry Holmes, of four counts of especially aggravated kidnapping, a Class A felony, two counts of aggravated robbery, a Class B felony, and one count of aggravated burglary, a Class C felony. The trial court merged the two aggravated robbery convictions into the especially aggravated kidnapping convictions and sentenced the defendant as a repeat violent offender to concurrent sentences of fifty-five years at one hundred percent for the especially aggravated kidnapping convictions and as a career offender to fifteen years for the aggravated burglary conviction to be served consecutively to the especially aggravated kidnapping sentences for an effective sentence of seventy years. On appeal, the defendant contends that (1) the evidence was not sufficient to support his convictions for especially aggravated kidnapping and aggravated robbery, (2) the trial court erred by denying his request for a mistrial based upon a misstatement by an officer testifying for the state, and (3) the trial court erred in imposing his sentences. ¹ We affirm the judgments of the trial court.

The defendant, Anthony Dwayne Brown, was convicted by jury of one count of first degree premeditated murder, two counts of felony murder, one count of especially aggravated robbery, two counts of especially aggravated burglary, and theft of property valued at less than $500. The trial court merged the two felony murder counts into the first degree premeditated murder count and merged the theft offense into the count of especially aggravated robbery. The trial court also merged the two counts of especially aggravated burglary. The defendant was sentenced to life without the possibility of parole for the first degree premeditated murder. The defendant was sentenced to sixty years for especially aggravated robbery and to thirty years for especially aggravated burglary. The trial court ordered all sentences to run concurrent with the sentence of life without the possibility of parole. The defendant raises two issues on appeal: (1) whether the evidence was sufficient to support his convictions; and (2) whether the trial court erred in excluding the testimony of a defense witness.  Following our review, we affirm the judgment of the trial court.

A Henderson County jury convicted the defendant, John Fitzgerald Belew, of possession of cocaine, a Class A misdemeanor; and possession of .5 grams or more of cocaine with the intent to deliver, a Class B felony. The trial court merged the two convictions and sentenced the defendant to twelve years as a Range I standard offender. On appeal, the defendant contends that the evidence is insufficient to support his conviction. Upon our close review of the evidence, we are constrained to hold that the evidence was insufficient to prove the defendant’s intent to deliver beyond a reasonable doubt. However, we determine that the evidence was sufficient to prove simple possession of cocaine. Therefore, we reverse the defendant’s conviction of possession of .5 grams or more of cocaine with the intent to deliver, and reduce it to simple possession of cocaine. We remand the case to the trial court for sentencing consistent with this opinion.

The petitioner, Roy C. Smith, filed a petition for writ of habeas corpus challenging his 1996 guilty plea for rape of a child. After a hearing, the trial court granted the petition, determining that the judgment was not void, but that the petitioner’s sentence was illegal. The State appeals. For the following reasons, we affirm the judgment of the trial court granting the writ of habeas corpus.

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 has appealed the trial court's order summarily dismissing the petition for the writ of habeas corpus. In that petition, the petitioner challenges the constitutionality of the Criminal Sentencing Reform Act of 1989 in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Upon a review of the record in this case, despite the untimely notice of appeal filed by the petitioner, 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.

The petitioner, Unte Henderson, appeals from the Rutherford County Circuit Court’s denial of his petition for post-conviction relief from his guilty pleas to second degree murder and conspiracy to commit aggravated robbery and effective nineteen-year sentence. He contends that he received the ineffective assistance of counsel because his attorney coerced him into pleading guilty. We affirm the trial court.

The defendant, David Arnold Humphrey, entered a plea of guilt to attempt to possess more than .5 grams of cocaine for resale. As a part of the plea agreement, a Range II sentence of six years was imposed and a certified question of law was reserved for appeal. See Tenn R. Crim. P. 37 (b)(2)(i). The question, as originally approved before the filing of the notice of appeal, is "[w]hether the initial contact and subsequent seizure of the defendant were . . . proper, with said seizure resulting in the seizure of a Crown Royal bag containing cocaine." The state, with the approval of the trial court, conceded that the issue was dispositive of the case. The judgment is affirmed.

The petitioner, James Mario Starnes, appeals the Bedford County Circuit Court's dismissal of his pro se petition for post-conviction relief without holding an evidentiary hearing. In his petition, the petitioner contends that he received ineffective assistance of counsel and entered an involuntary plea. The trial court concluded that the factual allegations of the petition were insufficient and that the issues were waived for failure to present them on direct appeal. We disagree and remand the case to the trial court for an evidentiary hearing.

The defendant was involved in an automobile accident. When officers arrived, she maintained that she had been the driver of the vehicle. However, the actual driver was later apprehended. When an officer attempted to place the defendant under arrest, she physically resisted handcuffing. The Davidson County Grand Jury indicted the defendant for making a false report and resisting arrest. She was found guilty of both charges in a bench trial. The trial court sentenced the defendant to an effective sentence of eighteen (18) months with periodic confinement on weekends for twenty (20) days and the remainder on probation. On appeal, the defendant argues that there was insufficient evidence to support her convictions. We affirm the judgments of the trial court.

In 2000, the Petitioner, Russell Allen, was convicted of aggravated sexual battery, and was sentenced to serve eight years. Subsequently, the Petitioner filed a petition for post-conviction relief, and the post-conviction court dismissed the petition, concluding that his petition was not filed within the statute of limitations. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his post-conviction petition. After thoroughly reviewing the record and the applicable authorities, we affirm the post-conviction court's judgment.