APPELLATE COURT OPINIONS

The petitioner, Dennis Gilliland, appeals the Dickson County Circuit Court's denial of his petition for post-conviction relief from his 1996 felony murder conviction. He contends that the trial court erred in failing to instruct the jury on the issue of alibi. He also raises ineffective assistance of counsel because his attorney did not request an alibi instruction, requested the dismissal of the premeditated murder count instead of the felony murder count after the jury returned guilty verdicts on both counts, and did not raise relevant arguments about the jury seeing the petitioner in handcuffs. Last, the petitioner claims that he was denied the right to a fair trial by an impartial jury because the jury was allowed to hear evidence that he had been involved in two other, recent shooting deaths. We affirm the denial of the post-conviction petition.

The defendant, Ernesto Gonsales, pled guilty to one count of aggravated assault. After determining that the Immigration and Naturalization Service (INS) had a detainer out for the defendant, the trial court modified the defendant's sentence to six years' unsupervised probation and release to the INS, noting that the defendant would immediately be deported to Mexico. In this appeal, the state contends that the trial court exceeded its authority by modifying the terms of the plea bargain agreement. Because the initial judgment should not have been altered, the order of modification is reversed and the cause is remanded to the trial court.

I concur in the result reached and most of the reasoning in the majority opinion. However, I do not believe that we should rely on T.C.A. § 40-18-110 to bar relief in this case relative to a jury instruction for the lesser included offense of attempted voluntary manslaughter. The state has not raised the statute to bar the defendant’s jury instruction claim, and, obviously, the defendant has not had an opportunity to address the validity of the statute. In this respect, I believe that legitimate questions exist about the constitutionality of, at least, part of T.C.A. § 40-18-110 but that this case is not the one to answer those questions. The fact that no harm could flow to the defendant under the circumstances in this case is sufficient, by itself, to warrant affirming the judgments of conviction. Therefore, I concur in the majority opinion.

The defendant pled guilty to reckless aggravated assault of her three-month-old son and was sentenced to four years in the Tennessee Department of Correction. The trial court incorrectly applied some of the enhancement factors. However, the factors that were correctly applied substantially outweighed any incorrectly applied factors. There were no mitigating factors. The record does not indicate that the sentence was excessive. In light of the defendant's extensive criminal history, the trial court did not err in denying alternative sentencing.

The petitioner appeals the denial of post-conviction relief. He argues the post-conviction court erred in determining he received the effective assistance of counsel at his trial. We affirm the judgment of the post-conviction court.

The petitioner, Antonio Bonds, appeals the dismissal of his petition for post-conviction relief based upon its filing beyond the statute of limitations. He argues his petition was timely filed. We hold that for purposes of the post-conviction relief statute of limitations, the final action of the Tennessee Supreme Court is the date of its denial of an application for permission to appeal, not the date it denied the petition to rehear. Because the instant petition was filed more than one year from the date of denial of the application for permission to appeal, we affirm the judgment of the post-conviction court.

The defendant, Albert G. Gassaway, appeals his conviction for DUI, second offense. The trial court sentenced the defendant to eleven months, twenty-nine days, with six months to be served in the county workhouse and the remainder on probation, ordered him to pay a $600 fine, and suspended his driving privileges for two years. The defendant appeals, arguing that the evidence was insufficient to support his conviction for DUI, second offense, and that the court erred in imposing more than the minimum sentence. Following our review, we affirm the judgment of the trial court.

The defendant pled guilty to aggravated burglary, theft over $1000, and vandalism and was sentenced to five years probation. Subsequently, after the defendant tested positive for marijuana and his probation officer filed a probation violation report, the trial court revoked his probation following a hearing. The defendant appeals, arguing that the trial court erred in relying upon a laboratory report showing marijuana in his urine because the accompanying affidavit had not been executed by the technician who performed the test but by the assistant laboratory director. Following our review, we affirm the order of the trial court revoking the defendant's probation.

The Appellant, Mitchell Wayne Hiles, was convicted of one count of aggravated sexual battery, a class B felony, following a jury trial. The trial court sentenced Hiles to an eight-year sentence in the Department of Correction. On appeal, Hiles raises the single issue of whether the evidence was sufficient to support the verdict. After review of the record, we affirm the conviction.

The defendant pled guilty to the sale of less than .5 gram of a Schedule II controlled substance, a Class C felony, and two counts of the sale of a Schedule VI controlled substance, Class E felonies, receiving an effective sentence of five years in the Department of Correction. Following a sentencing hearing, the trial court granted the defendant's request for judicial diversion, concluding he was eligible for diversion because he had not previously been convicted of a felony or a Class A misdemeanor and his history and circumstances demonstrated he was a suitable candidate for judicial diversion. The State appealed, arguing that the defendant was eligible for diversion only because the trial court modified his prior conviction from a Class A misdemeanor to a Class C misdemeanor. Following our review, we affirm the order of the trial court.

The appellant pled guilty to simple burglary. At sentencing, the trial court imposed a two-year sentence with sixty days to be served in the county jail followed by probation. In this appeal, the appellant argues the trial court erred: (1) in denying judicial diversion; and (2) in denying full probation. We affirm the judgment of the trial court.

The Johnson County Grand Jury indicted the Defendant, Tammy Hart, for child endangerment, vehicular homicide, and aggravated vehicular homicide after the Defendant's car collided "head-on" with another car, killing the other driver. A Johnson County jury convicted the Defendant of child endangerment and vehicular homicide. The Defendant waived her right to a jury trial on the third count of the indictment, and the trial court found the Defendant guilty of aggravated vehicular homicide and merged the vehicular homicide conviction with the aggravated vehicular homicide conviction. The trial court sentenced the Defendant to eleven months, twenty-nine days for child endangerment, all of which was suspended except for thirty days, and twenty-three years for the aggravated vehicular homicide conviction and ordered the sentences to run consecutively. On appeal, the Defendant contends the following: (1) that the trial court erred by denying the Defendant's motion to suppress her medical records; (2) that the trial court erred in admitting the Defendant's medical records into evidence; (3) that the Defendant's constitutional right of confrontation was violated by the admission of her medical records into evidence; and (4) that the evidence presented at trial was insufficient to sustain her convictions. Finding no reversible error and concluding that sufficient evidence exists in the record to support the Defendant's convictions, we affirm the trial court's judgments.

The defendant, Fredrequos Damon Neal, was convicted by a Madison County Circuit Court jury of attempted first degree murder, a Class A felony. The trial court sentenced him to twenty-two years as a Range I, standard offender. The defendant appeals, claiming that the evidence is insufficient to support his conviction and that his sentence is excessive. We affirm the judgment of the trial court.

Robert Michael Winters appeals his Hamilton County convictions of first-degree murder and aggravated robbery relative to events which culminated in the death of Vernise Sheffield, for which the defendant is serving concurrent sentences of life with the possibility of parole and 12 years, respectively. In this direct appeal, Winters alleges that his convictions are unsupported by sufficient evidence, that the trial court erroneously instructed the jury on criminal responsibility, that the trial court erroneously admitted a letter from the defendant to his wife which was properly subject to the marital communications privilege, and that the trial court erroneously admitted a prior consistent statement to rehabilitate a state's witness. Because we are unconvinced that harmful error occurred, we affirm the defendant's first-degree felony murder and aggravated robbery convictions. However, instructional error with respect to the first-degree premeditated murder conviction requires that we reverse that count and remand for a new trial.

The appellant, Richard Phillip Mather, pled guilty in the Anderson County Circuit Court to criminally negligent homicide. The trial court sentenced the appellant as a Range I standard offender to two years incarceration. On appeal, the appellant contends: (1) the trial court erred by failing to recuse himself from the proceedings; and (2) the trial court erred by rejecting the initial plea agreement. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

A Shelby County Grand Jury indicted the Defendant, Terrance Heard, along with fourteen other members of the "Gangster Disciples" street gang, for first degree premeditated murder, murder in the perpetration of a kidnapping, murder in the perpetration of a robbery, and especially aggravated kidnapping after two men were kidnapped and beaten by the gang, leaving one victim dead. A Shelby County jury convicted the Defendant of first degree premeditated murder, murder in the perpetration of a kidnapping, and two counts of especially aggravated kidnapping, and the trial court merged the murder convictions, imposed a life sentence with the possibility of parole for the murder conviction and twenty-five years for each count of especially aggravated kidnapping, and ordered all the sentences to run consecutively. The Defendant now appeals, contending the following: (1) that the trial court erred by denying the Defendant's motion to suppress the pre-trial identification of the Defendant made by a witness and by limiting cross-examination of the witness regarding this identification; (2) that the assistant district attorney improperly commented on the state of mind of the victim and a co-defendant during his opening statement to the prejudice of the Defendant; (3) that the trial court erred by allowing a witness to testify as to the victim's state of mind just prior to his murder concerning the Gangster Disciples; (4) that the trial court erred by denying the Defendant's request for a special jury instruction addressing the theories of duress and mere presence; and (5) that the evidence presented at trial was insufficient for a rational trier of fact to find the Defendant guilty beyond a reasonable doubt. We find no reversible error and conclude that sufficient evidence exists in the record to support the Defendant's convictions. Accordingly, we affirm the trial court's judgments.

The defendant was found guilty of first degree premeditated murder and sentenced to life imprisonment. The defendant now appeals contending that (1) the trial court erred by allowing the defendant’s impeachment with  inadmissible evidence, and (2) he was denied a fundamentally fair trial because of improper questions and argument by the prosecution. We hold that (1) the defendant’s impeachment was improper, however, the  error was harmless, and (2) the State’s questions and argument were  not improper, and even if they were improper, they did not rise to the level of plain error.

The defendant, Russell Dale Oliver, was convicted by a jury in the Johnson County Circuit Court of murder in the first degree and sentenced to life in prison. In this appeal as of right, the defendant contends that the trial court erred by overruling his motion to dismiss the indictment based on the violation of his right to a speedy prosecution and trial and that the evidence is insufficient to convict him of murder in the first degree. We affirm the judgment of the trial court.

The post-conviction petitioner, Kelvin Wade Cloyd, was convicted of two counts of vehicular homicide and possession of a controlled substance. After appointment of counsel and a hearing, the post-conviction court denied relief. In this appeal of right, he asserts that he was denied the effective assistance of counsel at trial and on appeal and that the state withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The judgment of the trial court is affirmed.

A Knox County jury convicted the juvenile defendant, Edward L. Williams, of premeditated first degree murder and especially aggravated robbery. The trial court imposed consecutive sentences of life for the premeditated murder conviction and twenty-two years for the especially aggravated robbery conviction. On appeal, the defendant contends: (1) the evidence is insufficient to support the conviction for premeditated murder; and (2) the trial court erred in imposing consecutive sentences. We remand for entry of an amended judgment reflecting a sentence of life with the possibility of parole and deleting any reference to a merger of the premeditated murder count and the felony murder count. We further order that the sentences run concurrently rather than consecutively. We otherwise affirm the judgments of the trial court.

The defendant was found guilty of driving under the influence, fifth offense. The defendant filed a motion to suppress the evidence obtained as a result of the roadblock, contending that the officer lacked reasonable suspicion to detain the defendant, the roadblock guidelines are unconstitutional, and the police did not substantially comply with the roadblock guidelines. The defendant also made a motion in limine to keep out testimony regarding the defendant's use of a racial slur. Both motions were denied. We affirm the judgment of the trial court as to all issues.

The defendant, Christopher Lovin, was convicted of felony murder in the perpetration of aggravated child abuse. In this appeal of right, the defendant argues that the evidence was insufficient and submits that the trial court erred by failing to exclude cumulative medical testimony. The judgment is affirmed.

The appellant, Clay A. Thompson, pled guilty to theft of property valued over $1,000. The McNairy County trial court sentenced him as a Range II multiple offender to seven years incarceration. On appeal, the appellant contends his sentence is excessive. We affirm the judgment of the trial court.

A Shelby County jury convicted the defendant, Leonard Franklin, of simple assault. The trial court sentenced him to seven months in the Shelby County Correctional Center with sixty days incarceration followed by eleven months and twenty-nine days probation. On appeal, the defendant contends the trial court erred in: (1) denying the defendant’s motion for a continuance; (2) limiting the defendant’s cross-examination of the victim concerning her civil lawsuit against him; (3) admitting evidence of the defendant’s suspension from his place of employment; (4) improperly commenting on the evidence; and (5) imposing a period of confinement. We reduce the probationary term to ten months but otherwise affirm the judgment of the trial court.

On October 29, 1997, the Hamblen County Grand Jury returned an indictment against the appellant, Christopher Allen Harris for rape of a child in violation of Tennessee Code Annotated section 39-13-522. On January 19, 2000, the appellant entered a guilty plea to attempted rape of a child. He received a sentence of eight years to be served as a work-release sentence for 11 months and 29 days in the county workhouse with the balance on intensive probation. The appellant raises the following issues in this appeal: (1) whether he was properly subject to revocation of a Community Corrections sentence, and (2) whether the record preponderates against a determination that he had violated the terms of his Community Corrections sentence. After a review the record, we affirm the judgment of the trial court.