APPELLATE COURT OPINIONS

This opinion adjudicates John Robert Tory, Jr.'s appeal from the Knox County Criminal Court's denial of his 1994 petition for post-conviction relief. He filed the petition to challenge his 1992 jury convictions of first degree murder and especially aggravated robbery. Following a hearing in which counsel argued but no evidence was presented, the post-conviction court rejected the petitioner's claims that his especially aggravated robbery conviction violated double jeopardy principles, that the trial court erred in not instructing the jury as to second degree murder as a lesser included offense of first degree felony murder, and that trial counsel was ineffective in failing to demand an instruction on second degree murder as a lesser included offense. Because the record and the applicable law support the denial of post-conviction relief, we affirm.

The defendant was indicted by a Putnam County Grand Jury for one count of first degree murder, one count of especially aggravated robbery and one count of especially aggravated burglary. On September 18, 2000, the State filed a Notice of Intent to Seek Punishment of Imprisonment for Life Without Possibility of Parole. The Grand Jury later returned a Superceding Indictment including charges of First Degree Felony Murder, First Degree Premeditated Murder, Especially Aggravated Robbery and Especially Aggravated Burglary. At trial, the trial court reduced the premeditated first degree murder count to second degree murder for consideration by the jury. At the conclusion of the trial, the jury convicted the defendant of felony murder, second degree murder, especially aggravated robbery and especially aggravated burglary, and immediately sentenced the defendant to life without parole on the first degree felony murder count. The trial court merged the defendant's second degree murder conviction into the first degree felony murder conviction and sentenced the defendant to twenty-five (25) years for the especially aggravated robbery conviction and to twelve (12) years for the especially aggravated burglary conviction. The trial court ran the twenty-five (25) year sentence consecutive to the life without parole sentence and ran the twelve (12) year sentence concurrent to the twenty-five (25) year sentence. The defendant appeals from the trial court based on four issues: (1) Whether the trial court erred in instructing the jury; (2) whether the evidence was sufficient to establish the defendant's guilt beyond a reasonable doubt; (3) whether the Tennessee sentencing scheme for life imprisonment without parole is unconstitutional if the aggravating circumstances, contained in Tennessee Code Annotated section 39-13-204, are not part of the indictment; and (4) whether the Tennessee sentencing scheme for life imprisonment without parole is unconstitutional. We find these issues do not merit a reversal of this conviction and affirm the trial court.

The defendant, Mindy S. Dodd, appeals from her convictions by a jury in the Rutherford County Circuit Court of first degree murder and conspiracy to commit first degree murder. She received sentences of life and twenty years, respectively, to be served concurrently in the Department of Correction. The defendant contends that the evidence is insufficient to support either conviction. We affirm the judgments of conviction.

A Henry County Circuit Court jury convicted the defendant, Dedrick Dewayne Chism, of two counts of selling more than one-half gram of cocaine, a Class B felony, and the trial court sentenced him as a Range II, multiple offender to twelve years for each conviction to be served concurrently. The defendant appeals, claiming that (1) the evidence is insufficient to support his convictions, (2) the state improperly withheld an exculpatory witness’s name from the defense, and (3) the trial court erred by refusing to allow the defense to impeach a state witness with his prior conviction and bad acts. We affirm the judgments of the trial court.

Convicted by a jury of assault and aggravated stalking, the defendant, Howard Duty, Jr., appeals. In addition to claiming that his convictions are not supported by sufficient evidence, he claims it was error for the trial court to enhance a charge of misdemeanor stalking to the felony of felony stalking. The lower court imposed the felony stalking conviction based upon a previous conviction of stalking that was adjudicated after the commission of the offense in the present case. Based upon our review, we conclude that sufficient evidence supports the stalking conviction; however, the aggravation of the stalking offense to a felony was improper. Thus, the lower court's actions are reversed in part and affirmed in part.

The appellant, Danny Johnson, was convicted by a Sequatchie County jury of two counts of rape of a child, Class A felonies, and one count of aggravated sexual battery, a Class B felony. Following a sentencing hearing, the trial court sentenced the appellant to an effective sentence of twenty-one years in the Tennessee Department of Correction. On appeal, the appellant challenges (1) the selection process of the venire from which grand and petit jurors were selected; (2) the trial court's failure to allow into evidence as an excited utterance the statement of Thomas Zervos regarding prior abuse of the victim; and (3) the sufficiency of the evidence. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

The petitioner, Jesse Cleo Minor, entered a best-interest plea to one count of attempted rape of a child. He is currently serving an eight-year sentence. See State v. Jesse Cleo Minor, No. M1998-00424-CCA-R3-CD, 1999 WL 1179143 (Tenn. Crim. App. at Nashville, Dec. 15, 1999). The post-conviction petition at issue herein was filed by the petitioner's daughter Leann Morrison as next friend. The petition alleges that the petitioner is in poor health and suffers from irreversible dementia that seriously affects his cognitive abilities. The petitioner attacks his conviction based upon the following four allegations: (1) he was incompetent and unable to understand the prior proceedings and therefore incapable of entering a voluntary guilty plea; (2) the State failed to disclose material exculpatory evidence; (3) false and/or materially misleading statements were offered to the trial court; and (4) trial counsel was ineffective. We affirm the trial court's dismissal of the post-conviction petition.

The appellant, Delsie Lucille Sartain, was convicted by a jury for the reckless aggravated assault of a five-month-old baby, which resulted in permanent injuries. Following a sentencing hearing, the trial court imposed a sentence of three years and two months incarceration as a range I standard offender. Sartain appeals the sentencing decision, arguing that the trial court erred by ordering a sentence of total confinement rather than the less restrictive alternative of probation. After review, we find no error and affirm the judgment of the Bedford County Circuit Court.

The Washington County Grand Jury indicted the defendant, Christopher Whitaker, for three counts of robbery, and one count of theft valued over $500. The defendant pled guilty to all four counts. Following a sentencing hearing, the trial court denied the defendant's request for alternative sentencing and sentenced the defendant to serve six years in prison. The defendant appeals, contending that the trial court erred when it denied his request for alternative sentencing. Finding no reversible error, we affirm the trial court's judgments.

Defendant Jarvis Williams was convicted of seven counts of especially aggravated kidnapping and four counts of aggravated robbery. He was sentenced to an effective term of 360 years in the Department of Correction for these offenses. In this direct appeal, he challenges the length of his sentence. Co-defendant John Williams was convicted of five counts of especially aggravated kidnapping and three counts of aggravated robbery. He was sentenced to an effective term of 161 years in the Department of Correction for these offenses. In this direct appeal, he challenges the sufficiency of the evidence and the length of his sentence. We affirm the judgments of the trial court in all respects.

We granted this appeal to determine whether the trial court properly granted the defendant post-conviction relief in the form of a delayed direct appeal on the ground that counsel's failure to file a motion for new trial resulted in the waiver of all issues on direct appeal except for sufficiency of the evidence. The Court of Criminal Appeals dismissed the appeal after concluding that the trial court lacked the statutory authority to grant a delayed appeal and that the defendant had not suffered any prejudice from counsel's performance. After reviewing the record and applicable authority, we conclude that the trial court properly granted a delayed appeal based upon ineffective assistance of counsel. We therefore reverse the Court of Criminal Appeals, affirm the trial court's grant of a delayed appeal, and remand to the Court of Criminal Appeals for review of the issues presented by the defendant's motion for a new trial.

The appellant, Benton William Pamplin, was convicted by a Bedford County jury of simple assault and resisting arrest. On appeal, Pamplin presents two issues for our review: (1) whether the trial court committed reversible error by refusing to strike, for cause, a prospective juror who was a uniformed deputy sheriff and whose office presented testimony at the trial, and (2) whether the evidence was sufficient to sustain the verdicts. After review, we conclude that the trial court's refusal to strike the prospective juror constituted reversible error in that it denied Pamplin his right to a fair and impartial jury. Accordingly, the judgments of conviction are reversed and the case is remanded for a new trial.

The defendant, Doyle Gilbert Newsom, was convicted by a Bedford County jury of fifth offense driving under the influence of an intoxicant, driving on a revoked driver’s license, and violation of the implied consent law. He received sentences of six years at 60% incarceration as a career D.U.I. offender, and 11 months, 29 days for driving on a revoked license. In this appeal the defendant claims that: (1) the evidence is insufficient to support the D.U.I. conviction because the testimony of an accomplice was not sufficiently corroborated; (2) he was improperly sentenced to 11 months, 29 days for driving on a revoked license; and (3) the prior judgments of conviction are invalid. We find no merit to any of these contentions. Therefore, the judgments of the trial court are affirmed.

A Hamilton County Grand Jury indicted the defendant, Gene Shelton Rucker, Jr., for felony murder and aggravated arson in connection with a fire that took the life of an individual who resided in the apartment structure that was burned. Following a jury trial, the defendant was convicted of the lesser-included offense of criminally negligent homicide and aggravated arson, as charged. The defendant now appeals his convictions and sentence. Specifically, the defendant argues (1) that the trial court erred by instructing the jury on criminal responsibility for the conduct of another; (2) that setting fire to personal property is a lesser-included offense of aggravated arson and should have been included in the charge to the jury; (3) that the instruction on the knowing mens rea element of aggravated arson was incorrect; (4) that the state violated the defendant's due process rights by advancing impermissibly inconsistent positions relative to the defendant and an indicted co-defendant; (5) that the evidence was insufficient to support his convictions; and (6) that his sentence should not have been enhanced on the basis of prior convictions that were not proven by certified copies of the underlying judgments. After a thorough review of the record, we affirm the defendant's convictions and sentence.

The defendant, Sharon J. Breeden, appeals the revocation of her probation. We affirm the judgment of the trial court.

The defendant, David Jennings, pled guilty to burglary, a Class D felony; theft over $1,000, a Class D felony; vandalism, a Class D felony; simple possession of marijuana, a Class A misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced as a Range I, standard offender to an effective sentence of three years, fined a total of $400, and ordered to pay restitution. On appeal, he argues that the trial court erred in denying alternative sentencing. Following our review, we affirm the judgments of the trial court.