APPELLATE COURT OPINIONS

The petitioner appeals the denial of his petition for post-conviction relief from his guilty pleas to two counts of felony reckless endangerment, arguing that the post-conviction court erred in finding he received the effective assistance of counsel and that his guilty pleas were knowingly, voluntarily, and intelligently entered. Following our review, we affirm the denial of the petition.

The sole issue before the Court in this post-conviction proceeding is whether the petitioner, Jerry Neal Carpenter, was denied his constitutional right to the effective assistance of appellate counsel. At trial, the jury was given instructions on first degree premeditated murder, first degree felony murder, and robbery. The trial court declined trial counsel’s request to provide the jury with lesserincluded offense instructions, and Carpenter was convicted of first degree felony murder. Carpenter argues that he was denied the effective assistance of counsel on direct appeal because appellate counsel failed to challenge the trial court’s refusal to instruct the jury on second degree murder as a lesser-included offense. After reviewing the record and applicable authority, we hold that Carpenter has failed to establish his claim of ineffective assistance of appellate counsel. We therefore affirm the Court of Criminal Appeals’ judgment denying post-conviction relief.

The defendant was convicted of second degree murder and sentenced to twenty years in the
Tennessee Department of Correction. He contends on appeal that 1) the evidence was insufficient to prove that the killing was “knowing,” 2) the trial court erred in admitting a photo of the victim while he was alive, allowing a “memo of understanding” to be read into evidence, and refusing to admit a report of an expert witness into evidence, 3) the State made improper remarks during closing argument, 4) the trial court gave erroneous jury instructions as to the definition of “knowingly,” and 5) the sentence was improper. We conclude that the definition of “knowingly” given by the trial court improperly lessened the State’s burden of proof and was not harmless beyond a reasonable doubt. Therefore, we reverse and remand for a new trial, based on the erroneous jury instruction given by the trial court.

The appellant, Marcillo Anderson, was convicted by a jury of second degree murder and sentenced to twenty years as a Range One, Standard Offender. His release eligibility was classified as violent, requiring him to serve one hundred percent (100%) of his sentence. In this direct appeal, the appellant challenges the sufficiency of the evidence and the trial court’s denial of a jury instruction on self-defense. We hold that none of the issues raised by the appellant warrant a reversal and affirm the conviction.

The defendant, Richard Eugene Thompson, appeals the lower court’s failure to grant alternative sentencing following his guilty plea to vehicular assault. Discerning no error, we affirm.

The appellant, Shawn Rafael Bough, was convicted by a jury of felony murder and especially aggravated robbery. A co-defendant was tried separately. The trial court immediately sentenced the appellant to life in prison for the felony murder conviction. After a sentencing hearing, the trial court sentenced the appellant to a sentence of twenty-one years at 100% for the especially aggravated robbery conviction, to be served concurrently with the life sentence. The trial court denied the appellant's motion for new trial, amended motion for new trial, and second amended motion for new trial, and he appeals. Because the first motion for new trial was not timely filed in regards to the felony murder conviction and an untimely notice of appeal resulted, we determine that the appellant has waived all issues except for sufficiency of the evidence in regards to the felony murder conviction, which we choose to address in the interests of justice. Because the amended motion for new trial and second amended motion for new trial were likewise untimely, we hold that the only other issues properly before this Court are those raised in the initial motion for new trial that relate to the conviction for especially aggravated robbery. Those issues include: (1) whether the trial court erred in allowing the State to comment on the appellant's failure to produce a witness; (2) whether the evidence was insufficient to support the conviction for especially aggravated robbery; and (3) whether the trial court erred in failing to instruct the jury regarding the corroboration of accomplice testimony and out-of-court confessions. After a thorough review of the record, we find the evidence sufficient to sustain the convictions and affirm the judgment of the trial court. As to the remaining issues, we find no reversible error and, therefore, affirm the judgments of the trial court.

The petitioner, Gary Maurice Sexton, Jr., appeals the Knox County trial court's denial of his pro se motion requesting "credit for time at liberty." On appeal, the petitioner asserts: (1) the trial court erred in denying the motion; (2) the trial court erred in requiring him to proceed pro se at the hearing; and (3) he received ineffective assistance of counsel prior to the pro se hearing. Upon review of the record and the applicable law, we dismiss the appeal.

Terry Proffitt appeals the Sevier County Criminal Court's denial of his petition for post-conviction relief. Proffitt claims that he was deprived of the effective assistance of counsel during the proceedings in which he was convicted of first degree murder for the death of his ex-wife and that improper jury instructions were given during those proceedings. Because the lower court properly found that the petitioner failed to carry his burden of proving these claims by clear and convincing evidence, we affirm.

The petitioner, Wheatley Graham, appeals the trial court's denial of his petition for post-conviction relief alleging that he was denied the effective assistance of counsel. The judgment of the post-conviction
court is affirmed.

The defendant appeals his convictions for first degree murder and especially aggravated robbery on the grounds of the insufficiency of the evidence to support the convictions. We conclude that the evidence abundantly supported the convictions and affirm the same.

In this appeal from the Circuit Court for Davidson County the Plaintiff/Appellant, Peggy Pistole, argues that the trial court erred in excluding witness testimony upon grounds that their identity was not disclosed in Ms. Pistole's response to interrogatories. We reverse the judgment of the trial court and remand.

An Anderson County grand jury indicted the defendant and two co-defendants on a single count of aggravated robbery. While one co-defendant pled guilty to a reduced offense, the defendant and remaining co-defendant elected a jury trial. Following the close of proof, the trial court jury found these two individuals guilty as charged. For this offense the lower court sentenced the defendant to ten years as a standard offender. Thereafter the defendant unsuccessfully pursued a new trial motion. In this appeal the defendant continues to assert that his conviction cannot be upheld because it is based on the uncorroborated testimony of a co-defendant.

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing the lower court's denial of coram nobis relief. After review of the record, we conclude that the State's motion is well-taken and the trial court's order denying Petitioner coram nobis relief is affirmed.

Following a bench trial, the defendant, Michael Renee Lee, was convicted of aggravated burglary, a Class C felony, and theft over $1000, a Class D felony, and was sentenced as a career offender to fifteen years and twelve years, respectively. The sentences were ordered to be served consecutively for an effective sentence of twenty-seven years in the Department of Correction. On appeal, he argues that the evidence is insufficient to support his convictions and that the trial court erred in denying his motion for a continuance. Following our review, we affirm the judgments of the trial court.

The petitioner, David William Smith, appeals the Sullivan County Criminal Court's denial of his petition for post-conviction relief from his five convictions for attempted second degree murder and resulting effective thirty-two-year sentence as a Range II, multiple offender. He contends that he received the ineffective assistance of counsel because his trial attorney failed to (1) cross-examine state witnesses on testimony conflicting with their prior testimony, (2) advise him that he could receive consecutive sentences, and (3) call the necessary witnesses. We affirm the trial court's denial of the petition.

The petitioners, Timothy Bickers, Thomas Carter, and Gregory Hedges, appeal the post-conviction court’s dismissal of their joint pro se petition for post-conviction relief. On appeal, the petitioners contend: (1) due process mandates the statute of limitations be tolled; and (2) the post-conviction court erred in denying their motion for recusal. We affirm the post-conviction court’s dismissal of the petition.

The defendant, Kendrick D. Rivers, was convicted of possession of more than .5 grams of cocaine with intent to sell and/or deliver, evading arrest, resisting arrest, and criminal trespass. The trial court imposed an effective sentence of twelve years’ incarceration. In this appeal, the defendant asserts (1) that the evidence is insufficient to support his conviction for possession of cocaine; (2) that one of the jurors had a bias against him; and (3) that the State engaged in prosecutorial misconduct by knowingly using false testimony.1 Finding no error in the record, we affirm the judgments of the trial court.

A Scott County jury convicted the Defendant, Gerald L. "Pete" Shirley, of especially aggravated kidnapping, one count of aggravated sexual battery, five counts of aggravated rape, one count of aggravated assault as a lesser-included offense of attempted second degree murder, and another count of aggravated assault. The trial court imposed an aggregate sentence of sixty years in prison. On appeal, the Defendant contends the following: (1) the trial court erred in permitting the jury to take the "bill of particulars" into the jury room during deliberations; (2) the Defendant's convictions for aggravated rape by digital penetration and aggravated rape by oral sex violate the principles of double jeopardy and duplicity of offenses; (3) the trial court erred in failing to dismiss or merge the especially aggravated kidnapping conviction into one of the aggravated rape convictions; (4) the trial court erred in refusing to permit the jury to review a copy of the statement that the victim gave to a police officer; (5) the trial court erred in failing to instruct on the lesser-included offense of false imprisonment; (6) insufficient evidence exists to support the convictions; and (7) the trial court erred in sentencing the Defendant to an effective sixty-year sentence. After thoroughly reviewing the record, we conclude that the trial court committed plain error by instructing the jury that aggravated assault was a lesser included-offense of attempted second degree murder. Accordingly, we reverse the Defendant's conviction of aggravated assault in count eleven of the indictment and modify his sentence to an aggregate fifty years in prison. We affirm the Defendant's remaining convictions.

This appeal is the second in a 24 year long dispute over a proposed raceway in Lincoln County. After hearing additional proof as this Court required in West v. Luna, No. 01A01-9707-CH-00281, 1998 WL 467106 (Tenn.Ct.App.1998), the trial court entered a new injunction prohibiting the defendant Luna from operating a race track on Old Boonshill Road in Lincoln County. In this appeal, Mr. Luna challenges the trial court's injunction as noncompliant with our decision in the first appeal, and in imposing a noise limitation effectively making the race track a nuisance per se. We affirm the trial court.

This appeal involves the lower court's award of a garnishment judgment against Accuride Corporation, as well as its subsequent denial of Accuride's Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment. For the following reasons, we reverse the judgment of the lower court and remand for further proceedings.

I concur in the conclusion of the majority that Holton’s convictions should be affirmed. As to the sentence of death, however, I continue to adhere to my views expressed in a long line of dissents beginning with State v. Chalmers, 28 S.W.3d 913, 920-25 (Tenn. 2000) (Birch, J., concurring and dissenting), and most recently elaborated on in State v. Davidson, ___  S.W.3d ___, ___ (Tenn. Oct. 20, 2003) (Birch, J., dissenting), that the  comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and  disproportionate imposition of the death penalty. See Tenn. Code Ann. § 39-13-206(c)(1)(D) (1995 Supp.). I have repeatedly expressed my  displeasure with the current protocol since the time of its adoption in State v. Bland, 958 S.W.2d 651 (Tenn. 1997). I believe there are three basic problems with the current proportionality analysis: (1) the proportionality test is overbroad,2 (2) the pool ofcases used for comparison is inadequate³ and (3) review is too subjective^4.  I have previously discussed, in depth, my perception that these flaws undermine the  reliability of the current proportionality protocol. See, e.g., Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting). Accordingly, I  respectfully dissent from that portion of the majority opinion affirming the imposition of the death penalty in this case.

The defendant, Daryl Keith Holton, was convicted of four counts of first degree premeditated murder. The jury imposed a sentence of death on each conviction, finding that the prosecution had proven beyond a reasonable doubt the existence of one or more aggravating circumstances2 and that the aggravating circumstances so proven outweighed any and all mitigating circumstances beyond a reasonable doubt. The defendant appealed, challenging both his convictions and sentences. After fully considering the defendant’s claims, the Court of Criminal Appeals affirmed the convictions and the sentences. The case was then docketed in this Court, briefs were filed, and after considering the briefs and the record, this Court entered an Order requesting that the parties address certain issues at oral argument, including the sufficiency of the convicting evidence, the constitutionality of the statutory insanity defense, the constitutionality of Tennessee’s capital sentencing scheme in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002), and the propriety of the death sentences in light of the mandatory review required by Tennessee Code Annotated section 39-13-206(c)(A)-(D) (1997). After carefully and fully considering the issues in light of the record and the relevant authority, we affirm the defendant’s convictions and sentences. Tenn. Code Ann. § 39-13-206(a)(1); Judgments of the Trial Court and Court of Criminal Appeals Affirmed
 

Defendant, Glen Ray Goodrum, was found guilty of driving a motor vehicle after having been declared an habitual motor vehicle offender, in violation of Tennessee Code Annotated section 55-10-616(a), following a jury trial in the Carroll County Circuit Court. The trial court sentenced him to serve two years in the Department of Correction, and ordered that he serve a community-based alternative in Community Corrections following one year of confinement. The sentence was also ordered to be served consecutively to another sentence in an unrelated case. Defendant has listed numerous issued for review, but has only briefed a portion of the issues. He also failed to timely file his motion for new trial. In addition, the transcript of the sentencing hearing is not included in the record. This court's review is thus limited to Defendant's challenge to the sufficiency of the evidence, and a review of the judgment regarding sentencing. After review, we affirm Defendant's conviction, but remand to the trial court for entry of an amended judgment.