APPELLATE COURT OPINIONS

The petitioner was originally convicted by a Davidson County jury on nine counts of aggravated sexual battery and received an effective ninety-year sentence. He now appeals the denial of post-conviction relief, contending: (1) the post-conviction judge, who was a Deputy District Attorney General at the time of the original prosecution, should have recused herself; (2) he received ineffective assistance of trial and appellate counsel; (3) numerous errors of constitutional dimension occurred at his original trial and on direct appeal; and (4) cumulative errors require that he be granted relief. In spite of our concerns regarding the recusal issue, we are unable to discern any material distinctions with prior cases which have affirmed the failure to recuse. Accordingly, we affirm the judgment of the post-conviction court.

The Petitioner, Shaun Givens, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the Petitioner fails to assert a ground entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The defendant, Phyllis Hines, pled guilty to two counts of simple assault, a Class A misdemeanor. The Sevier County trial court imposed consecutive sentences of eleven months and twenty-nine days for each count of assault. It then ordered the defendant to serve the first eleven-month and twenty-nine-day sentence at 75% in confinement followed by probation. On appeal, the defendant contends the trial court erred in imposing confinement. We affirm the judgments of the trial court.

Defendant, Jeffrey Douglas Stratton, was indicted on two counts of burglary. Defendant entered guilty pleas to both counts. Defendant was sentenced to two years for each conviction, to be served concurrently with each other and consecutively to his sentence for a prior conviction. Defendant contends that the trial court erred by ordering a sentence of incarceration. After reviewing the record, we conclude that a sentence of confinement was supported by the record. The judgment of the trial court is affirmed.

The petitioner, Christopher David Hodge, pled guilty to two counts of aggravated robbery, one count of aggravated burglary, and one count of attempted first-degree murder and received an aggregate sentence of thirty-one years for his convictions. The petitioner filed a post-conviction petition, and after conducing an evidentiary hearing, the post-conviction court denied the petitioner's request for relief. The petitioner brings the instant appeal arguing that the post-conviction court erroneously dismissed his petition and that he is entitled to relief because he received ineffective assistance of counsel. We affirm the decision of the post-conviction court.

The defendant, Leonard H. Steele, pled guilty to driving on a revoked license, third offense, and was sentenced to eleven months and twenty-nine days, suspended except for six months in the county jail, with the balance to be served on supervised probation. On appeal, he argues that the trial court erred by denying him jail credit for time he served in 1998 as a motor vehicle habitual offender (MVHO) in an unrelated case, even though, unknown to him, his MVHO status had been withdrawn in 1997. Following our review, we affirm the judgment of the trial court.

The petitioner, Chad A. Hodge, filed a petition for post-conviction relief alleging that his guilty plea to second degree murder was not knowing and voluntary. Following an evidentiary hearing, the post-conviction court denied relief and the petitioner timely appealed. Upon review of the record and the parties' briefs, we conclude the evidence does not preponderate against the post-conviction court's findings. Accordingly, we affirm the judgment of the post-conviction court.

The Putnam County Grand Jury indicted the Defendant for theft and possession of a weapon by a convicted felon. The trial court severed the counts, and a jury convicted the Defendant on the weapon charge. The trial court sentenced the Defendant to four years incarceration, to be served consecutively to an unrelated sentence. The Defendant now appeals, arguing the following: (1) that insufficient evidence was presented at trial to support his conviction, (2) that the trial court erred by failing to instruct the jury on the lesser-included offense of attempted possession of a weapon by a convicted felon, and (3) that the trial court improperly sentenced the Defendant, both in length and by requiring the sentence to be served consecutively to the unrelated sentence. Finding no error, we affirm the judgment of the trial court.

The Appellant, Marcus Rogers, was convicted by a Shelby County jury of second degree murder and two counts of attempted second degree murder. Following a sentencing hearing, the trial court imposed an effective sentence of thirty-four years for these crimes. On appeal, he argues that the evidence produced at trial was insufficient to support the verdicts. After review, we find the evidence sufficient and affirm the judgments of the trial court.

The defendant, acting pro se at trial, was convicted of retaliation for past action and sentenced to one year of probation. The defendant argues that the evidence is insufficient to sustain his conviction and that he was wrongfully tried for recklessly committing the present offense. Because the indictment alleged that the defendant intentionally committed the instant offense, the defendant argues that there was a fatal variance between the indictment and the proof. The defendant also contends that the trial court wrongfully terminated his cross-examination of the victim and the prosecution made inappropriate comments regarding his religious beliefs during the closing arguments. The defendant argues that the trial court improperly acted in its capacity as a thirteenth juror and failed to correctly charge the jury. We conclude that the evidence is sufficient to sustain the defendant's conviction and that the trial court did not err. The judgment of the trial court is affirmed.

The defendant, Travis J. Woods, was convicted of attempted first degree murder, aggravated assault and reckless endangerment. For these convictions the defendant received sentences of 35 years, 6 years, and 2 years, respectively. The sentences were ordered to run consecutively. In this appeal the defendant argues that: (1) the evidence is insufficient to support the verdicts of guilt for attempted first degree murder and aggravated assault, (2) the trial court erroneously denied the defendant's motion to dismiss the aggravated assault charge pursuant to Tenn. R. Crim. P. 8, (3) the trial court erred in refusing to order ballistics testing, (4) the jury instructions were erroneous, and (5) the sentence is excessive. We find no reversible error in this record and therefore affirm the judgment of the trial court.

The defendant was convicted by a Warren County Circuit Court jury of one count of aggravated robbery, a Class B felony, and one count of theft over $1000, a Class D felony, based on his participation in separate criminal acts that occurred over four months apart. The trial court sentenced him as a Range I, standard offender to nine years for the aggravated robbery conviction and three years for the theft conviction, with the sentences to be served concurrently, for an effective sentence of nine years in the Department of Correction. In this appeal as of right, the defendant argues that the trial court erred in denying his motion to sever the offenses; in refusing to find him indigent and denying his request for funds to hire an expert witness; and in enhancing his sentences from the presumptive minimum in the range. Following our review, we conclude the trial court did not err in denying the defendant's motion for severance; the trial court erroneously based its refusal to declare the defendant indigent, in part, on the defendant's mother's financial resources, but there was no error in the trial court's denial of the defendant's request for funds for an expert witness; and the defendant's theft sentence should be modified. Accordingly, we affirm the judgments of the trial court, but reduce the defendant's sentence for theft over $1000 from three years to two years, to be served concurrently to his nine-year sentence for aggravated robbery.

A jury found the defendant guilty of especially aggravated kidnapping and attempted aggravated sexual battery. The trial court sentenced him to concurrent terms of twenty-two years for the especially aggravated kidnapping and three years for the attempted aggravated sexual battery. On appeal, the defendant contends the trial court erred in allowing him to be convicted of both especially aggravated kidnapping and attempted sexual battery, since both crimes arose from a single act. Additionally, the defendant argues that the trial court erred in charging the jury as to the mens rea element of attempted aggravated sexual battery, erred in not suppressing a photograph identification, and erred in sentencing him to twenty-two years for the especially aggravated kidnapping. We find no errors in the trial court's rulings and affirm the judgments of the trial court on both convictions. However, we conclude the trial court misapplied aggravating and mitigating factors in sentencing the defendant for the especially aggravated kidnapping and modify the sentence accordingly.

The petitioner appeals the denial of his petition for post-conviction relief. He contends that he accepted his plea bargain on the condition that he would serve his ten-year sentence in the county jail. No such agreement was contained in the plea agreement or announced in open court. However, the testimony is overwhelming that trial counsel gave assurances to the petitioner that, unless his medical condition changed or he was a discipline problem, he would be allowed to serve his ten-year sentence in the county jail. We conclude the advice and assurances given by trial counsel were erroneous, as contrary to the law. But for said advice and assurances, the petitioner would not have pled guilty. We reverse the post-conviction court's denial of relief, allow the petitioner to withdraw his guilty plea, and remand for new trial.

The defendant, Winston Chadrick McClain, pled guilty in the Marshall County Circuit Court to aggravated robbery, a Class B felony, with the length of the sentence to be determined by the trial court. The trial court sentenced him as a Range I, standard offender to eleven years in the Department of Correction (DOC). The defendant appeals, claiming that his sentence is excessive because the trial court improperly applied enhancement factors and failed to apply and give proper weight to mitigating factors. We affirm the judgment of the trial court.

On June 19, 2000, the defendant, Scott E. Snow, was indicted by the Roane County Grand Jury for driving on a revoked license and driving under the influence, 3rd offense. On August 6, 2001, he was convicted by a jury of DUI 3rd, and acquitted of driving on a revoked license. The defendant received a sentence of 11 months and 29 days and was ordered to serve at least 240 days prior to release on probation. The defendant now brings this appeal claiming that the evidence was insufficient for the conviction of DUI. After a thorough review of the record, we find that the evidence is sufficient to sustain his conviction and there is no reversible error. Therefore the judgment of the trial court is affirmed.

The defendant appeals from an order of the trial court which found him to be in violation of the conditions of his probation and ordered his sentence to be served in confinement. The State concedes that the trial court erred. Because the defendant's term of probation had expired at the time the probation violation warrant was issued, the trial court's order finding the defendant to be in violation of his probation is vacated.