Court of Criminal Appeals Opinions

Format: 08/17/2018
Format: 08/17/2018
State of Tennessee v. Kenneth Mark Jones
W2017-01607-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Russell Lee Moore, Jr.

On May 25, 2017, the Defendant, Kenneth Mark Jones, was convicted by a jury for the sale of less than 0.5 grams of cocaine, a Class C felony. See Tenn. Code Ann. § 39-17-417(a)(3). The trial court subsequently sentenced the Defendant to three years confinement as a Range I, standard offender. On appeal, the Defendant contends that the evidence was insufficient to sustain his conviction because he was merely guilty of facilitation. Following our review, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 08/17/18
Nicholas Watkins v. State of Tennessee
W2017-01633-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Kyle C. Atkins

The Petitioner, Nicholas Watkins, appeals from the Madison County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that his guilty pleas were not knowingly and voluntarily entered because of his trial counsel’s ineffective assistance. Discerning no error, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 08/17/18
Daramis Sharkey v. State of Tennessee
W2017-01961-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Chris Craft

The Petitioner, Daramis Sharkey, appeals as of right from the denial of his petition for post-conviction relief, wherein he challenged the validity of his guilty pleas to three counts of aggravated rape and four counts of aggravated burglary. On appeal, the Petitioner contends that he did not enter into his original guilty plea knowingly and voluntarily because his attorney provided ineffective assistance of counsel by inappropriately pressuring the Petitioner to enter into a plea deal rather than proceed with the jury trial. Following our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/17/18
Tony Thomas v. State of Tennessee
W2017-02221-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee V. Coffee

The petitioner, Tony Thomas, appeals the summary dismissal of his petition for postconviction relief, which petition challenged his 2010 conviction of aggravated sexual battery. In this appeal, the petitioner contends that the post-conviction court erred by summarily dismissing his petition on grounds that he had filed more than one petition for post-conviction relief and that the grounds in his petition had been previously determined. The post-conviction court correctly determined that the petitioner’s claim that he was deprived of the effective assistance of counsel at trial was previously determined; that portion of the court’s order so holding is affirmed. Because the postconviction court erred by concluding that (1) the petitioner had filed more than one petition for post-conviction relief and (2) the remainder of the petitioner’s claims for post-conviction relief had been previously determined, that portion of the court’s order is reversed. The case is remanded for an evidentiary hearing on those claims not previously determined.

Shelby County Court of Criminal Appeals 08/17/18
State of Tennessee v. Kendall Southall
M2017-01975-CCA-R3-CO
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James G. Martin, III

The Petitioner, Kendall Southall, appeals from the Williamson County Circuit Court’s denial of his motion to terminate costs from his drug-related convictions between 1992 and 2002. The Petitioner contends that the trial court erred by denying relief because multiple pending civil actions existed to collect unpaid costs relative to the convictions and that the ten-year statute of limitations period prohibits the State from attempting to collect the costs. We dismiss the appeal because this court lacks jurisdiction to consider it.

Williamson County Court of Criminal Appeals 08/17/18
State of Tennessee v. Dewayne Cross
E2018-00047-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge David R. Duggan

The pro se Defendant, Dewayne Cross, appeals the Blount County Circuit Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. We affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Blount County Court of Criminal Appeals 08/17/18
Willis Holloway v. State of Tennessee
W2017-01573-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Willis Holloway, was convicted of two counts of aggravated robbery, two counts of aggravated kidnapping, and one count of aggravated burglary, and the trial court imposed an effective forty-four year sentence in the Tennessee Department of Correction. On appeal, this court affirmed the Petitioner’s conviction and sentence. See State v. Charles Jackson and Willis Holloway, No. W2010-01133-CCA-R3-CD, 2012 WL 543047, at *1 (Tenn. Crim. App., at Jackson, Feb. 17, 2012), perm. app. denied (Tenn. June 22, 2012). Subsequently, the Petitioner filed a petition for post-conviction relief, and the post-conviction court denied relief. Willis Holloway v. State, No. W2014-02444-CCA-R3-PC, 2015 WL 6122155, at *1 (Tenn. Crim. App., at Jackson, Oct. 16, 2015), perm. app. denied (Tenn. March 23, 2016). The Petitioner then filed a “Petition for Extraordinary Relief,” the subject of this appeal, asserting: (1) his sentences were void for duplicity; (2) his indictments were void because the charges were vague; (3) two of the indictments were defective; (4) the trial court constructively amended the indictments; and (5) trial and post-conviction counsel were ineffective. The postconviction court, treating the petition as one for post-conviction relief, found that the Petitioner’s claims had either been previously determined or waived because the Petitioner failed to raise them in his earlier appeals and denied relief. After review, we affirm.

Shelby County Court of Criminal Appeals 08/16/18
Timothy A. Baxter v. State of Tennessee
W2017-01073-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Roy Morgan, Jr.

The petitioner, Timothy A. Baxter, appeals the summary dismissal of his petition for writ of habeas corpus. Because the notice of appeal was untimely and because the interests of justice do not warrant waiver of the timely filing in this case, the appeal is dismissed.

Madison County Court of Criminal Appeals 08/16/18
State of Tennessee v. Christopher Lee Smith
E2016-01612-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Elizabeth C. Asbury

A Campbell County Criminal Court Jury convicted the Appellant, Christopher Lee Smith, of driving under the influence (DUI), 5th offense; DUI, per se; driving on a revoked license; and violating the financial responsibility law. The trial court merged the DUI convictions and sentenced the Appellant as a Range II, multiple offender to a total effective sentence of three years, to be suspended after service of 150 days in confinement. On appeal, the Appellant contends that (1) he should have been tried on the original indictment, not the amended indictment; (2) the trial court should have granted a mistrial after the State informed the jury that the Appellant acted “feloniously,” thereby informing the jury that the Appellant had prior DUI convictions; and (3) the proof was insufficient to sustain his DUI convictions, arguing that the State failed to prove that he acted “feloniously” as alleged in the indictment. Upon review, we note that the judgment of conviction in count one incorrectly reflects that the charged offense was DUI, 3rd offense; accordingly, the case is remanded to the trial court for entry of a corrected judgment reflecting that the charged offense in count one was DUI, 5th offense. The trial court’s judgments are affirmed in all other respects.

Campbell County Court of Criminal Appeals 08/16/18
State of Tennessee v. Nicholas Zamarron
M2017-02123-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve Dozier

The Defendant, Nicholas Zamarron, pleaded guilty to conspiracy to deliver 0.5 gram or more of cocaine and to three counts of possession with the intent to deliver 0.5 gram or more of cocaine. See T.C.A. § 39-17-417 (2014). He received a total effective sentence of ten years’ incarceration. On appeal, he contends that the trial court erred by denying alternative sentencing. We affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/16/18
State of Tennessee v. Timothy A. Crowell
M2016-01980-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Criminal Court Jury found the Appellant guilty of aggravated robbery. The trial court sentenced the Appellant as a Range II, multiple offender to eighteen years in the Tennessee Department of Correction. On appeal, the Appellant contends that (1) the trial court erred by allowing the State to introduce proof from a portion of a surveillance video that was not preserved for trial; (2) the trial court erred by allowing a State’s witness to testify regarding hearsay evidence; (3) the trial court erred by allowing a photograph lineup that had not been introduced as evidence to be taken into the jury deliberations room; (4) the evidence is not sufficient to sustain his conviction of aggravated robbery; and (5) the length of his sentence is excessive. On appeal, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 08/16/18
State of Tennessee v. Christopher Osteen
W2018-00380-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

The Defendant, Christopher Osteen, appeals as of right from the Madison County Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Defendant complains that the trial court improperly enhanced his sentences based upon judicially determined facts in violation of Blakely v. Washington, 542 U.S. 296 (2004). Additionally, he asserts that he received the ineffective assistance of counsel because his trial counsel failed to object to the aforementioned Blakely violation. Following our review, we affirm.

Madison County Court of Criminal Appeals 08/15/18
Clinton Austin v. State of Tennessee
W2017-02374-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Glenn Wright

The petitioner, Clinton Austin, appeals the denial of his petition for post-conviction relief, which petition challenged his 2014 conviction of aggravated sexual battery, alleging that he was deprived of the effective assistance of counsel at trial. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 08/15/18
Marlon McKay v. State of Tennessee
W2017-00202-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey, Jr.

A Shelby County jury convicted the Petitioner, Marlon McKay, of felony murder and attempted aggravated robbery. The trial court sentenced the Petitioner to an effective sentence of life plus six years. This Court affirmed the trial court’s judgments on appeal. State v. Marlon McKay, No. W2010-01785-CCA-MR3C, 2011 WL 5335285 (Tenn. Crim. App., at Jackson, Nov. 4, 2011), perm. app. denied (Tenn. Apr. 12, 2012). The Petitioner filed a petition for post-conviction relief in which he alleged, as relevant on appeal, that his trial counsel was ineffective for: (1) not challenging his forty-eight hour hold when his arrest was not supported by probable cause; and (2) not timely filing a motion for new trial or a notice of appeal. The post-conviction court denied relief, and the Petitioner appeals. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 08/15/18
State of Tennessee v. Gdongalay P. Berry
M2017-00867-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County Criminal Court Jury convicted the Appellant, Gdongalay P. Berry, of two counts of first degree premeditated murder, two counts of first degree felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery. The jury imposed sentences of death for the murder convictions, and the trial court ordered an effective fifty-year sentence for the remaining convictions, which was to be served consecutively to the death sentences. Subsequently, the post-conviction court vacated the Appellant’s death sentences and ordered a new sentencing hearing for the murder convictions. After the new hearing, the trial court resentenced the Appellant to consecutive life sentences. On appeal, the Appellant contends that the trial court erred by ordering consecutive sentencing for the murder convictions because the trial court failed to give “meaningful” consideration to his rehabilitation during his twenty-one years in prison. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/15/18
Darrell Tate v. State of Tennessee
E2017-02104-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John F. Dugger

The Petitioner, Darrell Tate, appeals from the Hawkins County Criminal Court’s dismissal of his petition for post-conviction relief from his 2015 guilty pleas to initiating the manufacture of methamphetamine, possession of drug paraphernalia, and failure to appear, for which he is serving a sixteen-year sentence. The Petitioner contends that his guilty pleas were involuntary. We affirm the judgment of the post-conviction court.

Hawkins County Court of Criminal Appeals 08/15/18
Juan LaSean Perry v. State of Tennessee
M2018-00207-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

The Petitioner, Juan LaSean Perry, appeals from the Trousdale County Circuit Court’s dismissal of his petition for a writ of habeas corpus from his 2005 conviction for second degree murder and his twenty-five-year sentence. The Petitioner contends that the habeas corpus court erred by dismissing his petition. We affirm the judgment of the habeas corpus court.

Trousdale County Court of Criminal Appeals 08/15/18
State of Tennessee v. Robert Taylor
W2017-00765-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The defendant, Robert Taylor, appeals his Shelby County Criminal Court jury convictions of second degree murder and possession of a firearm by a convicted felon, claiming that the trial court erred by excluding certain evidence, that the evidence was insufficient to sustain his convictions of second degree murder, and that the sentence imposed was excessive. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 08/14/18
Daetrus Pilate v. State of Tennessee
W2017-02060-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lee V. Coffee

Petitioner, Daetrus Pilate, filed a pro se petition for post-conviction relief claiming that his confession was coerced and that he received the ineffective assistance of counsel in Case No. 11-05220. After appointment of counsel, an amended petition was filed claiming that Petitioner received ineffective assistance of counsel in Case No. 11-05220 and in Case No. 12-01054. Following a hearing, the post-conviction court denied relief. After a thorough review of the record, we affirm.

Shelby County Court of Criminal Appeals 08/14/18
State v. A.B. Price Jr. and Victor Tyrone Sims - Dissent
W2017-00677-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald E. Parish

The posture of this matter is that, as the Defendant arrived in the trial court to enter his plea of guilty and be placed on probation, the trial court announced to the parties that the court wanted to be “educated” as to the workings of the PSA, to which the Defendant would be subject. As the majority opinion in this matter explains, the practical effect of the PSA is that certain alleged infractions of the probation requirements would not go to the court but, rather, would be handled by a probation officer. Subsequently, a hearing was held in this matter at which a probation officer testified regarding the general workings of the PSA. The Defendant, having not yet pled guilty, was not yet subject to the PSA provisions; and defense counsel had not questioned its constitutionality. One week later, the trial court filed its lengthy and detailed order, finding that the constitutionality of the PSA was ripe for the court’s consideration, and concluding that, were the Defendant subject to its provisions, his rights to due process and equal protection of the law would be violated.

Henry County Court of Criminal Appeals 08/14/18
State v. A.B. Price Jr. and Victor Tyrone Sims - Concurring
W2017-00677-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Donald E. Parish

I fully concur with Judge McMullen’s opinion. I write separately in order to elaborate on some of the details on the Public Safety Act of 2016 (“Public Safety Act”) which this court concludes violates the Tennessee Constitution. I do not take any pleasure when, after a thorough review of the statutes, the Tennessee Constitution, and applicable case law, I am compelled to conclude that statutes passed by the General Assembly and signed into law by the Governor violate provisions of our state’s constitution. I do not doubt the good intentions of the executive and legislative branches of our state government in establishing Section 14 of the Public Safety Act. Only the portion of the Public Safety Act found presently in T.C.A. § 40-28-301-306 pertaining to probation is deemed unconstitutional by this court. The provisions are contained solely in Section 14 of ch. 906 of the 2016 Public Acts.

Henry County Court of Criminal Appeals 08/14/18
State v. A.B. Price Jr. and Victor Tyrone Sims
W2017-00677-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald E. Parish

This consolidated appeal comes to us following the passage of the Public Safety Act (“the PSA”), which, as relevant here, see Tenn. Code Ann. §§ 40-28-301,-306, changed how non-criminal or “technical” violations of probation are handled in Tennessee. These provisions require the Tennessee Department of Probation and Parole (“the department”) to develop, among other things, a single system of graduated sanctions for technical violations of community supervision and an administrative review process for objections by the probationer to imposition of such sanctions. Prior to accepting the Defendants’ guilty pleas, the trial court expressed concern regarding the implementation of the PSA, as these consolidated cases were the first in its district to which the graduated sanctions of the PSA would apply. The Defendants then objected to the imposition of the PSA as a mandatory condition of their probation and “request[ed] that the Court find certain of the provisions of T.C.A. § 40-28-301 through § 40-28-306, relative to sentences of probation, to be facially unconstitutional, and, therefore, decline to incorporate them within the judgment.” Specifically at issue are the provisions (1) mandating trial courts to include as a condition of probation that the department supervising the individual may impose graduated sanctions for violations of probation; and (2) the extent to which the department’s administrative process to review graduated sanctions contested by supervised individuals complies with principles of due process. After a hearing, the trial court issued an extensive order finding these sections of the PSA violated the separation of powers doctrine and principles of due process and equal protection. It is from this order that the State appeals. For the reasons that follow, we affirm the judgments of the trial court.

Henry County Court of Criminal Appeals 08/14/18
State of Tennessee v. William Shannon Gresham
M2017-00672-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Dee David Gay

Defendant, William Shannon Gresham, was indicted by the Sumner County Grand Jury for one count of especially aggravated sexual exploitation of a minor, two counts of rape of a child, and two counts of aggravated sexual battery. The trial court dismissed one count of rape of a child upon motion of the State at the close of the State’s proof, and the trial court dismissed one count of aggravated sexual battery at the close of the defense’s proof. The jury found Defendant not guilty of aggravated sexual battery, and Defendant was convicted on one count each of the lesser-included offenses of sexual exploitation of a minor and child abuse. The trial court sentenced Defendant to four years’ incarceration for sexual exploitation of a minor and two years’ incarceration for child abuse, to be served concurrently. Following a hearing on Defendant’s “Motion for Judgment of Acquittal and/or New Trial,” the trial court granted a judgment of acquittal on Defendant’s sexual exploitation of a minor conviction, concluding that the photographs of the victim did not depict “lascivious exhibition” as defined in State v. Whited, 506 S.W.3d 416 (Tenn. 2016). In this appeal as of right, Defendant challenges the sufficiency of the evidence to sustain his conviction for child abuse and the trial court’s denial of probation. Following a careful review of the record and the briefs of the parties, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 08/14/18
Martin Dean "Cub" Meeks v. State of Tennessee
M2017-01887-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Thomas W. Graham

The Petitioner, Martin Dean “Cub” Meeks, appeals the post-conviction court’s denial of his petition seeking to overturn his conviction for first degree premeditated murder. The Petitioner alleged that trial counsel was deficient in failing to obtain expert evidence, but he did not present any expert testimony at the post-conviction hearing. Because the Petitioner has not shown that he received ineffective assistance of counsel, we affirm the denial of post-conviction relief.

Grundy County Court of Criminal Appeals 08/14/18
State of Tennessee v. William H. Young
E2017-00913-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Thomas C. Greenholtz

The Defendant, William H. Young, appeals as of right from the Hamilton County Criminal Court’s denial of his request for judicial diversion. The Defendant was convicted following a bench trial of criminally negligent homicide, and he was sentenced to eighteen months of supervised probation. On appeal, the Defendant contends that the trial court abused its discretion by relying solely on the circumstances of the offense in its decision to deny judicial diversion to the exclusion of other supporting factors. According to the Defendant, the trial court’s decision to deny his request for judicial diversion was based on the offense that he was convicted of rather than the applicable factors. Discerning no error, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 08/13/18