Court of Criminal Appeals Opinions

Format: 12/01/2020
Format: 12/01/2020
State of Tennessee v. Gregory Goff
W2020-00153-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Madison County jury convicted the defendant, Gregory Goff, of especially aggravated robbery and aggravated assault for which he received an effective thirty-five-year sentence. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and the trial court’s jury instruction regarding self-defense. After a thorough review of the record, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 12/01/20
BRIAN PILLOW v. STATE OF TENNESSEE
M2018-01275-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Stella L. Hargrove

Petitioner, Brian Pillow, was convicted by a Maury County Jury of three counts of selling .5 grams or more of cocaine in a drug-free zone. He received an effective sentence of twelve years to be served in the Tennessee Department of Correction. Petitioner filed a petition seeking post-conviction relief, in which he alleged that he received the ineffective assistance of counsel and that the trial court should have granted a continuance when co-counsel was appointed. Following an evidentiary hearing, the postconviction court denied his petition. We affirm the judgment of the post-conviction court.

Maury County Court of Criminal Appeals 12/01/20
Delarris Jones a/k/a Cedric Jones v. State of Tennessee
W2019-01182-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey

The Petitioner, Delarris Jones A/K/A Cedric Jones, appeals the denial of his petition for post-conviction relief, asserting that he received ineffective assistance of trial counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 11/30/20
State of Tennessee v. Tarvis Weatherly
W2019-02136-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jennifer Johnson Mitchell

A Shelby County jury convicted the defendant, Tarvis Weatherly, of aggravated sexual battery for which he received a thirty-year sentence. On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction which we affirm after a thorough review of the record.

Shelby County Court of Criminal Appeals 11/30/20
Jermarlon Sanders v. State of Tennessee
W2019-01797-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris Craft

The Petitioner, Jermarlon Sanders, appeals the Shelby County Criminal Court’s denial of post-conviction relief from his conviction of aggravated robbery, for which he received an eight-year term of imprisonment. In his appeal, the Petitioner argues that his guilty plea was unknowingly and involuntarily entered based on the ineffective assistance of trial counsel. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/30/20
John N. Moffitt v. State of Tennessee
W2020-00594-CCA-R3-ECN
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Henderson County jury convicted the Petitioner, John N. Moffitt, of reckless aggravated assault, as a lesser included offense of aggravated assault, for slashing the victim’s arm with a pocketknife following a property dispute. State v. John N. Moffitt, No. W2014-02388-CCA-R3-CD, 2016 WL 369379, at *1 (Tenn. Crim. App. Jan. 29, 2016), perm. app. denied (Tenn. June 24, 2016). This Court affirmed his conviction on direct appeal; however, this Court also reduced the amount of restitution that the trial court ordered and remanded the case to the trial court to determine the amount of restitution that the Petitioner could pay. Id. On March 10, 2020, the Petitioner, acting pro se, filed a petition for writ of error coram nobis, arguing that his conviction for reckless aggravated assault was “an illegal and unconstitutional conviction” because the indictment failed to allege “recklessly,” which the Petitioner contends is a “required mental state indicating a lesser kind of culpability” than that required for aggravated assault. The Petitioner alleged that he was entitled to due process tolling of the statute of limitations because he was “totally unaware of the fact about [sic] the illegal and unconstitutional conviction.” The coram nobis court summarily dismissed the petition, finding that it was time-barred and that the Petitioner’s allegations did not constitute new evidence and thus did not toll the statute of limitations. Following our review, we affirm the judgment of the coram nobis court.

Henderson County Court of Criminal Appeals 11/30/20
State of Tennessee v. Kevin Grammer
W2019-02270-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

A Madison County jury convicted the defendant, Kevin Grammer, of aggravated robbery, theft of property over $1000, felony evading arrest, speeding, reckless driving, felony reckless endangerment, failure to exercise due care, disobeying a stop sign, and driving on a suspended license. The trial court imposed partial consecutive sentences for an effective sentence of fourteen years’ confinement. On appeal, the defendant contends the trial court erred in imposing consecutive terms. Upon our review of the record and the applicable law, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 11/30/20
State of Tennessee v. Juvonta Carpenter
W2019-01362-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Chris Craft

A Shelby County jury convicted the defendant, Juvonta Carpenter, of two counts of first- degree murder, two counts of first-degree felony murder, and one count of aggravated robbery. Following a sentencing hearing, the trial court imposed an effective sentence of life imprisonment plus nine years. On appeal, the defendant challenges the sufficiency of the evidence to support his convictions. The defendant also contends the trial court erred in admitting partially redacted police statements and in imposing a partial consecutive sentence. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 11/30/20
UGENIO RUBY RUIZ v. STATE OF TENNESSEE
M2019-00062-CCA-R3-PC
Authoring Judge: Presiding Judge, John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

I respectfully dissent from the majority’s opinion granting the delayed appeal based upon the reasoning set forth in my dissenting opinion in this appeal filed on October 2, 2019. I strongly disagree that the Tennessee Supreme Court performed a mere perfunctory or administrative review of the Petitioner’s motion to late-file an application for permission to appeal to which the Petitioner attached his application before denying the Petitioner’s motion. Rather, I conclude that the Tennessee Supreme Court has already reviewed the substantive underlying issues of the appeal in determining not to accept the late-filed appeal in the interest of justice. Accordingly, I would affirm the post-conviction court’s decision to deny the Petitioner delayed appeal, and I would deny a stay of the resolution of the remaining issues raised by the Petitioner.

Davidson County Court of Criminal Appeals 11/30/20
UGENIO RUBY RUIZ v. STATE OF TENNESSEE
M2019-00062-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery.Jr.
Trial Court Judge: Judge Steve R. Dozier

The Tennessee Supreme Court has remanded this case for reconsideration in light of Howard v. State, 604 S.W.3d 53 (Tenn. 2020). See Ugenio Dejesus Ruby-Ruiz v. State, No. M2019-00062-CCA-R3-PC, 2019 WL 4866766 (Tenn. Crim. App. Oct. 2, 2019) (“Ruby-Ruiz I”), case remanded (Tenn. Aug. 7, 2020). Upon further review, we conclude that the supreme court’s holding in Howard does not apply to the untimely filing of an application for permission to appeal to the supreme court. Consistent with the holding of the majority in our previous opinion in this case, we reverse the judgment of the postconviction court and remand the case for the entry of an order granting the Petitioner a delayed appeal for the limited purpose of filing an application for permission to appeal to our supreme court. The Petitioner’s remaining allegations shall be held in abeyance in the post-conviction court until the resolution of the delayed appeal.

Davidson County Court of Criminal Appeals 11/30/20
Abu-Ali Abdur'Rahman v. State of Tennessee - Concurring in Part, Dissenting in Part
M2019-01708-CCA-R3-PD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Monte Watkins

I respectfully dissent from the majority’s opinion insofar as it holds that the post-conviction trial court must first determine that a petitioner is entitled to post-conviction relief before a District Attorney General is allowed to negotiate a settlement of criminal convictions and/or sentences which are the subject of a post-conviction proceeding.  The majority opinion prohibits the 31 District Attorneys General in Tennessee from evaluating a petition for post-conviction relief, determining that it has some merit, and concluding that it is appropriate to concede a petitioner is entitled to post-conviction relief.  In so doing, the majority opinion prevents the State’s statutorily designated attorney from negotiating the most favorable settlement of the challenged underlying charges before a post-conviction trial court grants full post-conviction relief.  If a District Attorney General must wait until the post-conviction trial court rules that post-conviction relief must be granted, the District Attorney General, as in the case sub judice, might very well have a difficult task to locate witnesses and/or physical evidence to present in a new trial.  Consequently the State would be required to negotiate from a position of weakness as a result of mandating that the court first grant post-conviction relief prior to the State negotiating a new settlement of the challenged offenses.  As a result, the majority opinion undermines the authority of each District Attorney General in this state. 

Davidson County Court of Criminal Appeals 11/30/20
Abu-Ali Abdur'Rahman v. State of Tennessee
M2019-01708-CCA-R3-PD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Monte Watkins

This is a State appeal, filed by the State Attorney General and Reporter, from an Agreed Order (“AO”) entered between Petitioner, Abu-Ali Abdur’Rahman, and the District Attorney General for Davidson County. The AO amended Petitioner’s capital sentence to life imprisonment. Petitioner filed a motion to reopen his post-conviction proceedings based upon the ruling of the United States Supreme Court in Foster v. Chatman, 578 U.S. ___, 136 S. Ct. 1737 (2016). The post-conviction court granted the motion and set the matter for a hearing. At the hearing, the parties presented to the court an AO stating that Petitioner’s sentence would be amended in exchange for his waiving and dismissing all post-conviction claims. The post-conviction court accepted the AO and subsequently entered an amended judgment of conviction. The State appealed, arguing that the post-conviction court lacked jurisdiction to accept the AO and amend Petitioner’s sentence. Petitioner responds that this Court lacks jurisdiction to hear this appeal because the State consented to the AO in the post-conviction court, thereby foreclosing any right to appeal. We have thoroughly considered the briefs and arguments of both parties as well as the amici curiae. We conclude that the State has a right to appeal to challenge the jurisdiction of the post-conviction court. We also conclude that the post-conviction court lacked jurisdiction to accept the AO and to amend Petitioner’s final judgment of conviction because it did not comply with the statutory requirements for granting relief under the Post-Conviction Procedure Act. Therefore, we vacate both the AO and the amended judgment of conviction and remand this case to the post-conviction court for further proceedings consistent with this opinion.

Davidson County Court of Criminal Appeals 11/30/20
NICHOLAS GRIFFIN v. STATE OF TENNESSEE
M2019-00971-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Petitioner, Nicholas Griffin, appeals the denial of his post-conviction petition. The post-conviction proceeding attacked his conviction of second degree murder with a Range II sentence of 26 years pursuant to a negotiated plea agreement. Petitioner argues that his guilty plea was not knowingly and voluntarily entered. Petitioner asserts he was denied effective assistance of counsel when his trial counsel failed to adequately prepare for trial and failed to file a motion to suppress the recordings of his jail calls with his mother. Petitioner further argues that trial counsel and his mother pressured him into accepting the guilty plea. Following a review of the briefs of the parties and the record, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 11/30/20
State of Tennessee v. Joseph Christopher Hendry, II
M2019-01284-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Brody N. Kane

Defendant, Joseph Christopher Hendry II, was indicted for one count of felony first degree murder, one count of premeditated first degree murder, one count of criminal attempt to commit first degree murder, and four counts of aggravated assault.  Pursuant to a negotiated plea agreement, Defendant pleaded guilty to second degree murder and received a sentence of 25 years to be served at 100 percent.  Defendant filed a motion seeking to reduce his sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure.  Following a hearing, the trial court denied Defendant’s motion.  Defendant appeals.  Following our review of the record, we affirm the judgment of the trial court. 

Wilson County Court of Criminal Appeals 11/30/20
CHRISTOPHER HERNANDEZ v. STATE OF TENNESSEE
M2019-01160-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Royce Taylor

The petitioner, Christopher N. Hernandez, appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of rape of a child, aggravated sexual battery, and solicitation of a minor, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Rutherford County Court of Criminal Appeals 11/30/20
STATE OF TENNESSEE v. MARK ALAN KIRBY
M2019-02255-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Wesley Thomas Bray

Pursuant to a negotiated plea agreement, Defendant, Mark Alan Kirby, pleaded guilty to aggravated assault, a Class C felony. The agreement provided that Defendant’s sentence was three years as a Range I standard offender. The manner of service of the sentence was reserved for determination by the trial court following a sentencing hearing. The trial court ordered the entire sentence to be served in confinement. Defendant has appealed, asserting the trial court should have granted full probation. We affirm the judgment of the trial court.

Putnam County Court of Criminal Appeals 11/30/20
STATE OF TENNESSEE v. HUNTER ALLEN HELMICK
M2019-00941-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge William R. Goodman, III

The Appellee, Hunter Allen Helmick, was charged with possession of LSD with intent to manufacture, sell, or deliver, a Class B felony. He filed a motion to suppress statements he made to police officers about LSD being in his car, arguing that the statements were the result of custodial questioning without his receiving Miranda warnings. He also argued that the trial court should suppress the LSD found during a search of his car because the police found the LSD as a result of his statements. The trial court granted the motion, suppressing both the Appellee’s statements and the drug evidence, and the State appeals the trial court’s ruling. Based upon our review of the record and the parties’ briefs, we agree with the State that the trial court erred by suppressing the drug evidence. Therefore, the portion of the trial court’s order suppressing the drug evidence is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. The portion of the trial court’s order suppressing the Appellee’s statements is affirmed.

Montgomery County Court of Criminal Appeals 11/30/20
BRANDON LEE CLYMER v. STATE OF TENNESSEE
M2019-02189-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Brandon Lee Clymer, appeals the denial of his post-conviction petition arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. Following our review, we affirm the post-conviction court’s denial of the petition.

Davidson County Court of Criminal Appeals 11/30/20
Susan Jo Walls v. State of Tennessee
M2019-00809-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, Susan Jo Walls, appeals the Bedford County Circuit Court’s denial of her post-conviction petition, seeking relief from her convictions of first degree premeditated murder and conspiracy to commit first degree murder and resulting effective life sentence.  On appeal, the Petitioner contends that she received the ineffective assistance of trial counsel.  Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Bedford County Court of Criminal Appeals 11/25/20
ZAKKAWANDA ZAWUMBA MOSS v. STATE OF TENNESSEE
M2019-00972-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, Zakkawanda Zawumba Moss, appeals the Lincoln County Circuit Court’s denial of his post-conviction petition, seeking relief from his six convictions of first degree premediated murder and six consecutive life sentences. On appeal, the Petitioner contends that we should remand the case to the post-conviction court in order to provide the Petitioner an opportunity to present additional proof in support of his petition. Based upon the record and the parties’ briefs, we disagree with the Petitioner and affirm the post-conviction court’s denial of the petition.

Lincoln County Court of Criminal Appeals 11/25/20
STATE OF TENNESSEE v. NAPOLEON EMMANUALE PERSON
M2019-02159-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge L. Craig Johnson

Napoleon Emmanuale Person, Defendant, appeals from the trial court’s judgment revoking his probation and placing his original sentences into effect. Discerning no error, we affirm.

Coffee County Court of Criminal Appeals 11/25/20
State of Tennessee v. Earl Jerome Lee, Jr.
W2019-01939-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald H. Allen

The Appellant, Earl Jerome Lee, Jr., 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. He contends that he is entitled to relief because his conviction for attempted felony escape was erroneously ordered to be served concurrently with his other sentences. Although we disagree with the trial court’s conclusion that this issue had been previously litigated, we nevertheless conclude that the Appellant fails to state a colorable claim for relief. Therefore, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 11/20/20
State of Tennessee v. Jashun Yance Robertson
W2020-00439-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Weber McCraw

Defendant, Jashun Yance Robertson, appeals the Fayette County Circuit Court’s denial of his request for judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. Defendant contends that the trial court abused its discretion by relying on Defendant’s prior delinquent acts to deny diversion, when there was no proof regarding these acts in the record, and by failing to consider the “judicially recognized differences between juveniles and adults” in reaching its decision. Upon review, we affirm the judgments of the trial court.

Fayette County Court of Criminal Appeals 11/20/20
State of Tennessee v. Devin Rogers
W2019-01841-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Devin Rogers, appeals from his Shelby County Criminal Court convictions for aggravated robbery and aggravated burglary, for which he received an effective elevenyear sentence. On appeal, the Defendant contends that the evidence was insufficient to support his convictions, arguing that his co-defendant’s testimony was “wildly contradictory” to that of the victim. Following our review, we affirm.

Shelby County Court of Criminal Appeals 11/20/20
State of Tennessee v. Patrick Phillips
W2019-02004-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge W. Mark Ward

A Shelby County jury convicted the defendant, Patrick Phillips, of rape of a child and aggravated sexual battery. Following a sentencing hearing, the trial court imposed an effective sentence of twenty-seven years in confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his convictions and argues the trial court erred in denying his motion for new trial based on the State’s failure to answer the defendant’s motion for a bill of particulars. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 11/20/20