Court of Criminal Appeals Opinions

Format: 08/22/2019
Format: 08/22/2019
State of Tennessee v. David B. Garnder
M2018-00289-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jill Bartee Ayers

Petitioner, David B. Gardner, appeals the denial of his petition for a writ of error coram nobis based upon newly discovered evidence. After thoroughly reviewing the record and applicable authorities, we affirm the judgment of the error coram nobis court.

Robertson County Court of Criminal Appeals 08/21/19
State of Tennessee v. James Mitchell
M2018-00368-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Stella L. Hargrove

Defendant, James Mitchell, entered a plea of guilty to possession with intent to sell more than .5 grams of methamphetamine. The trial court sentenced Defendant as a Range I, standard offender, to eight years. Defendant attempted to reserve a certified question of law under Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, challenging the trial court’s denial of his motion to suppress the evidence seized after a search of his person that occurred when he arrived by car at another person’s home which was being searched pursuant to a search warrant. After review, we conclude that this Court does not have jurisdiction to address the certified question because the certification did not meet the requirements of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). The appeal is, therefore, dismissed.

Wayne County Court of Criminal Appeals 08/21/19
State of Tennessee v. Douglas Edward Christian
M2018-00320-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Vanessa Jackson

Defendant, Douglas Edward Christian, was convicted of Class B felony possession of .5 grams or more of methamphetamine, a Schedule II controlled substance, with the intent to sell or deliver (Count 1); Class B felony possession of .5 grams or more of cocaine, a Schedule II controlled substance, with the intent to sell or deliver (Count 2); Class D felony possession of a Schedule III controlled substance, Bu[p]reno[r]phine, with the intent to sell or deliver (Count 3); and Class A misdemeanor possession of marijuana, a Schedule VI controlled substance (Count 4). The trial court sentenced Defendant to an effective term of twenty-years as a Range II offender. On appeal, Defendant claims that the trial court “erroneously used foreign judgments” to sentence him as a Range II offender, considered unsubstantiated information in sentencing him, wrongly denied pretrial jail credits, and erred by denying Defendant his right to a speedy trial. After a thorough review of the record and briefs, we affirm the judgments of the trial court.

Coffee County Court of Criminal Appeals 08/21/19
State of Tennessee v. Tyson B. Dodson
M2018-01087-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Jill Bartee Ayers

The Defendant, Tyson B. Dodson, pled guilty to burglary, failure to appear, domestic assault, and vandalism valued at $1000 or less. After entering a guilty plea, the trial court imposed a sentence of three years, with eleven months and twenty-nine days to be served in confinement and the remainder of the sentence to be served under supervised probation. In addition, the Defendant was ordered to pay restitution in the amount of $999. On appeal, the Defendant contends that the trial court abused its discretion by altering the terms of the plea agreement and ordering restitution at the sentencing hearing and that the Defendant was denied his constitutional right to due process because the trial court failed to ensure that the Defendant had notice that restitution would be addressed at the sentencing hearing. Following our review, we reverse the order setting the restitution amount and remand for a restitution hearing, at which the trial court shall consider Defendant’s financial resources and ability to pay and determine the proper amount and schedule of restitution payments. In all other respects, the judgments are affirmed.

Robertson County Court of Criminal Appeals 08/21/19
Lee D. Watts v. State of Tennessee
M2018-01379-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Ross H. Hicks

The petitioner, Lee D. Watts, appeals the denial of his petition for post-conviction relief, which petition challenged his 2015 convictions of first degree felony murder and especially aggravated robbery, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Montgomery County Court of Criminal Appeals 08/21/19
State of Tennessee v. Zackary James Earl Ponder
M2018-00998-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David D. Wolfe

The defendant, Zackary James Earl Ponder, appeals his Stewart County Circuit Court jury convictions of first degree premeditated murder and aggravated assault, claiming that the trial court erred by admitting into evidence three photographs of the victim, by refusing to allow the defendant pretrial access to the criminal history of a State witness, by limiting his cross-examination of the investigating officer, by permitting the prosecutor to express his personal opinion during closing argument, and by failing to address “the fine portion of the defendant’s sentence.” He also challenges the sufficiency of the evidence for his conviction of first degree murder. Although we conclude that portions of the State’s closing argument were improper, we deem the error harmless. We detect clerical error in the judgment for the defendant’s conviction of aggravated assault that necessitates the entry of a corrected judgment for that count. Otherwise, the judgments of the trial court are affirmed.

Stewart County Court of Criminal Appeals 08/21/19
David N. Shaver v. State of Tennessee
E2018-01862-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James L. Gass

Petitioner, David N. Shaver, appeals the Grainger County Circuit Court’s denial of his petition for post-conviction relief. Petitioner asserts that he received ineffective assistance of counsel in connection with his guilty plea proceedings. Specifically, he contends that trial counsel failed to properly explain the terms of the plea agreement and failed to conduct a proper investigation into the charge against Petitioner. After a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Grainger County Court of Criminal Appeals 08/20/19
State of Tennessee v. Robert Diggs
E2018-01755-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

Robert Diggs, Defendant, pled guilty to two counts of sale of a Schedule III controlled substance within a drug-free zone (counts one and five), two counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven). The trial court ordered Defendant to serve concurrent sentences of two years in the Tennessee Department of Correction for the convictions in counts one and five. No sentence was imposed in counts two and six. On appeal, Defendant argues that the trial court erred by ordering him to serve his sentence in the Tennessee Department of Correction because the trial court incorrectly determined that his convictions under the Drug-Free School Zone Act (“DFSZ Act”) made him ineligible for community corrections. After a thorough review of the facts and applicable case law, we conclude that the trial court properly determined that Defendant was not eligible for community corrections because Defendant was convicted under the DFSZ Act and we affirm the convictions.

Sullivan County Court of Criminal Appeals 08/20/19
State of Tennessee v. Mimi Barrett
E2018-01643-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

Mimi Barrett, Defendant, pled guilty to three counts of sale of a Schedule III controlled substance within a drug-free zone (counts one, three, and five), three counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two, four, and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven). The trial court ordered Defendant to serve concurrent sentences of two years in the Tennessee Department of Correction for each conviction. On appeal, Defendant argues that the trial court erred by ordering her to serve her sentence in the Tennessee Department of Correction because the trial court incorrectly determined that her convictions under the Drug-Free School Zone Act (“DFSZ Act”) made her ineligible for community corrections. After a thorough review of the facts and applicable case law, we conclude that the trial court properly denied community corrections on the ground that Defendant was convicted under the Drug-Free School Zone Act. We affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 08/20/19
State of Tennessee v. Ronald Ailey
E2017-02359-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Alex E. Pearson

The Defendant, Ronald Ailey, was convicted by a jury of two counts of aggravated assault. Thereafter, the trial court imposed concurrent terms of four and one-half years, denied the Defendant’s request for judicial diversion, and ordered the Defendant to serve six months’ incarceration before being released on supervised probation. Upon the Defendant’s motion for new trial, he argued that he received ineffective assistance of counsel due to trial counsel’s failure to call exculpatory witnesses, failure to investigate and prepare for trial, failure to impeach certain State’s witnesses, failure to prepare the Defendant to testify, failure to object to improper questioning of the Defendant on crossexamination, and failure to adequately advise the Defendant during plea negotiations. On appeal, the Defendant contends that the trial court erred by denying him judicial diversion or total probation and by applying certain enhancement factors. He also challenges the trial court’s ruling that he received the effective assistance of counsel at trial. Upon a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

Hamblen County Court of Criminal Appeals 08/19/19
State of Tennessee v. Jeffrey Allen Judkins
M2018-00704-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert L. Jones

The Defendant, Jeffrey Allen Judkins, appeals his jury conviction for aggravated robbery, for which he received a sentence of
twenty-two years’ incarceration. In this direct appeal, the Defendant alleges that the evidence was insufficient to establish his participation in the robbery. Following our review of the record and the applicable authorities, we affirm the judgment of the trial court.

Lawrence County Court of Criminal Appeals 08/19/19
Joshua R. Starner v. State of Tennessee
M2018-01015-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William R. Goodman, III

The Petitioner, Joshua R. Starner, appeals the denial of post-conviction relief, arguing that he received ineffective assistance of trial counsel and that counsel’s actions deprived him of his right to testify at trial. We affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 08/16/19
State of Tennessee v. Michael David Carter and Steven Edward Carter
M2018-01329-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Dee David Gay

Following a jury trial, Michael David Carter (Michael Carter) was convicted of aggravated robbery and aggravated assault and Steven Edward Carter (Steven Carter) was convicted of facilitation of aggravated robbery and aggravated assault. Michael Carter was sentenced to twenty years for aggravated robbery, and Steven Carter was sentenced to nine years for facilitation of aggravated robbery. The trial court merged the aggravated assault convictions into the aggravated robbery convictions without imposing a sentence or entering a judgment of conviction for aggravated assault. On appeal, Defendants contend that: (1) the evidence presented at trial was insufficient to support their convictions; (2) the prosecutor improperly made a “Golden Rule” closing argument; and (3) the trial court erred in applying Tennessee Rules of Evidence 608 and 609 to exclude evidence of criminal charges pending against the victim at the time of trial. Michael Carter also contends that the trial court erred in sentencing him as a Range II offender and that his sentence was excessive. We remand for sentencing on the merged aggravated assault convictions and entry of a judgment of conviction for each Defendant pursuant to State v. Berry, 503 S.W.3d 360 (Tenn. 2015). We affirm the judgments of the trial court in all other respects.

Sumner County Court of Criminal Appeals 08/16/19
State of Tennessee v. Dedrick Lamont Lindsey
E2018-01502-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Don W. Poole

Defendant, Dedrick Lamont Lindsey, appeals the trial court’s order revoking his probation and imposing his sentence. Defendant argues: (1) that the State failed to present “any substantial evidence” to support the trial court’s finding that Defendant violated his probation; (2) that the trial court erroneously admitted a witness’s recorded statement to police; and (3) that he received ineffective assistance of counsel at the probation revocation hearing. Following a thorough review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 08/16/19
Carl Loverson v. State of Tennessee
W2018-00694-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Carl Loverson, filed a pro se “Petition for Post-Conviction Relief and/or Petition for Clerical Error, Ommission [sic] in Records,” alleging that, contrary to the trial court’s order, he was transported to the Tennessee Department of Correction instead of being released into a drug program. The post-conviction court summarily dismissed the petition as untimely and for failure to state a colorable claim for relief. The Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/15/19
Javonte Thomas v. State of Tennessee
W2018-02171-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Javonte Thomas, appeals the denial of his petition for post-conviction relief, which petition challenged his conviction of first degree premeditated murder, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 08/15/19
State of Tennessee v. Benjamin Foust
E2017-02420-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge G. Scott Green

The Defendant, Benjamin Foust, was convicted of ten counts of felony murder, two counts of first degree premeditated murder, four counts of especially aggravated robbery, two counts of aggravated arson, and two counts of possession of a firearm while having a prior felony conviction involving the use of violence or force. The trial court’s merger of the various convictions resulted in two felony murder convictions, two especially aggravated robbery convictions, one aggravated arson conviction, and one firearm conviction. The trial court imposed an effective sentence of two consecutive terms of life imprisonment plus 105 years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions; (2) the trial court erred in failing to grant the Defendant’s motion to sever or bifurcate the firearm charges; (3) the trial court erred in admitting evidence of the Defendant’s drug use; (4) the trial court improperly admitted several autopsy photographs; (5) the trial court provided an improper answer to a question from the jury posed during deliberations; and (6) the trial court erred in sentencing the Defendant. We conclude that the trial court erred in ordering the parties to stipulate to the Defendant’s prior felony convictions and that the error was not harmless as to the firearm convictions. Accordingly, we reverse the Defendant’s firearm convictions and remand for a new trial as to those convictions. We otherwise affirm the trial court’s judgments.

Knox County Court of Criminal Appeals 08/15/19
Sedrick Darion Mitchell v. State of Tennessee
M2018-00975-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, Sedrick Darion Mitchell, appeals from the Bedford County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective for not challenging the validity of the indictment. Discerning no error, we affirm the judgment of the post conviction court.

Bedford County Court of Criminal Appeals 08/15/19
Nicole Pamblanco v. State of Tennessee
M2018-01260-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jill Bartee Ayers

The Petitioner, Nicole Pamblanco, appeals the Montgomery County Circuit Court’s denial of her petition for post-conviction relief from her convictions of aggravated child neglect, a Class A felony, and reckless homicide, a Class E felony, and effective sentence of fifteen years. On appeal, the Petitioner contends that she received the ineffective assistance of counsel because trial counsel failed to call a psychologist who had evaluated her and prepared a report to testify on her behalf. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 08/15/19
State of Tennessee v. Krysten Renae Glover
M2018-01410-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Stella L. Hargrove

The Defendant, Krysten Renae Glover, entered an open guilty plea to one count of the sale of 0.5 grams or more of methamphetamine and one count of the sale of methamphetamine in an amount less than 0.5 grams. The trial court held a sentencing hearing and imposed an effective nine-year sentence to be served in confinement. The Defendant appeals, arguing that the trial court erred by denying her probation. We conclude that the trial court did not abuse its discretion in sentencing, and we affirm the judgments.

Wayne County Court of Criminal Appeals 08/15/19
State of Tennessee v. Quincy D. Scott
E2018-02271-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Andrew M. Freiberg

The Appellant, Quincy D. Scott, appeals as of right from the Bradley County Criminal Court’s judgment revoking his probation. The State has filed a motion to affirm by memorandum opinion the judgment of the trial court. Following our review, we conclude that an opinion in this case would have no precedential value and affirm the judgment of the habeas corpus court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Bradley County Court of Criminal Appeals 08/15/19
State of Tennessee v. Karen Sarah Thomas, Alias
E2018-00353-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Karen Sarah Thomas, alias, appeals her jury convictions for aggravated stalking. In this direct appeal, the Defendant alleges that the evidence was insufficient to support her convictions and that the trial court erred when it allowed the State to introduce evidence of an out-of-courtroom event that took place during the trial. Following our review of the record and the applicable authorities, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 08/15/19
Roosevelt Bigbee, Jr. v. Jonathan Lebo, Warden
W2019-00051-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joe H. Walker, III

The pro se Petitioner, Roosevelt Bigbee, Jr., appeals the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the summary dismissal of the petition for failure to state a cognizable claim for habeas corpus relief.

Lauderdale County Court of Criminal Appeals 08/14/19
State of Tennessee v. Anton Carlton
M2018-01474-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Royce Taylor

The Defendant, Anton Carlton, appeals the summary denial of his “Motion for An Amendment of the Judgment to Correct a Clerical Error.” He argues (1) the trial court abused its discretion when it determined that the corrected judgment of conviction entered on April 9, 2012, did not contain an oversight or omission, and (2) the corrected judgments of conviction entered on October 22, 2018, resulted in a material breach of his negotiated plea agreement. We affirm the judgment of the trial court but remand the case for entry of corrected judgment forms in Counts 6, 7, and 8 and for entry of an amended order of dismissal, wherein Counts 2, 3, 4, 5, 9, and 10 are dismissed.

Rutherford County Court of Criminal Appeals 08/14/19
James Ellison Rouse v. State of Tennessee
M2018-00926-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge David L. Allen

The Petitioner, James Ellison Rouse, appeals the Maury County Circuit Court’s denial of his petition for post-conviction relief from his two convictions of first degree murder and two convictions of attempted first degree murder and resulting effective sentence of two terms of life without the possibility of parole plus forty-two years. The post-conviction court ruled that the petition was time-barred. On appeal, the Petitioner contends that his petition was timely because he filed it within one year of Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and Jacob Brown v. State, No. W2015-00887-CCA-R3-PC, 2016 WL 1562981 (Tenn. Crim. App. at Jackson, Apr. 15, 2016). Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

Maury County Court of Criminal Appeals 08/14/19