Court of Criminal Appeals Opinions

Format: 07/07/2015
Format: 07/07/2015
State of Tennessee v. Susan Gail Stephens
M2014-01270-CCA-R9-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Vanessa Jackson

In this interlocutory appeal, Susan Gail Stephens (“the Defendant”) challenges the prosecutor‟s denial of her application for pretrial diversion. She asks this court to remand the case to the prosecutor with instructions that the Defendant be granted pretrial diversion. She also asks us to instruct the prosecutor to grant pretrial diversion nunc pro tunc to the Defendant‟s 2012 update to her application for pretrial diversion. Upon review, we find that there is no substantial evidence in the record to support the denial of pretrial diversion. Accordingly, we reverse the order of the trial court and remand the case to the trial court with instructions that the Defendant be granted pretrial diversion upon the terms and conditions of the diversion to be established by the trial court. However, we decline to instruct that pretrial diversion be granted nunc pro tunc to 2012.

Coffee County Court of Criminal Appeals 07/07/15
David Anthony Lajeniss v. State of Tennessee
E2014-01434-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Robert H. Montgomery, Jr.
David Anthony Lajeniss (“the Petitioner”) filed a petition for post-conviction relief claiming that he received ineffective assistance of counsel and that his guilty plea was involuntary and unknowing. After a hearing, the post-conviction court denied relief. Upon review, we affirm the judgment of the post-conviction court.
Sullivan County Court of Criminal Appeals 07/07/15
State of Tennessee v. Gary Hamilton
E2014-01585-CCA-R9-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Bobby R. McGee

Gary Hamilton (“the Defendant”) seeks interlocutory review of the district attorney general‟s denial of his application for pretrial diversion and the trial court‟s affirmance of that denial. The Defendant, a former teacher‟s assistant, was charged with assault after engaging in an altercation with a student at the school where he was employed. The district attorney general denied the Defendant‟s application for pretrial diversion. The Defendant filed a petition for writ of certiorari to the trial court, challenging the denial, and the trial court upheld the district attorney general‟s decision. On appeal, the Defendant argues that the district attorney general abused his discretion in denying pretrial diversion and that the trial court erred when it found no abuse of discretion. Upon review of the record and applicable law, we hold that the trial court did not properly review the district attorney general‟s decision to deny pretrial diversion. Additionally, although the district attorney general considered all the relevant pretrial diversion factors and did not consider any irrelevant factors, the record does not contain substantial evidence supporting the denial of pretrial diversion. Accordingly, we reverse the decision of the trial court and remand with instructions that the Defendant be granted pretrial diversion.

Knox County Court of Criminal Appeals 07/06/15
State of Tennessee v. Derrick Carey
M2015-00185-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Seth W. Norman
The Petitioner, Derrick Carey, appeals the Davidson County Criminal Court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner argues that the trial court erred by summarily dismissing his motion. Upon review, we affirm the judgment of the trial court.
Davidson County Court of Criminal Appeals 07/06/15
State of Tennessee v. Drennard T. Riley
M2014-01360-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge David Bragg
The appellant, Drennard T. Riley, appeals the Rutherford County Circuit Court’s revoking his community corrections sentences for aggravated burglary and robbery and ordering that he serve the balance of his effective ten-year sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.
Rutherford County Court of Criminal Appeals 07/06/15
Phillippe Rogers v. State of Tennessee
M2014-01445-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Seth W. Norman

The petitioner, Phillippe Rogers, appeals the denial of post-conviction relief from his 2008 Davidson County Criminal Court jury convictions of both conspiracy to sell and possession with intent to sell 300 grams or more of cocaine, claiming that he was denied the effective assistance of counsel.  Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 07/02/15
State of Tennessee v. David Louis Way
E2014-01246-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Richard R. Vance
The Defendant, David L. Way, pleaded guilty to burglary and misdemeanor theft. The trial court ordered concurrent probationary sentences of four years for the burglary conviction, and eleven months and twenty-nine days for the theft conviction. Thereafter, the Defendant was arrested for burglary and possession of burglary tools. The trial court issued a probation violation warrant and, after a hearing, revoked the Defendant’s probationary sentence. On appeal, the Defendant contends that the trial court improperly ordered him to serve the remainder of his sentence in confinement for violating the terms of his probation, and that the trial court improperly admitted a Tennessee Bureau of Investigation firearms and tool mark examiner as an expert witness. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.
 
Sevier County Court of Criminal Appeals 07/01/15
State of Tennessee v. Wayne Sanders
W2014-01455-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge W. Mark Ward

The Defendant, Wayne Sanders, was charged with aggravated robbery. After a jury trial, he was convicted of the lesser-included offense of aggravated assault. On appeal, the Defendant argues that he was denied his right to a speedy trial and that the evidence was insufficient to support his conviction. Upon review of the record and applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 07/01/15
State of Tennessee v. Calvin Coe
W2014-01854-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Joseph H. Walker, III

Appellant stands convicted of driving under the influence of an intoxicant, fourth offense, and driving on a cancelled, suspended, or revoked license, second offense. The trial court sentenced appellant to an effective eighteen-month sentence, suspended to supervised probation after serving 150 days in confinement. On appeal, appellant argues that the trial court violated the Tennessee Rules of Evidence and appellant's Equal Protection rights by limiting appellant's cross-examination of Officer Norris regarding any racial bias or any disciplinary action the police department levied against Officer Norris due to racially-biased language. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgments of the trial court.

Tipton County Court of Criminal Appeals 07/01/15
State of Tennessee v. Fred Calvin Lee
M2014-01655-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Michael W. Binkley

The Defendant, Fred Calvin Lee, pleaded guilty to two counts of delivery of 0.5 gram or more of cocaine, Class B felonies. See T.C.A. § 39-17-417 (Supp. 2013) (amended 2014). The trial court sentenced the Defendant as a Range I, standard offender to serve concurrent terms of ten years for each conviction. On appeal, the Defendant contends that the trial court failed to consider all of the relevant sentencing factors and erred by denying alternative sentencing. We affirm the judgments of the trial court.

Williamson County Court of Criminal Appeals 07/01/15
Clark Derrick Frazier v. State of Tennessee
M2014-02374-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge John H. Gasaway, III

The Petitioner, Clark Derrick Frazier, challenges the denial of his petition for writ of error coram nobis.  On appeal, the Petitioner argues that, had he known about the results from the DNA analysis performed on items found at the scene, he would have elected not to plead guilty.  After a review of the record and applicable law, we conclude that the Petitioner failed to prove that the results from the DNA analysis were newly discovered evidence or that he was without fault in failing to present the evidence at the proper time.  Additionally, we conclude that, even if the evidence was newly discovered, the Petitioner failed to establish that it may have resulted in a different judgment.  Accordingly, we affirm the judgment of the coram nobis court.

Robertson County Court of Criminal Appeals 07/01/15
State of Tennessee v. Rodney Bates
E2014-02381-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Rebecca J. Stern

The Petitioner, Rodney Bates, appeals the Hamilton County Criminal Court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner argues that the trial court erred by summarily dismissing his motion. The State concedes that this case should be reversed and remanded to the trial court. Upon review, we reverse the trial court’s judgment and remand the case for further proceedings.

Hamilton County Court of Criminal Appeals 06/30/15
Jamar Siler v. State of Tennessee
E2014-01433-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz
The Petitioner, Jamar Siler, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his conviction for second degree murder, for which he is serving a thirty-year sentence. He contends that his guilty plea was not knowing and voluntary because it was induced by the ineffective assistance of his counsel in the conviction proceedings. We affirm the judgment of the post-conviction court.
 
Knox County Court of Criminal Appeals 06/30/15
State of Tennessee v. Kenneth Duane Hall
E2014-02078-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz
The Defendant, Kenneth Duane Hall, was found guilty by a Knox County Criminal Court jury of rape, a Class B felony. See T.C.A. § 39-13-503 (2014). The trial court sentenced the Defendant to twelve years’ confinement at 100% service as a violent offender. On appeal, he contends that (1) the evidence is insufficient to support his conviction and (2) the trial court erred by admitting evidence related to domestic violence. We affirm the judgment of the trial court.
 
Knox County Court of Criminal Appeals 06/30/15
State of Tennessee v. William Brian Brown
E2014-02361-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, William Brian Brown, pleaded guilty to one count of theft of property valued more than $10,000, and one count of vandalism valued over $1,000. In accordance with the plea agreement, the trial court placed the Defendant on judicial diversion for six years, to be served on supervised probation. The Defendant agreed to pay restitution to the victims at a minimum of $250 per month. Almost a year later, the State filed a motion to set aside and terminate the order of judicial diversion, which the trial court granted. The trial court revoked the Defendant's judicial diversion, held a sentencing hearing, and sentenced the Defendant to serve an effective sentence of five years of probation and to pay $100 per month in restitution. On appeal, the Defendant contends that the trial court did not follow proper procedure when it revoked his judicial diversion and that the trial court erred when it revoked his judicial diversion. After a thorough review of the record and applicable authorities, we affirm the trial court's judgments.

Campbell County Court of Criminal Appeals 06/30/15
State of Tennessee v. Jerry Richard Masingo
E2014-01074-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge E. Shayne Sexton
The Defendant, Jerry Richard Masingo, was convicted by a Union County Criminal Court jury of voluntary manslaughter, a Class C felony. See T.C.A. § 39-13-211 (2014). The trial court sentenced the Defendant as a Range I, standard offender to six years’ confinement. On appeal, he contends that (1) the evidence is insufficient to support his conviction and (2) the trial court abused its discretion by imposing a six-year sentence. We affirm the judgment of the trial court.
 
Union County Court of Criminal Appeals 06/30/15
State of Tennessee v. Tarojee M. Reid
M2014-01681-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Larry J. Wallace

Appellant, Tarojee M. Reid, pleaded guilty to theft of property valued at $1,000 or more but less than $10,000, and as part of the plea, the parties agreed to submit the issue of restitution to the trial court.  Following the hearing, the trial court ordered that appellant pay $6,895 in restitution to the victim.  Appellant now challenges that order on the following grounds:  (1) the trial court failed to order a presentence report prior to the restitution hearing; (2) the trial court failed to make specific findings with regard to appellant’s ability to pay restitution; and (3) the trial court improperly included the value of property that was not listed in the indictment when some items of property were specifically listed.  Following our review, we reverse the award of restitution and remand for another restitution hearing consistent with this opinion.

Stewart County Court of Criminal Appeals 06/30/15
State of Tennessee v. Frederick Anderson - concurring
E2014-00661-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Defendant, Frederick Anderson, was convicted of two counts of especially aggravated kidnapping; three counts of aggravated robbery; one count of aggravated burglary; two counts of employing a firearm during the commission of a dangerous felony; and one count of possession of a firearm with the intent to go armed during the commission of a dangerous felony. He received an effective sentence of sixty years’ incarceration. The Defendant raises the following issues on appeal: (1) whether the trial judge should have recused himself from the Defendant’s sentencing; (2) whether the trial court erred in failing to instruct the jury on the charge of especially aggravated kidnapping as mandated by State v. White, 362 S.W.3d 559 (Tenn. 2012); (3) whether the trial court erred by not merging the Defendant’s convictions for aggravated robbery, especially aggravated kidnapping, and employment of a firearm during the commission of a dangerous offense; (4) whether the trial court erred in permitting the State to introduce excerpts of the jailhouse phone calls between the Defendant and his wife; (5) whether the trial court erred in sentencing the Defendant to an effective sixty years’ incarceration; and (6) whether the cumulative effect of the errors deprived the Defendant of a fair trial. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 06/29/15
State of Tennessee v. Frederick Anderson
E2014-00661-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Defendant, Frederick Anderson, was convicted of two counts of especially aggravated kidnapping; three counts of aggravated robbery; one count of aggravated burglary; two counts of employing a firearm during the commission of a dangerous felony; and one count of possession of a firearm with the intent to go armed during the commission of a dangerous felony. He received an effective sentence of sixty years’ incarceration. The Defendant raises the following issues on appeal: (1) whether the trial judge should have recused himself from the Defendant’s sentencing; (2) whether the trial court erred in failing to instruct the jury on the charge of especially aggravated kidnapping as mandated by State v. White, 362 S.W.3d 559 (Tenn. 2012); (3) whether the trial court erred by not merging the Defendant’s convictions for aggravated robbery, especially aggravated kidnapping, and employment of a firearm during the commission of a dangerous offense; (4) whether the trial court erred in permitting the State to introduce excerpts of the jailhouse phone calls between the Defendant and his wife; (5) whether the trial court erred in sentencing the Defendant to an effective sixty years’ incarceration; and (6) whether the cumulative effect of the errors deprived the Defendant of a fair trial. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 06/29/15
Corey Alan Bennett v. State of Tennessee
E2014-01637-CCA-R3-PC
Authoring Judge: Judge Everett Williams
Trial Court Judge: Judge Bobby R. McGee

The petitioner, Corey Alan Bennett, appeals the dismissal of his petition for post-conviction relief without the opportunity to present evidence at a hearing. The petitioner pled guilty to two counts of attempted especially aggravated sexual exploitation of a minor and four counts of aggravated stalking. Pursuant to the plea agreement, he received a ten-year Range I sentence in the Department of Correction. The petitioner filed an untimely post-conviction petition asserting an involuntary guilty plea based on the ineffective assistance of counsel and newly discovered evidence in the form of recanted testimony of a witness. He contends that the post-conviction court erred in its summary dismissal because due process requires that he be afforded a hearing. Following review of the record, we affirm the dismissal of the petition.

Knox County Court of Criminal Appeals 06/29/15
Terry L. Glenn v. Brenda Jones, Warden
W2014-01738-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Joe H. Walker, III

The Petitioner, Terry L. Glenn, appeals the Lauderdale County Circuit Courts summary dismissal of his petition for habeas corpus relief from his 1989 convictions for first degree burglary and grand larceny and his effective twenty-five-year sentence. He contends that the judgments are void. We affirm the judgment of the habeas corpus court.

Lauderdale County Court of Criminal Appeals 06/29/15
State of Tennessee v. Kassy Janikowski
W2014-02107-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carolyn Wade Blackett

The Defendant, Kassy Janikowski, pleaded guilty to second degree murder, and agreed to a sentence of thirty years, to be served at 100%. The Defendant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed. On appeal, the Defendant contends that the trial court erred when it dismissed her motion because her sentence contravenes the Tennessee Criminal Sentencing Reform Act of 1989. After review, and for the reasons stated below, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 06/29/15
Christopher M. Mimms v. State of Tennessee
M2014-01616-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Michael R. Jones

The petitioner, Christopher M. Mimms, appeals the denial of his petition for post-conviction relief from his Montgomery County Circuit Court jury convictions of the sale of .5 grams or more of cocaine and the sale of .5 grams or more of cocaine within a drug-free school zone, claiming that he was denied the effective assistance of counsel.  Discerning no error, we affirm.

Montgomery County Court of Criminal Appeals 06/29/15
State of Tennessee v. Joshua L. Carter and Adonis Lashawn McLemore - Concurring opinion
M2014-00767-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Mark J. Fishburn

I concur with the majority of the well-written majority opinion.  However, based upon my reading of State v. Waller, 118 S.W.3d 368 (Tenn. 2003), I reach a different conclusion  only as to the admissibility of the appellant’s 2005 conviction for selling 0.5 grams or less of a Schedule II controlled substance and its probative value for impeachment purpose.  As the Waller court observed, a prior drug conviction does “not involve dishonesty or false statement as contemplated by Rule 609.”  Id. at 371.  In concluding that “prior felony drug convictions are, at best, only slightly probative” of a defendant’s credibility, the court recognized that it had “previously rejected a per se rule that permits impeachment by any and all felony convictions.”  Id. at 373, 371.  Therefore, I conclude that appellant Carter’s prior conviction was minimally, if at all, probative as to his credibility and that the probative value did not outweigh its prejudicial effect.  As a result, I would have ruled it inadmissible.  However, I conclude that the error in admitting the conviction was harmless, as appellant Carter has not shown that the error “more probably than not affected the judgment” or resulted “in prejudice to the judicial process.”  State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008).

Davidson County Court of Criminal Appeals 06/26/15
State of Tennessee v. Joshua L. Carter and Adonis Lashawn McLemore
M2014-00767-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Mark J. Fishburn

Appellant Joshua L. Carter was convicted in case 2011-B-1648 of the sale of less than .5 grams of cocaine in a drug-free zone, a Class B felony; possession with the intent to sell or deliver more than .5 grams of cocaine in a drug-free zone, a Class A felony; simple possession of marijuana, a Class A misdemeanor; and evading arrest, a Class A misdemeanor.  As a Range II, multiple offender, his effective sentence in case 2011-B-1648 was forty years.  Appellant Carter was convicted in case 2011-D-3013 of felony murder; attempted especially aggravated robbery, a Class B felony; and voluntary manslaughter, a Class C felony that the trial court merged with the felony murder conviction.  For these offenses, appellant Carter received an effective life sentence, consecutive to his effective forty-year sentence in case 2011-B-1648.  Appellant McLemore was convicted in case 2011-D-3013 of facilitation of especially aggravated robbery, a Class B felony, and facilitation of felony murder, a Class A felony.  Appellant McLemore, as a Range III, persistent offender, received an effective sentence of fifty years.  On appeal, appellant Carter argues that evidence was insufficient to support his convictions in both cases and that in case 2011-D-3013, the trial court erred under Tennessee Rule of Evidence 609 by allowing the State to impeach him with a prior conviction for selling drugs.  Appellant McLemore argues that the evidence was insufficient to support his convictions.  Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 06/26/15