Court of Criminal Appeals Opinions

Format: 01/25/2021
Format: 01/25/2021
Ronald L. Cosper v. State of Tennessee
E2020-00024-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Barry A. Steelman

The petitioner, Ronald L. Cosper, appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of first degree felony murder and attempted 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.

Hamilton County Court of Criminal Appeals 01/22/21
State of Tennessee v. Tammy Lynn Walker
E2019-00501-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge E. Shayne Sexton

Following a bench trial, the Defendant, Tammy Lynn Walker, was convicted of passing a worthless check, a Class D felony. On appeal, the Defendant contends that the trial court erred in determining that she made a knowing and voluntary waiver of her right to counsel and by requiring her to proceed pro se at trial when she had not executed a written waiver to the effect. The State, after initially contending that the trial court did not err, alternatively argues that the Defendant implicitly waived her right to counsel by failing to retain counsel in a timely manner. In addition, the Defendant, as a separate issue, contends that the trial court violated her constitutional rights when it compelled her to testify against herself. We conclude that the non-indigent Defendant knowingly and voluntarily explicitly waived her right to counsel by her statements and conduct and that she was not compelled to testify against herself. Accordingly, the judgment of the trial court is affirmed.

Campbell County Court of Criminal Appeals 01/20/21
State of Tennessee v. Jarvis Tyvon Morgan
E2019-02027-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge G. Scott Green

Aggrieved of the Knox County Criminal Court’s revocation of the sentence of probation imposed for his 2016 guilty-pleaded conviction of aggravated assault, the defendant, Jarvis Tyvon Morgan, appeals. He argues that the trial court deprived him of due process by basing its decision on a ground not alleged in the violation warrant. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 01/20/21
State of Tennessee v. Michael E. White
W2020-00857-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Michael E. White, appeals the order of the trial court revoking his probation and ordering him to serve his original
nine-year sentence in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding the defendant violated the terms of his probation by imposing the original sentence. Accordingly, the judgment of the trial court is affirmed.

Madison County Court of Criminal Appeals 01/15/21
State of Tennessee v. Jeremy Lynn Thornton
W2020-00159-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Creed McGinley

The State appeals the trial court’s imposition of a community corrections sentence, arguing the defendant did not qualify for alternative sentencing. Upon our review of the record and the applicable law, we find the trial court erred in not considering all the applicable factors. Accordingly, we reverse the decision of the trial court and remand the matter for a new sentencing hearing consistent with this opinion.

Benton County Court of Criminal Appeals 01/15/21
State of Tennessee v. Brian Howard
W2020-00207-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James Lammey

Brian Howard, Defendant, was indicted for one count of second degree murder, one count of convicted felon in possession of a firearm, one count of attempted second degree murder, and one count of employing a firearm during the commission of a dangerous felony. A co-defendant, Quinton Brown, was also indicted for his role in the offenses and the two were tried together. Defendant asked the trial court to bifurcate the possession of a firearm by a convicted felon count prior to trial. The trial court denied the motion. After a jury trial, Defendant was convicted of the lesser-included offenses of voluntary manslaughter and attempted voluntary manslaughter as well as possession of a firearm by a convicted felon and employing a firearm during the commission of a felony as charged in the indictment. Defendant was sentenced to an effective sentence of 67 years, to be served consecutively to a fifteen-year federal sentence. After the denial of a motion for new trial, Defendant appeals to this Court arguing that the trial court erred by denying the motion to bifurcate the possession of a firearm by a convicted felon charge and that the evidence was insufficient to support the convictions where the proof indicated that Defendant acted in self-defense. For the following reasons, we affirm the judgments of the trial court but remand the matter for correction of the judgment form in Count 4 to reflect that the conviction for employing a firearm during the commission of a felony is a class C felony.

Shelby County Court of Criminal Appeals 01/15/21
State of Tennessee v. Michael Ray Perna
M2019-01032-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Vanessa A. Jackson

The Defendant, Michael Ray Perna, pleaded guilty to a Class E felony violation of the Tennessee Code Annotated section 40-39-211(d)(1)(A) Sex Offender Registry Act. At sentencing, the Defendant argued that he was acting as the minor victim’s legal guardian pursuant to Tennessee Code Annotated section (d)(2)(D) and thus was only eligible for a fine by way of punishment, pursuant to Tennessee Code Annotated section 40-39-211(g)(4). The trial court rejected the Defendant’s argument and imposed a two-year sentence, suspended to probation after ninety days in jail. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Coffee County Court of Criminal Appeals 01/15/21
State of Tennessee v. Robert Collier
W2019-01985-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jennifer Johnson Mitchell

On July 12, 2019, Defendant-Appellant, Robert Collier, entered a guilty plea to criminal attempt aggravated sexual battery and indecent exposure, for which he received an effective sentence of seven years, eleven months, and twenty-nine days, all of which was to be served on supervised probation. Tenn. Code Ann. §§ 39-12-101, 39-13-504 (2019). As part of his sentence, the Defendant was also ordered to register as a violent sex offender and placed on community supervision for life. Tenn. Code Ann. § 39-13-524 (2014). Within three months, on October 15, 2019, the trial court revoked the Defendant’s supervised probation based on a violation of Tennessee Code Annotated section 40-39-211(d)(1)(B) (2019), which restricts movement of violent sex offenders, and ordered the Defendant to serve the original sentence in the Tennessee Department of Correction. The Defendant now appeals the order of the trial court arguing that subsection (d)(1)(B) is unconstitutional in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution because certain terms including “playground,” “any other specific or legitimate reason,” “stand,” “sit idly,” and “remain” are not defined and ambiguous.” He additionally argues that subsection (d)(1)(B) is overbroad in violation of his First Amendment rights because (1) it applies to all sex offenders even if the offense did not involve a child victim; and (2) the term “playground” can include a church, an offender’s front yard, and places where other adults are present. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/14/21
State of Tennessee v. Christopher C. Sullivan
E2019-01853-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James F. Goodwin, Jr.

The Defendant, Christopher C. Sullivan, was charged with violation of the sex offender registry and perjury. A Sullivan County jury found the Defendant not guilty of violating the sex offender registry and guilty of perjury. The trial court sentenced the Defendant to an effective sentence of six years on probation, sixty days of which were to be served in confinement. The Defendant appeals his conviction and sentence, arguing that the evidence presented at trial was insufficient to convict him of perjury, that the trial court abused its discretion in admitting as evidence a judgment of conviction form from New York and the indictment underlying that conviction, that the jury’s verdicts were inconsistent, and that the trial court imposed an excessive sentence. After review of the record, we affirm the trial court’s judgment.

Sullivan County Court of Criminal Appeals 01/14/21
State of Tennessee v. Milton Simpson
W2019-00860-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Milton Simpson, appeals as of right from the Shelby County Criminal Court’s order revoking his probation and imposing an effective ten-year sentence in confinement. On appeal, the Defendant contends that (1) the evidence was insufficient to establish that he violated the terms of his probation by breaking the law and that (2) his right of confrontation was violated when a court liaison testified in lieu of his probation officer and when a certified copy of an indictment was introduced as evidence. Following our review, we affirm.

Shelby County Court of Criminal Appeals 01/13/21
State of Tennessee v. Coy McKaughan
W2018-01035-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James Lammey

The Petitioner, Coy McKaughan, filed a post-conviction petition in the Shelby County Criminal Court seeking relief from his conviction of aggravated sexual battery and accompanying twelve-year sentence in the Tennessee Department of Correction. The postconviction court denied the petition, and the Petitioner appeals. On appeal, the Petitioner contends that (1) his trial counsel was ineffective, (2) his appellate counsel was ineffective, (3) his due process rights were violated by the State’s withholding evidence in violation of Brady v. Maryland, (4) his due process rights were violated by the State’s assembling a “rigged grand jury foreperson,” (5) the State violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and article I, section 7 of the Tennessee Constitution, and (6) he was denied his constitutional right to a “full and fair” post-conviction hearing. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/13/21
State of Tennessee v. Robert Earl Grady, Jr.
W2019-01808-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

The defendant, Robert Earl Grady, Jr., pleaded guilty to two counts of felon in possession of a firearm for which he received consecutive twelve-year sentences for an effective sentence of twenty-four years’ confinement. On appeal, the defendant contends the trial court erred by imposing consecutive terms. Upon our review of the record, the applicable law, and the arguments of the parties, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 01/12/21
State of Tennessee v. Andre Bowen
W2019-01210-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County grand jury indicted the defendant, Andre Bowen, and his co-defendant, Anthony Olivo, for two counts of first-degree, felony murder (Counts 1 and 2) and attempted especially aggravated robbery (Count 3). The grand jury also indicted the defendant for two counts of unlawful possession of a firearm by a convicted felon (Counts 4 and 5). After a joint trial, the jury acquitted the defendant on Count 1 but found him guilty of the lesser-included offense of facilitation of first-degree, felony murder in Count 2, attempted especially aggravated robbery in Count 3, and unlawful possession of a firearm by a convicted felon in Counts 4 and 5, for which the trial court imposed an effective sentence of seventy-two years. On appeal, the defendant challenges the
sufficiency of the evidence supporting his convictions and argues the trial court erred in sentencing. After our review, we affirm the judgments of the trial court, but remand the case for a new sentencing hearing as to Counts 4 and 5 to reflect the appropriate felony classification for each offense and for entry of new sentences for each conviction.

Shelby County Court of Criminal Appeals 01/12/21
State of Tennessee v. John William Anderson
E2019-01156-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

The defendant, John William Anderson, appeals his Sullivan County Criminal Court jury convictions of attempted theft of property valued at $10,000 or more but less than $60,000 and criminal simulation. He challenges the sufficiency of the convicting evidence and the propriety of the sentencing decision of the trial court. The evidence was sufficient to support the convictions, but the trial court erred by imposing a sentence in the absence of a presentence report. Consequently, we affirm the defendant’s convictions but reverse the sentencing decision of the trial court and remand the case to the trial court for a new sentencing hearing.

Sullivan County Court of Criminal Appeals 01/12/21
State of Tennessee v. Phillip Harvey Wallace
E2020-00532-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge E. Shayne Sexton

The defendant, Phillip Harvey Wallace, appeals the sentencing decision of the trial court that followed the revocation of his probation in case number 5263 and his pleading guilty in case number 5376, arguing that the trial court erred by failing to consider a community corrections placement and by ordering that the 12-year sentence imposed in case number 5376 be served consecutively to the remainder of the two-year sentence in case number 5263. Discerning no error, we affirm.

Union County Court of Criminal Appeals 01/12/21
Joshua Michael Stewart v. State of Tennessee
E2020-00150-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven W. Sword

The petitioner, Joshua Michael Stewart, appeals the denial of his petition for post-conviction relief, which petition challenged his 2017 Knox County Criminal Court jury convictions of rape of a child and aggravated sexual battery. He argues that he was deprived of the effective assistance of counsel. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 01/11/21
State of Tennessee v. Terrill J. Whitelow
W2020-00598-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge R. Lee Moore

Defendant, Terrill J. Whitelow, was indicted by the Dyer County Grand Jury on three counts: Count 1, attempted carjacking; Count 2, aggravated burglary; and Count 3, evading arrest. After a trial, the jury found Defendant guilty as charged on Counts 2 and 3. Defendant received an effective sentence of ten year’s incarceration. Defendant filed a motion for new trial in which he argued the evidence was insufficient to support his convictions. The trial court denied the motion for new trial. After a thorough review of the record, we affirm the judgments of the trial court but remand the matter to the trial court for entry of a judgment disposing of Count 1 of the indictment.

Dyer County Court of Criminal Appeals 01/08/21
State of Tennessee v. James Howard Theus, III
W2020-00160-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Donald H. Allen

James Howard Theus, III, Defendant, was indicted for four counts of violating the sex offender registry. He pled guilty to the charges as stated in the indictment with an agreed upon sentence of three years with the manner of service of the sentence to be determined by the trial court after a sentencing hearing. The trial court denied alternative sentencing, ordering Defendant to serve his sentence in incarceration. Defendant appeals, arguing that the trial court abused its discretion. After a review, we determine that the trial court did not abuse its discretion.

Madison County Court of Criminal Appeals 01/08/21
State of Tennessee v. Adrian Waite
E2019-02017-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Tom Greenholtz

The Defendant appeals as of right from the Hamilton County Criminal Court’s revocation of his probation and reinstatement of the remainder of his three-year sentence for one count each of theft of property valued at more than $1,000 but less than $2,500 and forgery in the same amount. On appeal, the Defendant asserts that the trial court abused its discretion by revoking his probation because: (1) the Defendant remained actively employed and made efforts to contact his probation officer; (2) the Defendant’s probation revocation “robbed victims of owed restitution and imposed an unnecessary financial burden upon the state’s taxpayers”; (3) the Defendant’s probation revocation “runs contrary to the Governor’s stated desire to use alternatives to incarceration for low-level, nonviolent offenders”; and (4) the Defendant’s probation revocation does “not reflect the trial court’s expectation that [he] would be released soon after his revocation hearing.” Following our review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 01/08/21
Tywan Montrease Sykes v. State of Tennessee
E2019-02024-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David R. Duggan

The Petitioner, Tywan Montrease Sykes, appeals from the Blount County Circuit Court’s order summarily dismissing his petition for post-conviction relief as untimely and as a second impermissible petition. On appeal, the Petitioner argues that due process requires tolling of the one-year limitations period, that he should have been given an evidentiary hearing to present additional proof of tolling, and that his first petition was not resolved on the merits. Following our review, we affirm the judgment of the post-conviction court summarily dismissing the petition as untimely.

Blount County Court of Criminal Appeals 01/08/21
State of Tennessee v. Jeremy Lee Fleming
M2019-00573-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, Jeremy Lee Fleming, was convicted by a Bedford County Circuit Court jury of first degree premeditated murder, first degree felony murder in the perpetration of a theft or arson, arson, and theft of property valued at $1000 or more but less than $10,000. The trial court merged the first degree murder convictions and imposed a life sentence. The court sentenced the Defendant to fifteen years for arson and to twelve years for theft, as a Range III, persistent offender, and the court imposed the arson and theft sentences concurrent to each other but consecutive to the life sentence, for an effective sentence of life plus fifteen years. On appeal, the Defendant contends that the evidence is insufficient to support his convictions and that the trial court erred in imposing consecutive sentencing. We affirm the first degree murder and arson judgments, but we modify the judgment for theft to reflect a sentence of eleven months, twenty-nine days.

Bedford County Court of Criminal Appeals 01/08/21
Caitlyn Metz v. State of Tennessee
M2019-00883-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge William R. Goodman, III

A jury convicted Caitlyn Metz, Petitioner, of first-degree felony murder, aggravated child abuse, and aggravated child neglect in the death of her twenty-three-month-old son, the victim, and the trial court sentenced her to an effective life sentence. Petitioner filed a post-conviction petition, asserting ineffective assistance of counsel, a Brady violation, and improper prosecutorial argument, and the post-conviction court denied the petition. On appeal, Petitioner contends that she was denied the effective assistance of counsel due to trial counsel’s failure to pursue a motion for severance from Joshua Starner, Co-Defendant, and other pretrial motions; failure to investigate Co-Defendant’s military records and Petitioner’s mental health; failure to present witnesses; and cumulative error. Following a thorough review, we conclude that Petitioner was denied the effective assistance of counsel. We reverse the judgment of the post-conviction court, vacate and set aside the judgments of conviction, and remand for a new trial.

Montgomery County Court of Criminal Appeals 01/07/21
William Pillars v. State of Tennessee
M2019-00234-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Curtis Smith

The Petitioner, William Pillars, filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel at trial and on appeal. The post-conviction court denied relief, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Franklin County Court of Criminal Appeals 01/07/21
State of Tennessee v. Torey Jay Estes
W2019-01676-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Clayburn Peeples
A Gibson County jury convicted the defendant, Torey Jay Estes, of attempted voluntary manslaughter, attempted first-degree murder, aggravated assault, and false imprisonment for which he received an effective sentence of thirty-five-years, eleven months, and twentynine days. On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction for attempted
first-degree murder and an evidentiary ruling regarding the admissibility of the victim’s 9-1-1 call into evidence. After a thorough review of the record, we affirm the judgments of the trial court.
 
Gibson County Court of Criminal Appeals 01/06/21
State of Tennessee v. Juan Ramon Chaves-Abrego
M2019-01686-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stella L. Hargrove

A Maury County Circuit Court Jury convicted the Appellant, Juan Ramon Chaves-Abrego, of one count of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony, and he received an effective forty-year sentence to be served at one hundred percent. On appeal, the Appellant contends that the evidence is insufficient to support the convictions and that the trial court erred by ordering consecutive sentencing. Based upon the record and the parties’ briefs, we affirm the Appellant’s convictions and effective sentence but remand the case to the trial court for correction of the judgment of conviction in count two, rape of a child, to reflect that the trial court sentenced the Appellant as a Range II offender.

Maury County Court of Criminal Appeals 01/06/21