APPELLATE COURT OPINIONS

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.

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.

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Following the trial court’s denial of interlocutory appeals pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State sought extraordinary appeals pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure in the above cases, which this court granted and consolidated. On appeal, the State contends that the trial court abused its discretion in disqualifying the District Attorney General’s Office for the Twenty-Fourth Judicial District after finding that Derek T. Grooms and Allen Hatley were defendants in cases prosecuted by this district attorney’s office but were also victims in other cases prosecuted by this office. After review, we reverse the orders of the trial court and remand for further proceedings in accordance with this opinion.

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.

The Defendant-Appellant, Yolanda Tucker, pleaded guilty to one count of aggravated assault,1 a Class C felony, in violation of Tennessee Code Annotated section 39-13-102, in Shelby County Criminal Court. Following the Defendant’s testimony at her guilty plea hearing, the trial court denied her request for judicial diversion and imposed a sentence of three years to be served on supervised probation. On appeal, the Defendant contends that (1) the trial court committed plain error in denying her statutory right to allocution and requiring her to testify under oath in order to request judicial diversion, and that (2) the trial court erred in failing to adequately explain its reasoning for denying the Defendant’s application for judicial diversion. Following our review, we affirm the judgment of the trial court.

A Shelby County jury convicted Petitioner, Antonio Wicks, of second degree murder in the death of the victim, Donald Miller, and the trial court sentenced Petitioner to 25 years’ incarceration as a Range I violent offender. This court affirmed Petitioner’s conviction on direct appeal. See State v. Antonio Wicks, No. W2011-00964-CCA-R3-CD, 2012 WL 1424717, at *1 (Tenn. Crim. App. Apr. 23, 2012), perm. app. denied (Tenn. Aug. 16, 2012). Petitioner filed a pro se post-conviction petition and four amended petitions following the appointment of counsel. Following a hearing, the post-conviction court denied relief. Petitioner now appeals, claiming that he was denied the effective assistance of counsel because trial counsel failed to (1) move for a mistrial due to only having eleven jurors; (2) file a motion to dismiss the indictment pursuant to State v. Ferguson, 2 S.W.3d 912, 915-16 (Tenn. 1999); (3) cross-examine the State’s witness regarding the loss or destruction of potentially exculpatory evidence; (4) object to improper prosecutorial argument; and (5) raise in the motion for new trial and on direct appeal the failure to cross-examine a witness and improper prosecutorial argument. After a thorough review of the record and applicable case law, the judgment of the postconviction court is affirmed.

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.

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.

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.

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.

Defendant, Christopher W. Gadsden, was indicted by the Davidson County Grand Jury for first degree premeditated murder, first degree felony murder, and theft of property valued between $1,000 and $10,000. Following a jury trial, Defendant was convicted of second degree murder and theft of property valued between $1,000 and $10,000. Following a sentencing hearing, the trial court imposed a total effective sentence of 24 years in the Tennessee Department of Correction with 100 percent release eligibility. In this appeal as of right, Defendant contends that: 1) the evidence was insufficient to support his conviction for second degree murder; 2) the trial court erred by admitting certain autopsy photographs into evidence; 3) the trial court erred by excluding evidence of a prior bad act by the victim; and 4) his sentence is excessive. Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

This action involves a maternal grandmother’s objection to the denial of her petition for custody of her minor grandchild and his adoption by his foster parents. We affirm.