APPELLATE COURT OPINIONS

The pro se petitioner, Victor Eugene McConnell, appeals the denial of his petition for writ of habeas corpus by the Davidson County Criminal Court, arguing the trial court erred in summarily dismissing the petition. The petitioner asserts the State breached the plea agreement in this case, entitling the petitioner to habeas corpus relief. After our review, we affirm the summary dismissal of the petition pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

The Defendant, Elvis Louis Marsh, was convicted of the sale of less than 0.5 grams of methamphetamine, delivery of less than 0.5 grams of methamphetamine, conspiracy to sell or deliver less than 0.5 grams of methamphetamine, possession of 0.5 grams or more of methamphetamine with the intent to sell or deliver, and possession of drug paraphernalia. He received an effective sentence of thirty years. On appeal, the Defendant argues that the evidence presented at trial is insufficient to support his convictions. Upon reviewing the record and applicable law, we affirm the trial court’s judgments.

The defendant, Eric Henry, appeals the Blount County Circuit Court’s order revoking his probation and ordering him to serve the balance of his two-year sentence for reckless endangerment in confinement. Discerning no error, we affirm.

Following the denial of a suppression motion, the defendant, Whelchel Randall Hogan, entered a guilty plea in Dickson County Circuit Court to possession with intent to sell or deliver .5 grams or more of cocaine and reserved the right to appeal a certified question of law relating to the initial seizure of the defendant and the validity of the search warrant issued in this case. The defendant asserts the police did not have reasonable suspicion for the initial seizure of the defendant and the search warrant issued in this case lacked probable cause. Upon our review of the record, arguments of the parties, and pertinent authorities, we affirm the judgment of the trial court.

In 1994, the petitioner, Hugh A. Niceley, was convicted of eight counts of aggravated rape and one count of aggravated sexual battery, occurring over the course of several years from 1988 until 1992. For his crimes, the petitioner received an effective sentence of fifty-three years, to be served at 30 percent. In 1999, the trial court entered a new judgment as to Count 9, requiring the sentence be served at 100 percent, as required by the applicable statute. As a result, the petitioner asserts the 1999 judgment created an illegal sentence, arguing his sentence in Count 9 should be served at 30 percent, as originally ordered. The trial court disagreed, as do we. Accordingly, the order of the trial court requiring service of Count 9 at 100 percent is affirmed.

The petitioner, Christopher L. Shaw, appeals the denial of his petition for writ of habeas corpus, which petition challenged his 2012 Davidson County Criminal Court jury convictions of possession of 26 grams or more of cocaine in a drug-free zone, possession of drug paraphernalia, and felony evading arrest. Discerning no error, we affirm the denial of relief.

A jury convicted the Defendant, Antoine Dewayne Clark, of aggravated arson, and he was sentenced to serve thirty years in prison. On appeal, he alleges that the trial court erred in limiting defense counsel’s questions during voir dire; in allowing testimony regarding the injuries suffered by the victims; in denying a mistrial based on the introduction of evidence that the Defendant was wearing an ankle monitor; and in permitting hearsay testimony. After a thorough review of the record, we affirm the judgment of the trial court.

The Defendant, Nathan Todd Cooke, was convicted by a Van Buren County Circuit Court jury of two counts of driving under the influence, a Class A misdemeanor. See T.C.A. § 55-10-401 (2017). The trial court merged the convictions and sentenced him to eleven months, twenty-nine days, with ten days to be served in jail and the balance on probation. On appeal, the Defendant contends that the trial court erred in denying his motion to suppress and that the admission of the blood alcohol test result was plain error. We affirm the judgment of the trial court.

While I agree with the majority’s conclusion that the officer’s actions were a proper exercise of the community caretaking function, I disagree with the majority’s holding that the Defendant was not seized when the officer approached the Defendant with activated blue lights. Without a seizure, there would be no need for the officer’s actions to be deemed the exercise of the community caretaking function.

The Appellant, Kelvin Anthony Lee, filed a pro se motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, and the Lauderdale County Circuit Court summarily denied the motion. On appeal, the Appellant contends that his sentence of life without parole violates Montgomery v. Louisiana, 136 S. Ct. 718 (2016); Moten v. State, 935 S.W.2d 416 (Tenn. Crim. App. 1996); and Tennessee Code Annotated section 39-13-204(j). Upon review of the record and the parties’ briefs, we affirm the trial court’s denial of the motion.

The Petitioner, Jimmy Heard, appeals the Johnson County Criminal Court’s denial of his petition for a writ of habeas corpus, contesting his transfer from Tennessee to Kentucky for trial. On appeal, he contends that the habeas corpus court was without jurisdiction to order his transfer because he was not served with an arrest warrant. On appeal, we conclude that the habeas corpus court properly denied the petition.

On August 26, 2016, the Defendant, Heather Montgomery, was convicted of two counts of sale of less than fifteen grams of heroin within 1,000 feet of a park and two counts of delivery of less than fifteen grams of heroin within 1,000 feet of a park. Counts 2 and 4 were merged into Counts 1 and 3, and the Defendant was sentenced as a Range I, standard offender to an effective 8-year term, to be served at 100% in the Department of Correction. The Defendant argues on appeal that the trial court abused its discretion is neither excluding the testimony of a confidential informant or granting a continuance and that the evidence is insufficient to sustain her convictions. After thorough review, we affirm the judgments of the trial court but remand for entry of corrected judgments.

Defendant, Torvarius E. Mason, was found guilty of first degree premeditated murder and was sentenced to life imprisonment. On appeal, Defendant argues that the trial court erred by not instructing the jury on the lesser-included offense of voluntary manslaughter and that the evidence was insufficient to support his conviction. After review, we affirm the judgment of the trial court.

Defendant, Thomas Clinton Wood, was indicted by the Putnam County Grand Jury for one count of aggravated assault with a deadly weapon. Following a jury trial, Defendant was convicted as charged and sentenced by the trial court to three years in confinement as a Range I standard offender. On appeal, Defendant contends that the evidence was insufficient to support his conviction for aggravated assault, and that the trial court erred by denying alternative sentencing. After a careful review of the record, we affirm the judgment of the trial court.

Petitioner, Charles Pennington, appeals the denial of his petition for post-conviction relief from his convictions for first degree felony murder and attempted especially aggravated robbery. On appeal, Petitioner asserts that he received ineffective assistance of counsel due to trial counsel’s failure to investigate and present a defense regarding the victim’s ownership of the gun and failure to
cross-examine his codefendants regarding the details of their plea agreements. Petitioner also asserts that his due process right to a fair trial was violated by the prosecutor’s knowing use of perjured testimony from one of his codefendants. Although we waive the timely filing of the notice of appeal in the interest of justice, we conclude that Petitioner’s grounds for relief are waived because they were not raised in the post-conviction court. Thus, we affirm the judgment of the postconviction court.

The Petitioner, Antonio Howard, filed a petition for post-conviction relief, alleging, among other things, that trial counsel was ineffective for failing to file a timely motion for new trial. After a review of the record, we hold that the Petitioner’s trial counsel was deficient in this regard and that the Petitioner was presumptively prejudiced by the deficiency. Therefore, we reverse the judgment of the post-conviction court denying the petition and remand this case with instructions to that court that it grant the Petitioner a delayed appeal, beginning with the right to file a delayed motion for new trial.

The Appellant, Nehemiah Rimmer, was convicted in the Shelby County Criminal Court of rape of a child, a Class A felony, and received a twenty-year sentence to be served at one hundred percent. On appeal, he contends that the trial court erred by denying his motion to suppress his confession, that the trial court erred by allowing the victim’s and her mother’s out-of-court statements to be read to the jury, and that the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we discern no reversible error and affirm the judgment of the trial court.

The Defendant, Jayme Lynn Shaffer, pleaded guilty to two counts of theft of property valued at more than $1,000 with an agreed effective sentence of three years. The parties agreed to allow the trial court to determine the manner of service of her sentence and whether she was entitled to judicial diversion. After the hearing, the trial court denied the Defendant’s request for judicial diversion but granted her request for a probationary sentence. On appeal, the Defendant contends that the trial court erred when it denied her request for judicial diversion. After review, we affirm the trial court’s judgments.

A Shelby County jury convicted the Defendant, Jasper Lee Vick, of one count of especially aggravated kidnapping, two counts of aggravated kidnapping, and one count of sexual battery. The trial court merged his convictions for aggravated kidnapping into his conviction for especially aggravated kidnapping and sentenced the Petitioner, as a Range II offender, to an effective sentence of forty years of incarceration. After multiple appeals and remands, this court ordered that the Defendant be sentenced as a Range I offender and reduced his sentence to twenty-six years. State v. Vick, 242 S.W.3d 792, 795 (Tenn. Crim. App. 2007). The Defendant filed this, his second Rule 36.1 motion to correct an illegal sentence, and asked the trial court to credit him for pretrial jail credits. The trial court denied the Defendant’s motion, finding that his judgments appeared correct. On appeal, the Defendant maintains that he has not been awarded the proper amount of jail credits. After review, we affirm the trial court’s judgment.

Defendant, Abbie Leann Welch, entered a Walmart store and stole merchandise after she had received notification that she was banned from all Walmart properties. Defendant was convicted at a bench trial of one count of misdemeanor theft and one count of burglary. On appeal, Defendant argues that the burglary conviction should be dismissed because the burglary statute, Tennessee Code Annotated section 39-14-402, does not apply to entry into buildings open to the public. Upon our review, we hold that the burglary statute is not unconstitutionally vague and affirm the judgments of the trial court.

I write separately in this case to note my concerns and to reiterate that “burglary is a serious offense with serious consequences. . . . [It] is no petty crime.” State v. Office of the Public Defender ex rel. Muqqddin, 285 P.3d 622, 636 (N.M. 2012). The facts are simple and not in dispute. The Defendant, who previously had been banned from a retail store, entered the same retail store and shoplifted several clothing items valued under $100. Minutes later, the Defendant’s friends returned the stolen items in exchange for a store gift card or credit. This factual scenario is ordinarily prosecuted as a criminal trespass and shoplifting/theft, both misdemeanor offenses with a penalty of no more than eleven months and twenty-nine days. See, e.g., State v. Constance Elaine Archer, No. M2012-00154-CCA-R3-CD, 2012 WL 5188079, at *1 (Tenn. Crim. App. Oct. 19, 2012). Remarkably, the Defendant here was charged with and convicted of theft by shoplifting as described above and burglary, a felony with a penalty of two to twelve years imprisonment.

The Petitioner, Morris Rucker, appeals the Davidson County Criminal Court’s summary denial of his petition requesting DNA analysis of evidence pursuant to the Post-Conviction DNA Analysis Act of 2001. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The Defendant, Marico Vales, was convicted by a Shelby County Criminal Court jury of first degree felony murder and especially aggravated robbery. See T.C.A. §§ 39-13-202 (2018) (first degree murder); 39-13-403 (2018) (especially aggravated robbery). The trial court sentenced the Defendant to concurrent terms of life imprisonment and twenty-five years. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

In 1992, the Petitioner, Ercil K. Rayford, pleaded guilty to especially aggravated robbery and aggravated robbery for an effective sentence of thirty years. On April 23, 2018, the Petitioner filed a pro se writ of habeas corpus, alleging that his sentence had expired on July 12, 1999. The habeas corpus court denied the petition because the record failed to establish that the Petitioner’s sentence had expired. On appeal, the Petitioner maintains that his sentence has expired. After review, we affirm the habeas corpus court’s dismissal.

The Defendant, Horatio Lamont Harrison, was indicted for driving under the influence (DUI), failure to yield, violation of the financial responsibility law, and violation of the implied consent law. See Tenn. Code Ann. §§ 55-8-131, -10-401, -10-406, -12-139. The Defendant filed a motion to suppress all evidence gathered during his traffic stop. The trial court concluded that the traffic stop was not supported by probable cause, granted the Defendant’s suppression motion, and dismissed the indictments. On appeal, the State contends that the trial court erred in granting the Defendant’s suppression motion. Following our review, we conclude that the trial court erred by not considering the State’s alternative theory attempting to establish that the stop was supported by probable cause or a reasonable suspicion. Accordingly, we reverse the judgments of the trial court and remand the case for a new suppression hearing.