APPELLATE COURT OPINIONS

In 2014, the Petitioner, Quinton Bonner, pleaded guilty to aggravated assault, and the trial court imposed a sentence of ten years. The Petitioner then sought to withdraw his guilty plea on the basis that it was not knowingly and voluntarily entered and that his trial counsel ineffectively advised him concerning his plea. The trial court denied his motion, and this court affirmed its judgment. State v. Bonner, No. W2015-00812-CCA-R3-CD, 2016 WL 1403308, at *1 (Tenn. Crim. App., at Jackson, April 7, 2016) no perm. app. filed. In 2016, the Petitioner filed a petition for post-conviction relief, alleging that his guilty plea was entered involuntarily and that he had received the ineffective assistance of counsel. The post-conviction court summarily dismissed his petition on the grounds that the claims had been previously determined. On appeal, the Petitioner contends that the trial court erred when it summarily dismissed his petition. After review, we affirm the post-conviction court’s judgment.

The Defendant, Demetric Johnson, appeals the trial court’s revocation of his probation, arguing that the court should have imposed an alternative sentence rather than ordering him to serve the balance of his original sentence incarcerated, and therefore abused its discretion. After thorough review, we affirm the judgments of the trial court.

The Petitioner, Brian Allen Osborne, appeals the post-conviction court’s dismissal of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel. After review, we affirm the dismissal of the petition.

The Defendant, Richard Shawn O’Rourke, was convicted by a Lawrence County Circuit Court jury of rape, a Class B felony. See T.C.A. § 39-13-503 (2014). The trial court sentenced the Defendant as a Range I, standard offender to ten years, six months’ incarceration at 100% service. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction and (2) the State engaged in prosecutorial misconduct. Because the State engaged in multiple instances of prosecutorial misconduct during closing argument, we reverse the judgment of the trial court and remand the case for a new trial.

The defendant, Jacob Bergum, was sentenced to ten years in confinement by the trial court for his Class B felony conviction of aggravated sexual battery. On appeal, the defendant argues the trial court improperly enhanced his sentence as a Range I offender from the minimum of eight years to ten years in violation of the purposes and principles of the Tennessee Criminal Sentencing Reform Act. Following our review of the briefs, the record, and the applicable law, we affirm the judgment of the trial court.

The Petitioner, William M. Phillips, pled guilty in the Giles County Circuit Court to possession of one-half gram or more of cocaine with intent to sell and was sentenced as a Range II, multiple offender to twenty years in confinement. Subsequently, the Petitioner filed a pro se motion to withdraw his guilty plea, which the trial court denied, and a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner contends that he is entitled to post-conviction relief because he was prejudiced by “a derogatory, racially based remark” made by the trial court during a hearing and because he was prejudiced by the trial court’s denial of his pro se motion to withdraw his guilty plea without the appointment of counsel. Based upon the oral arguments, the record, and the parties’ briefs, the denial of the petition for post-conviction relief is affirmed.

I concur with the conclusion reached by Judge Ogle that the post-conviction court properly denied the petition for post-conviction relief. I further agree with Judge Ogle’s conclusion that any claims regarding judicial bias and recusal are waived. I write separately to address the Petitioner’s claim that he was disadvantaged by not having appointed counsel to represent him at the hearing on his motion to withdraw his guilty plea. I do not believe a post-sentencing motion to withdraw a guilty plea pursuant to Tennessee Rule of Criminal Procedure 32(f) is a critical stage of the prosecution to which the right to counsel attaches.

I agree with the conclusion reached by the majority pertaining to the Petitioner’s recusal claim. I respectfully part ways with the lead opinion; however, because it fails to address the issue squarely before the court, which is whether the Petitioner was entitled to counsel during his post-sentencing motion to withdraw his guilty plea. This issue, as noted in Judge Easter’s dissent, requires us to determine whether a post-sentencing motion to withdraw a guilty plea is a critical stage of the proceedings. Because a defendant’s substantial rights are affected, I would have concluded that a post-sentence motion to withdraw a guilty plea is a critical stage in judicial proceedings. Accordingly, I would have reversed the judgment of the post-conviction court and vacated its order denying relief. I also would have reversed and vacated the trial court’s denial of the Petitioner’s post-sentencing motion to withdraw his guilty plea and remanded for a new evidentiary hearing on the motion to withdraw following the appointment of counsel or valid waiver thereof.

This is a State appeal of the Hardin County Circuit Court’s grant of post-conviction relief. The Petitioner was convicted by a jury of various drug related offenses including sale of .5 grams or more of a Schedule II controlled substance within 1000 feet of a school zone, see Tenn. Code Ann. §§ 39-17-417(c)(1), 39-17-432(b)-(c), for which he received an effective sentence of 25 years with no parole. State v. Marlon Yarbro, No. W2015-00475-CCA-R3-CD, 2015 WL 5813383, at *3 (Tenn. Crim. App. Oct. 5, 2015), perm. app. denied (Tenn. Feb. 18, 2016). After his conviction was affirmed by this court, the Petitioner filed a pro se petition for post-conviction relief which did not include as grounds for relief that trial counsel was ineffective in advising the Petitioner of his sentence range or a due process claim based on the Petitioner’s rejection of a more favorable settlement offer from the State. Post-conviction counsel was appointed, and no amendments were filed. An evidentiary hearing was held, and the post-conviction court granted the Petitioner relief based on the evidence adduced at the post-conviction hearing. The State now appeals, raising the following issues: (1) whether the postconviction court may, on its own initiative, constructively amend a post-conviction petition; (2) if the constructive amendment were proper and if the basis for relief was that the petitioner’s rejection of the State’s plea offer was unknowing, whether that basis is a cognizable ground for post-conviction relief where there is no constitutional right to a knowing and voluntary rejection of a plea offer; and (3) if the constructive amendment were proper and if the basis for relief was ineffective assistance of counsel, whether the post-conviction court erred in granting relief where the court did not conduct the Strickland two-pronged analysis. Upon our review, we affirm the judgment of the postconviction court.

A Shelby County jury convicted Defendant, Maurice Gray, of aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, convicted felon in possession of a firearm, convicted felon in possession of a handgun, and evading arrest. Defendant received a total effective sentence of twenty-nine years. On appeal, Defendant argues the following: (1) the evidence was insufficient for a rational juror to have found Defendant guilty on all charges beyond a reasonable doubt; (2) the trial court erred in ordering partially consecutive sentence alignment; and (3) the trial court erred in failing to merge counts three, four, and five. After a thorough review of the facts and applicable case law, we affirm Defendant’s judgments of conviction but remand for merger of counts four and five.

The Defendant, Tyson Reed King, was found guilty by a Maury County Circuit Court jury of destroying, tampering with, or fabricating evidence and of unlawful possession of drug paraphernalia. See T.C.A. §§ 39-16-503 (2014) (destruction, tampering, or fabrication of evidence), 39-17-425 (2014) (unlawful possession of drug paraphernalia). The trial court sentenced the Defendant, a Range II offender, to serve nine years at 35% for destroying, tampering with, or fabricating evidence and to eleven months, twenty-nine days for unlawful possession of drug paraphernalia. The sentences were imposed to run concurrently. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

I join the majority in affirming the post-conviction court’s denial of the petitioner’s petition for post-conviction relief. However, I write separately to dissent from the majority’s holding that a hearing on a motion to withdraw a guilty plea, which a defendant files after sentencing but before the judgment becomes final, does not constitute a “critical stage” of the proceedings and, therefore, does not provide the constitutional right to the effective assistance of counsel.

The Petitioner, Oscar Armando Delgado, appeals the denial of his petition for post-conviction relief, arguing that trial counsel was ineffective for not fully advising him of the immigration consequences of his plea or providing him with a Spanish language interpreter, thereby rendering his guilty plea unknowing and involuntary. Following our review, we affirm the judgment of the post-conviction court.

The defendant, Kaylecia Woodard, was convicted of two counts of aggravated robbery and received an effective sentence of fifteen years. The sentence was vacated on appeal and the case was remanded for re-sentencing. On remand, the defendant was sentenced to ten years’ incarceration. On appeal the defendant contends the trial court erred in applying enhancement factor (2) and in improperly weighing the enhancement factor. Upon our review of the record, arguments of the parties, and pertinent authorities, we affirm the judgment of the trial court.

Defendant, Brandon Gillenwater, appeals from the Sullivan County Criminal Court’s judgment denying him alternative sentencing. Defendant’s counsel has filed a motion to withdraw from representation pursuant to Rule 22 of the Rules of the Tennessee Court of Criminal Appeals. We conclude that counsel’s motion is well-taken and, in accordance with Rule 22(F), affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Defendant, Jamal P. Hicks, was convicted of sexual battery in 2004. As a result of that conviction, Defendant was declared a registered sex offender and required to comply with the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004. T.C.A. § 40-39-201. et seq. In 2016, Defendant was convicted by a jury of falsifying a registration form, failing to report a change in circumstance on a registration form, and perjury. As a result, he received an effective sentence of three years. On appeal, Defendant argues that the trial court improperly admitted three exhibits at trial and that the evidence was insufficient to support the convictions. After a thorough review, we conclude that the trial court improperly admitted several exhibits at trial and, as a result, the evidence is insufficient to support the judgments. Consequently, Defendant’s convictions are reversed and vacated.

The Defendant, Joshua Cool, was convicted by a Knox County Criminal Court jury of two counts of first degree premeditated murder, first degree felony murder, two counts of second degree murder, and criminally negligent homicide. See T.C.A. §§ 39-13-202 (2014) (first degree murder); 39-13-210 (2014) (second degree murder); 39-13-212 (2014) (criminally negligent homicide). After the appropriate merger, the trial court sentenced the Defendant to concurrent sentences of life imprisonment for two first degree premeditated murder convictions and to two years’ confinement for criminally negligent homicide. On appeal, the Defendant contends that (1) the evidence is insufficient to support his first degree murder convictions, (2) the trial court erred by denying his motion to suppress evidence recovered during a warrantless search and his subsequent police statement, and (3) the trial court erred by admitting various evidentiary items. We affirm the Defendant’s convictions, but we remand the case to the trial court for the entry of a corrected second degree murder judgment to reflect the offense as a Class A felony.

The Appellant, Dinnie Merel Robertson, was convicted in the Lawrence County Circuit Court in case number 31906 of two counts of felony vandalism, carrying a firearm with the intent to go armed, and misdemeanor reckless endangerment. Subsequently, he pled guilty in the Lawrence County Circuit Court in case number 33049 to two counts of retaliation for past action. The Appellant received an effective four-year sentence in case number 31906 and an effective two-year sentence in case number 33049 to be served consecutively as ten months in confinement followed by supervised probation. The Appellant then was convicted in the Lawrence County Circuit Court in case number 33414 of selling one-half gram or more of methamphetamine and selling Clonazepam and received an effective ten-year sentence to be served in confinement and consecutively to the effective six-year sentence. The trial court also revoked the Appellant’s probation in case numbers 31906 and 33049 and ordered that he serve his sentences in those cases in confinement. In this consolidated appeal, the Appellant contends that the evidence is insufficient to support his convictions in case number 33414, that the trial court erred by ordering that he serve his effective ten-year sentence in that case consecutively to his prior sentences, and that the trial court erred by denying his request for probation. He also contends that the trial court erred by revoking his probation in case numbers 31906 and 33049 and ordering that he serve those sentences in confinement. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court but remand the case for correction of the judgments.

The Petitioner, Thiermo Mamadou Diallo, filed a petition for writ of error coram nobis, seeking relief from his conviction of statutory rape, which was the result of a guilty plea, based upon the victim’s recantation of her allegations against him. The Petitioner acknowledged that the petition was untimely but alleged that due process justified tolling the statute of limitations. After a brief hearing on the issue, the coram nobis court dismissed the petition. On appeal, the Petitioner challenges this ruling. Upon review, we affirm the judgment of the coram nobis court.

Following a trial, a Shelby County jury found Defendant, Willie Mitchell, guilty of aggravated robbery and aggravated burglary. The trial court sentenced Defendant, as a career offender, to a total effective sentence of forty-five years in the Tennessee Department of Correction. On appeal, Defendant challenges both the sufficiency of the evidence as it relates to his conviction for aggravated robbery and the sentence imposed by the trial court. Following a thorough review, we affirm the judgments of conviction.

The Petitioner, Derrick Chambers, appeals from the denial of his petition for postconviction relief, wherein he challenged the validity of his guilty plea to attempted first degree murder. On appeal, the Petitioner alleges that he received ineffective assistance from his trial counsel because trial counsel (1) “failed to adequately investigate, or prepare for trial, develop defenses, speak to witnesses, file motions, or meet with the [Petitioner] to prepare for trial”; (2) “failed to object to raise a statutory claim with respect to charging him with attempted murder by using a firearm and employing a firearm in the commission of the same offense”; and (3) coerced him into pleading guilty by providing incorrect advice. The Petitioner further contends that, but for trial “counsel’s ineffective representation,” he “would have received a greatly reduced sentence.” After a thorough review of the record, we affirm the judgment of the postconviction court.

The petitioner, Larry Wade, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel upon the entry of his guilty plea and during the subsequent hearing on the motion to withdraw his guilty plea. Following our review, we affirm the denial of the petition and further conclude the petitioner does not have a constitutional right to effective assistance of counsel during a hearing on a motion to withdraw a guilty plea after sentence has been imposed.

The petitioner, Richard Bryant Long, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

The Appellant, Anita H. Lane, pled guilty to theft of property valued $60,000 or more but less than $250,000, a Class B felony, with the trial court to determine the length and manner of service of the sentence. After a sentencing hearing, the trial court sentenced her as a Range I, standard offender to eleven years in confinement and ordered that she pay restitution to the victim in the amount of $255,033.05. On appeal, the Appellant contends that the trial court erred by ordering that she pay $255,033.05 in restitution when she had no ability to pay that amount and that the trial court erred by finding that she had made no effort to pay restitution to the victim when she paid the victim’s insurance carrier $100,000. The State concedes that the trial court erred by ordering restitution without making findings on the Appellant’s ability to pay but argues that the trial court properly rejected her $100,000 payment to the insurance company as a basis for mitigation. Based upon the oral arguments, the record, and the parties’ briefs, we agree that the trial court failed to make findings regarding the Appellant’s ability to pay restitution. Therefore, we reverse the trial court’s ordering that the Appellant pay $255,033.05 and remand the case for further proceedings consistent with this opinion. The judgment of the trial court is affirmed in all other respects.

Defendant, John Sears, was convicted at trial of theft of property over the value of $60,000 for his theft of ownership interest in three real properties owned by family members. On appeal, Defendant argues that: (1) the evidence was insufficient for a rational juror to have found him guilty of theft of property over the value of $60,000 beyond a reasonable doubt; (2) the trial court erred in admitting lay witness testimony regarding the value of the stolen real property; and (3) cumulative error warrants the grant of a new trial. After a thorough review of the facts and applicable case law, we affirm the trial court’s judgment.