APPELLATE COURT OPINIONS

The Defendant, Jonathan C. Buckner, was convicted by a Houston County Circuit Court jury of theft of property valued at $1,000 or more but less than $10,000, a Class D felony.  See T.C.A. § 39-14-103 (2014).  The trial court sentenced the Defendant as a Range III, persistent offender to twelve years’ confinement and ordered that his sentence be served consecutively to a sentence in an unrelated case.  On appeal, the Defendant contends that the trial court erred (1) by failing to provide witnesses and prospective jurors proper instructions before jury selection, (2) by admitting inadmissible hearsay evidence, (3) by denying his two motions for a mistrial, (4) by overruling defense objections during the prosecutor’s opening statement and closing argument, and (5) during sentencing.  We affirm the judgment of the trial court.

The Petitioner, Jerry Phillips, appeals the denial of his request for post-conviction relief from his four convictions for aggravated sexual battery. The Petitioner contends that trial counsel’s failure to object to the trial court’s jury selection procedures in this case, which deviated from Tennessee Rule of Criminal Procedure 24, as recognized in State v. Frausto, 463 S.W.3d 469 (Tenn. 2015), amounted to ineffective assistance and that appellate counsel was likewise ineffective for failing to argue for plain error review of this issue on appeal. He further submits that the jury selection process violated his rights to due process of law, to a fair and impartial jury, and to intelligently exercise his peremptory challenges. After a thorough review of the record and the applicable authorities, we affirm the judgment of the post-conviction court.

The State appeals the trial court’s order granting the Defendants’ motions to suppress evidence seized as a result of a warrantless search of their house. The trial court found that, although Defendant Angela Hamm was on probation at the time of the search and was subject to warrantless searches as a condition of her probation, the search was invalid because the police officers did not have reasonable suspicion to justify the search. On appeal, the State contends that (1) the search was supported by reasonable suspicion; (2) the search was reasonable based upon the totality of the circumstances; (3) Angela Hamm consented to the search by agreeing to the warrantless search probation condition; and (4) the warrant search was valid as to Defendant David Lee Hamm under the doctrine of common authority. Upon review, we affirm the judgment of the trial court.

I concur in the majority opinion, but I write separately to express my views regarding the additional issues that arise from warrantless, suspicionless searches of probationers conducted pursuant to a condition of probation. I believe that at a minimum, reasonable suspicion is required before the State may conduct a warrantless search of a probationer who is subject to a warrantless search requirement as a condition of probation. While neither the United States Supreme Court nor the Tennessee Supreme Court have addressed whether something less than reasonable suspicion would permit searches of probationers, both courts have addressed the issue as it related to parolees. See Samson v. California, 547 U.S. 843 (2006); State v. Turner, 297 S.W.3d 155 (Tenn. 2009).

I dissent from the majority opinion for reasons which I will explain. The majority is correct that there is a split of authority as to whether reasonable suspicion must exist before a search may be made pursuant to a probation order providing that, as a condition of probation, the probationer is subject to warrantless searches. See Jay M. Zitter, Validity of Requirement That, as Condition of Probation, Defendant Submit to Warrantless Searches, 99 A.L.R.5th 557 (2002). However, I do not believe it is necessary for this court to make a determination as to this question, for it is clear that the officers had reasonable suspicion to search Angela Hamm’s residence.

The Petitioner, Michael Eugene Sample, was convicted in 1982 of two counts of felony murder and was sentenced to death. Following his unsuccessful direct appeal, he began filing, over the next twenty years, a series of various types of post-conviction petitions, all of which were unsuccessful. This appeal followed his claim, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, that he is intellectually disabled and not eligible to be executed. Thus, in his view, his sentence is illegal and void; and he is entitled to a hearing on his claim. Further, he argues that he is entitled to a writ of error audita querela and a writ of error coram nobis. The coram nobis court denied relief as to each of these claims and we affirm the judgment of that court.

The Petitioner, David Keen, raped and murdered the eight-year-old daughter of his girlfriend in March 1990, later discarding the body by throwing it into the Wolf River in Memphis. He pled guilty in 1991 to first degree murder and aggravated rape and was sentenced, respectively, to death and imprisonment for twenty years. See Keen v. State, 398 S.W.3d 594, 597-98 (Tenn. 2012). In his latest of many post-conviction filings, he argues that the Tennessee Supreme Court erred in its decision in Payne v. State, 493 S.W.3d 478 (Tenn. 2016), which denies relief for his claims; that his coram nobis petition was not time-barred; and that he is entitled to relief under Tennessee Rule of Criminal Procedure 36.1 because his sentence is illegal. He additionally seeks advice from this court as to what other avenues he may utilize in seeking relief. The coram nobis court denied relief, and we affirm that decision and decline to provide the advisory opinion sought by the Petitioner.

The petitioner, Marvin Hurst, Jr., appeals the denial of his post-conviction petition. The petitioner argues he received ineffective assistance of counsel and that, by his actions, counsel overbore the petitioner’s will resulting in the petitioner pleading guilty rather than going to trial. Following our review, we affirm the denial of the petition.

Defendant, Marcus Gergish, was found guilty by a jury of one count of criminally negligent homicide and two counts of attempted aggravated robbery and was sentenced to serve an effective twenty-one-year sentence in the Department of Correction. In this appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the prosecutor committed prosecutorial misconduct by destroying evidence; (3) that the prosecutor committed prosecutorial misconduct by misleading the jurors and misstating evidence; (4) that the trial court’s denial of a motion to continue, motion for expert funding, and refusal to allow the defense to call a witness on Defendant’s behalf denied Defendant a fair trial; (5) that the trial court failed to instruct the jury on the issues of dying declarations and lost or destroyed evidence; (6) that the trial court failed to act as the Thirteenth Juror; and (7) that the cumulative effect of all the errors denied Defendant a fair trial. Following a careful review of the record, we find that Defendant’s motion for new trial was not timely filed. Therefore, all of Defendant’s issues except for sufficiency of the evidence are waived, and we decline to exercise our discretion to review the waived issues for plain error. Defendant’s convictions are affirmed.

Defendant, Francisco G. Parvin, was indicted by the Greene County Grand Jury for aggravated assault resulting in serious bodily injury in Count 1 and aggravated assault by the use of a deadly weapon in Count 2. Following a jury trial, Defendant was convicted in Count 2 of the lesser-included offense of assault and sentenced to 11 months and 29 days, with 120 days to be served in jail and the remainder to be suspended on probation. The record does not contain a judgment form in Count 1, but the record indicates that only Count 2 was submitted for trial. Presumably, Count 1 was dismissed. The offenses in both counts were against the same victim. In this appeal as of right, Defendant contends that the evidence was insufficient to support his conviction in Count 2. After a careful review of the entire record and the parties’ briefs, we conclude that the evidence was sufficient to sustain Defendant’s conviction. Accordingly, we affirm the judgment of the trial court.

The Petitioner, James Edward Bostic, Jr., appeals from the Davidson County Criminal Court’s summary dismissal of his petition for post-conviction relief from his guilty plea conviction of possession with intent to manufacture, deliver, or sell less than one-half gram of cocaine, a Class C felony, for which he is serving a twelve-year sentence as a Range III, persistent offender. Because the post-conviction court erred in summarily dismissing his petition as untimely, we reverse its judgment and remand the case for further proceedings.

The pro se Petitioner, Barry N. Waddell, appeals the denial of his second motion to reopen his petition for post-conviction relief.  Following our review, we dismiss the appeal for lack of jurisdiction because the Petitioner failed to comply with the statutory requirements governing an appeal from the denial of a motion to reopen post-conviction proceedings.    

Defendant, Roy Allen Carey, was convicted of hindering a secured creditor. He received an alternative sentence of two years’ probation after serving ten days in incarceration. On appeal, he argues that (1) the evidence was insufficient to support his conviction; (2) the amended indictment was void; (3) the bill of particulars was insufficient; (4) the trial court committed error by not providing the requested jury instructions; and (5) the lack of notice as to the prohibited conduct violated his due process rights. After review, we find that the evidence was insufficient to support a conviction for hindering a secured creditor and that the trial court erred by not providing a jury instruction on the creation of a security interest. The judgment of the trial court is reversed and vacated.

The Defendant, Anthony Dowlen, appeals the Rutherford County Circuit Court’s order revoking his community corrections sentence for his convictions for robbery, possession of a weapon, and evading arrest, and ordering him to serve the remainder of his effective twenty-five-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his community corrections sentence. We affirm the judgments of the trial court.

The Defendant, Kendall J. Summers, appeals from the Giles County Circuit Court’s revocation of his probation for his convictions for possession with the intent to sell 0.5 gram or more of methamphetamine, initiation of the process to manufacture methamphetamine, and felony possession of drug paraphernalia and its order that he serve the remainder of his effective eight-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

The Petitioner, Joey Godwin, appeals the Trousdale County Circuit Court’s denial of his petition for habeas corpus relief from his 2007 convictions for three counts of possession with the intent to sell 0.5 gram or more of cocaine and his effective ten-year sentence. The Petitioner contends that the habeas corpus court erred by summarily denying relief because his concurrent sentences were in direct contravention of Tennessee Code Annotated section 40-20-111(b) (2014). We affirm the judgment of the habeas corpus court.

The defendant, Comer Thomas Vance, appeals his Bedford County Circuit Court jury conviction of felony theft, claiming that the evidence was insufficient to support his conviction and that the prosecutor’s closing argument was improper. Discerning no error, we affirm.

Defendant, Jimmy Newell, appeals from the trial court’s denial of his motion to withdraw his guilty pleas in multiple cases. Petitioner entered guilty pleas in several cases at a single hearing as part of a “global plea deal” and received a total effective sentence of four years’ incarceration. Defendant filed a pro se motion to withdraw his pleas. Counsel was appointed to represent him. Following an evidentiary hearing, the trial court denied Defendant’s motion. Defendant appeals the trial court’s ruling, asserting that his pleas were entered unknowingly and involuntarily and that his trial counsel provided ineffective assistance. Having reviewed the entire record and the briefs of the parties, we affirm the judgment of the trial court.

The Defendant, Lawrence A. Gray, entered a guilty plea to three counts of aggravated robbery and two counts of attempted aggravated robbery with the trial court to determine sentencing. After a sentencing hearing, the trial court imposed an effective sentence of twelve years. On appeal, the Defendant asserts that the trial court improperly imposed a twelve-year sentence. We affirm the trial court’s judgments.

After three trials, the Petitioner was convicted of attempted aggravated robbery and felony first degree murder, and the trial court sentenced him to life in prison. The Petitioner appealed his convictions, filed a petition for post-conviction relief, and filed multiple petitions for writs of habeas corpus relief. No relief was granted. In 2015, the Petitioner filed a petition for a writ of error coram nobis, alleging an anonymous informant’s statement was newly discovered evidence. The Petitioner conceded that his petition was untimely but asked the coram nobis court to toll the statute of limitations because, he asserted, the State withheld the statement. The coram nobis court declined to toll the statute of limitations, and it dismissed the petition as time-barred. We affirm the coram nobis court’s judgment.

Petitioner, Donnell V. Booker, appeals the denial of his second petition for habeas corpus relief in which he argues that his guilty plea to an “out of range” sentence was illegal. Because Petitioner’s claim has been previously determined and he fails to state a cognizable claim, we affirm the judgment of the trial court.

Petitioner, Christopher M. Heath, was convicted of driving under the influence (“DUI”), fifth offense, and second offense driving on a cancelled, suspended, or revoked driver’s license. He received an effective sentence of fifteen months. There was no direct appeal. Petitioner sought post-conviction relief. After a hearing at which Petitioner did not appear and did not present any proof, the post-conviction court dismissed the petition. Petitioner appeals from the denial of post-conviction relief. After a review, we affirm the judgment of the post-conviction court.

The Defendant, Bart Leo Tucker, was convicted by a Williamson County jury of one count of issuing a worthless check. See T.C.A. § 39-14-121. On appeal, the Defendant challenges the sufficiency of the evidence and contends that the trial court erred by denying his motion for judgment of acquittal. Following our review, we reverse the judgment of the trial court.

Because I believe the appellate record is incomplete for our review, I respectfully dissent. While I am certainly a proponent of records containing only what is essential for a meaningful review on appeal, when an appellant raises the issue of sufficiency of the evidence, as is the case here, all of the evidence presented at trial is needed. Here, Defendant has picked and chosen parts of only one of the State’s witnesses for inclusion in the record, leaving us to speculate whether other evidence or witness testimony may have fulfilled the State’s burden. Thus, the record does not convey a fair, accurate, and complete account of what transpired with respect to the issue of sufficiency of evidence. The record is not in keeping with Tennessee Rule of Appellate Procedure 24(b). I would grant Defendant’s “(Conditional) Motion To Supplement The Record” and then proceed with an unabridged record.

The Petitioner, Kenneth Kirkwood, appeals the dismissal of his petition for post-conviction relief, arguing that the post-conviction court erred in denying him a full hearing and concluding that he waived all his ineffective assistance of counsel claims by raising an allegation of ineffective assistance of counsel in his motion for new trial and on direct appeal. Following our review, we affirm the dismissal of the petition on the basis that the Petitioner has already been afforded an opportunity to litigate his ineffective assistance of counsel claim.