APPELLATE COURT OPINIONS

Defendant, Eugene Bernard Cuddy, III, was indicted in a three-count indictment by the Sullivan County Grand Jury for possession of Oxycodone, a Schedule II controlled substance, with intent to sell or deliver, possession of drug paraphernalia, and possession of Alprazolam, a Schedule IV controlled substance, with intent to sell or deliver. Defendant filed a motion to suppress evidence seized during a search of Defendant's person. Following a hearing, the trial court denied Defendant's motion to suppress. Defendant was convicted as charged. The trial court sentenced Defendant to an effective sentence of seven years' incarceration. In this appeal as of right, Defendant contends that: 1) the trial court erred by denying Defendant's motion to suppress; 2) the evidence is insufficient to sustain his convictions; 3) the trial court erred by instructing the jury that it could infer Defendant's intent from the amount of controlled substances Defendant possessed; and 4) the trial court abused its discretion in sentencing Defendant. Having reviewed the entire record and the briefs of the parties, we find no error. Accordingly, the judgments of the trial court are affirmed.

Petitioner, Antonio Lamont Scales, was convicted in Davidson County Criminal Court for the offenses of attempted second degree murder of one victim and reckless aggravated assault of another victim.  His co-defendant at trial was convicted of the same offenses.  On appeal, Petitioner challenged the sufficiency of the evidence to sustain the convictions, the trial court’s failure to provide the “missing witness” instruction to the jury, and the sentences imposed by the trial court.  The convictions were affirmed, but the sentences were vacated and the case was remanded for resentencing.  See State v. Timothy Washington Lyons and Antonio Lamont Scales, No. M2009-02524-CCA-R3-CD, 2011 WL 300141, at *1 (Tenn. Crim. App. Jan. 18, 2011).  After resentencing, no further appeal was instituted by Petitioner.  His effective sentence after remand was twenty years, down from twenty-two years originally imposed by the trial court.  Petitioner subsequently filed a petition for post-conviction relief which was dismissed after an evidentiary hearing.  This appeal followed.  After a thorough review, we affirm the judgment of the post-conviction court.

Defendant, Randall T. Beaty, was indicted for first degree felony murder and aggravated child abuse.  After a jury trial, he was convicted of reckless homicide and aggravated assault, which were charged to the jury as lesser-included offenses.  He received consecutive sentences of four years for reckless homicide and six years for aggravated assault, for an effective ten-year sentence to be served in the Department of Correction.  On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by allowing Detective Bachman to testify in violation of the rule of sequestration; (3) that the trial court erred by excluding a proffer by Amber Peveler; (4) that the trial court erred in failing to merge his convictions on double jeopardy grounds; and (5) that the trial court erred by ordering consecutive sentencing.  As to the alleged violation of the rule of sequestration, we hold, pursuant to State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010), that the State had the rightunder Tennessee Rule of Evidence 615 to designate an investigating officer as exempt from sequestration and the designated investigating officer can remain in the courtroom during the testimony of other witnesses.  We further conclude that, because the jury was instructed that both knowing or intentional aggravated assault and reckless aggravated assault were lesser-included offenses of aggravated child abuse, but the verdict form listed only aggravated assault without specifying the mens rea with which Defendant acted, Defendant’s conviction for aggravated assault must be reversed and the case remanded for a new trial on the offense of knowing aggravated assault.  After a thorough review of the record, we determine that there was no error as to Defendant’s remaining issues and affirm the conviction for reckless homicide and the judgment in all other respects.

The defendant, Kenneth Leigh McPeak, appeals the revocation of the probationary sentence imposed for his Rutherford County Circuit Court convictions of attempted rape.  Discerning no error, we affirm.

John Daniel Simmons (“the Defendant”) was indicted with two counts of sexual battery by an authority figure after he was alleged to have engaged in illegal sexual touching of K.L. Following a jury trial, the Defendant was convicted as charged.  On appeal, the Defendant argues that (1) the trial court erred when it permitted the State to call Daniel Burnell and Tony Pham as witnesses because the State did not give sufficient notice of its intent to call them as witnesses; (2) the trial court erred when it permitted David Estes to testify about hearsay statements made by Dewanna Williams; and (3) the evidence was insufficient to support his convictions.  Upon review of the record and applicable law, we conclude that the trial court committed reversible error when it permitted Mr. Pham to testify after allowing the Defendant only a few minutes in the middle of trial to speak with him.  Additionally, we conclude that the trial court committed reversible error when it admitted hearsay within hearsay during Mr. Estes’s testimony.  We reverse the judgments of the trial court and remand the case for a new trial. 

Petitioner, Khalfani Marion, was convicted of four counts of aggravated robbery, a Class B felony, and one count of especially aggravated kidnapping, a Class A felony. After merger of the four counts of aggravated robbery into two counts of aggravated robbery, the trial court imposed consecutive sentences of twenty years for the especially aggravated kidnapping conviction and nine years for each aggravated robbery conviction. Following petitioner's unsuccessful direct appeal, he filed a petition for post-conviction relief. The post-conviction court held an evidentiary hearing and denied relief. Appealing therefrom, petitioner raises eight instances of ineffective assistance of counsel: (1) whether trial counsel reasonably investigated petitioner's case; (2) whether trial counsel erred in failing to file a motion to sever petitioner's case from his codefendants; (3) whether trial counsel erred by failing to have petitioner sentenced under the 1989 Sentencing Act as written prior to the 2005 amendments; (4) whether trial counsel failed to object to the trial court's decision not to instruct the jury on facilitation; (5) whether trial counsel erred by failing to introduce evidence of petitioner's mental health history; (6) whether trial counsel failed to advise petitioner of the State's plea offer and sentence exposure; (7) whether trial counsel failed to impeach the State's witnesses on their identification of petitioner; and (8) whether trial counsel erred in failing to present mitigating evidence at the sentencing hearing. Following our review, we affirm the judgment of the post-conviction court.

Appellant, Derron Guy, pleaded guilty to two counts of carjacking, one count of aggravated robbery, two counts of employing a firearm during the commission of a dangerous felony, one count of attempted carjacking, and one count of possession of a firearm with the intent to go armed during the attempt to commit a felony. Pursuant to the terms of his guilty plea, he received an effective sentence of 22.2 years in confinement. In this motion to correct an illegal sentence, filed pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, he argues that: (1) his effective sentence extends beyond that permitted by statute; (2) his plea improperly “coupled” different offender ranges within the same proceeding; and (3) the trial court's failure to sever the offenses rendered his sentence illegal. The trial court summarily dismissed the motion for appellant's failure to state a colorable claim. We affirm the judgment of the trial court.

A Davidson County jury found the Petitioner, James Arthur Johnson, guilty of two counts of first degree felony murder and one count of aggravated robbery.  The trial court sentenced the Petitioner to a total effective sentence of life plus eleven years in the Tennessee Department of Correction.  On appeal, this Court affirmed the Petitioner’s convictions and sentence.  State v. James Arthur Johnson, No. M2009-01147-CCA-R3-CD, 2010 WL 3323796, at *1 (Tenn. Crim. App., at Nashville, Aug. 24, 2010), perm. app. denied (Tenn. August 24, 2010).  The Petitioner filed a petition seeking post-conviction relief based upon his allegation that he received the ineffective assistance of counsel at trial.  The post-conviction court denied the petition after a hearing.  On appeal, after a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

Petitioner, James Anthony Burgess, appeals the denial of his petition for writ of error coram nobis.  Because Petitioner has not identified any newly discovered evidence, we affirm the decision of the coram nobis court.

The Defendant, Kendra Mahan, appeals as of right from the White County Criminal Court’s revocation of her six-year probationary sentence and order of total  incarceration relative to her guilty-pleaded convictions for attempted introduction of contraband into a penal institution, aggravated burglary, and theft of property valued over $500.00 but less than $1,000.00.  The Defendant contends that she was not afforded due process because the trial court failed to make sufficient findings of fact.  The Defendant also submits that the evidence presented at the revocation hearing was insufficient to establish that a violation of the conditions of her probation—either failure to pay court costs and restitution or a failed drug test—occurred.  Following our review, we affirm the trial court’s revocation of the Defendant’s probationary sentence, but we remand for entry of an amended revocation order reflecting credit for time served and for correction of the “original sentence length.”

The Petitioner, Rodney Patterson, appeals as of right from the Davidson County Criminal Court’s dismissal of his petition for post-conviction relief.  The Petitioner contends that he received ineffective assistance from his trial counsel because (1) trial counsel failed to inform him that his conviction for vandalism of property valued at more than $500 but less than $1,000 was a felony rather than a misdemeanor; and (2) trial counsel failed to inform him that his sentence was to be served consecutively to his sentence for another offense.  Discerning no error, we affirm the judgment of the post-conviction court.

Defendant, Gilberto Canales, Jr., was indicted for one count of aggravated rape. After a jury trial, Defendant was convicted of the lesser-included offense of rape. On appeal, Defendant argues that the evidence is insufficient to support his conviction, that the trial court erred by admitting hearsay evidence, and that the prosecutor committed prosecutorial misconduct by making misleading statements and arguing improperly admitted evidence during closing argument. After a thorough review, we affirm the judgment of the trial court.

The petitioner, Frederick Greene, was convicted of first degree (premeditated) murder and received a sentence of life imprisonment. The petitioner appeals the denial of his petition for post-conviction relief. On appeal, he contends that he received ineffective assistance of counsel. Following our review, we affirm the judgment of the post-conviction court.

The petitioner, Antonio Byrd, appeals from the Shelby County Criminal Court’s denial of his motion to reopen his 1999 petition for post-conviction relief. Because the petitioner failed to comply with the statutory requirements for appealing the denial of a motion to reopen a post-conviction petition, we are without jurisdiction to hear the appeal, and the appeal is dismissed.

The Defendant-Appellant, David Jerome Powell, entered an open guilty plea to theft of property valued at more than $500 but less than $1000, driving on a cancelled, suspended or revoked license, and driving on a cancelled, suspended or revoked license, third offense, with the trial court to determine the length and manner of service of his sentence. See T.C.A. §§ 39-14-103, 55-50-504. Prior to the sentencing hearing, Powell filed a motion to withdraw his guilty plea, alleging that he had a constitutional right to a jury trial. The trial court denied the motion, finding no “just and fair reason to allow him to withdraw the plea.” At the sentencing hearing a few days later, the trial court merged the conviction for driving on a cancelled, suspended or revoked license with the conviction for driving on a cancelled, suspended or revoked license, third offense. The court then sentenced Powell to consecutive sentences of six years with a release eligibility of sixty percent for the conviction for theft and eleven months and twenty-nine days for the conviction for driving on a revoked license, third offense, and ordered these sentences served consecutively to sentences Powell had received for three other convictions in other courts. Thereafter, Powell appealed the trial court's denial of his motion to withdraw his guilty plea. Upon review, we affirm the judgment of the trial court.

The petitioner, Jonathan Davis, appeals the summary dismissal of his second petition for writ of habeas corpus, which petition challenged his Maury County Circuit Court jury conviction of attempted aggravated robbery. Discerning no error, we affirm.

Aggrieved of his Davidson County Criminal Court jury convictions of two counts of aggravated assault, the defendant, Brandon D. Forbes, appeals, challenging the admission of his prior conviction of aggravated robbery for impeachment purposes, the admission of certain testimony from a State’s witness, and the sufficiency of the convicting evidence.  Discerning no error, we affirm.

The Petitioner, Brandon S. Massengill, appeals the Claiborne County Criminal Court’s dismissal of his petition for post-conviction relief from his conviction for resisting arrest or stop and his six-month suspended sentence. The Petitioner contends that the post-conviction court erred by dismissing his petition on the ground that he was not in custody for purposes of the Post-Conviction Procedure Act. We reverse the judgment of the post-conviction court and remand the case for an evidentiary hearing on the merits of the petition.

The defendant, Andrew Brian Santora, appeals the trial court’s revocation of his probation. He argues that the evidence is insufficient to support the revocation and that the trial court should have imposed an alternative sentence. Following our review, we affirm the judgment of the trial court.

Defendant, Austin Wells, appeals his conviction for driving under the influence (“DUI”) and reckless driving, arguing that his warrantless arrest for the offenses was not supported by probable cause and that there is insufficient evidence to support his convictions. We conclude that Defendant has waived both of these issues and that he is not entitled to plain error relief. Accordingly, the judgments of the trial court are affirmed.

The Petitioner, Tracy Eugene Harris, appeals from the Hamilton County Criminal Court's order denying his motion for pretrial jail credit pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. On appeal, the Petitioner argues that the trial court erred by overruling his motion for pretrial jail credit. The State responds that the Petitioner's argument is waived for failure to file a timely notice of appeal and that the trial court properly denied the Petitioner's motion. Following our review, we affirm the judgment of the trial court.

The Defendant-Appellants, Tapo T. Tabb and Douglas Ingram, were convicted by a Williamson County jury of burglary and theft of property valued over $60,000.  The trial court sentenced the Defendants to 12 years’ confinement for their burglary convictions and 25 years’ confinement for their theft of property convictions, to be served consecutively for effective sentences of 37 years’ confinement.  On appeal, the Defendants argue that the trial court erred by (1) denying their motion to suppress evidence obtained pursuant to search warrants; (2) failing to instruct the jury on facilitation as a lesser-included offense of burglary; and (3) sentencing the Defendants to 37 years’ confinement.  In addition, Defendant Ingram argues that his right to a speedy trial was violated.  Upon our review, we affirm the judgments of the trial court.

The Petitioner, James Drew Freeman, appeals from the denial of post-conviction relief by the Criminal Court for White County.  He was convicted of second degree murder of his mother and sentenced to seventeen years’ imprisonment.  On appeal, the Petitioner argues that he received ineffective assistance of counsel because trial counsel failed to locate and call a witness.  Upon review, we affirm the judgment of the post-conviction court.

The defendant, Jonathan T. Deal, appeals the dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct his illegal sentence. In this appeal, the defendant asserts that the trial court erred by declaring his motion moot because his sentence had been served and had expired and that the court erred by concluding that the illegal sentence alignment was not a bargained-for element of his plea agreement. Because, under the circumstances of this case, Rule 36.1 cannot avail the defendant of meaningful relief, we affirm the judgment of the trial court declaring the motion moot.

The Petitioner, Travis Davison, appeals the trial court’s denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. The State has filed a motion requesting that this court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.