APPELLATE COURT OPINIONS

Petitioner, Mathis L. Vaughn, was convicted in 1993 of first degree murder during the perpetration of a robbery.  His conviction was affirmed on appeal.  See State v. Mathis T. Vaughn, No. 01C01-0312-CR-00425, 1994 WL 256993, at *1 (Tenn., June 9, 1994).  Subsequently, Petitioner unsuccessfully sought post-conviction relief on the basis of ineffective assistance of counsel.  See Mathis T. Vaughn v. State, No. M2007-00755-CCA-R3-PC, 2001 WL 303034, at *1 (Tenn. Crim. App., at Nashville, Mar. 29, 2001), perm. app. denied, (Tenn. Sept. 17, 2001).  Petitioner first sought habeas corpus relief in 2006; it was denied.  See Mathis T. Vaughn v. James Worthington, Warden, No. E2007-00808-CCA-R3-HC, 2008 WL 58956, at *1 (Tenn. Crim. App., at Knoxville, Jan. 4, 2008).  Petitioner again seeks habeas relief, arguing that his judgment is void because it lists his conviction offense as first degree murder when the jury actually convicted him of first degree felony murder.  The habeas corpus court dismissed the petition.  Petitioner appeals.  After a review, we determine that the habeas corpur court properly dismissed the petition where Petitioner failed to establish that the judgment was void or that his sentence had expired.  Consequently, the judgment of the habeas corpus court is affirmed.

Appellant, John Nolan Sunde, was indicted by the Williamson County Grand Jury for aggravated assault and domestic assault.  After a jury trial, Appellant was convicted of both charges.  The trial court merged the convictions into a single conviction for aggravated assault and sentenced Appellant to three years in incarceration.  The trial court suspended the sentence “on time served” and ordered Appellant to attend an anger management class and ordered him to have no contact with the victim.  Appellant’s motion for new trial was denied, and he initiated this appeal.  On appeal, he argues: (1) that the evidence was insufficient to support his conviction because the State failed to prove serious bodily injury; (2) the trial court erred in admitting multiple photographs of the victim; and (3) the trial court erred in sentencing Appellant to anger management class.  After a review of the record, we conclude that the evidence is sufficient to support the jury’s finding that the victim suffered serious bodily injury to sustain the conviction for aggravated assault; the trial court did not abuse its discretion in admitting photographs of the victim’s injuries at trial; and the trial court properly ordered anger management classes as a condition of probation.  Accordingly, the judgment of the trial court is affirmed.

In case number 6994, the Defendant, Daniel Antonio Payne, who was on bond pending the resolution of his charges, pled guilty to one count of driving while license suspended, one count of felony evading arrest, and two counts of theft over $1000.00. The trial court sentenced the Defendant to concurrent sentences of ten years for each of the theft convictions, six years for the felony evading arrest conviction, and six months for the driving while license suspended conviction. At the conclusion of the sentencing hearing, the trial court revoked the Defendant’s bond in case number 6994. As the Defendant was being taken into custody, he was found in possession of marijuana, which resulted in the charges in case number 7515. Subsequently, in case number 7515, the Defendant pled guilty to felony possession of marijuana. The trial court sentenced the Defendant to six years, to be served concurrently with his sentence in case number 6994. On appeal, the State contends that the trial court erred in not imposing mandatory consecutive sentences for case numbers 6994 and 7515. After a thorough review of the record and applicable authorities, we conclude that consecutive sentencing was mandatory. We reverse the trial court’s judgment in case number 7515 and remand for sentencing consistent with this opinion.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.  The Petitioner, Michael Ricardo Martin, appeals the trial court’s dismissal of his petition for habeas corpus.  On appeal, the Petitioner contends that his petition was erroneously transferred to the Criminal Court for Davidson County without a judgment entered, and, thus, the Petitioner was deprived of his right to object to the transfer.  Upon a review of the record, we agree that the lower court was correct that the Petitioner is not entitled to relief.  This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.  Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

Petitioner, Jeremie Alan Thomas, appeals from the dismissal of his petition for post-conviction relief after an evidentiary hearing.  Petitioner sought relief from his convictions for two counts of especially aggravated kidnapping, one count of especially aggravated robbery, and one count of aggravated robbery.  Petitioner pled guilty to these charges as a result of a negotiated plea agreement, and he received all concurrent sentencing with an effective sentence of 20 years of incarceration.  On appeal Petitioner asserts that his guilty pleas were not knowingly and voluntarily entered due to ineffective assistance of trial counsel.  After a thorough review of the briefs and the record, we affirm the judgment of the trial court.

Petitioner’s third habeas corpus petition attacking his conviction for first degree murder, with a sentence of life without parole, was dismissed by the trial court without an evidentiary hearing.  Petitioner argues on appeal that he is entitled to relief because (1) the trial court failed to require the State to make an appropriate election of offenses; (2) the indictment was erroneously amended; (3) Petitioner was never given notice of the offense he was charged with; and (4) a final ground that can only be accurately described by a direct quote from Petitioner’s brief: “whether the unanimity of the verdict was decided upon imparcially [sic] due to multiple offenses that have never been recognized by the Grand Jury that has always been a Constitutional right of any citizen born in the United States that have alleged to have committed an offense.”  We affirm the judgment of the trial court pursuant to Rule of the Tennessee Court of Criminal Appeal 20.

The Petitioner, James R. Lening, appeals the Circuit Court for Lauderdale County’s denial of his pro se petition for writ of habeas corpus. 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.

Appellant, Patrick Stanton, was convicted of one count of aggravated burglary, a Class C felony, and one count of theft of property valued at $500 or less, a Class A misdemeanor. The trial court sentenced appellant as a Range III, persistent offender to fifteen years for his felony conviction and eleven months and twenty-nine days for his misdemeanor conviction. On appeal, appellant argues that the evidence at trial was insufficient to prove that he had the requisite intent to commit a theft prior to entering a habitation or that he actually committed a theft. Following our review of the parties’ briefs, the record, and the applicable law, we affirm appellant’s convictions.

A Shelby County jury convicted the Defendant, Curtis Moore, of attempted second degree murder, employing a firearm during the commission of a dangerous felony, and aggravated assault. The trial court merged the aggravated assault conviction with the attempted second degree murder conviction and ordered the Defendant to serve an effective sentence of fourteen years. On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction for attempted second degree murder and that the trial court erred when it found him statutorily ineligible for probation. After a thorough review of the record and applicable authorities, we conclude that the evidence is sufficient to sustain the Defendant’s conviction. We further conclude, and the State concedes, that the trial court erred when it found the Defendant statutorily ineligible for probation. As such, we reverse the case for the trial court to consider the Defendant’s suitability for probation on the eight-year sentence for attempted second degree murder.

The Defendant, Levester Taylor, was convicted by a Davidson County jury for multiple counts of aggravated sexual battery and rape of a child.  The trial court imposed a sentence of 10 years at 100% for each aggravated sexual battery and 20 years at 100% for each rape of a child, and ordered the sentences to run consecutively for an effective sentence of 200 years in the Department of Correction.  On appeal, the Defendant argues that the evidence is insufficient to sustain his convictions and that the trial court erred imposing an effective sentence of 200 years.  Upon review, the Defendant’s judgments of conviction are affirmed, the sentences imposed by the trial court are vacated, and the case is remanded for a resentencing hearing, following the Defendant’s election to proceed under the pre-2005 sentencing act or the amended sentencing act accompanied by the Defendant’s written waiver of his ex post facto protections. 
 

A Davidson County Jury convicted Appellant, Kevin Lamont Church, of kidnapping and simple assault.  The trial court sentenced him to twelve years as a Range III, persistent offender.  The judgments were entered January 6, 2010.  A motion for new trial was never filed.  On July 6, 2011, Appellant filed a post-conviction petition requesting a delayed appeal.  The trial court granted the request on October 7, 2011, and Appellant filed a motion for new trial on November 8, 2011.  At the hearing on the motion for new trial, the State conceded that the simple assault conviction should be merged into the kidnapping conviction.  The trial court agreed and dismissed count two for assault.  The trial court denied the remaining arguments included in the motion on October 10, 2012.  Appellant subsequently filed a notice of appeal on November 13, 2012.  On appeal, Appellant argues that the evidence was insufficient to support his conviction for kidnapping.  The State argues that Appellant did not file a timely notice of appeal, and this Court should dismiss the appeal.  Although we agree with the State that the notice of appeal is untimely, we have decided to waive the timely notice of appeal in the interest of justice and address Appellant’s claim that the evidence was insufficient to support his conviction of kidnapping on the merits.  We have thoroughly reviewed the record on appeal and conclude that the evidence was sufficient to support Appellant’s conviction.
 

This case is before this court on a delayed appeal of appellant’s 2004 convictions for second degree murder and arson. Appellant received an effective sentence of twenty-four years. Appellant now argues that the trial court erred by (1) allowing a witness to testify about appellant’s propensity for violence during the State’s case-in-chief; (2) allowing the testimony of a witness when appellant did not have notice of her testimony until two days before the trial; (3) incorrectly instructing the jury on self-defense; and (4) ruling that a defense witness’s testimony was irrelevant. Following our review, we affirm the judgments of the trial court.

Appellant, Brandon L. Brawner, pleaded guilty to one count of vandalism of property valued at $10,000 or more and received a six-year sentence, to be served in a community-based alternative to incarceration (community corrections). A violation of probation warrant was subsequently filed, alleging that appellant perpetrated a domestic aggravated assault, aggravated assault, and vandalism of $1,000 or more while using a knife and that appellant owed $9,438.50 in fines, costs, and restitution. The trial court revoked his probation, and this appeal follows. Appellant now alleges that the trial court abused its discretion by ordering him to serve the remainder of his sentence in the Tennessee Department of Correction. After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

The Defendant, Aivar Lang, pled guilty to one count of possession of drug paraphernalia, a Class A misdemeanor, and agreed to allow the trial court to determine his sentence.  After a sentencing hearing, the trial court sentenced him to eleven months and twenty-nine days in the county jail.  On appeal, the Defendant contends that his sentence is excessive.  After a thorough review of the record and applicable authorities, we conclude that no error exists in the sentence imposed by the trial court, but a corrected judgment form is required.  Therefore, the sentence is affirmed, and we remand the case for correction of a clerical error in the judgment.
 

The pro se petitioner, Daniel Lee Draper, appeals the summary dismissal of his petition for writ of habeas corpus. He argues that the trial court did not have jurisdiction to sentence him to life with the possibility of parole, that the habeas court erred in summarily dismissing his petition without a hearing, and that the habeas court erred in failing to treat his habeas petition as a post-conviction petition. After review, we affirm the summary dismissal of the petition.

The defendant, Jeffrey Walton, was convicted by a Shelby County Criminal Court jury of vandalism over $10,000, a Class C felony, and burglary of a building, a Class D felony, for which he received sentences of fifteen years as a persistent offender and twelve years as a career offender, to be served consecutively, in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

The defendant, Thomas Bolton, appeals his Shelby County Criminal Court jury convictions of vandalism, theft of property, and violations of the Solid Waste Disposal Act, challenging the sufficiency of the convicting evidence and the propriety of certain jury instructions. We affirm the convictions and sentences but remand for correction of clerical errors in the judgments.

The Defendant, Wesley M. Gifford, Jr., was convicted by a jury of attempted aggravated burglary, telephone harassment, and indecent exposure.  Following a sentencing hearing, the trial court imposed concurrent terms of three years and six months for the attempted aggravated burglary conviction and eleven months and twenty-nine days for the telephone harassment conviction.  This effective sentence was also to run consecutively to his prior sentences.  In this direct appeal, the Defendant contends that: (1) the trial court erred in failing to grant a mistrial when a witness testified that the Defendant previously had been in jail; (2) the trial court erred in allowing admission of evidence of the Defendant’s prior bad act; (3) the trial court erred in not instructing the jury on the issue of alibi; (4) the evidence was insufficient to support his convictions; and (5) cumulative errors entitle him to a new trial.  After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

I concur in the results reached in the majority opinion.  Indeed, I join in the majority opinion on all but one issue.  I write separately to address the issue of the trial court’s admission of the prior bad act of the Defendant’s exposing himself to Pamela through the back window of a truck “a few days earlier.”  The majority holds that it was error, albeit harmless, for the trial court to admit this evidence under Rule 404(b) of the Rules of Evidence.  The majority concludes that this evidence was only marginally relevant, and, therefore, the risk of unfair prejudice to the Defendant outweighed the relevance of the evidence.  The majority emphasizes that the Defendant also was on trial for indecent exposure.

The pro se petitioner, Terry V. Johnson, appeals as of right from the Johnson County Circuit Court’s order denying his petition for writ of habeas corpus alleging that his 2005 conviction for sale of less than .5 grams of cocaine is void because the trial court failed to award pretrial jail credit. The State has filed a motion to affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.

Petitioner, Anthony Clinton, was convicted by a Shelby County jury of robbery, a Class C felony, and was sentenced as a career offender to fifteen years in the Tennessee Department of Correction. Following an unsuccessful direct appeal, he filed the instant petition for post-conviction relief. The post-conviction court held an evidentiary hearing and denied relief. Appealing from the post-conviction court’s order, petitioner pursues the following claims of ineffective assistance of counsel: (a) failure to file a motion to suppress his identification; (b) failure to file a motion to suppress the evidence seized during the search of his person; and (c) failure to obtain copies of the store surveillance tapes and the 9-1-1 recordings. Following our review, we affirm the judgment of the post-conviction court.

Appellant, Tawana Jones, was convicted by a Shelby County jury of rape and abuse of an adult. See Tenn. Code Ann. §§ 39-13-502(a)(3), 71-6-117. The trial court sentenced appellant to twelve years and two years, respectively, to be served consecutively. On appeal, appellant challenges: (1) the sufficiency of the evidence supporting her rape conviction regarding whether the victim was mentally defective and, if so, whether appellant knew the victim was mentally defective; (2) the sufficiency of the evidence supporting appellant’s abuse of an adult conviction; (3) the trial court’s use of specific enhancement factors during sentencing; and (4) the trial court’s imposition of consecutive sentences. Following our review of the parties’ arguments, the record, and the applicable law, we affirm appellant’s rape conviction and, as the State concedes must be done, reverse and remand appellant’s abuse of an adult conviction for proceedings consistent with this opinion.

The Defendant, Teresa Turner, pled guilty to reckless homicide, a Class D felony.  The trial court sentenced the Defendant as a standard offender to three years with six months of the sentence to be served in confinement and the remainder of the sentence on supervised probation.  The Defendant appeals, claiming that the trial court abused its discretion when it: (1) denied judicial diversion; (2) misapplied enhancement factors; and (3) ordered a sentence involving split confinement.  After a thorough review of the record and applicable law, we reverse the judgment of the trial court.

A Maury County jury convicted the Defendant, Brian Marshall Keys, of one count of selling 0.5 grams or more of cocaine within 1,000 feet of a school and two counts of selling less than 0.5 grams of cocaine within 1,000 feet of a school.  The trial court ordered the Defendant to serve an effective sentence of fifteen years.  On appeal, the Defendant asserts that the trial court erred when it denied his constitutional challenge to the Drug-Free School Zone Act and that the evidence is insufficient to support his convictions.  After a thorough review of the record and relevant authorities, we affirm the trial court’s judgments.

The appellant, Edward Fayte Webster, IV, pled guilty in the Marshall County Circuit Court to nine counts of burglary, seven counts of felony vandalism, ten counts of misdemeanor vandalism, and eight counts of misdemeanor theft.  Pursuant to the plea agreement, the trial court was to determine the length and manner of service of the sentences.  After a sentencing hearing, the appellant received an effective four-year sentence to be served in confinement.  On appeal, the appellant contends that the trial court abused its discretion by denying his request for alternative sentencing.  Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.