APPELLATE COURT OPINIONS

Petitioner, David Easton Jones, appeals from the trial court’s dismissal of his post-conviction petition.  After review of the entire record we affirm the judgment of the trial court.

Appellant, Courtney Wesley, was convicted of aggravated burglary, a Class C felony, and theft of property valued at $1,000 or more but less than $10,000, a Class D felony. The trial court imposed concurrent sentences of ten years and four years, respectively. Appellant now challenges the sufficiency of the convicting evidence. After careful review, we affirm the judgments of the trial court.

The pro se petitioner, Roger Brent Banks, appeals the summary dismissal of his petition for writ of habeas corpus, arguing that the trial court lacked jurisdiction to sentence him as a child sexual predator and that he therefore should be allowed to withdraw his guilty pleas to aggravated sexual battery. The State acknowledges that the petitioner is entitled to habeas corpus relief because he was erroneously sentenced as a child predator but argues that the appropriate remedy is the entry of corrected judgments to reflect that the petitioner is to serve his three sentences for aggravated sexual battery at 100% as a violent offender, rather than as a child predator. We agree with the State. Accordingly, we reverse the judgment of the habeas court and remand for entry of corrected judgments to reflect the petitioner’s correct sentencing status.

The defendant, Daniel Clarke Doyle, pled guilty to statutory rape, a Class E felony, in the Carroll County Circuit Court and was sentenced to one year and six months in the county jail, suspended to supervised probation upon serving eighteen days. On appeal, he challenges the trial court’s imposition of a sentence of split confinement instead of a grant of judicial diversion or full probation. After review, we affirm the judgment of the trial court.

Defendant, Frederick Herron, was indicted by the Shelby County Grand Jury for one count of rape of a child. Following a jury trial, Defendant was convicted as charged and sentenced by the trial court to serve 25 years at 100%. Defendant appeals his conviction and asserts that: 1) the trial court abused its discretion by allowing the State to admit into evidence a video recording of the victim’s forensic interview; 2) the trial court abused its discretion by ruling that the State could ask Defendant about prior arrests and an unnamed prior felony conviction if Defendant chose to testify; 3) the State failed to ensure a unanimous verdict by electing an offense that occurred on an unspecified date, and the evidence was insufficient to support a conviction for the offense; 4) the trial court should have granted a mistrial after a State’s witness testified about Defendant’s alleged prior DUI conviction; 5) the trial court abused its discretion by excluding a letter written by the victim to her sister; and 6) the cumulative effect of the trial court’s errors deprived Defendant of a fair trial. Having carefully reviewed the parties’ briefs and the record before us, we affirm the judgment of the trial court.

As the majority says, this appeal presents a close case. After much consideration, I respectfully conclude that one error requires a reversal and a new trial.

The Petitioner, Jason McCallum, appeals the Dyer County Circuit Court’s denial of his petition for post-conviction relief from his 2010 conviction for sale of one-half gram or more of methamphetamine in a drug-free school zone and his eighteen-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

The appellant, Stanley Jason Daniels, pled guilty to sexual contact with an inmate and was sentenced as a Range I, standard offender to one year to be served on probation. On appeal, the appellant contends that the trial court erred by denying his request for judicial diversion. Based upon the oral arguments, the record, and the parties’ briefs, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

In keeping with the directions provided in State v. James Allen Pollard, No. M2011-00332-SC-R11-CD, 2013 Tenn. LEXIS 1011 (Tenn. Dec. 20, 2013), the majority takes a reasonable (and what I feel may be the preferred) action suggested by the Tennessee Supreme Court and elects to simply remand this case due to the trial court’s failure to discuss some of the seven legally-relevant factors (listed in State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998)) during its sentencing soliloquy. Like the majority, I too believe that trial courts should endeavor to address each and every criterion discussed in Electroplating during their judicial diversion decisions, and I urge them to do so in order to avoid having their cases remanded. In this case, however, I would address the trial court’s omission by simply choosing the other option provided by our supreme court in Pollard: “conduct[ing] a de novo review to determine whether there is an adequate basis” for the trial court’s decision. See Pollard, 2013 Tenn. LEXIS 1011, at *32.

A jury convicted Omar Biviano (“the Defendant”) of one count of aggravated robbery, one count of carjacking, and one count of facilitation of employing a firearm during the commission of a dangerous felony. After a hearing, the trial court sentenced the Defendant as a Range I offender to an effective term of twelve years’ confinement. In this direct appeal, the Defendant contends that the evidence was not sufficient to support his convictions and that his sentence is excessive. Upon our thorough review of the record and applicable law, we affirm the judgments of the trial court.

Roosevelt Brice, Jr. (“the Defendant”) was convicted by a jury of attempted premeditated first degree murder and aggravated assault. Following a sentencing hearing, the trial court sentenced the Defendant to twenty-five years’ incarceration for his attempted premeditated first degree murder conviction and fifteen years’ incarceration for his aggravated assault conviction. The trial court ordered that the two sentences be served concurrently for a total effective sentence of twenty-five years. In this direct appeal, the Defendant challenges the sufficiency of the evidence supporting his conviction for attempted premeditated first degree murder. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

The petitioner, Stephen McKinley, appeals the denial of his petition for post-conviction relief, arguing that his guilty plea was unknowing and involuntary. Following our review, we affirm the denial of the petition.

Appellant, Mark Weatherly, was indicted by the Shelby County Grand Jury for vehicular homicide and two counts of aggravated assault. The jury acquitted Appellant of vehicular homicide and was unable to reach a verdict on the lesser included offense of reckless homicide and the other charged offense of aggravated assault. The trial court declared a mistrial with regard to these offenses. Appellant’s request for pretrial diversion was denied by the prosecutor. Appellant filed a writ of certiorari with the trial court. The trial court granted Appellant’s writ of certiorari and concluded that the assistant district attorney general had abused his discretion and ordered the prosecutor to enter into a memorandum of understanding that placed Appellant on pretrial diversion. This Court granted the State’s application for interlocutory appeal. After a thorough review of the record, we find that the trial court’s decision is supported by a preponderance of the evidence and affirm.

The Defendant-Appellant, Brandi Clutts, appeals the trial court’s revocation of her probation and reinstatement of her original four-year sentence in the Department of Correction.  On appeal, Clutts argues that the trial court abused its discretion in ordering a sentence of full confinement rather than imposing split confinement.  Upon our review, we affirm the judgment of the trial court.

The Petitioner, Bryan R. Milam, appeals the Wayne County Circuit Court’s denial of his petition for post-conviction relief from his convictions for first degree murder and second degree murder and resulting sentence of life plus twenty-three years.  On appeal, the Petitioner contends that the post-conviction court erred in denying relief because he was denied the effective assistance of counsel at trial, at the motion for new trial hearing, and on appeal.  Specifically, the Petitioner argues that his various attorneys (1) failed to present rebuttal medical evidence concerning the “tight” nature of the victim’s wound or challenge the credibility of the medical examiner, Dr. Charles Harlan, who had lost his medical license following the Petitioner’s convictions; and (2) failed to present a firearms expert who had tested the condition of the murder weapon and determined that it was not working properly.  Following our review, we affirm the denial of relief.

Appellant, Antonio Dockery, was indicted by the Shelby County Grand Jury for aggravated assault, stalking, and aggravated kidnapping. After a jury trial, Appellant was convicted of the offenses as charged in the indictment. As a result of the convictions, Appellant was sentenced to a total effective sentence of thirty-four years in incarceration. After the denial of a motion for new trial, this appeal followed. On appeal, Appellant presents the following issues for our review: (1) the evidence was insufficient to support the convictions; (2) the trial court improperly instructed the jury on aggravated kidnapping; (3) the convictions for aggravated assault and stalking violate double jeopardy; and (4) the trial court erred in admitting evidence of prior bad acts in violation of Tennessee Rule of Evidence 404(b). After a review of the record and the authorities, we determine: (1) that the evidence is sufficient to support the convictions; (2) Appellant’s convictions for aggravated assault and stalking do not violate double jeopardy where the trial court properly instructed the jury on the evidence to consider when reviewing the stalking charge; and (3) Appellant waived any issue with respect to the admission of prior bad acts for failing to raise the issue in a motion for new trial. Further, we determine that the trial court erred in instructing the jury on aggravated kidnapping by failing to give the instruction from State v. White, 362 S.W.3d 559 (Tenn. 2012). The error was not harmless beyond a reasonable doubt. Consequently, Appellant’s aggravated kidnapping conviction must be reversed, and he must receive a new trial at which the jury is instructed in accord with White. The remaining judgments of the trial court are affirmed.

Dennis Murphy (“the Defendant”) was convicted by a jury of attempted rape. Following a sentencing hearing, the trial court sentenced the Defendant to five years’ incarceration. On appeal, the Defendant asserts that the trial court erred in admitting testimony regarding pictures not provided in discovery. He also challenges the sufficiency of the evidence supporting his conviction. Finally, the Defendant contends that cumulative errors denied him a fair trial. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

Appellant, Jennifer Hannah, was indicted by the Davidson County Grand Jury for four counts of child neglect, one count of first degree felony murder during the perpetration or attempt to perpetrate aggravated child neglect, and two counts of delivering a controlled substance to a minor.  At the conclusion of a jury trial, she was found guilty of all counts as charged.  The trial court sentenced her to an effective sentence of life imprisonment.  On appeal, Appellant argues: (1) the trial court erred in allowing the testimony of Michael Orman under the provisions of Rule 404(b) of the Tennessee Rules of Evidence; (2) the trial court erred in denying Appellant’s motion for continuance; (3) the trial court erred in denying her motion to suppress statements made to law enforcement officers; (4) the trial court erred in denying her request for an instruction regarding lost or destroyed evidence; (5) the trial court erred in instructing the jury on the elements of aggravated child neglect; and (6) the trial court erred in allowing the admission of an audio recording of a deceased witness.  After a thorough review of the record, we affirm the judgments of the trial court.

Petitioner, Jermaine Mitchell Gray, was found guilty by a Madison County jury of aggravated robbery, and he was subsequently sentenced to serve 12 years as a Range I standard offender. This court affirmed the conviction, and our supreme court denied Petitioner’s application for permission to appeal. State v. Jermaine Mitchell Gray, No. W2009-01260-CCA-R3-CD, 2010 WL 4544395 (Tenn. Crim. App. Nov. 10, 2010) perm. app. denied (Tenn. April 13, 2011). He subsequently filed a petition for post-conviction relief which was denied by the trial court following an evidentiary hearing. Petitioner appeals asserting that the trial court erred by denying him post-conviction relief because his trial counsel rendered ineffective assistance of counsel. We affirm the judgment of the trial court which denied post-conviction relief.

A Cocke County jury convicted petitioner, Jonathan Wesley Stephenson, of first degree premeditated murder and conspiracy to commit first degree murder. The jury imposed the death penalty for the murder conviction, and the trial court sentenced petitioner to twentyfive years for the conspiracy conviction. After several appeals, remands, and collateral proceedings, petitioner’s resulting sentence was the death penalty for the murder conviction and a sixty-year sentence for the conspiracy conviction. Petitioner then sought postconviction relief. Following an evidentiary hearing, the post-conviction court denied relief. Petitioner now appeals the denial of relief, alleging multiple claims of ineffective assistance of counsel. Following our review of the record, we discern no error and affirm the judgment of the post-conviction court.

The defendant, Charles Clevenger, appeals from his Knox County Criminal Court jury conviction of aggravated robbery, claiming that the evidence was insufficient to support his conviction, that the trial court erred by ruling that the State would be permitted to utilize his prior convictions to impeach his testimony, that the testimony of a State witness violated the Confrontation Clause, and that the trial court erred by ordering the 30-year sentence imposed in this case to be served consecutively to the 30-year sentence imposed in an unrelated case. Discerning no error, we affirm.

The Defendant, Christopher Neal Noon, appeals the Sevier County Circuit Court’s order revoking his probation for convictions for the sale of a Schedule II controlled substance and theft of property valued at less than $500 and ordering his effective three-year sentence into execution. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

The defendant, Charles Edgar Ledford, appeals from the Monroe County Criminal Court to challenge via certified questions of law his guilty-pleaded convictions of two counts of sexual exploitation of a minor, see T.C.A. § 39-17-1003, a Class D felony; child neglect, see id. § 39-15-402(a), a Class E felony; two counts of aggravated sexual battery, see id. § 39-13-504, a Class B felony; and two counts of rape of a child, see id. § 39-13-522, a Class A felony. The defendant received an effective sentence of 56 years to be served in the Department of Correction. The certified questions relate to law enforcement officers’ discovery and seizure of child pornography materials in the defendant’s house, which had been condemned for demolition by the City of Sweetwater. Upon our review, we hold that the certified questions are not dispositive of some of the convictions, and we dismiss the appeal relative to those convictions. As to the remainder of the convictions, including those for aggravated sexual battery and rape of a child, we hold that the defendant had no expectation of privacy in the seized materials and that the motion to suppress was properly denied. Thus, we affirm the trial court’s order with respect to these latter convictions.

The Petitioner, David Wayne Britt, appeals the Hardeman County Circuit Court’s denial of his 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.

I respectfully dissent from the result reached by the majority.  First, I believe the trial court’s ruling regarding the admissibility of the Defendant’s statements is insufficient for us to conduct a proper review of the suppression issue.  Second, I believe that the Defendant was entitled to a jury instruction regarding kidnapping pursuant to  State v. White, 362 S.W.3d 559 (Tenn. 2012), and that the failure to give the instruction constitutes reversible error.