APPELLATE COURT OPINIONS

Appellant, Telly Romeras Robertson, was indicted by the Davidson County Grand Jury in October of 2008 for one count of possession of .5 grams or more of cocaine with the intent to sell or deliver, one count of possession of more than ten pounds of marijuana with intent to sell or deliver, and one count of possession of a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony. In January of 2009, Appellant was indicted by the Davidson County Grand Jury for one count of possession of ecstacy with the intent to sell or deliver, one count of possession of drug paraphernalia with the intent to prepare a controlled substance, one count of possession of a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony, and casual exchange of marijuana. Appellant pled guilty to one count of possession with intent to sell ecstacy and possession with intent to deliver between .5 ounce and ten pounds of marijuana in exchange for sentences of ten years and two years, respectively. The sentences were to run consecutively to each other and to an eight-year sentence Appellant was already serving for conspiracy to commit money laundering, for a total effective sentence of twenty years. At a sentencing hearing, the trial court denied an alternative sentence. Appellant appeals. After a review of the record and authorities, we conclude that the trial court did not abuse its discretion in denying an alternative sentence where: (1) Appellant was sentenced to a Class B felony, rendering him ineligible for probation; (2) probation was denied in order to avoid depreciating the seriousness of the offense; and (3) Appellant was incarcerated at the time of sentencing, rendering him ineligible for a sentence of Community Corrections. The judgments of the trial court are affirmed.

Appellant, Charles L. Williams, was indicted in October of 2003 for one count of rape of a child and two counts of rape. In November of 2005, the case proceeded to trial. Appellant was convicted as charged and sentenced to an effective sentence of twenty-two years in incarceration. Appellant appealed the convictions and sentence. See State v. Charles L. Williams, No. M2005-00836-CCA-R3-CD, 2006 WL 3431920 (Tenn. Crim. App., at Nashville, Nov. 29, 2006) ("Williams I"). On appeal, this Court reversed the convictions and remanded for a new trial. Id. at *1. On remand, Appellant was again found guilty of rape of a child and two counts of rape. This time, the trial court sentenced Appellant to an effective sentence of seventeen years, merging the two convictions for rape with the conviction for rape of a child. Appellant appeals his convictions after retrial, arguing: (1) that the trial court should have dismissed the indictment with prejudice because the State committed violations of Rule 16 of the Tennessee Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide audible videotapes of interviews with Appellant and the victim until three days into the second trial; (2) that the trial court failed to follow the mandate of this Court with respect to expert testimony; (3) that the trial court permitted improper testimony of experts; and (4) that the remedy for the trial court’s errors is a dismissal of the indictment. After a review of the record and applicable authorities, we conclude that the State did not commit a Brady violation where the information in the videotapes was not material; Agent Johnson’s testimony was not in contravention of this Court’s opinion on direct appeal; and the expert testimony elicited at trial was based on information actually perceived by the expert in his examination of the evidence. Accordingly, the judgments of the trial court are affirmed.

The Petitioner, Donald Ragland, appeals as of right from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends (1) that the post-conviction court erred by not forcing the Petitioner to testify at the post-conviction hearing; and (2) that the Petitioner received ineffective assistance from his trial counsel because trial counsel withdrew a motion to suppress a photographic identification of the Petitioner. Discerning no error, we affirm the judgment of the post-conviction court.

Petitioner, Craig L. Beene, appeals Dickson County Circuit Court’s denial of his petition for writ of habeas corpus. After a review of the record and applicable authorities, we conclude that the failure of Petitioner to file a complete copy of the petition for habeas corpus relief or the judgments from which he is appealing violate the requirements for seeking habeas corpus relief. Therefore, we affirm the judgment of the habeas corpus court.

Appellant, Zacheriah Holden, was indicted by the Warren County Grand Jury for over thirty offenses as a result of a drunk driving accident in which two people were killed. He pled guilty to several offenses before trial and was found guilty of the remaining charges. After the proper merger of offenses, Appellant’s convictions were two counts of aggravated vehicular homicide, one count of reckless endangerment, driving on a revoked license, evading arrest, resisting arrest, leaving the scene of the accident, five counts of failure to render aid, failure to obey a traffic device and violation of the financial responsibility law. The trial court sentenced Appellant to an effective sentence of thirty years and eight months. Appellant appeals his convictions and his sentences. Appellant raises several issues on appeal. He argues that: (1) the trial court erred in denying his request for change of venue; (2) the trial court erred in denying his request for sequestration of the jury; (3) the trial court erred in denying Appellant’s various motions to suppress his statements to law enforcement and his seizure in a car; (4)the trial court erred in denying his motion to exclude the testimony of the State’s accident reconstructionist as an expert witness; (5) the trial court erred in allowing the State to present a photograph of the victims’ car; (6) the trial court erred in failing to sever DUI, fourth offense from aggravated vehicular homicide; (7) the trial court erred in excluding the testimony of Travis Battles who was going to testify to updates to the traffic light since the accident; (8) the State did not sufficiently prove the chain of custody of Appellant’s blood sample submitted for blood alcohol testing; (9) the evidence was not sufficient to support his convictions; (10) the sentencing scheme for aggravated vehicular homicide is unconstitutional; (11) the trial court erred in imposing the length of his sentences, as well as imposing consecutive sentences; and (12) the trial court erred in its evidentiary rulings on various pieces of evidence. We have thoroughly reviewed the record on appeal and conclude that the issues raised do not warrant reversal of the judgments below. Therefore, we affirm the judgments of the trial court.

The Defendant, Michael Ray McKee, contends that his right to a speedy trial regarding his probation revocation hearing was violated and, as a result, the trial court erred in revoking his probation. After reviewing the record and the applicable authorities, we conclude that the Defendant’s constitutional right to a speedy trial was not violated and that there was sufficient evidence presented to support the trial court’s revocation; we affirm the judgment of the trial court.

The defendant, Cody Garris, appeals from his Giles County Circuit Court guilty-pleaded conviction of child abuse, claiming that the trial court erred by imposing a fully-incarcerative sentence. Because the record supports the sentence imposed by the trial court, we affirm.

The appellant, Fredrick John Deen Clark, pled guilty in the Grundy County Circuit Court to vehicular assault, a Class D felony. Pursuant to the plea agreement, the appellant received a six-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered that the appellant serve his sentence in confinement. On appeal, the appellant contends that the trial court erred by denying his request for alternative sentencing. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

Defendant was convicted of possession of hydrocodone with intent to sell, a felony, possession of a firearm during the commission of a dangerous felony, a Class D felony, and possession of marijuana, a Class A misdemeanor. He received a total effective sentence of eight years. On appeal, the defendant challenges the sufficiency of the convicting evidence, the trial court’s denial of his motion to suppress, and numerous evidentiary rulings. The defendant also claims that the trial court erred by failing to find mitigating factors and by sentencing him for a Class C felony with respect to his conviction for possession of hydrocodone with intent to sell or distribute, when the crime at issue was in fact a Class D felony. After review, we conclude that the trial court committed no reversible error with respect to the defendant’s convictions. However, the trial court erroneously sentenced the defendant with respect to at least one of his offenses. Consequently, we remand the case to the trial court for re-sentencing.

Defendant, Christopher Bomar Wenzler, was indicted by the Fayette County Grand Jury for driving under the influence of an intoxicant (DUI) in Count 1, and for DUI, third offense, in Count 2. Defendant pled guilty to DUI as charged in Count 1, and waived a jury trial and submitted to a bench trial as to the issues in Count 2. Count 2 alleged two prior DUI convictions: (i) in the Justice Court of DeSoto County, Mississippi on June 7, 2006, and (ii) in the General Sessions Court of Shelby County on February 9, 2006. Defendant argued in the trial court that the Mississippi conviction could not be lawfully used to enhance his current offense to DUI, third offense, but the trial court found Defendant guilty as charged. The trial court merged the conviction in Count 1 with the conviction in Count 2, and sentenced Defendant to serve 11 months and 29 days, with all but 120 days suspended as a third offense DUI offender. Defendant appeals, arguing that he should have been sentenced for DUI, second offense, because the judgment form used to prove Defendant’s prior conviction in DeSoto County, Mississippi is silent as to whether he was represented by counsel or waived his right to counsel. After review of the record, we affirm the judgment of the trial court.

The appellant, Alexander Fuller, appeals the Davidson County Criminal Court’s revoking his probation for theft of property valued one thousand dollars or more but less than ten thousand dollars and ordering that he serve his eight-year sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

The Petitioner, Edgar Bailey, Jr., appeals the Lauderdale County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. On appeal, the Petitioner claims entitlement to habeas corpus relief because of alleged defects in the felony murder count of his indictment and because the trial court dismissed the felony murder count after remand by this court on direct appeal. We conclude that there is no error in the judgment of the habeas corpus court and affirm.

The Defendant-Appellant, Lamar Kashief Allen, entered guilty pleas to possession of cocaine with intent to sell an amount less than one-half gram and tampering with evidence, Class C felonies, and received an effective six-year sentence with the manner of service to be determined by the court. After a sentencing hearing, the court ordered confinement in the Tennessee Department of Correction. The sole issue on appeal is whether the trial court erred in denying Allen’s request for alternative sentencing. Finding no error, we affirm the judgments of the trial court.

Defendant-Appellant, Victor Trezevant, appeals as of right his conviction for first degree murder committed during the perpetration of an attempted aggravated robbery, for which he received a life sentence. In this appeal, the sole issue presented for our review is whether the evidence is sufficient to support his conviction of felony murder. Specifically, Trezevant contends that the State failed to corroborate the testimony of his accomplices. After reviewing the record and the applicable authorities, we affirm the judgment of the trial court.

The Petitioner, Charlie M. Gardner, appeals from the summary dismissal of his petition for coram nobis relief. In 1999, the Petitioner was convicted of first degree murder and two counts of reckless aggravated assault for which he received an effective sentence of life without parole plus eight years. Eleven years later, he filed a petition for writ of error coram nobis alleging due process requires tolling the statute of limitations based upon an undisclosed "third party confession" and an "inconclusive T.B.I. report on ballistic evidence." Upon review, we affirm dismissal of the petition.

This is the second appeal as of right by Defendant, Robert Edward Boling, from his conviction in the Sullivan County Criminal Court for aggravated robbery. In his first appeal as of right, this Court addressed only the issue of the sufficiency of the evidence to sustain the conviction, affirmed the conviction on that issue, and refused to address all other issues because they were waived by Defendant’s attorney’s failure to timely file a motion for new trial. See State v. Robert Edward Boling, No. E2008-00351-CCA-R3-CD, 2009 WL 482763 (Tenn. Crim. App. Feb. 26, 2009) no perm. app. filed. Subsequently, Defendant timely filed a petition for post-conviction relief. The post-conviction court granted Defendant a delayed appeal pursuant to Tennessee Code Annotated section 40-30-113(a)(1)(“When the trial judge conducting a hearing pursuant to [the Post-conviction Procedure Act] finds that the petitioner was denied the right to an appeal from the original conviction in violation of the Constitution of the United States or the Constitution of Tennessee . . . the judge can . . . grant a delayed appeal;”). In accordance with our supreme court’s opinion in Wallace v. State, 121 S.W.3d 652 (Tenn. 2003), the untimely motion for new trial being a nullity, Defendant was granted the ability to file a timely motion for new trial. He did, and it was overruled. Defendant now appeals his conviction for the second time and appropriately raises two issues for our review in this appeal: (1) the trial court erred by denying his motion for new counsel; and (2) the trial court erred by denying his objection to certain photographs and testimony, which Defendant asserts were “fruit of the poisonous tree” of his coerced confession. Defendant’s third issue, the post-conviction claim of ineffective assistance of counsel at the trial, is premature. After a review of Defendant’s two properly presented issues, we again affirm the judgment of conviction.

A Montgomery County Circuit Court Jury convicted the appellant, Khaleefa Lambert, of first degree premeditated murder; first degree felony murder; especially aggravated kidnapping by the use of a weapon; and especially aggravated kidnapping by the infliction of serious bodily injury. The trial court merged the murder convictions and imposed a sentence of life imprisonment in the Tennessee Department of Correction with the possibility of parole. The trial court also merged the especially aggravated kidnapping convictions and sentenced the appellant to eighteen years to be served consecutively to the murder conviction. On appeal, the appellant argues (1) that counts one, two, and three of the indictment should have been dismissed for failure to state an offense; (2) that the trial court erred by refusing to order the State to reveal grand jury testimony; (3) that the evidence was insufficient to sustain his murder convictions; and (4) that the trial court erred in sentencing. Upon review, we affirm the convictions and sentences. However, we vacate the judgments and remand the case to the trial court for entry of a single judgment reflecting the merger of the murder convictions and a single judgment reflecting the merger of the especially aggravated kidnapping convictions.

Appellant, John Robert Q. Jackson, challenges the sentences imposed by the trial court after he was revoked from community corrections. He argues that the trial court erred by considering his pending criminal allegations when ordering that he serve some of his sentences consecutively with each other. Appellant also contends that the trial court erred in concluding that his record of criminal activity was extensive. Discerning no error, we affirm the judgments of the trial court.

Brys Andrew Hensley (“the Defendant”) pleaded guilty to one count of reckless aggravated assault and was placed on judicial diversion with a probationary period of two years. The State subsequently alleged that the Defendant had violated the terms of his probation, and, after a hearing, the trial court revoked the Defendant’s judicial diversion, entered a judgment of conviction, and sentenced the Defendant. After a second hearing, the trial court denied the Defendant’s motion to reconsider its previous ruling, and this appeal followed. We hold that, in revoking the Defendant’s diversion and probation, the trial court failed to exercise its statutory discretion and thereby committed reversible error. Accordingly, we reverse the trial court’s judgment and remand this matter for further proceedings consistent with this opinion.

The defendant, Kiara Tashawn King, pled guilty to aggravated burglary, a Class C felony, and theft of property with a value of $500 or more, a Class E felony. Following a sentencing hearing, the trial court sentenced the defendant as a Range I, standard offender, to an effective five-year sentence, to be served on probation. On appeal, the defendant contends that the trial court failed to follow the correct sentencing procedure, imposed an excessive sentence, and erred by denying judicial diversion. Upon review, we conclude that the trial court did not abuse its discretion by imposing an effective sentence of five years of probation and that its decision to deny judicial diversion did not wholly depart from the principles and purposes of the Sentencing Act. We affirm the sentences imposed by the trial court accordingly.

A Knox County Criminal Court Jury convicted the appellant, Deeric McAfee, of second degree murder and reckless endangerment. The trial court sentenced the appellant to a total effective sentence of twenty years in the Tennessee Department of Correction. On appeal, the appellant argues that the evidence was insufficient to support his conviction for second degree murder, the trial court erred in excluding evidence of the victim’s criminal history, the trial court erred in allowing the State to introduce on cross-examination a letter written by the appellant, the trial court erred by giving an instruction regarding flight, and the trial court erred in sentencing the appellant. Upon review, we affirm the judgments of the trial court.

The appellant, Jeremy Bailey, pled nolo contendere in the Hickman County Circuit Court to two counts of statutory rape, a Class E felony. Pursuant to the plea agreement, the appellant agreed to be sentenced as a Range II, multiple offender and received consecutive four-year sentences with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered that the appellant serve the sentences as eleven months, twenty-nine days in jail "day for day" prior to his being released on supervised probation. On appeal, the appellant contends that the trial court erred by refusing to grant his requests for judicial diversion and full probation and by ordering that he serve his sentence of confinement day for day. The State concedes that the trial court erred by imposing day-for-day confinement. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the trial court’s denial of judicial diversion and full probation but remand for correction of the judgments to reflect that the appellant is entitled to earn good conduct credits while serving eleven months and twenty-nine days of his felony sentences in jail.

On appeal, the State challenges the trial court’s dismissal of the Defendant’s indictment due to pre-indictment delay. The State contends that the trial court abused its discretion in dismissing the indictment because it misapplied the law in reaching its determination that the delay caused the Defendant actual prejudice. Following our review, we reverse the judgment of the trial court and remand the case to the trial court for further proceedings in accordance with this opinion.

A Montgomery County jury convicted appellant, Frank Huber Sumner, of robbery. The trial court sentenced him to nine and one-half years of confinement as a multiple offender. Appellant challenges his sentence, arguing that the length of his sentence is excessive and that he should have received an alternative sentence. Discerning no error, we affirm the judgment of the trial court.

The petitioner, Anthony Barnes, appeals the denial of his petition for post-conviction relief. He pled guilty to possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. The plea agreement provided for an effective eight year sentence and, further, that the petitioner could apply for a suspended sentence. After a hearing, the trial court ordered that the sentence be served in incarceration. In this appeal, the petitioner contends that his plea was not entered knowingly and voluntarily because he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective for failing to ensure that the State complied with an agreement to recommend probation to the trial court. Following review of the record, we affirm the denial of postconviction relief.