APPELLATE COURT OPINIONS

Appellant, Frances Kaylanicole Grech, pled guilty to one count of facilitation of aggravated robbery and one count of robbery. As a result of these convictions she was sentenced to ten years and ordered to serve 180 days with the remainder to be served on probation. Appellant was charged with assault while in jail and felony escape shortly after her release. A probation violation warrant was filed based on the two charges. She subsequently pled guilty to assault and an amended charge of resisting arrest. The trial court held a probation revocation hearing and at the conclusion determined that she had violated the rules of her probation and imposed her original sentence. On appeal, she argues that the trial court did not use conscientious judgment. We conclude that Appellant clearly violated the rules of her probation and we find no abuse of discretion. Therefore, we affirm the decision of the trial court.

Appellant, Charles Edward Wilbourn, was indicted by the Davidson County Grand Jury for one count of possession of more than .5 grams of cocaine for sale in a drug-free zone. On February 19, 2010, Appellant pled guilty in a negotiated plea to the charge and an eight-year sentence to be served at 100 percent. Appellant subsequently filed a timely petition for post-conviction relief. After appointment of counsel, an amended petition was filed. One of the issues raised was that trial counsel afforded Petitioner ineffective assistance of counsel because she did not adequately investigate whether the incident actually occurred in a drug-free non-school zone. After an evidentiary hearing, the post-conviction court denied the petition. On appeal, Petitioner argues that the post-conviction court erred with respect to the above issue. After a thorough review of the record, we conclude that the post-conviction court did not err in denying the petition. Therefore, we affirm the denial of the petition for post-conviction relief.

The petitioner, Oscar Torres, appeals the denial of his petition for post-conviction relief. The petitioner is currently serving an effective twenty-year sentence in the Department of Correction following his conviction for two counts of rape of a child, Class A felonies. On appeal, he contends that the post-conviction court erred by denying his petition for relief because he received ineffective assistance of counsel. Specifically, he contends that trial counsel was ineffective for: (1) failing to object during jury-out hearings to recalling the victim as a rebuttal witness; and (2) failing to call an expert witness pertaining to the faultiness of the memory of a child witness. Following review of the record, we find no error and affirm the denial of the petition.

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 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 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 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.

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.

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.

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.

The defendant, Thomas Ray Ward, appeals the Dyer County Circuit Court’s revocation of his probationary sentence. Pursuant to a negotiated plea agreement, the defendant pled guilty to three counts of burglary of a motor vehicle, Class E felonies, and was given consecutive two-year sentences for each offense. However, the defendant was placed on probation for a period of eight years. A violation warrant was subsequently issued, and, at the hearing, the defendant acknowledged that he had committed the technical violations of his agreement. The trial court found the defendant to be in violation of the terms and conditions of his probation and ordered that the balance of the reinstated six-year sentence be served in incarceration. On appeal, the defendant contends that the decision to revoke was error because it was based upon the fact that the defendant had prior violations of his probation rather than on the technical violations which were established at the hearing. Following review of the record, we affirm the revocation of probation.

The Defendant-Appellant, Baleke Kromah, was indicted by the Rutherford County Grand Jury for five counts of sexual battery by an authority figure. He was subsequently convicted by a Rutherford County Circuit Court jury of count three and was acquitted of the remaining counts. Kromah was sentenced to ninety days of imprisonment followed by four years of probation. On appeal, Kromah argues: (1) the evidence was insufficient to support his conviction, and (2) the trial court erred in failing to order the State to make an election of offenses at the close of the State’s proof. Upon review, we affirm the judgment of the trial court.

The Defendant-Appellant, Jamey Ray Christy, was convicted by a Montgomery County jury of aggravated child neglect, a Class B felony; voluntary manslaughter, vehicular homicide, and aggravated assault, all class C felonies; and reckless endangerment with a deadly weapon involved, a Class E felony. The trial court merged the voluntary manslaughter and vehicular homicide convictions and imposed concurrent terms of eight years’ confinement for the vehicular homicide and aggravated assault and three years’ confinement for the reckless endangerment. The trial court imposed a consecutive term of ten years’ confinement for the aggravated child neglect conviction, for an effective sentence of eighteen years. The sole issue presented for our review is whether the evidence was sufficient to support the conviction of aggravated child neglect. Upon review, we affirm the judgment of the trial court.