APPELLATE COURT OPINIONS

A Knox County Criminal Court Jury convicted the appellant, Clois Dean Asbury, of driving under the influence (DUI), seventh offense; leaving the scene of an accident involving injury; and leaving the scene of an accident involving property damage greater than $400. In addition, the trial court found that he violated the implied consent law. After a sentencing hearing, the appellant received an effective sentence of two years, eleven months, and twenty-nine days to be served in confinement for the convictions. As a result of his violating the implied consent law, his driver’s license was suspended for one year. On appeal, the appellant contends that (1) the trial court erred by allowing the prosecuting officer to testify as the State’s fourth witness, (2) the trial court erred by refusing to dismiss the indictment or give a special jury instruction when the State lost evidence, and (3) the evidence is insufficient to support the convictions. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

The Defendant, Willie Lewis, was found guilty by a Shelby County Criminal Court jury of second degree murder, a Class A felony. See T.C.A. § 39-13-210(a)(1) (2010). He was sentenced as a Range I, violent offender to twenty-five years’ confinement. On appeal, the Defendant contends that the trial court erred by (1) excluding relevant testimony regarding the victim’s tattoo, (2) not permitting the Defendant to refer to the victim’s tattoo during closing argument, and (3) issuing a flight instruction that was not supported by the evidence. We affirm the judgment of the trial court.

The Petitioner, Aldrick D. Lillard, appeals as of right from the post-conviction court’s denial of relief from his convictions for first degree murder, especially aggravated robbery, aggravated burglary, conspiracy to commit aggravated burglary, and conspiracy to commit aggravated robbery. The Petitioner alleges that the post-conviction court committed reversible errors by (1) refusing to allow the Petitioner to amend his petition for postconviction relief during the evidentiary hearing; (2) finding that the post-conviction hearing testimony from the assistant district attorney regarding his discussions during trial with the Petitioner’s trial counsel was irrelevant; and (3) concluding that the Petitioner failed to prove by clear and convincing evidence that his trial attorneys were ineffective. After an evidentiary hearing, the post-conviction court merged the Petitioner’s two conspiracy convictions but found that the Petitioner failed to prove any additional allegations in his petition for relief. Following our review, we reverse the post-conviction court’s ruling prohibiting the Petitioner from amending his petition during the evidentiary hearing.We also conclude that the post-conviction court’s finding that the prosecutor’s testimony was irrelevant was in error, albeit harmless. In all other respects, we affirm the judgment of the post-conviction court.

The Defendant, Leslie Jacquinte Fetters, pled guilty to two counts of aggravated robbery and agreed to allow the trial court to determine his sentence. The plea agreement was based upon the Defendant being sentenced as a Range I offender to concurrent sentences. After a hearing, the trial court sentenced the Defendant to eleven years, at 30%, for each conviction and ordered that the sentences run concurrently as contemplated by the plea agreement. On appeal, the Defendant contends that his sentence is excessive. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgment.

A Knox County Criminal Court jury convicted the defendant, Kenneth Edward Watts, of vandalism of property valued at $1,000 or more but less than $10,000 and attempted theft of property valued at $1,000 or more but less than $10,000. On appeal, the defendant challenges the sufficiency of the evidence to support his conviction for attempted theft of property. We determine that sufficient evidence exists to support the defendant’s conviction of attempted theft of property valued at $1,000 or more but less than $10,000 and affirm that judgment. We conclude, however, that the trial court’s order concerning the vandalism count is inconsistent with the trial court’s ruling at the motion for new trial hearing. Therefore, we remand as to that count for entry of a corrected order properly effectuating the intent of the trial court.

The Defendant, Dennis Marshall, was convicted by a Shelby County Criminal Court jury of two counts of possession with intent to sell twenty-six grams or more of cocaine, a Class B felony. See T.C.A. § 39-17-417 (2010). The trial court merged the convictions and sentenced the Defendant as a multiple offender to sixteen years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction and that the trial court committed plain error (2) by denying him an open and public trial; (3) by admitting hearsay statements into evidence; (4) by admitting evidence of other investigations; (5) by admitting evidence of the utility account holder at the home in which the drugs were found; (6) by admitting evidence about his having money but no job; (7) by admitting nonexpert testimony about the value of the cocaine found at the crime scene; (8) by admitting evidence about the recovery of a razor blade at the scene; and (9) by admitting evidence of his personal relationship with a minor female. We affirm the judgment of the trial court.

The Petitioner,Antwain TapaigeSales,appeals the Bedford County Circuit Court’s summary dismissal of his petition for post-conviction relief from his conviction for second degree murder and resulting forty-year sentence. On appeal, he contends that the trial court erred in determining that he failed to satisfy the threshold burden to warrant an additional hearing regarding whether the statute of limitations should have been tolled due to his mental incompetence. We affirm the judgment of the trial court.

The State appeals the trial court’s dismissal of the following charges against the Defendant, Jimmy Joyner: driving under the influence ("DUI"), third offense; violation of the open container law; and failure to maintain a traffic lane. The trial court dismissed the charges finding that the State had not commenced prosecution before the expiration of the statute of limitations. After a thorough review of the record and relevant authorities, we conclude that the trial court improperly dismissed the charges because the Defendant waived his preliminary hearing and agreed to allow the case to be bound over to the grand jury before the expiration of the statute of limitations. Therefore, the judgment of the trial court is reversed, and the case is remanded for reinstatement of the indictments against the Defendant.

A Knox County Criminal Court Jury convicted the appellant, Mark Takashi, of aggravated child abuse and aggravated child neglect, Class A felonies. The trial court merged the convictions, and the appellant received a twenty-five-year sentence to be served at 100%. On appeal, the appellant contends that the trial court erred by allowing him to represent himself at trial and that his sentence is excessive. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

I respectfully dissent from the majority’s holding that the post-conviction court erred in failing to allow the Petitioner to amend his petition during the evidentiary hearing. The Petitioner sought to amend his petition to allege another ground for his claim of ineffective assistance of counsel. Specifically, the amendment would have raised the issue of trial counsel’s failure to assert the trial court’s denial of a motion for a mistrial in the Petitioner’s motion for new trial or on direct appeal. The motion for a mistrial related to the admission of impermissible character evidence regarding prior, uncharged bad acts during the prosecutor’s opening statement.

The Petitioner, Jason Clinard, appeals the Hickman County Circuit Court’s summary dismissal of his petition seeking a writ of habeas corpus. The Petitioner, who was convicted of first degree murder, contends that his conviction was illegal because he was sentenced to life with the possibility of parole, which he states contravenes statute. Upon a review of the record in this case, we conclude that the habeas corpus court properly denied the petition for habeas corpus relief. Accordingly, we affirm the judgment of the habeas corpus court.
 

The petitioner, Ricardo Rodriguez, brings a post-conviction challenge to his 2004 guilty plea for sale of a controlled substance based on the United States Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), in which the Court concluded that trial counsel’s failure to advise a defendant that his guilty plea would result in deportation amounted to deficient representation. In this case, the post-conviction petition was not filed within the one-year limitations period specified by the Tennessee Post-Conviction Procedure Act, and it was dismissed by the post-conviction court based on the statute of limitations at Tennessee Code Annotated § 40-30-102(a). The petitioner contends that Padilla should be retroactively applied and that his claim falls into an exception to the statute of limitations for new constitutional rules with retrospective application. See T.C.A. § 40-30-102(b)(1) (2006). Alternatively, the petitioner claims that due process tolls the statute of limitations or that the rule is an old rule with retroactive application. The petitioner also challenges the knowing and voluntary nature of his plea and brings a habeas corpus challenge based on his incomplete knowledge of English. We conclude that, because Padilla does not warrant retroactive application and because due process does not require the statute of limitations to be tolled, the petition was time-barred. We further conclude that the post-conviction court properly denied relief on the petitioner’s remaining claims and affirm the judgment of the post-conviction court.
 

On March 6, 2008, the Defendant-Appellant, Christopher Seth Haley, was indicted in case number 199-2008 for violating the Motor Vehicle Habitual Offender’s Act (MVHOA), evading arrest, possession of a Schedule II controlled substance, possession of drug paraphernalia, and conviction of two or more prior offenses of simple possession or casual exchange of a controlled substance thatcould be used to enhance his punishment for the third offense of simple possession of a controlled substance pursuant to Tennessee Code Annotated section 39-17-418(e). On June 6, 2008, Haley was indicted in case number 4502008 for possession of .5 grams or more of a Schedule II drug with the intent to sell or deliver. On March 30, 2009, he entered guiltypleas in case number 199-2008 to the offenses of violating the MVHOA and evading arrest, Class E felonies, and in case number 450-2008 to the offense of possession of .5 grams or more of a Schedule II drug with the intent to sell or deliver, a Class B felony, and the State entered a nolle prosequi for the remaining charges in case number 199-2008. On June 10, 2010, Haley was indicted in case number 439-2010 for felony escape and two counts of felony failure to appear. On September 30, 2010, Haley entered a guilty plea in case number 439-2010 to one count of failure to appear, a Class E felony, and the State entered a nolle prosequi for the remaining counts in that case number. On December 10, 2010, the trial court sentenced Haley as a Range I, standard offender to concurrent sentences of two years for violating the MVHOA conviction, two years for the evading arrest conviction, and ten years for the possession of .5 grams or more of a Schedule II drug with the intent to sell or deliver conviction. The court also sentenced Haley as a Range II, multiple offender to a consecutive sentence of four years for the felony failure to appear conviction, for an effective sentence of fourteen years in the Tennessee Department of Correction. On appeal, Haley contends that the trial court erred in failing to consider any mitigating factors before imposing his sentence and erred in denying him an alternative sentence. Upon review, we affirm the judgments of the trial court.

The defendant, Marc A. Crowder, was convicted by a Montgomery County jury of aggravated assault and aggravated robbery and was sentenced by the trial court to an effective term of nine years in the Department of Correction. He raises two issues on appeal: (1) whether he was denied his constitutional right to a jury of his peers by the lack of a fair cross-representation of the community among the venire members; and (2) whether the evidence is sufficient to sustain his convictions. Following our review, we affirm the judgments of the trial court.

The Defendant, Joshua Paul Lewis, was convicted by a jury of two counts of rape of a child and one count of attempted rape of a child. The trial court subsequently sentenced the Defendant to twenty-five years on each of the rape convictions and to ten years on the attempted rape conviction, all sentences to run concurrently, for an effective sentence of twenty-five years in the Department of Correction. In this direct appeal, the Defendant contends that (1) the trial court erred in denying his motion to suppress his statement to the police; (2) the trial court erred in denying his motion for judgment of acquittal due to variances between the bill of particulars and the proof at trial; and (3) he was denied a fair trial due to cumulative error. After a review of the record and relevant authorities, we have determined that the Defendant’s issue are waived for failing to preserve them in a timely filed motion for new trial. Accordingly, we affirm the trial court’s judgments.

Appellant,Terrance Gabriel Carter,pled guilty in Marshall County to five counts of violating the sex offender registration act in two separate cases with the length and manner of service of sentence to be determined by the trial court after a sentencing hearing. Appellant was sentenced to an effective sentence of five years. Appellant appeals his sentence, arguing that it is excessive. After a review of the record, we affirm the judgments of the trial court.

The Defendant-Appellant, Robert Blake Ball, was convicted by a Greene County jury of attempted second degree murder and sentenced to eleven years’ imprisonment. In this appeal, Ball challenges the sufficiency of the evidence supporting his conviction and the sentence imposed by the trial court. Upon our review, we affirm the judgment of the trial court.

A Shelby County jury convicted the Defendant-Appellant, Randy Parham, of attempted first degree murder, a Class A felony, aggravated robbery, a Class B felony, theft of property valued at $1000 or more but less than $10,000, a Class D felony, and domestic assault, a Class A misdemeanor. On remand for resentencing following Parham’s first appeal, State v. Randy Parham, No. W2009-02576-CCA-R3-CD, 2010 WL 5271612 (Tenn. Crim. App. Dec. 10, 2010), the trial court imposed an effective sentence of fifty-five years. In this appeal, Parham argues that the trial court erred by (1) ordering the sentences for attempted first degree murder and aggravated robbery to be served consecutively, (2) ordering the sentence for attempted first degree murder to be served at one hundred percent release eligibility as a “violent” offense, and (3) failing to state on the record which enhancement factors it applied to which offenses while at the same time applying a non-statutory enhancement factor. Upon review, we affirm the judgments of the trial court in part and reverse them in part. We also note the need for entry of corrected judgments. The case is remanded for entry of judgments in accordance with this opinion.

The Defendant-Appellant, Robin Elizabeth Willis, was convicted by a Hawkins County jury of theft of property valued at $1000 or more but less than $10,000, a Class D felony. The trial court sentenced her as a Range I, standard offender and ordered her to serve three years in the Tennessee Department of Correction. On appeal, Willis argues: (1) the evidence was insufficient to support her conviction; and (2) her sentence was excessive. Upon review, we affirm the judgment of the trial court.

A Hamilton County jury convicted Defendant, Mario Jones, of possession of more than 50 grams of a Schedule II controlled substance with intent to sell, a Class A felony. The trial court sentenced Defendant to serve twenty years as a Range I standard offender. In his appeal, Defendant presents the following issues for review: (1) the stop of Defendant’s vehicle and the subsequent detention of Defendant violated his constitutional rights, and the trial court erred by denying Defendant’s motion tosuppress; (2) the evidence was insufficient to sustain Defendant’s conviction; (3) the trial court improperly allowed Lieutenant Queen to testify concerning the calendar, notes, and pills found in Defendant’s vehicle; (4) the trialcourt erred in finding that chain of custody had been established; and (5) the trial court erred in rejecting Defendant’s proposed mitigating factor. After a thorough review, we affirm the judgment of the trial court.

JOSEPH M. TIPTON, P.J., concurring in part, dissenting in part. I concur with the majority opinion’s conclusion that the evidence was sufficient to convict the Defendant. I respectfully disagree, however, with its conclusions that the victim was particularly vulnerable and that the three-year sentence should be served in confinement

The defendant, Sherri Mathis, appeals her Warren County Circuit Court jury convictions of two counts of felony murder, see T.C.A. § 39-13-202(a)(2) (2006); two counts of aggravated child abuse of a child six years of age or less, see id. § 39-15-402(a)(1), (b); two counts of aggravated child neglect of a child six years of age or less, see id.; one count of child abuse of a child six years of age or less, see id. §39-15-401(a); and two counts of aggravated child abuse, see id. § 39-15-402(a)(1). At sentencing, the trial court imposed an effective sentence of life plus 32 years’ incarceration. In addition to challenging the sufficiency of the evidence on appeal, the defendant claims that (1) the trial court erroneously denied her motion for continuance, (2) the trial court erroneously admitted photographs of the deceased victim, (3) the trial court erroneously denied her motion to dismiss the indictment based upon a fatal variance, (4) the trial court erroneously denied a motion for mistrial, (5) the trial court erroneously allowed the State to call the defendant’s civil attorney as a witness knowing that the attorney would claim privilege, (6) the trial court erroneously limited testimony of defendant’s expert witness,(7)the State committed prosecutorial misconduct during opening statements and closing arguments, and (8) the trial court imposed an excessive sentence. Additionally, the defendant contends that the trial court erroneously dismissed her petition for writ of error coram nobis and erroneously denied her the right to depose Doctor Bruce Levy concerning the claims contained in the coram nobis petition. We discern that the trial court failed to merge certain counts and failed to enter judgments as corrected at the hearing on the motion for new trial. We further conclude that the State failed to establish serious bodily injury with respect to the defendant’s convictions of aggravated child abuse in Counts Eight and Nine and direct the trial court on remand to enter judgments reflecting convictions of child abuse and three-year sentences. Accordingly,the case is remanded for the trial court to enter modified judgments in Counts Eight and Nine, judgments effectuating proper merger, and judgments reflecting modified sentences, and we affirm the judgments in all other respects.
 

Petitioner, Darryl Larkins, appeals the denial of post-conviction relief from his convictions for two counts of aggravated rape, one count of attempted aggravated rape, and one count of aggravated burglary. On appeal, petitioner argues that he received the ineffective assistance of counsel. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgment of the post-conviction court .

The Petitioner, Charles Montague, appeals from the Washington County Circuit Court’s summary dismissal of his petition for a writ of habeas corpus. In this appeal, the Petitioner claims entitlement to habeas corpus relief because (1) he was deprived of pretrial jail credits; (2) his sentence is disproportionate to other sentences from the trial court; (3) an illegal fine was imposed; (4) he was ordered to serve his sentence in “installments”; and (5) the indictment was improperly amended without his consent. We conclude that the Petitioner has stated a cognizable claim for habeas corpus relief with regard to his possible entitlement to pretrial jail credits. We remand for a hearing and the appointment of counsel on that issue alone. In all other respects, the judgment of the habeas corpus court is affirmed.

Much aggrieved by the Lincoln County Circuit Court’s sentencing decision following his plea to a community corrections violation warrant, the defendant, Clay Robertson, appeals the trial court’s imposition of an effective sentence of seven years’ incarceration for his guilty-pleaded convictions of theft of property valued at more than $1,000 but less than $10,000 and facilitation of aggravated robbery. Discerning no error,we affirm the judgments of the trial court.