APPELLATE COURT OPINIONS

A Sullivan County jury convicted the Petitioner, Timothy Lynn Denton, of first degree premeditated murder, and the trial court sentenced him to life in the Tennessee Department of Correction. This Court affirmed his conviction on direct appeal. State v. Timothy Lynn Denton, No. E2006-02557-CCA-R3-CD, 2008 WL 933200 (Tenn. Crim. App., at Knoxville, Apr. 7, 2008), perm. app. denied (Tenn. Oct. 27, 2008). The Petitioner then filed a petition for post-conviction relief, contending that he had received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition because his trial counsel was ineffective by failing to convey to him plea offers and by failing to appeal the trial court’s ruling that he was competent to stand trial. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s judgment.

Appellant, Scot E. Vandergriff, pled guilty to soliciting sexual exploitation of a minor by electronic means, a Class E felony, for which he received an agreed- upon sentence of two years. The trial court granted his request for probation but denied his application for judicial diversion. In this appeal, he claims that the trial court erred in denying his application for judicial diversion. Because the trial court failed to adequately state upon the record the basis for denying judicial diversion, we vacate the judgment and remand this matter for further proceedings consistent with this opinion.

Appellant, Timothy W. Ford, was convicted by a DeKalb County jury of the initiation of a process to manufacture methamphetamine, a Class B felony. The trial court imposed a sentence of eleven years and six months. Appellant challenges his conviction and sentence for the following reasons: (1) the evidence was insufficient to sustain the conviction; (2) the trial court erred in denying his motion in limine to exclude evidence of his prior conviction; and (3) the sentence was excessive because the trial court failed to give ample weight to the mitigation evidence. Discerning no error, we affirm the judgments of the trial court.

Following a trial, a Davidson County jury found appellant, Steven Woodrow Johnson, guilty of felony murder, especially aggravated burglary, aggravated burglary, aggravated assault, and possession of a firearm during the commission of a dangerous felony. The trial court sentenced appellant to life in prison for felony murder. The trial court also sentenced appellant to serve sentences of ten years for especially aggravated burglary (count two) and five years for aggravated burglary (count four) and then merged the two convictions. Appellant was sentenced to five years for aggravated assault and three years for possession of a firearm during the commission of a dangerous felony. Some sentences were consecutive to each other, but all were concurrent to the life sentence for felony murder. Thus, appellant received an effective life sentence. On appeal, appellant contends that the evidence was insufficient to support his convictions. Following review of the record, we conclude that the conviction of especially aggravated burglary should be modified to aggravated burglary. Because only one judgment of conviction should have been entered as to the merged counts, we vacate the judgments in count two and count four and remand to the trial court for entry of a single judgment of conviction consistent with this opinion. We affirm the judgments of the trial court in all other respects.

In 1986, petitioner, Charles Borum, pled guilty to two offenses, a Dickson County charge of aggravated kidnapping and a Davidson County charge of aggravated rape, and received forty-year sentences on each offense. Davidson County agreed to run the aggravated rape conviction concurrently with the Dickson County aggravated kidnapping conviction. Petitioner filed the instant petition for a writ of habeas corpus, alleging that the Davidson County conviction is illegal, and thus void, because it did not award him pretrial jail credit as required by law. The habeas corpus court summarily dismissed the petition. Following our review of the record, we affirm the judgment of the habeas corpus court.

The Defendant, Albert Franklin Thompkins, appeals as of right from the trial court’s revocation of his enhanced probation and reinstatement of his eight-year sentence for rape. The Defendant contends that the trial court abused its discretion in revoking his probation because the State failed to prove that he had violated the terms of his probation in a substantial way in that he had not committed any new crimes nor was there any evidence that he had failed any drug screens. Following our review, we affirm the trial court’s revocation of the Defendant’s probation and order that the Defendant execute his original sentence in confinement.

The District Attorney General denied the request of the Defendant, Aref Al Yamani, for pretrial diversion. The Defendant appealed to the trial court, who found that the District Attorney General had abused its discretion when it denied the Defendant’s request for pretrial diversion because the District Attorney failed to consider all the relevant factors when it denied the Defendant’s request. Based upon this finding, the trial court ordered the District Attorney General to approve the Defendant’s application for pretrial diversion. The State appeals, contending that the proper remedy in this scenario is for the trial court to vacate the District Attorney General’s decision and remand the matter to the District Attorney General to further consider and weigh all the relevant factors, citing State v. Richardson, 357 S.W.3d 620 (Tenn. 2012). After a thorough review of the record and relevant authorities, we conclude the trial court erred when it failed to remand the case to the District Attorney General to consider all the relevant factors. Accordingly, we reverse the trial court’s decision and remand to the Shelby County Criminal Court with directions to remand to the Shelby County District Attorney General for reconsideration in accordance with this opinion.

A Davidson County Criminal Court Jury convicted the appellant, Larry Wayne Webb, of theft of property valued $1,000 or more but less than $10,000, a Class D felony, and the trial court sentenced him as a Range IV, career offender to twelve years. On appeal, the appellant contends, and the State concedes, that the evidence is insufficient to support the conviction. Based upon the oral arguments, the record, and the parties’ briefs, we agree that the evidence is insufficient. Therefore, the conviction is reversed, and the charge is dismissed.
 

The Defendant, Fred Chad Clark, II, was found guilty by a Davidson County Criminal Court jury of seven counts of rape of a child and two counts of aggravated sexual battery. See T.C.A. §§ 39-13-522 (Supp. 2005, 2006) (amended 2007, 2011) (rape of a child), -504 (2006) (aggravated sexual battery). He was sentenced as a Range I offender to seventeen years for each rape of a child conviction and to ten years for each aggravated sexual battery conviction, to be served at 100% as a child rapist. The trial court ordered partial consecutive sentencing, for an effective thirty-four year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions because the State failed to establish the corpus delicti; (2) there was a material variance between the proof and the State’s election of offenses; (3) the trial court erred in admitting surreptitiously recorded conversations he had with his wife on January 18, 2007; (4) the trial court erred in admitting evidence of the Defendant’s use of pornography; (5) the trial court erred in allowing a detective to offer opinion testimony about the Defendant’s truthfulness; (6) the trial court erred in instructing the jury on the mental state of recklessness for the counts involving rape of a child; and (7) the trial court erred in sentencing by using an inapplicable enhancement factor and in imposing consecutive sentences. We affirm the judgments of the trial court in Counts V, VI, VII, IX, and X. Due to deficiencies in the election of offenses relative to Counts I, II, III, and IV, we reverse those convictions and remand the case for a new trial for those counts.

While it is uncertain from the record, it appears the Petitioner, Joe Billy Russell, Jr., pled guilty in 1994 to two counts of the sale of cocaine. Pursuant to a negotiated settlement, which included the Petitioner’s agreement not to apply for alternative sentencing, the trial court sentenced him to two concurrent sentences of four years each. In 2011, the Petitioner filed a pro se motion to vacate the judgment, alleging that he received the ineffective assistance of counsel and that his guilty plea was not voluntarily entered. The trial court dismissed the motion, finding that it was filed beyond the expiration of the statute of limitations. On appeal, the Petitioner contends the trial court erred when it dismissed his petition. After reviewing the record, we affirm the trial court’s judgment.
 

Keith J. Allen (“the Petitioner”) filed a petition for writ of habeas corpus, alleging that the sentence on his first degree felony murder conviction is illegal, and, therefore, his judgment of conviction is void. The habeas corpus court dismissed his petition without a hearing. The Petitioner now appeals, arguing that the trial court lacked authority to impose a life sentence for his conviction. After a thorough review of the record and the applicable law, we affirm the judgment of the habeas corpus court.

The Defendant, Chester Carr Peterson, pled guilty to possession with intent to sell less than .5 grams of cocaine and evading arrest. The trial court sentenced the Defendant to a sentence that included community corrections. The Defendant’s community corrections officer filed a violation warrant, and, after a hearing, the trial court revoked the Defendant’s community corrections sentence, finding that he had violated the terms of his sentence, and ordered him to serve the remainder of his sentence in confinement. On appeal, the Defendant contends that the trial court erred by revoking his community corrections sentence and ordering him to serve the balance of his sentence in prison. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

A Shelby County Criminal Court jury convicted the appellant, Marcus Anderson, of domestic assault by causing reasonable fear of bodily injury, and he received a sentence of eleven months and twenty-nine days. On appeal, the appellant argues that the trial court erred by instructing the jury on domestic assault by causing reasonable fear of bodily injury. Upon review, we affirm the judgment of the trial court.

Adrian Hill ("the Defendant") appeals the trial court’s judgments finding him guilty of failing to comply with a child support order in two separate cases under Tennessee Code Annotated section 36-5-104(a). The trial court convicted the Defendant on one count in each of the two cases after conducting a bench trial. On appeal, the Defendant asserts that he was: (1) denied the right to grand jury action; (2) denied the right to a trial by jury; and (3) sentenced contrary to the applicable sentencing laws for criminal offenses. Upon review, because the statute at issue is a general criminal statute as opposed to a contempt statute, we conclude that the Defendant was entitled to grand jury action as a requirement to invoke the jurisdiction of the trial court. The record demonstrates that the Defendant did not receive grand jury action and did not waive his right to grand jury action. Therefore, we are compelled to vacate the judgments of the trial court and dismiss the charges against the Defendant.

The petitioner, Larry Boyd, appeals the denial of his petition for post-conviction relief. He argues that he received ineffective assistance of counsel, which led him to enter a guilty plea “under duress.” Specifically, he asserts that counsel “refused” to set the case for trial and failed to investigate the facts of the case, interview key witnesses, and adequately communicate with him. After review, we affirm the denial of post-conviction relief.

The Petitioner appeals the denial of his petition for post-conviction relief from his conviction for first degree felony murder. While the Petitioner raised a multitude of issues below, on appeal, his sole issue is whether he received ineffective assistance of counsel at trial. Specifically, the Petitioner makes the following arguments on appeal: (1) that trial counsel failed to present evidence that in the ten years between the first and second trials, the methods by which the State’s expert witness reached his conclusion of arson had been discredited by the scientific community; (2) that trial counsel failed to advance the defense theory of an accidental fire by not calling as a witness the physician who treated both the Petitioner and the victim to testify regarding the burn patterns on their bodies; and (3) that trial counsel failed to move for a mistrial when the State and the State’s witnesses referenced the Petitioner’s prior trial. After a thorough review of the record, we affirm the judgment of the post-conviction court denying relief.

Following a jury trial, the defendant, Joseph Davison, was convicted of two counts of rape and sentenced to twelve years for each count, to be served consecutively in the Department of Correction. On appeal, the defendant argues that the trial court erred in denying his motion to dismiss the indictment based upon the fact that the original charges filed against him only identified his DNA profile, and he was not identified by name until after the statute of limitations had expired. He also challenges the sufficiency of the evidence and imposition of consecutive sentencing. Following our review, we affirm the judgments of the trial court.

The Petitioner, Michael Raines, pro se, appeals the Polk County Criminal Court’s summary dismissal of his petition for post-conviction relief from his conviction for second degree murder and resulting twenty-three-year sentence. On appeal, the Petitioner contends that the trial court erred in concluding that his petition was barred by the Post-Conviction Procedure Act. We affirm the judgment of the trial court.

The Defendant, James Edward Kilby, III, pled guilty to felony reckless endangerment and reckless aggravated assault. For the felony reckless endangerment conviction, the trial court imposed a two-year sentence, ordering the Defendant to serve six months of incarceration before release to the community corrections program. For the reckless aggravated assault conviction, the trial court imposed a four-year sentence, ordering the Defendant to serve eleven months and twenty-nine days of incarceration before release to the community corrections program. The trial court ordered that these sentences be served consecutively, for a total effective sentence of six years, to serve eighteen months of incarceration followed by community corrections. In this appeal, the Defendant contends the trial court improperly ordered the Defendant to serve more than one year in split confinement. After a thorough review of the record and relevant authorities, we conclude that the trial court erred when it sentenced the Defendant. As such, we reverse the trial court’s judgments and remand the cases for a new sentencing hearing.

Defendant, Charles Reginald Underwood, Jr., appeals the trial court’s revocation of his community corrections sentence and the imposition of a sentence of confinement. Following our review of the record, we affirm the judgment of the trial court.

A Bedford County Grand Jury returned an indictment against Defendant, Richard Dale Capps, charging him with two counts of aggravated assault and one count of conspiracy to commit aggravated assault. An indictment was also returned against co-defendant Sarah Malone charging her with conspiracy to commit aggravated assault. The present appeal only involves Defendant. Following a joint jury trial, Defendant was convicted of aggravated assault, reckless aggravated assault, and conspiracy to commit aggravated assault. Co-defendant Malone was convicted as charged. Defendant was sentenced as a Range II offender to eight years for aggravated assault and six years for conspiracy to commit aggravated assault with the sentences to be served concurrently in confinement. Defendant’s conviction for reckless aggravated assault merged with his conviction for aggravated assault. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred in denying his request to admit the prior inconsistent statements of Andrew Pugh and Maurice Smith as substantive evidence; and (3) that the trial court improperly sentenced Defendant as a Range II offender because the State did not give timely notice of its intent to seek enhanced punishment. After a thorough review, we affirm the judgments of the trial court.
 

Appellant, Larry D. McGuire, was indicted by the Maury County Grand Jury for felon in possession of a handgun. After a guilty plea, Appellant was sentenced to two years in incarceration as a Range II, multiple offender. After several months in incarceration, Appellant was granted determinate release. Subsequently, a probation violation warrant was filed. Appellant’s probation was partially revoked for time served and Appellant was reinstated to a new, two-year term of probation. A second probation violation warrant was filed. After a hearing, Appellant’s probation was revoked. The trial court ordered him to serve his sentence in confinement. Appellant appeals, claiming that the trial court erred in determining that he violated his probation and ordering that he serve the sentence in incarceration. After a review of the record and authorities, we conclude that the trial court did not abuse its discretion in revoking Appellant’s probation. Consequently, the judgment of the trial court is affirmed.

A Shelby County jury convicted petitioner, Brenda Holliman, of first degree murder and conspiracy to commit first degree murder. The trial court sentenced her to life imprisonment without the possibility of parole. Subsequently, she filed the instant petition for a writ of error coram nobis, claiming that a co-defendant recanted statements he made at his guilty plea hearing and that the recantation constitutes newly discovered evidence. The coram nobis court summarily dismissed the petition based on the statute of limitations. Following our review, we reverse the judgment of the coram nobis court and remand the matter for an evidentiary hearing.

A Marion County Circuit Court jury convicted the defendant, Eric Lebron Hale, of aggravated robbery, and the trial court imposed a sentence of 17 years’ incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence and contends that the jury instructions provided by the trial court resulted in an improper constructive amendment to the indictment, that a fatal variance existed between the indictment and the proof adduced at trial, that the trial court erred by admitting the testimony of a certain witness, that the trial court committed errors in juryinstructions granted and refused, and that the cumulative effect of the errors deprived him of the right to a fair trial. Because the evidence was insufficient to support the defendant’s conviction of aggravated robbery as it was charged in the indictment, and because the jury instructions on the offense of aggravated robbery resulted in an improper constructive amendment of the indictment, and because a fatal variance existed between the indictment and proof adduced at trial, the defendant’s conviction of aggravated robbery is reversed. In its stead we impose a conviction of the lesser included offense of theft of property valued at $500 or less and remand the case to the trial court for a sentencing hearing on the newly-imposed misdemeanor conviction.

The petitioner, Patrick Trawick, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance by advising him not to testify at trial, which precluded him from presenting his only viable defense. Following our review, we affirm the denial of the petition.