APPELLATE COURT OPINIONS

The petitioner, Jose Rodriguez, brings a post-conviction challenge to his guilty plea, asserting that he received the ineffective assistance of counsel. The petitioner claims that, under Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), his counsel was deficient in failing to advise him regarding the deportation consequences of his guilty plea. The petition was filed more than one year after the guilty plea, and the post-conviction court denied relief based on the statute of limitations pursuant to Tennessee Code Annotated section 40-30-102(a). We conclude that a post-conviction action does not lie when the petitioner’s record has been expunged and no conviction exists. In addition, the trial court was correct in concluding the petition was time-barred. Accordingly, we affirm the post-conviction court’s summary dismissal.

The petitioner, Brenda Reynalda Inzunza, appeals the dismissal of her petition for post-conviction relief as time-barred, arguing that her trial counsel provided ineffective assistance for failing to advise her of the deportation consequences of her guilty plea and that the statute of limitations should be tolled because Padilla v. Kentucky, 559 U.S. ___ , 130 S. Ct. 1476 (2010), announced a new rule of constitutional law that did not exist at the time she entered her plea. In the alternative, she argues that due process considerations should operate to toll the statute of limitations. Following our review, we affirm the summary dismissal of the petition.

I concur with affirming the trial court’s summary dismissal of the petition for post-conviction relief. I respectfully disagree, however, with the majority opinion’s reasoning. I believe the Petitioner’s expunction of his legal proceedings is not a legal impediment to his bringing a post-conviction action. On the other hand, the petition was filed late, and the decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), as to being advised of potential immigration consequences of a guilty plea has been held not to apply retroactively. See, e.g., Francisco Miquel Jose v. State, No. M2011-00295-CCA-R3-PC (Tenn. Crim. App. Sept. 28, 2012).

Defendant was convicted after a trial by jury of two counts of sexual battery, Class E felonies. He was sentenced to eighteen months probation on each count, with the sentences to be served concurrently. On appeal, the defendant claims that the trial court erred by ruling that the defendant could not cross-examine the victim concerning her history of mental illness and use of prescription medications. After review, we conclude that the trial court did not err by limiting the scope of the defendant’s cross-examination of the victim. We affirm the judgments of the trial court accordingly.

The defendant, Raymond Lee Swett, Jr., appeals his Davidson County Criminal Court jury convictions of aggravated burglary, especially aggravated kidnapping, second degree murder, and felony murder, claiming that (1) the evidence was insufficient to support his convictions of especially aggravated kidnapping, second degree murder, and felony murder; (2) the trial court erred by refusing to grant his motion for a mistrial; (3) the trial court erred by effectively amending the indictment via the instructions to the jury; and (4) the sentence was excessive. Discerning no error, we affirm the judgments of the trial court.

The petitioner, Perry Kirkman, pled guilty in the Davidson County Criminal Court to two counts of aggravated sexual battery and received concurrent sentences of fifteen years in the Tennessee Department of Correction (TDOC). Thereafter, he filed for post-conviction relief, alleging that his counsel was ineffective and that his guilty pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner timely appealed. Upon review, we affirm the judgment of the post-conviction court.

Appellant, Ray Neil Thompson, was convicted by a Davidson County jury of one count of aggravated robbery. He was sentenced to twenty-seven years in incarceration as a Range III, persistent offender. After the denial of a motion for new trial, Appellant initiated an appeal. On appeal, he argues: (1) that the trial judge improperly refused to recuse himself; (2) that the trial court improperly denied a motion to suppress Appellant’s statement; and (3) that the trial court improperly sentenced Appellant. After a review of the evidence and authorities, we conclude that the trial court did not abuse its discretion in denying the request for recusal or the motion to suppress and that the trial court properly sentenced Appellant. As a result, the judgment of the trial court is affirmed.

Petitioner, Jimmy Lee Whitmire, was convicted of one count each of especially aggravated kidnapping, aggravated assault, and aggravated burglary. He received an effective sentence of eighteen years. State v. Jimmy Lee Whitmire, No. M2007-01389-CCA-R3-CD, 2009 WL 2486178, at *7 (Tenn. Crim. App., at Nashville, Aug. 13, 2009). He subsequently filed a petition for post-conviction relief arguing that he was afforded ineffective assistance of counsel. After conducting a hearing on the matter, the post-conviction court denied the petition. On appeal, Petitioner argues that he was denied effective assistance of counsel because trial counsel failed to properly advise him regarding testifying at trial. After a thorough review of the record, we conclude that Petitioner has not shown that trial counsel was ineffective or that if trial counsel was ineffective that he suffered prejudice from such. Therefore, we affirm the denial of the petition for post-conviction relief.

The appellant, Bradley Hawks, pled guilty in the Crockett County Circuit Court to possession of .5 grams or more of a Schedule II controlled substance, methamphetamine, with intent to sell and received an eight-year sentence to be served in confinement. As part of the plea agreement, the appellant reserved a certified question of law, namely whether exigent circumstances justified law enforcement’s searching his residence without a warrant. Based upon the record and the parties’ briefs, we conclude that evidence of exigent circumstances does not exist in this case. Therefore, the appellant’s conviction is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

I respectfully disagree with the majority’s conclusion that trial counsel’s actions regarding the Petitioner’s acceptance of the plea agreement did not amount to ineffective assistance of counsel. With respect to the Petitioner’s remaining issue, I concur with the majority’s decision.

Defendant, Andrew Cross, pled guilty in the Polk County Criminal Court, to one count of aggravated burglary, a Class C felony, and one count of Class E felony theft. At the sentencing hearing, the trial court imposed the minimum allowable sentences of three years for aggravated burglary and one year for theft, and ordered the sentences to be served concurrently. The trial court also ordered the effective sentence of three years suspended, to be served on probation, but the trial court denied Defendant’s request to be granted judicial diversion. In this appeal, Defendant argues that he should have been granted judicial diversion. We disagree, and affirm the judgments of the trial court.

The Defendant, David Eugene Breezee, was found guilty by a Benton County Circuit Court jury of rape, a Class B felony, and incest, a Class C felony. See T.C.A. §§ 39-13-503(b); 39-15-302(b). At the sentencing hearing, the incest conviction was merged with the rape conviction, and the Defendant was sentenced to ten years’ confinement. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions and that he erroneously received more than the minimum sentence of eight years because the trial court applied the multiple victims enhancement factor. We affirm the Defendant’s conviction and sentence for rape, but we reverse the trial court’s merger of the incest conviction into the rape conviction, reinstate the incest conviction, and remand for sentencing as to that conviction.

I respectfully dissent. I believe that the record shows that the Defendant deserves judicial diversion and that substantial evidence does not exist to justify the trial court’s denying diversion. The majority opinion accurately describes the many positive factors that support diversion and succinctly states that the trial court denied it because of the Defendant’s "lack of amenability to correction based upon not being credible in his testimony and a lack of honesty with his employer." I do not see this lack of amenability in the record.

Following the Madison County Circuit Court’s denial of his motion to suppress his statement to police, the Defendant-Appellant, Leston Parker, entered open guilty pleas to his charged offenses of promoting the manufacture of methamphetamine, a Class D felony, driving on a canceled, suspended, or revoked license, a Class B misdemeanor, driving while one’s driver’s license is canceled, suspended, or revoked because of a conviction for driving under the influence, a Class B misdemeanor, and violating the registration law, a Class C misdemeanor. The trial court subsequently sentenced Parker to an effective sentence of ten years in the Tennessee Department of Correction. On appeal, Parker argues that the trial court erred by: (1) denying his motion to suppress, and (2) imposing an excessive sentence. Upon review, we conclude that only the sentencing issue is properly before this court because Parker failed to reserve a certified question of law regarding the trial court’s denial of his motion to suppress. Accordingly, we dismiss the portion of the appeal regarding the denial of Parker’s motion to suppress, and we affirm his effective sentence of ten years. However, we remand the case to the trial court for the purpose of merging the conviction for driving while one’s driver’s license is canceled, suspended, or revoked because of a conviction for driving under the influence with the conviction for driving on a canceled, suspended, or revoked license.

The petitioner, Jermaine R. Carpenter, filed for post-conviction relief from his conviction of simple possession of cocaine and two convictions of the sale of .5 grams or more of a substance containing cocaine within 1,000 feet of a school zone, alleging that his trial counsel was ineffective. The post-conviction court denied the petition, and the petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

The Defendant, Misty Lynn Nanney, pled guilty to one count of theft of property valued at more than $500 but less than $1,000, a Class E felony; one count of forgery, a Class E felony; one count of possession with intent to sell less than .5 grams of cocaine, a Class C felony; two counts of possession of drug paraphernalia, a Class A misdemeanor; and one count of tampering with evidence, a Class C felony. See Tenn. Code Ann. §§ 39-14-103, -14-105(a)(2), -14-114, -16-503, -17-417(c)(2)(A), -17-425(a). Following a sentencing hearing, the Defendant received an effective eight-year sentence to be served in confinement. In this appeal as of right, the Defendant contends that the trial court erred by denying her request for probation. Following our review, we affirm the judgments of the trial court.

The Defendant, Mershaun William Scott, was convicted in a bench trial by the Davidson County Criminal Court of simple possession of marijuana and received a thirty-day sentence, suspended to unsupervised probation, and a $250 suspended fine. See T.C.A. § 39-17-418 (2010). The Petitioner contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

 The Petitioner, Brittany Scott Pye, appeals from the Maury County Circuit Court’s denial of post-conviction relief. He was convicted of sale of .5 grams or more of cocaine and sentenced as a multiple offender to fifteen years in the Department of Correction. In this appeal, the Petitioner contends that he received ineffective assistance of counsel based on trial counsel’s failure to communicate his acceptance of the State’s offer of settlement prior to trial. He also contends that the trial court abused its discretion in refusing to accept his guilty plea after a trial date had been scheduled. Upon review, we affirm the judgment of the post-conviction court.
 

The Defendant, Memory Gayle Hall, entered open pleas of guilty to driving under the influence of an intoxicant (DUI), speeding, and failing to provide evidence of financial responsibility. At sentencing, the trial court ordered her to serve forty days on consecutive weekends in the county jail, followed by probation for the balance of the eleven months and twenty-nine day sentence. She challenges the trial court’s denial of full probation, contending that she was a favorable candidate. After reviewing the record and applicable authorities, we affirm the judgments of the trial court.

The Petitioner, Kenneth Gregory Allen, appeals from the Marshall County Circuit Court’s summary dismissal of his pro se petition for post-conviction relief. On appeal, the Petitioner asserts that the post-conviction court erred in failing to acknowledge his claim of ineffective assistance of counsel and dismissing his petition based solely on finding that the issues raised therein were previously determined. Upon review, we reverse the judgment of the post-conviction court and remand for appointment of counsel and an evidentiary hearing with regard to the Petitioner’s ineffective assistance of counsel claim.

Carlos Burris (“the Defendant”) appeals his convictions in two separate trials for attempting to obtain a controlled substance by fraud and driving on a suspended license, fourth offense. The trial court sentenced the Defendant to six years for the attempting to obtain a controlled substance by fraud conviction and to eleven months, twenty-nine days for the driving on a suspended license conviction. The trial court also ordered that the two sentences run consecutively. On appeal, the Defendant contends that the evidence presented at both trials was insufficient to support his convictions. Additionally, the Defendant contends that his sentence for the first conviction was excessive and that the trial court erred by running the two sentences consecutively. After a thorough review of the record and the applicable law, we affirm the Defendant’s convictions and sentences.

Jarvis Q. Williams (“the Petitioner”) filed for post-conviction relief from his convictions of seven counts of especially aggravated kidnapping and four counts of aggravated robbery, alleging ineffective assistance of trial and appellate counsel and denial of a public trial. After a hearing, the post-conviction court granted relief in the form of a reduced sentence but otherwise denied relief. This appeal followed. Upon our thorough review of the record, we affirm the judgment of the post-conviction court.

Following a bench trial, the Defendant, Deborah Davis, was convicted of one count of driving under the influence (DUI), first offense, a Class A misdemeanor. See Tenn. Code Ann. § 55-10-401. The Defendant was sentenced to eleven months, twenty-nine days with forty-eight hours to be served in confinement and the remainder to be served on unsupervised probation. In this appeal as of right, the Defendant contends (1) that the trial court erred by denying her motion to suppress all evidence gathered by the police pursuant to an accident investigation because such evidence was protected by the accident report privilege of Tennessee Code Annotated section 55-10-114(b); and (2) that the evidence was insufficient to sustain her conviction. Following our review, we conclude that these issues are without merit and affirm the judgment of the trial court.

The Defendant, Andrea Nichole Bean, pled guilty to the sale and the delivery of .5 grams or more of cocaine. At the sentencing hearing, the trial court merged the two convictions and imposed a sentence of sixteen years as a Range II, multiple offender to be served in the Department of Correction ("DOC"). In this direct appeal, the Defendant contends that the trial court erred in denying her an alternative sentence. After our review, we affirm the judgment of the trial court.

After a trial by jury, the defendant was convicted of one count of theft of property valued at more than $1,000 but less than $10,000, a Class D felony. She was sentenced as a Range I, standard offender to two years, with credit for time served and the balance to be served on probation as an alternative sentence. The defendant now appeals, claiming that the evidence is insufficient to support her conviction and that the trial court erred by denying her motion to suppress evidence seized by police during a search of her property, both before and after the issuance of a search warrant. For the reasons that follow, we affirm the judgment of the trial court.