APPELLATE COURT OPINIONS

A Davidson County Criminal Court Jury convicted the appellant, Christopher Earl Watts, of four counts of aggravated child abuse, two counts of aggravated child neglect, and one count of child neglect. After a sentencing hearing, the appellant received an effective sentence of seventy-five years to be served at one hundred percent. On appeal, the appellant contends that (1) the trial court erred by denying his motion to sever the offenses; (2) the trial court erred by instructing the jury that the appellant’s co-defendant was an accomplice; (3) the evidence is insufficient to support the convictions; (4) the trial court erred by failing to merge the appellant’s aggravated child neglect convictions; and (5) his effective sentence is excessive. The State concedes that the trial court erred by failing to merge the appellant’s aggravated child neglect convictions. We conclude that the trial court erred by failing to grant the appellant’s motion to sever but that the error was harmless. We also conclude that the evidence is insufficient to support one of the appellant’s convictions for aggravated child abuse, one of his convictions for aggravated child neglect, and his conviction for child neglect. The appellant’s remaining convictions and effective seventy-five-year sentence are affirmed.

A Shelby County Criminal Court Jury convicted the appellant, Jeremiah Dawson, of aggravated robbery, a Class B felony; carjacking, a Class B felony; and employing a firearm during the commission of a dangerous felony, a Class C felony. After a sentencing hearing, the appellant received an effective sentence of fourteen years in confinement. On appeal, the appellant contends that (1) his dual convictions for carjacking and employing a firearm during the commission of a dangerous felony violate double jeopardy and (2) the evidence is insufficient to support the convictions. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that dual convictions for carjacking by use of force or intimidation and employing a firearm during the commission of a dangerous felony do not violate double jeopardy and that the evidence is sufficient to support the convictions. Nevertheless, we conclude that the appellant’s convictions for carjacking and employing a firearm must be reversed because the trial court improperly instructed the jury. Therefore, the case is remanded to the trial court for a new trial as to those offenses. The appellant’s conviction for aggravated robbery is affirmed.

A Shelby County jury convicted the defendant, Michael Small, of two counts of aggravated robbery, Class B felonies, in case number 01-00913 and two counts of aggravated robbery, Class B felonies, in case number 01-00914. In each case, the trial court merged the convictions and sentenced the defendant as a Range II, multiple offender to twenty years in the Tennessee Department of Correction. The trial court ordered the defendant to serve his sentences in 01-00913 and 01-00914 concurrently with each other and consecutively to the defendant’s sentence in 01-00926. On appeal, the defendant argues that the trial court erred by (1) finding that the defendant’s right to a speedy trial had not been violated; (2) not striking the jury venire after a prospective juror’s outburst; and (3) not declaring a mistrial after the jury indicated it could not reach a unanimous verdict. Following our review, we affirm the judgments of the trial court.

The Defendant, Chesney Cheyenne Bowling, was sentenced by agreement to consecutive sentences of three and one-half years and eleven months and twenty-nine days following her plea of guilty to various drug-related offenses. It is from the trial court’s denial of alternative sentencing that the Defendant appeals. Specifically, the Defendant argues that the trial court attributed excessive weight to her criminal history while not attributing sufficient weight to proof she offered in mitigation. Following our review, we affirm the judgments of the trial court.

The defendant, Patricia Adkisson, appeals her Hickman County Circuit Court jury convictions of 14 counts of aggravated cruelty to animals, see T.C.A. § 39-14-212, 16 counts of cruelty to animals, see id. § 39-14-202(a)(2), one count of the unlawful sale or transportation of dogs or cats, see id. § 44-17-103(a), and one count of unlawful administration of rabies vaccination, see id. § 68-8-103(d), for which she received an effective sentence of five years’ probation to be supervised in a community corrections program, see id. § 40-36-106(f), followed by five years of traditional probation, see id. § 4035-303. On appeal, she contends that trial counsel committed ineffective assistance of counsel, that the State failed to provide exculpatory material, and that the trial court imposed an excessive sentence. Discerning no error, we affirm the judgments of the trial court.

The petitioner, Dennis Burnett, appeals the Monroe County Criminal Court's denial of post-conviction relief from his second degree murder conviction. He argues that trial counsel was ineffective in failing to admit at trial a statement of an alleged witness who invoked the Fifth Amendment upon being subpoenaed to testify; advising the jury during voir dire that he, trial counsel, had been previously indicted; failing to respond to a judgment of conviction belonging to Burnett's co-defendant found in the jurors' bathroom furing trial; failing to adequately prepare Burnett to testify; failing to investigate and call Michael Gibson as a trial witness; and failing to preserve issues in a motion for new trial thereby securing review on direct appeal. Upon review, we affirm the judgment of the post-conviction court.

The defendant, Jeffrey Martin, was convicted by a Maury County jury of sale of cocaine in an amount of .5 grams or more, a Class B felony. Following a hearing, the trial court sentenced him, as a Range III offender,to twenty-five years in the Department of Correction. The court further ordered that the sentence be served consecutively to prior unserved sentences in separate cases. On appeal, the defendant contends that: (1) the evidence is insufficient to support his conviction; (2) the trial court erred in sentencing him as a Range III offender; and (3) the trial court erred in imposing consecutive sentencing. Following review of the record, we find no error and affirm the conviction and sentence.

Defendant-Appellant, Jeffrey Wade Osborne, was convicted after a bench trial for failure to appear, a Class E felony. He was sentenced to five years in the Tennessee Department of Correction as a Range III, persistent offender. On appeal, Osborne argues that the trial court erred by (1) denying his motion for judgment of acquittal at the conclusion of the State’s proof, (2) relying on evidence that was not introduced at trial, namely Osborne’s signature on a form waiving his right to a jury trial, and (3) allowing the case to proceed to trial before the completion of a mental evaluation assessing Osborne’s diminished capacity at the time of the offense. Upon review, we affirm the judgment of the trial court

Defendant, Ronald Duckett, was indicted by the Shelby County Grand Jury for two counts of first degree premeditated murder. Following a jury trial, Defendant was convicted as charged and sentenced by the trial court to serve two concurrent life sentences. In this direct appeal, Defendant asserts that: 1) the trial court erred in refusing to instruct the jury as to voluntary intoxication; 2) the evidence at trial was insufficient to support his convictions; and 3) the trial court erred by reconvening the jury to alter its verdict after the jury had been discharged. Finding no error, we affirm the judgments of the trial court.

The Petitioner, Brandon Watson, appeals the Davidson County Criminal Court’s denial of post-conviction relief from his convictions for two counts of aggravated robbery and his effective eight-year sentence. On appeal, the Petitioner contends that his guilty pleas were not knowingly and voluntarily entered. We affirm the judgment of the trial court.

Petitioner, Roy Allen Scott, appeals the Morgan County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. He claims entitlement to habeas corpus relief because the trial court for the underlying convictions was without jurisdiction to enter his conviction for aggravated assault. In addition, he contends that his convictions for driving under the influence and vehicular assault violate double jeopardy principles. Discerning no error, we affirm the judgment of the habeas corpus court.

Petitioner, Milton Lee Cooper, appeals the Johnson County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. In this appeal, petitioner claims entitlement to habeas corpus relief because of alleged jurisdictional defects in the indictment. He also contends that the trial court constructively amended the indictment by its jury instructions. Discerning no error, we affirm the judgment of the habeas corpus court.

A Shelby County Criminal Court jury found the appellant, Sean Higgins, guilty of driving under the influence (DUI) and reckless driving. The appellant received a total effective sentence of eleven months and twenty-nine days. On appeal, the appellant argues that the evidence was insufficient to sustain his convictions and that the trial court’s allowing the State to question the appellant regarding “the whereabouts of his witnesses and why they were not present to testify on his behalf” shifted the burden of proof to the appellant. Upon review, we affirm the judgments of the trial court.

The Petitioner, Gary V. Bullard, appeals from the Rutherford County Circuit Court’s denial of his petition for post-conviction relief. After trial, a jury convicted him of attempted aggravated rape, a Class B felony, and aggravated assault, a Class C felony. In this appeal, Bullard argues that he received the ineffective assistance of counsel based on a failure to (1) sufficiently cross-examine the investigating police officer,(2) cross-examine the victim,and (3) offer any proof in defense.Upon review, we affirm the judgment of the post-conviction court.

A Davidson County Criminal Court jury convicted the appellant, Nathaniel P.Carson, of two counts of first degree felony murder and two counts of especially aggravated robbery. After a sentencing hearing, the trial court sentenced him to concurrent sentences of life for the murder convictions and fifteen years for the especially aggravated robbery convictions. On appeal, the appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court allowed improper evidence under Rule 404(b), Tennessee Rules of Evidence, and (3) the trial court should have granted his motion to suppress telephone records. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

The petitioner, Ricky Terrell Cox, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of trial and appellate counsel. Following our review, we affirm the denial of the petition.

The defendant, Robert Earl Grady, pled guilty to aggravated burglary, a Class C felony, and theft of property over $1,000, a Class D felony. After a sentencing hearing, he was sentenced to five years in the Department of Correction. On appeal, he argues that the trial court erred in denying him an alternative sentence. Following our review, we affirm the trial court’s imposition of a sentence of confinement.

The defendant, Doris Miller, was convicted by a Shelby County Criminal Court jury of assault by provocative contact, a Class B misdemeanor, and sentenced to three months in the county workhouse. On appeal, she challenges the sufficiency of the convicting evidence and the sentence imposed by the trial court. After review, we affirm the judgment of the trial court.

The petitioner, Don Allen Rodgers, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of trial counsel and that his guilty pleas were unknowing and involuntary. Following our review, we affirm the denial of the petition.

The petitioner, Milton Leon Simpson, appeals the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the summary dismissal on the grounds that the petitioner has failed to state a cognizable claim for habeas corpus relief.

The State appeals the Morgan County Criminal Court’s order granting habeas corpus relief to the Petitioner, Author Ray Turner, and allowing him to withdraw his guilty pleas. The State argues that the Petitioner is not entitled to withdraw his guilty pleas because the thirty percent release eligibility for his two aggravated rape convictions was not a material element of his plea agreement. Upon review, we affirm the habeas corpus court’s judgment allowing the Petitioner to withdraw his guilty pleas if he cannot reach an agreement with the State and remanding the case to the Davidson County Criminal Court for further proceedings.

I concur with the majority opinion. As indicated in the opinion, I have criticized Summers v. Fortner, 267 S.W.3d 1 (Tenn. Crim. App. 2008), for its holding that a habeas court, not the convicting court, is to determine from the existing record if a petitioner subjected to an illegal sentence should be allowed to withdraw a guilty plea. I believe it misinterprets Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006). In Smith, a habeas corpus case, after the court concluded that an illegal sentence had been imposed, it determined from the guilty plea record that the plea to the relevant charge was not material to the “bargained-for” agreement and resulting effective sentence and held that the petitioner was not entitled to withdraw that guilty plea. Id. at 130. It distinguished the case from one in which the illegal sentence materially resulted from a plea agreement. See Henderson v. State ex rel. Lance, 419 S.W.2d 176, 178-79 (Tenn. 1967) (holding that defendant was entitled to withdraw guilty plea upon habeas corpus proceedings where he pled guilty in exchange for an illegal sentence).

The petitioner, Nigel Marlin Reid, Sr., filed in the Hamblen County Criminal Court various motions, including a motion to reopen, which the court treated as a petition for post-conviction relief. The post-conviction court dismissed the petition, and the petitioner appeals. The State filed a motion requesting that this court affirm the post-conviction court’s denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Upon review of the record and the parties’ briefs, we conclude that the post-conviction court properly dismissed the petition. Accordingly, the State’s motion is granted, and the judgment of the post-conviction court is affirmed.

In this extraordinary appeal, the State of Tennessee appeals the trial court’s decision to order a new trial for the defendant, Cordell Remont Vaughn, after a jury returned a guilty verdict of first degree (premeditated) murder and sentenced him to life in prison without the possibility of parole. The trial court, after a hearing, granted the defendant’s motion for a new trial on the grounds of prosecutorial misconduct. The State contends that the trial court abused its discretion because the court: (1) erroneously concluded that a State’s witness committed perjury at a suppression hearing based solely on the defendant’s submission of an affidavit that conflicted with that witnesses’ testimony at that hearing, and (2) erroneously concluded that the outcome of the defendant’s trial would have been different had this alleged perjury not occurred and had the defendant’s motion to suppress been granted. The defendant responds that the trial court properly considered the affidavit and reached the proper conclusion concerning whether the State’s witness committed perjury. Furthermore, the defendant contends that because the perjury at issue related to a constitutional right, the State was required to establish that the effect of the perjury was harmless beyond a reasonable doubt, and it failed to meet that burden. After careful review of the record, we conclude that the trial court abused its discretion by ordering a new trial on the grounds of prosecutorial misconduct because it failed to make any finding that the prosecution had, in fact, engaged in any misconduct. Moreover, the defendant has failed to show any prejudice resulting from the alleged perjury. Accordingly, the judgment of the trial court granting a new trial is reversed.

Petitioner, Marquette Houston, an inmate in the custody of the Department of Correction, appeals the dismissal of his pro se petition for post-conviction relief. The trial court summarily dismissed the petition as time-barred by the statute of limitations. On appeal, Petitioner argues that the trial court erred in dismissing his petition without holding an evidentiary hearing to determine whether the petition was timely filed. The State concedes that the petition was timely filed because Petitioner delivered his petition to the appropriate prison official for mailing within the applicable limitations period. Following a review of the record, we agree and accordingly reverse the order of dismissal and remand this case to the post-conviction court for an evidentiary hearing on the merits of the petition for postconviction relief.