APPELLATE COURT OPINIONS

The petitioner, Markese Brooks, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.

Following his guilty pleas to nine felonies, the appellant, Derrick Lamont Parrish, received a total effective sentence of sixteen and one-half years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the length of the sentences imposed by the trial court. Upon review, we affirm the judgments of the trial court

Petitioner, Jerry McGaha, pled guilty in the Cocke County Circuit Court to nine counts of rape of a child. He was sentenced to twenty-five years on each count. After imposing consecutive sentences, Petitioner received an effective sentence of fifty years. After his direct appeal to this Court, his effective sentence was reduced to forty-six years. State v. Jerry McGaha, No. E2001-01547-CCA-R3-CD, 2002 WL 499273, at *1 (Tenn. Crim. App., at Knoxville, Apr. 3, 2002). After a delayed appeal to the supreme court, which was achieved through the filing of a petition for post-conviction relief, Petitioner filed a subsequent petition for post-conviction relief arguing that trial counsel was ineffective for failing to raise the issue that the enhancement of his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000). The post-conviction court denied the petition. On appeal, Appellant argues that he was afforded ineffective assistance of counsel because trial counsel failed to raise Apprendi. We conclude that he must fail on this issue because at the time of the sentencing hearing our supreme court had held that Apprendi did not affect the Tennessee sentencing scheme. Therefore, trial counsel could not be ineffective for failing to raise the issue. Petitioner also argues that it was plain error for the trial court to not raise Apprendi. Because this issue was not a basis for relief included in his petition, this issue is waived. Therefore, we affirm the post-conviction court’s denial of the petition for post-conviction relief.

Appellant, Timothy Bryant Burton, appeals his Bedford County conviction for violation of the sex offender registry and the State’s use of his prior convictions to establish his status as a violent sex offender. After a review of the record, we conclude that Appellant failed to timely register with a law enforcement agency within forty-eight hours of his change of residence in violation of Tennessee Code Annotated section 40-39-203 or, in other words, that the evidence was sufficient to support the conviction. Additionally, Appellant waived any issue with regard to the admission of evidence by failing to object at trial or raise the issue in a motion for new trial and is not entitled to plain error review. As a result, the judgment of the trial court is affirmed.

A Chester County Circuit Court jury convicted the appellant, Robert Charles Brown, of eighty-five counts of rape of a child, a Class A felony. After a sentencing hearing, the appellant received an effective one-hundred-year sentence to be served at one hundred percent. On appeal, the appellant contends that the trial court erred by (1) denying his motion to dismiss the indictment because he was deprived of his right to a speedy trial, (2) allowing a State witness to testify about an incriminating hearsay statement made by the appellant, and (3) failing to require the State to make an election of offenses. The State acknowledges that the trial court erred regarding the election of offenses but argues that the error is harmless. We conclude that the trial court committed reversible error by failing to require the State to make an election of offenses. Therefore, the appellant’s convictions are reversed, and the case is remanded to the trial court for a new trial.

Defendant, Victor D. McMiller, was charged with two counts each of the sale and delivery of dihydrocodeinone, a Schedule III controlled substance. Defendant was convicted on all four counts. His convictions for delivery of a controlled substance were merged into his convictions for sale of a controlled substance, and Defendant was sentenced to 12 years for each conviction, and his convictions were ordered to be served consecutively for an effective sentence of 24 years. On appeal, Defendant argues that: 1) the evidence was insufficient to support his convictions; 2) the trial court erred by allowing testimony of Defendant’s prior bad acts; 3) the presentment was facially invalid because it states that sale or delivery of a Schedule III controlled substance is a Class C, rather than Class D, felony; and 4) the trial court erred by ordering consecutive sentences. After a careful review of the record, we affirm Defendant’s convictions and sentences.

The petitioner, Walter Leon Cross, pled guilty in the Tipton County Circuit Court to felony failure to appear, eleven counts of forgery, three counts of theft over $1,000, and two counts of identity theft. Pursuant to the plea agreement, he received an effective sentence of twenty years. Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and that his pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

On appeal, the appellant, David Harris, Jr., complains that the trial court abused its discretion by revoking his two-year probationary sentence for the promotion of methamphetamine manufacturing and ordering him to serve his sentence in confinement. He contends that after revoking his sentence, the trial court should have granted him a sentence of split confinement. Upon review, we affirm the judgment of the trial court.

The Petitioner, Willie D. Robinson, was convicted by a Shelby County jury of first degree felony murder in the perpetration of a robbery and received a sentence of life imprisonment. He subsequently filed a petition for writ of habeas corpus in the Morgan County CriminalCourt, which was summarily dismissed. On appeal, the Petitioner argues that the indictment charging him with first degree felony murder was so defective as to deprive the convicting court of jurisdiction to impose judgment. Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.

The Petitioner, Patrick Thurmond, was convicted by a Davidson County jury of one count of aggravated burglary (count 1), two counts of aggravated rape (counts 2 and 3), one count of attempted aggravated rape (count 4), and one count of aggravated sexual battery (count 5). He subsequently filed a pro se petition for writ of habeas corpus in the Johnson County Criminal Court, which was summarily dismissed. On appeal, the Petitioner argues: (1) the habeas corpus court erred in dismissing his petition without an evidentiary hearing, and (2) his judgments for counts one, three, four, and five are void because they violate the double jeopardy clauses of the United States and Tennessee Constitutions. Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.

Marease Antonio Crawford, Appellant, was indicted by the Bedford County Grand Jury in July 2010 in a multi-count indictment. Appellant entered an open plea to the indictment with sentencing to be determined by the trial court. After a sentencing hearing, the trial court sentenced Appellant to an effective sentence of twelve years. Appellant appeals the imposition of consecutive sentences and the failure of the trial court to merge two of the convictions. After a review of the record, we determine that Appellant did not waive the issue of double jeopardy by virtue of his guilty plea but that double jeopardy does not bar the convictions for Count Three, sale of marijuana, and Count Seven, possession of marijuana for resale. However,we conclude that double jeopardy bars Appellant’s convictions for both simple possession and possession of marijuana for resale where the offenses arose out of one incident of possession. We affirm the trial court’s imposition of consecutive sentencing on the basis that Appellant had an extensive criminal history. Accordingly, we vacate Appellant’s conviction for simple possession. Appellant’s remaining convictions and sentences are affirmed.

The Defendant-Appellant, Angela Colley, entered guilty pleas to selling 0.5 grams or more of cocaine on June 9, 2008 (count one), delivering 0.5 grams or more of cocaine on June 9, 2008 (count two), selling less than 0.5 grams of cocaine on June 17, 2008 (count three), and delivering less than 0.5 grams of cocaine on June 17, 2008 (count four) in the Sullivan County Criminal Court. Pursuant to her plea agreement, count two merged with count one and count four merged with count three, and Colley received a sentence of eight years at thirty percent for count one and a concurrent sentence of three years at thirty percent for count three, for an effective sentence of eight years, with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court denied all forms of alternative sentencing. On appeal, Colley argues that the trial court erred in denying her request for an alternative sentence. Upon review, we reverse the judgments of the trial court and remand for entry of judgments sentencing Colley to community corrections and for consideration of other terms and conditions that the trial court deems appropriate pursuant to the Community Corrections Act.

The defendant pled guilty to driving under the influence of an intoxicant (“DUI”), first offense, and reserved the following two certified questions: (1) “Whether a magistrate that conducts field sobriety tasks upon a defendant prior to issuance of a warrant is qualified as [a] ‘neutral and detached’ magistrate for purposes of the Fourth Amendment to the Constitution of the United States or its laws and/or in violation of the Constitution of the State of Tennessee and its laws”; and (2) “Whether the issuance of a warrant after the administration of field sobriety tasks by a magistrate to a defendant [was] in violation of the Constitution of the State of Tennessee and/or its laws.” After the challenged warrant was issued,the Grand Jury indicted the defendant, charging him with one count of DUI. We hold that the certified questions are notdispositive of the defendant’s case because the subsequent indictment cured any defects in the warrant. Accordingly, the appeal is dismissed.

I respectfully dissent from the majority opinion because I feel the defendant has not included an adequate record for review. Here, as the majority has noted, the defendant has failed to include the plea submission hearing transcript. I concluded this failure precludes our de novo review of the defendant’s sentences and requires this court to presume that the evidence supports her sentences.

The Defendant-Appellant, Jackie Darrell Messer, was indicted by the Cocke County Grand Jury for rape of a child, a Class A felony. He subsequently entered a guilty plea as a Range I, standard offender to the offense of attempted sexual battery by an authority figure, a Class D felony, with the length and manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the court imposed a sentence of four years in the Tennessee Department of Corrections. On appeal, Messer argues that the trial court erred in denying his request for an alternative sentence. Upon review, we affirm the trial court’s judgment.

The appellant, Isaac Thomas, pled guilty to aggravated assault and received a probationary sentence of three years. Subsequently, the trial court revoked the appellant’s probation and imposed a sentence of split confinement, with eleven months and twenty nine days to be served in jail and the remainder to be served on supervised probation. On appeal, the appellant challenges the revocation of his probation and the trial court’s imposition of split confinement. Upon review, we affirm the judgment of the trial court.

Appellant, Robert Jason Burdick, was indicted for several offenses by the Davidson County Grand Jury in May of 2008. At issue herein is Appellant’s indictment for aggravated rape allegedly occurring on March 1, 1994. After a trial in October of 2009, Appellant was found not guilty of aggravated rape but guilty of the lesser included offense of attempted aggravated rape. As a result, Appellant was sentenced to ten years in incarceration, to be served consecutively to sentences for other convictions that are unspecified in the record herein. On appeal,Appellant argues that the issue before this Court is whether his conviction is barred by the statute of limitations. We hold that the affidavit of complaint in this case establishes probable cause and that a John Doe warrant with a DNA profile as identifying information is sufficient to commence a prosecution. Therefore, from the record before us it appears that the prosecution against Appellant commenced with the issuance of a valid arrest warrant, well within the applicable statute of limitations. Accordingly, the judgment of the trial court is affirmed.

Appellant was convicted following a jury trial of two counts of second degree murder and one count of aggravated assault. At a separate sentencing hearing, the trial court sentenced Appellant to twenty-two years as Range I, violent offender, for each second degree murder conviction and to five years for the aggravated assault conviction. The trial court merged one of the second degree murder convictions and the aggravated assault conviction into the remaining second degree murder conviction. On appeal, Appellant argues that (1) the evidence was insufficient to support his conviction for second degree murder; (2) the trial court erred in excluding a drawing from evidence; (3) the trial court erred in denying Appellant’s request for a mistrial; (4) the State committed prosecutorial misconduct by suborning perjury of one of its witnesses; (5) the State committed prosecutorial misconduct by making inappropriate comments during closing argument; (6) the cumulative effects of errors at trial precluded a fair trial; and (7) the trial court erred in sentencing Appellant. We have reviewed the record on appeal and conclude that Appellant cannot be successful on any of the above issues. Therefore, we affirm the judgments of the trial court.

The petitioner, Richard Madkins, appeals the Lauderdale County Circuit Court’s dismissal of his petition for writ of habeas corpus, arguing that he is being illegally restrained because his sentence is void and expired. Following our review, we affirm the summary dismissal of the petition.

The petitioner, Norris E. Ray, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing he received the ineffective assistance of counsel at trial and on appeal. After review, we affirm the denial of the petition.

The Petitioner, Ivano Stamegna, pled guilty to attempt to possess more than 300 grams of cocaine, and the trial court sentenced him to eight years. In 2010, the Petitioner filed a petition for post-conviction relief. After a hearing, the post-conviction court dismissed the petition, concluding that he did not file his petition within the applicable statute of limitations. On appeal, the Petitioner contends that the post-conviction court erred because either the statutory exception for new, retrospectively applicable constitutional rights or the constitutional exception for due process require the tolling of the statute of limitations. After a thorough review of the record and the applicable authorities, we affirm the post-conviction court’s judgment.

Michael Vincent Ricco (“the Petitioner”) was convicted by a jury of rape of a child and aggravated sexual battery. This conviction was affirmed on direct appeal. The Supreme Court denied the Petitioner’s application for permission to appeal. See State v. Michael Vincent Ricco, No. W2008-00756-CCA-R3-CD, 2009 WL 2191872 (Tenn. Crim. App. July 23, 2009), perm. app. denied, (Tenn. Dec. 14, 2009). The Petitioner filed for post-conviction relief, claiming that he was denied effective assistance of counsel at trial. After an evidentiary hearing, the post-conviction court denied relief, and the Petitioner has appealed. After a thorough review of the record and the applicable law, we affirm the decision of the post-conviction court.

A Williamson County Circuit Court jury convicted the defendant, Joni Michelle Osborne, of simple possession of a controlled substance (methamphetamine), see T.C.A. § 39-17-418(a) (2006), and violation of the seatbelt law, see id. § 55-9-603. Following the jury’s verdict, the trial court found the defendant guiltyof felonious simple possession based upon her prior history of drug convictions, see id. § 39-17-418(e),and imposed an effective sentence of two years consisting of 30 days’ incarceration in jail and the service of the remaining portion of her sentence on probation. On appeal, the defendant argues that the trial court erred by denying her motion to suppress the fruits of the search of her vehicle, denying her motion to continue the trial, and referring to an exhibit as “illegal drugs” in its instructions to the jury, and that the cumulative effect of these errors deprived her of a fair trial. Discerning no error, we affirm the judgments of the trial court

The defendant, Debra Elaine Moore Kirk, stands convicted of criminally negligent homicide, a Class E felony, and aggravated child abuse, a Class A felony. The trial court sentenced her as a Range I, standard offender to an effective sentence of 25 years in the Tennessee Department of Correction. In a previous appeal, this court ruled that the defendant waived all issues other than sufficiency of the evidence by failing to file a timely motion for new trial and affirmed the judgments of the trial court. See State v. Debra Elaine Moore, No. E2007-00533-CCA-R3-CD (Tenn. Crim. App., Knoxville, June 23, 2008). A postconviction court granted post-conviction relief in the form of a delayed appeal. In this appeal, the defendant argues that the trial court erred by allowing certain testimony from the medical examiner and that the evidence was insufficient to support her convictions. Our previous determination that the evidence was sufficient to support the defendant’s convictions is the law of the case, and we do not consider this issue. Following our review of the remaining issues, we conclude that the trial court  committed no reversible error and affirm the judgments of the trial court.

Defendant-Appellant, Barry D. Harris, Jr., pled guilty in the Circuit Court of Williamson County to aggravated assault, a Class C felony, unlawful carrying or possession of a weapon, a Class E felony, and simple possession of a controlled substance, a Class A misdemeanor. The trial court sentenced Harris as a Range I, standard offender to an effective term of six years’ imprisonment in the Department of Correction. Harris attempted to reserve a certified question of law under Rule 37 of the Tennessee Rules of Criminal Procedure, addressing whether the trial court erred in denying his motion to suppress evidence discovered as a result of a search of his residence. Because Harris failed to comply with the proper procedure for reserving such a question, we conclude that we are without jurisdiction to consider it. Additionally, Harris appeals the length of his sentence, arguing that the sentence does not conform to the statutory purposes of sentencing. Upon review, we affirm the judgments of the trial court.