APPELLATE COURT OPINIONS

A Knox County Criminal Court jury convicted the appellant, Ivan Charles Graves, of first degree premeditated murder and felony murder committed during the perpetration of a kidnapping. Immediately after the jury’s verdict, the trial court merged the convictions and sentenced the appellant to life in prison. On appeal, the appellant contends that (1) the evidence is insufficient to support the premeditated murder conviction because the State failed to show he premeditated killing the victim; (2) the evidence is insufficient to support the convictions because the testimony  of one of the witnesses was irreconcilable with the physical evidence; (3) the State’s use of his  recorded jail conversations during its case-in-chief violated his constitutional rights; (4) the trial  court committed plain error by allowing the jury to have transcripts of the recorded conversations  during its deliberations; (5) the trial court erred by dismissing a potential juror for cause and failing to dismiss another juror for cause; and (6) the trial court erred by allowing a State witness to testify about the appellant’s prior bad acts. Although the trial court erred with regard to the transcripts, the errors do not warrant reversal, and we affirm the appellant’s convictions.

The Defendant, Dewitt William Stickle III, was charged with two counts of aggravated assault. Following a jury trial, he was convicted of one count of the lesser-included offense of assault, a Class A misdemeanor. See Tenn. Code Ann. § 39-13-101(b)(1). In this direct appeal, the Defendant, who maintained that he hit the victim in self-defense, contends that the trial court erred when it excluded testimony intended to corroborate his theory that the victim was the first  aggressor. After our review, we affirm the judgment of the trial court.

The Petitioner, Donald Ray Jones, pleaded guilty to two counts of first degree murder and received concurrent terms of life with the possibility of parole. The Petitioner filed a timely petition for post-conviction relief and, after a hearing, the post-conviction court denied relief. In this appeal, the sole issue that the Petitioner raises is that he was denied effective assistance of counsel because his Trial Counsel failed to request insanity and competency evaluations. After our review, we conclude that the Petitioner’s appeal should be dismissed because his notice of appeal was not timely filed.

Petitioner, James Paul Hurt, was convicted by a Marshall County jury of selling 0.5 grams or more of cocaine and delivery of 0.5 grams or more of cocaine. The trial court merged the convictions, and on direct appeal, this court affirmed the judgment of the trial court. State v. James Paul Hurt, No. M2006-02381-CCA-R3-CD, 2007 WL 4552987 (Tenn. Crim. App. at Nashville, Dec. 27, 2007), no perm. to app. filed. Subsequently, Petitioner timely filed a petition for post-conviction relief. Following an evidentiary hearing, the trial court denied relief and dismissed the petition. Petitioner appeals, arguing that his trial counsel provided ineffective assistance of counsel. Following review of the briefs and the record, we affirm the judgment of the post-conviction trial court.

A Davidson County jury convicted the Petitioner, Levi Battle, III, of possession of twenty-six grams or more of cocaine with intent to sell or deliver, and the trial court sentenced him to thirty years, at 60%, in the Tennessee Department of Correction. The Petitioner filed a petition for habeas corpus relief, in which he alleged that his sentence was illegal because he was sentenced outside of his sentencing range. The habeas corpus court dismissed the petition, and the Petitioner appeals the habeas corpus court’s judgment. After careful review, we affirm the judgment of the habeas corpus court.

Defendant, Robert Conley, filed a pro se notice of appeal which was timely as to the trial court’s order denying Defendant’s motion for reduction of sentence pursuant to Tennessee Rule of Criminal Procedure 35. The trial court subsequently appointed counsel to represent Defendant. In his brief on appeal, Defendant challenges the trial court’s order revoking his community corrections sentence and ordering service of the fourteen-year sentence by incarceration, in addition to arguing that the trial court erred by denying his Rule 35 motion. We conclude that the issue regarding revocation of the community corrections sentence is waived by Defendant’s failure to timely appeal that order. Further, we find that the trial court did not abuse its discretion by denying Defendant’s Rule 35 motion, and, accordingly affirm the judgment of the trial court.

The Petitioner, Shawn Blair, appeals the post-conviction court’s dismissal of his petition for post-conviction relief from his two convictions for simple possession of marijuana and resulting sentences of eleven-months, twenty-nine days for each conviction to be served consecutively. The post-conviction court summarily dismissed the petition without appointing counsel or conducting a hearing on the basis that the Petitioner had filed it while his direct appeal was pending. The Petitioner argues that he is entitled to post-conviction relief because he did not plead guilty knowingly and voluntarily and because he received the ineffective assistance of counsel. The State contends that the post-conviction court improperly dismissed the petition because the  Petitioner did not file it prematurely. Upon review of the record and the parties’ briefs, we reverse the judgment of the post-conviction court and remand the case for further proceedings consistent  with this opinion.

Defendant, Sonny Wayne Smith, was indicted by the Marshall County Grand Jury for harassment, a class E felony, in violation of Tenn. Code Ann. § 39-17-308. Defendant entered a guilty plea to the offense as charged. Following a sentencing hearing, Defendant was sentenced as a Range I standard offender to serve two years in confinement, and his sentence was ordered to be served consecutively to a misdemeanor sentence. In this direct appeal, Defendant challenges the length of his sentence and the consecutive sentencing. After review, we affirm the judgment of the trial court.

The Defendant, Andrew Colin Hicks, appeals as of right from the trial court’s denial of judicial diversion following his guilty plea to facilitation of attempted aggravated arson, a Class C felony. Following a sentencing hearing, the trial court imposed a sentence of three years probation. The Defendant contends that the trial court erred by denying his application for judicial diversion. Following our review, we affirm the judgment of the trial court.

The Petitioner, Sandra Kay Hembree, pleaded guilty to second degree murder and especially aggravated robbery. She received two twenty-year sentences, those sentences to be served concurrently at 100%. She now appeals from the Cocke County Circuit Court’s order denying post-conviction relief, contending that this denial was error because she received the ineffective  assistance of counsel and, consequently, entered her pleas involuntarily and unknowingly. Specifically, she contends that trial counsel failed to interview the State’s witnesses, failed to provide her with discovery materials, and failed to meet with her often enough to adequately prepare for trial. Following our review of the record, we affirm the judgment of the post-conviction court.

A Davidson County jury convicted the defendant, Martha Patlan, of aggravated child abuse, a Class A felony, and first degree felony murder during the perpetration of aggravated child abuse. The trial court sentenced the defendant to a mandatory sentence of life imprisonment for the murder conviction and, consecutive to the life sentence, twenty years for the aggravated child abuse conviction both to be served in the Tennessee Department of Correction. On appeal, the  defendant argues that (1) the evidence was insufficient to convict her of aggravated child abuse and felony murder; (2) her felony murder conviction is unconstitutional; (3) the trial court erred when it failed to require the state to elect an incident of neglect; (4) the trial court erred when it refused to allow testimony regarding bruises on the defendant’s face; (5) the trial court erred when it allowed certain photographs into evidence; (6) the trial court erred in overruling the defendant’s objection to the use of the term Battered Child Syndrome; and (7) the trial court erred by ordering that the defendant serve her sentences consecutively. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgments of the trial court.

The Defendant, Christopher Collins, was indicted by the Lawrence County grand jury on three counts of felony child neglect, a Class E felony. The Defendant waived his right to trial by a jury and was convicted by the trial court of two counts of felony child neglect and one count of misdemeanor child neglect. The Defendant received concurrent sentences of 18 months in the  Tennessee Department of Correction for the felony convictions and a concurrent sentence of 11 months and 29 days in the county jail for the misdemeanor conviction. In this appeal as of right, the Defendant contends that the evidence was insufficient to sustain his convictions and that in the alternative, he should have been convicted of attempted child neglect. Following our review, we conclude that there was insufficient evidence to sustain the Defendant’s convictions. As there was sufficient evidence to sustain a conviction of attempted child neglect, we reverse and vacate the Defendant’s convictions of felony and misdemeanor child neglect and impose two convictions of attempted felony child neglect, a Class A misdemeanor, and one conviction of attempted child neglect, a Class B misdemeanor. The case is remanded for a new sentencing hearing.

The Defendant, Jonathan T. Stewart, entered a plea of guilty to driving under the influence, first offense. The trial court imposed a sentence of eleven months and twenty-nine days to be suspended to probation after the service of forty-eight hours of confinement. As part of the plea agreement, the Defendant attempted to reserve a certified question of law, challenging the trial court’s denial of his motion to suppress the evidence resulting from his traffic stop.  Because the Defendant has failed to properly certify his issue for review, the appeal is dismissed.

The Defendant, Melvin L. Finley, pleaded guilty to one count of aggravated robbery, a Class B felony. See Tenn. Code Ann. § 39-13-402(b). The trial court sentenced the Defendant as a Range I, standard offender to nine years in the Department of Correction. In this direct appeal, the Defendant contends that the trial court erred when it: (1) did not sentence him to the Community Corrections Program; and (2) did not consider his drug addiction as a mitigating factor. After our review, we affirm the judgment of the trial court.

The Petitioner, Celso Vilorio Melendez, aka Edwin Canales, appeals as of right the Davidson County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner alleges that his guilty pleas to two counts of facilitation to deliver over 300 grams of cocaine, a Class B felony, was not voluntarily, knowingly and understandingly made due to the ineffective assistance of counsel. Specifically, he contends that trial counsel did not advise him of the eligibility requirements for participation in the Department of Correction’s (DOC) Boot Camp Program, and that, had he been properly advised, he would not have pleaded guilty. After the appointment of counsel and a full evidentiary hearing, the post-conviction court found that the Petitioner failed to prove his allegations by clear and convincing evidence and denied the petition. Following our review, we conclude that trial counsel rendered deficient representation when he incorrectly advised the Petitioner that he was eligible for the boot camp program. We reverse the judgment of the post-conviction court and remand for a determination regarding whether that deficiency was prejudicial to the Petitioner.

The Petitioner, Gene Shelton Rucker, appeals the habeas corpus court’s summary dismissal of his petition for habeas corpus relief from his convictions for criminally negligent homicide and aggravated arson. In his petition, he asserts that his sentence is illegal because it was improperly enhanced in violation of the United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296 (2004). Following our review of the record and the applicable authorities, we conclude that principles of res judicata dictate that this issue not be relitigated. The order of dismissal is affirmed.

Following his convictions for second degree murder and theft, the Petitioner, Christopher Kyle, filed a petition for post-conviction relief, alleging that his trial and appellate counsel were ineffective, specifically in failing to challenge the accuracy of the autopsy report and the sentencing procedure employed by the trial court. After a hearing, the post-conviction court denied the petition, and the Petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

A Marshall County jury convicted the Defendant, Brian Mark Driggers, of forgery and misdemeanor theft, and the trial court sentenced him to one year and three months to be served in the Tennessee Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to support his convictions, that the State failed to prove venue, and that the trial court erred when it denied the Defendant an alternative sentence. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

Following a bench trial, the Defendant, Charles Phillip Maxwell, was convicted of driving on a suspended license, a Class B misdemeanor. The trial court revoked the Defendant’s license for a year and sentenced the Defendant to 30 days in the county jail, suspended to probation following the service of 24 hours in the county jail. In this appeal as of right, the Defendant contends that the evidence was insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

The Petitioner, Calvin Owens, appeals from the Shelby County Criminal Court’s denial of post-conviction relief from his convictions for one count of attempted second degree murder, one count of attempted especially aggravated robbery, and two counts of aggravated robbery. On appeal, the Petitioner argues that trial counsel was ineffective in failing to communicate with him, in failing to properly investigate his case, in withdrawing the suppression motion regarding the photo spread identification, in questioning the victim regarding the bad dreams he had while recovering from his injuries in the hospital, and in failing to advise him about the advantages and disadvantages of testifying at trial. In addition, the Petitioner argues that appellate counsel was ineffective in failing to appeal a hearsay issue that was included in the motion for new trial. Upon review, we affirm the judgment of the post-conviction court.

Following a bench trial, the Defendant, Alan Dale Bobyarchick, was convicted of violating an order of protection, a Class A misdemeanor. See Tenn. Code Ann. § 39-13-113(g). In this direct appeal, he contends that, in the Order of Protection, the circuit court did not make any specific findings of fact that he committed domestic abuse, sexual assault, or stalking, and, therefore, he could not be convicted of violating the Order of Protection pursuant to Tennessee Code Annotated section 39-13-113(f)(3). After our review, we affirm the judgment of the trial court.

A Davidson County jury convicted Petitioner, Keith L. Jackson, of one count of possession with the intent to sell twenty-six grams or more of a substance containing cocaine in a drugfree school zone and one count of possession of a firearm with the intent to employ it in the commission of or escape from an offense. He was sentenced to an effective sentence of thirty-six years. Following an appeal to this Court, his conviction for possession of a firearm was reversed. Petitioner filed a petition for post-conviction relief which was unsuccessful. His subsequent petition for writ of habeas corpus was also unsuccessful. Petitioner has filed a second petition for writ of habeas corpus which was summarily dismissed by the habeas corpus court. Petitioner appeals the dismissal of his petition in this appeal. He argues that his sentence requiring a 100% release eligibility is unconstitutional and is contrary to the Sentencing Reform Act of 1989. After a thorough review of the record, we affirm the dismissal of the petition because these issues were determined by this Court in Petitioner’s prior appeal from the dismissal of his earlier petition for writ of habeas corpus.

The petitioner, James E. Lofton, appeals the Lauderdale County Circuit Court’s dismissal of his petition for writ of habeas corpus. Following our review, we affirm the summary dismissal of the petition.

The defendant, Kenneth Wendland, entered a plea of guilty to aggravated sexual exploitation of a minor, a Class B felony, and criminal simulation, a Class E felony, but reserved a certified question of law pursuant to Rule 37. He received sentences of eight years for the Class B felony and one year for the Class E felony. The question reserved for review is whether the searches of the defendant’s home and computers were illegal under both the United States and Tennessee constitutions. After careful consideration, we conclude that the searches at issue were legal. Police were properly admitted into Mr. Wendland’s house with the consent of his roommate. While properly in the home, the officers legally seized evidence of counterfeiting, pursuant to the plain view doctrine. Specifically, the officers had legal authority to seize certain computers, computer equipment, and other items as evidence because they had probable cause to believe that these items were involved in the production of counterfeit money. After these items were lawfully seized, the computers were properly searched pursuant to valid search warrants. Consequently, we affirm the judgments of the trial court.

The Perry County Grand Jury indicted Appellant, Billy D. Sizemore, for one count of theft over $1,000 in connection with the theft of rolls of wire fencing from Eugene Grinder. A jury convicted Appellant as charged, and the trial court sentenced Appellant to twelve yearsas a career offender. On appeal, Appellant argues that the evidence is insufficient to support his conviction because there was insufficient corroboration of his co-defendant’s testimony. After a thorough review of the record, we conclude that there was sufficient corroborating evidence and, therefore, the evidence was sufficient to support his conviction. The judgment of the trial court is affirmed.