APPELLATE COURT OPINIONS

The Petitioner, Tony A. Phipps, appeals from the denial of his petition for post-conviction relief. The petitioner claims (1) that he was denied the effective assistance of counsel at trial because his trial counsel failed to present exculpatory evidence and explore certain theories of defense; (2) that misconduct by the prosecutor denied him the right to a fair trial; and (3) that he is entitled to a new trial based upon newly discovered evidence. We affirm the judgment of the trial court.

This Court's opinion, filed on September 23, 2010, is hereby withdrawn and substituted with the corrected opinion and judgment being filed contemporaneously with this order. SO ORDERED.

The Petitioner, Trevor Ford, appeals as of right from the Shelby County Criminal Court's denial of his petition for post-conviction relief. In 2007, the petitioner was convicted by a jury of second degree murder and sentenced to twenty-two years. On appeal, he argues that the denial of his petition was error because he did not receive the effective assistance of counsel at trial. Specifically, he contends that counsel failed to introduce evidence of specific violent acts by the victim, failed to secure testimony establishing the victim's reputation for violence, and failed to pursue funding for a forensic pathologist. Additionally, he argues that the refusal to grant funds for an expert at the post-conviction level denies him fundamental due process and amounts to cruel and unusual punishment. Following our review of the record and the parties' briefs, we conclude that the petitioner has not shown that he is entitled to relief. The judgment of the post-conviction court is affirmed.

In 2006, the defendant, Bobby Dale Parris, pled guilty to the second degree murder of his wife, who died on September 16, 2004. The trial court sentenced him, under the 2005 amendments to the 1989 Sentencing Act, as a violent offender to twenty years at 100% in the Tennessee Department of Correction. On direct appeal, this court vacated the defendant's sentence and remanded for resentencing under the 1989 Sentencing Act after concluding that the trial court erred in sentencing the defendant under the 2005 amendments because the defendant had not waived his ex post facto rights. Upon remand, the trial court again sentenced him to twenty years, opining that the defendant's sentence was the same under either the pre-2005 or post-2005 sentencing statutes. The defendant appeals his sentence, arguing that the trial court did not consider mitigating factors as required by Tennessee Code Annotated section 40-35-210. Following our review of the parties' briefs, the record on appeal, and the applicable law, we vacate the trial court's sentencing order and remand for a new sentencing hearing in accordance with the 2005 Sentencing Act.

Petitioner Richard Rehagen filed a pro se habeas corpus petition challenging the validity of his guilty pleas to one count of first degree murder, one count of attempted first degree murder, and one count of aggravated arson. He now appeals the habeas court's decision to summarily dismiss the petition for failing to state a cognizable claim. Upon review, we affirm.

Petitioner, Ronald A. Henry, filed a post-conviction petition asking the court to set aside his convictions for burglary, theft, vandalism, and possession of burglary tools or to grant a delayed appeal. Petitioner claims that his trial counsel was constitutionally ineffective because counsel failed to adequately defend against video evidence that depicts petitioner committing the crime; failed to preserve his right to appeal; and failed to file an Anders brief. After a hearing, the post-conviction court denied relief. Upon review, we affirm the judgment of the post-conviction court.

The Petitioner, Clarence David Schreane, appeals the Hamilton County Criminal Court's denial of post-conviction relief from his convictions for first degree felony murder and especially aggravated robbery. On appeal, he contends that trial counsel rendered ineffective assistance by (1) not seeking dismissal of the petitioner's indictment on due process grounds, (2) not seeking dismissal of the petitioner's indictment under the Interstate Compact on Detainers, and (3) not seeking suppression of the petitioner's statement to police on the basis that he was denied the right to counsel. We affirm the judgment of the trial court.

The Defendant, Ronnie Edward Sexton, pled guilty to burglary, a Class E felony, two counts of aggravated assault, a Class C felony, and theft of property valued at less than 500 dollars, a Class A misdemeanor, with sentencing left to the discretion of the trial court. Following a sentencing hearing, the trial court sentenced the defendant as a Range I, standard offender to two years for the burglary conviction, six years for each aggravated assault conviction, and 11 months and 29 days for the misdemeanor theft conviction. The trial court also found the defendant qualified as a dangerous offender and ordered consecutive service of one of the aggravated assault convictions, for a total effective sentence of 12 years. In this appeal as of right, the defendant contends that the trial court erred in its imposition of sentence. The defendant failed to file a timely notice of appeal. Because we discern no reason to waive the timely filing of the notice of appeal, the appeal is dismissed.

The petitioner, James Ivy, appeals from the denial of his petition for writ of error coram nobis. In this appeal, the petitioner contends that he is entitled to coram nobis relief on the basis that his 1996 guilty-pleaded conviction of burglary and his 2000 guilty-pleaded convictions of burglary and vandalism were not voluntarily entered. Because the writ of error coram nobis is not available to a guilty-pleading petitioner and because the petition in this case is time-barred, we affirm the judgment of the coram nobis court.

Aggrieved of the Shelby County Criminal Court's denial of post-conviction relief from his convictions of first degree murder, especially aggravated robbery, and facilitation of first degree murder, the petitioner, Mario Johnson, appeals and claims that his convictions were infirm due to the ineffective assistance of trial counsel. We affirm, however, the order of the criminal court.

The Defendant, Mitchell Darnell Eads, was sentenced as a persistent offender to fourteen years' confinement for possession of contraband in a penal facility, a Class C felony, and to six years' confinement for felony escape, a Class E felony, to be served concurrently to each other and consecutively to the defendant's sentences for six prior convictions. On appeal, the defendant contends that the trial court erred by ordering his sentences to be served consecutively to his prior sentences. We affirm the judgments of the trial court.

The petitioner, David Hearing, appeals the denial of his petition for post-conviction relief wherein he challenged his 2005 guilty-pleaded convictions of felony murder. In this appeal, he contends that he was denied the effective assistance of counsel and that his guilty pleas were not knowingly, voluntarily, and intelligently entered. Because the petitioner failed to establish his claims by clear and convincing evidence, we affirm the judgment of the postconviction court.

The defendant, Leon Goins, was convicted by a Dyer County jury of possession of Schedule II cocaine with intent to sell or deliver, a Class B felony, and was sentenced to a term of twenty-five years in the Department of Correction. On appeal, the defendant has raised the single issue of sufficiency of the evidence. Following review of the record, we affirm the judgment of conviction.

Following a jury trial, Defendant, Jeremy A. Jarvis, was found guilty of the second degree murder of Willard Ross, a Class A felony; the attempted second degree murder of Jovan Dixon, a Class B felony; one count of reckless endangerment, a Class E felony; and one count of possession of a weapon with the intent to go armed, a Class A misdemeanor. The trial court sentenced Defendant as a Range I, standard offender, to twenty-five years for his murder conviction, twelve years for his attempted murder conviction, two years for his felony reckless endangerment conviction, and eleven months, twenty-nine days for his misdemeanor conviction. The trial court ordered Defendant to serve his sentence for attempted second degree murder consecutively to his sentence for second degree murder, and the remaining sentences concurrently with each other and with his sentence for second degree murder, for an effective sentence of thirty-seven years. On appeal, Defendant argues that the evidence is insufficient to support his convictions of second degree murder and attempted second degree murder. After a thorough review, we affirm the judgments of the trial court.

The Defendant, Charles Edward Brown, appeals the Hamilton County Criminal Court's order revoking his probation for domestic aggravated assault, a Class C felony, and ordering the remainder of his eight-year sentence into execution. We affirm the judgment of the trial court.

A Davidson County jury convicted the Defendant, Larry J. Patterson, of driving under the influence ("DUI"), first offense, and he was convicted after a bench trial of violation of the implied consent law. The trial court sentenced him to eleven months and twenty-nine days, thirty of which were to be served in jail, and it ordered that the defendant's driver's license be revoked for a period of one year. The defendant appeals, contending: (1) that the vehicle stop that led to his arrest was unlawful; and (2) that the trial court erred when it denied his motion for judgment of acquittal. After a thorough review of the record and applicable authorities, we affirm the judgments of the trial court.

The Defendant, Chanda Dawn Langston, pled guilty to six counts of forgery between $1,000 and $10,000, a Class D felony, and to one count of theft of property over $60,000, a Class B felony. On August 20, 2009, the defendant was sentenced as a Range I offender to four years' confinement for each of the six forgery convictions and twelve years' confinement for the theft conviction, all to be served concurrently. On appeal, the defendant contends that her sentences are excessive and that the trial court erred in denying her request for alternative sentencing. Although we conclude that the trial court erred in applying one enhancement factor, we hold that the sentence imposed by the trial court is appropriate. The judgments of the trial court are affirmed.

The Defendant, Ricky N. Berry, was convicted after a jury trial in the Hamblen County Criminal Court of driving under the influence (DUI), third offense, a Class A misdemeanor. The trial court sentenced the Defendant to eleven months, twenty-nine days and ordered that the Defendant serve fifty-five percent of his sentence, 200 days, in confinement. On appeal, the Defendant contends that the evidence was insufficient to support his conviction and that his sentence was excessive. We affirm the judgment of the trial court.

A Bradley County Criminal Court jury convicted the defendant, James M. Roderick, of rape, a Class B felony, and the trial court imposed a sentence of 10 years' incarceration to be served at 100 percent as a violent offender. On appeal, the defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

The petitioner, Montea Wilson, appeals from the Criminal Court of Shelby County's denial in part of his petition for post-conviction relief and simultaneous order of a delayed appeal. After a hearing, the post-conviction court determined that appellate counsel was ineffective in failing to "protect[] the petitioner's right to litigate the trial court's failure to properly instruct the jury on [second degree murder as a lesser included offense of felony murder] by raising that point in the motion for new trial" and granted a delayed appeal. The postconviction court further determined that trial counsel were effective in their representation of petitioner and, at the time of the petitioner's trial, had no obligation to request second degree murder as a lesser included offense to felony murder. In this appeal, the Petitioner argues that the post-conviction court erred by not setting aside his conviction for felony murder and granting a new trial because (1) trial counsel was ineffective for failing to request an instruction on second degree murder and for failing to allege in the motion for new trial that the trial court erred by not instructing the jury on second degree murder as a lesser included offense; and (2) appellate counsel was ineffective for failing to argue on direct appeal that the trial court's failure to instruct the jury on second degree murder as a lesser included offense constituted plain error. For the reasons set forth within this opinion, we reverse the post-conviction court's determination that trial counsel provided effective assistance of counsel, vacate the petitioner's conviction, and remand for a new trial. In regard to the petitioner's delayed appeal, our decision pertaining to trial counsel's performance renders it moot.

The defendant, Curtis Wix, appeals the trial court's revocation of his probation and reinstatement of his original sentence, arguing that a sentence of split confinement followed by a return to supervised probation or community corrections would have been more appropriate under the circumstances of his case. Following our review, we affirm the order of the trial court revoking the defendant's probation and reinstating his original sentence.

Defendant-Appellant, Carlos Jones, was convicted by a Shelby County Criminal Court jury of voluntary manslaughter and especially aggravated robbery. The trial court sentenced Jones to consecutive sentences of seven years at thirty-five percent for the voluntary manslaughter conviction and thirty-three years at one hundred percent for the especially aggravated robbery conviction, for an effective sentence of forty years in the Tennessee Department of Correction. On appeal, Jones argues that the trial court erred in allowing a witness to testify about out-of-court statements made by a non-testifying co-defendant in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968). Upon review, we affirm the judgments of the trial court.

I concur in the results reached in the majority opinion. However, I would affirm the trial court because of the defendant’s failure to include the trial transcript in the record and the attendant presumption that the trial court’s determinations were correct. See State v. Oody, 823 S.W.2d 554 (Tenn. Crim. App. 1991) (holding trial court’s ruling presumed correct in the absence of an adequate record on appeal). The 1989 Sentencing Act, as amended, requires a sentencing court to consider evidence received at the trial. T.C.A. § 40- 35-210(b)(1). Absent the trial transcript, it is impossible for us to do a de novo review of the matters relevant to sentencing.ts of the trial court.

The petitioner, Terrance Forrest, appeals the denial of his petition for post-conviction relief wherein he challenged his 2008 guilty-pleaded convictions of three counts of aggravated robbery, three counts of aggravated kidnapping, and aggravated burglary. In this appeal, he contends that he was denied the effective assistance of counsel and that his guilty pleas were not knowingly, voluntarily, and intelligently entered. Because the petitioner has failed to establish his claims by clear and convincing evidence, we affirm.

The Defendant-Appellant, Paul Richardson, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, aggravated burglary, a Class C felony, aggravated assault, a Class C felony, and unlawful possession of a handgun by a convicted felon, a Class E felony. He was sentenced as a persistent offender to twenty-five years for the aggravated robbery conviction, ten years for the aggravated burglary conviction, and fourteen years for the aggravated assault conviction. He was also sentenced as a career offender to six years for the unlawful possession of a handgun by a convicted felon conviction. The court ordered the sentences for the aggravated robbery and aggravated assault convictions to be served consecutively and the remaining sentences to be served concurrently, for an effective sentence of thirty-nine years. In addition, all of the sentences in this case were ordered to be served consecutively to a prior federal sentence for unlawful possession of a handgun by a felon. On appeal, Richardson argues that (1) the trial court erred in charging the jury on aggravated assault by intentionally or knowingly causing another to reasonably fear imminent bodily injury when the indictment charged him with aggravated assault by knowingly causing bodily injury to another, and (2) the evidence was insufficient to support his convictions. Upon review, we affirm the judgments for aggravated robbery, aggravated burglary, and unlawful possession of a handgun by a convicted felon, but we reverse and vacate the judgment for aggravated assault and remand this matter for the purpose of allowing the trial court to restructure the manner of service of the remaining sentences to include consecutive sentences, if the court deems it to be appropriate.