APPELLATE COURT OPINIONS

A Cumberland County jury convicted the petitioner, Dorman O'Neal Elmore, Jr., of five counts of rape, Class B felonies. The trial court sentenced the petitioner to an effective sentence of twenty-two years in the Tennessee Department of Correction. The petitioner pursued a delayed appeal pursuant to the Post-Conviction Procedure Act, and this court affirmed his convictions and sentences. In his post-conviction petition, the petitioner alleges that he received ineffective assistance of counsel at trial. Specifically, the petitioner argues that trial counsel's failure to file various pre-trial motions, to properly prepare and investigate the case, and to investigate the victim's background constituted deficient performance and prejudiced the defense. The post-conviction court denied relief. Following our review, we affirm the judgment of the post-conviction court.

The defendant, Ricky Frith, was convicted by a Tipton County Circuit Court jury of burglary of a vehicle, a Class E felony, and was sentenced by the trial court as a career offender to six years in the Department of Correction. The sole issue the defendant raises on appeal is whether the evidence was sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

In June 2005, a Shelby County jury convicted the petitioner, Timothy Hutson, of first degree murder, and he received a life sentence. The petitioner filed for post-conviction relief, arguing that his trial counsel provided ineffective assistance. Specifically, the petitioner alleges that trial counsel failed to provide timely information about a plea agreement, failed to develop a working relationship with the petitioner, and advised the petitioner to wear jail clothes rather than civilian clothes during the trial. The post-conviction court denied relief. Following our review, we affirm the denial of post-conviction relief.

A Sullivan County jury convicted the defendant, Joey Lee Goins, of facilitation of second degree murder and especially aggravated robbery. The defendant appeals, claiming that the trial court erred in excluding statements of certain witnesses. The defendant also appeals the court's failure to sequester the jury in light of the media coverage of the trial. Lastly, the defendant argues that the court erred in imposing the defendant's sentences consecutively to each other and to his unrelated federal sentence of life without parole. Discerning no error, we affirm the judgments of the trial court.

The Defendant-Appellant, Darius L. Brown, entered eleven guilty pleas in five different cases in the Sullivan County Criminal Court. He received an effective nine-year sentence at thirty percent pursuant to his plea agreement, with the manner of service of his sentence to be determined by the trial court. On appeal, Brown argues that the trial court abused its discretion by denying an alternative sentence. Upon review, we affirm the trial court's judgments.

The pro se petitioner, Tony Scott Walker, appeals the dismissal of his petition for writ of error coram nobis, arguing that due process considerations should toll the statute of limitations and that he is entitled to error coram nobis relief on the basis of his discovery that one of the State's witnesses may have fabricated or falsified evidence at his trial. Following our review, we affirm the dismissal of the petition.

The defendant, James Carlos Ward, appeals from his Davidson County Criminal Court jury convictions of two counts of especially aggravated kidnapping, see T.C.A. _ 39-13-305, and two counts of aggravated robbery, see id. _ 39-13-402. The defendant received an effective sentence of 45 years to serve in the Department of Correction as a Range II offender. On appeal, the defendant claims:(1) the trial court erred in denying the defendant's pretrial motion to suppress a victim's identification of the defendant; (2) the evidence was insufficient to support two verdicts of guilty of aggravated robbery and two verdicts of guilty of especially aggravated kidnapping; (3) the especially aggravated kidnapping convictions violate principles of due process; (4) the trial court erred on principles of double jeopardy in imposing two convictions of aggravated robbery; and(5) the trial court erred in finding the defendant to be a Range II offender, in imposing excessive sentences, and in consecutively aligning some of the sentences. Following our review, we modify one conviction of aggravated robbery to aggravated assault, affirm the remainder of the convictions, and remand for resentencing.

The Petitioner, Phedreck T. Davis, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief challenging his convictions for first degree murder, attempted second degree murder, and assault, for which he received an effective sentence of life imprisonment plus fifteen years. See State v. Phedrek T. Davis, No. M2006-00198-CCA-R3-CD, Davidson County, slip op. (Tenn. Crim. App. July 19, 2007), aff'd, 266S.W.3d 896 (Tenn. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2790 (2009). He claims that newly discovered evidence proves that the State solicited damaging perjury during his initial trial, thereby violating his constitutional rights. The trial court dismissed his claim as having been previously determined. See T.C.A. _ 40-30-106(f). We affirm the judgment of the post-conviction court.

The Defendant, Andre Alexander Smith, was tried before a jury on an indictment charging one count of first degree felony murder. He was found guilty of one count of the lesser-included offense of voluntary manslaughter. In this appeal, the Defendant contends that (1) the trial court erred in upholding the State's use of peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986); (2) the State presented evidence insufficient to convict him of voluntary manslaughter; and (3) the trial court erred in overruling his objection to certain portions of the State's closing argument. After our review, we affirm the judgment of the trial court.

The petitioner, Author Ray Turner, claims that the habeas corpus court erred in summarily dismissing his petition for writ for habeas corpus relief. The petition claims that his sentence is illegal because his release eligibility of 30 percent violates statutory law requiring that he served 100 percent of his sentence as a "multiple rapist." See T.C.A. _ 39-13-523 (Supp.1994). We agree that the defendant's aggravated rape sentences are illegal and that the habeas corpus court erred in summarily dismissing his claim. We remand to the Morgan County Circuit Court for appointment of counsel and a hearing to determine the proper remedy.

The Defendant, Steve Fredrick Rickett, appeals his conviction by a jury in the Knox County Criminal Court for second degree murder for which he was sentenced as a Range I, violent offender to sixteen years in the Department of Correction. The Defendant contends the following: (1) the evidence was insufficient to support his conviction, (2) the trial court erred in allowing expert witness testimony because the Defendant received inadequate notice of the scope of the expert's testimony and in not granting a continuance, (3) the trial court erred in allowing the county medical examiner to testify to the effects of alcohol and narcotics on the victim, (4) the trial court erred in failing to grant the Defendant's motion for a continuance to allow a defense expert additional time to test the shirt the victim was wearing when she was shot, (5) the trial court erred in allowing into evidence the Defendant's statements to police, (6) the trial court erred in allowing the State to amend the toxicology report during the trial, and (7) the trial court erred in failing to respond properly to the jury's questions requesting a definition of heat of passion and whether "voluntary intoxication" constituted "heat of passion." We affirm the judgment of the trial court.

The Defendant, Charles Williams, was convicted by a Shelby County Criminal Court jury of first degree felony murder and especially aggravated robbery, a Class A felony. Following a sentencing hearing, the trial court sentenced the Defendant as a Range I standard offender to consecutive sentences of life and fifteen years for the felony murder and especially aggravated robbery convictions, respectively. In this appeal as of right, the Defendant contends that (1) the trial court erred in denying his motion to suppress evidence; (2) the trial court erred in denying his motion for judgment of acquittal based on the constructive amendment of the indictment in his case; and (3) the evidence was insufficient to support his convictions. Following our review, we affirm the judgments of the trial court.

The Davidson County Grand Jury indicted Appellant, Gary Vincent Elmore, for one count of statutory rape. Appellant entered a best interest plea to the offense as charged with the provision that he would serve a sentence of one year on probation and that the trial court would hold a hearing to consider his eligibility for judicial diversion. At the hearing, Appellant testified that he had previously been convicted of driving under the influence ("DUI") in Kentucky. His testimony was the only evidence regarding this conviction. Appellant argued that the DUI conviction would be considered a Class C misdemeanor, while the State argued that it should be considered a Class A misdemeanor. A previous Class A misdemeanor would disqualify Appellant from being eligible for judicial diversion. At the conclusion of the hearing, the trial court determined that he was not eligible for judicial diversion because the prior DUI conviction from Kentucky would be considered a Class A misdemeanor in Tennessee. Appellant now appeals the trial court's denial of judicial diversion. We conclude that Appellant's testimony regarding the prior DUI conviction was sufficient proof and that the trial court correctly based its determination of the classification of the Kentucky offense on the elements of the offense as opposed to the accompanying sentence. Therefore, we affirm the trial court's denial of judicial diversion.

The petitioner, Ronald Dotson, appeals the denial of post-conviction relief by the Shelby County Criminal Court. The petitioner was convicted of two counts of aggravated robbery, a Class B felony. As a repeat violent offender, the petitioner received consecutive sentences of life without parole. These sentences were ordered to be served consecutively to another unrelated set of aggravated robberies for which the petitioner was sentenced to life without parole. In this appeal, the petitioner claims that his due process rights were violated by the trial court’s failure to grant a continuance and failure to grant a mistrial. Upon review, we affirm the judgment of the trial court.

The Defendant, Ket T. Voun, a Cambodian native, was convicted, upon his guilty pleas, of aggravated robbery and facilitation of second degree murder. Following a sentencing hearing, the Davidson County Criminal Court ordered him to serve his eight-year sentence for facilitation of second degree murder in total confinement. He now appeals, arguing that, due to his likely deportation for these crimes, a probationary sentence was warranted. After a review of the record, we affirm the sentencing decision of the trial court.

The defendant, Kenneth Ross Jackson, appeals the denial of judicial diversion from the Hamilton County Criminal Court. He entered pleas of guilty to theft of property in excess of $1000, a Class D felony; filing a false report to a law enforcement officer, a Class D felony; and theft of property under $500, a Class A misdemeanor. He was sentenced as a Range I offender to concurrent terms of two years, suspended to supervised probation for both Class D felony convictions. He was sentenced to a concurrent term of eleven months and twenty-nine days on unsupervised probation for the Class A misdemeanor. On appeal, the defendant contends that he was improperly denied judicial diversion. After careful review, we affirm the judgments of the trial court.

The Defendant, Jonathan Jasper Smith, entered guilty pleas in the Sullivan County Circuit Court to one count of attempting to obtain narcotics by fraud, a Class D felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. Pursuant to the plea agreement, the Defendant received concurrent sentences of two years as a Range I, standard offender, and eleven months twenty-nine days, respectively. In a separate case, the Defendant pled guilty to violation of a habitual traffic offender order, a Class E felony; speeding, a Class C misdemeanor; and failure to show proof of financial responsibility, a Class C misdemeanor. He received an effective sentence of two years for these offenses to be served consecutively to the drug-related cases. The manner of service was left to the trial court's determination. Following an alternative sentencing hearing, the trial court denied probation and all other forms of alternative sentencing. In this appeal as of right, the Defendant contends that the trial court erred in denying him alternative sentencing. Following our review, we affirm the judgments of the 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 as a career offender to thirty years in the Tennessee Department of Correction. On direct appeal, the Petitioner challenged the denial of his motion to suppress, and we affirmed the trial court's judgment. State v. Levi Battle, III, No. M2006-00288-CCA-R3-CD, 2007 WL 957207, at *1 (Tenn. Crim. App., at Nashville, Mar. 29, 2007), perm. app. denied (Tenn. Aug. 13, 2007). The Petitioner then filed a petition for post-conviction relief in which he alleged that he received the ineffective assistance of counsel, and, after a hearing, the post-conviction court dismissed the petition. After a thorough review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

A Knox County Criminal Court jury convicted the defendant, Marvin J. Hill, of first degree premeditated murder, see T.C.A. _ 39-13-202 (2003), and abuse of a corpse, see id. _ 39-17-312. The trial court imposed sentences of life imprisonment and six years, respectively, and ordered the sentences to be served concurrently for an effective sentence of life in prison. In this appeal, the defendant argues that the trial court should have suppressed bodily fluids obtained from the victim's body as fruit of the defendant's unconstitutionally procured statement, contends that the trial court erred by admitting into evidence telephone calls the defendant placed while in jail and a videotape recording of the victim's body being recovered by authorities, asserts that the trial court should not have ruled that he could be impeached by convictions greater than 10 years old, claims that the trial court erred by permitting the State to argue that the victim had been raped prior to her death, and challenges the sufficiency of the convicting evidence. Discerning no error, we affirm the judgments of the trial court.

The Petitioner, Thomas T. Nicholson, appeals the denial of post-conviction relief in the Criminal Court for Loudon County from his conviction upon a plea of nolo contendere to sexual battery by an authority figure, a Class C felony, for which he received a six-year sentence in the Department of Correction. On appeal, the Petitioner contends that he received the ineffective assistance of counsel and that as a result, his plea was not voluntarily, knowingly, or intelligently entered. We hold that the Petitioner received the ineffective assistance of counsel because he was given erroneous advice about release eligibility. We reverse the judgment of the trial court denying post-conviction relief, we vacate the Petitioner's conviction, and we remand the case for further proceedings consistent with this opinion.

The Defendant, Jason Lee White, was convicted by a jury of one count of burglary, one count of aggravated robbery, and one count of especially aggravated kidnapping. In this direct appeal, he contends that the trial court erred: (1) in denying his motion to set aside his conviction for especially aggravated kidnapping; and (2) in upholding the State's use of a peremptory challenge under Batson v. Kentucky, 476 U.S. 79 (1986). After our review, we reverse and dismiss the Defendant's especially aggravated kidnapping conviction. In all other respects, the judgments of the trial court are affirmed.

The Defendant, Brittany Scott Pye, was convicted by a Maury County jury of sale of .5 gramsor more of cocaine, a Class B felony. See Tenn. Code Ann. _ 39-17-417. Following a sentencing hearing, the trial court imposed a fifteen-year sentence for this conviction, which was ordered to be served consecutively to two prior sentences. In this direct appeal, the Defendant challenges only the imposition of consecutive sentences. After a review of the record, we affirm the judgment of the trial court. However, we must remand for entry of a corrected judgment.

A Shelby County jury found the defendant, Joseph Pollard, guilty of first degree murder, attempted voluntary manslaughter, a Class D felony, and aggravated assault, a Class C felony. He received a life sentence for his first degree murder conviction, two years as a standard offender for attempted voluntary manslaughter, and three years as a standard offender for aggravated assault, to be served concurrently in the Tennessee Department of Correction. On appeal, the defendant argues that the evidence was insufficient to support a first degree murder conviction and that the trial court erred in dismissing his motion for mistrial. Following our review of the record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

The Defendant was indicted for sale and delivery of less than .5 grams of a Schedule II controlled substance, both Class C felonies. A jury acquitted the Defendant of the sale of a Schedule II controlled substance but convicted him of the lesser-included offense of simple possession or casual exchange of a Schedule II controlled substance. The jury also convicted the Defendant of delivery of a Schedule II controlled substance. The trial court sentenced the Defendant as a career offender to fifteen years confinement for the delivery conviction. In his appeal as of right, the Defendant raises five issues for this court's review: (1) whether the verdicts were inconsistent; (2) whether the convictions for simple possession or casual exchange merge with the delivery conviction; (3) whether the Defendant received a fair trial when jurors were found sleeping during the presentation of evidence; (4) whether the evidence was sufficient to convict the Defendant of delivery of a Schedule II controlled substance; and (5) whether the Defendant received a fair trial when he was intoxicated and unable to assist trial counsel at the time of trial. We conclude that the issues regarding the sleeping jurors and the Defendant's alleged intoxication are waived because the Defendant failed to file a timely motion for a new trial. Following our review, we conclude that the verdicts were not inconsistent and that the evidence was sufficient to support his convictions. However, we conclude that the judgments do not properly reflect the jury's verdict or the trial court's merger of the offenses Therefore, we remand the case for correction of the judgments.