APPELLATE COURT OPINIONS

Following a jury trial, Defendant, Nicholas Fletcher was found guilty of first degree felony murder, attempted especially aggravated robbery, a Class B felony, and aggravated assault, a Class C felony. Defendant was sentenced as a Range I, standard offender, to life imprisonment with the possibility of parole for his felony murder conviction, eight years for his attempted especially aggravated robbery conviction, and three years for his aggravated assault conviction. The trial court ordered Defendant to serve his sentences concurrently for an effective sentence of life with the possibility of parole. On appeal, Defendant argues that (1) the trial court erred in denying his motion to suppress; (2) the prosecutor engaged in prosecutorial misconduct during the cross examination of Cordareyes Torry; and (3) the cumulative effect of these errors denied Defendant his constitutional right to a fair trial. After a thorough review, we affirm the judgments of the trial court.

A Davidson County Criminal Court jury convicted the appellant, Jeremy Paul Duffer, of the following indicted offenses: Seven counts of rape of a child, four counts of aggravated sexual battery, two counts of especially aggravated sexual exploitation of a minor, and two counts of failure to appear. After a sentencing hearing, the appellant received an effective sentence of one hundred thirty-seven years in confinement. On appeal, the appellant contends that the evidence is insufficient to support the convictions and that his effective sentence is excessive. Upon review, we affirm the judgments of the trial court.

The Defendant, Gary V. Bullard, was charged with one count of aggravated assault and one count of attempted aggravated rape. Following a jury trial, he was found guilty of both counts. In this direct appeal, he argues that (1) the State presented evidence sufficient to convict him of simple assault, but not aggravated assault; and (2) the State presented evidence insufficient to convict him of attempted aggravated rape. After our review, we affirm the judgments of the trial court.

The Defendant, Susan Gail Stephens, was charged with two counts of statutory rape and two counts of contributing to the delinquency of a minor. The State denied her application for pretrial diversion, and she petitioned for a writ of certiorari to review the State’s decision. The Circuit Court of Coffee County upheld the denial of pretrial diversion. The Defendant now appeals, arguing that the State, in its memorandum, considered irrelevant factors and failed to consider all relevant factors. After our review, we vacate the judgment of the trial court and direct that this case be remanded to the district attorney general for further consideration.

The petitioner, Ricky Lee Nelson, appeals the criminal court’s dismissal of his petition for postconviction relief. The state has filed a motion requesting that this court affirm the court’s judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. We conclude that the state’s motion is meritorious. Accordingly, we grant the state’s motion and affirm the judgment.

The defendant, Lorne James Clabough, was convicted of especially aggravated kidnapping (Class A felony), aggravated assault (Class C felony), two counts of aggravated assault by recklessness (Class D felony), and evading arrest (Class E felony). The trial court imposed an effective sentence of twenty years. In our initial review, the convictions and sentences were affirmed. See State v. Lorne James Clabough, No. E2005-02133-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 14 (Tenn. Crim. App. Jan. 8, 2007, at Knoxville), perm. to appeal granted, case remanded (Tenn. Oct. 15, 2007). Our supreme court remanded to this court for reconsideration in light of State v. Gomez II, 239 S.W.3d 733 (Tenn. 2007). Upon review, we remand to the trial court for resentencing of the defendant for his Class A felony and both Class D felony convictions, and we affirm the remainder of the sentence.

The petitioner, Charles Green, appeals the judgment of the Gibson County Circuit Court denying post-conviction relief. On appeal, the petitioner argues that he received the ineffective assistance of counsel which caused him to enter an unknowing and involuntary guilty plea. Following our review of the record and the parties’ briefs, we affirm the judgment of the court denying post-conviction relief.

The Petitioner, Giovanna A. Sturgill, appeals from the order of the trial court dismissing her petition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal appeals. We grant the State’s motion and affirm the judgment of the trial court.

The Appellant appeals the trial court's dismissal of his petition for post conviction relief. The Appellant filed his petition outside the statute of limitations. Accordingly, the judgment of the trial court is affirmed.

A McNairy County jury convicted the Defendant-Appellant, Joseph Ray Pinson (“Pinson”), of rape of a child. The trial court sentenced Pinson to twenty years in confinement to be served at 100%. The sole issue for our review is whether the evidence is sufficient to support the conviction. However, we lack jurisdiction to review this matter because there is no order reflecting the trial court’s ruling on Pinson’s motion for new trial. Because the record clearly shows the trial court denied Pinson relief, we remand this case for supplementation of the record with an order denying Pinson’s motion for new trial.

The defendant, Andre Perkins, was convicted by a Shelby County jury of one count of voluntary manslaughter, a Class C felony, and one count of theft of property over $1000, a Class D felony. The trial court subsequently sentenced the defendant as a Range I, standard offender to consecutive sentences of six years and four years for the respective convictions. On appeal, the defendant asserts that: (1) the evidence is insufficient to support the convictions; and (2) the sentences imposed are excessive based upon the erroneous application of enhancement factors, the failure to apply mitigating factors, and the imposition of consecutive sentencing. Following review of the record, we conclude that the evidence is sufficient to support the conviction for voluntary manslaughter, and we affirm that conviction. However, review of the record reveals that the State failed to establish the element of value with regard to the theft conviction. As such, we modify the conviction to one for theft of property less than $500, a Class A misdemeanor, and remand to the trial court for re-sentencing. With regard to the sentence for voluntary manslaughter, we conclude that the trial court erred in its application of two enhancement factors. The record does support the trial court’s refusal to apply mitigating factors and its imposition of consecutive sentencing. Nonetheless, because of the errors which occurred in sentencing, we remand the case for re-sentencing in accordance with the principles set forth in this opinion.

The petitioner, Adam Betts, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The petitioner was convicted of first degree murder and is currently serving a sentence of life imprisonment with the possibility of parole. On appeal, he argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective in: (1) failing to investigate the case or hire an investigator, to file certain pretrial motions, and to interview witnesses prior to trial; and (2) failing to litigate the motion to suppress the petitioner’s statement. After review, the judgment of the post-conviction court is affirmed.

The Appellant appeals the trial court's dismissal of his petition for post conviction relief. The Appellant filed his petition outside the statute of limitations. Accordingly, the judgment of the trial court is affirmed.

The defendant, Darius Jones, was convicted of one count of first degree felony murder, four counts of aggravated robbery, three counts of attempted especially aggravated robbery, two counts of attempted aggravated robbery, and one count of aggravated burglary. He was sentenced to consecutive sentences of life with the possibility of parole for the felony murder, ten years for each of the aggravated robberies and attempted especially aggravated robberies, and four years for each of the attempted aggravated robberies and the aggravated burglary, for an effective sentence of life plus eighty-one years. On direct appeal, this court affirmed all of the defendant’s convictions and his life sentence for the felony murder conviction but remanded for resentencing on the remaining convictions in light of Blakely v. Washington, 542 U.S. 296 (2004). This court also ordered that the trial court revisit the issue of consecutive sentencing and place its specific findings on the record.  After being resentenced to life plus fifty-four years, the defendant appeals again, arguing the trial court erred in imposing consecutive sentences. Following our review, we conclude that the trial court did not revisit the issue of consecutive sentencing and place specific findings in the record regarding its determination. Accordingly, we remand this matter a second time for the court to do so.

The Defendant, Rickey E. Hutchings, appeals as of right from the Williamson County Circuit Court’s revocation of his 1994 probationary sentence for possession of contraband in a penal institution. On June 22, 1998, a warrant was issued against the Defendant, alleging a violation of probation based upon the Defendant’s arrest in Gulfport, Mississippi for possession of approximately one hundred pounds of marijuana with the intent to sell. The warrant was not served on the Defendant until November 27, 2007, and was thereafter amended to include additional criminal behavior. On appeal, the Defendant argues that the delay between the issuance of the probation violation warrant and his revocation hearing violated his right to a speedy revocation hearing and, therefore, that the trial court erred by denying his motion to dismiss the warrants. Because the Defendant was denied the right to a speedy probation revocation hearing, the judgment of the trial court is reversed, and the warrants against the Defendant are dismissed.

The defendant, Willie Andrew Cole, was convicted by a Davidson County jury of first degree premeditated murder and tampering with evidence, a Class C felony. He was subsequently sentenced by the trial court as a repeat violent offender to concurrent terms of life without the possibility of parole for the first degree murder conviction and six years for the tampering with evidence conviction, to be served consecutively to a previous life sentence for second degree murder. In a timely appeal to this court, the defendant challenges the sufficiency of the evidence in support of his first degree murder conviction and argues that the trial court erred by admitting evidence of his prior bad acts, not suppressing his statement, denying his motion to relieve trial counsel, and not addressing alleged prosecutorial misconduct. Following our review, we affirm the judgments of the trial court.

The defendant, Brent Walker, was convicted by a Shelby County jury of three counts of second offense driving under the influence, which the trial court merged into a single conviction; one count of reckless driving; one count of refusal to submit to a blood-alcohol concentration test while driving on a revoked license with license revoked for prior driving under the influence; and one count of driving on a revoked license. He was sentenced to an effective term of one year to be served in confinement and five months, twenty-nine days on probation. The defendant appeals, arguing that the evidence was insufficient to support his convictions and that the trial court imposed an excessive sentence. After review, we affirm the judgments of the trial court.

A Shelby County jury convicted the defendant, Tyree Robinson, of first degree premeditated murder, felony murder, and especially aggravated robbery. On his first direct appeal, this court held that the trial court committed reversible error when it failed to instruct the jury, in response to its question, that accomplices could not corroborate each other and then remanded for a new trial. After retrial, the defendant was again convicted of the above three offenses and sentenced to life imprisonment and twenty years, to be served consecutively. On appeal, the defendant argues under an umbrella challenge to the sufficiency of the evidence that: (1) the trial court erred in failing to instruct the jury that two of the witnesses, Ilyas Morris and Mieko Saulsberry, were accomplices as a matter of law, and (2) even assuming those witnesses were not accomplices, their testimony was insufficient to corroborate the testimony of the defendant’s accomplices. Upon review, we affirm the judgments of the trial court but remand for entry of amended judgments to reflect the correct offense date.

The defendant, Jason M. Justice, was convicted by a Madison County Circuit Court jury of first degree murder and sentenced to life imprisonment. On appeal, he challenges the sufficiency of the convicting evidence, the trial court’s admission of evidence concerning an alleged robbery of the defendant by the victim, and the trial court’s admission of text messages between the defendant’s girlfriend and another witness. After our review, we affirm the judgment of the trial court.

The Petitioner, Rodney Welch, appeals from the Gibson County Circuit Court’s summary dismissal of his “Petition to Alter or Amend Sentence,” in which he seeks a judicial determination that the Department of Correction has incorrectly calculated his sentence end date and that he is entitled to immediate release. He also challenges the trial court’s taxing of costs to him. We affirm the judgment of the trial court.

This appeal involves the question of whether a passenger in a car may be subjected to a pat-down search following a traffic stop if officers suspect the presence of a weapon. The appellee, Thomas Dewayne Moffatt, was indicted by an Obion County grand jury for possession of more than .5 grams of Schedule II cocaine with intent to sell or deliver within 1000 feet of a park (a Class B felony) and tampering with evidence (a Class C felony). He was the passenger in a car which was stopped for a traffic violation, and officers testified that, based upon their belief that a weapon was present, both the driver and the passenger were asked to exit the vehicle with the intent to conduct a pat-down search for weapons. The appellee filed a motion to suppress the evidence seized, the drugs, asserting that the officers did not have reasonable suspicion or probable cause to search him. After hearing testimony at the motion to suppress hearing, the Obion County Circuit Court, relying upon Johnson v. State, 601 S.W.2d 326 (Tenn. Crim. App. 1980), concluded that “there was nothing amiss” and that the officers were not entitled to conduct the pat-down search. Because the State was unable to  prosecute the case without the suppressed evidence, the charges against the appellee were dismissed. The State now appeals the denial of the motion to suppress. Following review of the record, we conclude that the trial court erred in granting the motion as the evidence presented preponderates against the court’s findings. As such, we reverse the court’s decision granting the motion, and the case is remanded to the trial court for further action consistent with this opinion.

The petitioner, Albert F. Kelly, proceeding pro se, presents a Rule 3 appeal from the Shelby County Criminal Court’s summary denial of his motion to reopen his post-conviction petition. In his motion to reopen, the petitioner asserted a new rule of constitutional law and relied upon Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004); Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007); and State v. Gomez, 239 S.W.3d 733 (2007) (“Gomez II”), to support his argument that he is entitled to have his sentence reduced to the minimum within the range, as the trial court, not the jury, found applicable enhancement factors. The post-conviction court summarily denied the petition, finding that the petitioner had failed to assert a valid statutory basis for a motion to reopen a post-conviction petition. Following the denial, the petitioner filed a Rule 3 notice of appeal in the Shelby County Criminal Court. Because the petitioner has failed to comply with the statutory requirements for appealing the denial of a motion to reopen, this court is without jurisdiction to review the merits of the issue presented. Accordingly, the appeal is dismissed.

The petitioner, William C. Brothers, filed a petition for habeas corpus relief in the Circuit Court for Lauderdale County (hereinafter “habeas corpus court”) seeking relief from his two convictions for aggravated sexual battery. The habeas corpus court dismissed the petition, and the petitioner now appeals. Upon our review of the record and the parties’ briefs, we reverse the dismissal of the petition and remand with instructions for the habeas corpus court to transfer the case to the convicting court for correction of the judgments to reflect that the petitioner is required to provide a specimen for DNA analysis in compliance with Tennessee Code Annotated section 40-35-321.

The petitioner appeals the summary dismissal of his petition for post-conviction relief. The petitioner asserts that he received ineffective assistance of counsel at his probation revocation proceedings. Upon review of the record, we affirm the judgment of the post-conviction court.

The defendant, Donald Bradley Williams, pled guilty to one count of evading arrest while operating a motor vehicle, a Class E felony, and one count of joyriding, a Class A misdemeanor. The parties agreed to a six year sentence on the felony evading arrest conviction and an eleven month and twenty-nine day sentence on the joyriding conviction, to be served concurrently. At sentencing the trial court found that the sentences should be served consecutively to a previous sentence for which he was incarcerated. The defendant challenges the consecutive sentencing in this appeal. After reviewing the record, we affirm the judgment of the trial court.