APPELLATE COURT OPINIONS

The defendant, Michael Lee Jeffcoat, pled guilty to three counts of delivery of twenty-six grams or more of cocaine, a Class B felony. The trial court sentenced the defendant as a Range II, multiple offender to eighteen years in the Department of Correction on each count, with the sentences to be served concurrently. On appeal, the defendant argues that the trial court erred by denying him alternative sentencing, and he also argues that the eighteen-year sentences imposed by the trial court were excessive. After reviewing the record, we affirm the judgments of the trial court.

I respectfully dissent from the majority’s holding that the Defendant’s dual convictions of attempted aggravated rape and attempted aggravated sexual battery implicate principles of  double jeopardy protections. My reasons are two-fold.

The Defendant, Larry Darnnell Pinex, was convicted of attempted aggravated rape, a Class B felony, attempted aggravated sexual battery, and attempted especially aggravated burglary, Class C felonies. He was sentenced as a Range III, persistent offender to twenty-five years for attempted aggravated rape and to twelve years for each of the remaining offenses. The twenty-five-year sentence was ordered to be served concurrently with the sentence for attempted aggravated sexual battery but consecutively to the twelve-year sentence for attempted especially aggravated burglary, for an effective sentence of thirty-seven years in the Department of Correction. He presents five issues for our review: (1) whether the evidence is sufficient to support his convictions for attempted aggravated sexual battery and attempted especially aggravated burglary; (2) whether the rape and battery convictions violate constitutional proscriptions against double jeopardy; (3) whether the State should have been required to make an election of offenses; (4) whether his conviction for attempted especially aggravated burglary should be modified to attempted aggravated burglary based upon Tennessee Code Annotated section 39-14-404(d); and (5) whether he received an excessive sentence. Following our review of the record and the parties’ briefs, we conclude that the Double Jeopardy Clause of the Tennessee Constitution precluded convictions for both attempted aggravated rape and attempted aggravated sexual battery because the evidence showed that the Defendant made one continuous attempt to rape the victim. Consequently, we vacate the judgment of the trial court as to the Defendant’s conviction for attempted aggravated sexual battery, as that offense should have been merged with the Defendant’s conviction for attempted aggravated rape. We also modify the conviction for attempted especially aggravated burglary to attempted aggravated burglary and order a sentence of ten years for that offense.

The Defendant, Marcus Conner, appeals from the sentencing decision of the Lincoln County Circuit Court. In June 2007, the Defendant entered guilty pleas to three counts of selling .5 grams or more of cocaine, Class B felonies, and two counts of selling less than .5 grams of cocaine, Class C felonies. Following a sentencing hearing, the trial court imposed an effective fourteen-year sentence as a Range I, standard offender and ordered the Defendant to serve his sentence in the Department of Correction. On appeal, the Defendant argues that a sentence of community corrections was appropriate. After review, we affirm the judgments of the trial court.

The defendant, Andre Davis, was convicted by a Shelby County jury of voluntary manslaughter, a Class C felony. The trial court sentenced the defendant to fourteen and one-half years as a Range III, persistent offender. In this appeal as of right, the defendant argues that the evidence is insufficient to support his conviction for voluntary manslaughter, that the trial court erred in admitting a non-testifying witness’s statement from a police report to impeach the defendant’s testimony, that the trial court erred in excluding evidence of the victim’s prior acts of violence and gang affiliation, that the sentence imposed by the trial court is excessive, and that these cumulative errors deprived the defendant of his right to a fair trial and due process. Following our review, we affirm the judgment of the trial court.

The Petitioner, Jeffrey W. Haithcote, filed a motion to reopen his post-conviction petition, arguing that (1) he received ineffective assistance of counsel; (2) the State failed to keep a record of his preliminary hearing; (3) the State breached the plea bargain to which the Defendant agreed; (4) newly discovered evidence is available in the form of tapes, witness statements, and transcripts; (5) his motion to withdraw his guilty plea was not heard; (6) the State improperly used his prior convictions to impeach him and enhance his sentence; (7) his convictions violated the Double Jeopardy and Ex Post Facto Clauses of the United States Constitution; and (8) the State failed to make certain transcripts available to him. The trial court summarily denied the motion. Following our review, we dismiss the appeal.

The pro se petitioner, Donald Clark, appeals the dismissal of his motion to reopen his petition for post-conviction relief. The State has filed a motion requesting that this court dismiss the appeal for lack of jurisdiction or, in the alternative, affirm the post-conviction court’s summary dismissal of the motion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because the petitioner did not comply with the statutory requirements for seeking discretionary review of the dismissal of his motion, this court has no jurisdiction in the case. Accordingly, the appeal is dismissed.

The defendant, Mario Bateman, a.k.a. Mario Woods, was convicted of first degree murder and sentenced to life imprisonment. The defendant appeals his conviction and argues that the trial court erred by (1) admitting the victim’s dying declarations in violation of his Sixth Amendment right to confrontation, (2) permitting the prosecution to inquire into a witness’s prior felony convictions on direct examination, and (3) allowing a witness to read his entire statement to police on redirect examination. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

The petitioner, Kentrail Sterling, appeals the Shelby County Criminal Court’s summary dismissal of his “Amended and Supplemental Petition for Post-Conviction Relief, and/or Petition for Writ of Error Coram Nobis, and/or Petition for Writ of Habeas Corpus,” as well as his “Additional Amended and Supplemental Petition to Reopen Petition for Post-Conviction Relief.” The lower court summarily dismissed the petition, finding that: (1) it was outside the statute of limitations for both post-conviction and error coram nobis relief; (2) the issues raised had been previously determined or were waived; and (3) the convictions were not void. On appeal, the petitioner asserts that the lower court erred in dismissing his “petition for post-conviction relief without an evidentiary hearing” because “due process claims nessetates [sic] setting aside the statute of limitations.”  Following review, we affirm the summary dismissal of the petition.

The petitioner, Marvin Anthony Matthews, appeals the lower court’s denial of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the lower court’s denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We grant the state’s motion and affirm the judgment of the lower court.

The Defendant, Antonio Braden, was convicted of one count of attempted second degree murder, a Class B felony. He was sentenced to serve twelve years in the Department of Correction. In this direct appeal, the Defendant contends (1) that the evidence at trial was insufficient to support his conviction; and (2) that the trial court erred in failing to instruct the jury on aggravated assault as a lesser included offense of attempted second degree murder. We conclude that these contentions lack merit, and we accordingly affirm.

The petitioner, Anwar Proby, appeals the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief as time-barred. On appeal, the petitioner characterizes his petition as a motion to reopen and argues that it was timely filed because it was filed within one year of our supreme court’s holding in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (“Gomez II), which the petitioner claims announced a new rule of law that is entitled to retroactive application. The State has filed a motion requesting that this court affirm the post-conviction court’s dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Review of the record indicates that the petition in this case was not a motion to reopen but, rather, the first petition for post-conviction relief filed in this case. Because the petitioner has failed to establish that the petition was timely filed or that a recognized exception to the rule applies, we grant the State’s motion and affirm the judgment of the Shelby County Criminal Court.

The defendant, Denver L. Brown, III, was convicted in the Sullivan County Criminal Court on his guilty plea to aggravated robbery, a Class B felony. As part of the plea agreement, the defendant accepted a sentence of eight years with the understanding that the offense of which he was convicted was statutorily ineligible for probation, but he reserved the right to have the manner of service of the sentence determined by the trial court and sought community corrections. The trial court imposed incarceration. The defendant appeals, contending that the trial court erred in determining that he was statutorily ineligible for community corrections and that he should have received a community corrections sentence. We affirm the judgment of the trial court.

The Defendant, Shane Kent Rogers, pled guilty to one count of violating a motor vehicle habitual offender order, a Class E felony, and one count of vandalism over five-hundred dollars, also a Class E felony. The trial court sentenced the Defendant as a multiple offender to two concurrent three-year sentences to be served in the Tennessee Department of Correction. On appeal, the Defendant claims that the trial court erred when it did not grant him alternative sentencing. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

The petitioner, Homer Alson Maddin, III, appeals the Davidson County Criminal Court’s dismissal of his 2007 petition for post-conviction relief in which he had challenged his four 2004 jury-imposed convictions of aggravated rape. This court affirmed the convictions on November 1, 2005. See State v. Homer Alson Maddin, III, No. M2004-02298-CCA-R3-CD (Tenn. Crim. App., Nashville, Nov. 1, 2005), perm. app. denied (Tenn. 2006). The petitioner’s counseled petition raised various claims of the ineffective assistance of trial and appellate counsel. On appeal, the petitioner claims that his trial counsel was ineffective in neither communicating with the petitioner nor preparing him for trial, failing to explain the potential punishment the petitioner faced, failing to communicate a plea offer from the State, failing to investigate the case, failing to adequately cross-examine witnesses, failing to properly impeach State witnesses, and failing to object to improper prosecutorial argument and to the use of certain evidence. The petitioner also claims that his appellate counsel was ineffective in failing to raise certain issues on appeal. We affirm the order of the post-conviction court.

The petitioner, Roland R. Smith, was convicted of four counts of statutory rape and three counts of especially aggravated sexual exploitation of a minor. The trial court imposed an effective sentence of fifteen years in the Tennessee Department of Correction. Subsequently, he filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and that the sentence imposed violates the dictates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The post-conviction court denied the petition, and the petitioner now appeals. Upon our review, we conclude that the petition for post-conviction relief was filed outside the statute of limitations; therefore, the appeal is dismissed.

The defendant, Taft Arkey Murphy, was convicted by a jury in the Criminal Court for Davidson County of possession with intent to sell three hundred or more grams of cocaine in a school zone, a Class A felony; possession with intent to sell twenty-six or more grams of cocaine in a school zone, a Class A felony; sale of twenty-six or more grams of cocaine in a school zone, a Class A felony; two counts of sale of twenty-six or more grams of cocaine, a Class B felony; and possession of a handgun by a felon, a Class E felony. He was sentenced to eighteen years for each Class A felony, nine years for each Class B felony, and two years for the Class E felony, to be served concurrently. The defendant appeals and contends: (1) that the evidence is insufficient to convict him of possessing a handgun as a felon, and (2) that he was improperly prejudiced by testimony that the defendant had a murder charge. We affirm the judgments of the trial court.

The defendant, Mario Ward, was convicted by a Shelby County jury of criminal attempt to commit voluntary manslaughter, a Class D felony, and aggravated assault, a Class C felony, and was subsequently sentenced to concurrent six-year sentences as a Range II offender. On appeal, the defendant raises the single issue of whether the evidence is sufficient to support the convictions.  Following review of the record, we affirm the judgments of conviction as entered.

The defendant, Marcus Nigel Davis, appeals from the judgment of the Knox County Criminal Court, revoking his probation and reinstating his original sentence of six years. Following our review, we affirm the judgment of the court.

The petitioner, James Wilson, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief. The State has filed a motion requesting that this court affirm the lower court’s denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner has failed to prove his allegations by clear and convincing evidence, we conclude that the State’s motion is well-taken. Accordingly, we affirm the lower court’s denial of post-conviction relief.

Appellant, Jonathan Bradford Dunn, was indicted by the Bedford County Grand Jury for one count of theft of property valued at more than $1,000 but less than $10,000, and one count of filing a false report. After a jury trial, Appellant was convicted on both counts as stated in the indictment. The trial court sentenced Appellant to three years as a Range II multiple offender for theft of property and six years as a Range II multiple offender for filing a false report. The sentences were ordered to run consecutively to each other and to the sentence in Bedford County Case Number 15560. After the denial of a motion for new trial, Appellant initiated the appeal herein, presenting the following issues for our review: (1) whether the evidence was sufficient to support the conviction for filing a false report; and (2) whether the sentence imposed by the trial court was excessive. We determine that the evidence is sufficient to support the conviction and that the trial court properly sentenced Appellant. Consequently, we affirm the judgment of the trial court.

The defendant, Markese Alexander Brooks, was convicted by a Shelby County Criminal Court jury of first degree felony murder and attempted especially aggravated robbery and was sentenced by the trial court to concurrent terms of life and ten years, respectively. In a timely appeal to this court, he challenges the sufficiency of the convicting evidence and argues that the trial court erred in denying his motion to suppress his statement to the police and in allowing inadmissible hearsay testimony from a State’s witness. Following our review, we affirm the judgments of the trial court.

The petitioner, Eddie Lee Douglas, appeals the denial of his petition for post-conviction relief from his second degree murder conviction, arguing that he received ineffective assistance of trial counsel and that his guilty plea was therefore unknowing and involuntary. Following our review, we affirm the judgment of the post-conviction court denying the petition.

A Hardeman County jury convicted the defendant, Aquellis Quintez Tucker, of one count of first degree felony murder, one count of first degree premeditated murder, one count of attempted first degree murder, one count of aggravated assault, and one count of especially aggravated burglary.  The trial court merged the two first degree murder convictions, and it also merged the defendant’s attempted first degree murder and aggravated assault convictions. The trial court sentenced the defendant to life in prison on the first degree murder conviction, fifteen years on the attempted first degree murder conviction, and eight years on the especially aggravated burglary conviction, with all sentences to be served concurrently. The defendant appeals, asserting that the evidence produced at trial was insufficient to support his convictions. After reviewing the record, we conclude that no error exists with respect to the defendant’s allegations. However, we further conclude that the defendant’s especially aggravated burglary conviction was precluded by statute. Accordingly, we modify that conviction to one for aggravated burglary and remand the case to the trial court for sentencing on that offense.

The Defendant pled guilty in September 2005 to possession of .5 grams or more of a Schedule II drug with the intent to sell, which is a Class B felony. The trial court sentenced the Defendant to twelve years, and he was released to a community corrections program after serving one year of incarceration. Following a hearing, the trial court found the Defendant had violated his community corrections sentence, and it revoked the Defendant’s community corrections sentence and resentenced the Defendant to sixteen years of incarceration. On appeal, the Defendant claims the trial court erred when it revoked his community corrections sentence and re-sentenced him. After a thorough review of the record and the applicable law, we affirm the trial court’s judgment.