APPELLATE COURT OPINIONS

This matter is before the Court upon the state’s motion to affirm the judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The case before this Court represents an appeal from the trial court’s denial of the petitioner’s petition for writ of habeas corpus. The record was filed on November 12, 1996, and the petitioner filed his brief on November 15, 1996. The petitioner was originally indicted on one count of aggravated rape, one count of incest, and two counts of aggravated sexual battery in June 1989, and was convicted of the same in October 1989. In the present appeal, the petitioner, relying in part upon State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996), contends the judgment entered against him is void because the indictment failed to allege the mens rea of the offense charged.

The petitioner appeals the trial court's denial of his petition for a writ of habeas corpus. There was no evidentiary hearing. While the petitioner submits an extensive brief outlining a number of issues, we have summarized his claims as follows:

(1) whether the trial court erred when it determined that sentence reform legislation adopted in 1979 and 1989 did not apply to petitioner's sentence;

(2) whether the subsequent sentence reform acts deny petitioner equal protection under the law and due process of the law;

(3) whether the petitioner's sentence is cruel and unusual punishment;

(4) whether the trial court erred by not appointing counsel to represent the petitioner during this habeas corpus proceeding;

(5) whether the trial court erred by not allowing the petitioner an evidentiary hearing on this petition; and

(6) whether the trial court erred by determining that it did not have jurisdiction to alter the petitioner's sentence in a habeas corpus proceeding.

We affirm the judgment of the trial court.

The petitioner, Willie Claybrook, appeals the trial court's denial of post-conviction relief. In this appeal of right, two issues are presented for our review: (1) whether the petitioner was denied effective assistance of counsel; and (2) whether the trial court's order denying relief met the minimum statutory requirements. 
We affirm the judgment of the trial court.

The appellant, Richard Wayne Otey, appeals as of right from a judgment entered in the Circuit Court of Williamson County, finding him guilty of aggravated assault in violation of Tenn. Code Ann. § 39-13-102(a). Following a sentencing hearing, the trial judge sentenced the appellant to ten years in the Department of Correction as a Range II, multiple offender, to be served consecutively to a sentence for which the appellant was on parole at the time of the offense at issue in this case.

On February 10, 1994, the appellant was convicted by a jury of his peers of three counts of vehicular homicide by intoxication.¹ Following a sentencing hearing, the appellant was sentenced to six years incarceration for each count with each sentence to be served consecutively. Much aggrieved by his convictions and resultant sentences, the appellant appeals from the judgment of the trial court pursuant to Rule 3, Tenn. R. App. P.

A Hamilton County grand jury indicted the defendant, Frank Bennie Jackson, Jr., for possession of cocaine for resale, driving without a license, and failure to stop at a traffic signal. The defendant filed a motion to suppress alleging that the search of his vehicle incident to a custodial arrest was illegal because he should have received a citation in lieu of arrest for driving without a license and running a red light, both class C misdemeanors. At the hearing on the motion to suppress, the trial court agreed and suppressed all evidence seized as a result of the search incident to arrest. It is from this order that the state now appeals. Following our review, we reverse the judgment of the trial court.

The defendant, Brandon D. Thomas, was convicted of one count of resisting arrest, a Class B misdemeanor; and three drug offenses including possession with intent to sell a Schedule II controlled substance (cocaine), a Class B felony; possession with intent to sell a Schedule III controlled substance (dihydrocodeinone), a Class D felony; and simple possession of marijuana, a Class A misdemeanor. He was sentenced to ten years in the Tennessee Department of Correction for the cocaine offense, eleven months and twenty-nine days on each of the other drug offenses and six months for the conviction for resisting arrest, with all the sentences to run concurrently for a total effective sentence of ten years as a Range I, standard offender. On appeal, he argues that the evidence was insufficient to support his cocaine conviction and that he was sentenced improperly. After careful review, we find that the defendant was sentenced improperly but not for the issues on which he appeals. The sentence of eleven months and twenty-nine days for the Class D felony conviction is illegal because the minimum sentence for a Class D felony is two years. We remand to the trial court for entry of a corrected judgment reflecting the minimum sentence and affirm the trial court as to the other raised issues.

The appellant, James Polk, appeals from a conviction for aggravated robbery entered in the Circuit Court of Maury County. The appellant contends that the trial court should have ordered a new trial pursuant to Rule 33(f) of the Tennessee Rules of Criminal Procedure.  After a review of the record, we affirm the judgment of the trial court.

The defendant, Charles Edward Meeks, was indicted for first-degree murder. The jury found him guilty as charged and he was sentenced to life imprisonment.  He has appealed as of right, raising for review the trial court's instructions to the jury and the State's conduct during closing argument. We find the defendant's issues are without merit and affirm the judgment of the trial court.

The Appellant, Maurice Lashaun Nash, appeals the sentencing decision of the Tipton County Circuit Court. Under the terms of a plea agreement, Nash entered guilty pleas to six felonies and one misdemeanor and received an effective ten-year sentence. The agreement provided that the ten-year sentence would run consecutively to an effective ten-year sentence which Nash was serving at the time of sentencing. The terms of the plea agreement also provided that the manner of service of the ten-year sentence would be determined by the trial court. Following a sentencing hearing, the trial court denied Nash’s request for alternative sentencing, which Nash now asserts was error. After review, the judgments of the trial court are affirmed.

The defendant was indicted on November 7, 1994, for the first-degree murder of Lisa C. Stewart. A jury convicted him of second-degree murder and fined him fifty thousand dollars ($50,000). After a hearing, the defendant was sentenced to twenty-five years in the Department of Correction. In this appeal as of right, the defendant contends that the evidence was insufficient to justify a finding of guilt beyond a reasonable doubt. After a review of the entire record, we find that this issue is without merit, and therefore, his conviction is affirmed.

The petitioner, Andre Anthony, was convicted by a Shelby County jury of criminal attempt to commit first degree murder, a Class A felony; especially aggravated robbery, a Class A felony; forgery over $1000, a Class D felony; and two counts of forgery over $500, a Class E felony. He received an effective total sentence of forty-six years. He seeks post-conviction relief and argues that he received the ineffective assistance of counsel. The trial court denied relief, and we affirm that judgment

The appellant, Jackie H. Martin, appeals the order entered by the Criminal Court of Shelby County denying his petition for discharge from involuntary commitment.1 On appeal, the appellant presents two issues for our review: (1) whether the evidence preponderates against the trial court's finding that the appellant is not eligible for mandatory outpatient treatment as an alternative to commitment; and (2) whether the trial judge should have recused himself from this case.

I concur with the majority opinion and also with Judge Welles’ concurring
opinion.

The original trial of this case took place in Montgomery County. Judge John H. Peay presided over the trial of the appellant and his co-defendant, Brett Patterson, which resulted in two convictions for felony murder, one conviction for first degree burglary, and one conviction for aggravated rape for each defendant. The jury sentenced the appellant to death. The appellant’s co-defendant received a life sentence. On direct appeal to the Supreme Court, the appellant’s convictions were affirmed, but the death penalty was set aside and the case was remanded for a new sentencing hearing. State v. Cauthern, 778 S.W.2d 39 (Tenn. 1989). On remand, Judge Peay granted the appellant’s motion to transfer the case out of Montgomery
County. The new sentencing hearing was held in Gibson County.

I concur with Judge Peay’s opinion in this case. I write separately to point out that, in my opinion, a finding by the trial judge that the district attorney general did not consider all relevant factors in denying pretrial diversion does not necessarily lead to the conclusion that pretrial diversion will be granted. Even though the district attorney general may have abused his discretion by failing to consider all relevant factors, the denial may be justified after all relevant factors are considered. If such is the case, in a manner somewhat analogous to a “harmless error” analysis, the denial of pretrial diversion should be upheld.

The defendant, Shamarcus Antwan Hunt, was convicted of the sale of cocaine under .5 grams, a Class C felony, and possession of cocaine over .5 grams with intent to manufacture, deliver, or sell, a Class B felony. He was sentenced, respectively, to eight years and twelve years in the Department of Correction, to be served consecutively. On appeal, he argues that the evidence was insufficient to support his convictions and that the trial court should have declared a mistrial following allegedly improper remarks by the prosecutor during closing arguments. Following our review, we affirm the judgments of the trial court but remand for entry of corrected judgments to reflect that the defendant’s sentences are to be served consecutively, rather than concurrently.

The Appellant, Bruce Cole, appeals as of right his sentences for five convictions of sale of a Schedule II controlled substance. The Appellant argues on appeal that the trial court erred when it enhanced his sentences and ordered them to be served consecutively. Following a careful review of the record on appeal, we remand the case to the trial court for a new sentencing hearing.

The appellant, Thomas H. Aldridge, was convicted of driving while under the influence, a Class A misdemeanor, leaving the scene of an accident, a Class A misdemeanor, and driving after having been declared a habitual vehicle offender, a Class E felony, following his pleas of guilty to these offenses. The trial court imposed the following sentences pursuant to the plea bargain agreement:

a.) Driving while intoxicated, a fine of $500 and confinement for thirty (30) days in the Shelby County Correctional Center, twenty-eight days of the sentence was suspended;

b.) Leaving the scene of an accident, a fine of $500; and

c.) Driving after having been declared a habitual vehicle offender, a Range I, standard offender sentence consisting of a $500 fine and confinement for one (1) year in the Shelby County Correctional Center.

The petitioner was convicted by a jury of five counts of armed robbery, four of which were affirmed and one of which was reversed and dismissed by this Court in an opinion filed on March 6, 1985. Application for permission to appeal to the Supreme Court was denied on June 10, 1985. The petitioner subsequently filed a petition for writ of habeas corpus on May 24, 1995, which the court below treated as one for post-conviction relief and dismissed without a hearing on the basis that it was time-barred. He contends that this summary dismissal was improper. After reviewing the record, we affirm the lower court’s judgment.

The appellant, Darren Campbell, was convicted by a jury of first degree murder. This Court reduced his conviction to second degree murder and remanded to the trial court for sentencing.¹ The appellant was sentenced as a Range I offender to 23 years incarceration. His sole issue on appeal is whether his sentence was excessive. We affirm the trial court's judgment.

The defendant was charged in the indictment with theft of property valued between ten thousand dollars ($10,000) and sixty thousand dollars ($60,000). On September 21, 1995, she filed an application for pretrial diversion. The district attorney general denied the application on September 28, 1995. The defendant then filed a petition for a writ of certiorari, seeking review of the  district attorney general’s decision to deny her application. After a hearing, the trial court found that the State had abused its discretion and ordered the defendant placed on pretrial diversion. In this appeal pursuant to T.R.A.P. 9, the State contends the trial court erred in finding that the State had abused its discretion in denying pretrial diversion. We reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion.

The defendant, Shundell L. Dickerson, was convicted of facilitation of first degree murder (Class A felony) and sentenced as a Range III, persistent offender to sixty years in prison. He appeals his conviction and sentence. He argues the trial court erred in: (1) precluding him from entering into evidence an anonymous letter mailed to the police in which other persons were named as responsible for the crime; (2) limiting the questioning of a witness regarding his expectations of favorable treatment in exchange for his testimony; and (3) allowing the prosecutor to make improper remarks during closing argument. Finally, the defendant argues enhancement factors were improperly applied to increase his sentence. After careful review, we affirm the judgment from the trial court.

The petitioner, Claude Sharkey, pro se, appeals the summary dismissal of his petition for habeas corpus relief. He claims that his indictments were deficient and that his sentences were improper. After review, we conclude his judgments are facially valid with no jurisdictional defect or illegal sentences. The summary dismissal is affirmed.

The defendant, Thomas M. Sullivan, was convicted of reckless homicide, a Class D felony. He requested judicial diversion or probation, but the court denied those motions and imposed a sentence of two years in confinement. On appeal, he contends that the trial court erred in denying his request for judicial diversion or alternative sentencing. After careful review, we conclude no error exists and affirm the judgment from the trial court.