APPELLATE COURT OPINIONS

The defendant, Keith D. Williams, entered guilty pleas in the Criminal Court of Davidson County to sale of cocaine in an amount less that .5 grams in case number 2005-C-1660 and to sale of  cocaine in an amount less than .5 grams in case number 2005-C-2147. He was sentenced to six years as a Range II, multiple offender for each count, to be served consecutively, for a total effective sentence of twelve years. The trial court ordered split confinement with the bulk of the defendant’s sentences to be served in the community corrections program. The defendant served a mere eleven days of his community corrections sentence when he was charged with violating the terms of his community corrections sentence. After a full hearing, the trial court found that the defendant had violated the terms of his community corrections sentence, revoked the sentence and resentenced the defendant to a term of eighteen years as a Range II, multiple offender to be served in the custody of the Department of Corrections. The defendant now appeals the revocation and resentencing. Following our review, we affirm the judgments of the trial court.

A Davidson County jury convicted the Defendant, Kamiko T. Clark, of six counts of child abuse, a class A misdemeanor. On appeal, the Defendant alleges that the trial court erred when it: (1) allowed her statement to the police into evidence; (2) refused to merge her three child abuse convictions for each victim into one conviction for each victim; and (3) imposed sentences that were consecutive and involved partial confinement. Following review, the judgments of conviction are affirmed. However, because the trial court failed to make findings of fact with regard to consecutive sentencing, we remand the case to the trial court for a determination of whether consecutive sentencing is warranted in this case.

The defendant, Tommy L. Holmes, was convicted of aggravated rape, a Class A felony, and sentenced as a violent offender to twenty-four years in the Department of Correction. He presents six issues on appeal: (1) whether he forfeited his right to counsel; (2) whether the jury was properly instructed on lesser-included offenses; (3) whether the evidence was sufficient to establish the bodily injury element of aggravated rape; (4) whether the trial court erred in answering the jury’s question regarding what constitutes bodily injury; (5) whether there was prosecutorial misconduct during closing argument; and (6) whether the trial court erred by excluding certain evidence the defendant offered. Following our review, we conclude that his claims are without merit. However, we additionally conclude that, before determining that the defendant had forfeited his right to counsel, the trial court should have conducted an evidentiary hearing. Accordingly, we remand to the trial court for an evidentiary hearing as to this claim.

The Appellant, Howard Lee Coleman, appeals the judgment of the Shelby County Criminal Court denying post-conviction relief. Coleman was convicted of first degree murder and especially aggravated robbery and was sentenced by the jury to life imprisonment without the possibility of parole. He also received a concurrent sentence of twenty years for his especially aggravated robbery conviction. Coleman filed a pro se petition for post-conviction relief in 2001, alleging multiple deficiencies underlying his ineffective assistance of counsel claim, including the failure to perfect a direct appeal of his convictions. After the appointment of counsel, the post-conviction court heard evidence on all the allegations and granted a Rule 3 delayed appeal to this court. The remaining post-conviction issues were stayed pending the outcome of the appeal, which was subsequently denied. Following the denial of second tier review, Coleman, proceeding pro se, filed an amended post-conviction petition in 2005. The attorney appointed to represent Coleman in his post-conviction challenge was the same attorney appointed to him in the direct appeal of the case. The postconviction court subsequently denied post-conviction relief. On appeal, Coleman argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective by failing to properly investigate and prepare the case. Following review, the judgment of the post-conviction court is affirmed with regard to all allegations of ineffective assistance of counsel at trial. However, plain error review of the record reveals an actual conflict of interest in that counsel appointed to perfect the direct appeal was also appointed to represent the Appellant in the amended portion of the post-conviction proceeding. Because the
record is silent with regard to the conflict of interest issue, we vacate the judgment and remand for a determination of whether the Appellant was informed of the conflict and, after full disclosure, consented to the representation of appointed post-conviction counsel for purposes of the amended proceedings. If waiver is found, the post-conviction court shall enter an order accordingly and reinstate the original judgment. However, if the court finds that no waiver occurred, the court shall appoint new post-conviction counsel for the limited purpose of allowing Coleman to amend his postconviction petition to include any issues which resulted from the unsuccessful delayed appeal. See Tenn. Sup. Ct. R. 28 § (9)(D)(b)(3)(a).

The Defendant, Joann Craddick, pled guilty to two counts of vehicular assault, and the trial court sentenced her to concurrent two year sentences for each conviction, with eight months to be served in jail, followed by supervised probation. On appeal, the Defendant contends that the trial court erred when it denied her full probation. Concluding that there exists no error, we affirm the judgments of the trial court.

The defendant, Eric Lumpkins, appeals from his Shelby County Criminal Court jury convictions of first degree murder, attempt to commit first degree murder, and two counts of aggravated assault.  He challenges the sufficiency of the convicting evidence, the selection of the trial jury, the admission and exclusion of evidence, prosecutorial remarks made during closing argument, and his aggregate sentence of life plus ten years. We hold, inter alia, that the convicting evidence is legally sufficient and, in so holding, decline to apply the physical facts rule, and we hold that consecutive sentencing may be imposed by the trial judge without the participation of a jury. We affirm the judgments of the trial court.

Petitioner, Edmund George Zagorski, appeals from the dismissal of his post-conviction relief petition. He was previously convicted of two (2) counts of first degree murder and sentenced to death by electrocution. Zagorski contends the trial court erred in dismissing his petition for post-conviction relief and presents to this Court the following issues for review: (1) whether the jury charge on the “heinous, atrocious or cruel” aggravating circumstance was unconstitutional; (2)  whether he received effective assistance of counsel regarding the motion to suppress his statements; (3) whether he received effective assistance of counsel due to the failure of counsel to present mitigating evidence at his sentencing hearing; (4) whether the trial court’s denial of certain expert services and the failure of trial counsel to request other expert services violated his constitutional rights; and (5) whether the state withheld exculpatory evidence from trial counsel. Finding that the petition for post-conviction relief was properly dismissed, we AFFIRM the judgment of the trial court.

In January 2004, a Sevier County grand jury indicted the defendant, Rod Mills, on one count of theft over $10,000, a Class C felony. The defendant waived his right to a jury trial. In May 2006, a bench trial was held and the defendant was found guilty on the sole count of the indictment. The trial court sentenced the defendant to five years in prison as a Range I, standard offender. The defendant appeals, alleging that the evidence was insufficient to support his conviction. We conclude that the evidence was insufficient to prove that the defendant possessed the requisite mental state and therefore reverse the judgment of the trial court and dismiss the case.

The petitioner, Daniel Lynn Owen, pled guilty to arson (Class A felony) and setting fire to personal property (Class E felony), agreeing to a concurrent sentence of ten years for arson and two years for setting fire to personal property, as a Range II, multiple offender. The original judgment incorrectly listed the conviction for arson as a Class B felony rather than a Class C felony, and the trial court later amended the judgment to correctly indicate the petitioner had been convicted of a Class C felony. The petitioner filed this appeal to contest the amended judgment. We conclude that correcting a clerical mistake does not trigger a Tennessee Rule of Appellate Procedure 3 appeal as of right. No error exists, and the appeal is dismissed.

The petitioner, Carlos Sommerville, was convicted of first degree felony murder, second degree murder, and attempted first degree murder. The murders were merged, and the petitioner is serving an effective life sentence. The petitioner appeals from the trial court’s summary dismissal of his post-conviction petition. He contends his petition contained an allegation of ineffective assistance of trial counsel, which should have protected the petition from summary dismissal. After review, we conclude the post-conviction court improperly summarily dismissed the petition because it did state a basis to support the petitioner’s claim of ineffective assistance of counsel.

David G. Hayes, Judge, separate concurring.

The defendant, Janice Burnette, was convicted of theft of property valued between $1,000 and $10,000, and was sentenced to three years, suspended after service of thirty days with the balance on probation. On appeal, she argues that: (1) there was a material and highly prejudicial variance between the indictment and the evidence presented at trial; (2) there was a material variance between the indictment and the jury charge; (3) the trial court erred in denying her request that the jury be instructed she was indicted for theft of pseudoephedrine not general merchandise; (4) the charge given to the jury was insufficient; (5) the indictment was flawed and the trial court cured it by giving the jury the general theft charge; (6) she was denied her 6th Amendment right to face her accusers and be adequately prepared to defend herself against the charge of theft of general merchandise; (7) the state did not meet its burden of proof as to theft of pseudoephedrine products; and (8) the state’s closing argument was improper. After our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The petitioner, Homer T. Rivers, appeals from the Hardeman County Circuit Court’s dismissal of his post-conviction petition. He claims that the trial court erred in dismissing his petition for failure to state a colorable claim and seeks appointment of counsel and an evidentiary hearing. The state agrees that the trial court should not have dismissed the petition. We agree and reverse the dismissal and remand the case for further proceedings.

The defendant, Frank Brzezowski, was convicted of two counts of aggravated assault and three counts of aggravated rape and was sentenced to an effective term of twenty-two years to be served at 100%. On appeal, he argues that: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in denying his motion for new trial; and (3) the trial court erred in its sentencing determination. Upon our review of the record and the parties’ briefs, we affirm the defendant’s convictions, but remand for a new sentencing hearing.

This appeal arises from the Benton County Circuit Court’s continued denial of pretrial diversion notwithstanding approval by the District Attorney General and previous reversal by this Court. This is the second interlocutory appeal in this matter. Upon due consideration of the record and the parties’ briefs, we reverse the circuit court’s judgment and remand for entry of an order approving the pretrial diversion agreement between the prosecutor and the defendants.

The petitioner, Ronald Ian Quimby, was found guilty of incest (Class C felony) by a Giles County jury on November 12, 2003. On November 12, 2004, he agreed to a five-year sentence in the Department of Correction as a Range I, standard offender. On that day, the petitioner also pled guilty to five additional charges of incest, each carrying a five-year sentence, to be served consecutively for a total effective sentence of thirty years. On appeal, the petitioner contends that trial counsel was ineffective and argues that: (1) he did not knowingly, voluntarily, or intelligently waive his right to appeal his conviction; (2) counsel was not adequately prepared for trial; and (3) counsel failed to advise him regarding sentencing. After careful review, we conclude that counsel rendered effective assistance, and we affirm the judgment of the post-conviction court.

The Petitioner, John E. Lynch, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to assert a ground that would entitle him to habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

Blount County- The Defendant, Trisha Plemmons, appeals the revocation of her community corrections sentence. Finding no error on the part of the trial court, we affirm.

The Petitioner, Marcus Deangelo Lee aka Marcus Jones, appeals the trial court's denial of his petition for coram nobis relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the State’s motion is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

The defendant, Leah Joy Ward, was found guilty by a jury of first degree premeditated murder. She was sentenced to life imprisonment. The only issue presented on appeal is whether the evidence supports the element of premeditation. After review, we conclude the evidence was sufficient and affirm the conviction.

The Defendant, Anthony Tyrone Robertson, appeals from the order of the Montgomery County Circuit Court revoking his probation. In July of 2000, the Defendant pled guilty to sexual battery and received a six-year sentence as a Range III, persistent offender. The sentence was suspended following service of one year in the county jail, and the Defendant was placed on probation. On July 16, 2004, a warrant was issued, wherein it was alleged that the Defendant violated the conditions of his probation. The warrant was twice amended to include additional violations. After a hearing, the trial court concluded that the Defendant violated the conditions of his probationary sentence and ordered that his original six-year sentence to the Department of Correction be reinstated. On appeal, the Defendant argues that the trial court abused its discretion by revoking his probation and ordering that the remainder of his sentence be served in confinement. After a review of the record, the judgment of the trial court is affirmed.

The petitioner, Guillermo Matias Juan, pled guilty in the Hamilton County Criminal Court to second degree murder and received a sentence of sixty years incarceration in the Tennessee Departmentof Correction. Thereafter, the petitioner filed a petition for habeas corpus relief,  alleging that his sentence was void because he did not have the requisite criminal history to qualify as a persistent offender. The habeas corpus court denied the petition, and the petitioner appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

A Shelby County jury convicted the defendant, Alton Tappan, of aggravated burglary and theft of property valued at $1,000 or more but less than $10,000. The trial court imposed an effective incarcerative sentence of 14 years. On appeal, the defendant challenges the sufficiency of the convicting evidence and complains that his sentence is excessive because the State failed to prove an offender range above Range I. Our review assures us that the evidence is sufficient and that the defendant was properly sentenced. We therefore affirm the convictions and sentence.

The petitioner, Steven L. Anderson, appeals from the summary dismissal of his pro se petition for writ of habeas corpus. On appeal, he contends: the trial court did not follow the proper procedures for processing his petition for writ of habeas corpus; the court improperly dismissed his petition; and his right against double jeopardy was violated. After careful review, we conclude that no error exists and affirm the dismissal of the petition.

The defendant, Savalas O. McNeal, was convicted by a Madison County jury of possession of cocaine with the intent to sell and deliver and received a ten-year sentence to the Department of Correction as a Range II, multiple offender. On appeal, the defendant contends that the evidence was insufficient to support his conviction. We conclude that the evidence was sufficient, and we affirm the judgment of the trial court.