APPELLATE COURT OPINIONS

This matter is before the Court upon the State’s motion to affirm the judgment of the habeas corpus court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.  The Petitioner has appealed the habeas corpus court’s order dismissing the petition for writ of habeas corpus. Upon a review of the record in this case, we are persuaded that the habeas corpus court was correct in dismissing the habeas corpus petition and that this case meets the criteria for affirmance
pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.   Accordingly, the State’s motion is granted and the judgment of the habeas corpus court is affirmed.

The Appellant, Marcellus Hurt, was convicted by a Madison County jury of three counts of misdemeanor theft, two counts of burglary of a vehicle, one count of felony vandalism over $500, one count of possession of burglary tools, and one count of misdemeanor evading arrest. As a result of these convictions, Hurt received an effective sentence of six years, eleven months, and twenty nine days in confinement. On appeal, Hurt raises two issues for our review: (1) whether the vidence is sufficient to support his convictions for burglary of a vehicle and possession of burglary tools; and (2) whether his sentence is excessive. Following review of the record, we affirm the convictions and sentences as imposed.

The defendant, Howard Gailand Bruff, was convicted of first degree premeditated murder, felony murder, and especially aggravated robbery. The murder convictions were merged, and the defendant received concurrent sentences of life and twenty-five years in prison. On appeal, the defendant contends that the evidence was insufficient to establish his convictions because the circumstantial evidence was not sufficient to prove his identity as the assailant, that he committed a theft against the victim, that he had the requisite intent to rob the victim to be convicted of felony murder, or that he killed the victim with premeditation. We conclude that the evidence is sufficient, and we affirm the judgments of the trial court.

The Appellant, Tulinague Thandiwe, proceeding pro se, 1 appeals the sentencing decision of the Shelby County Criminal Court which resulted in the imposition of an eight-year sentence of incarceration. On appeal, Thandiwe challenges the trial court’s denial of alternative sentencing.  After review of the record, we affirm the judgment of the trial court.

The Appellant, Stephen D. Lamb, was convicted by a Madison County jury of burglary, a Class D felony, and the misdemeanor offenses of possession of burglary tools and evading arrest. Lamb received an eight-year sentence for burglary and an eleven month and twenty-nine day sentence for each misdemeanor conviction. The misdemeanor sentences were ordered to run concurrently with each other but consecutively to the felony conviction. On appeal, Lamb raises the following issues for our review: (1) whether the trial court erred in failing to suppress certain items found in Lamb’s possession at the time of his arrest; (2) whether the trial court erred in admitting a police videotape; (3) whether the evidence is sufficient to support his convictions; and (4) whether Lamb’s sentence
for burglary is excessive and whether the imposition of consecutive sentences is warranted. After review, the judgments of conviction and resulting sentences are affirmed.

The Defendant, Myrna Jill Johnson Halle, was convicted of reckless aggravated assault and received an effective sentence of twelve years in prison to be served at sixty percent. On appeal, the Defendant contends that: (1) the evidence was insufficient to support her conviction and established that the Defendant acted in self-defense; and (2) the trial court erred when it sentenced her. Finding no reversible error, we affirm the judgment of the trial court.

The petitioner, Willie Johnson, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief from his conviction of burglary and theft over $500, for which he is serving eight years. He was sentenced to eight years on the burglary conviction and four years for theft, to be served concurrently. The petitioner claims he received ineffective assistance of counsel and argues that his attorney: (1) failed to provide him a list of the grand jurors who indicted him, including their racial make-up; (2) failed to consult him on every peremptory challenge; (3) failed to advise him to testify on his own behalf; (4) failed to persuade him to wear something other than his prison uniform at trial; and (5) failed to fully investigate and interview the witnesses in his case.  After careful review, we conclude that no basis to grant relief exists, and we affirm the postconviction court.

I concur in the results and most of the reasoning in the majority opinion. I disagree, however, with the opinion’s conclusion that the trial court properly instructed the jury that the culpable mental state of recklessness would satisfy the unlawful sexual penetration element in the offense of child rape.

Capital Appellant Michael Dale Rimmer appeals as of right his sentence of death resulting from the 1997 murder of Ricci Ellsworth. In November 1998, Appellant Rimmer was convicted of theft of property, aggravated robbery and premeditated first degree murder. He was sentenced to death for the murder conviction. On direct appeal, a panel of this Court affirmed  Appellant Rimmer’s convictions but, concluding that the sentencing verdict was “enigmatic and uncertain,” vacated the sentence of death and remanded for a new sentencing hearing. See State v. Michael D. Rimmer, No. W1999-00637-CCA-R3-DD, 2001 WL 567960, at *1 (Tenn. Crim. App., at Jackson, May 25, 2001). Accordingly, the case was remanded to the Criminal Court for Shelby County for re-sentencing. At the conclusion of the re-sentencing hearing in January 2004, the jury found the presence of one statutory aggravating circumstance, i.e., that the defendant was previously convicted of one or more felonies whose statutory elements  involved the use of violence to the person, T.C.A. § 39-13-204(i)(2) (1997). The jury further determined that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt and imposed a sentence of death. The trial court approved the sentencing verdict. Appellant Rimmer timely appeals presenting for our review the following issues: (1) whether the trial court erred in denying the motion for recusal; (2) whether the trial court erred in denying the motion for a continuance; (3) whether the trial court erred in excluding mitigation evidence; (4) whether the prosecutor engaged in misconduct; (5) whether the jury instruction on reasonable doubt was error; (6) whether the Appellant knowingly and voluntarily waived his right to testify; (7) whether it was error for the jury to be informed that the Appellant had been on “death row;” (8) whether the jury verdict was complete; (9) whether cumulative error requires reversal; and (10) whether the Tennessee death penalty statutes are constitutional. After review, we find no error of law requiring reversal. Accordingly, we affirm the jury’s imposition of the sentence of death in this case.

The Petitioner, Nathaniel Benton, a/k/a, Nathan Gray filed a pro se petition for a writ of habeas corpus. The habeas court denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the Petitioner contends that his conviction and subsequent sentence for being a habitual criminal is void because the underlying convictions upon which the habitual criminal conviction is based are void. Finding no reversible error, we affirm the judgment of the habeas court.

The defendant, Albert R. Neese, appeals from jury convictions of two counts of aggravated sexual battery and two counts of rape of a child. The defendant also appeals the imposition of consecutive sentences which totaled twenty-eight years. The issues on appeal include challenges to the admissibility of a videotaped interview of the seven-year-old victim, the defendant’s pastor’s report to the police, and the victim’s statement to a social worker for medical diagnosis and treatment. The remaining issues are the propriety of the jury instructions as to the mens rea elements of child rape and the propriety of consecutive sentences. Having found no reversible error, we affirm the judgments of conviction and sentence as imposed.

The petitioner, Michael A. Sullivan, filed an application for habeas corpus relief in the Williamson County Circuit Court to challenge his conviction in the Williamson County General Sessions Court for sixth offense driving on a revoked license. He was sentenced to 11 months, 29 days, with all but 65 days suspended on supervised probation. He contends that Tennessee Rule of Civil Procedure 5(c) and Tennessee Code Annotated sections 40-1-109 and 40-3-101 are unconstitutional and should not allow a defendant to waive an indictment. After careful review of the record, we conclude no grounds exist for granting habeas corpus relief and we affirm the judgment of the trial court.

Petitioner, Felix Lopez, pled guilty to manslaughter and received a negotiated out-of-range fifteen-year sentence, to be served at sixty percent. Subsequently, petitioner timely filed a post-conviction petition alleging he received the ineffective assistance of counsel. When the post-conviction court denied post-conviction relief, this appeal followed. After careful review of the record, we affirm the judgment of the post-conviction court.

Petitioner, Faris Adb Al-Ali, was convicted by a Rutherford County jury of rape of a child and received a twenty-two year sentence. The conviction and sentence were affirmed on direct appeal. Petitioner timely filed his pro se post-conviction petition. Following the appointment of counsel and filing of an amended petition, the post-conviction court conducted an evidentiary hearing on the petition. On December 1, 2005, the post-conviction court entered an order dismissing the petition. Petitioner appealed. We affirm the post-conviction court.

Following a jury trial, Defendant, David Marsh, was convicted of two counts of forgery and sentenced to serve three years in the Department of Correction for each offense, to be served concurrently, for an effective sentence of three years. On appeal, Defendant argues that the evidence was insufficient to sustain his convictions for forgery. After a thorough review, the judgments of the trial court are affirmed.

The petitioner, Richard Hale Austin, was sentenced to death by a Shelby County jury on March 5, 1999. In October 2004, the petitioner’s counsel filed a petition for writ of error coram nobis on the basis of newly discovered evidence in the form of recanted testimony. Without holding an evidentiary hearing, the coram nobis court dismissed the petition, and the petitioner now brings this appeal challenging the action. Upon review, we affirm the judgment of the lower court.

Aggrieved of the Lauderdale County Circuit Court’s summary dismissal of his petition for habeas corpus relief, the petitioner, John E. Saulsberry, appeals. The habeas corpus court denied the petition, finding that the petitioner’s negotiated plea agreement was valid because “[his] voluntary guilty plea waive[d] any irregularity as to offender classification or release eligibility,” that the petitioner’s sentences had not expired, and that the trial court had jurisdiction to sentence the petitioner. We affirm the lower court’s order of dismissal.

The Appellants, Steven Thomas Geyer and his wife, Tammy Syvilla Geyer, were convicted by a Hardeman County jury of multiple offenses arising during the drive home from their children’s school Christmas pageant. Appellant Steven Geyer was convicted of DUI, child endangerment, and driving on a suspended license. Appellant Tammy Geyer was convicted of reckless endangerment. On appeal, the Appellants raise three issues for review: (1) whether the trial court  erred by prohibiting the Appellant’s questioning of a witness regarding an obsolete law; (2)  whether the trial court erred in excluding a defense photograph due to the Appellants’ failure to comply with the reciprocal discovery requirements of Rule 16, Tenn. R. Crim. P.; and (3) whether the trial court erred by not filing a written order on a pre-trial Rule 16 discovery motion. After a review of the record, we affirm.

The appellant was convicted following a jury trial of aggravated rape and aggravated sexual battery and received concurrent fifteen and eight year sentences, respectively. The appellant contends that the trial court erred in failing to dismiss these charges based on violation of his right to a speedy trial. Following our review, we affirm the judgment of the trial court.

The petitioner, Stanley F. Blackwood, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief from his convictions of first degree murder, three counts of attempted first degree murder (Class A felony), five counts of aggravated assault (Class C felony), two counts of reckless endangerment (Class E felony), and one count of aggravated burglary (Class C felony ), for which he now serves a life sentence plus twenty-two years. The petitioner claims he received ineffective assistance of counsel at trial because his attorney: (1) acknowledged to the jury in opening statements that the petitioner shot the victim; (2) characterized the petitioner’s version of events as “bizarre,” undermining his credibility with the jury; (3) failed to fully investigate the possibility that the handgun discharged accidentally; and (4) failed to object to a prejudicial jury instruction. We find no basis to grant relief and affirm the post-conviction court’s denial of relief.

The Petitioner, Marlon Thomas, appeals the trial court's denial of his petition for habeas corpus 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. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we grant the State’s motion and affirm the judgment of the lower court.

The Petitioner, Anthony H. Dean, appeals as of right from the judgment of the Shelby County Criminal Court denying post-conviction relief. In 2000, a jury convicted the Petitioner of aggravated rape, and he was sentenced to forty years as a violent offender. This Court affirmed his conviction and sentence on direct appeal. Subsequently, the Petitioner filed a petition for post-conviction relief and several amendments thereto. Following multiple hearings, the post-conviction court denied relief, and he now appeals to this Court. In this appeal, he raises nine issues which, in substance, relate to the following two claims: (1) violation of his constitutional rights when he was not taken timely before a magistrate and (2) ineffective assistance of counsel. After a review of the record, we affirm the judgment of the post-conviction court denying relief.

The petitioner, James Matthew Gray, pled guilty in the Davidson County Criminal Court to a charge of reckless homicide. He was sentenced to twelve years in the Department of Correction as a career offender with a release eligibility of sixty percent. He was originally indicted on two counts: (1) felony murder, and (2) especially aggravated robbery. As part of his plea agreement, he agreed to plead out of range of his offender status. On appeal, he argues that his guilty plea was involuntary and unknowingly entered because he asserts that he received ineffective assistance of counsel. After careful review, we conclude that the petitioner has not met his burden of showing that he received ineffective assistance of counsel by clear and convincing evidence and, further, that he has not shown that his plea was involuntary and unknowing. No grounds for relief exist, and the judgment of the post-conviction court is affirmed.

Petitioner, Donald Wade Goff, was convicted following a November 2001 jury trial on two counts of rape of a child, eleven counts of incest, nine counts of rape, seven counts of contributing to the delinquency of a minor, and one count of attempted rape. The trial court imposed an eighty-year sentence. On direct appeal, the sentence was modified to fifty-six years based upon this Court’s dismissal of the nine rape counts due to lack of evidence of force or coercion. Petitioner subsequently filed a post-conviction petition on August 9, 2004. After the appointment of counsel and the filing of an amended petition, the post-conviction court conducted an evidentiary hearing. Following the hearing, the post-conviction court dismissed the petition. Petitioner filed this appeal claiming the post-conviction court erred in denying his post-conviction petition. Upon our review, we affirm the post-conviction court.

The Defendant, Troy Brooks, who was formerly a licensed attorney in the State of Tennessee,was indicted by a grand jury in Wilson County for five counts of theft over $10,000, four counts of theft over $1000, six counts of fraudulent use of a credit card in the amount of $1000 to $10,000, and one count of fraudulent use of a credit card in the amount of over $500. The offenses arose from the Defendant’s misuse of nine clients’ trust monies and credit card accounts during the course of several months. The Defendant requested pretrial diversion, and the district attorney general denied the Defendant’s request. The Defendant filed a petition for writ of certiorari to the Wilson County Criminal Court, alleging that the district attorney general abused his discretion by denying pretrial diversion. The trial court denied the Defendant’s petition. The Defendant filed a motion for  interlocutory appeal of the trial court’s decision, and this Court granted the Defendant’s motion. This Court now affirms the judgment of the trial court and concludes that the district attorney general did not abuse his discretion by denying pretrial diversion.