APPELLATE COURT OPINIONS

The defendant, Bernard Miguel Wallace, was convicted by a Hardin County jury of the sale of under .5 grams of a Schedule II controlled substance, cocaine, a Class C felony. He was sentenced as a Range II, multiple offender to nine years in the Department of Correction and fined $2000. On appeal, he argues: (1) the evidence was insufficient to support his conviction; and (2) his sentence is illegal pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Following our review, we affirm the judgment of the trial court.

The petitioner, Brian Alan Hanna, appeals from the Wilson County Criminal Court's summary dismissal of his petition for post-conviction relief from his conviction of theft of property valued over $1000, six forgery convictions, and effective sentence of eight years. He contends that the trial court erred in concluding that his petition was untimely filed and in denying his motion to discharge fines and costs. We affirm the trial court regarding the forgery convictions, but reverse the dismissal regarding the theft and remand the case to the trial court.

The defendant, Richard Lee Frazier, appeals the Sullivan County Criminal Court's order revoking his probation. On appeal, the defendant claims that although he violated his probation, the trial court abused its discretion by revoking his probation and ordering him to serve his sentence in confinement. We affirm the judgment of the trial court.

The Petitioner, Clifford L. Taylor, 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 allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

The Defendant was convicted of aggravated rape, and the trial court sentenced him to sixty years, as a Range III, persistent, violent offender. The Defendant appeals, contending that: (1) the trial court erred when it denied his motion to suppress his written statement to the police; (2) the record contains insufficient evidence to support his conviction; (3) the trial court improperly commented upon the testimony of a witness; and (4) the trial court improperly sentenced him. After reviewing the record and the applicable law, we conclude that there exists no reversible error.   Accordingly, we affirm the judgment of the trial court.

I concur in the results and most of the reasoning in the majority opinion. I disagree, though, with its view of the trial court’s instructing the jury regarding an excited utterance. The hearsay rule of exclusion is mainly based upon concerns for the reliability of the asserted fact by an out-of-court declarant. See State v. Henry, 33 S.W.3d 797, 803 (Tenn. 2000). An excited utterance is an exception to the rule of exclusion because we believe it occurs under circumstances rendering it sufficiently reliable to be admitted into evidence. See State v. Gordon, 952 S.W.2d 817, 819-20 (Tenn. 1997). However, a trial court should not explain this to a jury because it is truly a comment relevant to the reliability of the evidence.

The Petitioner, Samuel K. Robinson, 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 allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

The defendant, Sleda Richards, pled guilty to two counts of reckless aggravated assault, a Class D felony, one count of running a stop sign, a Class C misdemeanor, one count of driving under the influence, a Class A misdemeanor, one count of driving on a revoked license, a Class B misdemeanor, and one count of failure to appear, a Class E felony. The Sullivan County Criminal Court sentenced her to a total effective sentence of six years as a Range I, standard offender to be served in the Department of Correction. The defendant appeals, contending that the trial court erred in denying her probation or alternative sentencing. We affirm the judgments of the trial court.

The petitioner, James Leath, appeals the denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is reversed and the cause is remanded with instructions.

The appellant, Joseph Vermeal, was convicted by a jury in the Warren County Circuit Court of attempted aggravated sexual battery and was sentenced to four years incarceration in the Tennessee Department of Correction. On appeal, the appellant complains that the evidence is insufficient to support his conviction, the trial court erred in refusing to permit his expert witness to testify, and the trial court erred in imposing consecutive sentencing. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

A Roane County Criminal Court jury convicted the defendant, Vincent A. Hester, of attempted first degree murder, a Class A felony, and felony reckless endangerment, a Class E felony, and the trial court sentenced him to twenty years for the attempted murder and two years for the reckless endangerment to be served concurrently in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient and that the trial court failed to perform its duty as the thirteenth juror pursuant to Rule 33(f) of the Tennessee Rules of Criminal Procedure. We affirm the judgments of the trial court.

The Defendant, Markettus L. Broyld, appeals the judgment of the trial court revoking his probation. Because the notice of appeal was untimely filed, this appeal is dismissed.

The Defendant, Celeste Hall, pled guilty to child abuse and neglect and facilitation of the aggravated sexual battery of her minor child. The Defendant received an effective three year sentence in prison. On appeal, the Defendant argues that the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.

The defendant, Joshua Schaeffer, was convicted of aggravated robbery. The trial court imposed a Range I sentence of eight years in the Department of Correction. In this appeal as of right, the defendant alleges (1) that the evidence is insufficient; (2) that the trial court provided an incorrect definition of the term "deadly weapon" in its instructions to the jury; (3) that the trial court committed plain error by giving the "result-of-conduct" definition of "knowingly" in its instructions to the jury; (4) that the trial court improperly allowed into evidence a newspaper headline related to the offense; (5) that a detective impermissibly referred to the crime as "robbery" during his testimony; (6) that the prosecutor's closing argument was improper; and (7) that the cumulative effect of the errors deprived him of the right to a fair trial. The judgment of the trial court is affirmed.

The defendant, Timothy Wright, appeals from his Tipton County Circuit Court jury conviction of aggravated assault, which resulted in a four-year sentence to be served through 220 days’ confinement, with the defendant placed in a community corrections program for the balance of the sentence. The defendant’s single issue on appeal is his claim that the trial court erred in permitting the victim/prosecuting witness “to remain in the courtroom and testify last at trial.” Because we discern no reversible error in the proceedings in the circuit court, we affirm the conviction.

The Petitioner, Lakeisha Jones, was convicted of second degree murder, and the trial court sentenced her, as a violent offender, to fifteen years in prison. The Petitioner’s conviction and sentence were affirmed by this Court. Subsequently, the Petitioner filed a pro se petition for post-conviction relief, which was later amended by appointed counsel. After a hearing, the trial court dismissed the petition. On appeal, the Petitioner contends that the trial court erred when it dismissed her petition for post-conviction relief because she received ineffective assistance of counsel at her trial. Finding that there exists no reversible error, we affirm the post-conviction court’s judgment.

The petitioner, Stephen Lajuan Beasley, appeals the summary dismissal of his petition for habeas corpus relief. In this appeal, he alleges that his conviction is void because the indictment was defective and because the sentence was illegal. The judgment of the trial court is affirmed.

After being indicted for aggravated assault and vehicular assault, the defendant, Andrew Boone, was convicted by jury of reckless aggravated assault, a Class D felony. He was sentenced as a standard offender to four years in the county workhouse, and his driver’s license was suspended for one year for violating the implied consent statute. On appeal, he presents five issues for our review: (1) whether the trial court erred in admitting irrelevant evidence; (2) whether the trial court properly
instructed the jury as to the elements of reckless aggravated assault; (3) whether the trial court erred in refusing to instruct the jury on reckless driving as a lesser-included offense of reckless aggravated assault; (4) whether the evidence was sufficient to support his conviction for reckless aggravated assault; and (5) whether the trial court erred in determining the length and the manner of service of his sentence. Upon review, we affirm the judgment of the trial court.

The petitioner, James McKinnon, pled guilty to aggravated burglary and especially aggravated robbery. As a result, he was sentenced to an effective sentence of seventeen years in the Tennessee Department of Correction to be served at 100%. The petitioner subsequently filed a petition for post-conviction relief. The post-conviction court denied the petition. Following our review of the record and the parties’ briefs, we affirm the post-conviction court.

The defendant, Paul Wilson, was found guilty by a Shelby County jury of aggravated robbery and sentenced to thirty years at sixty percent as a career offender. On appeal, he argues that the trial court erred by: (1) refusing to accept his guilty plea; and (2) removing him from the courtroom and refusing to grant a mistrial following his outburst. After review, we affirm the judgment of the trial court.

Following a bench trial, the defendant was convicted of driving under the influence (DUI) per se. See Tenn. Code Ann. § 55-10-401(a)(2). On appeal, the defendant contends: (1) the trial court erred in admitting the blood alcohol test because the test was administered almost three hours after the event of driving thereby rendering the test results unreliable; (2) this court should establish a bright line rule regarding what is a reasonable time between the event of driving and subsequent withdrawal of blood from the accused; (3) the trial court erred in denying his motion for judgment of acquittal; (4) the evidence was insufficient to support his conviction. After review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The Appellant, Christopher Perry¹, was convicted by a ShelbyCounty jury of the first degree murder of Stanley Johnson and was sentenced to life imprisonment. On appeal, Perry raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict and (2) whether the trial court erred in denying a motion to suppress in violation of his Fifth and Sixth Amendment rights. After review, we conclude the convicting evidence supports the verdict. Moreover, we affirm the trial court’s order denying Perry’s motion to suppress his statement upon Fifth Amendment grounds. However, we vacate the trial court’s denial of Perry’s motion to suppress upon Sixth Amendment right to counsel protections because no findings were entered by the trial court upon the factual disputes presented. Accordingly, the trial court’s denial of Perry’s Motion to  Suppress is vacated, as is the judgment of conviction, with remand for a suppression hearing consistent with this opinion.

The petitioner, Joseph B. Thompson, appeals from the circuit court’s summary dismissal of his pro se petition for writ of habeas corpus. Following our review of the parties’ briefs and applicable law, we affirm the circuit court’s judgment.

In 1990, Appellant, Billy Merle Meeks, was convicted, following a jury trial, of aggravated kidnapping, especially aggravated robbery, especially aggravated burglary, and extortion. He received an effective sentence of thirty-nine (39) years. On October 29, 2004, he filed a petition for writ of habeas corpus in the Circuit Court of Davidson County. A "Motion to Dismiss" was filed by Respondent on November 29, 2004, and the trial court entered an order summarily dismissing the petition on March 10, 2005. Appellant has appealed from the trial court's dismissal of the petition. The State has filed a motion for this Court to affirm the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Finding merit in the motion, we grant same and affirm the judgment of the trial court.

The petitioner, Kevin B. Burns, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. He was convicted of two counts of felony murder and two counts of attempted felony murder and sentenced to death on one count of felony murder and to life imprisonment on the second count of felony murder. His convictions and sentences for first degree felony murder, including the sentence of death, were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Burns, 979 S.W.2d 276 (Tenn. 1998). However, this court reversed the attempted felony murder convictions and sentences, finding these convictions did not constitute a crime in this state. See State v. Kevin Burns, No. 02C01-9605-CR-00170, 1997 WL 418492, at *9 (Tenn. Crim. App., at Jackson, July 25, 1997), aff’d, 979 S.W.2d 276 (Tenn. 1998). The pro se petition for post-conviction relief resulted in the appointment of counsel and the filing of two amended petitions. An evidentiary hearing was conducted, and the post-conviction court denied the petitions. On appeal, the petitioner presents a number of claims in four broad categories: (1) he was denied a fair post-conviction evidentiary hearing; (2) he was denied due process; (3) trial counsel were ineffective; and (4) the imposition of the death penalty is unconstitutional. Following our review, we affirm the judgment of the post-conviction court.