APPELLATE COURT OPINIONS

In an opinion filed June 24, 2005, this court affirmed the trial court's dismissal of the petitioner's petition for post-conviction relief, concluding that the single issue presented in the petition, whether the waiver of the right to counsel was voluntary, had been previously determined by this court on direct appeal. On July 11, 2005, the petitioner, Anthony Forster, filed a petition to rehear pursuant to Tennessee Rule of Appellate Procedure 39. He complains that this court misapprehended a material fact and that this court ruled on an issue upon which the parties had not been heard. He asserts that this court erred by concluding that the issue had been previously determined because the propriety of this court's opinion on direct appeal had not been addressed.  Further, he contends that the parties were not heard on the issue because the state in its brief asserted that the issue had been waived and did not address the merits of the claim.

The petitioner, Christopher Cook, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of trial counsel. After our review, we affirm the post-conviction court's denial of the petition.

The defendant, Christopher Kirkendall, was convicted of facilitation of attempted second degree murder and two counts of facilitation of aggravated robbery. On appeal, this court affirmed the convictions but modified the sentences, holding that enhancement factors (3), (10), and (21) were applied in violation of the United States Supreme Court's ruling in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). The state filed an application for permission to appeal to our supreme court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. The supreme court granted the state's application and remanded the case to this court for reconsideration as a result of its opinion in State v. Edwin Gomez and Jonathan S. Londono, ___S.W.3d ___, No. M2002-01209-SC-R11-CD (Tenn. Apr. 15, 2005). Based upon the Gomez decision, the judgments of the trial court must be affirmed.

The Defendant, Jeffery Yates, was convicted by a jury of aggravated robbery. The trial court sentenced him as a Range III, career offender to thirty years in the Department of Correction. In this direct appeal, the Defendant raises the following challenges to his conviction: (1) the sufficiency of the evidence; (2) the trial court’s handling of the victim’s statement to the police; (3) the trial court’s admission of testimony regarding the Defendant’s involvement in a prostitution sting; (4) the trial court’s refusal to allow the Defendant to cross-examine his co-defendant about gang affiliation; (5) the trial court’s decision to allow the State to cross-examine the Defendant about prior convictions; and (6) the trial court’s failure to instruct the jury on the lesser-included offense of theft.  Finding no reversible error in the issues raised by the Defendant, we affirm the judgment of the trial court.

The petitioner challenges the denial of his habeas corpus petition, in which he contended that his absence from voir dire violated his constitutional rights and Tennessee Rule of Criminal Procedure 43(a) because he did not personally waive the right to be present. We initially note that, at the time of the petitioner's trial, a personal waiver of the right was not required. We conclude that there is no jurisdictional defect apparent from the record. Therefore, we affirm the denial of habeas relief.

The petitioner, Walter Earl Preston, appeals the Lauderdale County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. He claims that his sentences are illegal, thereby rendering his judgments of conviction void. We affirm the trial court.

This is a direct appeal as of right by the State from a denial of its petitions to have Defendants Daniel Cleveland and Matthew Harville declared habitual offenders pursuant to the Motor Vehicle Habitual Offender (MVHO) statute. See Tenn. Code Ann. § 55-10-601 et seq. On appeal, the State argues that the language of section 603(2)(A) of the MVHO statute contains an error, and therefore legislative intent and the “entire scheme” of the statute require this Court to interpret the provision in question by changing its conjunctive construction to disjunctive. We disagree, and we affirm the
judgment of the trial court.

The defendant, Steven Andrew Tidwell, tried for aggravated burglary and theft of property between $500 and $1,000, was convicted of theft. The trial court imposed a two-year sentence to be served in the Department of Correction. In this appeal of right, the defendant argues that the evidence was insufficient, that the trial court erred by ruling that the state could cross-examine him with a prior burglary offense for which he had received judicial diversion, and that the sentence is excessive. The judgment of the trial court is affirmed.

A Shelby County Criminal Court jury convicted the defendant, Eddie Hatchett, of aggravated assault, a Class C felony, and the trial court sentenced him as a Range II, multiple offender to eight years in the Department of Correction. The defendant appeals, claiming the evidence is insufficient because the state failed to negate his claim of self-defense. We affirm the trial court.

The petitioner, Christopher A. Johnson, appeals from the trial court's order denying his petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has failed to establish a cognizable claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The Defendant, Clyde T. Smith, appeals from the trial court's dismissal of his petition seeking 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 State's motion is granted. The judgment of the trial court is affirmed.

The petitioner was convicted by a jury in the Johnson County Circuit Court of multiple offenses, and he received a total effective sentence of twenty-two years, eleven months, and twenty-nine days. Subsequently, the petitioner filed a petition for a writ of habeas corpus, alleging that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), renders his sentences void. The trial court summarily dismissed the petition, which dismissal the petitioner appeals. The State 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. Upon review of the record and the parties' briefs, we conclude that the petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

This is a direct appeal of the sentence imposed for an aggravated sexual battery conviction entered pursuant to a guilty plea. The Defendant was sentenced as a Range I, standard offender to twelve years to be served in the Tennessee Department of Correction (TDOC). He now challenges his
sentence, raising three issues: 1) the trial court erred in admitting the testimony of a witness at the conclusion of the sentencing hearing who had not been sequestered during prior testimony, 2) the trial court erred in applying one enhancement factor because it was also an element of the offense, and 3) the sentence was improperly enhanced in violation of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004).  We affirm the judgment of the trial court.

The state appeals the McNairy County Circuit Court’s order suppressing drug-related evidence seized from the home of the defendant, Billy Dewayne Walker, pursuant to a search warrant. The state contends that the trial court erred in finding that the information contained in the affidavit accompanying the search warrant was insufficient to establish probable cause for the search. We agree and reverse the trial court’s ruling.

The Appellant, Brian Carl Lev, appeals the denial of judicial diversion following his guilty pleas to two counts of statutory rape. After review, we reverse the sentencing decision of the trial court and remand for deferment of the proceedings as provided by Tennessee Code Annotated section 40-35-313 (2003).

The petitioner, William P. Livingston, Jr., appeals the dismissal by the Hamblen County Criminal Court of his petition for post-conviction relief. After review of the record, we affirm.

The Petitioner, Author Ray Turner, appeals the trial court's denial of his motion to reopen his petition for post-conviction relief contending that Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004) established a new rule of law that was retrospectively applicable to his case and entitled him to reopen his post-conviction proceedings. 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 find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The appellant, James T. Brackins, pled guilty to robbery. As part of the plea agreement, the appellant received a six (6) year sentence. After a sentencing hearing, the trial court ordered the appellant to serve the sentence in incarceration. On appeal, the appellant argues that the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.

The Appellant, John A. Judkins, Jr., appeals the sentencing decision of the DeKalb County Criminal Court following termination of his judicial diversion. Judkins was indicted for aggravated burglary and two counts of theft of property and was granted judicial diversion and placed on supervised probation for a period of three years. Simultaneously with the entry of an order of judicial diversion, a negotiated plea agreement was presented and approved by the court to the indicted offenses which provided that Judkins would receive two three-year sentences and one eleven month and twenty-nine day suspended sentence for the three crimes. The agreement further provided for concurrent sentences to be served on "straight probation." A probation violation warrant was subsequently issued alleging that Judkins had committed additional offenses. Following termination of judicial diversion, in the absence of a sentencing hearing, Judkins was sentenced to three years confinement in the Department of Correction. Judkins argues on appeal that the trial court erred by not imposing the effective three-year sentence of "straight probation" as provided in the plea agreement. After review, we conclude that the Sentencing Act does not contemplate the coexistent grant of judicial diversion and service of a sentence imposed pursuant to a negotiated plea agreement as the two are inconsistent in purpose. Accordingly, the trial court's consideration of the terms of the plea agreement in the sentencing decision was error. The case is, therefore, remanded to the trial court for a sentencing hearing.

The Defendant, Demarcus O'Shea Walker, pled guilty to various offenses, and the trial court sentenced him to an effective sentence of ten years, which it ordered the Defendant to serve on probation. While the Defendant was on probation, a probation violation report was filed and, after a hearing, the trial court revoked the Defendant's probation and ordered that the Defendant serve the remainder of his sentence in prison. On appeal, the Defendant contends that the trial court erred by revoking his probation. After thoroughly reviewing the record and the applicable authorities, we affirm the trial court's judgment.

The petitioner, Kelvin A. Lee, appeals pro se from the order of the Davidson County Criminal Court denying his petition for habeas corpus relief without a hearing. Specifically, he alleges that he was improperly transferred from juvenile to criminal court and that the trial court failed to comply with the terms of his plea agreement. Upon review, we conclude that the petitioner has not presented any claims that justify habeas corpus relief. Therefore, we affirm the dismissal of his petition.

In this interlocutory appeal, the State challenges the trial court's suppression of various statements allegedly made by the defendant, Michael D. Street. At the suppression hearing, the trial court excluded the statements based solely upon the fact that the State failed to comply with discovery Rule 16(a)(1)(A) of the Tennessee Rules of Criminal Procedure, requiring notice to the defendant. The trial court did not reach the constitutionality of the statements or otherwise recite its reasoning for admission of some statements and exclusion of others. In consequence, we remand this matter to the trial court for further consideration and additional findings.

The Appellant, Donald Wayne Joiner, appeals the sentencing decision of the Sullivan County Criminal Court following revocation of probation. In July 2001 and July 2002, Joiner was convicted of multiple felony and misdemeanor offenses, resulting in an effective thirteen-year sentence in confinement with the Department of Correction. On October 28, 2003, while still an inmate in the Sullivan County Jail, Joiner escaped from confinement. At the time of Joiner's escape, in addition to the thirteen-year sentence, he was also under an effective eighteen-year suspended sentence, which was imposed consecutively to the thirteen-year sentence of confinement. Based upon Joiner's escape, his eighteen-year suspended sentence was revoked. On appeal, Joiner argues that the trial court abused its discretion by ordering confinement of the eighteen-year sentence instead of reinstating his probation. After review, we find no error and affirm the judgment of the trial court.

A Giles County Jury convicted the Petitioner, Kendrick F. Love, of multiple felony cocaine offenses, and the trial court imposed an effective sentence of twenty-eight years. On direct appeal, this Court affirmed the Petitioner's convictions and sentences. The Petitioner filed a petition for post-conviction relief, contending that he was denied effective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. After thoroughly reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

The petitioner challenges the denial of post-conviction relief, specifically contending that trial counsel was ineffective in guaranteeing that he would be sentenced to a boot camp program when he was statutorily ineligible for it. Upon review, we agree with the post-conviction court that counsel did not guarantee boot camp but stated that it was a possibility, based upon the judge’s recommendation that the petitioner be admitted to the program. Moreover, the petitioner’s responses during the plea colloquy indicated that the petitioner understood the charges he pled to and the nature and consequences of his pleas. Therefore, we affirm the denial of post-conviction relief.