APPELLATE COURT OPINIONS

The Defendant, Ricky Lynn Earls, was convicted by a jury of four counts of forgery, Class E felonies, and one count of theft under $500, a Class A misdemeanor. The trial court subsequently merged two of the forgery counts into the remaining two counts. After a hearing, the trial court sentenced the Defendant as a career offender to an effective sentence of twelve years. The Defendant’s sentence was affirmed on direct appeal. See State v. Ricky Lynn Earls, No. M2001-00112-CCA-R3-CD, 2002 WL 1586286 (Tenn. Crim. App., Nashville, July 18, 2002). The Defendant subsequently filed for post-conviction relief alleging ineffective assistance of counsel.  After a hearing, the trial court denied relief. This appeal followed. The sole issue before us is whether the Defendant suffered from the ineffective assistance of counsel due to defense counsel’s failure to file timely a motion for new trial. We find that the Defendant is entitled to relief on the grounds of ineffective assistance of counsel. Accordingly, we reverse the trial court’s ruling and remand this cause with instructions that the trial court grant the Defendant a delayed appeal.

The defendant appeals his burglary conviction and argues that the trial court erred in finding that he “opened the door” to cross-examination regarding his prior burglary convictions. Upon thorough review, we conclude that defense counsel’s pattern of questioning did not open the door to cross-examination on prior burglary convictions initially ruled inadmissible. We hold that the trial court erred in reversing itself and allowing cross-examination as to the convictions; therefore, we reverse the judgment of the trial court and remand for a new trial.

A Shelby County jury convicted the defendant, Larry Holmes, of four counts of especially aggravated kidnapping, a Class A felony, two counts of aggravated robbery, a Class B felony, and one count of aggravated burglary, a Class C felony. The trial court merged the two aggravated robbery convictions into the especially aggravated kidnapping convictions and sentenced the defendant as a repeat violent offender to concurrent sentences of fifty-five years at one hundred percent for the especially aggravated kidnapping convictions and as a career offender to fifteen years for the aggravated burglary conviction to be served consecutively to the especially aggravated kidnapping sentences for an effective sentence of seventy years. On appeal, the defendant contends that (1) the evidence was not sufficient to support his convictions for especially aggravated kidnapping and aggravated robbery, (2) the trial court erred by denying his request for a mistrial based upon a misstatement by an officer testifying for the state, and (3) the trial court erred in imposing his sentences. ¹ We affirm the judgments of the trial court.

The defendant, Anthony Dwayne Brown, was convicted by jury of one count of first degree premeditated murder, two counts of felony murder, one count of especially aggravated robbery, two counts of especially aggravated burglary, and theft of property valued at less than $500. The trial court merged the two felony murder counts into the first degree premeditated murder count and merged the theft offense into the count of especially aggravated robbery. The trial court also merged the two counts of especially aggravated burglary. The defendant was sentenced to life without the possibility of parole for the first degree premeditated murder. The defendant was sentenced to sixty years for especially aggravated robbery and to thirty years for especially aggravated burglary. The trial court ordered all sentences to run concurrent with the sentence of life without the possibility of parole. The defendant raises two issues on appeal: (1) whether the evidence was sufficient to support his convictions; and (2) whether the trial court erred in excluding the testimony of a defense witness.  Following our review, we affirm the judgment of the trial court.

A Henderson County jury convicted the defendant, John Fitzgerald Belew, of possession of cocaine, a Class A misdemeanor; and possession of .5 grams or more of cocaine with the intent to deliver, a Class B felony. The trial court merged the two convictions and sentenced the defendant to twelve years as a Range I standard offender. On appeal, the defendant contends that the evidence is insufficient to support his conviction. Upon our close review of the evidence, we are constrained to hold that the evidence was insufficient to prove the defendant’s intent to deliver beyond a reasonable doubt. However, we determine that the evidence was sufficient to prove simple possession of cocaine. Therefore, we reverse the defendant’s conviction of possession of .5 grams or more of cocaine with the intent to deliver, and reduce it to simple possession of cocaine. We remand the case to the trial court for sentencing consistent with this opinion.

The petitioner, Roy C. Smith, filed a petition for writ of habeas corpus challenging his 1996 guilty plea for rape of a child. After a hearing, the trial court granted the petition, determining that the judgment was not void, but that the petitioner’s sentence was illegal. The State appeals. For the following reasons, we affirm the judgment of the trial court granting the writ of habeas corpus.

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court's order summarily dismissing the petition for the writ of habeas corpus. In that petition, the petitioner challenges the constitutionality of the Criminal Sentencing Reform Act of 1989 in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Upon a review of the record in this case, despite the untimely notice of appeal filed by the petitioner, we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The defendant, Michael Lynn Stanton, was convicted of first degree murder, attempted first degree murder, and two counts of aggravated burglary. The jury returned a verdict of life without parole for the murder conviction. See Tenn. Code Ann. § 39-13-204. The trial court imposed sentences of sixty years for the attempted murder conviction and fifteen years for each of the aggravated burglary convictions. The trial court ordered consecutive service, but with the aggravated burglary sentences to be served concurrently to one another, for an effective sentence of life without parole plus seventy-five years. In this appeal of right, the defendant asserts that the trial court erred by (1) permitting evidence of prior bad acts; (2) denying his motion for judgment of acquittal on the first degree murder charges; (3) admitting an audiotape recording of a hospital interview with the victim; (4) limiting impeachment of a state witness; (5) failing to declare a mistrial after the state attempted to call a bailiff as a witness; and (6) failing to grant a judgment of acquittal on the aggravated burglary charge contained in count 5 of the indictment or, in the alternative, failing to merge the two aggravated burglary convictions. Because the defendant was entitled to a judgment of acquittal on the aggravated burglary charge of count 5, that conviction is reversed and the charge is dismissed. Otherwise, the judgments of the trial court are affirmed.

The petitioner, Unte Henderson, appeals from the Rutherford County Circuit Court’s denial of his petition for post-conviction relief from his guilty pleas to second degree murder and conspiracy to commit aggravated robbery and effective nineteen-year sentence. He contends that he received the ineffective assistance of counsel because his attorney coerced him into pleading guilty. We affirm the trial court.

The defendant, David Arnold Humphrey, entered a plea of guilt to attempt to possess more than .5 grams of cocaine for resale. As a part of the plea agreement, a Range II sentence of six years was imposed and a certified question of law was reserved for appeal. See Tenn R. Crim. P. 37 (b)(2)(i). The question, as originally approved before the filing of the notice of appeal, is "[w]hether the initial contact and subsequent seizure of the defendant were . . . proper, with said seizure resulting in the seizure of a Crown Royal bag containing cocaine." The state, with the approval of the trial court, conceded that the issue was dispositive of the case. The judgment is affirmed.

The petitioner, James Mario Starnes, appeals the Bedford County Circuit Court's dismissal of his pro se petition for post-conviction relief without holding an evidentiary hearing. In his petition, the petitioner contends that he received ineffective assistance of counsel and entered an involuntary plea. The trial court concluded that the factual allegations of the petition were insufficient and that the issues were waived for failure to present them on direct appeal. We disagree and remand the case to the trial court for an evidentiary hearing.

The defendant was involved in an automobile accident. When officers arrived, she maintained that she had been the driver of the vehicle. However, the actual driver was later apprehended. When an officer attempted to place the defendant under arrest, she physically resisted handcuffing. The Davidson County Grand Jury indicted the defendant for making a false report and resisting arrest. She was found guilty of both charges in a bench trial. The trial court sentenced the defendant to an effective sentence of eighteen (18) months with periodic confinement on weekends for twenty (20) days and the remainder on probation. On appeal, the defendant argues that there was insufficient evidence to support her convictions. We affirm the judgments of the trial court.

In 2000, the Petitioner, Russell Allen, was convicted of aggravated sexual battery, and was sentenced to serve eight years. Subsequently, the Petitioner filed a petition for post-conviction relief, and the post-conviction court dismissed the petition, concluding that his petition was not filed within the statute of limitations. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his post-conviction petition. After thoroughly reviewing the record and the applicable authorities, we affirm the post-conviction court's judgment.

Following a bench trial before the Bradley County Criminal Court, the defendant, Elijah Hammond, was found guilty of aggravated child abuse by use of a deadly weapon and of aggravated assault involving his minor daughter, ST. ¹ The court merged the convictions and sentenced the defendant to serve 12 years in the Department of Correction. On appeal, the defendant contends that the evidence is insufficient to support his aggravated child abuse conviction and that he was improperly classified and sentenced as a Range II, multiple offender. After an extensive review of the record, the briefs of the parties, and applicable law, we conclude that the evidence supports his aggravated child abuse conviction and that, pursuant to an amended judgment of conviction, the defendant was properly sentenced as a Range I, standard offender to serve an incarcerative, 12-year sentence.

The defendant appeals his conviction for second degree murder on the grounds of insufficient evidence to support the verdict and the sentence, pursuant to Blakely issues. After review, we find sufficient evidence to support the verdict. We conclude that the two enhancement factors used to elevate the sentence are violative of Blakely and, therefore, modify the sentence to twenty years. The cause is remanded for modification of sentence.

The petitioner, David James Cantrell, appeals from the trial court's order dismissing 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 petition fails 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 petitioner appeals from the denial of post-conviction relief and asserts in two issues that his guilty plea was unknowing and involuntary due to (1) trial counsel’s ineffective representation, and (2) violations of Tennessee Rule of Criminal Procedure 11. We affirm the denial of post-conviction relief.

The Petitioner, Alfio Orlando Lewis, appeals from the dismissal of his petition for the writ of habeas corpus. The State has filed a motion requesting that the 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 judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The majority concludes that modification of the defendant’s sentence is required in light of the Supreme Court’s decision in Blakely v. Washington, 542 U.S. ______, 124 S. Ct. 2531 (2004).  I must respectfully dissent.

A jury convicted the defendant, Charles Michael Hall, for a third offense of driving under the influence of an intoxicant (D.U.I.), a Class A misdemeanor, and for driving after having been declared a habitual motor vehicle offender, a Class E felony. For the D.U.I. conviction, he received a sentence of eleven months and twenty-nine days in the county jail with a release eligibility at 75% and a $1500 fine. For the habitual motor vehicle offender offense, he received a sentence of one year as a Range I standard offender to be served in the Department of Correction. The sentences are to be served consecutively. In this appeal as of right, the defendant argues: (1) the evidence is insufficient to sustain his convictions; (2) the trial court improperly denied charging a proposed jury instruction; and (3) the trial court improperly charged the jury. After reviewing the matter, we affirm the judgment of the trial court.

The petitioner filed a “Writ of Certiorari and/or Writ of Habeas Corpus and/or Motion for Post-Judgment Relief” in the trial court. On appeal, the petitioner challenges the trial court’s denial of both his petition for writ of habeas corpus and his application for writ of certiorari. Following our review, we affirm the denial of both forms of relief.

The petitioner, Randall Blakeney, appeals the trial court's order denying post-conviction relief. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The pleading is barred by the statute of limitations and was properly dismissed. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

The Appellant, William O. Ewerling, proceeding pro se, appeals his misdemeanor convictions by the Davidson County Criminal Court for possessing a weapon in a public park, possession of a handgun while under the influence of alcohol, and criminal trespass. On appeal, Ewerling argues the trial court erred as follows: (1) improperly admitted hearsay statements; (2) admitted non-relevant evidence; (3) permitted introduction of evidence from a witness who had no personal knowledge of the matter; (4) improperly instructed the jury; and (5) imposed excessive sentences. Additionally, Ewerling argues that the evidence was insufficient to support his convictions. After review, we conclude that issues (1), (2), (3), (4), and (5) are waived as the record is insufficient to permit a review of these issues. With regard to Ewerling's sufficiency argument, we conclude that the evidence is legally sufficient to support his convictions for possessing a weapon in a public park and possession of a handgun while under the influence. However, we conclude that the evidence is legally insufficient to support his conviction for criminal trespass. Accordingly, the convictions and sentences for possessing a weapon in a public park and possession of a handgun while under the influence are affirmed; the conviction for criminal trespass is reversed and dismissed.

The Petitioner, Horatio L. Rice, 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 establish that his convictions are void or that his sentence has expired. Accordingly, we grant the State’s motion and affirm the judgment of the trial court.

A Davidson County jury found the Defendant, Keith Latrell Jackson, guilty of possession with the intent to sell twenty-six (26) grams or more of a substance containing cocaine in a Drug-Free School Zone and of possession of a firearm with the intent to employ it in the commission of or escape from an offense. The trial court sentenced the Defendant to an effective sentence of thirty-six years in prison. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion to suppress; (2) the evidence is insufficient to support his convictions; (3) the trial court erred in admitting the testimony of a surveyor pertaining to the use of GPS in determining the distance between the location of the offense and the real property that comprises Wharton School; and (4) the trial court erred when it sentenced him. After thoroughly reviewing the record and the applicable authorities, we reverse the Defendant's conviction and sentence for possession of a firearm with the intent to employ it in the commission of or escape from an offense, and we affirm the Defendant's conviction and sentence for possession with the intent to sell twenty-six (26) grams or more of a substance containing cocaine in a Drug-Free School Zone.