APPELLATE COURT OPINIONS

The Appellant, Vick R. Nichols, Jr., appeals his convictions by a Lewis County jury finding him guilty of two counts of felony reckless endangerment as lesser included offenses of the indicted charges of aggravated assault. Following a sentencing hearing, Nichols was granted judicial diversion. On appeal, Nichols raises five issues for our review: (1) whether felony reckless endangerment is a lesser included offense of aggravated assault; (2) whether the trial court violated Tenn. R. Crim. P. 30(c) by failing to reduce supplemental jury instructions to writing; (3) whether the trial court properly declined to instruct the jury with regard to certain hunting rules and regulations contained in Title 70, Tennessee Code Annotated; (4) whether the trial court erred by refusing to instruct the defense of third parties; and (5) whether the evidence was sufficient to support the verdicts. The State concedes that felony reckless endangerment is not a lesser included offense of aggravated assault as indicted. We agree. Notwithstanding reversible error, we conclude that no appeal of right, as provided by Rule 3, Tenn. R. App. P., lies, as the Appellant was granted judicial diversion and no judgment of conviction has been entered. Accordingly, the appeal is dismissed.

This is a direct appeal as of right from a bench trial conviction of first degree premeditated murder. The Defendant, William Keith Matthews, was sentenced to life in prison. On appeal, the Defendant argues four issues: (1) there was insufficient evidence to find the Defendant guilty of first degree premeditated murder beyond a reasonable doubt, and in the alternative, the defense of insanity was established; (2) the trial court erred in not granting the Defendant’s motion for judgment of acquittal; (3) the Defendant was not competent to stand trial; and (4) the Tennessee statute providing for the insanity defense is unconstitutional. We affirm the judgment of the trial court.

A Warren County jury convicted the defendant, Abel Torres, of one count of attempted especially aggravated robbery and two counts of attempted second degree murder, Class B felonies, and the trial court sentenced him to twelve years for each conviction, to be served consecutively for an effective sentence of thirty-six years in the Department of Correction (DOC). On appeal, this court affirmed the defendant's convictions but modified the length of his sentences from twelve years to ten and remanded the case for a determination by the trial court of the reasons justifying the imposition of consecutive sentencing. State v. Abel Caberra Torres, No. M2001-01412-CCA-R3-CD, Warren County (Tenn. Crim. App. June 10, 2003). On remand, the trial court again imposed consecutive sentencing and the defendant appeals, claiming the trial court erred under both state law and the rule announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). The state contends the trial court properly sentenced the defendant. We affirm the trial court's imposition of consecutive sentencing but conclude that Blakely requires us to modify the defendant's sentences from ten years to eight for an effective sentence of twenty-four years.

The defendant, Robert Wilson, was convicted of attempted aggravated sexual battery and rape of a child. The trial court imposed consecutive sentences of six years and twenty-five years, respectively. In this appeal, the defendant contends (1) that the evidence is insufficient to support the convictions; (2) that the evidence presented to the grand jury was insufficient to support the finding of the indictment; (3) that the state engaged in prosecutorial misconduct by failing to adequately respond to the motion for a bill of particulars; (4) that the state elicited and failed to correct false testimony in violation of his due process rights; (5) that the trial court failed to exercise its role as the thirteenth juror; and (6) that the sentence is excessive. The judgments of conviction are affirmed. The sentences are modified to four years and twenty-three years, respectively, and are to be served consecutively.

The Appellant, Gregory Mullins, appeals the decision of the Sullivan County Criminal Court revoking his probation and ordering him to serve the remainder of his sentence in confinement. In March 2003, Mullins pled guilty to three counts of burglary, three counts of theft under $500, two counts of theft over $1000, evading arrest, and speeding. Mullins' effective eight-year sentence was suspended, and he was placed on supervised probation. On October 1, 2003, and October 10, 2003, probation violation warrants were filed against Mullins. After a revocation hearing was held on the October 10th warrant, he was found to be in violation of his probation, and his original sentences to the Department of Correction were reinstated. On appeal, Mullins does not contest the trial court's findings that he violated the terms of his probation. Rather, he argues that the trial court abused its discretion by ordering confinement rather than reinstating his probation with more restrictive conditions. After review, we find no error and affirm the judgment of the trial court.

The defendant, Phillip Aaron York, was convicted of eight counts of child rape. Sentences of twenty-five years were imposed for each conviction. Two convictions were ordered to run consecutively, with the remaining convictions to run concurrently, for a total effective sentence of fifty years to be served in the Department of Correction. On appeal, the defendant challenges (1) the sufficiency of the evidence, and (2) the length of the sentence imposed by the trial court. Upon review of the record and applicable law, we conclude that the evidence is sufficient to sustain the convictions for rape of a child, but that pursuant to Blakely v. Washington, 542 U.S. ----, 124 S. Ct. 2531 (2004), enhancement factors (2) and (16) cannot be applied. Accordingly, we affirm the convictions, but modify the sentence imposed from a fifty-year effective sentence to a forty-year effective sentence.

In 1996, the petitioner, Robert L. Leverette, pled guilty in the Circuit Court of Bedford County to four counts of rape, Class B felonies, and to one count of incest, a Class C felony. He was sentenced to ten years for each rape and to five years for the incest to be served in the Department of Correction. The trial court classified him as a Range I, standard offender with a release eligibility at thirty percent of his sentence and ordered two of the rape convictions to run concurrently. The Department of Correction, however, classified him as a multiple rapist pursuant to Tennessee Code Annotated section 39-13-523, which requires that multiple rapists serve one hundred percent of a sentence. As a result, the petitioner filed a petition for the writ of habeas corpus. The trial court granted partial relief and vacated three of his four rape sentences. On appeal, the petitioner claims that his entire sentence should be vacated and the case remanded. Finding no error, we affirm the decision of the trial court.

Following a jury trial, Defendant, John Ramsey Duncan, was convicted of four counts of rape of a child, a Class A felony, and four counts of aggravated sexual battery, a Class B felony. After a sentencing hearing, the trial court sentenced Defendant to twenty-two years for each rape of a child conviction, and ten years for each aggravated sexual battery conviction. The trial court ordered Defendant's sentence for his rape of a child conviction in count two to run consecutively to his sentence for his rape of a child conviction in count one, and all other sentences to run concurrently to count one, for an effective sentence of forty-four years. On appeal, Defendant argues that the evidence is insufficient to support his convictions, and that the trial court erred in ruling certain out-of-court statements made by the victim to witnesses Lisa Dupree and Julie Carter as admissible. In addition, since the filing of the briefs, Defendant has also asked us to consider the impact of the ruling in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) on the length of his sentences and the trial court's imposition of consecutive sentencing. After a thorough review of the record, we affirm Defendant's convictions and the imposition of consecutive sentencing. We modify under Blakely each of Defendant's sentences for rape of a child to twenty years, and each of his sentences for aggravated sexual battery to eight years.

The defendant, Tim Brawley, appeals from the Williamson County Circuit Court’s order revoking his probation. On appeal, he claims that the trial court lacked jurisdiction to revoke his probation because his sentences had expired before the violation warrant was issued. We disagree and affirm the trial court’s order

The appellant, Jackie Samuel Finger, pled guilty to aggravated burglary and attempted rape. The plea agreement specified that he would receive a four-year sentence on each charge as a Range I, Standard Offender and that the sentences would run concurrently, for an effective sentence of four years. The manner of service of the sentence was to be determined by the trial court. After a hearing, the trial court denied alternative sentencing and ordered the appellant to serve the sentence in the Department of Correction in the Special Needs Facility. On appeal, the appellant challenges his conviction for aggravated burglary as void due to a mistake on the judgment form and the trial court's denial of alternative sentencing. Because the trial court corrected the judgment to reflect the proper conviction and properly denied alternative sentencing, we affirm the judgment of the trial court.

The petitioner, Kenneth Lamar Hopkins, pled guilty to one charge of misdemeanor assault. He received a suspended sentence of eleven months, twenty-nine days. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that: (1) his guilty plea was not knowingly and voluntarily entered; (2) his waiver of right to counsel was not knowing or voluntary; (3) his guilty plea violated due process; and (4) the district attorney general promised him that his parole would not be violated as a result of his guilty plea. After a post-conviction hearing, the post-conviction court denied the petition. The petitioner appeals, arguing that: (1) the post-conviction court erred when it allowed the inclusion of the expected testimony of the assistant district attorney as a stipulation at the post-conviction hearing; (2) the post-conviction court erred "when it sustained the contentions of the state in violation of the missing witness rule;" and (3) the post-conviction court's actions violated the petitioner's due process rights. For the following reasons, we affirm the judgment of the post-conviction court.

The appellant, Michael McKellar, pled nolo contendere to multiple charges of theft of property between $10,000 and $60,000 arising from indictments in both Cheatham County and Humphreys County where the appellant and a partner solicited funds from investors to finance the purchase of a defaulted Nigerian oil contract. In Cheatham County, the appellant was sentenced to a three (3) year sentence in the Tennessee Department of Correction, but the sentence was suspended. In Humphreys County, the appellant was sentenced to a four (4) year sentence in the Tennessee Department of Correction. The Humphreys County sentence was also suspended. After a joint restitution hearing, the trial court ordered the appellant to pay restitution to one of the victims in Cheatham County in the amount of $1,000 and to one of the victims in Humphreys County in the amount of $22,900 based on finding that the appellant had converted that amount of money to his own personal use. On appeal, the appellant argues that the evidence presented at the restitution hearing was insufficient to support the award of restitution and that the trial court erred in ordering the appellant to pay restitution without making specific findings or reviewing evidence of the appellant's ability to pay the restitution. Because we hold the trial court erred in determining the amount of restitution by focusing on whether the appellant had converted the money for his own use rather than the actual pecuniary loss suffered by the victims and because the trial court did not make specific findings regarding the appellant's ability to pay restitution, we remand for a new restitution hearing.

The appellant, James Wayne Kimbrough, was convicted in the Davidson County Criminal Court of first degree premeditated murder, felony murder, and two counts of spousal rape. Following a capital sentencing hearing, the jury imposed a sentence of life imprisonment in the Tennessee Department of Correction without the possibility of parole for his felony murder conviction. Additionally, he received a sentence of fifteen years for each of his spousal rape convictions as a Range III, persistent offender. On appeal, the appellant contends that the trial court erred in failing to grant "all aspects" of his motions to suppress, that the evidence is not sufficient to support his convictions, and that the trial court made numerous errors during the sentencing phase of his trial. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

The defendant, George A. Johnson, was convicted of rape, a Class B felony, and statutory rape, a Class E felony, and was sentenced as a Range II, multiple offender to twenty years at 100% in the Department of Correction for the rape conviction and four years at 35% for the statutory rape conviction, to be served concurrently. Additionally, both sentences were to be served consecutively to the remainder of a three-year sentence for attempted aggravated sexual battery for which the defendant's probation was revoked as a result of the convictions currently on appeal. On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to sustain his convictions; and (2) whether the trial court erred in not suppressing his confession, imposing the maximum sentence, and not allowing the defendant to impeach the victim with a prior inconsistent statement. Based on our review, we affirm the judgments of the trial court.

The appellant, Emmanuel S. Trotter, also known as "Batman," was indicted on charges of felony murder, first degree premeditated murder, especially aggravated burglary, and especially aggravated robbery. The appellant primarily represented himself at trial and was ultimately convicted by a jury of criminally negligent homicide, especially aggravated burglary, criminal attempt to commit especially aggravated robbery, and second degree murder. The trial court merged the criminally negligent homicide conviction with the second degree murder conviction and sentenced the appellant to an effective sentence of fifty-five years. The issues presented on appeal are whether: (1) the appellant made a knowing and intelligent waiver of his right to counsel; (2) the evidence sufficiently corroborated the accomplice testimony of Helen Trotter; (3) the evidence was sufficient to support the verdict; and (4) the State knowingly proffered false testimony. We affirm the judgment of the trial court.

The Appellant, Martin Jeffery Edwards, was convicted following a jury trial of two counts of delivery of a schedule II controlled substance, Class C felonies. On appeal, Edwards argues that (1) the evidence is insufficient to support the convictions and (2) the trial court erred in denying a severance of the two counts. After review, we conclude that these issues are without merit.  Accordingly, the judgment of the Lauderdale County Circuit Court is affirmed.

Aggrieved of the trial court's denial of alternative sentencing for his convictions of aggravated assault and coercion of a witness, the defendant, Johnny Royston, Jr., appeals. Because the record supports the trial court's judgments, we affirm.

This case has taken a rather Byzantine course through the Tennessee courts. Originally, the defendant was convicted of the 1996 first degree premeditated murder of Melinda Sue Perrin. This court reversed the conviction based upon insufficiency of evidence of a premeditated killing. We imposed a conviction of second degree murder and remanded to the trial court for sentencing. See State v. Donald Wallace, No. 01C01-9711-CC-00526 (Tenn. Crim. App., Nashville, Sept. 30, 1998) (Wallace I). In Wallace I, this court declined to adjudicate certain issues on appeal for lack of a timely motion for a new trial. Id., slip op. at 7-8. On remand, the court imposed a sentence of 25 years, and this court affirmed the sentence. See State v. Donald Wallace, No. M1999-00954-CCA-R3-CD (Tenn. Crim. App., Nashville, Nov. 29, 1999) (Wallace II). During the pendency of the sentencing appeal, the defendant filed a petition for post-conviction relief. The post-conviction court denied relief except to grant the defendant a new opportunity to file a motion for new trial and an appeal. See Donald Wallace v. State, No. M2001-02722-CCA-R3-PC (Tenn. Crim. App., Nashville, Dec. 9, 2002) (Wallace III). The post-conviction ruling was not appealed, but after the trial court denied the defendant's new motion for new trial, the defendant appealed the denial of the motion, resulting in the opinion in Wallace III. In that opinion, this court held that the defendant was entitled to no statutory delayed appeal and that the post-conviction court had erred in availing a new opportunity for a new trial motion and appeal without requiring a showing of prejudice as a prerequisite of a claim of ineffective assistance of counsel. Wallace III, slip op. at 5-8. Our supreme court granted an appeal, reversed, and remanded the case to this court for adjudication of the issues raised in the dispensatory motion for new trial and appeal in Wallace III. See Wallace v. State, 121 S.W.3d 652 (Tenn. 2003) (Wallace IV). We now undertake to fulfill the terms of the supreme court's remand by determining whether (1) the trial court erred in allowing the state to use hearsay evidence and (2) the prosecutor was guilty of misconduct that deprived the defendant of due process and a fair trial. Upon our review, we discern no reversible error and affirm the conviction of second degree murder.

This is a direct appeal as of right from convictions on a jury verdict of rape of a child and assault. The Defendant, Timmie D. Boston, was sentenced as a Range I offender to twenty years' imprisonment for the rape conviction and six months for assault, with the two sentences to be served concurrently. The Defendant argues two issues on appeal: (1) that the evidence was insufficient to find the Defendant guilty of rape of a child, and (2) that the trial court erred in imposing a mid-range sentence. We affirm the judgments of the trial court.

The defendant, Brandon Wallace, was convicted by a jury of two counts of attempted first degree murder (Counts 1 and 2); attempted second degree murder (Count 3); attempted especially aggravated robbery (Count 4); especially aggravated burglary (Count 5); and felony reckless endangerment (Count 6). He was sentenced as a Range I, standard offender to twenty-three years in the Department of Correction for Counts 1 and 2, to be served consecutively; ten years for Count 3, to be served concurrently with Counts 1 and 6; ten years for Count 4 which the trial court merged with Count 5, for which he also was sentenced to ten years, to be served consecutively to Count 1 and concurrently with Count 2; and two years for Count 6, to be served concurrently with Counts 1 and 3, for a total effective sentence of forty-six years. Additionally, the jury set fines totaling $138,000, which were reduced by the trial court to $1,000. The defendant raises two issues on appeal: (1) whether the evidence was sufficient to support his convictions, excluding his felony reckless endangerment conviction; and (2) whether the trial court erred in sentencing. Following our review, we affirm the judgments of the trial court but remand for resentencing and for entry of corrected judgments reflecting the offense date as July 1, 2002.

The Petitioner, Anthony Murff, 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. Because Petitioner has failed to allege a ground entitling him to habeas corpus relief, we grant the State's motion and affirm the judgment of the lower court.

The Petitioner, Robert L. Smith, appeals from the trial court's dismissal of his petition for post-conviction relief. The trial court found the petition be barred by the applicable statute of limitations and that the Petitioner had filed previous petitions that were resolved on the merits. 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 state was granted an extraordinary appeal pursuant to Rule 10, T.R.A.P., to challenge the Lincoln County Circuit Court's denying its motion to use statements made by the defendant, Braddie Eric Sullivan, to his attorney for impeachment purposes in his first degree murder and especially aggravated robbery trial. We affirm the trial court's denial of the state's motion.

The defendant, Aaron T. Binkley, pled guilty to forgery, a Class D felony, and was sentenced as a Range One standard offender to two years in the Department of Correction. On appeal, the defendant argues that the trial court erred in denying him alternative sentencing. Upon review, we affirm the judgment of the trial court.

The defendant, Michael Lebron Anderson, was convicted of burglary of a building other than a habitation, a Class D felony, and was sentenced to twelve years in the Department of Correction. On appeal, the defendant contends that the trial court erred by allowing hearsay statements of eyewitnesses to be introduced through the testimony of a police officer as an excited utterance, thereby violating his right to confront witnesses against him. After careful review of the record and the parties' briefs, we affirm the judgment of the trial court.