APPELLATE COURT OPINIONS

This case presents an appeal to this Court after remand by order of the Tennessee Supreme Court. The appellant, Shawn Rafael Bough, was convicted by a Knox County Jury of felony murder and especially aggravated robbery. The original opinion of this Court in this matter was released on January 12, 2004, and the appellant filed an application for permission to appeal. See State v. Shawn Rafael Bough, No. E2002-00717-CCA-R3-CD, 2004 WL 50798 (Tenn. Crim. App. at Knoxville, Jan. 12, 2004), affirmed in part, reversed in part, and remanded by State v. Bough, ___ S.W.3d ___, 2004 WL 2481367. The supreme court granted the permission to appeal on May 24, 2004. In our original opinion, we determined that (1) because the appellant's first motion for new trial was not timely filed in regards to the felony murder conviction and an untimely notice of appeal resulted, the appellant waived all issues except for sufficiency of the evidence in regards to the felony murder conviction; (2) because the appellant's amended motion for new trial and second amended motion for new trial were likewise deemed untimely by this Court, the only other issues remaining were those raised in the initial motion for new trial that relate to the conviction for especially aggravated robbery. As a result of the procedural determinations, we addressed the following issues in regards to the conviction for especially aggravated robbery on direct appeal: (1) whether the trial court erred in allowing the State to comment on the appellant's failure to produce a witness; (2) whether the evidence was insufficient to support the conviction for especially aggravated robbery; and (3) whether the trial court erred in failing to instruct the jury regarding the corroboration of accomplice testimony and out-of-court confessions. As a result, we concluded that the evidence was sufficient to sustain the convictions. Further, we could find no error requiring reversal of the judgments of the trial court. The supreme court determined on appeal that the original motion for new trial, as well as the two amended motions for new trial, were timely filed as to both convictions, effectively affirming in part, reversing in part, and remanding the case to this Court for consideration of the issues that were pretermitted by our procedural rulings in the original opinion. See State v. Bough, ___ S.W.3d ___, 2004 WL 2481367 (Tenn. 2004). The following issues were not addressed by this Court due to our determination that the motion for new trial was untimely as to the appellant's felony-murder conviction and thus must be addressed on remand: (1) whether the trial court erred in allowing the State to comment on the appellant's failure to produce a witness; and (2) whether the trial court erred in failing to instruct the jury regarding the corroboration of accomplice testimony and out-of-court confessions. The following issues were pretermitted on direct appeal by our conclusion that the amended motion for new trial was untimely: (1) whether the trial court erred by admitting the 911 tape of the victim; (2) whether the trial court erred in allowing jurors to take notes and ordered the notes to be destroyed prior to deliberation; (3) whether the trial court erred in allowing the State to exhibit the appellant and the co-defendant to the jury shortly before the 911 tape was played; (4) whether the trial court erred in allowing the State to infer criminal conduct of the appellant due to his association with known criminals and drug dealers. After consideration of these remaining issues, we affirm the judgment of the trial court.

The Petitioner, Robert Gentry Galbreath, was convicted by a jury of twelve counts of obtaining a prescription drug by fraud. The trial court sentenced the Petitioner to thirty-six years, as a career offender at sixty percent. On direct appeal, this Court affirmed the Petitioner's convictions and sentence. The Petitioner filed a petition for post-conviction relief, which the post-conviction court dismissed. The Petitioner now appeals, contending that the post-conviction court erred because: (1) the trial court improperly failed to instruct the jury on the lesser-included offense of facilitation; (2) his trial counsel was ineffective; (3) his appellate counsel was ineffective; and (4) his sentence amounts to cruel and unusual punishment. Because we have concluded that the Petitioner's counsel was ineffective at trial and on appeal, for failing to request a jury instruction on the lesser-included offense of facilitation and failing to appeal the jury instruction issue; we reverse the post-conviction court's dismissal of the Petitioner's petition for post-conviction relief, reverse the original convictions, and remand for a new trial.

I join with the majority in concluding that the record is insufficient to justify the imposition of consecutive sentences and that the defendant’s length of sentences requires modification.

The petitioner, Dwayne Cook, appeals the trial court's denial of his motion to reconsider the denial of his request to set aside his guilty plea and his alternative petition for writ of error coram nobis. The State has filed a motion requesting that this Court affirm the trial court's action pursuant to Rule 20, Rules of the Court of Criminal Appeals. The trial court properly denied relief as the pleadings were untimely filed and without merit. Accordingly, the judgment of the trial court is affirmed.

Defendant, Ronald Bowman, was indicted for identity theft with the intent to avoid a court appearance. Defendant was convicted by a jury of the charged offense. Defendant was sentenced as a Range I standard offender to serve three years in the workhouse. In this appeal, Defendant argues that: (1) the trial court erred by not instructing the jury as to any lesser included offenses of identity theft; and (2) the evidence is insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

Because I believe that the trial court erred by failing to charge fraudulent use of a driver’s license as a lesser included offense of identity theft, and because I cannot conclude that the error was harmless beyond a reasonable doubt, I would reverse the defendant’s conviction and remand the matter for a new trial.

The appellant, Barabbas A. Brown, appeals the Knox County Criminal Court's dismissal of his motion to correct pre-trial jail credits. The appellant argues that the trial court erred by not enforcing its order of judgment granting him pre-trial jail credits. Finding no merit to the appellant's contentions, we affirm the trial court's decision.

A Shelby County jury convicted the defendant, Lawrenzo Menton, of two counts of aggravated robbery and two counts of kidnapping, and the trial court sentenced him to twelve years for each robbery with the second count to be served consecutively to the first and six years for each kidnapping with both counts to be served concurrently with each other and with the second robbery count for an effective total sentence of twenty-four years in the Department of Correction. On direct appeal, the defendant contended, among other things, that the trial court erred in ordering consecutive sentencing. This court agreed and remanded the case to the trial court for a determination of the basis for the imposition of consecutive sentences. State v. Lawrenzo Menton, No. W2002-00267-CCA-R3-CD, Shelby County, slip op. at 1 (Tenn. Crim. App. July 2, 2003), app. denied (Tenn. Dec. 15, 2003). At the resentencing hearing, the trial court once again ordered that the defendant serve his robbery sentences consecutively. The defendant appeals, claiming that the trial court abused its discretion in ordering consecutive sentencing and that the trial court’s imposition of consecutive sentences violates the rule announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). We hold that the record is insufficient to justify the trial court’s imposition of consecutive sentences and that because the defendant’s case is still on direct appeal, plain error requires us to modify the defendant’s sentences in light of Blakely to eight years and six months for each aggravated robbery conviction and three years and six months for each kidnapping conviction.

This is an appeal as of right from a conviction of second degree murder. The Defendant, Douglas V. Killins, was indicted for first degree murder and found guilty by jury verdict of the lesser-included offense of second degree murder. The trial court sentenced the defendant as a Range II violent offender to thirty-eight years to be served in the Department of Correction. On appeal, the Defendant claims there was insufficient evidence for the jury to find him guilty of second degree murder. We affirm the judgment of the trial court.

In 1973, Appellant, Jessie D. McDonald, was convicted, following a jury trial, of the offense of obtaining property by false pretenses. Appellant filed a petition for writ of habeas corpus in the Criminal Court of Davidson County, Tennessee in May 2004, attacking his conviction. According to his petition, the sentence for the conviction expired in May 1979. Upon direct appeal from the conviction, the Court of Criminal Appeals reversed the conviction. However, the Supreme Court of Tennessee reversed the Court of Criminal Appeals and reinstated the judgment. See State v. McDonald, 534 S.W.2d 650 (Tenn. 1976). Appellant has appealed from the trial court's summary dismissal of his petition for writ of habeas corpus relief. 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 defendant, Immanuel Eldridge Harney, pled guilty to six counts of sale of one-half gram or more of cocaine, a Class B felony, and pursuant to a plea agreement, the Giles County Circuit Court sentenced him to twelve years incarceration for five of the counts and three years incarceration for the sixth count. The court ordered that the defendant serve one of his twelve-year sentences consecutively to the other four and that he also serve the three-year sentence consecutively to the five twelve-year sentences for an effective sentence of twenty-seven years in the Department of Correction (DOC). The defendant appeals from the Giles County Circuit Court order reducing his sentences by six months, claiming that the trial court abused its discretion in failing to grant him a greater reduction. The state appeals, contending that the trial court was without jurisdiction to reduce the defendant's sentence. We hold the trial court was without jurisdiction to reduce the defendant's sentence. We reverse the judgment of the trial court and remand the case for the entry of a corrected judgment.

The Defendant, Tarus A. Sircy, appeals from the trial court's denial 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, Ali Alvdu Mohammad, appeals the trial court's denial of post-conviction relief. The issues presented for review are whether the petitioner's lea of guilt was knowingly and voluntarily entered and whether the petitioner was denied the effective assistance of counsel. The judgment is affirmed.

The Petitioner, Derrick Taylor, was indicted for, and pled guilty to, aggravated assault. The trial court sentenced him to seven years, as a multiple offender, at thirty-five percent. The Petitioner filed a pro se petition for post-conviction relief, which the post-conviction court dismissed. The Petitioner now appeals contending that the post-conviction court erred when it dismissed his petition because: (1) his guilty plea was not knowingly and voluntarily entered; and (2) he received ineffective assistance of counsel. Finding no error in the judgment of the post-conviction court, we affirm its dismissal of the Petitioner’s petition for post-conviction relief.

The petitioner appeals the dismissal of his petition for post-conviction relief in which he asserted various instances of ineffective assistance of counsel. We affirm the dismissal of the post-conviction petition because the record supports the post-conviction court's findings.

The defendant, Thomas L. Gouge, appeals from the trial court's revocation of probation requiring a sixty-day jail sentence. The order of revocation provided that the defendant reside in a work release facility for an unspecified amount of time after service of sixty days and that his probationary release was conditioned upon his refraining from taking residence "with any female to whom he is not married." The order of revocation is affirmed; the sentence, however, is modified by deleting the provision prohibiting the sharing of the residence with an unmarried woman.

Following a jury trial, Defendant, Recardo Dale, was convicted of one count of especially aggravated robbery and one count of attempted first degree murder. The trial court sentenced Defendant as a Range I standard offender to twenty-five years for the especially aggravated robbery conviction and twenty-five years for the criminal attempt conviction. The trial court ordered Defendant’s sentences to be served consecutively for an effective sentence of fifty years. Defendant appeals the sufficiency of the convicting evidence, the lengths of his sentences, and the imposition of consecutive sentencing. 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 lengths of his sentences. After a thorough review of the record, we affirm Defendant’s convictions and the imposition of consecutive sentencing. Pursuant to the holding in Blakely, we modify each sentence to twenty-two years, for an effective sentence of forty-four years.

The Appellant, Frederick D. Rice, appeals the judgment of the Hamilton County Criminal Court dismissing his petition for post-conviction relief. On appeal, Rice raises the single issue of whether he was denied the effective assistance of counsel at trial. After review of the record, we affirm the dismissal of the petition.

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

The defendant, Robbie W. Fields, was indicted by the Bradley County Grand Jury for possession of a Schedule I controlled substance, ecstasy, with intent to sell or deliver; possession of a Schedule VI controlled substance, marijuana, with intent to sell or deliver; possession of drug paraphernalia; tampering with evidence; and theft of property under $500. After a pretrial hearing, the trial court suppressed the evidence, and the charges were dismissed, which the State argues was error. Following our review, we reverse the trial court's determination that the officers unlawfully entered the defendant's apartment and remand for additional findings of fact and conclusions of law as to the seizure of evidence.

The defendant, Raymond D. Simpson, pled guilty to criminally negligent homicide, a Class E felony. The trial court imposed a Range I sentence ¹ of two years. The defendant was ordered to serve seven months in confinement and the remainder on probation. The defendant contends that the trial court erred by denying full probation and/or community corrections. The judgment of the trial court is affirmed; the sentence must be modified, however, to a Range I term of one year, with 105 days to be served in confinement and the balance on probation.

I write separately to call attention to what I believe is disparate treatment of two cases which, on all pertinent points, seem to be identical. The case presently before this Court involves an inattentive or negligent driver havinga single-vehicle accident while transporting two of his children and his new wife in a vehicle with no seat belts or child restraint devices. In a tragic, yet foreseeable, turn of events, eleven-month-old Jonathan was fatally injured when the truck rolled over on its side and his head struck a pillar on the passenger side of the truck. Despite the efforts of his father, the  defendant in this case, young Jonathan died from cardiac arrest resulting from his head trauma.

The defendant was convicted by a jury of one count of theft over $1,000 but less than $10,000 and three counts of forgery, all Class D felonies, and was sentenced as a Range I, standard offender to three years on the theft count and two years on each of the forgery counts. The two-year sentences were ordered to be served concurrently but consecutively to the three-year sentence, for a total effective sentence of five years. Split confinement was ordered, with forty-five days to be served in the county jail and the remainder of the sentence on probation. In addition, she was ordered to pay $2,233.94 in restitution. The defendant timely appealed, alleging: (1) the evidence is insufficient to support her convictions; and (2) the trial court erred in allowing certain photographs to be admitted into evidence and in sentencing the defendant. Based on our review, we affirm the judgments of the trial court but modify the defendant’s sentences to reflect that they are to be served concurrently.

Following a jury trial, the Defendant was convicted of robbery. He was sentenced to six years in the Department of Correction. On appeal he challenges the sufficiency of the convicting evidence and argues that the trial court erred in sentencing him to the maximum term of six years. We affirm the Defendant’s conviction but modify his sentence to five years.

Defendant, Julius Q. Perkins, was indicted on one count of first degree premeditated murder and one count of first degree felony murder. Following a jury trial, Defendant was found guilty of felony murder and not guilty of premeditated murder. He was sentenced to life imprisonment. On appeal, Defendant argues that the evidence was insufficient to support his conviction of felony murder because the State failed to show that the victim was killed during a robbery or attempted robbery, or, alternatively, that Defendant was criminally responsible for the death of the victim. After a thorough review of the record, we affirm the judgment of the trial court.