APPELLATE COURT OPINIONS

The defendant, Roger Dale Cates, was convicted of driving under the influence, third offense. The trial court imposed a sentence of eleven months and twenty-nine days with one hundred twenty days to be served in jail and the balance to be served on probation. The defendant's driver's license was revoked for a period of three years. Because the trial court properly instructed the jury as to whether the defendant was in control of the vehicle, the judgment is affirmed.

The petitioner appeals the dismissal of his petition for writ of habeas corpus, in which he contends that: (1) the State cannot maintain convictions on both murder and robbery when the murder was committed in the act of robbery; (2) the court lacked jurisdiction to sentence him because he did not plead to the charge of attempted second degree murder; and (3) the court erred in dismissing his petition without first appointing him counsel. After careful review, we affirm the dismissal of the petition.

The defendant, Allen Ken Kinney, III, entered pleas of guilt to two counts of sale of a controlled substance, .5 grams or more of a substance containing cocaine, a Schedule II drug. See Tenn. Code Ann. § 39-17-417(A)(3). The trial court imposed concurrent, Range I, eight-year sentences on each of the two Class B felonies, requiring twelve months in jail, less thirty-nine days of pretrial jail credit, with the balance to be served on probation.¹ The sentences were ordered to be served concurrently with a sentence imposed in Kentucky. In this appeal, the defendant complains that the term of incarceration was excessive. The judgments are affirmed.

The defendant, Earice Roberts, was convicted by a Shelby County Criminal Court jury of simple possession of marijuana, a Class A misdemeanor; possession of heroin with the intent to sell, a Class B felony; possession of heroin with the intent to deliver, a Class B felony; and two counts of assault, a Class A misdemeanor. After merging the possession of heroin with intent to sell conviction with the possession of heroin with the intent to deliver conviction, the trial court sentenced the defendant as a Range I, standard offender to twelve years for possession of heroin with the intent to deliver; eleven months, twenty-nine days for possession of marijuana; and eleven months, twenty-nine days for each assault. The trial court ordered that the marijuana sentence be served concurrently to the heroin sentence, but that the sentences for assault be served consecutively to each other and consecutively to the twelve-year sentence for possession of heroin, for a total effective sentence of thirteen years, eleven months, and twenty-nine days in the Department of Correction. The sole issue the defendant raised on appeal was whether the trial court erred in admitting the heroin into evidence because of the State’s alleged failure to establish a proper chain of custody. However, while the case was still pending, the defendant filed a motion requesting that we consider an additional issue on appeal; namely, the impact of the United States Supreme Court’s recently released Blakely v. Washington, 542 U.S. ___,124 S. Ct. 2531 (2004), opinion on the enhanced heroin sentence imposed as well as on the consecutive sentencing ordered in the case. Following our review, we conclude that the trial court did not err in admitting the heroin into evidence; that three of the four enhancement factors were inappropriately applied under Blakely, but that the remaining applicable enhancement factor, to which the trial court assigned heavy weight, justifies an enhanced sentence of ten years, six months; and that Blakely does not affect the trial court’s imposition of consecutive sentencing. Accordingly, we modify the defendant’s sentence for possession of heroin with the intent to deliver from twelve years to ten years, six months, but in all other respects affirm the judgments of the trial court.

I write separately because, in my view, Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), precludes the application of enhancement factor (5). While I agree with the majority that the jury's verdict in count two necessarily includes a finding that the victim is mentally defective, the verdict does not include a finding that the victim was particularly vulnerable because of his mental disability, which is required by the statute. See Tenn. Code Ann. § 40-35-114(5) (2003). Our supreme court has held that factor (5) may be used only "if the circumstances show that the victim, because of his age or physical ormental condition, was in fact 'particularly vulnerable,' i.e., incapable of resisting, summoning help, or testifying against the perpetrator." State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). In my view, the verdict of the jury does not necessarily reflect that fact. In consequence, factor (5) would not be applicable under the rule established in Blakely. Because only one enhancement factor remains, I would have modified the sentence to twenty-one years, one year above the presumptive sentence.

The defendant, Michael K. Massengill, appeals the revocation of his probation, arguing that the trial court erred in failing to place him back on intensive probation or in the community corrections program after he violated his probation. Following our review, we affirm the order of the trial court.

The petitioner, James D. L. Perry, appeals pro se from the Johnson County Criminal Court's dismissal of his petition for habeas corpus relief. The petitioner attacks his two convictions for possession with intent to sell one-half or more grams of cocaine within one thousand feet of a school for which he received concurrent twenty-year terms. He contends that the first cocaine conviction is void because he was entrapped, that the second cocaine conviction is void because he was convicted of a crime for which he was not indicted, and that both convictions are void because he was convicted under a statute which he claims was inapplicable. We affirm the trial court's dismissal of the petition.

The Defendant, Arthur Southern, pled guilty to two counts of sale of a schedule II controlled substance. The trial court sentenced the Defendant to four years and three months on each count and ordered that the sentences run consecutively, for an effective sentence of eighty years and six months. The Defendant filed a motion to withdraw his guilty plea, which the trial court denied. The Defendant then filed a motion for a new sentencing hearing or a sentence reduction, which the trial court denied. On appeal the Defendant contends that the trial court erred when it: (1) denied his motion to withdraw his guilty plea; and (2) ordered that his sentences run consecutively. Finding no reversible error, we affirm the judgments of the court.

The defendant, Lamar Ross, was indicted by the Shelby County Grand Jury on two counts of aggravated rape, a Class A felony, under alternate theories, for one offense. Following a jury trial, he was convicted of both counts, which were merged into a single judgment of conviction, and sentenced by the trial court as a Range I, violent offender to twenty-four years in the Department of Correction. In a timely appeal to this court, he challenges the sufficiency of the evidence and the sentencing imposed. Based on our review, we modify the conviction in Count 2 to rape, a Class B felony, in accordance with the offense with which the defendant was charged. Further, we conclude that two of the four enhancement factors are inapplicable, in light of the United States Supreme Court’s subsequent opinion in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).  Accordingly, we modify the aggravated rape conviction in Count 2 to rape, which merges into the conviction for aggravated rape in Count 1, and reduce the defendant’s sentence to twenty-two years in the Department of Correction.

Following a remand for a new trial on the charge of first-degree premeditated murder, see State v. Howard, 30 S.W.3d 271 (Tenn. 2000), the defendant, FranklinHoward, was again convicted of first-degree premeditated murder and was also convicted of felony murder and sentenced to life in prison.  Now on appeal, he challenges the sufficiency of the convicting evidence, the admission of a codefendant’s statement, the failure of the trial court to bar the second trial based upon principles of double jeopardy, the trial court’s jury instructions, the failure to transfer the case to another trial judge for retrial, and the imposition of consecutive sentencing. We reverse the felony-murder convictions and dismiss those charges but otherwise affirm the defendant’s first-degree murder conviction and sentence.

This matter is before the Court upon the State's motion to dismiss the appellant's appeal, or in the alternative, affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant filed a motion for correction or reduction of sentence that the trial court denied without benefit of a hearing. After reviewing the record in this case, we find the State's motion to affirm the judgment of the trial court by memorandum has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant, Michael Trew, was found guilty by jury verdict of driving under the influence of an intoxicant (DUI), a Class A misdemeanor, and violating the implied consent law. The Defendant was sentenced to eleven months and twenty-nine days, with seven days to be served in the county jail; fined $400; and had his driver's license suspended for one year. The Defendant now appeals, claiming that the evidence at trial was insufficient to support his DUI conviction beyond a reasonable doubt. We affirm the judgment of the trial court.

The appellant, Michael A. Drake, was indicted on two counts of vehicular homicide and two counts of aggravated vehicular homicide. A jury found the appellant guilty of two counts of vehicular homicide by intoxication. In the second phase of the trial, the jury found the appellant guilty of two counts of aggravated vehicular homicide based on one prior DUI conviction and a blood alcohol level of .20 or more at the time of the present offense. On appeal, the appellant challenges the sufficiency of the indictment by arguing that it only gave notice that the State sought to convict him of aggravated vehicular homicide based on two prior DUI offenses. We determine that the indictment is misleading and deprives the appellant of adequate notice of the charges against him in violation of the 6th amendment to the United States Constitution and Article 1, section 9 of the Tennessee Constitution. The indictment indicated that the State sought the aggravated vehicular homicide convictions solely on the basis of the appellant's two prior DUI convictions pursuant to Tennessee Code annotated section 39-13-218(1)(a), rather than one prior DUI and a blood alcohol of .20 or more at the time of the offense, pursuant to Tennessee Code Annotated section 39-13-218(3). Thus, we are forced to dismiss the aggravated vehicular homicide conviction, modify the conviction to vehicular homicide under Tennessee Code Annotated section 39-13-213 and remand the case for resentencing.

The Defendant, Calvin Lee Sneed, was convicted upon a jury verdict of first degree premeditated murder and sentenced to life imprisonment. The Defendant's conviction and sentence were affirmed on direct appeal. See State v. Calvin Lee Sneed, No. 03C01-9611-CR-00444, 1998 WL 309137 (Tenn. Crim. App., Knoxville, June 12, 1998). The Defendant subsequently filed a petition for post-conviction relief, alleging that he had received ineffective assistance of counsel at trial. After a hearing, the trial court denied relief. The Defendant now appeals. We affirm the judgment of the trial court.

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 appellant has appealed the trial court's order summarily dismissing the appellant's petition for writ of habeas corpus. Upon a review of the record in this case 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.

Following a jury trial, the defendant, Gary Lee Johnson, was convicted of aggravated assault, assault,¹ and resisting arrest. He was sentenced as a Range I, standard offender to six years in the Department of Correction for the aggravated assault and eleven months, twenty-nine days for each of the assault and resisting arrest convictions. All sentences were to be served concurrently. He appeals only the aggravated assault conviction, arguing that the evidence is insufficient to support the conviction. After review, we affirm the convictions but remand for entry of corrected judgments in Counts 1 and 2.

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 appellant has appealed the trial court's order summarily dismissing the appellant's "Affidavit of Specific Negative Averment." In that document the petitioner apparently desired to set aside his guilty plea because it failed to comply with certain provisions of the Uniform Commercial Code. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the "Affidavit of Specific Negative Averment" 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.

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 sought a writ of habeas corpus to release him from his conviction for especially aggravated robbery. 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.

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 alleges that the indictment charging the petitioner with one count of felony murder and one count of first degree murder is void because the counts therein fail to allege sufficient facts to vest jurisdiction in the trial court. Upon a review of the record in this case 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 Lee McCormick, was convicted in 1987 of the first degree murder of Donna Jean Nichols. The Defendant was sentenced to death for the murder. The Defendant's conviction and sentence were affirmed on direct appeal. See State v. McCormick, 778 S.W.2d 48 (Tenn. 1989). Subsequently, the Defendant filed for post-conviction relief on the grounds of ineffective assistance of counsel and a new trial was awarded. See Michael Lee McCormick v. State, No. 03C01-9802-CR-00052, 1999 WL 394935 (Tenn. Crim. App., Knoxville, June 17, 1999). In conjunction with the new trial, defense counsel filed a motion to suppress statements the Defendant made to police officers prior to his 1987 arrest. The trial court granted the Defendant's motion. The State now appeals by permission. See Tenn. R. App. P. 9. We affirm in part and reverse in part.

Following a jury trial, the Defendant, Samuel L. Giddens, was convicted of facilitation of possession of heroin with the intent to sell or deliver and possession of cocaine with the intent to sell or deliver. In this appeal as of right, the Defendant raises the following four issues: (1) whether the trial court erred by allowing law enforcement officers to testify regarding factual indications that a person possesses drugs with the intent to sell, rather than for personal use; (2) whether the trial court erred by admitting testimony regarding prior drug transactions conducted by the Defendant; (3) whether the evidence is sufficient to sustain his two convictions; and (4) whether he was entitled to a mistrial due to a statement made by the prosecutor during closing argument. We affirm the judgment of the trial court.

A Hamilton County Criminal Court jury convicted the defendant of the attempted first degree murder of a police officer, and the defendant pled guilty to twenty-nine charges, including multiple counts of car burglary, felony theft, and misdemeanor theft. The trial court sentenced him as a Range I, standard offender to twenty-five years for the attempted murder conviction and as a Range II, multiple offender to an effective sentence of six years for the remaining convictions. The trial court ordered that the twenty-five-year and six-year sentences be served consecutively to each other and consecutively to a six-year revoked probation sentence. The defendant appeals, claiming that the trial court erred (1) by refusing to dismiss a juror for cause; (2) by refusing to compel the state to provide the defense with the police department's written use-of-force policy; (3) by refusing to allow the defense to cross-examine police officers about the use-of-force policy; (4) by refusing to allow an expert to testify about the victim's excessive use of force against the defendant; (5) by refusing to instruct the jury on deadly force; and (6) by ordering consecutive sentencing. We affirm the judgments of the trial court.

The petitioner, Michael S. Holmes, was convicted in 1997 of aggravated robbery, aggravated assault, aggravated kidnapping, felony escape, burglary of a vehicle, and theft of property over $1000. His convictions were affirmed on direct appeal. Subsequently, he filed a petition for post-conviction relief alleging ineffective assistance of counsel and improper jury instructions on lesser-included offenses. After a review of the affidavits submitted by the petitioner, the post-conviction court denied the petition, and this appeal followed. We affirm the order of the post-conviction court denying the petition.

The Petitioner, Corey Harrison, 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 appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The Petitioner, Antonio Lyons, appeals from the trial court's dismissal of his petition for post-conviction relief. The trial court found the petition to be untimely filed. 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.