APPELLATE COURT OPINIONS

The defendant, Joe W. France, pled guilty to the sale of cocaine in excess of .5 grams. A Range II, 12-year sentence was imposed but the defendant was granted probation supervised under a Community Corrections program after a term in jail. After the issuance of a revocation warrant, the defendant agreed to an increase of the sentence to 20 years in exchange for continued probation supervised by the Community Corrections program. Later, the defendant violated the terms of the agreement and was ordered to serve the 20-year sentence. In this appeal, the defendant complains that even though he entered into the sentence modification by agreement, he was entitled to a hearing before the sentence was increased. The judgment of the trial court is reversed. Because both the original plea agreement and the amended agreement provided for illegal sentences, the conviction must be set aside and the cause remanded for trial.

Indicted for aggravated child abuse, the defendant, Michael Wayne Poe, was convicted by a jury of child abuse, a Class D felony. The trial court sentenced the defendant to four years, with all but 11 months, 29 days suspended. In this appeal of right, the defendant argues that the evidence was insufficient, that the sentence was excessive, and that the trial court erred by denying full probation. The sentence is modified to three years; otherwise, the judgment of the trial court  affirmed.

The defendant, Julius E. Smith, entered pleas of guilty to two counts of driving under the influence, third offense, and four counts of vehicular assault. As to the first driving under the influence offense, the trial court imposed a sentence of eleven months and twenty-nine days, to be suspended to probation after the service of 120 days of confinement. The second was merged into the convictions for vehicular assault. The trial court imposed consecutive sentences of three years for each vehicular assault conviction. The sentences were ordered to be served consecutively to the sentence for driving under the influence, third offense. The effective sentence is, therefore, twelve years, eleven months, and twenty-nine days. In this appeal, the defendant asserts that the effective sentence for the vehicular assault convictions is excessive. It is our judgment that the misapplication of an enhancement factor to three of the four vehicular assault convictions warrants a reduction to two years for each of those crimes. Otherwise, the judgments of the trial court, including the imposition of consecutive terms, are affirmed.

The defendant, Terry Lynn Byington, was convicted of DUI, fourth offense, and sentenced as a Range II, multiple offender to three years in the Department of Correction, with 150 days to be served day-for-day. On appeal, the defendant argues that (1) the evidence was insufficient to support his conviction; (2) his sentence is excessive; (3) the trial court erred in allowing the State to introduce evidence of a prior conviction which was more than ten years old; and (4) the trial judge erred in not recusing herself. After review, we affirm the judgment of the trial court.

The Petitioner, Christopher L. Dethrow, appeals the trial court's denial of his petition for postconviction 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. A review of the record supports the State’s position. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The petitioner, Bryan Pearson, appeals the trial court's dismissal of 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, Tenn. Ct. Crim. App. R. The petitioner has not established that the challenged judgment is void or that his sentence has expired. Accordingly, the motion for summary affirmance is granted and the judgment of the trial court is affirmed.

The defendant, Joey Dewayne Thompson, appeals as of right from his convictions by a jury in the Knox County Criminal Court for second degree murder, a Class A felony, and attempted second degree murder, a Class B felony. The trial court sentenced him to twenty-five years for the second degree murder and twelve years for the attempted second degree murder, to be served consecutively in the Department of Correction. The defendant contends that: (1) the evidence is insufficient to support the convictions; (2) the trial court erred by allowing the state to amend the indictment to include a count for first degree felony murder; (3) the trial court erred by admitting a 9-1-1 tape; (4) the trial court erred by allowing reference to the defendant's nickname, "Joe Thug"; (5) the trial court erred by allowing the state to cross-examine the defendant on a robbery charge that had been dismissed; (6) prosecutorial misconduct requires a new trial; (7) the trial court erred in its instructions to the jury regarding "knowing"; and (8) the trial court erred in giving him excessive and consecutive sentences. We conclude that the trial court committed reversible error in its instructions to the jury regarding "knowing." Accordingly, we reverse the judgments of the trial court and remand the case for a new trial.

The appellant, Marty William Thomas, was convicted by a jury in the Hamilton County Criminal Court of four counts of aggravated rape and one count of aggravated burglary. Following a hearing, the trial court sentenced the appellant to an effective sentence of fifty-four years incarceration in the Tennessee Department of Correction. On appeal, the appellant claims that the trial court erred by (1) admitting into evidence three photographs of the appellant taken on different dates; (2) replaying only the direct testimony of the victim for the jury during deliberation; and (3) denying the appellant's motion for a mistrial on the ground that the jury was prejudiced by media reports. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

The defendant, Robin McNeal Vanhoose, appeals the trial court’s dismissal of his motion to correct illegal sentence. The State filed a motion to dismiss the appeal or, in the alternative, to affirm the dismissal by the trial court pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. Upon reviewing the record, the defendant’s brief, and the State’s motion and brief, we affirm the trial court’s dismissal of the defendant’s motion to correct illegal sentence.

The petitioner, Thomas Eugene Hargis, appeals the trial court's dismissal of 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, Rules of the Court of Criminal Appeals. The petition presents no cognizable claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The defendant, Anthony J. Ramey, appeals his jury conviction of aggravated sexual battery, a lesser-included offense of rape of a child with which he was originally charged. He claims (1) that the evidence presented at trial was insufficient to find him guilty of aggravated sexual battery; (2) that the trial court should have granted his motion for judgment of acquittal; (3) that the length of his sentence is excessive; (4) that the jury should have been instructed on the lesser-included offense of child abuse; and (5) that Code section 40-18-110(c), which requires a written request for an instruction on a lesser-included offense, is unconstitutional. Upon review, we are unpersuaded by the defendant's arguments and, accordingly, affirm his conviction and sentence.

The defendant, Michael Ray McGill, pled guilty in the Knox County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony. Pursuant to a plea agreement, the defendant received a four-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court denied the defendant's request for an alternative sentence and ordered that he serve his sentence in the Department of Correction. The defendant appeals, claiming that the trial court erred by sentencing him to confinement. We affirm the judgment of the trial court.

The petitioner, Stephen Otis Nicely, appeals the Knox County Criminal Court's denial of his petition for post-conviction relief from his rape of a child conviction, his aggravated sexual battery conviction, and his resulting effective sentence of twenty-two years. The petitioner claims that he received the ineffective assistance of counsel because his attorney (1) refused to let him testify at trial; (2) failed to challenge the admissibility of evidence of the victim's post-traumatic stress disorder; (3) failed to prepare and investigate adequately for trial; and (4) failed to instruct the petitioner on the range of punishment if convicted. We affirm the trial court's denial of the petition.

The petitioner, Christa Gail Pike, appeals as of right from an order denying her motion to reinstate a petition for post-conviction relief. Her counsel had previously appealed an order approving the withdrawal of the post-conviction claim. In this appeal, the petitioner asserts (1) that an inmate under a sentence of death should not be permitted to waive post-conviction review of a capital case; (2) that the hearing conducted by the post-conviction court to determine whether her decision to waive further challenges to her conviction and sentence did not comply with due process requirements; and (3) that the post-conviction relief petition was not properly withdrawn. This court concludes that the petitioner, under a capital sentence, may waive post-conviction review; that the hearing was in compliance with due process standards; and that the evidence supported the findings that the petitioner was competent to withdraw her post-conviction petition and that her decision to do so was voluntarily and knowingly made. The judgment of the post-conviction court allowing the withdrawal of the post-conviction petition is affirmed. The order denying the motion to reinstate the petition is also affirmed.

The opinion of the court in this matter was released on January 23, 2004, and the petitioner filed an application for permission to appeal. On June 28, 2004, our supreme court granted the application and remanded to this court, directing that we reconsider our previous conclusion that "the trial court charged the incorrect version of the aggravating circumstance in Tennessee Code Annotated section 39-2-203(i)(5) (1982)." We have reconsidered this issue and conclude that the trial court utilized the correct version of this statute when instructing the jury at the resentencing hearing as to aggravating circumstances. Additionally, as explained in this opinion on remand, we erred in the original opinion by stating that our supreme court had addressed, in the direct appeal of the resentencing hearing, whether "instructing an inapplicable version of aggravating circumstance (i)(5) was harmless error." In fact, the court did not do so. In our opinion on remand, we again affirm the post-conviction court's denial of relief, and refile our opinion which has been altered only to reflect our consideration of those matters, as previously explained, set out in the remand order.

The appellant, Michael Rogers, was found guilty by a jury in the Lauderdale County Circuit Court of possession of more than one-half ounce of marijuana with the intent to deliver. He was sentenced to six years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The defendants, Antonio Fuller and Marcellus Betty, were each convicted of one count of aggravated burglary, one count of aggravated robbery, two counts of especially aggravated kidnapping, one count of evading arrest, and one count of reckless endangerment. The trial court sentenced defendant Fuller, a Range II offender, to ten years for aggravated burglary, eighteen years for aggravated robbery, thirty-five years for each especially aggravated kidnapping, seven years for evading arrest, and four years for reckless endangerment and ordered partially consecutive service for an effective sentence of fifty-six years. The trial court sentenced defendant Betty, a Range I offender, to six years for aggravated burglary, twelve years for aggravated robbery, twenty-five years for each especially aggravated kidnapping, four years for evading arrest, and two years for reckless endangerment. The terms for especially aggravated kidnapping were ordered to be served concurrently to each other and consecutively to the other sentences, which are to be served consecutively, for an effective sentence of forty-nine years. In this appeal, Fuller asserts that (1) the evidence is insufficient to support his convictions; (2) his conviction for especially aggravated kidnapping of one of the victims violates the rule established in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); (3) the trial court erred by refusing to provide a range of punishment instruction to the jury; and (4) the trial court misapplied certain enhancement factors and should not have imposed consecutive sentencing. Betty contends (1) that the trial court erred by refusing to sever his case from Fuller's; (2) that the evidence is insufficient to support his convictions; (3) that the trial court erred by not granting a mistrial when the state failed to disclose a recording of a 911 call; (4) that the trial court erred by failing to merge the convictions for aggravated robbery and especially aggravated kidnapping; (5) that the trial court misapplied certain enhancement and mitigating factors; and (6) that the trial court erred by imposing consecutive sentencing. Because each of the defendants' convictions for the especially aggravated kidnapping of one of the victims violates the rule established in Anthony, they are reversed and dismissed. Further, because the sentences for especially aggravated kidnapping were ordered to be served concurrently to each other, no modification of the effective sentence is necessary. Otherwise, the judgments of the trial court are affirmed.

The defendant entered guilty pleas in Giles County to aggravated rape, especially aggravated burglary, and assault. After imposition of the sentences, but before the judgments became final, the defendant filed a pro se motion to withdraw the guilty pleas. The trial court denied the motion. The defendant also filed a motion alleging error coram nobis, which was denied by the trial court. Both denials were consolidated for this appeal. Upon review, we affirm the judgments of the trial court.

The defendant, James G. Huppe, Jr., was convicted of burglary and theft over $1000, Class D felonies, and was sentenced to concurrent terms of three years, suspended except for fifty-three days, with the balance to be served on probation. Additionally, he was ordered to pay restitution in the amount of $4278 and was fined a total of $10,000. On appeal, he argues that he was denied his right to a speedy trial, the court erred in restricting his cross-examination of the victim, and the evidence is insufficient to sustain the convictions. Following our review, we affirm the judgments of the trial court.

The petitioner appeals the denial of post-conviction relief relating to his convictions for felony murder and attempted aggravated robbery. On appeal, the petitioner contends he received ineffective assistance of counsel at trial and on appeal. We affirm the judgment of the post-conviction court.

The Appellant, Brandon Scott Watson, appeals from the sentencing decision of the Davidson County Criminal Court. In January of 2003, Watson pled guilty to two counts of burglary of an automobile, class E felonies. Pursuant to a negotiated plea agreement, Watson received concurrent two-year sentences and, following a sentencing hearing, he was placed in the Community Corrections program. On April 15, 2003, a warrant was issued, alleging that Watson had violated conditions of his behavioral contract. Following an evidentiary hearing, the trial court revoked his community corrections sentences and modified the previously imposed concurrent sentences to reflect that they be served consecutively. In this appeal, Watson contends that: (1) the trial court erred in revoking his community corrections sentence based on "unreliable hearsay" evidence, specifically, the testimony of his community corrections case officer's referencing a report prepared by a Davidson County Drug Court investigator, who was not present to testify at the revocation hearing, and (2) the trial court erred in ordering his sentences to run consecutively. After a review of the record, we find no reversible error and affirm the sentencing decision of the trial court.

The petitioner, Steven Griffin, appeals the trial court’s denial of his request for forensic DNA analysis, pursuant to the Post-Conviction DNA Analysis Act of 2001. Our review discloses that the trial court ruled correctly, and we affirm the denial of the petitioner’s request.

I respectfully disagree with the conclusion reached in the majority opinion. The Post- Conviction DNA Analysis Act has no provision that even hints of waiver relative to a request to test evidence for the first time. The applicable requirement for consideration is T.C.A. § 40-30-304(3) which states: “The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis.” The focus is on the fact that no test occurred, not on whether a previous opportunity existed or was pursued to have the test done.

The defendant, Alfred N. Mason, pled guilty to possession of over twenty-six grams of cocaine with the intent to sell, a Class B felony, and was sentenced as a Range I, standard offender to ten years in the Department of Correction. On appeal, he argues that the trial court erred in denying alternative sentencing. After review, we affirm the judgment of the trial court.

The Appellant, Donnie Moore, appeals from the ruling of the Carroll County Circuit Court, which found that Moore violated the conditions of probation imposed by the Carroll County General Sessions Court. Following a hearing, the general sessions court partially revoked Moore’s probation and ordered him to serve ninety days in jail. Moore appealed to the Carroll County Circuit Court. The circuit court agreed that Moore had violated the terms of his probation and remanded the case to the general sessions court for enforcement of the sentence. On appeal, Moore argues that the circuit court erred by failing to conduct a de novo review of the sentence imposed by the general sessions court and that his sentence was the result of vindictive prosecution. Because the circuit court failed to review Moore’s sentence following revocation of his probation, we remand the case to the circuit court for that limited purpose.