APPELLATE COURT OPINIONS

The Appellant, Andre Edward Hicks, was convicted after a trial by jury of aggravated robbery and was sentenced as a persistent offender to thirty years in the Department of Correction. On appeal, Hicks raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict and (2) whether his sentence was proper. After a review of the record, the judgment of the Davidson County Criminal Court is affirmed.

The defendant, JoyLeigh Sandidge, pled guilty to two counts of vehicular assault and one count each of DUI, fourth offense, leaving the scene of an accident involving injury, and failure to yield. The trial court imposed an effective sentence of two years, with the court to make a determination as to alternative sentencing after the defendant had served the mandatory 150 days in jail for her DUI, fourth offense, conviction. Subsequently, the trial court denied alternative sentencing and ordered the defendant to serve the balance of her sentence, and the defendant argues on appeal that the trial court erred in this determination. Following our review, we reverse the judgments of the trial court and remand for the defendant to be placed on probation for the remainder of her sentence.

Following a jury trial, Defendant, Clifford Rogers, was convicted of premeditated first degree murder, felony murder, and aggravated assault. Defendant received an effective sentence of life plus fifteen years for his convictions. In this appeal as of right, Defendant challenges the sufficiency of the convicting evidence and the trial court’s order of consecutive sentencing. Because the trial court erroneously entered judgments of convictions for the offenses of premeditated first degree murder and felony murder, rather than merging the two offenses at sentencing, we merge Defendant’s conviction for felony murder with his conviction for premeditated murder and remand this case for entry of judgments consistent with this opinion. In all other respects, the judgments of the trial court are affirmed.

Defendant, Stevan Craig Mullen, was indicted by the Franklin County Grand Jury for driving with an alcohol concentration of .10 or more, in violation of Tenn. Code Ann. § 55-10-401, and for reckless driving, in violation of Tenn. Code Ann. § 55-10-205. Following a jury trial, Defendant was convicted of driving with an alcohol concentration of .10 or more and acquitted of reckless driving. Defendant was sentenced to eleven months and twenty-nine days, with all but forty-eight hours of his sentence suspended. In addition, his driver’s license was revoked for one year, and he was ordered to perform 100 hours of public service work and fined $350.00. In this appeal as of right, Defendant challenges the trial court’s denial of his motion to suppress his breathalyzer test results. After reviewing the record, we affirm the judgment of the trial court.

A Fayette County jury convicted the defendant of promoting prostitution. The trial court sentenced the defendant to five years’ incarceration as a Range III persistent offender. On appeal, the defendant attacks the sufficiency of the evidence and his sentence. We discern no error and affirm the judgment of the trial court.

The appellant, David Curtis Lynn, was convicted of second offense driving under the influence. As a result, he was sentenced to 11 months and 29 days. He was ordered to serve 90 days in jail and the remainder of his sentence on probation. The appellant apparently violated probation sometime in 2001 and, as a result of that violation, the trial court extended his probation by six months. After a hearing on what appears to be a second probation violation, the trial court entered an order revoking the appellant's probation and ordering him to serve his sentence in confinement. On appeal, the appellant argues that the trial court abused its discretion in revoking his probation and that his sentence had expired at the time the trial court revoked his probation. We affirm the trial court's revocation of the appellant's probation and decline to address the issue regarding the expiration of the appellant's sentence due to an inadequate and incomplete record on appeal.

Following a bench trial in general sessions court, the defendant was convicted of DUI. On the same day, he filed notice of appeal to the circuit court. The circuit court judge’s administrative assistant advised the defendant by letter to appear before the court to set a trial date. The defendant failed to appear as scheduled, and the circuit court dismissed the appeal. The defendant now appeals the circuit court’s dismissal. Because the record does not reveal any notice to or participation by appointed counsel at the circuit court level, we reverse the judgment of the circuit court and remand for further proceedings.

The Defendant, William C. Tomlin, Jr., was convicted by a jury of aggravated burglary and theft over $1,000. Following a sentencing hearing, the trial court imposed consecutive sentences of fourteen years for the aggravated burglary and ten years for the theft. In this appeal, the Defendant argues that the trial court erred by denying two evidentiary motions, that the evidence is insufficient to support the convictions, and that the trial court erred in sentencing. We modify the aggravated burglary sentence to twelve years and affirm the judgments of the trial court in all other respects.

A Shelby County jury convicted the defendant, Finus Rodgers, of aggravated robbery. Following a sentencing hearing, the trial court sentenced the defendant, as a Range I standard offender, to ten years confinement in the Department of Correction. On appeal, the defendant argues that insufficient evidence exists in the record to support his conviction. Our review convinces us that the evidence is legally sufficient, and we affirm the defendant’s aggravated robbery conviction.

A Shelby County jury convicted the defendant of aggravated sexual battery. The trial court
sentenced the defendant as a career offender to thirty years. The defendant contends on appeal that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

A Bradley County jury convicted the Petitioner, Anthony Reid, of first degree felony murder, especially aggravated robbery, aggravated robbery, attempted aggravated robbery and evading arrest. The trial court imposed an effective sentence of life plus twenty-five years. On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel on direct appeal because his counsel failed to raise the issue of the sufficiency of the convicting evidence. Following a hearing, the post-conviction court dismissed the petition. In this appeal, the Petitioner contends that it was "per se" ineffective assistance of counsel for trial counsel to fail to raise the issue of the sufficiency of the convicting evidence on direct appeal. Finding no error, we affirm the trial court's dismissal of the petition.

The Appellant, Kenneth Herring, appeals as of right from the judgment of theWayne County Circuit Court denying his petition for post-conviction relief. Herring was convicted in 1999 of two counts of aggravated sexual battery. On appeal, Herring first argues that his right to due process was violated when the trial court failed to exclude a confession obtained as a result of a “coercive and deceitful” environment during interrogation and that trial counsel was ineffective for failing to seek suppression on this ground. He next contends that trial counsel was ineffective for failing to file a motion to sever the seven indicted offenses, which resulted in his two convictions. After review of the record, dismissal of the petition is affirmed.

A Shelby County jury convicted the Petitioner, Darron Clayton, of second degree murder, and the trial court imposed a twenty-year sentence. On appeal, this Court affirmed the conviction and the sentence, and the Tennessee Supreme Court denied the Petitioner’s application for permission to appeal. The Petitioner filed a pro se petition for writ of habeas corpus, and the trial court dismissed the petition without a hearing. Three months later, the Petitioner filed a second petition for writ of habeas corpus raising the same issues as in his first petition, and the trial court again dismissed the petition. On appeal, the Petitioner contends that the trial court erred in dismissing his petition because his sentence is illegal. Finding no reversible error, we affirm the trial court’s judgment.

The petitioner appeals the denial of his petition for post-conviction relief from his second degree murder conviction, arguing that the post-conviction court erred in finding that his trial counsel provided effective assistance at trial and on appeal. Following our review, we affirm the denial of the petition.

The defendant pled guilty in the Williamson County Circuit Court to sexual battery by an authority figure and incest, Class C felonies. After a sentencing hearing, the trial court sentenced him as a Range I, standard offender to concurrent sentences of four years for each conviction to be served as eleven months, twenty-nine days at seventy-five percent in the county jail and the remainder on supervised probation. The defendant appeals, claiming that the trial court erred by denying his request for full probation. We affirm the judgments of the trial court.

I respectfully dissent. I do not believe the record justifies removing counsel from representing the defendant. I see no design or scheme in place by which Ms. Gothard sought to thwart justice or its proper administration. Nor do I view the case as one by which she made material misrepresentations or disobeyed trial court orders. Rather, I find material discrepancies between the trial court’s findings, upon which the majority opinion is based, and the transcript of trial court proceedings. For example, the majority opinion specifies counsel’s failing to comply with the trial court’s “directive” to have her expert witness in court to support her request for a continuance.  However, the trial court did not order counsel to produce the expert nor did counsel defy any such order.

The defendant, Jay Chambers, was convicted of one count of rape. The trial court imposed a Range I sentence of ten years. In this appeal, the defendant asserts that a former sheriff's deputy should not have been permitted to sit as a juror; that the trial court erred by permitting members of the jury to separate during a break; and that he was denied the effective assistance of counsel. Because the defendant's motion for new trial was untimely and the issues, even if meritorious, would not warrant a dismissal of the charge, the interests of justice do not require waiver of the timely filing of the notice of appeal. Accordingly, the appeal is dismissed.

The petitioner, Ernest B. Eady, was convicted of second degree murder and sentenced to confinement for twenty years. His conviction and sentence were affirmed by this court and application for permission to appeal was denied by the supreme court. He filed a petition for post-conviction relief, alleging that trial counsel was ineffective for not raising as an issue on appeal that the jury had not been properly instructed as to murder second degree. Following a hearing, the post-conviction court granted the petition, and the State appealed. We reverse the order of the post-conviction court and remand for an order dismissing the petition for post-conviction relief.

The petitioner appeals the lower court's denial of his post-conviction relief petition. The petitioner entered a plea of nolo contendere to aggravated assault as a Range II offender, for which he was sentenced to ten years' incarceration at 35 percent. He contends on appeal that his trial counsel was ineffective for failing to properly investigate his case and that his plea was entered involuntarily. We affirm the judgment of the post-conviction court.

I concur in the results reached in the majority opinion. I believe, however, that the failure to file a motion for new trial does not foreclose our acting on plain error which affects substantial rights of the defendant. See Tenn. R. Crim. P. 52(b). For example, courts have reversed convictions and granted new trials based upon plain error because of the failure to instruct on lesser included offenses even though the issue was not preserved by the motion for a new trial. See, e.g., State v. Terry, 118 S.W.3d 355 (Tenn. 2003); State v. Walter Wilson, W2001-01463-CCA-R3-CD, Shelby County (Tenn. Crim. App. Sept. 4, 2002); State v. Jason Thomas Beeler, W1999-01417-CCA-R3-CD, Obion County (Tenn. Crim. App. Nov. 22, 2000). Thus, we should not necessarily limit our consideration to whether the defendant’s claims would result in dismissal.

The petitioner, Sparkle David Munsey, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, he contends that (1) he did not knowingly, voluntarily, and intelligently waive his right to counsel and (2) his sentence should be vacated because the trial court failed to advise him of his right to appeal pursuant to Federal Rule of Criminal Procedure 32(A)(2). The judgment of the trial court is affirmed.

The defendant, Daniel Andrew Decker, appeals the trial court's order removing Assistant District Public Defender Karla Gothard as his counsel. Because the trial court did not abuse its discretionary authority, the judgment is affirmed.

The defendant, James Dale Walker, pled guilty in the Blount County Circuit Court to aggravated sexual exploitation of a minor, a Class C felony, and sexual exploitation of a minor, a Class E felony. Pursuant to the plea agreement, the defendant received concurrent sentences of six and two years, respectively, as a Range I, standard offender. The manner of service of the sentences was to be determined by the trial court. After a sentencing hearing, the trial court ordered that the defendant serve his sentences in total confinement. On appeal, this court reversed and remanded, ordering that the trial court reconsider a sentencing alternative to confinement in the Department of Correction (DOC). See State v. James Dale Walker, No. E2002-00263-CCA-R3-CD, Blount County (Tenn. Crim. App. Oct. 18, 2002). After a second sentencing hearing, the trial court ordered that the defendant serve six months in confinement and the remainder of his sentences on supervised probation. The defendant appeals, claiming that he should have received full probation. We affirm the judgments of the trial court.

Petitioner Terrance L. Turner was convicted in the Davidson County Criminal Court of two counts of attempted second degree murder and one count of especially aggravated kidnapping. Turner received a total effective sentence of twenty-eight years incarceration in the Tennessee Department of Correction. Subsequently, Turner filed for post-conviction relief, alleging that he received the ineffective assistance of counsel. Petitioner Jermaine Montez Bradford was convicted of especially aggravated kidnapping and was sentenced to twenty-three years incarceration. Thereafter, Bradford filed for post-conviction relief, alleging that he received the ineffective assistance of counsel because counsel denied him the right to testify at trial. The post-conviction court denied both petitions and the petitioners timely appealed. Upon our review of the record and the parties' briefs, we affirm the judgments of the post-conviction court.

The defendant, David C. Beats, was convicted of theft over $10,000.00 and received a ten-year suspended sentence. After a positive drug screen, the trial court revoked probation and ordered service of the original sentence. In this appeal of right, the defendant argues that the trial court abused its discretion by revoking his probation. The judgment is affirmed.