APPELLATE COURT OPINIONS

The petitioner, Tony G. Smith, appeals as of right from the order of the Davidson County Criminal Court holding that his petition for post-conviction relief was barred by the statute of limitations and dismissing the petition without appointing counsel or holding an evidentiary hearing. The petitioner is seeking relief from his convictions for attempted first degree murder and stalking and his effective twenty-nine-year sentence. The petitioner contends that the trial court erred in its finding that the petitioner did not allege any circumstances that would qualify as an exception to the one-year statute of limitations for filing post-conviction relief. We affirm the trial court's dismissal of the petition

The Appellant, Carlos Williams, appeals the summary dismissal of his pro se petition for post-conviction relief. On appeal, Williams acknowledges that the instant petition was not timely filed; however, he alleges that a prior petition was timely delivered to the appropriate prison  official for filing but apparently never received by the Shelby County Criminal Court Clerk. For this reason, we find it necessary to vacate the post-conviction court's ruling and remand for a determination of whether Williams’ prior petition was timely filed.

The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. The judgment of the trial court is affirmed.

The Defendant, Latasha Atkins, appeals her jury conviction for possession of cocaine with intent to sell, contending the evidence is insufficient to support her conviction. We disagree and affirm the judgment of the trial court.

Whether properly assigned or not this court may consider plain error upon the record under Rule 52(b) of the Tennessee Rules of Criminal Procedure. State v. Ogle, 666 S.W.2d 58 (Tenn. 1984). Before an error may be so recognized, it must be “plain” and must affect a “substantial right” of the accused. The word “plain” is synonymous with “clear” or equivalently “obvious.” United States v. Olano, 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous, but especially egregious error that strikes at the fairness, integrity, or public reputation of judicial proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined “substantial right” as a right of “fundamental proportions in the indictment process, a right to the proof of every element of the offense and . . . constitutional in nature.” In that case, this court established five factors to be applied in determining whether an error is plain:

(a) The record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused [must not have waived] the issue for tactical reasons; and
(e) consideration of the error must be "necessary to do substantial justice."

Id. at 641-42. Our supreme court characterized the Adkisson test as a “clear and meaningful standard” and emphasized that each of the five factors must be present before an error qualifies as plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).

The defendant was convicted of third offense driving under the influence (DUI) and driving on a revoked license. He contends on appeal that (1) the evidence was insufficient to support the convictions, (2) the trial court erred in denying his motion to suppress because the deputy did not have reasonable suspicion to initiate the stop, and (3) the deputy's mention of the horizontal gaze nystagmus (HGN) test during his testimony entitled the defendant to a mistrial. Concluding that no reversible error occurred, we affirm the judgments of the trial court.

Following a judicial diversion revocation hearing, the trial court sentenced Defendant to six years in the Tennessee Department of Correction in accordance with the terms of his plea agreement which had been negotiated at the time Defendant pled guilty to one count of aggravated assault. The trial court sentenced Defendant without conducting a sentencing hearing. Defendant now appeals his sentence of confinement arguing that the terms of his plea agreement called for a probated sentence in the event his judicial diversion was subsequently revoked. Alternatively, Defendant argues that the terms of his plea agreement did not survive the revocation of his judicial diversion, and the trial court should have conducted a sentencing hearing prior to imposing Defendant's sentence. Defendant also argues that the trial court erred in requiring him to report to his probation officer as a condition of bond pending appeal. Following a thorough review of the record in this matter, we affirm the judgment of the trial court.

Petitioner, Nelson Keith Foster, appeals from the trial court's dismissal of his petition for post-conviction relief, without affording Petitioner an evidentiary hearing. In his petition, Petitioner asserted that he was entitled to relief from his three convictions for violation of the Habitual Motor Vehicle Offender Act (HMVO) due to ineffective assistance of counsel. The trial court dismissed the petition because Petitioner had argued in his direct appeal from the convictions that he was entitled to relief because he had received ineffective assistance of counsel. We affirm the judgment of the post-conviction trial court.

The Defendant, Roger V. Alexander, pled guilty to one count of possession of anhydrous ammonia, a Class E felony. The trial court sentenced the Defendant to four years in the Department of Correction. The Defendant now appeals, alleging that the trial court should have sentenced him to Community Corrections. We affirm the judgment of the trial court.

I join with the majority in concurring that the Defendant is not entitled to the alternative sentence of Community Corrections. The Defendant is a Range II multiple offender, possessing a criminal history evincing a clear disregard for the law and whose past efforts at rehabilitation have failed. Thus, in the absence of evidence to the contrary, he is not entitled to the presumption in favor of alternative sentencing. Tenn. Code Ann. § 40-35-102(6). For this reason, I would affirm.

The petitioner appeals the dismissal of his petition for post-conviction relief from his second degree murder conviction, arguing that the post-conviction court erred in finding that he received the effective assistance of trial counsel. Based on our review of the record, we conclude the petitioner failed to meet his burden of demonstrating by clear and convincing evidence that he was denied the effective assistance of counsel. Accordingly, we affirm the post-conviction court's dismissal of the petition.

Following a jury trial, Defendant, Sedrick Williams, was found guilty of one count of first degree murder and one count of attempt to commit first degree murder. The trial court sentenced Defendant to life imprisonment for the first degree murder conviction. Following a sentencing hearing, the trial court sentenced Defendant to twenty-five years imprisonment for the attempted first degree murder conviction, and ordered his sentence for attempted first degree murder to run concurrently with his sentence for first degree murder. On appeal Defendant argues that the evidence was insufficient to support his convictions. Specifically, Defendant contends that the jury misapplied the law in rejecting his defense of self-defense, and the State failed to prove beyond a reasonable doubt that he acted with premeditation. Defendant also argues that the trial court's charge to the jury on flight, coupled with prosecutorial misconduct during closing argument, denied Defendant a fair trial. Defendant does not appeal his sentences. After a careful review of the record in this matter, we affirm the judgments of the trial court.

Defendant, Jonathan M. Light, pled guilty to two counts of Class D felony burglary, one count of Class D felony theft, and one count of Class E felony theft. Pursuant to the negotiated plea agreement, he received sentences of two years for each of the Class D felonies, and one year for the Class E felony, all to be served concurrently with each other for an effective sentence of two years. Pursuant to the agreement, the manner of service of the sentence was to be determined by the trial court following a sentencing hearing. Defendant requested to serve his sentence in the Community Corrections program, but the trial court ordered the entire sentence to be served by incarceration. Defendant has now appealed this decision by the trial court. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

The Petitioner, James K. Robbins, 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 petitioner has not established that the challenged judgment is void or that his sentence has expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The petitioner, Conley R. Fair, filed for post-conviction relief, alleging the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition without an evidentiary hearing and without the appointment of counsel, finding that the petition was not timely filed. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for the appointment of counsel and an evidentiary hearing.

A Shelby County jury convicted the defendant, Cornelius Richmond, of one count of robbery and three counts of forgery. The trial court ordered the defendant to serve an effective sentence of thirtythree years as a career offender. On appeal, the defendant contends: (1) the trial court erred in denying his motion to suppress his statement to the police; (2) the evidence is insufficient to support his robbery conviction; and (3) the trial court erred in failing to instruct the jury on facilitation as a lesser-included offense. Upon review of the record and the applicable law, we affirm the judgments of the trial court.

The appellant, Arthur Buford III, was convicted by a jury of two counts of first degree murder. After being sentenced to two consecutive life sentences, the appellant presents the following issues or our review: (1) whether the trial court abused its discretion by allowing the introduction of photographic evidence of the crime scene; (2) whether the evidence is sufficient to sustain the convictions; and (3) whether the trial court properly sentenced the appellant. Finding no reversible error, we affirm the judgment of the trial court.

Defendants Andrew Thomas and Anthony Bond appeal as of right their convictions for the first degree felony murder of Loomis Fargo employee, James Day, during the perpetration of a robbery. Following a separate sentencing hearing, the jury found, as to each defendant, that the proof supported one aggravating circumstance beyond a reasonable doubt, that is, the defendant had been previously convicted of one or more violent felonies. See Tenn. Code Ann. § 39-13-204(i)(2). With respect to Defendant Thomas, the jury further determined that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt, and sentenced Defendant Thomas to death. As to Defendant Bond, the jury found that the aggravating circumstance did not outweigh the mitigating circumstances and imposed a sentence of life without the possibility of parole. The trial court approved the sentencing verdicts. In this appeal as of right, Defendant Thomas raises the following issues for this Court’s review: (1) the sufficiency of the evidence; (2) whether the trial court erred by denying various pre-trial motions; (3) whether the trial court erred by failing to continue the case after the events of September 11, 2001; (4) whether the trial court erred by excusing prospective juror Pannell for cause; (5) whether the trial court erred by admitting photographs of the victim; (6) whether the trial court erred by admitting items from Defendant’s prior federal trial arising out of the robbery; (7) whether the trial court erred in restricting the Defendant’s impeachment of Angela Jackson; (8) whether the trial court erred in failing to voir dire a prospective witness regarding her relationship with defense witness Russell Carpenter; (9) whether the trial court erred in sustaining an objection to the testimony of John Hibbler; (10) whether the trial court erred in permitting testimony regarding fingerprints despite stipulation; (11) whether the trial court erred in the admission of expert testimony; (12) whether the trial court erred by failing to charge lesser-included offenses of felony murder; (13) whether the trial court erred by failing to charge the jury with an accomplice instruction; (14) whether it was plain error for the State to refer to Thomas and Bond as “Greed and Evil” in opening statement and closing argument; (15) whether the trial court erred in permitting the State to argue that the jury had a job to find the Defendants guilty; (16) whether the trial court erred by not instructing on specific mitigating factors; (17) whether the trial court erred by permitting the State to cross-examine the Defendant’s mother regarding disciplinary actions taken against the Defendant while in prison; (18) whether the verdict 2 of the jury was against the weight of the evidence; (19) whether the indictment failed to charge a capital offense; (20) whether the death penalty violates international treaties ratified by the United States; (21) whether the Tennessee death penalty scheme is unconstitutional; and (22) whether the sentence is proportionate. Defendant Bond raises the following issues: (1) whether it was error for the trial judge to fail to recuse himself for failure to follow Local Rule 4.01; (2) whether the trial court erred by overruling Bond’s objection to the testimony of Dr. Smith; (3) whether the trial court erred by declaring Dr. Smith an expert in firearms identification; (4) whether the trial court erred by permitting the prosecution to engage in improper argument; (5) whether the trial court erred by permitting the prosecution to elicit testimony from Angela Jackson regarding her attendance at trial; and (6) whether the trial court erred by failing to instruct the jury as to lesser-included offenses of felony murder. After review of the record and the applicable law, we find no errors of law requiring reversal as to Defendant Thomas. Accordingly, we affirm the jury’s verdict finding Defendant Thomas guilty of first degree murder. Additionally, we affirm the jury’s imposition of the sentence of death as to Defendant Thomas. However, with respect to Defendant Bond, we are unable to conclude that the failure of the trial court to instruct the jury as to the lesser-included offenses of felony murder was harmless beyond a reasonable doubt. Accordingly, we vacate Defendant Bond’s conviction for felony murder and accompanying sentence of life without the possibility of parole. With respect to Defendant Bond, this matter is remanded to the trial court for a new trial.

The Appellant, Carlos Salvador Angel, Jr., was convicted of aggravated sexual battery by a Davidson County jury and sentenced to ten years in the Department of Correction. On appeal, Angel argues that: (1) the admission of testimony by his former girlfriend, who was not the victim in this case, was irrelevant and unduly prejudicial and (2) the ten-year sentence imposed was excessive. After review of the record, the judgment of conviction and sentence are affirmed.

The defendant pled guilty to possession of marijuana with intent to sell or deliver, a Class E felony, and simple possession of cocaine, a Class A misdemeanor. The Rutherford County trial court imposed an effective one-year sentence with ninety days incarceration followed by probation. On appeal, the defendant raises two issues: (1) whether the trial court erred in denying judicial diversion; and (2) whether the trial court erred in denying full probation. We affirm the judgments of the trial court.

I agree with the majority opinion in all respects with one exception. The majority opinion concludes the failure of the trial court to charge the lesser-included offense of facilitation of felony murder as to Defendant Bond was not harmless error. I respectfully disagree with this conclusion.

On March 23, 1998, The petitioner pled guilty to six (6) counts of attempt to commit incest and six (6) counts of attempt to commit rape. He was sentenced to six (6) years for each count, all to be served concurrently to each other. On March 20, 2002, he filed a Petition for Post-Conviction Relief. He based his petition on two grounds of relief, attorney misrepresentation and DNA analysis under Tennessee Code Annotated section 40-30-403. The trial court dismissed the petition as time-barred on the attorney misrepresentation issue and as not meeting the statutory requirements on the DNA issue. The petitioner appeals the trial court's decision. We affirm the trial court.

The Defendant, Donald W. Brymer, Jr., appeals from the Williamson County Circuit Court's revocation of his probation that he received for his guilty plea to one count of statutory rape. The Defendant contends that the trial court abused its discretion by revoking his probation and sentencing him to confinement. We affirm the trial court's judgment.

The Petitioner, Roger Lynn Perry, 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 for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court.

The Appellant, Ricky Hill Krantz, appeals the dismissal of his petition for post-conviction relief by the Davidson County Criminal Court. Krantz is currently incarcerated as a result of his jury convictions for first degree felony murder and aggravated assault. On appeal, Krantz raises the single issue of whether he received ineffective assistance of counsel at trial. After review of the issue, the judgment of the post-conviction court is affirmed.