APPELLATE COURT OPINIONS

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner, Johnny Marvin Henning, appeals the trial court's denial of his petition for habeas corpus relief. Finding that the Petitioner has failed to assert a ground entitling him to habeas corpus relief, this Court affirms the judgment of the trial court dismissing the petition.

The defendant was convicted by a Henderson County Circuit Court jury in consolidated cases of aggravated robbery, a Class B felony, and especially aggravated robbery, a Class A felony. He was sentenced by the trial court as a Range I, standard offender to eight years for the aggravated robbery conviction, and as a violent offender to twenty years for the especially aggravated robbery conviction, with the sentences ordered to be served concurrently, for an effective sentence of twenty years in the Department of Correction. He raises essentially one issue on appeal: whether the trial court erred in denying his pretrial motion to suppress his statement to police. Following our review, we affirm the judgments of the trial court.

The Appellant, Lester Arnold Clouse, was convicted by a White County jury of five counts of setting fire to land, two counts of aggravated assault, and one count of resisting arrest. These convictions resulted in an effective sentence of twenty-one years, eleven months, and twenty-nine days. On appeal, Clouse raises three issues for our review: (1) whether the evidence was sufficient to convict him of setting fire to land and aggravated assault; (2) whether the trial court erred by denying his motion for a mistrial after a co-defendant invoked his Fifth Amendment privilege and testified before the jury that he had been threatened; and (3) whether the jury instruction regarding circumstantial evidence was proper. After review of the record, we conclude that the errors resulting from the co-defendant's invocation of his Fifth Amendment privilege at trial affected the jury's verdict. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

A McNairy County jury convicted the Petitioner, Eugene Turner, of two counts of premeditated first degree murder and the trial court sentenced the Petitioner to two concurrent life sentences with the possibility of parole. On direct appeal, this Court affirmed the conviction, 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. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court’s judgment.

The defendant appeals his convictions and sentences on two counts of aggravated sexual battery. The defendant was sentenced to two twelve-year terms, to be served consecutively for an effective sentence of twenty-four years. The defendant asserts three issues for review: (1) insufficiency of the evidence to support the convictions; (2) error in the use of enhancement factors in determining the length of the sentences imposed; and (3) error in ordering the sentences served consecutively.

Petitioner, Donald Walton, appeals from the trial court's summary dismissal of his petition for writ of habeas corpus. After a review of the record and the briefs, we affirm the judgment of the trial court.

The defendant, Michael D. Martin, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony. After a sentencing hearing, the trial court sentenced the defendant as a Range II, multiple offender to four years in the Department of Correction (DOC) and ruled that despite the general prohibition on probation contained in T.C.A. § 55-10-616(c) of the Motor Vehicle Habitual Offenders (MVHO) Act, trial courts can consider probation for defendants who violate motor vehicle habitual offender orders. Nevertheless, the trial court denied the defendant’s request for probation. The defendant appeals, claiming that his sentence is excessive and that he should have received full probation. We conclude that the defendant’s sentence should be reduced to three years. We conclude that the Criminal Sentencing Reform Act of 1989 repealed by implication the MVHO Act’s prohibition of probation in T.C.A. § 55-10-616(c). However, we also conclude that the trial court erred in denying any form of alternative sentencing, and we remand the case for the entry of an appropriate sentence.

A Montgomery County jury convicted the Defendant, Floyd Perrow, of aggravated burglary, two counts of aggravated rape, and aggravated assault. The trial court merged the two convictions of aggravated rape and sentenced the Defendant to an aggregate thirty-six and a half years in prison. On appeal, the Defendant contends that: (1) insufficient evidence exists in the record to support his convictions; and (2) the trial court imposed an excessive sentence because it should have merged all of the Defendant’s convictions into a single conviction. The State also appeals, contending that the trial court erred by merging the two aggravated rape convictions. After thoroughly reviewing the record, we conclude that sufficient evidence exists to support the Defendant’s convictions and that the trial court did not err by failing to merge all of the convictions into a single conviction. However, we conclude that the trial court erred by merging the two aggravated rape convictions. Accordingly, we reverse this judgment by the trial court, and we reinstate the two aggravated rape convictions. We remand the case to the trial court for re-sentencing on those two convictions.

In Lester Johnson v. State, No. E2001-00019-CCA-R3-PC (Tenn. Crim. App., at Knoxville, July 11, 2002), and State v. Jimmy D. Goode, No. E2000-02829-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Nov. 19, 2001), I authored opinions indicating that the finding of an emergency is the only time a trial court might suspend the sentence of an individual convicted of a violation of Tennessee Code Annotated section 55-10-616. Johnson was a post-conviction case in which the petitioner alleged bias on the part of the trial judge. The holding in Goode was that an actual emergency is not only a defense to prosecution under the Motor Vehicle Habitual Offenders Act, but also a factor which could be considered at sentencing in the event of a conviction. In State v. Ricky Fife, No. 03C01-9401-CR-0036 (Tenn. Crim. App., at Knoxville, June 15, 1995), however, a panel of this court had held that the 1989 Act superseded the terms of Tennessee Code Annotated section 55-10-616(c), thereby providing sentencing alternatives absent an emergency. Our research indicates that other panels of this court, relying upon the holding in Fife, have established a conflicting line of authority. After further review, I am persuaded by the majority that the terms of the 1989 Act, so comprehensive in nature, should apply, thereby affording the trial court with more flexibility in the sentencing of habitual motor vehicle offenders. The facts here demonstrate why it is so important for trial judges to have wide discretionary authority in matters of sentencing.

The Defendant, Roger L. Hickman, appeals from the trial court's dismissal of his petition for post-conviction relief, in which he alleged that, in 1986, he entered a guilty plea to a misdemeanor without the assistance of counsel and without waiving his right to counsel. We affirm the dismissal of the Defendant's post-conviction petition because it was time-barred. Furthermore, we conclude that the Defendant is not entitled to habeas corpus relief. We affirm the judgment of the trial court.

The petitioner, Anton McDonald, appeals the dismissal of his petition for post-conviction relief from a guilty plea to possession of over .5 grams of cocaine with the intent to sell or deliver, arguing that the post-conviction court erred in finding that the petition was time-barred. Following our review, we affirm the dismissal of the petition.

The Appellant, Ashad R. A. Muhammad Ali, appeals the Lincoln County Circuit Court's summary dismissal of his petition requesting DNA analysis under the Post-Conviction DNA Analysis Act. On appeal, the Appellant raises two issues for our review: (1) whether the trial court properly dismissed the petition and (2) whether the trial judge erred by not sua sponte recusing himself based upon the fact that the trial judge was "part of the prosecutorial team that prosecuted the original conviction against the Appellant." Due to the sparseness of the record with regard to the question of recusal, we remand the case for a determination of this issue.

The defendant, Larry K. Bombailey, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony; theft of property valued at $500 or less, a Class A misdemeanor; and public intoxication, a Class C misdemeanor. The defendant agreed to a sentence as a Range I offender of eleven months, twenty-nine days for the theft; thirty days for the public intoxication, to be served concurrently to the theft; and eighteen months for violating a motor vehicle habitual offender order, to be served consecutively to the theft. The parties stipulated that the trial court would determine the manner of service for the defendant's conviction for violating a motor vehicle habitual offender order. After a sentencing hearing, the trial court denied the defendant's request for an alternative sentence for the motor vehicle habitual offender violation. The defendant appeals, claiming that the trial court erred by denying him an alternative sentence. We affirm the trial court's denial of an alternative sentence but remand the case for entry of a corrected judgment for the theft conviction.

The petitioner appeals the dismissal of his petition for post-conviction relief as time-barred, arguing that the post-conviction court erred for failing to find that the one-year statute of limitations was tolled due to his mental incompetence, or, in the alternative, for failing to find that his petition was timely because it was filed within one year from the date mandate issued. Following our review, we affirm the dismissal of the petition.

The petitioner, Jerry Lynn Wright, appeals the dismissal of his petition for post-conviction relief, alleging that the post-conviction court erred in finding that his guilty plea was knowing and voluntary and that he received effective assistance of counsel. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The defendant was convicted of one count of burglary. He contends on appeal that 1) there is insufficient evidence to sustain the conviction, 2) no proper foundation was laid for opinion testimony by certain witnesses, 3) the warrantless search of the vehicle was improper, and 4) the trial court erred in sentencing the defendant. The judgment of the trial court is affirmed.

Petitioner, Letivias D. Prince, filed a petition for post-conviction relief, which was subsequently amended. Following an evidentiary hearing, the trial court dismissed Petitioner's petition. On appeal, Petitioner argues the trial court erred in dismissing his petition for post-conviction relief and contends (1) that his counsel failed to develop a reasonable trial strategy or defenses for Petitioner; (2) that his counsel failed to fully investigate or adequately prepare the witnesses for trial; (3) that his counsel failed to allow Petitioner to testify at trial; and (4) that his counsel failed to ask for a continuance to investigate certain exculpatory evidence presented by the State at the time of trial. After a thorough review of the record, we affirm the judgment of the post-conviction court.

The Defendant, Craig Quevedo, pled guilty to thirty counts of rape and twenty-four counts of incest and pled nolo contendere to two counts of aggravated sexual battery, four counts of rape of a child, nine counts of rape and one count of aggravated rape in the Circuit Court for Montgomery County. After a sentencing hearing, the trial court imposed an aggregate sentence of ninety-two years in prison. On appeal, the Defendant contends that his sentence was excessive and contrary to public policy. Finding no reversible error, we affirm the trial court's judgments.

The Defendant, Thomas G. Lampley, Jr., was convicted of aggravated burglary, a Class C felony. After determining the Defendant to be a Range III, persistent offender, the trial court sentenced him to twelve years in the Department of Correction, consecutive to an prior sentence. The Defendant now appeals, alleging that his sentence for the instant crime should be ten years. We affirm the judgment of the trial court.

The Petitioner, Corey Johnson, 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. Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

The Petitioner, Darrell Watkins, 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. The Petitioner fails to assert a ground entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Defendant, Martin Stuart Hammock, was originally convicted of first degree murder following a jury trial. On appeal, this Court found that there was insufficient evidence of premeditation to support a conviction for first degree murder. Accordingly, we modified the judgment to reflect a conviction of second degree murder and remanded the case to the trial court for re-sentencing. State v. Martin Stuart Hammock, No. M2000-00334-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 824, (Tenn. Crim. App. at Nashville, Oct. 12, 2001), no perm. to app. filed. Following a new sentencing hearing, the trial court sentenced Defendant to serve twenty-five years. Defendant appeals. After a review of the record, the briefs, and the applicable law, we affirm the judgment of the trial court.

The Defendant, John Crawley, Sr., pled guilty to driving under the influence, first offense. As part of his plea agreement, he expressly reserved with the consent of the trial court and the State the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certified question of law stems from the trial court's denial of the Defendant's motion to suppress all evidence obtained as a result of a police officer stopping the Defendant's automobile. Because we find that the police officer did not have reasonable suspicion to stop the Defendant, we reverse the trial court's denial of the motion to suppress. This case is remanded for entry of an order of dismissal.

The Appellant, Rodney Laron Covington, was convicted by a Davidson County jury of one count of rape of a child and two counts of aggravated sexual battery. Covington received a twenty-year sentence for rape of a child and ten-year sentences for each aggravated sexual battery conviction. The sentences were ordered to be served concurrently. On appeal, he presents three issues for our review: (1) whether testimony by a nurse practitioner violated the holding of State v. Ballard, 855 S.W.2d 557 (Tenn. 1993); (2) whether the State's recitation of the facts supporting the charge of rape of a child was "specific enough to ensure that the jury would reach a unanimous decision" and "sufficiently corresponded to the State's proof;" and (3) whether the proof established that the offense of rape of a child occurred after July 1, 1992, as required for 100% service of the sentence imposed under Tennessee Code Annotated section 39-13-523(b). After review of the record, we find no reversible error. Accordingly, the judgments of the trial court are affirmed.

The Defendant, Walter R. Smith, Jr., was convicted by a jury of five counts of child rape. Following a sentencing hearing, the trial court imposed an effective sentence of forty years. In this direct appeal, the Defendant challenges the sufficiency of the evidence and his sentences. We affirm the Defendant's five convictions for child rape. The trial judge erred by failing to state on the record the facts that support the imposition of consecutive sentences. However, the record clearly shows that consecutive sentencing was proper. Therefore, we affirm the Defendant's sentences.