APPELLATE COURT OPINIONS

While I concur in the results reached by the majority, it is my view that the failure to charge the lesser included offenses of facilitation of especially aggravated kidnapping and false imprisonment on the charge of especially aggravated kidnapping and reckless endangerment and assault on the charge of aggravated assault was, in fact, error. The majority implies that but does not so assert. I also believe that the error is harmless beyond a reasonable doubt as to each of those convictions. Most recently, in State v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002), our supreme court established that a contextual analysis of the entire record was necessary in order to determine whether the failure to charge a lesser included offense qualified as harmless beyond a reasonable doubt. In my opinion, the Allen ruling negates any implication in State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998), that the failure to instruct on lesser included offenses will always be harmless when the jury returns a verdict two levels in excess of an omitted lesser included offense.

The Appellant, Jonathan Blanchard, was convicted in 1988 of the sale or delivery of cocaine and sentenced to seven years in prison. Following the successful completion of his sentence, the Appellant was granted a pardon by the governor of Tennessee. The Appellant subsequently petitioned for an expungement of all public records relating to his arrest and conviction. The trial court denied the Appellant's petition and the Appellant appealed as of right. We affirm the judgment of the trial court.

Petitioner filed a petition for post-conviction relief, claiming: (1) the trial judge, at petitioner's original trial, should have recused himself from hearing the trial under Tennessee Supreme Court Rule 10, Canon 3(E); and (2) the public defender, at the original trial, rendered ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and Article 1, Section 9 of the Tennessee Constitution. At the conclusion of an evidentiary hearing, the post-conviction court denied relief. Based upon our review of the entire record and applicable law, we affirm the judgment of the post-conviction court.

The Defendant, Shirley Spina, was indicted in Sullivan County for custodial interference. On the morning of trial, the trial court dismissed the charge for lack of venue. The State now appeals. We reverse the ruling of the trial court and remand this cause for further proceedings.

The Appellant, Adrian Patterson, appeals the decision of the Montgomery County Circuit Court revoking his two community corrections sentences and resentencing him to the Department of Correction. On appeal, Patterson argues: (1) that his sentences were actually sentences of probation rather than community corrections and, as such, the trial court was without authority to enlarge his sentences; (2) that the evidence was insufficient to support two of the alleged violations of his Community Corrections Behavioral Contract; and (3) that allowing a cooperating individual to testify about Patterson’s drug activity in a pending federal drug case impaired his Fifth Amendment right against self-incrimination at the revocation proceeding. Finding no merit to Patterson’s claims, the judgment of the trial court is affirmed.

Defendant, Edward Buck Franklin, pled guilty to two counts of attempted rape and one count of aggravated burglary. He received a sentence of three years for each conviction, with two of the sentences to be served concurrently with each other but consecutive to the sentence for the third conviction, for an effective sentence of six years. After receiving credit for time previously served in jail, his sentences were suspended and he was placed on probation. Thereafter, three probation violation warrants were filed against him. Following a hearing on the third warrant, the trial court revoked Defendant's probation and ordered that he serve his sentence in the Department of Correction. We affirm the judgment of the trial court.

Defendant appeals the circuit court judgments denying him probation on two misdemeanor counts of passing worthless checks. We affirm pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The defendant, James A. Mellon, pled guilty to first degree felony murder and especially aggravated robbery and waived his right to a trial by jury. As part of the plea agreement, the State agreed to recommend concurrent sentences on these charges of life imprisonment with the possibility of parole and twenty-five years imprisonment, respectively, in exchange for the defendant's agreement to testify truthfully and consistent with his previous statement at the trials of his codefendants. Thereafter, the defendant refused to testify as required by his plea agreement, instead, moving to withdraw his guilty pleas. That motion was denied, the State withdrew its sentencing recommendation, and a sentencing hearing was held. The jury, at the sentencing hearing, found the statutory aggravating circumstance that the defendant had previously been convicted of a felony involving violence to the person and sentenced the defendant to death. For the conviction of especially aggravated robbery, the defendant was sentenced to a consecutive term of twenty-five years imprisonment. He then filed a timely appeal. Following our review, we affirm the judgments of the trial court and the imposition of the death penalty.

The defendant, Rodney Williams, appeals his Shelby County Criminal Court conviction for aggravated robbery. He challenges the sufficiency of the convicting evidence and insists that the trial court erred in failing to suppress the victim's pretrial and in-court identification. We affirm.

The Defendant pled guilty to facilitation of attempt to commit especially aggravated robbery. The trial court sentenced the Defendant as a Range II multiple offender to seven years in the Tennessee Department of Correction, with eleven months of the sentence to be served in the Knox County jail followed by probation for the remainder of the sentence. A probation violation warrant was subsequently issued against the Defendant, alleging that the Defendant had violated his probated sentence by leaving his residence without permission and by removing his electronic monitor. An amended probation violation warrant was later filed alleging that the Defendant had also violated his probation by committing misdemeanor theft. Following a hearing, the trial court revoked the Defendant's probation and ordered him to serve his sentence in the Tennessee Department of Correction. This appeal ensued. After reviewing the record, we affirm the judgment of the trial court.

The Appellant, Jonathan Omar Echevarria, appeals from the sentencing decision of the Davidson County Criminal Court imposing a sentence of four years incarceration. The sentence arose from a guilty plea entered by Echevarria to one count of attempted aggravated robbery. In this appeal, Echevarria raises the issue of whether the trial court erred by ordering a sentence of total confinement rather than a less restrictive alternative. After review, we find no error. Accordingly, the judgment is affirmed.

Kevin Island appeals from his Shelby County conviction of robbery. He claims that the evidence presented at trial was insufficient to sustain the conviction. We disagree and affirm.

Convicted of aggravated robbery, Ronnie Watson appeals the Gibson County Circuit Court’s denial of his motion to suppress the statements he gave to a law enforcement officer shortly after the commission of the crime. We hold that the issue has been waived by Watson’s failure to include it in his motion for new trial.

The petitioner originally pled guilty to aggravated vehicular homicide, vehicular assault, and second offense driving on a revoked license. The trial court sentenced him to an effective sentence of twenty-four years. The effective sentence was affirmed on direct appeal. The petitioner sought post-conviction relief, alleging an unknowing guilty plea and ineffective assistance of counsel. The post-conviction court denied relief. In this appeal, the petitioner contends the post-conviction court erred in summarily dismissing the petition based solely upon the guilty plea transcript. We disagree and affirm the judgment of the post-conviction court.

Apparently serving probationary terms on judicial diversion, Vasile Cavopol attempts to appeal from the Davidson County Criminal Court. He claims (1) that the lower court should have dismissed the vandalism and resisting arrest cases against him when the state's witnesses did not appear for trial on two occasions and (2) that the evidence insufficiently supports the determinations of guilt. Because the defendant who was granted judicial diversion has no rightful appeal, we dismiss this appeal.

A Blount County jury convicted the Defendant of two counts of first degree premeditated murder and imposed concurrent sentences of life imprisonment without the possibility of parole. The jury also convicted the Defendant of especially aggravated robbery, and the trial court sentenced the Defendant to twenty-five years incarceration, to be served consecutive to the two sentences for first degree premeditated murder. The Defendant now appeals, raising the following issues: (1) whether the trial court properly instructed the jury on all lesser-included offenses raised by the evidence, (2) whether the trial court erred by refusing to instruct the jury on duress, necessity and accessory after the fact, (3) whether the trial court erred by allowing into evidence testimony regarding the Defendant's pending aggravated assault trial, (4) whether the trial court erred by allowing into evidence a magazine clip confiscated from the Defendant by police two months before the murders, (5) whether the trial court erred by refusing to find the sentencing provisions of the Tennessee homicide laws to be unconstitutional, (6) whether the Defendant's convictions for especially aggravated robbery and theft violated his right against double jeopardy, (7) whether the indictment was constitutionally defective on its face, and (8) whether there was sufficient evidence to convict the Defendant of the charged offenses. We affirm the judgment of the trial court, but remand for entry of a corrected judgment form in Count III of indictment number 11329.

The defendant was convicted by a Davidson County jury of driving under the influence, third offense, and driving on a revoked license. He appeals only his DUI conviction, arguing the evidence was insufficient to support a finding that he was under the influence. We affirm the judgment of the trial court.

The petitioner originally pled guilty to aggravated robbery on June 1, 2000. He sought post-conviction relief alleging he received ineffective assistance of counsel which led to an involuntary guilty plea. Following a hearing, the trial court dismissed the petition. We affirm.

In this appeal from the denial of post-conviction relief, the sole issue is whether petitioner was deprived of the effective assistance of counsel in proceedings that led to his conviction for first degree murder with a resulting life sentence. We find no merit to his arguments and affirm the judgment of the trial court.

The appellant, Earley Story, was convicted in the Shelby County Criminal Court of one count of selling not less than one-half ounce nor more than ten pounds of marijuana, a Class E felony. The appellant was sentenced to one year of incarceration in the Shelby County Jail, which sentence was immediately probated. On appeal, the appellant raises the following issues for our review: (1) whether the trial court erred in failing to conduct a hearing on the appellant's pro se motion alleging a failure to afford him a speedy trial; (2) whether the trial court wrongly forced the appellant to trial with unwanted counsel, which counsel were appointed without any evidence that the appellant was unable to employ counsel of his choosing; and (3) whether the trial court erred in admitting purported transcripts of tape recordings. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Defendant, Carlos Bierner, was charged with aggravated sexual battery. After his trial had commenced, but prior to its conclusion, Defendant entered a plea of guilty to the lesser charge of attempted aggravated sexual battery, a Class C felony. In accordance with the negotiated plea agreement, Defendant received a sentence of eight years, as a multiple Range II offender, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court denied probation or any other form of alternative sentencing and ordered that Defendant serve the eight years in confinement, at thirty-five percent eligibility. In this appeal, Defendant argues that the trial court erred by ordering a sentence of continuous confinement. We affirm the judgment of the trial court.