APPELLATE COURT OPINIONS

On November 24, 1998, the Shelby County Grand Jury indicted the Defendant for one count of aggravated robbery and one count of aggravated assault. Following a subsequent jury trial, the Defendant was convicted on both counts. On September 30, 1998, after a sentencing hearing, the trial court sentenced the Defendant as a career offender to serve thirty years incarceration for the aggravated robbery consecutively to fifteen years for the aggravated assault. The court also ordered both sentences served consecutively to a sentence for which the Defendant was on parole. On appeal, the Defendant claims that the trial court should have instructed the jury to consider robbery and theft as lesser-included offenses of aggravated robbery and that the trial court should have instructed the jury to consider reckless endangerment, reckless aggravated assault and simple assault as lesser-included offenses of aggravated assault. After a review of the record, we affirm the judgment of the trial court.as lesser-included offenses of aggravated assault. After a review of the record, we affirm the judgment of the trial court., we affirm the judgment of the trial court.

In 1999, a Shelby County jury found the Defendant guilty of aggravated robbery, and the trial court sentenced him as a Range I, standard offender to eight years incarceration. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the evidence presented at trial was sufficient to support his conviction; (2) whether the trial court erred by admitting into evidence the gun alleged to have been used in the robbery; (3) whether the trial court erred by allowing testimony by the victim concerning the death of the victim's mother; (4) whether the trial court improperly instructed the jury; and (5) whether the cumulative effect of errors at trial warrants a new trial. Having reviewed the record, we find no error and accordingly affirm the judgment of the trial court.

I respectfully dissent. I agree with the majority opinion that the granting or denial of a mistrial is a matter within the sound discretion of the trial court and that a trial court should grant a mistrial only when it is of “manifest necessity.” I would add that the burden of establishing a “manifest necessity” is upon the appellant. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

Petitioner appeals the denial by the trial court of his writ of habeas corpus and writ of certiorari. Petitioner contended in his petition that he previously pled guilty in the Criminal Court of Madison County to the offenses of facilitation of first degree murder, conspiracy to commit especially aggravated robbery, and arson, and received an effective sentence of 60 years. He further contended that court did not have jurisdiction to try him as an adult; his rights to double jeopardy were violated as a result of his transfer to the Criminal Court; and he received ineffective assistance of trial counsel. On appeal, he claims the trial court erred in dismissing his petition without appointing counsel, without conducting a hearing, and by failing to make findings of fact and conclusions of law. We affirm the judgment of the trial court.

William Butler Bolling appeals from the Sullivan County Criminal Court's determination that he serve his plea bargained, effective two-year sentence for gambling crimes in the Department of Correction. He claims he should have received some form of alternative sentencing, preferably probation, for his felony conviction. Because Bolling has failed to demonstrate the error of the trial court's determination, we affirm.

Defendant, Kenneth Griffin, was found guilty of burglary (Class D) and theft (Class D) following a bench trial. He was sentenced as a career offender on each conviction to twelve (12) years incarceration, and the sentences were ordered to be served consecutively. The Defendant, with counsel, appealed the conviction raising the sole issue of the sufficiency of the evidence. This court affirmed. State v. Kenneth S. Griffin, C.C.A. No. 03C01-9811-CR-00406, 1999 Tenn. Crim. App. LEXIS 1316, Knox County (Tenn. Crim. App., Knoxville, Dec. 27, 1999). Subsequently, Defendant timely filed a petition for post-conviction relief alleging, apparently among other issues, that he received ineffective assistance of counsel on appeal because appellate counsel did not raise as an issue the consecutive sentencing ordered by the trial court. The post-conviction court, in a written order, granted Defendant a "delayed appeal" as "authorized under TENNESSEE CODE ANNOTATED SECTION. 40-30-213." The post-conviction court's order limited the delayed appeal to the sole issue "of the correctness of [defendant's] sentence." However, the post-conviction court, while impliedly finding ineffective assistance of counsel for not raising the sentencing issue on direct appeal, made no finding that the Petitioner was prejudiced by the deficient representation. In any event, we find that the granting of a delayed appeal from the original conviction is not authorized by statute, and accordingly, this appeal from the sentence imposed in the original convictions is dismissed.

The defendant was convicted in the Knox County Criminal Court of especially aggravated robbery and felony murder. She timely appealed, arguing that the State had failed to show that statements she gave while a juvenile were admissible, that the trial court erred in not instructing as to lesser-included offenses or that the jury must find whether felony murder was a "natural and probable consequence" of especially aggravated robbery, and that the evidence was insufficient to sustain the convictions. Based upon our review, we affirm the judgments of the trial court.

The petitioner/appellant, Franklin Parton, filed a pro se "Petition for Writ of Habeas Corpus" in the Knox County Criminal Court, which was dismissed by the trial court without an evidentiary hearing. Petitioner filed a motion for reconsideration and for treatment of the petition as a petition for writ of error coram nobis. This motion was also summarily denied by the trial court. We affirm the judgment of the trial court.

The defendant, Ricky Eugene Cofer, was convicted of aggravated robbery. The trial court imposed a Range II sentence of 15 years. In this appeal of right, the defendant contends that his indictment for aggravated robbery was legally insufficient; that the evidence was insufficient to convict; and that his trial counsel was ineffective. The judgment is affirmed.

On May 21, 1999, Gary Leon Cureton, the Petitioner and Appellant, pled guilty in the Greene County Criminal Court to two counts of rape and two counts of sexual battery and waived his right to appeal. Following the guilty plea, the trial court sentenced the Petitioner to serve seventeen years incarceration. On May 25, 2000, the Greene County Court Clerk received a post-conviction petition from the incarcerated pro se Petitioner and stamped the document to indicate that it had been filed on that date. On June 2, 2000 the trial court issued a preliminary order dismissing the petition on the ground that it was not timely filed. On June 12, the trial court received a pro se motion to reconsider the dismissal of the petition, but the trial court denied the motion on June 19, 2000. On August 2, 2000, this Court ordered the trial court to address the Petitioner's request for the appointment of counsel, and the trial court subsequently appointed counsel to assist with the Petitioner's appeal. The Petitioner appeals the trial court's dismissal of his petition and subsequent denial of his motion to reconsider, arguing that he carried his burden of proving that the petition was timely filed. Because the Petitioner was never afforded an opportunity to prove that he timely filed his petition, we remand for a hearing to determine whether the Petitioner's petition was timely filed.

The grand jury for Monroe County charged the defendant with one count of possession of cocaine with intent to resell and one count of felony evading arrest. The defendant went to trial, and the jury acquitted him of the narcotics offense but found him guilty of Class D evading arrest. The trial court sentenced the defendant as a Range II, multiple offender, to five years incarceration in the Department of Correction. In this direct appeal, the defendant challenges the sufficiency of the convicting evidence, the state's misuse of his post-arrest silence, the flight instruction given to the jury, and his classification as a Range II offender. Unpersuaded by the defendant's contentions, we affirm the trial court's judgment and sentence.

The defendant was convicted by a Shelby County jury of premeditated first degree murder and sentenced to life imprisonment without the possibility of parole. In this appeal, the defendant challenges the admission of three alleged hearsay statements and the sufficiency of the evidence. We affirm the judgment of the trial court.

The petitioner appeals his denial of post-conviction relief and asserts that the post-conviction court incorrectly found that he received effective assistance of counsel and, thus, knowingly and voluntarily pled guilty. After review, we affirm the judgment of the post-conviction court.

The defendant was convicted by a Davidson County Criminal Court jury of second degree murder and the possession of a weapon by a convicted felon for shooting a man to death in an automobile shop. The sole issue on appeal is whether the evidence was sufficient to support his conviction of second degree murder. Specifically, the defendant contends that the State failed to offer sufficient proof of the victim's cause of death. In support of his claim, he argues that the autopsy report, which states the cause of death as multiple gunshot wounds, was improperly admitted into evidence, that the medical examiner never directly testified that the victim died of gunshot wounds, and that no other evidence was presented to prove cause of death. After a thorough review, we conclude that the defendant waived any objection to the admission of the autopsy report by his failure to object at trial, and further, that sufficient evidence, other than the autopsy report, was presented to show that the victim died as the result of gunshot wounds. Consequently, the evidence at trial was sufficient to establish the defendant's guilt of second degree murder beyond a reasonable doubt. The judgment of the trial court is affirmed.

This is Defendant, Sharon Leming's, second appeal as of right to this Court. See State v. Leming, 3 S.W.3d 7 (Tenn. Crim. App. 1998). In both Defendant's first and second trial, a Humphreys County jury convicted her of premeditated first degree murder. After the Defendant's initial appeal, this Court reversed and remanded the case for a new trial due to the erroneous admission of testimony regarding statements made by the victim as to his fear of the Defendant. Following a second trial, the Defendant received a sentence of life imprisonment to be served in the Tennessee Department of Correction. In this second appeal as of right, the Defendant presents the following issues for our review:1) whether the trial court erred in ruling that the Defendant was mentally competent to stand trial; 2) whether the evidence was sufficient to convict the Defendant of first degree murder; 3) whether the trial court erroneously admitted statements by the Defendant that she would kill her husband before she would allow him to leave her; 4) whether the trial court erred in excluding testimony that the Defendant had stated that she needed a gun to protect herself from friends of the deceased; and 5) whether the trial court erred in denying Defendant's request for a mistrial, when the trial court declined to instruct the jury that a sentence of life with the possibility of parole would require that the Defendant serve a minimum of fifty-one years. Based upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

The issue raised in this appeal is whether the trial court properly denied the Appellant/Petitioner's post-conviction petition? After a review of the record in this cause, the briefs of the parties and applicable law, we affirm the trial court's judgment.

Defendant, the attorney for the Dyer Industrial Development Board, was convicted by a Gibson County jury of theft over $60,000 and theft over $1,000. On appeal, he contends the evidence was insufficient to establish guilt. We affirm the judgment of the trial court.

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief. After review, we hold that the record supports the post-conviction court's finding that trial counsel was not ineffective in failing to obtain the 911 tape; was not ineffective in preparing a defense; was not ineffective for failing to introduce fingernail samples taken from the petitioner; and was not ineffective for failing to adequately develop the victim's mother as a suspect.

The petitioner appeals the post-conviction court's dismissal of his petition for post-conviction relief. Following his jury conviction of aggravated robbery, the petitioner filed a petition for post-conviction relief, alleging, among other things, that he received ineffective assistance of counsel at trial. At the conclusion of an evidentiary hearing, the post-conviction court dismissed the petition, finding that the petitioner failed to meet his burden of showing ineffective assistance of trial counsel. After a careful review, we affirm the post-conviction court's dismissal of the petition.

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief, raising the sole issue of whether the post-conviction court erred in finding that he had effective assistance of counsel at trial. The petitioner was convicted by a jury of first degree murder for shooting his wife to death, and sentenced to life imprisonment. In his post-conviction petition, the petitioner asserted a number of grounds for relief, including ineffective assistance of counsel. The post-conviction court denied the petition, finding, with regards to the ineffective assistance of counsel claim, that many of the petitioner's allegations did not constitute a deficiency in counsel's performance, and further, that the petitioner had failed to meet his burden of showing that any of the alleged deficiencies of counsel prejudiced the outcome of his case. After a thorough review of the record, we reverse the judgment of the post-conviction court as to the effect of trial counsel's misplacing of photographs which were not located until after the trial and the post-conviction hearing and remand for an additional hearing. As to the other issues, we affirm the judgment of the trial court.

The defendant, James L. Roberson, was charged with attempted second degree murder for the repeated stabbing of a female acquaintance and was convicted of the offense, following a bench trial. He testified that he was under the influence of drugs at the time of the offense and could not remember what had happened. He appealed the conviction, arguing that, as the result of his mental state, the proof was insufficient to sustain the conviction. We affirm the judgment of the trial court.

The petitioner appeals the dismissal of his petition for post-conviction relief, arguing that it was error for the post-conviction court to dismiss his petition without holding an evidentiary hearing. The petitioner pled guilty to two counts of felony murder, two counts of attempted first degree murder, and one count of especially aggravated burglary. In a pro se petition for post-conviction relief, the petitioner alleged that his trial counsel induced him to plead guilty just prior to the start of trial by showing him a videotape of a television show chronicling the final hours of a death row inmate's life. After appointing counsel, the post-conviction court dismissed the petition without an evidentiary hearing, ruling that the petition failed to present a colorable claim for relief. Based upon our review, we affirm the judgment of the post-conviction court.

The petitioner appeals the denial of his petition for post-conviction relief. Having been indicted by a Davidson County Grand Jury on three counts of rape of a child and one count of aggravated sexual battery, the petitioner pled guilty to two counts of rape of a child, a Class A felony, and the remaining counts were dismissed. In this appeal, petitioner raises three issues: (1) whether he received effective assistance of counsel; (2) whether the State and the trial court should have requested forensic psychological evaluation of the petitioner and a competency hearing; and (3) whether his plea was constitutionally valid. The judgment of the post-conviction court is affirmed.