APPELLATE COURT OPINIONS

The defendant, Tracy Frank Leonard, was convicted of first degree premeditated murder, felony murder, two counts of especially aggravated kidnapping, rape, and theft over $1,000. The trial court merged the convictions for first degree premeditated murder and felony murder and also merged the convictions for especially aggravated kidnapping into a single conviction. The defendant received a life sentence for the first degree murder, twenty-five years for especially aggravated kidnapping, eight years for rape, and two years for theft over $1,000. The trial court ordered that the sentences for especially aggravated kidnapping and rape be served consecutively to the life sentence and consecutively to each other. The sentence for the theft is to be served concurrent with the sentence for rape. The effective sentence is, therefore, life plus thirty-three years. In this appeal as of right, the defendant alleges (1) that the trial court erred by admitting the testimony of several witnesses; (2) that the evidence is insufficient to support his convictions for especially aggravated kidnapping and rape; (3) that the trial court erred by restricting his right to cross-examination of witnesses; (4) that the trial court erred by failing to grant a new trial based on the State's failure to disclose exculpatory evidence; (5) that the trial court erred by failing to grant a mistrial; (6) that the trial erred in its instructions to the jury; (7) that the trial court misapplied certain enhancement factors to his sentences for especially aggravated kidnapping and rape; and (8) that the cumulative effect of the trial court's errors denied him the right to a fair trial. We affirm the convictions and judgments for first degree murder, especially aggravated kidnapping where the victim suffers serious bodily injury, rape, and theft over $1,000. We conclude the sentences imposed were proper. The defendant's conviction for especially aggravated kidnapping accomplished by the use of a deadly weapon is reversed and remanded for a new trial because of the trial court's failure to instruct the jury as to lesser-included offenses.

Convicted by a jury of the Class B felony offense of aggravated sexual battery and sentenced by the trial court to serve an incarcerative Range II sentence of eighteen years, the defendant, Jerome Sawyer, appeals and claims that the evidence insufficiently supports the verdict and that the court erroneously found him to be a Range II offender. We disagree and affirm.

Defendant pled guilty to seventeen offenses and was subsequently sentenced to fourteen years in confinement. On appeal, defendant alleges that trial court committed error in (1) applying certain enhancing factors, (2) denying any form of alternative sentencing, and (3) ordering consecutive sentencing. We affirm the judgment.

The defendant pled guilty to sexual battery, a Class E felony, in exchange for a two-year sentence. The trial court sentenced the defendant to ninety days of weekend confinement, suspended the balance of the two-year sentence, and placed the defendant on probation for four years. The defendant appeals his sentence, arguing that the trial court erred in denying his petition for judicial diversion and in sentencing him to ninety days of confinement. After a review of the record, we affirm the judgment of the trial court.

Defendant, Scott Craig, was convicted by a Bradley County jury of one count of aggravated kidnapping and two counts of aggravated rape. He was sentenced to eight years for aggravated kidnapping and fifteen years each for the aggravated rape convictions. The trial court ordered the two aggravated rape convictions to be served concurrently with each other, but consecutively to the aggravated kidnapping conviction, for an effective sentence of twenty-three years. Defendant appeals his conviction and sentence, presenting the following issues for review: (1) whether the trial court made improper and prejudicial comments during the trial which deprived Defendant of his right to a fair trial; and (2) whether the trial court erred by imposing consecutive sentences. After a thorough review of applicable law and all relevant facts and circumstances in the record, we affirm Defendant's convictions. We reverse the judgment of the trial court concerning the length of Defendant's sentence for aggravated rape and the trial court's order of consecutive sentencing, and remand this matter for a new sentencing hearing.

A Shelby County jury convicted the Defendant of attempted aggravated burglary, and this Court affirmed the conviction on direct appeal. The Tennessee Supreme Court remanded the case to this Court solely to consider whether the trial court's failure to instruct on certain lesser-included offenses was "plain error," thus warranting review despite the Defendant's failure to timely file his motion for new trial. On remand, we conclude that the trial court's failure to instruct on the lesser-included offenses in this case was not "plain error." Accordingly, we affirm the judgment of the trial court.

The State of Tennessee appeals from the Shelby County Criminal Court's dismissal of its petition to declare Daniel Henley a motor vehicle habitual offender. Because the lower court erred in its determination that the state failed to prove the existence of three prior, qualifying convictions, we reverse and remand.

A Knox County jury convicted the Petitioner of robbery by the use of a deadly weapon. The trial court found the Petitioner to be an habitual criminal and sentenced him to life imprisonment. This Court affirmed both the sentence and verdict on direct appeal. The Petitioner subsequently filed his first petition for post-conviction relief, alleging ineffective assistance of counsel at his trial. The post-conviction court denied relief, but no appeal ensued. The Petitioner then filed a second petition for post-conviction relief, alleging that counsel in his first post-conviction proceeding was ineffective for failing to file an appeal. After a hearing, the post-conviction court dismissed the second petition and ruled that the Petitioner did not have a constitutional right to effective assistance of counsel in a post-conviction proceeding. This Court affirmed. The Tennessee Supreme Court reversed and remanded the case to the post-conviction court for an evidentiary hearing to determine whether the Petitioner received ineffective assistance of counsel at his first post-conviction proceeding and whether, as a result, the Petitioner was effectively denied a first-tier appeal of his first post-conviction petition. Before the hearing, the Petitioner filed an amended petition for post-conviction relief. The post-conviction court heard the amended petition, but found that the issues raised were without merit. On appeal, this Court affirmed the post-conviction court’s finding that the Petitioner had been effectively denied a first-tier appeal in the original post-conviction proceedings, but held that the post-conviction court was not authorized to hear the amended petition. The supreme court affirmed this ruling and remanded the case to this Court for a first-tier appeal of the Petitioner’s original and unamended petition for post-conviction relief. Having reviewed the record, we conclude that the Petitioner received effective assistance of counsel at trial. Therefore, we affirm the judgment of the post-conviction court.

The Defendant, William Robert Posey, appeals as of right from the judgment of the trial court, which found him guilty of driving under the influence (DUI) as a third offender. The Defendant raises two central issues on appeal. First, the Defendant argues that the two preceding DUI convictions are invalid on their face and therefore cannot be used to enhance his punishment for the present conviction. Second, the Defendant argues that the trial court committed error by failing to hold a hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), to determine whether the Defendant personally waived his right to testify. Because the record is void of any evidence that the Defendant did personally waive his right to testify, we remand the case to the trial court for a hearing to determine whether the Defendant's right to testify was violated, and if so, whether the violation of the Defendant's right to testify was harmless beyond a reasonable doubt.

The defendant, James Michael Davis, was convicted of driving under the influence. The trial court imposed a sentence of 11 months, 29 days, with all but 48 hours suspended. In this appeal of right, the defendant asserts that because the police officers did not have "reasonable suspicion" to warrant an investigatory stop, the trial court erred by denying his motion to suppress. The judgment of the trial court is affirmed.

Convicted at a jury trial of first-degree, premeditated murder and presently serving a life sentence, Wilson Neely appeals from the Shelby County Criminal Court. He claims that his conviction is improperly based upon uncorroborated and insufficient testimony of accomplices. Because we disagree, we affirm.

A Davidson County jury convicted the Appellant, Vernon Dewayne Waller, of sale of a counterfeit controlled substance, a class E felony. The trial court sentenced Waller as a career offender to six years in the Department of Correction. On appeal, Waller presents the following issues for review: (1) Did the trial court err in ruling that if the Defendant chose to testify, his prior felony drug convictions would be admissible to impeach his credibility; (2) Did the trial court err in allowing the State to introduce a substance alleged to be cocaine and a lab report identifying it as such through a witness other than the technician who tested the substance; and (3) Did the trial court err in finding the Defendant was a career offender. After a review of the record, we find that Waller's issues are without merit. Accordingly, the judgment of the trial court is affirmed.

Jimmy Lee King stands convicted of the attempted first-degree murder of Billy Dwayne Pace. King received his conviction at the conclusion of a jury trial in the Benton County Circuit Court, and he was sentenced to a 20-year incarcerative term. Claiming that the evidence is insufficient to support the conviction, he has appealed. Because we are unpersuaded, we affirm.

Pursuant to a negotiated plea agreement, the defendant pled guilty to possession of crack cocaine with the intent to resell, distribute or manufacture, possession of marijuana, possession of drug paraphernalia, and four counts of the sale of over .5 grams of crack cocaine. The defendant was sentenced as agreed to nine (9) years for each felony count and eleven months and twenty-nine days for each misdemeanor count. The agreement also provided that all of the sentences would be served concurrently for an effective nine-year sentence. Following a sentencing hearing, the trial court denied alternative sentencing. In this appeal, the defendant challenges the denial of alternative sentencing. We affirm.

The defendant, Ernest Willie Mays, pled guilty to sale of cocaine, a Class C felony, and was sentenced as a Range I, standard offender to five years in the Tennessee Department of Correction. He appeals his sentence, arguing that it is excessive and that the trial court erred in (1) refusing to consider that less restrictive measures than incarceration had not been tried unsuccessfully, (2) not applying any mitigating factors, (3) finding that the offense constituted a criminal enterprise, and (4) considering the fact that he had four children out of wedlock. We affirm the sentence imposed by the trial court.

The appellant, John Earl Scales, was convicted by a Davidson County jury of felony murder and attempted aggravated robbery. He was sentenced to life imprisonment for the murder with a concurrent three-year term for the attempted aggravated robbery conviction. On direct appeal this Court affirmed the convictions and sentences. State v. John Earl Scales, No. 01C01-9709-CR-00412 (Tenn. Crim. App., at Nashville Feb. 24, 1999), 1999 Tenn. Crim. App. LEXIS 168, at *28. On November 20, 2000, Scales filed a petition for post-conviction relief. On December 19, 2000, the post-conviction court summarily dismissed the petition. From that dismissal the appellant perfected the instant appeal. We find that the post-conviction court erred in summarily dismissing the appellant's claims regarding the alleged ineffectiveness of his appellate counsel on the grounds of waiver or previous determination. Moreover, we find that the post-conviction court's order indicating that such allegations do not state "colorable claims" does not set forth with sufficient specificity the court's findings with regard to the allegations concerning the alleged ineffectiveness of appellate counsel. We therefore remand this case for entry of an appropriate order in accordance with this opinion.