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  Court of Criminal Appeals  Opinions	






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              Melvin James Branham v. State of TennesseeE2016-00157-CCA-R3-PCAuthoring Judge: Judge H. Montgomery, Jr. Trial Court Judge: Judge Richard R. VanceThe Petitioner, Melvin James Branham, appeals the Sevier County Circuit Court’s denial of his petition for post-conviction relief from his 2012 conviction for robbery and his fifteen-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court. 

              Sevier County            

              Court of Criminal Appeals             

07/15/16 







              State of Tennessee v. Tracy Larenzo GoodwinE2015-01350-CCA-R3-CDAuthoring Judge: Judge H. Montgomery, Jr. Trial Court Judge: Judge Jon Kerry BlackwoodThe Defendant, Tracy Lorenzo Goodwin, appeals from the Hamilton County Criminal Court’s order revoking his probation and ordering execution of the original sentences imposed. The Defendant’s counsel has filed a motion to withdraw pursuant to Rule 22 of the Rules of the Tennessee Court of Criminal Appeals. We conclude that counsel’s motion is well-taken and, in accordance with Rule 22(F), affirm the trial court’s judgments pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. 

              Hamilton County            

              Court of Criminal Appeals             

07/15/16 







              State of Tennessee v. William Seth BowmanM2015-02086-CCA-R3-CDAuthoring Judge: Judge Norma McGee OgleTrial Court Judge: Judge David Alan PattersonThe appellant, William Seth Bowman, pled guilty in the Putnam County Criminal Court to aggravated assault and received a six-year sentence with the manner of service to be determined by the trial court.  After a sentencing hearing, the trial court ordered that the appellant serve his sentence in confinement.  On appeal, the appellant contends that the trial court erred by not granting his request for alternative sentencing.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court. 

              Putnam County            

              Court of Criminal Appeals             

07/14/16 







              State of Tennessee v. Shecky DotsonW2015-00746-CCA-R3-CDAuthoring Judge: Judge Robert L. Holloway, Jr.Trial Court Judge: Judge James M. LammeyShecky Dotson (“the Defendant”) was indicted in Count 1 for driving while under the influence of an intoxicant (“DUI”), in Count 2 for reckless driving, and in Count 3 for DUI per se. In a separate document, the grand jury presented that the Defendant had one prior conviction for DUI. After a jury trial, the Defendant was acquitted in Count 1 and Count 2 and convicted in Count 3. On appeal, the Defendant argues that the trial court should have suppressed the results of his blood alcohol test. Specifically, he contends that the trial court erred in finding the Defendant gave actual consent for a blood draw and erred in finding the Defendant failed to revoke his implied consent. After a thorough review of the record, we have determined that, based on a totality of the circumstances, the Defendant freely and voluntarily gave actual consent for a blood draw and that the trial court did not err in denying the Defendant's motion to suppress the results of the warrantless blood draw. We affirm the judgments of the trial court. 

              Shelby County            

              Court of Criminal Appeals             

07/13/16 







              Joey Godwin v. State of TennesseeW2015-01535-CCA-R3-PCAuthoring Judge: Judge John Everett WilliamsTrial Court Judge: Judge Clayburn PeeplesThe petitioner, Joey Godwin, appeals the denial of his petition for post-conviction relief. The petitioner is currently serving two consecutive thirty-year sentences for his two convictions for sale of .5 grams or more of cocaine. On appeal, he contends that the post-conviction court erred in denying his petition because he received ineffective assistance of counsel. Specifically, he contends that trial counsel was ineffective by: (1) not allowing the petitioner to testify at his trial; (2) failing to file a motion for change of venue; and (3) advising the petitioner to reject a twelve-year plea offer from the State. Following review of the record, we conclude that the post-conviction court did not err and affirm the denial of post-conviction relief. 

              Gibson County            

              Court of Criminal Appeals             

07/13/16 







              State of Tennessee v. Earl Jerome Lee, Jr.W2015-00968-CCA-R3-CDAuthoring Judge: Presiding Judge Thomas T. WoodallTrial Court Judge: Judge Donald H. AllenDefendant, Earl Jerome Lee, Jr., filed various pro se motions seeking relief from his convictions in case numbers 87-467 and 87-347 in the Madison County Circuit Court. One motion sought relief pursuant to Tennessee Rule of Criminal Procedure (Tenn. R. Crim. P.) 36.1 based upon the fact that he received illegal concurrent sentences upon his guilty pleas in 1988. One of the sentences was for forty years of imprisonment, so the sentences have not all expired. Defendant asserted that concurrent sentencing was illegal pursuant to Tenn. R. Crim. P. 32(c)(3)(C) because he was on bond for the felony offenses in case number 87-347 when he committed the offenses in case number 87-467, and he was convicted of all the felonies. Another motion was “for exculpatory evidence” and yet another was “for review extraordinary appeal.” Defendant’s notice of appeal in the present case was filed May 13, 2015, appealing the trial court’s judgments filed May 1, 2015, which denied the three motions. For the reasons stated below, we affirm the judgments of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee. 

              Madison County            

              Court of Criminal Appeals             

07/13/16 







              Brandon L. Kirk v. State of TennesseeM2015-01203-CCA-R3-PCAuthoring Judge: Presiding Judge Thomas T. WoodallTrial Court Judge: Judge William R. Goodman, IIIFollowing two jury trials, Petitioner, Brandon L. Kirk, was convicted of various offenses which resulted in a total effective sentence of 22 years.  All convictions were affirmed on appeal.  State v. Brandon L. Kirk, No. M2012-01331-CCA-R3-CD, 2013 WL 3148276 (Tenn. Crim. App. June 18, 2013).  Petitioner filed a pro se petition for post-conviction relief.  Counsel was appointed and an amended petition was filed.  Following an evidentiary hearing in which only Petitioner and trial counsel testified, the post-conviction court denied relief.  Petitioner has appealed, asserting that trial counsel rendered ineffective assistance of counsel.  After a thorough review, we affirm the judgment of the post-conviction court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee. 

              Robertson County            

              Court of Criminal Appeals             

07/13/16 







              State of Tennessee v. Michael BrownM2015-02139-CCA-R3-CDAuthoring Judge: Judge John Everett WilliamsTrial Court Judge: Jude Forest A. Durard, Jr.The defendant, Michael Brown, appeals the trial court’s decision to require him to serve sixty days in confinement for his conviction for sexual contact with an inmate, a Class E felony.  After a thorough review of the record, we conclude that the trial court did not abuse its discretion in sentencing, and we affirm the judgment of the trial court. 

              Marshall County            

              Court of Criminal Appeals             

07/13/16 







              State of Tennessee v. Marcus T. JohnsonE2016-00004-CCA-R3-CDAuthoring Judge: Judge Robert H. Montgomery, Jr. Trial Court Judge: Judge Steven W. SwordThe Defendant, Marcus T. Johnson, entered a guilty plea in 2011 to the sale of cocaine and received a ten-year sentence. In 2015, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting the correction of an illegal sentence. The trial court summarily denied relief. On appeal, the Defendant contends that the trial court erred by dismissing the motion. We affirm the judgment of the trial court. 

              Knox County            

              Court of Criminal Appeals             

07/13/16 







              State of Tennessee v. Lindsey Brooke LoweM2014-00472-CCA-R3-CDAuthoring Judge: Judge John Everett WilliamsTrial Court Judge: Judge Dee David GayThe parents of the defendant, Lindsey Brooke Lowe, discovered the body of one of her newborn twins in a laundry basket in her bedroom.  A second deceased newborn was also found in the basket, and the defendant gave an incriminating statement to police.  A jury convicted the defendant of two counts of first degree (felony) murder, two counts of first degree (premeditated) murder, and two counts of aggravated child abuse, a Class A felony.  The trial court merged the first degree murder convictions for each victim.  The defendant received a life sentence for each first degree murder conviction and a twenty-five year sentence for each aggravated child abuse conviction, all to be served concurrently.  On appeal she asserts that the evidence was insufficient to support the verdicts; that the trial court erred in not suppressing her statement; that the trial court was biased; that the trial court denied her the right to testify in her defense; that the burden of proof was shifted to the defense; that her motion for a change of venue should have been granted; that the physical evidence obtained through a search warrant should have been suppressed; that the trial court erred in excluding expert testimony regarding her ability to waive her right to remain silent; that the trial court erred in various other evidentiary decisions; and that she is entitled to relief under the theory of cumulative error.  After a thorough review of the record and the applicable law, we affirm the judgments of the trial court. 

              Sumner County            

              Court of Criminal Appeals             

07/12/16 







              Russell Freels v. State of TennesseeE2016-00021-CCA-R3-PCAuthoring Judge: Judge Camille R. McMullenTrial Court Judge: Judge Paul G. Summers, Sr. The Petitioner, Russell Freels, appeals the Washington County Criminal Court’s summary dismissal of his petition for post-conviction relief. The Petitioner contends that the post-conviction court erred in dismissing his ineffective assistance of trial counsel claim as having been untimely filed. He argues for the first time on appeal that he is constitutionally entitled to effective assistance of post-conviction counsel in his first petition for relief and that due process requires tolling of the statute of limitations. Discerning no error, we affirm the judgment of the post-conviction court. 

              Washington County            

              Court of Criminal Appeals             

07/12/16 







              State of Tennessee v. Joseph Anthony Szostak, IIIM2015-01634-CCA-R3-CDAuthoring Judge: Judge Thomas T. WoodallTrial Court Judge: Judge Russell ParkesDefendant, Joseph Anthony Szostak, III, appeals from the trial court’s revocation of probation. Defendant asserts on appeal that the trial court abused its discretion in revoking his probation by not articulating a “willful” failure to pay costs, by failing to consider Defendant’s reason for not paying, and by considering prior violations not applicable to the current proceeding. Defendant also contends that the trial court abused its discretion in sentencing Defendant by not considering principles of sentencing and by denying Defendant’s request for an alternative sentence. After review, we affirm the judgment of the trial court. 

              Maury County            

              Court of Criminal Appeals             

07/11/16 







              State of Tennessee v. Earl Junior PikeM2015-01573-CCA-R3-CDAuthoring Judge: Judge Robert W. WedemeyerTrial Court Judge: Judge Cheryl A. BlackburnThe Appellant, Earl Junior Pike, is appealing the trial court’s order denying his motion to correct an illegal sentence filed pursuant to Rule of Criminal Procedure Rule 36.1  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted. 

              Davidson County            

              Court of Criminal Appeals             

07/11/16 







              State of Tennessee v. Donald Ray SachsM2016-00054-CCA-R3-CDAuthoring Judge: Judge Robert W. WedemeyerTrial Court Judge: Judge Forest A. Durard, Jr.The Appellant, Donald Ray Sachs, appeals the trial court’s denial of his motion for a reduction of sentence.  Because the Appellant’s motion was not timely filed, the judgment of the trial court is affirmed. 

              Bedford County            

              Court of Criminal Appeals             

07/11/16 







              Eric Parker v. State of TennesseeE2016-00298-CCA-R3-PCAuthoring Judge: Judge Camille R. McMullenTrial Court Judge: Judge James F. Goodwin, Jr.Pro se petitioner, Eric Parker, appeals the Sullivan County Criminal Court's summary dismissal of his petition for post-conviction relief. On appeal, he argues that his petition contains sufficient factual support to establish colorable claims for relief and that the post-conviction court erred by dismissing his petition without a hearing. Upon review, we reverse the judgment of the post-conviction court with regard to the petitioner's ineffective assistance of counsel claim and remand for appointment of counsel and an opportunity to amend the petition for post-conviction relief as it relates to that claim. In all other respects, the judgment of the post-conviction court is affirmed. 

              Sullivan County            

              Court of Criminal Appeals             

07/08/16 







              State of Tennessee v. Randall T. Beaty M2014-00130-CCA-R3-CDAuthoring Judge: Presiding Judge Thomas T. WoodallTrial Court Judge: Judge Dee David GayI respectfully dissent from that portion of the majority's opinion which modifies a judgment to impose a conviction for a lesser included offense even though there is legally sufficient evidence to sustain the conviction for the greater offense.  I concur in all other aspects of the majority’s opinion. 

              Sumner County            

              Court of Criminal Appeals             

07/08/16 







              State of Tennessee v. Randall T. BeatyM2014-00130-CCA-R3-CDAuthoring Judge: Judge Robert L. Holloway, Jr.Trial Court Judge: Judge Dee David GayDefendant, Randall T. Beaty, was indicted for first degree felony murder and aggravated child abuse.  After a jury trial, he was convicted of reckless homicide and aggravated assault, which were charged to the jury as lesser included offenses.  He received consecutive sentences of four years for reckless homicide and six years for aggravated assault, for an effective ten-year sentence to be served in the Department of Correction.  On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by allowing Detective Bachman to testify in violation of the rule of sequestration; (3) that the trial court erred by excluding a proffer by Amber Peveler; (4) that the trial court erred in failing to merge his convictions on double jeopardy grounds; and (5) that the trial court erred by ordering consecutive sentencing.  As to the alleged violation of the rule of sequestration, we hold, pursuant to State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010), that the State had the rightunder Tennessee Rule of Evidence 615 to designate an investigating officer as exempt from sequestration and the designated investigating officer can remain in the courtroom during the testimony of other witnesses.  We further recognize, as a matter of plain error, that the jury’s verdict for aggravated assault failed to specify the mens rea with which the Defendant acted, and we conclude that the Defendant’s judgment of conviction for knowing aggravated assault, a Class C felony, must be modified to reflect a conviction for reckless aggravated assault, a Class D felony.  We, therefore, modify the conviction in Count 2 to a Class D felony reckless aggravated assault, find sufficient evidence to support the conviction, and modify Defendant’s sentence in Count 2 to four years’ incarceration to be served consecutively to the four year sentence for reckless homicide. We also conclude that the conviction for reckless aggravated assault does not merge with the conviction for reckless homicide.  All other aspects of Defendant’s convictions are affirmed. 

              Sumner County            

              Court of Criminal Appeals             

07/08/16 







              State of Tennessee v. Aimee Denise WallaceE2015-01962-CCA-R3-CDAuthoring Judge: Judge Robert L. Holloway, Jr.Trial Court Judge: Judge Alex E. PearsonAimee Denise Wallace (“the Defendant”) pleaded guilty to one count of possession of drug paraphernalia and requested that she be placed on judicial diversion. The trial court, after acknowledging that the Defendant was a “qualified defendant” for judicial diversion under Tennessee Code Annotated section 40-35-313(a)(1)(B)(i), denied the Defendant’s request based solely upon the fact that she had a prior conviction for a class A misdemeanor. On appeal, the Defendant asks this court to reverse the trial court’s order denying judicial diversion, conduct a de novo review, and order that the Defendant be placed on judicial diversion. The State concedes that the trial court erred. After review, we conclude that the trial court erred because it denied judicial diversion without considering and weighing all the relevant factors. Because the trial court failed to conduct an evidentiary hearing, the record before us is not sufficient for us to conduct a de novo review. The judgment of the trial court is reversed and remanded for reconsideration and a hearing on the issue of judicial diversion. 

              Greene County            

              Court of Criminal Appeals             

07/07/16 







              Howard Hawk Willis v. State of TennesseeE2015-00235-CCA-R3-ECNAuthoring Judge: Judge Camille R. McMullenTrial Court Judge: Judge Jon Kerry BlackwoodThe Petitioner, Howard Hawk Willis, appeals the Washington County Criminal Court's summary dismissal of his pro se petition for writ of error coram nobis. The Petitioner seeks relief from his two premeditated first degree murder convictions and the resulting sentences of death, arguing (1) the coram nobis court abused its discretion in summarily dismissing his petition without taking into account due process considerations; (2) the coram nobis court's grounds for dismissal were erroneous; and (3) his pro se petition satisfied the coram nobis pleading requirements and, to the extent that it did not, he should be granted an evidentiary hearing given the pro se nature of the petition. Upon review, we affirm the judgment of the coram nobis court. 

              Washington County            

              Court of Criminal Appeals             

07/07/16 







              State of Tennessee v. Rebekah DearmondM2015-01955-CCA-R3-CDAuthoring Judge: Judge James Curwood Witt, Jr.Trial Court Judge: Judge Robert JonesThe defendant, Rebekah Dearmond, appeals from her Maury County Circuit Court guilty-pleaded conviction of second offense driving under the influence (“DUI”), claiming that the trial court erred by denying her motion to suppress.  Because the defendant failed to properly preserve a certified question of law for our review, the appeal is dismissed. 

              Maury County            

              Court of Criminal Appeals             

07/07/16 







              State of Tennessee v. Bernard NelsonM2015-01690-CCA-R3-CDAuthoring Judge: Judge Robert W. WedemeyerTrial Court Judge: Judge Ross H. HicksA Montgomery County jury convicted the Defendant, Bernard Nelson, of two counts of indecent exposure.  On appeal, the Defendant asserts that the State breached its duty to preserve potentially exculpatory evidence.  The Defendant also contends that the convicting evidence is insufficient to sustain his convictions.  We affirm the trial court’s judgments. 

              Montgomery County            

              Court of Criminal Appeals             

07/06/16 







              State of Tennessee v. Lemonique Scherod JohnsonM2015-00595-CCA-R3-CDAuthoring Judge: Judge Norma McGee OgleTrial Court Judge: Judge Stella HargroveA Maury County Circuit Court Jury convicted the Appellant, Lemonique Scherod Johnson, of facilitation of aggravated robbery.  The trial court sentenced the Appellant as a Range III, persistent offender to twelve years in the Tennessee Department of Correction.  On appeal, the Appellant challenges the sufficiency of the evidence sustaining his conviction, contending that the alleged victim was a participant in the robbery, that the evidence did not support a conviction of facilitation aggravated robbery because the victim was not “in fear,” and that the Appellant was not involved in the robbery.  Upon review, we affirm the judgment of the trial court. 

              Maury County            

              Court of Criminal Appeals             

07/06/16 







              State of Tennessee v. Richard Dale SmithE2015-01596-CCA-R3-CDAuthoring Judge: Judge D. Kelly Thomas, Jr.Trial Court Judge: Judge Don W. PooleAfter the trial court denied his motion to suppress, the Defendant, Richard Dale Smith, pled guilty to driving under the influence (“DUI”). See Tenn. Code Ann. § 55-10-401. As a condition of his guilty plea, he sought to reserve the right to appeal a certified question of law challenging the trial court's denial of his motion to suppress. Following our review of the record, we dismiss the appeal because the Defendant failed to properly certify his question of law in accordance with Tennessee Rule of Criminal Procedure 37(b)(2). 

              Hamilton County            

              Court of Criminal Appeals             

07/06/16 







              State of Tennessee v. Christopher LindseyE2015-02135-CCA-R3-CDAuthoring Judge: Judge D. Kelly Thomas, Jr.Trial Court Judge: Judge R. Jerry BeckThe Defendant, Christopher Lindsey, appeals from the trial court's revocation of his community corrections sentence and order that he serve the balance of his sentence in confinement. On appeal, the Defendant contends that the trial court erred in admitting a certified copy of his nolo contendere plea to a shoplifting charge in violation of Tennessee Rule of Evidence 410; that the court erred by “tolling” his community corrections sentence; and that the trial court did not properly calculate his pretrial jail credits or credit for time served on community corrections. Following our review, we affirm the judgments of the trial court. However, we remand this case to the trial court for the correction of inaccuracies in the revocation order relating to the calculation of credit for time-served. 

              Sullivan County            

              Court of Criminal Appeals             

07/06/16 







              Ronnie Mills v. State of TennesseeE2015-01066-CCA-R3-PCAuthoring Judge: Judge D. Kelly Thomas, Jr.Trial Court Judge: Judge Steven W. SwordThe Petitioner, Ronnie Mills, appeals as of right from the Knox County Criminal Court’s denial of his petition for post-conviction relief. On appeal, he contends that his pleas were unknowing and involuntary due to counsel’s misinforming him regarding the specific terms of his plea agreement with the State and counsel’s subsequent failure to get those terms in writing or object when the alleged agreement was not honored. Following our review, we affirm the judgment of the post-conviction court. 

              Knox County            

              Court of Criminal Appeals             

07/06/16 








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