Scott Green, Judge

Biography

Reports of Cases Reviewed by Appellate Courts – Beginning Jan. 1, 2022

Text is the appellate court’s summary of the opinion.

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Taylor, IV v. State of Tennessee, No. E2023-00636-CCA-R3-PC (Tenn. Ct. Crim. Jan. 30, 2024). The Petitioner, Billy Taylor, IV, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief challenging his guilty-pleaded convictions for two counts of unlawful possession of a firearm by a convicted felon and one count of possession of methamphetamine over one-half gram with the intent to sell. The Petitioner argues that the post-conviction court erred by finding that he entered his guilty pleas knowingly and voluntarily. Specifically, the Petitioner alleges that: (1) trial counsel was ineffective by failing to explain that the plea agreement did not guarantee the Petitioner probation and treatment at a substance abuse program and (2) he was under the influence of narcotics at the time he pleaded guilty. Following our review, we affirm the judgment of the postconviction court. 

 

State of Tennessee v. Powell, E2022-00347-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 2, 2024). A Knox County Criminal Court jury convicted the defendant, Seth Powell, of possession with intent to sell, deliver, or manufacture 15 grams or more of heroin within 1,000 feet of a park; possession with intent to sell, deliver, or manufacture fentanyl within 1,000 feet of a park; possession with intent to sell, deliver, or manufacture .5 grams or more of cocaine within 1,000 feet of a park; three counts of possession of a firearm with the intent to go armed during the commission of a dangerous felony; three counts of possession of a firearm with the intent to go armed during the commission of a dangerous felony after having been previously convicted of a dangerous felony; and evading arrest. The trial court merged various convictions and imposed an effective 16-year sentence. On appeal, the defendant contends that the evidence is insufficient to support his convictions, that the trial court erred in failing to exclude inadmissible hearsay evidence, that his separate convictions for possession of heroin and fentanyl should be merged because they were contained in the same mixture, and that his firearm convictions should be merged into one conviction. Upon review, we affirm the judgments of the trial court but remand to the trial court for entry of judgments in Counts 8, 10, 14, and 16 through 21, showing that the charges for those counts were dismissed by the State.

 

State of Tennessee v. Stephenson, E2023-00241-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 26, 2023).  Defendant, Timothy Alan Stephenson, was indicted by the Knox County Grand Jury for (1) possession of 0.5 grams or more of cocaine with intent to sell or deliver; (2) possession of a firearm during the commission of a dangerous felony; (3) possession of a firearm after having been convicted of a violent felony; and (4) possession of a firearm by a convicted felon. He pled guilty to counts one and three of the indictment and agreed to concurrent ten-year sentences with the trial court to determine the manner of service. Counts two and four were dismissed pursuant to the agreement. The trial court sentenced Defendant to serve the ten-year concurrent sentences in confinement. Defendant appeals, arguing that the trial court abused its discretion in denying probation. Following our review of the record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial court but remand for entry of judgment forms for the counts dismissed pursuant to the plea agreement.

 

State of Tennessee v. Dooley, Alias, E2023-00881-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 26, 2023).  Defendant, Jerome Nchiyako Dooley, appeals the Knox County Criminal Court’s partial revocation of his probation. He argues on appeal that: (1) the trial court revoked Defendant’s probation on grounds not alleged in the warrant, in violation of due process; (2) the State failed to prove that Defendant violated the terms of his probation; and (3) the trial court violated Defendant’s due process rights by failing to act as a neutral and detached magistrate. After review, we affirm the judgment of the trial court.

 

State of Tennessee v. Shaffighi, E2022-00525-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 15, 2023).  A Knox County jury found the Defendant, John Shaffighi, guilty of aggravated rape and aggravated sexual battery from events occurring in 1992. He was sentenced to an effective term of twenty-five years. On appeal, the Defendant challenges the legal sufficiency of the evidence supporting his convictions. He also asserts the trial court erred by (1) denying a motion to dismiss in light of missing evidence; (2) allowing the victim’s forensic interview to be played at trial; (3) denying his motion for a mistrial after testimony from the victim; (4) limiting the testimony of his expert witness; (5) instructing the jury on its deliberation during its deadlock; and (6) imposing the maximum sentence after misapplying enhancement factors and failing to apply mitigating factors. The State concedes that the Defendant was not sentenced properly under the pre-2005 sentencing statutes. Upon our review, we affirm the Defendant’s convictions but respectfully remand the case for resentencing in accordance with Blakely v. Washington, 542 U.S. 296 (2004).

 

State of Tennessee v. Guin, E2022-00391-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 15, 2023).  The defendant, Roger Dean Guin, appeals his Knox County Criminal Court jury convictions of aggravated sexual battery, rape of a child, assault, rape, incest, and sexual battery by an authority figure, arguing that the trial court erred by denying his motion to suppress his statement and that the evidence was insufficient to support his convictions. Because the State’s elections in Counts 8, 9, and 10 were insufficient to protect the defendant’s right to a unanimous jury verdict and to protect against violations of the principles of double jeopardy, we vacate those convictions and remand for a new trial on those counts. We also remand the case to the trial court for entry of corrected judgments in Counts 3, 5, and 7 reflecting the merger of those convictions into Counts 2, 4, and 6 respectively and reflecting the proper misdemeanor classification and sentences. We reverse the conviction in Count 1 and affirm the trial court’s judgments in all other respects.

 

State of Tennessee v. Dismukes, E2022-01517-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 11, 2023).  A Knox County jury convicted Defendant, Jerry L. Dismukes, of possession of more than fifteen grams of heroin with intent to sell or deliver; possession of less than 200 grams of fentanyl with intent to sell or deliver; possession of more than twenty-six grams of a substance containing cocaine with intent to sell or deliver; and possession of drug paraphernalia. On appeal, Defendant argues that the trial court provided the improper remedy when it modified one of his convictions to a lesser offense after the jury’s verdict. Defendant also argues that there was insufficient evidence to prove an unbroken chain of custody. The State argues that Defendant waived his first argument, and that the evidence was sufficient to establish an unbroken chain of custody. We agree with the State.

 

State of Tennessee v. Manning, E2022-01715-CCA-R3-CD (Tenn. Ct. Crim. App. Nov. 9, 2023). A Knox County jury convicted the Defendant, Tony Manning, of rape, attempted rape, and aggravated assault. The trial court sentenced the Defendant to serve an effective sentence of eight years in the Tennessee Department of Correction. On appeal, the Defendant argues that the evidence is insufficient to support his convictions. He also contends that the trial court erred in finding that the State’s expert was qualified and by allowing the expert to testify outside of her area of expertise. In response, the State argues, in part, that the Defendant waived any issue concerning the expert by failing to object at trial and by filing an untimely motion for a new trial. On our review, we conclude that the Defendant’s notice of appeal was untimely filed. We also conclude that the “interest of justice” does not require us to waive the timely filing of the notice of appeal, and we respectfully dismiss the appeal.

 

State of Tennessee v. Watson, E2022-01321-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 12, 2023).  The Defendant, William Paul Watson, pled guilty to possessing more than one-half gram of cocaine with intent to sell within a drug-free zone and received a fifteen-year sentence to be served at one hundred percent. More than ten years later, he filed a motion to be resentenced pursuant to Tennessee Code Annotated section 39-17-432(h). The trial court held a hearing, granted the Defendant’s motion, and resentenced him to fifteen years with eight years to be served at one hundred percent and the remainder to be served at a thirty-five percent release eligibility. On appeal, the Defendant contends that the trial court imposed an illegal sentence. The State argues that we should dismiss the appeal for lack of jurisdiction under Tennessee Rule of Appellate Procedure 3(b) and that, in any event, the Defendant’s sentence is not illegal. Based upon the oral arguments, the record, and theparties’ briefs, we agree with the Defendant, reverse and vacate the judgment of the trial court, and remand the case for further proceedings consistent with this opinion.

 

State of Tennessee v. Harris, E2023-00078-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 12, 2023).  Defendant, Isaiah Harris, appeals the trial court’s order revoking his probationary sentence for four counts of attempted second-degree murder and two counts of felony reckless endangerment and ordering him to serve the balance of his sentence in confinement. Following our de novo review of the entire record and the briefs of the parties, we affirm the judgment of the trial court. 

 

State of Tennessee v. Allen, E2022-00437-CCA-R3-CD (Tenn. Ct. Crim. App. July 12, 2023). The pro se Defendant, Ryan Monroe Allen, appeals his jury convictions for second degree murder and abuse of a corpse, and his resulting effective forty-year sentence. On appeal, the Defendant argues as follows: (1) the trial court erred by denying the Defendant’s motion to continue or, in the alternative, to proceed pro se that was made at the start of trial, thus, forcing the Defendant to proceed to trial with an attorney who had a conflict of interest; (2) the trial court erred by admitting evidence of the Defendant’s prior bad acts in violation of Tennessee Rule of Evidence 404(b), and the prosecutor explicitly defied the trial court’s pretrial 404(b) ruling during opening statements; (3) the trial court erred by failing to address pretrial the Defendant’s motion to dismiss the abuse of a corpse charge due to insufficient proof of venue or, in the alternative, to sever the two offenses; (4) the evidence was insufficient to support the Defendant’s convictions; (5) the trial court erred by not excusing a juror who indicated that she might have known the spouse of someone who assisted with the investigation; (6) the trial court erred by denying the Defendant’s motion for a mistrial made because the State failed to disclose prior to trial that two witnesses were going to testify to having seen certain evidence in the Defendant’s residence; (7) the trial court erred by denying the Defendant’s motion to recuse made on the ground that the trial court was holding court proceedings without the Defendant present and was biased against the Defendant; (8) the Defendant’s sentence was out-of-range and illegal because he was not provided with the State’s notice of its intention to seek enhanced punishment; (9) the State’s case was based on perjured and recanted testimony; and (10) the State committed prosecutorial misconduct by suppressing certain pieces of evidence. Following our review of the record and applicable authorities, we affirm the judgments ofthe trial court.

 

State of Tennessee v. Moore, E2022-01364-CCA-R3-CD (Tenn. Ct. Crim. App. July 11, 2023). Defendant, Rex Allen Moore, appeals the trial court’s revocation of his probation after incurring new criminal charges related to his failing to report an email address to the sex offender registry. On appeal, Defendant argues that the trial court abused its discretion by finding that he knowingly violated the terms of his probation. Following a de novo review of the record, we affirm.

 

State of Tennessee v. Pitts, E2022-00350-CCA-R3-CD (Tenn. Ct. Crim. App. July 6, 2023).  The defendant, James Pitts, pled guilty to one count of aggravated assault in exchange for a sentence of six years with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court ordered the defendant’s six-year sentence be served in confinement. On appeal, the defendant argues that the trial court erred in imposing a sentence of incarceration rather than an alternative sentence. After reviewing the record, the parties’ briefs and oral arguments, and the applicable law, we conclude the trial court failed to acknowledge most of the relevant statutory considerations or articulate the reasons for the sentence of confinement in accordance with the purposes and principles of sentencing. Therefore, we remand the case for the limited purpose of having the trial court make the appropriate findings on whether the defendant should receive an alternative sentence or a sentence of incarceration, noting that the trial court shall fully articulate its reasoning in accordance with the applicable statutes and case law. Accordingly, the judgment of the trial court is reversed, and the case is remanded to the trial court.

 

State of Tennessee v. Spencer, E2022-01375-CCA-R3-CD (Tenn. Ct. Crim. App. May 1, 2023).  The Defendant, Tinisha Nicole Spencer, appeals her jury conviction for driving under the influence, fifth offense. The trial court sentenced her to two years suspended after service of 150 days in jail. On appeal, the Defendant challenges whether the State established an unbroken chain of custody for her blood sample, whether the sentence enhancement counts were void because they included the dates of the prior offenses rather than the dates of conviction as required by statute, and whether the sentence enhancement counts vested the trial court with jurisdiction to sentence her as a multiple offender because they incorporated a facially void judgment. Following our review, we affirm the judgments of the trial court.

 

Thomas v. State of Tennessee, No. E2022-00160-CCA-R3-PC (Tenn. Ct. Crim. Feb. 17, 2023).  The Petitioner, Marcus Thomas, appeals from the Knox County Criminal Court’s denial of post-conviction relief from his guilty-pleaded conviction to attempted first degree murder. On appeal, the Petitioner contends that the post-conviction court erred by denying relief on his claims alleging that he received the ineffective assistance of trial counsel and that his guilty plea was involuntary and unknowing. We affirm the judgment of the post-conviction court.

 

State of Tennessee v. Sarkissian, E2022-00059-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 5, 2022).  The Defendant, Jacob Sarkissian, appeals the trial court’s revocation of his three-year probationary sentence for aggravated assault. The trial court revoked the Defendant’s probation after determining that he materially violated his probation sentence by testing positive for marijuana, methamphetamine, and amphetamine, and by having contact with the victim. The Defendant asserts that the trial court’s revocation of his probation sentence was an abuse of discretion because the trial court improperly relied on allegations of physical abuse that were not alleged in the probation violation warrant. The record supports the trial court’s finding that the Defendant violated the terms of his probation sentence and the trial court’s decision that the Defendant must serve his sentence in prison. We conclude that no abuse of discretion occurred and affirm the trial court’s judgment.

 

State of Tennessee v. Booker No. No. E2018-01439-SC-R11-CD (Tenn. Sup. Ct. Nov, 18, 2022). Tyshon Booker challenges the constitutionality of Tennessee’s mandatory sentence of life imprisonment when imposed on a juvenile homicide offender. In fulfilling our duty to decide constitutional issues, we hold that an automatic life sentence when imposed on a juvenile homicide offender with no consideration of the juvenile’s age or other circumstances violates the prohibition against cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Mr. Booker stands convicted of felony murder and especially aggravated robbery—crimes he committed when he was sixteen years old. For the homicide conviction, the trial court automatically sentenced Mr. Booker under Tennessee Code Annotated section 40-35-501(h)(2) to life in prison, a sixty-year sentence requiring at least fifty-one years of incarceration. But this sentence does not square with the United States Supreme Court’s interpretation of the Eighth Amendment. When sentencing a juvenile homicide offender, a court must have discretion to impose a lesser sentence after considering the juvenile’s age and other circumstances. Here, the court had no sentencing discretion. In remedying this constitutional violation, we exercise judicial restraint. We need not create a new sentencing scheme or resentence Mr. Booker—his life sentence stands. Rather, we follow the policy embodied in the federal Constitution as explained in Montgomery v. Louisiana, 577 U.S. 190 (2016) and grant Mr. Booker an individualized parole hearing where his age and other circumstances will be properly considered. The timing of his parole hearing is based on release eligibility in the unrepealed version of section 40-35-501(h)(1), previously in effect, that provides for a term of sixty years with release eligibility of sixty percent, but not less than twenty-five years of service. Thus, Mr. Booker remains sentenced to sixty years in prison, and after he has served between twenty-five and thirty-six years, he will receive an individualized parole hearing where his age and other circumstances will be considered. Our limited ruling, applying only to juvenile homicide offenders, promotes the State’s interest in finality and efficient use of resources, protects Mr. Booker’s Eighth Amendment rights, and is based on sentencing policy enacted by the General  Assembly.  Editor’s Note.  The majority opinion was written by Justice Lee, who was joined by Justice Campbell.   Justice Kirby concurred separately.   Justice Bivins dissented, joined by Chief Justice Page. 

 

Tate v. State of Tennessee, No. E2022-00147-CCA-R3-PC (Tenn. Ct. Crim. Nov. 10, 2022).  The petitioner, Jacob Tate, appeals the denial of his petition for post-conviction relief, which petition challenged his 2018 guilty-pleaded convictions of especially aggravated kidnapping and rape, arguing that he was deprived of the effective assistance of counsel and that his guilty pleas were not knowingly, voluntarily, and intelligently entered. Discerning no error, we affirm.

 

State of Tennessee v. Bowman, E2021-00614-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 31, 2022).  The Defendant-Appellant, Elijah Bowman, was convicted by a jury of first-degree felony murder, two counts of attempted second degree murder, two counts of especially aggravated robbery, and aggravated assault. He received a total effective sentence of life imprisonment plus twelve years. The sole issue presented on appeal is whether the evidence is sufficient to support his convictions of first-degree felony murder, attempted second degree murder, and especially aggravated robbery. We affirm.

 

Smith v. State of Tennessee, No. E2022-00200-CCA-R3-PC (Tenn. Ct. Crim. App. Oct. 31, 2022).  The petitioner, Richard Cleophus Smith, appeals the denial of his petition for postconviction relief, which petition challenged his convictions of first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, evading arrest, reckless endangerment, and leaving the scene of an accident involving injury, alleging that he was deprived of the effective assistance of counsel and due process. Because the petitioner’s post-conviction counsel also represented the petitioner on direct appeal, we remand to the post-conviction court to determine whether the petitioner knowingly and voluntarily agrees to waive post-conviction counsel’s conflict of interests.

 

State of Tennessee v. Hayes, E2022-01123-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 31, 2022).  Jason Albert Hayes, Defendant, was charged with aggravated assault, resisting arrest, and assault. He pled guilty in exchange for an effective sentence of three years. After the denial of judicial diversion, Defendant appeals. Because the trial court did not abuse its discretion, we affirm the denial of judicial diversion.

 

State of Tennessee v. Samuel, E2022-01033-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 25, 2022). Defendant, Devondre DeQuan Samel, was convicted by a jury of conspiracy to possess 150 grams or more of heroin with intent to sell or deliver within 1,000 feet of a school, a park, and a recreational center (Counts 1-3), conspiracy to sell 150 grams or more of heroin within 1,000 feet of a school, a park, and a recreational center (Counts 5-7), two counts of possession of drug paraphernalia (Counts 14 and 17), possession with intent to sell or deliver less than fifteen grams of heroin within 1,000 feet of a park (Count 15), and manufacture of less than fifteen grams of heroin within 1,000 feet of a park (Count 16). The trial court imposed an effective fifteen-year sentence, as a Range I standard offender, to be served in the Department of Correction. On appeal, Defendant argues: that the trial court erred by denying his motion for judgment of acquittal; that the trial court erred by denying his pre-trial motion for a continuance; that the trial court improperly limited his cross-examination of Mr. Berry; that his sentence under the Drug-Free School Zone Act constitutes cruel and unusual punishment; and that the trial court erred by denying his motion for a new trial based upon prosecutorial vindictiveness. Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

 

State of Tennessee v. Shaw, E2021-00437-CCA-R3-CD  (Tenn. Ct. Crim. App. Aug. 25, 2022).  The Defendant, Tyrone De Angelo Shaw, appeals from his guilty plea conviction for aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (Supp. 2019) (subsequently amended). The trial court ordered the Defendant to serve the agreed-upon ten-year, Range II sentence. On appeal, the Defendant contends that the court erred in denying alternative sentencing and in denying his motion for reduction of sentence pursuant to Tennessee Rule of Criminal Procedure 35. We affirm the judgment of the trial court.

 

State of Tennessee v. Fain,  E2022-00026-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 25, 2022).  The Defendant, Rikealyn L. Fain, was convicted by a Knox County Criminal Court jury of attempted second degree murder, a Class B felony, and employing a firearm during the commission of a dangerous felony, a Class C felony, for which he is serving an effective sixteen-year sentence. See T.C.A. §§ 39-13-210 (2018) (second degree murder), 39-12- 101 (2018) (criminal attempt), 39-17-1324(b)(1) (employing a firearm during the commission of a dangerous felony) (Supp. 2020) (subsequently amended). On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm.

 

State of Tennessee v. Beets, No. E2021-00773-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 23, 2022).  The defendant, David Paul Beets, appeals his Knox County Criminal Court jury convictions of possession with intent to sell more than .5 grams of methamphetamine within 1,000 feet of a private school, simple possession of heroin, hydrocodone, and marijuana, and driving on a suspended license, arguing that the evidence was insufficient to establish that he sold drugs in a drug-free zone or that his license had been suspended. We affirm the drug conviction but reverse the conviction of driving on a suspended license and dismiss that charge.

 

State of Tennessee v. Washington, No. E2021-00153-CCA-R3-CD (Tenn. Ct. Crim. App. July 6, 2022).  Defendant, Denzel Washington, was convicted following a jury trial of possession of heroin with intent to sell or deliver within 1,000 feet of a childcare agency (Count 1), possession of fentanyl with intent to sell or deliver within 1,000 feet of a childcare agency (Count 2), possession of marijuana (Count 3) and delivery of heroin within 1,000 feet of a childcare agency (Count 4). The trial court ordered Defendant to serve an effective nine-year sentence. On appeal, Defendant argues that the evidence was insufficient to support his convictions and that his convictions in Counts 1 and 2 should have merged. Following our review of the entire record and the parties’ briefs, we affirm the judgments of the trial court.

 

State of Tennessee v. Killgo,  E2020-00996-CCA-R3-CD (Tenn. Ct. Crim. App. June 24, 2022).  The Appellant, Edward Earl Killgo, pled guilty in the Knox County Criminal Court to statutory rape, a Class E felony. Pursuant to the plea agreement, he received a six-year sentence as a Range III, persistent offender with the trial court to determine the manner of service of the sentence, including his request for judicial diversion, and whether he would be placed on the sex offender registry. After a sentencing hearing, the trial court ordered that the Appellant be given credit for time served in jail, that he serve the balance of his six-year sentence on supervised probation, and that he be placed on the sex offender registry. On appeal, the Appellant claims that the trial court erred by denying diversion and by ordering that he register as a sex offender. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court erred. Therefore, we reverse the trial court’s denying judicial diversion and ordering that the Appellant be placed on the sex offender registry and remand the case for further proceedings consistent with this opinion.

 

State of Tennessee v. McKenzie, No. E2021-00445-CCA-R3-CD  (Tenn. Ct. Crim. App. June 23, 2022).  Defendant, James Clark McKenzie, was convicted by a jury of possession with the intent to sell, deliver, or manufacture more than 0.5 grams of cocaine within 1,000 feet of a drugfree zone, unlawful possession of a firearm by a person previously convicted of a felony drug offense, unlawful possession of a firearm by a person previously convicted of a violent felony, possession of a firearm with the intent to go armed during the commission of a dangerous felony, and tampering with the evidence. The trial court imposed a total effective sentence of fifteen years. On appeal, Defendant contends the evidence is insufficient to support his conviction for possession with the intent to sell more than 0.5 grams of cocaine within a drug-free zone and that the trial court erred in sentencing him under the 2019 version of the Drug-Free School Zone Act. Following our review of the record and the briefs of the parties, we affirm the judgments of the trial court. However, we conclude that the trial court erroneously sentenced Defendant in count two, possession of a firearm by a person with a previous felony drug conviction, and remand for entry of an amended judgment as to that count only.

 

Yelder v. State of Tennessee, No. E2021-00633-CCA-R3-PC (Tenn. Ct. Crim. App. March 23, 2022). Malik Yelder, Petitioner, pled guilty to failure to appear, carjacking, and two counts of aggravated robbery. As a result, he received an effective nine-year sentence. Petitioner subsequently filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 to correct an illegal sentence in which he argued that trial counsel was ineffective. The postconviction court treated the pleading as a petition for post-conviction relief, appointed counsel, and held a hearing. The post-conviction court denied relief and dismissed the petition. Petitioner appealed. After a review, we affirm the judgment of the postconviction court.

 

State of Tennessee v. John Foxx, No. E2020-01711-CCA-R3-CD (Tenn. Ct. Crim. App. March 8, 2022). Defendant, John Foxx, was convicted following a jury trial of sale of less than .5 grams of a Schedule II controlled substance, delivery of less than .5 grams of a Schedule II controlled substance, and simple possession. The trial court ordered Defendant to serve an effective fifteen-year sentence after application of the criminal street gang enhancement statute. On appeal, Defendant argues that the trial court erred in applying the criminal street gang enhancement statute because the statute is unconstitutional and because the evidence was insufficient to support application of the criminal street gang enhancement statute. Following our review of the entire record and the parties’ briefs, we affirm the judgments of the trial court.

 

State of Tennessee v. Emily L. Williams, No. E2021-00339-CCA-R3-CD (Tenn. Ct. Crim. App. March 4, 2022). The Defendant, Emily L. Williams, appeals the trial court’s denial of her Rule 35 motion for a reduction of her four-year sentence for attempted tampering with evidence. She also attempts to appeal the original sentence imposed by the trial court. After review, we conclude that the time for her to appeal her original sentence has expired and the interest of justice does not require that the timely notice of appeal requirement be waived. We affirm the judgment of the trial court denying the motion to reduce the sentence.

 

Micah Ross Johnson v. State of Tennessee, No. E2021-00294-CCA-R3-PC (Tenn. Ct. Crim. App. Jan. 28, 2022). The petitioner, Micah Ross Johnson, appeals the denial of his petition for post-conviction relief, which petition challenged his 2011 convictions of first degree murder and especially aggravated robbery, alleging that he was deprived of the effective assistance of trial counsel. 1 Because the petitioner has established that he is entitled to post-conviction relief, we reverse the judgment of the post-conviction court and remand the case for a new trial.

 

Robert A. Grisham v. State of Tennessee, No. E2020-01545-CCA-R3-PC (Tenn. Ct. Crim. App. Jan. 25, 2022). A Knox County jury convicted Robert Alexander Grisham, Petitioner, of observation without consent, unlawful photography, and especially aggravated sexual exploitation of a minor. State v. Robert Grisham, No. E2015-02446-CCA-R3-CD, 2017 WL 1806829, at *11 (Tenn. Crim. App. May 5, 2017), perm. app. denied (Tenn. Sept. 20, 2017). On appeal, a panel of this Court modified Petitioner’s especially aggravated sexual exploitation of a minor conviction to attempted especially aggravated sexual exploitation of a minor and affirmed the two misdemeanor convictions. Id. at *26. Petitioner sought post-conviction relief alleging two claims of ineffective assistance of counsel. The postconviction court denied relief and Petitioner appealed. Petitioner died while his appeal was pending. Accordingly, we conclude that this appeal should be dismissed.

 

Understanding the Limitations and Use of the Information Found in This Book

Tennessee’s trial judges resolve hundreds of thousands of legal and factual issues in tens of thousands of cases every single year.  No appeal is filed in the vast percentage of those cases, indicating that while the “losing” party may not like a ruling on a particular issue, that party understands there was an appropriate reason for the judge’s decision or, at a minimum, the judge was acting within his or her discretion.

 

Of course, a small number of decisions of trial judges do result in an appeal. Experienced trial lawyers know that the number of cases appealed out of a particular trial judge’s court does not, in and of itself, reveal much about the trial judge. For example, some judges hear more complex cases than others, and those cases are more likely to be appealed. Convictions in child sex abuse cases are frequently appealed, as are many criminal cases resulting in long sentences. There are a large number of parental rights termination cases that find their way to the appellate courts.  Judges who routinely try those types of cases will, other things being equal, see more of their cases reviewed by appellate courts than judges who do not see such cases.

 

Second, certain litigants (and certain lawyers) are more likely to appeal a case than others.  Thus, judges who have those litigants or lawyers regularly appear in their courtrooms will find more cases reviewed by the appellate courts.

 

For these and other reasons, the reader is cautioned not to read too much into the number of cases appealed from a court.  Stated differently, there is no reason to believe that a judge who has ten cases reviewed by an appellate court in a single year is a “worse” judge than one who has one case appealed, or that a judge who has three cases appealed is a “better” judge than one who has nine cases appealed.

 

Next, the number of times a judge’s ruling is reversed by an appellate court is not necessarily indicative of the quality of his or her work. For example, experienced lawyers know that there are “holes in the law,” i.e., cases where there is no law directly on point and the judge is forced to predict what an appellate court would rule on the issue. The fact that a judge decided an open legal issue one way and an appellate court decided it another way does not mean that the trial judge was “wrong” or does not understand the law. It simply means that the trial judge had a different view of what the law should be than the appellate court that decided the issue. A trial judge is not blessed with a crystal ball that can with 100 percent accuracy forecast how an appellate court will rule on an undecided legal issue.

 

In addition, the trial court is sometimes not provided with the same in-depth legal arguments and law that is supplied to the appellate court by the parties, or which is provided by law clerks at the appellate level (many trial courts do not have law clerks). The trial judge may have reached the same conclusion as the appellate court if he or she had been supplied with additional law or argument.

 

Finally, the law changes constantly, and the trial judge may rule on a case based on today’s law, which may evolve between the time of that ruling and the issuance of an opinion of the appellate court. In such cases, the reversal of the case by the appellate court is a question of timing of the original court decision as compared to changes in the law, not one of error by the trial court.

 

So, what is the value of this book?  How can the trial lawyer use it to help his or her clients given the limitations expressed above? Permit me to digress slightly.

 

You have seen the coffee cups or t-shirts that proclaim, “A good lawyer knows the law, but a great lawyer knows the judge.”

 

Some read this phrase as suggesting that the “great lawyer” is one who has an improper relationship with the judge – that he or she can use a personal relationship to improperly influence the judge.  But most lawyers know better.  Most lawyers understand that “knowing the judge” means knowing the judge’s background, preferences concerning the presentation of evidence (including exhibits), arguments of motions, drafting of proposed orders, and given that experience, how he or she is likely to rule on a particular issue.  “Knowing the judge” also means knowing the local rules, local forms, local customs, and what things irritate the judge (and every judge is irritated by at least one thing that lawyers or litigants may do).

 

Many lawyers, particularly those in more rural areas of the state or who limit their practice to one area of law, understand the personality and preferences of the judges they see on a regular basis. Many of these lawyers may have a fair advantage appearing before that judge. (The advantage is “fair” because it results from experience and knowledge.)  That advantage – knowing how the judge thinks and his or her preferences – is not outcome-determinative, but it still may be an advantage, similar to a sports team playing on their home field.

 

Why did I say it “may” be an advantage, given what I said earlier about the benefits of “knowing the judge?”  Because simply knowing the judge’s thought processes and preferences is not enough. You still need to have the law and the facts on your client’s side.  And you need to be prepared to be able to give the judge what he or she needs to know to make a ruling.

 

So, the purpose of “The Book” is to give Tennessee lawyers case-related information to help them understand the trial judge who will rule on their client’s case or preside over a jury trial. By looking at past appellate court rulings arising from cases decided by the trial judge, anyone unfamiliar with a judge can get a “feel” for the judge. The case data contained herein does not compare with daily or weekly appearances in front of the judge on issues like a given case, but it is readily available information that give you an idea of how the judge has ruled in the past on a variety of matters.

 

The cases included are those originally decided by the trial judge that were in appellate court opinions released on or after January 1, 2022.  Note that there are a substantial number of judges who first took office in 2022 and thus it is reasonable to assume that there will be no appellate decisions for such judges until late 2023 or 2024.

 

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"The Book" - Information on Tennessee Trial Judges Copyright © 2023 by BirdDog Law, LLC. All Rights Reserved.