Forest A. Durard, Jr., 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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Rice v. State of Tennessee, No. M2023-00609-CCA-R3-PC (Tenn. Ct. Crim. App. May 15, 2024). Petitioner, Horatio Lewis Rice, appeals the denial of his post-conviction petition, arguing that the post-conviction court erred in denying his claims that trial counsel was ineffective by failing to adequately investigate Petitioner’s mental health issues and that Petitioner lacked the mental capacity to enter into a constitutionally valid plea agreement. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the post-conviction court.

 

State of Tennessee v. Davis, No. M2023-00225-CCA-R3-CD (Tenn. Ct. Crim. App. Apr. 12, 2024). The defendant, Brittany Linda Lou Davis, appeals her Lincoln County Circuit Court jury convictions of delivering and selling .5 grams or more of methamphetamine, arguing that the trial court erred by admitting a recording of the controlled buy, that the evidence was insufficient to support her convictions, and that the trial court erred by sentencing her as a Range III offender. Discerning no error, we affirm.

 

Pendergrast v. State of Tennessee, No. M2023-00057-CCA-R3-PC (Tenn. Ct. Crim. App. Mar. 19, 2024). Petitioner, Carl Franklin Pendergrast, appeals the Bedford County Circuit Court’s denial of post-conviction relief from his guilty-pleaded convictions for four counts of sale of methamphetamine less than .5 grams, two counts of sale of hydrocodone, one count of sale of cocaine less than .5 grams, and one count of conspiracy to deliver methamphetamine less than .5 grams, for which he received a total effective sentence of twenty-six years’ incarceration. Petitioner contends that he is entitled to post-conviction relief because his guilty pleas were the product of coercion and, therefore, not voluntarily entered. Following a thorough review, we affirm the post-conviction court’s denial of relief.

 

State of Tennessee v. Sales, No. M2023-00948-CCA-R3-CD (Tenn. Ct. Crim. App. Feb. 26, 2024). The pro se petitioner, Antwain Tapaige Sales, appeals the Bedford County Circuit Court’s order dismissing his Rule 36.1 motion to correct an illegal sentence. Discerning no error, we affirm.

 

State of Tennessee v. Potee, No. M2023-00179-CCA-R3-CD (Tenn. Ct. Crim. App. Feb. 23, 2024). Defendant, Wayne Daryl Potee, pleaded guilty in case numbers 2015-CR-185 and 2015- CR-186 to one count of selling 0.5 grams or more of methamphetamine in a Drug-Free School Zone (“DFSZ”) and one count of selling less than 0.5 grams of methamphetamine in a DFSZ. Defendant received an effective 15-year sentence to serve at 100 percent for his convictions. Defendant subsequently filed a motion for resentencing pursuant to Tennessee Code Annotated section 39-17-432(h)(1), which the trial court denied following two evidentiary hearings. Defendant appealed the trial court’s decision. In his brief to this Court, Defendant acknowledges that he has no right of appeal under Tennessee Rule of Appellate Procedure 3, see State v. Bobo, 672 S.W.3d 299, 302 (Tenn. Crim. App. 2023). He nonetheless asserts that the trial court’s ruling was fundamentally illegal and asks this Court to grant a writ of certiorari. Following a thorough review of the record and applicable law, we deny Defendant’s request for a writ of certiorari and affirm the judgment of the trial court.

 

State of Tennessee v. Hastings, No. M2023-00247-CCA-R3-CD (Tenn. Ct. Crim. App. Feb. 23, 2024). Defendant, Frank James Hastings, appeals his effective sentence of twenty-two years related to three cases in which he entered open best interest pleas. On appeal, Defendant argues that his sentence is excessive and that the trial court erred by imposing partial consecutive service and denying alternative sentencing. After a thorough review of the record, we affirm the judgments of the trial court.

 

Porter v. State of Tennessee, No. M2023-00756-CCA-R3-PC (Tenn. Ct. Crim. App. Feb. 15, 2024). Petitioner, Edward Parnell Porter, appeals the denial of his post-conviction petition, arguing that the post-conviction court erred in finding that he received the effective assistance of counsel at trial. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the post-conviction court.

 

State of Tennessee v. Gregory, Jr., No. M2023-00166-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 20, 2023). In 2022, the Defendant, Stasey Tyrome Gregory, Jr., pleaded guilty to six counts of methamphetamine related charges, and the trial court sentenced the Defendant to an effective sentence of fifteen years of incarceration. On appeal, the Defendant asserts that the trial court erred when it sentenced him. After review, we affirm the trial court’s judgments.

 

State of Tennessee v. Miller, No. M2023-00138-CCA-R3-CD (Tenn. Ct. Crim. App. Oct. 30, 2023). The Defendant, Glen Edward Miller, pleaded guilty to two counts of robbery and two counts of kidnapping, and the trial court sentenced him to a twelve-year effective sentence, to be served on probation after one year of confinement. In response to the Defendant’s second proven probation violation, the trial court ordered him to serve the balance of his sentence in confinement. On appeal from this judgment, the Defendant contends that: (1) the trial court improperly admitted hearsay evidence; (2) the evidence is insufficient to prove that he violated his probation; and (3) the trial court erred when it ordered him to serve the balance of his sentence in confinement. After review, we affirm the trial court’s judgment.

State of Tennessee v. McGuiggan, No. M2022-01504-CCA-R3-CD (Tenn. Ct. Crim. App. Oct. 4, 2023).  The defendant, Spenser Curtis McGuiggan, appeals the Marshall County Circuit Court’s order revoking his probation and requiring him to serve in confinement the balance of his six-year sentence for sexual battery of a minor. Discerning no error, we affirm.

 

State of Tennessee v. Carter, No. M2022-00769-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 22, 2023). The Appellant, Tracey Lynn Carter, was convicted by a Lincoln County jury of attempted
aggravated assault, resisting arrest, disorderly conduct, and public intoxication. He received an effective sentence of eight years’ imprisonment. On appeal, the Appellant alleges that: (1) the evidence is insufficient to support his conviction for attempted aggravated assault; (2) the trial court erred in failing to instruct the jury on voluntary intoxication; and (3) the trial court erred in denying a sentence of split confinement. After review, we affirm the trial court’s judgments.

 

State of Tennessee v. Schutt, No. M2022-00905-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 18, 2023).  A Lincoln County jury convicted the Appellant, Jason Lee Schutt, of alternative counts of
possession of hydrocodone with intent to sell or deliver, a Class C felony. See Tenn. Code Ann. §§ 39-17-408(b)(1)(F), -417(a), -417(c)(2)(A). The trial court properly merged the above counts, and following a sentencing hearing, the Appellant was ordered to serve nine years and six months in confinement in the Tennessee Department of Correction. In this appeal, the Appellant contends that the evidence was insufficient to support his convictions because the alleged controlled substance was not verified by chemical analysis as hydrocodone, and that the trial court erred in denying alternative sentencing. Upon our review, we affirm the judgment of the trial court.

 

State of Tennessee v. Allen, No. M2022-01400-CCA-R3-CD (Tenn. Ct. Crim. App. Sept. 8, 2023). Johnathan Issac Gradell Allen, Defendant, pleaded guilty to arson and was sentenced to four-and-one-half years’ incarceration. Defendant claims that the trial court erred by not sentencing him to an alternative sentence and by imposing an excessive sentence. Defendant also claims that the State’s negligent handling of certain sentencing documents caused an unreasonable delay in his transfer from the jail to prison thereby delaying the date of his parole hearing. After a thorough review of the record, applicable law, and the briefs, we affirm.

 

State of Tennessee v. Carder, No. M2022-00641-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 24, 2023).  Defendant, James Stephen Carder, was indicted by the Marshall County Grand Jury for 36 counts of theft of property in amounts ranging from less than $1,000 to $60,000 and two counts of aggregate theft in an amount greater than $60,000 but less than $250,000. Five of the theft counts were dismissed after the close of the State’s proof, and a petit jury convicted Defendant of 24 theft counts and both aggregate theft counts. The trial court merged those individual theft convictions involving the same victim and also merged the two counts of aggregate theft, and the court sentenced Defendant as a Range II offender to an effective 20 years’ incarceration and ordered him to pay $134,990 in restitution. In this appeal, Defendant argues that the evidence was insufficient to support his convictions, that the trial court lacked subject matter jurisdiction, and that law enforcement improperly investigated the case and interfered with his contracts. Having reviewed the entire record and the briefs of the parties, we affirm the judgments of the trial court. However, we remand this case to the trial court for entry of amended judgment forms to reflect the merger of the 24 individual theft convictions into count 37, the one aggregate theft conviction.

 

State of Tennessee v. Chapman, No. M2022-00-377-R3-CD (Tenn. Ct. Crim. App. Aug. 22, 2023). Defendant, Hilton Lee Chatman, was charged in an eleven-count indictment on drug related offenses. A jury convicted him of possession with intent to sell 0.5 grams or more of cocaine in Count 1; possession with intent to sell heroin in Count 3; possession of a firearm after having been previously convicted of a felony drug offense in Count 10; and possession of drug paraphernalia in Count 11. Defendant was found not guilty of the remaining seven counts of the indictment. The trial court sentenced Defendant as a Range II offender to a total effective sentence of twenty-four years and six months. On appeal, Defendant argues the evidence is insufficient to support his convictions, his sentence is excessive, his motion for new trial was erroneously denied, and the trial court failed to comply with Rule 11 of the Tennessee Rules of Criminal Procedure when it rejected his guilty plea. Following our review of the entire record, the briefs of the parties, and applicable authority, we affirm the judgments of the trial court.

 

State of Tennessee v. Wells, No. M2022-00512-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 3, 2023).  A Lincoln County jury convicted the Defendant, Theodore Devon Wells, of sale of a Schedule II narcotic, cocaine, and delivery of a Schedule II narcotic, cocaine. The trial court sentenced the Defendant as a Range III offender to twenty-eight years. On appeal, the Defendant contends that the evidence is insufficient to support his convictions and that the trial court erroneously admitted certain items of evidence. He further contends that his Sixth Amendment right of confrontation was violated. Finally, he contends that the trial court erred when it sentenced him. After review, we affirm the trial court’s judgments.

 

State of Tennessee v. Little, No. M2022-00738-CCA-R3-CD (Tenn. Ct. Crim. App. Aug. 3, 2023). The Defendant, Darren Marion Little, pleaded guilty to two counts of violating the Sex Offender Registry and one count of possessing a prohibited weapon. The trial court sentenced the Defendant as a Range III offender to an effective sentence of ten years of incarceration. On appeal, the Defendant contends, and the State concedes, that the trial court erred when it classified him as a Range III offender. After review, we agree with the parties. We reverse the trial court’s judgment and remand the case for resentencing.

 

State of Tennessee v. Smith, No. M2022-00646-CCA-R3-CD (Tenn. Ct. Crim. App. May 3, 2023). The Appellant, Christopher Ray Smith, entered a guilty plea to three counts of misdemeanor failure to appear, see Tenn. Code Ann. § 39-16-609, with the length and manner of service to be determined by the trial court. Following a sentencing hearing, the trial court imposed a sentence of eleven months and twenty-nine days’ imprisonment for each count, with counts two and three to be served concurrently to a consecutive term in count one. The trial court suspended the sentence to supervised probation following service of six months’ imprisonment. On appeal, the Appellant argues the trial court abused its discretion by imposing an excessive sentence. Upon review, we modify the sentence in count one and remand for entry of corrected judgment form as to that count. In all other respects, we affirm.

 

Sales v. State of Tennessee, No. No. M2022-01280-CCA-R3-PC (Tenn. Ct. Crim. App. Apr. 17, 2023) (memorandum opinion).  The Appellant, Michael Dominic Sales, appeals the post-conviction court’s order dismissing his post-conviction petition as untimely. Appointed counsel has moved to withdraw pursuant to Court of Criminal Appeals Rule 22. That motion is denied. Upon review of the appellate record on file, this Court hereby affirms the judgment of the post-conviction court pursuant to Court of Criminal Appeals Rule 20.

 

State of Tennessee v. Coleman, No. M2022-00278-CCA-R3-CD (Tenn. Ct. Crim. App. Apr. 4, 2023). The defendant, Leslie Lamont Coleman, was convicted of aggravated robbery, a Class B felony, and sentenced to twenty years in the Department of Correction, to be served consecutively to his sentence in a prior felony murder case. On appeal, the defendant argues: (1) the evidence is insufficient to sustain his conviction because the only proof connecting him to the crime was the uncorroborated testimony of his alleged accomplice; (2) the trial court committed plain error by ruling the State could question the defendant about his prior felony murder conviction under Tennessee Rules of Evidence 608 and 609 if he chose to testify; and (3) the trial court erred in sentencing by imposing the maximum Range II sentence of twenty years. After review, we affirm the judgment of the trial court.

 

State of Tennessee v. Sales, No. M2022-01077-CCA-R3-CD (Tenn. Ct. Crim. App. Mar. 29, 2023). The Defendant, Antwain Tapaige Sales, appeals the Bedford County Circuit Court’s order dismissing his claim that his judgments of conviction for second degree murder and attempted second degree murder are fraudulent and void. After review, we conclude that the appeal should be dismissed.

 

State of Tennessee v. Walden, No. M2022-00386-CCA-R3-CD (Tenn. Ct. Crim. App. Jan. 11, 2022). After pleading guilty to two counts of violation of the habitual motor vehicle offender law and reckless endangerment, Defendant was sentenced to a total of eight years and six months on supervised probation. Several probation violation warrants, a partial revocation, and additional convictions followed, eventually culminating in a hearing on the revocation of Defendant’s probation. Defendant admitted the violations. The trial court ultimately determined that Defendant’s multiple probation violations warranted the complete revocation of probation. After a review, we affirm the judgment of the trial court.

 

State of Tennessee v. Greenman, No. M2021-01061-CCA-R3-CD (Tenn. Ct. Crim. App. Dec. 27, 2022).  A Lincoln County jury convicted the Defendant, Timothy Curtis Greenman, of three counts of sexual exploitation of a minor more than 100 images and one count of sexual exploitation of a minor more than fifty images, and the trial court sentenced him to a total effective sentence of thirty years of incarceration. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion to suppress; (2) the evidence is insufficient to sustain his convictions; (3) the trial court erred when it denied his motion for new trial; and (4) the trial court erred when it sentenced him. After review, we affirm the trial court’s judgments.

 

State of Tennessee v. Jamison, No. M2021-01302-CCA-R3-CD (Tenn. Ct. Crim. App. Nov. 29, 2022).  Defendant, Daniel J. Jamison, entered an open plea of guilty to aggravated burglary, theft of property valued at less than $1,000, aggravated criminal trespass, and public intoxication. The trial court imposed an effective six-year sentence to be served in the Department of Correction, followed by a consecutive sentence of eleven months and twenty-nine days in the county jail with all but ninety days to be served on supervised probation. On appeal, Defendant argues that his sentence was excessive. Following our review of the entire record, oral arguments, and the briefs of the parties, we affirm the judgments of the trial court.

Mitchell v. State of Tennessee, No. M2021-00783-CCA-R3-PC (Tenn. Ct. Crim. App. June 29, 2022).  The pro se petitioner, Sedrick Darion Mitchell, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial and on appeal. Following our review, we affirm the postconviction court’s denial of the petition.

State of Tennessee v. Braden, No. M2021-00764-CCA-R3-CD (Tenn. Ct. Crim. App. June 28, 2022).  The defendant, Jamar Laquan Braden, was convicted by a Marshall County jury of theft of property and unlawful possession of a weapon by a convicted felon for which he received an effective sentence of fifteen years in the Department of Correction. On appeal, the defendant argues: (1) the evidence is insufficient to sustain his convictions; (2) the trial court erred in denying his motion for new trial; and (3) the trial court erred in denying his motion for change of venue. Upon our review of the record, the applicable law, and the briefs of the parties, we affirm the judgments of the trial court.

State of Tennessee v. Radzvilowicz, No. M2021-00671-CCA-R3-CD (Tenn. Ct. Crim. App. May 12, 2022).  The Defendant, James Stanley Radzvilowicz, pled guilty in the Moore County Circuit Court to aggravated assault and was sentenced by the trial court to four years, six months, with eight months in confinement before release on supervised probation. On appeal, the Defendant argues that the trial court erred by denying his request for either judicial diversion or, in the alternative, full probation. After review, we affirm the judgment of the
trial court.

State of Tennessee v. Miller, No. M2020-01393-CCA-R3-CD (Tenn. Ct. Crim. App. Apr. 25, 2022). The Defendant, Jackie Dean Miller, was convicted by a Marshall County Circuit Court jury of aggravated burglary, a Class C felony, and two counts of theft of property valued at $10,000 or more but less than $60,000, a Class C felony. See T.C.A. §§ 39-14-403 (2018) (subsequently repealed, replaced by § 39-14-1003 (Supp. 2021)) (aggravated burglary), 39-14-103 (2018) (theft), 39-14-105 (2018) (subsequently amended) (grading of theft). The trial court merged the theft convictions and imposed an effective ten-year sentence to be served in the Department of Correction. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his convictions, (2) he was denied a fair trial because jurors may have seen the Defendant in a sheriff’s car, and (3) the trial court abused its discretion in imposing consecutive sentences. We affirm the judgments of the trial court.

 

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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