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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


Court: TCCA


Juni S. Ganguli, Memphis, Tennessee, for the Appellant, Howard Coleman.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; Alanda Dwyer and Katrina Earley, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Howard Lee Coleman, appeals the judgment of the Shelby County Criminal Court denying post-conviction relief. Coleman was convicted of first degree murder and especially aggravated robbery and was sentenced by the jury to life imprisonment without the possibility of parole. He also received a concurrent sentence of twenty years for his especially aggravated robbery conviction. Coleman filed a pro se petition for post-conviction relief in 2001, alleging multiple deficiencies underlying his ineffective assistance of counsel claim, including the failure to perfect a direct appeal of his convictions. After the appointment of counsel, the post-conviction court heard evidence on all the allegations and granted a Rule 3 delayed appeal to this court. The remaining post-conviction issues were stayed pending the outcome of the appeal, which was subsequently denied. Following the denial of second tier review, Coleman, proceeding pro se, filed an amended post-conviction petition in 2005. The attorney appointed to represent Coleman in his post-conviction challenge was the same attorney appointed to him in the direct appeal of the case. The post- conviction court subsequently denied post-conviction relief. On appeal, Coleman argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective by failing to properly investigate and prepare the case. Following review, the judgment of the post-conviction court is affirmed with regard to all allegations of ineffective assistance of counsel at trial. However, plain error review of the record reveals an actual conflict of interest in that counsel appointed to perfect the direct appeal was also appointed to represent the Appellant in the amended portion of the post-conviction proceeding. Because the record is silent with regard to the conflict of interest issue, we vacate the judgment and remand for a determination of whether the Appellant was informed of the conflict and, after full disclosure, consented to the representation of appointed post-conviction counsel for purposes of the amended proceedings. If waiver is found, the post-conviction court shall enter an order accordingly and reinstate the original judgment. However, if the court finds that no waiver occurred, the court shall appoint new post-conviction counsel for the limited purpose of allowing Coleman to amend his post- conviction petition to include any issues which resulted from the unsuccessful delayed appeal. See Tenn. Sup. Ct. R. 28 S (9)(D)(b)(3)(a).


Court: TCCA


Robert Jones, District Public Defender; Jim Hale, Assistant District Public Defender (at trial); and Phyllis Aluko, Assistant District Public Defender (on appeal), for the Appellant, Corey Finley.

Robert E. Cooper, Jr., Attorney General & Reporter; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dennis Johnson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

A Shelby County jury convicted the defendant, Corey Finley, of attempted first degree premeditated murder, see T.C.A. S 39-12-101 (2006); id. S 39-13-202(a)(1), and aggravated assault, see id. S 39-13-102. The court sentenced him to serve 23 years in the Department of Correction as a Range I, standard offender for the attempted first degree murder conviction and merged the aggravated assault finding of guilt. Aggrieved of his convictions, the defendant appeals on four grounds: (1) that there was insufficient evidence to convict him of attempted first degree murder; (2) that the trial court erred in failing to fully charge the jury on circumstantial evidence; (3) that the trial court erred in failing to instruct the jury on all lesser included offenses; and (4) that the sentence was excessive. After reviewing the record, we hold that the evidence was sufficient to convict the defendant of attempted first degree murder. We also hold that the defendant waived the two jury instruction issues and hold that the trial court did not commit plain error by not instructing the jury more fully on the circumstantial-evidence-jury-instruction issue. Finally, we hold that the sentence was not excessive. Thus, we affirm the judgment of the trial court.


Court: TCCA


Rickey Hogan, Pro Se, Henning, Tennessee

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Sean W. Lyons, Assistant District Attorney General,for the appellee, State of Tennessee.

Judge: SMITH

Following the failure of two writs of habeas corpus to alter his sentence, Appellant filed a Motion to Correct Clerical Error pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure. The trial court dismissed his motion because it was too vague and did not allege an intelligible and colorable claim. This Court dismisses the appeal because there is no appeal as of right from a Motion to Correct Clerical Error.


Court: TCCA


Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Tommy L. Holmes.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich and Valerie Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Tommy L. Holmes, was convicted of aggravated rape, a Class A felony, and sentenced as a violent offender to twenty-four years in the Department of Correction. He presents six issues on appeal: (1) whether he forfeited his right to counsel; (2) whether the jury was properly instructed on lesser-included offenses; (3) whether the evidence was sufficient to establish the bodily injury element of aggravated rape; (4) whether the trial court erred in answering the jury's question regarding what constitutes bodily injury; (5) whether there was prosecutorial misconduct during closing argument; and (6) whether the trial court erred by excluding certain evidence the defendant offered. Following our review, we conclude that his claims are without merit. However, we additionally conclude that, before determining that the defendant had forfeited his right to counsel, the trial court should have conducted an evidentiary hearing. Accordingly, we remand to the trial court for an evidentiary hearing as to this claim.


Court: TCCA


Thomas E. Hansom, Memphis, Tennessee (at trial); and William D. Massey, Memphis, Tennessee (on appeal), for the Appellant, Eric Lumpkins.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Eric Lumpkins, appeals from his Shelby County Criminal Court jury convictions of first degree murder, attempt to commit first degree murder, and two counts of aggravated assault. He challenges the sufficiency of the convicting evidence, the selection of the trial jury, the admission and exclusion of evidence, prosecutorial remarks made during closing argument, and his aggregate sentence of life plus ten years. We hold, inter alia, that the convicting evidence is legally sufficient and, in so holding, decline to apply the physical facts rule, and we hold that consecutive sentencing may be imposed by the trial judge without the participation of a jury. We affirm the judgments of the trial court.

Preparation of Real Estate Documents; Unauthorized Practice of Law

TN Attorney General Opinions

Date: 2007-06-06

Opinion Number: 07-88

Withholding Title X Funds from Planned Parenthood

TN Attorney General Opinions

Date: 2007-06-06

Opinion Number: 07-89

K-12 Capital Outlay Grant Program

TN Attorney General Opinions

Date: 2007-06-07

Opinion Number: 07-90


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