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Posted by: Karen Belcher on Aug 21, 2017

Court: TN Court of Appeals

Attorneys 1:

Stephen C. Bush, Shelby County Public Defender; Harry E. Sayle, III, Assistant Public Defender (on appeal); and Nigel Lewis, Kathy Kent, and Erim Sarinoglu, Assistant Public Defenders (at trial), for the appellant, Errol Johnson.

Attorneys 2:

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton-Bush and Abby Wallace, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): DYER

The defendant, Errol Johnson, was convicted of two counts of aggravated child neglect, a Class A felony, and two counts of criminally negligent homicide, a Class E felony. The trial court merged the two aggravated child neglect convictions and sentenced the defendant as a violent offender to twenty-two years in the Department of Correction. The trial court also merged the defendant’s convictions for criminally negligent homicide and sentenced him to two years. The defendant’s sentences were ordered to be served concurrently for an effective sentence of twenty-two years in the Department of Correction. On appeal, the defendant argues that the evidence is insufficient to support his convictions for aggravated child neglect and that the trial court imposed an excessive sentence. We conclude that the evidence is sufficient to sustain the jury’s verdict and affirm the judgments of the trial court. However, because aggravated child neglect is not an enumerated offense included in Tennessee Code Annotated § 40-35-501(i)(2), the trial court erred in its applying the statute and sentencing the defendant as a violent offender at 100% release eligibility. Therefore, we remand the matter for a new sentencing hearing.