November 2012 Archives

A Criminal Defendant who has entered a guilty plea and later believes that he was coerced or that he received ineffective assistance of counsel (which could be receiving bad legal advice or insufficient legal advice regarding the charges and the consequences of the plea) may file a post-conviction petition with the trial court to seek to invalidate the guilty plea. In the recent case of Henson v. State, E2012-00856-CCA-R3-PC (Tenn.Crim.App. 11-26-2012), the Defendant had pled guilty to multiple criminal charges, including aggravated sexual exploitation of a minor. The sexual exploitation charge arose from images discovered on his computer, which had been placed in a share folder on his computer connected to a peer-to-peer file sharing network.

When sentencing a defendant found guilty of multiple crimes, a trial court must not only determine the specific sentence for each crime, but also determine whether those sentences should be served at the same time or stacked consecutively. A few crimes and circumstances require consecutive sentencing. But in many cases, the decision is left to the discretion of the trial court. In those cases, a trial court must still find at least one of the statutory factors which are required before the trial court has the discretion to order consecutive sentencing. In the recent case of State v. McCathern, M2011-01612-CCA-R3-CD (Tenn.Crim.App. 11-16-2012), the trial court ordered consecutive sentences after finding that the Defendant had an extensive criminal history and was a professional criminal who makes much of his living from committing crime.

When sentencing a defendant found guilty of multiple crimes, a trial court must not only determine the specific sentence for each crime, but also determine whether those sentences should be served at the same time or stacked consecutively. A few crimes and circumstances require consecutive sentencing. But in many cases, the decision is left to the discretion of the trial court. In those cases, a trial court must still find at least one of the statutory factors which are required before the trial court has the discretion to order consecutive sentencing. In the recent case of State v. McCathern, M2011-01612-CCA-R3-CD (Tenn.Crim.App. 11-16-2012), the trial court ordered consecutive sentences after finding that the Defendant had an extensive criminal history and was a professional criminal who makes much of his living from committing crime.

Vehicular Assault is a Tennessee felony offense committed when a person, as a result of intoxication, causes serious bodily injury to another person by operating a motor vehicle. It is often charged, along with DUI, when an impaired driving incident seriously injures someone else. Depending on the facts and circumstances of the case, the outcome of conviction could range from a short period of probation up to several years in prison. The Court of Criminal Appeals recently upheld an eight year prison sentence for a defendant convicted of two counts of vehicular homicide arising from the same incident. State v. Colbert, M2012-00225-CCA-R3-CD (Tenn.Crim.App. 11-9-2012).

Since the 2005 amendments to the Sentencing Act in Tennessee, trial courts were afforded expanded discretion in the consideration of enhancement and mitigating factors and in selecting a sentence within the appropriate statutory range for a criminal offense. In addition to no longer requiring enhancement factors to impose a sentence anywhere within the statutory range, the Sentencing Act amendments effectively changed the standard of review on appeal of the sentence imposed. This of course all applies to felony DUI convictions as well, as illustrated in the recent case of State v. Tipton, E2011-02354-CCA-R3-CD (Tenn.Crim.App. 11-7-2012).

Since the 2005 amendments to the Sentencing Act in Tennessee, trial courts were afforded expanded discretion in the consideration of enhancement and mitigating factors and in selecting a sentence within the appropriate statutory range for a criminal offense. In addition to no longer requiring enhancement factors to impose a sentence anywhere within the statutory range, the Sentencing Act amendments effectively changed the standard of review on appeal of the sentence imposed. This of course all applies to felony DUI convictions as well, as illustrated in the recent case of State v. Tipton, E2011-02354-CCA-R3-CD (Tenn.Crim.App. 11-7-2012).

DNA evidence can be critical evidence in a criminal case. In recent decades, advances in biomedical technology has led to the capability to ascertain information from biological evidence which could not be ascertained before. So, when collected and preserved, Tennessee law allows for post-trial testing of available DNA evidence if the results could have been helpful to the accused at the trial stage, but was not tested or could not be tested then. Of course, DNA testing is not cheap or easy. So certain statutory criteria must be met to qualify for post-trial testing. As the Tennessee Court of Criminal Appeals noted in the recent case of Tolley v. State, W2011-01816-CCA-MR3-PC (Tenn.Crim.App. 10-25-2012), the request must specify what evidence exists which could be further tested and lead to exculpatory results.