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Hayes v. State

Court of Criminal Appeals of Tennessee, Jackson

July 21, 2017

KENNETH HAYES
v.
STATE OF TENNESSEE

          Assigned on Briefs May 17, 2017, at Knoxville

         Appeal from the Criminal Court for Shelby County No. 09-02707 Lee V. Coffee, Judge

         The Petitioner, Kenneth Hayes, appeals the denial of his petition for post-conviction relief in which he challenged his convictions for reckless aggravated assault, two counts of aggravated assault, criminal attempt to commit the intentional killing of an animal worth over $1000, theft of property over $1000, and evading arrest and his effective sentence of forty years, eleven months and twenty-nine days in confinement. On appeal, the Petitioner contends that he was denied his right to the effective assistance of counsel because trial counsel failed to raise sufficiency of the evidence in the motion for a new trial, trial counsel failed to object to the application of enhancement factors during the sentencing hearing, and trial counsel failed to object to the trial court's determination that the Petitioner was a Range II offender. After review of the record and applicable law, we affirm the post-conviction court's denial of relief.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Gregory D. Allen, Memphis, Tennessee, for the appellant, Kenneth Hayes.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Steve Ragland, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         Trial

         The facts underlying the Petitioner's convictions were summarized by this court on direct appeal as follows:

On January 21, 2009, at approximately 1:00 a.m., the owner of Broadway Pizza, Dewana Ishee, received a phone call from the security company alerting her that a break-in had occurred at her family business in Memphis, Tennessee. Mrs. Ishee and her husband, Denny Ishee, immediately drove to Broadway Pizza where they saw the Defendant's van backed up to the front door of their restaurant and two men carrying the Ishees's 62" Samsung television from the building. The Ishees exited their vehicle and confronted the men, ordering them to set the television down. The men complied, but the Defendant's co-defendant pulled out a pistol as he approached Mr. Ishee. In response, Mr. Ishee fired a gun that he was carrying with him at the time. The co-defendant fled the scene. While this was occurring, the Defendant had taken steps toward Mrs. Ishee, which she interpreted as aggressive movement. She moved forward and grabbed the Defendant around the shoulders and held on to him. During this altercation, the Defendant got into his van with Mrs. Ishee still holding on, halfway in the vehicle with her feet still touching the ground. Meanwhile, two police officers arrived on the scene and saw the van with the Defendant behind the wheel and Mrs. Ishee's legs protruding from the driver side door. The Defendant put the car in drive and accelerated forward, ramming into the police car that had just arrived. Two police officers, at the time, were trying to exit the vehicle. One of the police officers, Officer Jackson, was able to get back into the police car before impact. Officer Watson, however, was unable to get back in to the vehicle quickly enough, and, as a result of the impact, he injured his wrist and fingers. After the impact, Officer Jackson got out of the police car and approached the van with his weapon drawn. Mrs. Ishee had maintained her grasp on the Defendant but released him when Officer Jackson instructed her to do so. Upon being released, the Defendant fled the scene. Officer Jackson followed the Defendant as far as he could and notified the dispatcher of the direction in which the Defendant was fleeing.
Based on Officer Jackson's report, a helicopter and canine unit, comprised of Officer Twilley and his canine partner Gunner, were dispatched to the area of Overton Park. A helicopter unit located the Defendant crouched down in a thickly wooded area and guided Officer Twilley and Gunner to within ten feet of the Defendant's location. After notifying the Defendant, Officer Twilley released Gunner to apprehend the Defendant. Several seconds after Gunner's release, Officer Twilley heard Gunner make a yelping sound the officer had never before heard. Officer Twilley approached and called Gunner off of the Defendant. Officer Twilley ordered the Defendant to show his hands, but the Defendant refused to comply. Officer Twilley struck the Defendant multiple times on the shoulder and the Defendant still refused to comply so Officer Twilley engaged Gunner again and once Gunner had the Defendant on the ground, Officer Twilley could see the Defendant's hands to ensure he was unarmed. After the Defendant was taken into custody, police officers recovered from the scene a pistol and a knife covered with blood and dog hair. Officer Twilley also found that Gunner was bleeding extensively and immediately transported him to an emergency center for treatment of ten stab wounds. After several weeks of treatment and recuperation from the stab wounds, the canine officer returned to active duty.
After the Defendant was apprehended, police officers transported him back to Broadway Pizza, and the Ishees positively identified the Defendant as one of the two men who had been in possession of their television. A search of the Defendant's vehicle, which the Defendant had abandoned at the Broadway Pizza, revealed a loaded handgun located on the floorboard of the passenger side of the vehicle.
Based upon this evidence, a jury convicted the Defendant of reckless aggravated assault, two counts of aggravated assault, criminal attempt to commit the intentional killing of an animal worth over $1000, theft of property over $1000, and evading arrest.

State v. Kenneth Hayes, No. W2010-00309-CCA-R3-CD, 2011 WL 3655130, at *1-2 (Tenn. Crim. App. Aug. 19, 2011), perm. app. denied (Tenn. Jan. 16, 2015). For the purposes of this appeal, we note that aggravated assault is a Class C felony, reckless aggravated assault is a Class D felony, theft of property over $1, 000 is a Class D felony, criminal attempt to commit the intentional killing of an animal worth over $1, 000 is a Class E felony, and evading arrest is a Class A misdemeanor. See T.C.A. §§ 39-13-102(e)(1) (Supp. 2009); 39-14-105(3); 39-14-205(a)(1)(B) (Supp. 200939-12-107(a); 39-16-603(a)(3).

         The Defendant's sentencing hearing was summarized as follows:

At the Defendant's sentencing hearing, the State entered into evidence the Presentence Investigative Report and a victim impact letter from Officer Watson, the officer who was injured when the Defendant rammed his van into the officer's police cruiser. In the letter, Officer Watson noted that the Defendant was "reckless without regard to the lives of several police officers whose lives were in jeopardy, " that he "caused several thousands of dollars worth of damage to government and private property, " and that the injuries Officer Watson sustained from this incident caused him "to be off work for several days and on partial duty for over a month." ...

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