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Keller v. State

Court of Criminal Appeals of Tennessee, Jackson

February 8, 2018

CURTIS KELLER
v.
STATE OF TENNESSEE

          Assigned on Briefs March 7, 2017

         Appeal from the Criminal Court for Shelby County No. 10-07532 James M. Lammey, Judge

         Petitioner, Curtis Keller, appeals the denial of his petition for post-conviction relief, in which Petitioner alleged that he received the ineffective assistance of counsel. Having reviewed the record and the briefs of the parties, we affirm the judgment of the post-conviction court.

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

          Andrea D. Sipes, Jackson, Tennessee, for the appellant, Curtis Keller.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; Jessica Banti, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Procedural history

         Petitioner was convicted by a jury of two counts of especially aggravated kidnapping, one count of especially aggravated robbery, one count of especially aggravated burglary, three counts of aggravated assault, and one count of employing a firearm during the commission of a dangerous felony. State v. Curtis Keller, No. W2012-00825-CCA-R3-CD, 2013 WL 3329032, at *1 (Tenn. Crim. App. June 27, 2013), perm. app. denied (Tenn. Dec. 10, 2013). The trial court sentenced Petitioner to a total effective sentence of 240 years' incarceration. Id. On direct appeal, Petitioner argued that the jury instructions concerning especially aggravated kidnapping were inadequate, the jury instructions concerning the employment of a firearm during the commission of a dangerous felony were erroneous, and his eight separate convictions violated his constitutional protection from double jeopardy. A panel of this court concluded that the jury instructions were inadequate, but the error was harmless beyond a reasonable doubt; that the instructions concerning the employment of a firearm were erroneous and that conviction was reversed; and that it was plain error for Petitioner to be convicted of both especially aggravated burglary and attempted especially aggravated robbery based on the same act of causing serious bodily injury to Mr. Morrow. Accordingly, the panel reduced Petitioner's conviction for especially aggravated robbery to aggravated burglary and imposed a new sentence of 15 years for that count. The panel affirmed the remaining judgments of the trial court.

         Petitioner timely filed a pro se petition for post-conviction relief, alleging several grounds of ineffective assistance of counsel. Following the appointment of counsel, Petitioner filed an amended petition. Following an evidentiary hearing, the post-conviction court entered a written order denying post-conviction relief. Petitioner appeals the post-conviction court's ruling.

         Facts

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

During the early morning hours of May 26, 2010, the defendant and at least two accomplices kicked in the door of a house and terrorized its occupants because the defendant - an admitted drug dealer - believed that one of them owed him some money as a result of a prior transaction. After breaking into the premises, the defendant went into a bedroom and woke up his intended target, victim Andrew Morrow, and his target's girlfriend, Tamika Jones. He demanded money. Two of Ms. Jones' children, fifteen-year-old victim M.B. and fourteen-year-old J.G., were present in the home when the intrusion occurred. One of the intruders quickly located victim M.B., who was brought into the adults' bedroom. The intruder proceeded to press his pistol against the boy's head and asked Mr. Morrow: "Do you see what you are fixin' to make ...

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