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Hutcherson v. State

Court of Criminal Appeals of Tennessee, Jackson

June 13, 2019

JOSHUA L. HUTCHERSON
v.
STATE OF TENNESSEE

          Assigned on Briefs February 5, 2019

          Appeal from the Circuit Court for Henderson County No. 15-092-3 Kyle Atkins, Judge

         Following the post-conviction court's granting of a delayed appeal, the petitioner challenges the trial court's application of enhancement factor (6) in determining the petitioner's sentence. After reviewing the record and considering the applicable law, we conclude the post-conviction court did not follow the proper procedures in granting a delayed appeal and remand the case to the post-conviction court for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed, Vacated, and Remanded

          Michael Thorne, Lexington, Tennessee, for the appellant, Joshua L. Hutcherson.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; Jody Pickens, District Attorney General; and Chris Post, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams, P.J. and Camille R. McMullen, J., joined.

          OPINION

          J. ROSS DYER, JUDGE

         Facts and Procedural History

         On October 19, 2015, the petitioner, Joshua L. Hutcherson, entered an open plea to four counts of vehicular assault, one count of driving on a revoked license with prior DUI, four counts of reckless aggravated assault, one count of leaving the scene of an accident, and one count of felony reckless endangerment, with sentencing to be determined by the trial court. A sentencing hearing was held on December 18, 2015, and the petitioner received an effective sentence of fourteen years. An appeal of the trial court's sentencing determination was not filed.

         On July 28, 2016, the petitioner filed a timely pro se petition for post-conviction relief, alleging the trial court erred in imposing consecutive sentences. After the appointment of counsel, the petitioner filed an amended petition for post-conviction relief, arguing the trial court's application of enhancement factor (6) was erroneous. The petitioner subsequently filed a second amended petition for post-conviction relief requesting a delayed appeal based on trial counsel's failure to pursue an appeal of the petitioner's sentence.

         On May 21, 2018, without holding an evidentiary hearing, the post-conviction court entered an order granting the petitioner a delayed appeal. This timely appeal followed.

         Analysis

         On appeal, the petitioner argues the trial court erred in applying enhancement factor (6) because the factor is also an element of one of the crimes for which he was being sentenced. However, before addressing this issue on the merits, we must first determine whether the post-conviction ...


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