Larry Stephen Brumit v. State of Tennessee
M2003-00488-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Don R. Ash

The petitioner, Larry Stephen Brumit, filed for post-conviction relief from 1996 convictions for two counts of first degree murder and one count of conspiracy to commit first degree murder. The post-conviction court denied the petition. In this appeal, the petitioner argues (1) that the petition was not barred by the applicable statute of limitations; and (2) that he was denied the effective assistance of counsel. The judgment is affirmed.

In Re: Adoption of T.A.M.
M2003-02247-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor J. B. Cox

This appeal involves the termination of the parental rights of an incarcerated biological father of a five-year-old child. The child’s mother and her new husband filed a petition in the Chancery Court for Lincoln County seeking to terminate the biological father’s parental rights and to approve the new husband’s adoption of the child. Following a bench trial, the trial court entered an order on August 29, 2003 granting the petition to terminate the biological father’s parental rights on the ground of abandonment. The biological father appealed. We concur with the trial court’s conclusion that the father abandoned his child by willfully failing to support and visit the child and that terminating the biological father’s parental rights is in the child’s best interests. Accordingly, we affirm the judgment.
 

In Re: Adoption of T.A.M. - Concurring
M2003-02247-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor J. B. Cox

I disagree with the standard of review employed by the court in this case for the reasons discussed at more length in In Re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *18-22 (Tenn.Ct.App. June 3, 2003) (No Tenn. R. App. P. 11 application filed); Estate of Acuff v. O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App. 2001). I agree, however, that a review of the evidence in the case discloses that the truth of the factual conclusions made by the trial are “highly probable” and thus the clear and convincing evidence standard is met. Therefore, I concur with the court’s decision to affirm the order terminating R.G.L.’s parental rights.

Randy D. Vowell v. State of Tennessee
E2003-01987-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge James B. Scott, Jr.

The petitioner appeals the Anderson County Criminal Court's denial of habeas corpus relief relating to his convictions for aggravated rape and rape. On appeal, the petitioner contends the original sentencing court erred in amending the judgments to reflect 100% release classification after they became final. We affirm the lower court's judgment denying habeas corpus relief.

Roger B. Ammons v. John Bouchard & Sons Co.; and
M2003-00940-SC-WCM-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Carol Solomon, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer claims that the trial court erred (1) in the amount of permanent partial disability awarded, (2) in determining the date permanent benefits commenced, (3) in awarding discretionary costs, and (4) in ordering the employer to pay the employee's attorney's fees. As modified, we affirm the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Davidson County Circuit Court is affirmed as modified. HOWELL N. PEOPLES, SP. J., in which FRANK F. DROWOTA, III, CHIEF JUSTICE., and JOHN A. TURNBULL, SP. J. joined. Andreas W. Smith, Allen, Kopet & Associates, PLLC, Chattanooga, Tennessee, for the Appellant John Bouchard Sons Co., and Associated Builders and Contractors of Tennessee Workers Compensation Self Insurance Fund. Daniel L. Clayton, Kinnard, Clayton & Beveridge, Nashville, Tennessee, for the Appellee Roger B. Ammons. 1 MEMORANDUM OPINION Facts Roger Ammons, a 46-year-old high school graduate, started working at age 17 as a plumber, the only work he has ever done. In 1983, he went to work for John Bouchard & Sons Co. ("Bouchard") as a journeyman plumber. The position required him to engage in heavy manual labor. On December 7, 1999, he sustained injuries to his back and left shoulder in a work-related motor vehicle accident while riding as a passenger in a plumbing truck. The driver of the truck, a 22-year-old co-worker, was killed in the accident. Dr. Daniel Burrus, an orthopedic surgeon, who treated Mr. Ammons, testified by deposition that Mr. Ammons had a 15 percent impairment to the body as a whole for his physical injuries based upon the A.M.A. Guides to the Evaluation of Permanent Impairment, 5th ed. Dr. David Gaw, an orthopedic surgeon, saw Mr. Ammons for evaluation and testified, by deposition, that he had a 24 percent impairment to the whole person for the physical injuries based upon the Guides, 5th Ed. He also testified that Mr. Ammons would have a 15 percent impairment based on the Guides, 4th Ed., which was in effect at the time Mr. Ammons reached maximum medical improvement. Dr. Gaw gave a second deposition in which he testified that Mr. Ammons would have a 25 percent physical impairment under the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment. (Tenn. Code Ann. _ 5-6-241 permits the use of either publication without expressing a preference.) In addition to the physical limitations, Dr. John J. Griffin, a psychiatrist, diagnosed Mr. Ammons with post-traumatic stress disorder and dysthymic disorder (depression) with symptoms of anxiety as a result of the accident. He testified, by deposition that Mr. Ammons has Class III or moderate impairment under the Guides, 5th Ed. Dr. Griffin characterized Class III moderate impairment as compatible with some but not all-useful functioning. What I would say in terms of his _ his real life is that psychiatrically he can do many of the things that he needs to, but not all of them. He wears out easier from an emotionally, not just the physical standpoint. He doesn't have the patience that he did before because he gets depressed. He can't persist at some things as well as he could before. Because he's anxious, he's likely to avoid or withdraw from certain kinds of social activities that he would have eagerly looked forward to before and would have insisted on doing. Nicholas Sieveking, Ph.D., clinical psychologist, testified in open court as a vocational expert that Mr. Ammons was "86 percent occupationally disabled, 92 percent occupationally disabled in his own category, and 1 percent occupationally disabled from his job." Both Mr. Ammons and his wife, Donna Ammons also testified that the accident had severely impacted his activities at home and at work. The trial court determined that Mr. Ammons sustained a permanent partial disability of 92 percent to the body as a whole. 2 ****** Document Outline ****** * Page_1 o a1 o a3 o Text5 o a4 o a5 o a6 o a7 o a8 o Text24 o Text12 o a_Opinion_Summary o a1 o a11 o a12 * Page_2 * Page_3 * Page_4 * Page_5 * Page_6

State of Tennessee v. Jarret A. Guy
M2002-02473-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Jarret A. Guy, was convicted of facilitation of first degree premeditated murder, felony murder, and robbery. The trial court merged the facilitation of premeditated first degree murder conviction into the conviction for felony murder and, after finding the existence of five aggravating circumstances, the jury imposed a sentence of life without the possibility of parole. The trial court imposed a concurrent sentence of fifteen years for the robbery conviction. In this appeal, the defendant asserts that (1) the evidence is insufficient to support his convictions; (2) the trial court included erroneous definitions of "knowing" and "intentional" in its instructions to the jury; (3) the trial court erred by severing his trial from that of his co-defendant, Jacob Edward Campbell; (4) the sentence is excessive; and (5) the cumulative effect of the errors at trial require reversal. The judgments of the trial court are affirmed.

Edwin Earl Sanborn v. Carlotta Joan Sanborn
M2003-00418-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Marietta M. Shipley

After twenty-five years of marriage, Father filed for divorce asserting irreconcilable differences and inappropriate marital conduct due to Mother's alleged prescription drug abuse. Father requested that he be the primary residential parent of the parties' two minor children. Mother filed an answer and counterclaim also requesting to be the primary residential parent. The trial court granted Father the divorce but designated Mother as the primary residential parent. Father appealed, asserting that the trial court erred in designating Mother as the primary residential parent and in setting the residential schedule. We affirm.

State of Tennessee v. James D. Rowland
M2003-00878-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge James K. Clayton, Jr.

This appeal involves review of a certified question of law following the Defendant, James D. Rowland's, guilty plea to DUI. See Tenn. R. Crim. P. 37(b)(2)(1). Because we find that the certified question is not dispositive, we are without jurisdiction to entertain the appeal. Accordingly, the appeal is dismissed.

State of Tennessee v. Jama Elaine Penley
E2003-00820-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James E. Beckner

The appellant, Jama Elaine Penley, was convicted by a Greene County jury of facilitation of first degree premeditated murder, a Class A felony. Following a sentencing hearing, the trial court sentenced the appellant as a Range I standard offender to twenty-five years in the Tennessee Department of Correction. On appeal, the appellant challenges the denial of her motion for judgment of acquittal and the sentence imposed by the trial court. Upon review of the record and the parties' briefs, we remand to correct a clerical error in the judgment but otherwise affirm the judgment of the trial court.

Patrick D. Paris v. State of Tennessee
E2003-01930-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stephen M. Bevil

The petitioner, Patrick D. Paris, appeals the denial of his post-conviction relief petition relating to his convictions for attempted first degree murder and especially aggravated robbery. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel at trial; and (2) the trial court erred in failing to charge attempted voluntary manslaughter as a lesser-included offense of attempted first degree murder. We affirm the judgment of the post-conviction court.

State of Tennessee v. Stanley Ray Davis in re: Ray D. Driver, d/b/a Driver Bail Bonds - Dissenting
E2003-00765-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge E. Shayne Sexton

I agree that Tennessee Code Annotated section 40-11-130 governs the issue of the duration of Driver Bail Bonds' obligation. The current statute, passed in 1996, permits the trial court to extend the liability of the surety on a bail bond for the length of a sentence of probation by providing in a written order that the current bond is sufficient. In this case, the General Sessions Court noted on the judgment form that the defendant and surety were to remain liable under the original bond. Thus, Driver remained obligated under the terms of the original bond to secure the defendant's appearance at the March 11, 2002, hearing.

State of Tennessee v. Stanley Ray Davis In Re: Ray D. Driver, d/b/a Driver Bail Bonds
E2003-00765-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge E. Shayne Sexton

Ray D. Driver appeals the Campbell County Criminal Court’s judgment requiring his bail bonding company, Driver Bail Bonds, to pay $570.50 as a bond forfeiture because Stanley Ray Davis failed to appear at a general sessions court probation hearing. The appellant contends that T.C.A. § 40-11-138(b) relieved his company from liability under the bond because the defendant already had pled guilty and been sentenced. He also claims that his company is not liable for the defendant’s fine and costs because his company did not assume such obligations in the defendant’s bond. We hold that appellant remained obligated under the bond and that the trial court did not require him to pay the defendant’s fine and costs. The trial court is affirmed.

Michael D. Hughes v. State of Tennessee
M2003-00819-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Cheryl A. Blackburn

On November 30, 1992, the petitioner, Michael Douglas Hughes, entered a plea of no contest to one (1) count of aggravated rape and a plea of guilty to ten (10) counts of aggravated rape. He received an effective eighty-year sentence after a sentencing hearing. The petitioner’s sentence was affirmed in a delayed appeal. See State v. Michael Douglas Hughes, No. 01C01-9701-CR-00021, 1998 WL 301730, at *1 (Tenn. Crim. App. at Nashville, June 10, 1998), perm. to appeal denied (Tenn. Feb. 22, 1999). The petitioner sought post-conviction relief on various grounds. After the trial court denied the petition as untimely, the petitioner appealed. This Court reversed the trial court’s dismissal of the petition and remanded for an evidentiary hearing. See Hughes v. State, 77 S.W.3d 801 (Tenn. Crim. App. 2001). On remand, the trial court denied the petition after an evidentiary hearing. The petitioner then presented this appeal, arguing that the trial court erred finding that the petitioner received the effective assistance of counsel and that his guilty plea was knowingly and voluntarily entered. We affirm the dismissal of the petition.

Don Wesley McMillen v. State of Tennessee
M2003-00879-CCA-R3-PC
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge John W. Rollins

The petitioner, Don Wesley McMillen, entered a plea of guilty to two (2) counts of attempted rape of a child in May of 1998. In exchange for the guilty pleas, the petitioner received concurrent, seventeen-year sentences at 35% as a Range II Offender. The petitioner timely filed a petition for post-conviction relief arguing that he received ineffective assistance of counsel and that his guilty plea was not knowing or voluntary because the trial court violated the provisions of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). The trial court denied the petition following an evidentiary hearing and this appeal followed. We affirm the dismissal of the post-conviction petition.

Ronald L. Johnson v. Flora Holland, Warden
M2003-01992-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner, Ronald L. Johnson, appeals as of right from the Davidson County Criminal Court's summary dismissal of his petition for writ of habeas corpus. He argues that his convictions for two counts of passing worthless checks are void because they were not ordered to be served consecutively to a sentence from which he had been paroled at the time of the check offenses, his parole subsequently being revoked. The habeas corpus court dismissed his petition without a hearing, and we affirm that action.

State of Tennessee v. Roxanne R. Vance
M2003-01748-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Following a bench trial, the defendant, Roxanne R. Vance, was convicted of DUI per se, a Class A misdemeanor, and was sentenced to eleven months, twenty-nine days, all suspended except seven days with the balance to be served on probation. In addition, her driver's license was suspended for one year and she was ordered to pay a fine of $350 and attend alcohol and drug safety school. On appeal, she argues that the trial court erred in finding that her breath alcohol test results created an irrebuttable presumption of DUI per se and that the evidence was insufficient to support her conviction. Based upon our review, we affirm the judgment of the trial court.

Patrick E. Simpson v. State of Tennessee
M2003-01750-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Patrick E. Simpson, pled guilty to two counts of aggravated assault and was sentenced to concurrent terms of three years to be served consecutively to his parole violation. He appeals the summary dismissal of his petition for habeas corpus relief, arguing that the trial court failed to enforce his guilty plea agreement and that his sentence has expired. Following our review, we affirm the dismissal of the petition.

Allie Jane Collins, and husband, Cle Collins, v. Dana Edwards, M.D. and Robert Hunt, M.D.
E2003-01508-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Kindall T. Lawson

The trial judge dismissed this medical malpractice action on the ground that the statute of limitations had run. On appeal, we vacate and remand.

State of Tennesseev. Ira Ishmael Muhammed, alias Ira Ishamel Muhammed
E2003-01629-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Stephen M. Bevil

The defendant, Ira Ishmael Muhammed, was convicted of attempted second degree murder, a Class B felony; two counts of aggravated assault, Class C felonies; attempted voluntary manslaughter, a Class D felony; and felony reckless endangerment which the trial court, acting as thirteenth juror, dismissed at the sentencing hearing. He was sentenced as a Range I, standard offender to twelve years for the attempted second degree murder conviction, six years for each aggravated assault conviction, and four years for the attempted voluntary manslaughter conviction, with the sentences to be served consecutively, for an effective sentence of twenty-eight years. On appeal, the defendant argues: (1) the trial court erred in admitting an audiotape of telephone conversations between him and his ex-wife, one of the victims; (2) the trial court erred in not suppressing an audiotape of statements he made shortly after being shot; (3) the trial court erred in imposing consecutive sentencing; and (4) the application of consecutive sentencing is unconstitutional. Following our review, we affirm the judgments of the trial court.

In the Matter of: K.G., et al.
W2003-00809-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Charles V. Moore, Jr.

Mother appeals the trial court’s order terminating parental rights and decree of guardianship. We affirm and vacate, in part.
 

Henry Rankins v. State of Tennessee
W2003-01749-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: J. C. McLin

The Petitioner, Henry Rankins, filed a petition for post-conviction relief based on the Post- Conviction DNA Analysis Act. The trial court denied relief and Petitioner now seeks review of the lower court’s decision. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the petition fails to satisfy the criteria of the Post-Conviction DNA Analysis Act. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Timothy Earl Waters, pro se v. State of Tennessee
W2003-02460-CCA-R3-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carolyn Wade Blackett

The Petitioner, Timothy Earl Waters, appeals the trial court's summary dismissal of his petition for common law writ of certiorari seeking relief from a post-conviction judgment. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Finding that the lower court properly dismissed the petition, theState's motion is granted and the judgment of the trial court is affirmed.

Donna S. Young v. Fred C. Hartley, M.D., et al
E2002-02925-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Thomas J. Seeley, Jr.

Donna S. Young ("Plaintiff") sued Fred C. Hartley, M.D. ("Defendant") claiming that during a tubal ligation, defendant negligently performed additional surgeries upon plaintiff's vaginal area without her consent and that those extra surgeries caused plaintiff to suffer physical and emotional damage. After trial, the jury returned a verdict in defendant's favor. Plaintiff appeals raising, among other things, several questions regarding the admission of evidence at trial. We affirm.

State of Tennessee v. James Allen Bates
E2003-01475-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Phyllis H. Miller

A jury convicted the Defendant, James A. Bates, of two counts of especially aggravated kidnapping, three counts of assault (which the trial court merged into a single count), one count of possession of a firearm by a convicted felon, one count of felony evading arrest, and one count of possession of marijuana. The trial court subsequently sentenced the defendant on the especially aggravated kidnapping convictions as a Range II, multiple offender to an effective term of thirty-eight years in the Department of Correction. The defendant now appeals, challenging the sufficiency of the evidence supporting his convictions of especially aggravated kidnapping and the trial court's decision to sentence him as a Range II, multiple offender on those offenses. We affirm the judgments of the trial court.

Arthur McRae et al., v. Knox County, et al.
E2003-01990-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Dale C. Workman

This is a zoning dispute involving billboards. Its posture is not traditional because the Board of Zoning Appeals and the owner of the billboards are in agreement. The Board granted the owner two variance from a zoning ordinance; this action was challenged by the Appellees who claimed that the erection of the billboards adversely affected the value, use, and enjoyment of their property, which vested them with a special interest and entitlement to file a petition for certiorari for a judicial review of the Board's action. The Writ was granted, and a hearing resulted in a finding that the action of the Board of Zoning Appeals was unlawful and capricious.