The petitioner appeals the denial of post-conviction relief on his second degree murder conviction, arguing that the post-conviction court erred in finding that he had effective assistance of trial counsel. Following his entry of a plea of guilty to second degree murder, the petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel. Specifically, he alleged that trial counsel was ineffective for failing to thoroughly investigate and prepare his case, and that were it not for the deficiencies in counsel's representation, he would not have entered his plea of guilty. At the conclusion of an evidentiary hearing, the post-conviction court dismissed the petition, finding that the petitioner had failed to offer any proof to support his allegations. After a careful review, we affirm the judgment of the post-conviction court.
Knox
Court of Criminal Appeals
State of Tennessee v. Patrick Kossow M2000-01871-CCA-R3-CD
Authoring Judge: Judge L. Terry Lafferty
Trial Court Judge: Judge Charles D. Haston, Sr.
Defendant entered pleas of guilty to the rape of a child in Counts 1, 6, and 7 of the indictment and in Count 3, a plea of guilty to aggravated sexual battery. At the conclusion of a sentencing hearing, the trial court imposed sentences of 24 years for each count of rape of a child and 12 years for the offense of aggravated sexual battery. The trial court ordered that the sentences be served consecutively, resulting in a sentence of 84 years. On direct appeal, Defendant asserts that the trial court erred in imposing an inappropriate sentence on each count and erred in imposing consecutive sentencing on all charges. After a review of the record, we affirm the trial court's judgment.
A Marshall County grand jury indicted the petitioner on two counts of aggravated burglary, two counts of theft, and one count of evading arrest. On October 29, 1997, the petitioner entered an open plea of guilt, reserving the determination of the length and manner of sentencing for the trial court. Following a sentencing hearing, the trial court sentenced the petitioner to a total of thirty-four years as a Range III persistent offender. In making its sentencing determination, the trial court ran several of the offenses consecutively. On direct appeal, the petitioner challenged his sentence as excessive. State v. Hayes, No. 01C01-9804-CC-00176, 1999 WL 126650 at *1 (Tenn. Crim. App. at Nashville, March 11, 1999). Finding that the record supported the trial court’s sentence determination, this Court affirmed the trial court’s judgment. Id. at *2. The petitioner then unsuccessfully applied for permission to appeal the trial court’s sentence determination to the Tennessee Supreme Court. Thereafter, the petitioner filed a pro se petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that the trial court judge who imposed his sentence should have recused himself due to his personal knowledge of the facts of and victims in the case. The court appointed counsel for the petitioner, and the petitioner’s newly appointed counsel then filed an amendment to the earlier petition, alleging ineffective assistance of counsel by both trial and appellate counsel. The trial court conducted an evidentiary hearing on the petition and dismissed the petition for post-conviction relief. The petitioner now appeals the trial court’s dismissal of his petition, alleging that he received both ineffective assistance of trial and appellate counsel and that the trial judge erred in denying his motion for recusal. After the reviewing the record and applicable case law, we find these issues to be without merit and therefore affirm the trial court’s denial of the petition for post-conviction relief.
The appellant, Kelly A. Hancock appeals as a matter of right from her conviction for driving under the influence. She contends the evidence is insufficient to support the jury's verdict of guilt. After a review of the evidence we affirm the conviction pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.
The State of Tennessee has applied to this court for permission to pursue an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 10. In its application, the State complains that because the grand jury had yet to take action to charge the respondents in connection with a homicide, the Greene County Circuit Court was not empowered to conduct pretrial conferences, to enter pretrial orders, to set a trial date, or to order the state to file its notice of intent to seek the death penalty or life without possibility of parole. We grant the Rule 10 appeal and generally vacate the lower court's pretrial conference orders.
Greene
Court of Criminal Appeals
William Martin vs. Douglas Sizemore, et al M1997-00203-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a disciplinary proceeding against a licensed architect. Following a lengthy hearing, the Tennessee Board of Examiners for Architects and Engineers concluded that the architect had engaged in misconduct in the practice of architecture in connection with four projects and suspended his certificate of registration for three years. The architect appealed the Board's decision to the Chancery Court for Davidson County. The trial court reversed the Board's decision after determining that the decision was not supported by substantial and material evidence. On this appeal, the Board asserts that its suspension of the architect's certificate of registration has adequate evidentiary support. The architect renews his argument that the Board's proceedings violated his procedural due process rights because the attorney who prosecuted the State's case against him also served as the Board's lawyer in other matters. Except for a portion of the charges involving one project, we concur with the trial court's conclusion that the Board's decision lacked evidentiary support because the State failed to present expert testimony regarding the applicable standard of care. We have also determined that the architect has not carried his burden of demonstrating that the Board was actually biased against him because the lawyer who prosecuted the State's case also provided other, unrelated legal services to the Board. Accordingly, we affirm the trial court's judgment as modified herein and remand the case to the Board for further proceedings.
Davidson
Court of Appeals
Brenda King vs. Danny King, D.V.M. M1999-02556-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Marietta M. Shipley
This is a divorce case. The parties divorced after 31 years of marriage. The trial court granted the wife a divorce on the grounds of inappropriate marital conduct. The wife was awarded alimony in futuro in the amount of $6000 per month for two years. After two years, the wife would receive $4500 per month and, upon remarriage, the amount of alimony in futuro would decrease to $2000 per month. The trial court also ordered the husband to pay $10,000 of the wife's attorney's fees. Both parties appeal; the wife appeals the division of marital property and the husband appeals the award of alimony. We affirm in part, modify in part, and reverse in part, affirming the award of alimony in futuro, modifying the amount of alimony and eliminating the award of alimony in futuro after the wife's remarriage.
Davidson
Court of Appeals
State vs. Robert Derrick Johnson M1998-00546-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: William Charles Lee
Bedford
Supreme Court
State vs. Robert Derrick Johnson M1998-00546-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: William Charles Lee
The Appellant, Quentin Lewis, appeals from the dismissal of his petition for post-conviction relief following an evidentiary hearing in the Shelby County Criminal Court. In his petition, Lewis collaterally attacks his conviction for aggravated robbery upon grounds that his trial counsel was ineffective. After review of this issue on appeal, the judgment of the post-conviction court is affirmed.
The Appellant, Michael A. Foster, was indicted by a Shelby County Grand Jury for possession of cocaine in excess of .5 gram, a class B felony. Under the terms of a plea agreement, Foster pled guilty to criminal attempt to possess cocaine less than .5 gram, a class D felony. The plea agreement further provided that Foster would receive a sentence of two years with the manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the trial court ordered that Foster's two-year sentence be served in confinement in the Shelby County Correction Center. On appeal, Foster argues that the trial court erred in denying an alternative sentence. Finding no error, we affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
E2001-00228-COA-R3-CV E2001-00228-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Telford E. Forgerty, Jr.
Cocke
Court of Appeals
E2001-01163-COA-R3-JV E2001-01163-COA-R3-JV
Authoring Judge: Presiding Judge Herschel P. Franks
Roane
Court of Appeals
Mohamed Ali, M.D., vs. Fredia Moore and Danny Story E2000-02534-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas J. Seeley, Jr.
The Trial Court held the statute of limitations had run on plaintiff's Complaint. On appeal, we dismiss the appeal as not being timely filed.
Washington
Court of Appeals
Ronald Davis vs. The Tennessean, et al M1999-01602-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Barbara N. Haynes
The plaintiff filed a libel action against a newspaper, The Tennessean, its publisher and its editor, alleging his reputation had been harmed by a sentence in an article which stated that he had shot a man, when, in fact, his co-defendant had killed the victim. The trial court granted the defendants' motion to dismiss, finding the plaintiff to be "libel proof" in this matter because he had been convicted of aiding and abetting in the murder and incarcerated for the remainder of his life for the crime, "render[ing] any reputation he may have had virtually valueless." We affirm.
Davidson
Court of Appeals
Kimberly Caudill vs. William Howard Foley M2000-01512-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Russell Heldman
This appeal arises from an action seeking attorney's fees from a previous child custody action. After divorce, Mother was awarded custody of Child. Upon remarrying, Mother sought to move to Florida with Child. Father protested and sought primary custody of Child. Judge, finding the child relocation statutes unconstitutional, awarded Father custody. Mother hired Lawyer for an appeal of this ruling. While this appeal was pending, Father brought suit for child support. Lawyer sought recusal of Judge due to previous contact between them when Judge was an attorney. Judge refused to recuse himself and disqualified Lawyer. This action was appealed. While this appeal was pending, the child custody appeal was decided by this court and Child was returned to Mother's custody. Mother brought action in the trial court seeking fees from this first trial and appeal which Judge denied. Mother appealed this denial, with the result that the failure of Judge to recuse, the disqualification of Lawyer and the attorney's fees appeals were consolidated before this court. We affirm in part and reverse in part.
Williamson
Court of Appeals
Robert LeeGrand v. Trinity Universal Insurance W2000-02664-SC-WCM-CV
Trial Court Judge: Joe C. Morris
The appellant presents the following issues for review: (1) Whether the trial court erred in ruling that the plaintiff did not sustain an injury that arose out of his employment; (2) whether the trial court erred in ruling that the plaintiff received no permanent disability from his injuries; (3) whether the trial court erred in failing to make a specific finding as to the benefit rate, and (4) whether the trial court erred in failing to award plaintiff discretionary costs. Although we hold that the plaintiff's injury arose out of the plaintiff's employment, we affirm the trial court's conclusion that the plaintiff received no permanent disability from his injury.
Madison
Court of Appeals
Deborah Warren vs. James Ferguson W2000-02027-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: James H. Bradberry
This appeal involves a complaint to establish parentage and set child support. The court below ordered genetic testing, which proved that James R. Ferguson is the natural father of the children at issue. The court also entered a judgment of $8,623.00 for retroactive child support, $280.00 for the cost of genetic testing, and the court reserved the issue of current support until Mr. Ferguson is released from prison. We vacate the trial court's final order based on our conclusion that the trial court erred in failing to rule on Mr. Ferguson's Motion for the Appointment of Counsel, or alternatively, his request that the matter be held in abeyance until he is released from incarceration.
The state appeals the trial court's dismissal of its prosecution of the defendant, Mark A. Shultz, for driving under the influence of an intoxicant (DUI). It contends that the trial court's conclusion that the case had been left unresolved too long could not lawfully justify dismissal. We reverse the trial court and remand the case for further proceedings.
The defendant, Darrell Presnell, who was indicted for especially aggravated robbery, was convicted of the lesser included offense of aggravated robbery. The trial court imposed a sentence of ten years. In this appeal of right, the defendant contends that (1) there was a fatal variance between the presentment and the proof at trial; (2) the trial court erred by instructing the jury on aggravated robbery as a lesser included offense; and (3) the trial court erred by not instructing the jury on the lesser included offense of robbery. Because the trial court failed to instruct on the lesser offense of robbery, the judgment must be reversed and the case must be remanded for a new trial.
Cocke
Court of Criminal Appeals
Bridgestone/Firestone, Inc. v. Phillip Goins M2000-01379-WC-R3-CV
Authoring Judge: Ben H.Cantrell, Sp. J.
Trial Court Judge: Walter C. Kurtz, Judge
In this case, the employer contends the trial court erred in (1) finding that the gradual aggravation of a claimant's pre-existing arthritic condition over the course of twenty-one years is a compensable accident under the Workers' Compensation Act and (2) assessing a 75% vocational disability for an injury not wholly attributable to employment. As discussed below, the panel has concluded that the judgment of the trial court should be affirmed on both issues.
Davidson
Workers Compensation Panel
Ronnie Wayne Inman v. Emerson Electric Co. W1999-02245-WC-R3-CV
Authoring Judge: Don R. Ash, Sp. J.
Trial Court Judge: George R. Ellis, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found the plaintiff sustained a twenty-five percent permanent partial disability to the body as a whole. The defendant disputes the finding. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. DON R. ASH, SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SP. J., joined. P. Allen Phillips and Jennifer K. Craig, Jackson, Tennessee, for the appellant, Emerson Electric Co. John C. Nowell, Jr., Trenton, Tennessee, for the appellee, Ronnie Wayne Inman. MEMORANDUM OPINION History Plaintiff, Ronnie Wayne Inman, filed a Complaint for workers' compensation benefits on April 25, 1997. The trial was heard on August 17, 1999. At the conclusion of the proof the trial court awarded plaintiff 25% permanent partial disability to the body as a whole. Defendant, Emerson Electric Co., appeals the decision of the trial court. For the reasons discussed below, we affirm. Facts On or around May 18, 1996, plaintiff was struck on the back, buttocks and right arm by hot aluminum, which shot from a machine at defendant's plant. The plaintiff was taken to the emergency room at Humboldt General Hospital. His wounds were dressed and treated and he was sent home with oral medication. Theplaintiffreturnedto work thenext day, but was unable to work. Later in the week, plaintiff was transferred to a cooler part of the plant. At his new job the plaintiff had no trouble keeping up with his production quota. Moreover, other than doctor appointments, the plaintiff did not miss work before the trial. Dr. William Hickerson, a plastic surgeon, first examined the plaintiff on February 4, 1997 for scar tissue on his back. At the examination, the plaintiff complained of occasional shooting pain in the area of the scar tissue. Dr. Hickerson diagnosed scar tissue and recommended a re- moisturizing agent. Upon re-examination, Inman was found to have little change to his condition. Dr. Hickerson opined the scar tissue was not such that it would be rated under the AMA Guidelines. He did not place any restrictions based upon the scarring of the skin. Next, Dr. Hickerson recommended that Dr. Cobb, an orthopedic surgeon, examine the plaintiff. Dr. Cobb noted that the problems might be musculoskeletal in nature. He also found the plaintiff had more tenderness with deeper palpation and there could be a mild lumbar strain. Dr. Cobb opined there was no sign of permanent impairment from an orthopedic standpoint and there were no restrictions from an orthopedic standpoint. Next, Dr. Goshorn, a plastic surgeon, examined the plaintiff. Dr. Goshorn's opinion was presented to the trial court through a letter marked as an exhibit to Dr. Schnapp's deposition. Dr. Goshorn opined that the plaintiff had chronic pain secondary to a deep thermal injury. He further stated that the plaintiff had no functional impairment to the area, although he had impairment secondary to pain. Next, Dr. Schnapp, a physician who specializes in pain management, examined the plaintiff. Upon his examination plaintiff described an aching and throbbing pain, which was sensitive, particularly when he was hot and perspired. Dr. Schnapp opined that a significant portion of the plaintiff's pain was mechanical pain related to bones, joints, and ligaments. Further, he did not believe that the plaintiff should be following any restrictions due to the burn injury and that his primary pain was deeper and unrelated to the burn. Finally, Dr. DeMere examined the plaintiff and diagnosed healed scars of arms and back. Dr. DeMere was unable to find any other injury apart from the skin damage. He opined a 1% permanent partial impairment rating to the body as a whole. However, he stated that the AMA Guidelines were not particularly helpful in arriving at the impairment rating. -2-
Wayne
Workers Compensation Panel
Wayne Wood, Meadowbrook Insurance & Association Self Insurance Services, Inc. v. Sammy Benson M2001-00107-WC-R3-CV
Authoring Judge: Frank G. Clement, Jr., Sp.J.
Trial Court Judge: Jeffrey S. Bivins, Judge
The issue on appeal is whether the trial court erroneously granted a partial lump sum commutation of permanent total disability benefits. This panel has concluded that the judgment of the trial court should be affirmed as modified.
Wayne
Workers Compensation Panel
Donnie Sartain v. Eldeco, Inc., et al M2000-02634-WC-R3-CV
Authoring Judge: Ben H. Cantrell, Sp. J.
Trial Court Judge: Jeffrey F. Stewart, Chancellor
In this case, the employer contends the trial court erred in awarding permanent partial disability in the amount of 75% to the body as a whole and in allowing vocational expert testimony amounting to a legal conclusion. As discussed herein, the panel has concluded that the judgment of the trial court should be affirmed.
