State of Tennessee v. John Traion Davis - Dissenting
W2015-00275-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Joe H. Walker, III

Reluctantly and respectfully, I dissent from the majority opinion in this case. The Tennessee Rule of Criminal Procedure 36.1 movant in this case stated a colorable claim to relief, and based upon the current wording of the rule, that is all that is required. See Tenn. R. Crim. P. 36.1(b).

Lauderdale Court of Criminal Appeals

In re Analilia R.
E2015-00479-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Janice Hope Snider

This appeal concerns the termination of a father’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Hamblen County (“the Juvenile Court”) seeking to terminate the parental rights of Luis M. (“Father”) to the minor child Analilia R. (“the Child”). After a trial, the Juvenile Court found that clear and convincing evidence established the ground of persistent conditions against Father, and that the evidence was clear and convincing that termination of Father’s parental rights was in the Child’s best interest. Father appeals, arguing DCS failed to meet its burden of proof on the ground of persistent conditions. DCS raises its own issue of whether the Juvenile Court erred in failing to find the ground of substantial noncompliance with the permanency plan. We affirm the judgment of the Juvenile Court in its entirety.

Hamblen Court of Appeals

Stephen Leon Kelley v. Kenneth D. Varner et al.
E2015-00165-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Pamela A. Fleenor

Stephen Leon Kelley (“Plaintiff”) filed suit seeking, among other things, to have the 1958 divorce decree of Mary Joyce Long Kelley v. Joseph Gordon Kelley, Jr. (“the Divorce Decree”) set aside so that Plaintiff could be declared one of only two heirs at law of Mary Joyce Long Kelley (“Deceased”) entitled to inherit by intestacy. The Chancery Court for Hamilton County (“the Trial Court”) dismissed Plaintiff’s suit pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted, among other things. Plaintiff appeals to this Court. We find and hold that Plaintiff’s collateral attack upon the Divorce Decree cannot be sustained because the Divorce Decree is not void upon its face. We, therefore, affirm the Trial Court’s order dismissing Plaintiff’s suit.

Hamilton Court of Appeals

Santos Castillo Mechado v. State of Tennessee
M2015-00522-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Mark J. Fishburn

The Petitioner, Santos Castillo Mechado, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2013 convictions for kidnapping and attempted aggravated robbery.  The Petitioner contends that he received the ineffective assistance of counsel.  We affirm the judgment of the post-conviction court.

Davidson Court of Criminal Appeals

Daniel Wade Wilson v. Randy Lee, Warden
E2015-00791-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stacy L. Street

Petitioner, Daniel Wade Wilson, appeals the summary dismissal of his petition for a writ of habeas corpus. Petitioner alleges that his conviction for felony murder is void because the trial court violated the law of the case doctrine by merging the conviction for second degree murder into the conviction for felony murder in direct contravention of this Court’s directions upon remand of Petitioner’s direct appeal. Petitioner also alleges that his conviction for felony murder violates the constitutional protection against double jeopardy because he was already serving a sentence for the second degree murder conviction before he was retried for felony murder. Upon our review of the record, we find that the trial court did not violate the law of the case doctrine and that Petitioner has failed to provide an adequate record for review of his double jeopardy claim. Therefore, we affirm the judgment of the habeas corpus court.

Johnson Court of Criminal Appeals

State of Tennessee v. William Earl Starks
W2015-00743-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr
Trial Court Judge: Judge Joseph H. Walker

The defendant, William Earl Starks, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence. Discerning no error, we affirm.

Tipton Court of Criminal Appeals

Akilah Louise Wofford, et al. v. M.J. Edwards & Sons Funeral Home Inc., et al.
W2015-00092-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Jim Kyle

This appeal concerns the enforceability of an agreement to arbitrate a dispute between a consumer and funeral home. The trial court refused to compel arbitration, finding no meeting of the minds as to the arbitration agreement. On appeal, the funeral home argues that this Court should consider not only the signed agreement, but also another document allegedly incorporated by reference into the parties‘ contract in compelling arbitration. We hold: (1) the additional document providing details regarding arbitration was not incorporated by reference into the parties‘ contract; and (2) the arbitration provision actually contained in the parties‘ contract is unenforceable because it is beyond the expectations of an ordinary person. Affirmed and remanded.

Shelby Court of Appeals

State of Tennessee v. Mario Norfleet and Terence Mitchell
W2014-00780-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris Craft

A Shelby County jury convicted Mario Norfleet and Terence Mitchell of theft of property valued at more than $60,000. The trial court sentenced Defendant Norfleet, as a career offender, to serve thirty years in the Tennessee Department of Correction. The trial court sentenced Defendant Mitchell, as a standard offender, to eight years suspended to ten years of probation after the service of ten months and twelve days in jail. On appeal, Defendant Norfleet asserts that: (1) the State made improper statements during closing argument to the jury; (2) there is a variance between the indictment and the evidence presented at trial; (3) the trial court failed to properly instruct the jury on the lesser-included offense of attempted theft; and (4) the trial court improperly sentenced Defendant Norfleet as a career offender. Defendant Mitchell also challenges the prosecutor's statements made during closing argument as improper, but additionally asserts that: (1) the evidence is insufficient to sustain his conviction; (2) the trial court improperly admitted testimony from a witness that referenced his gang affiliation; (3) the trial court improperly ordered restitution; and (3) the cumulative effect of these errors deprived him of a fair trial. After a thorough review of the record and applicable law, we affirm the trial court's judgments but remand for the entry of a corrected judgment pertaining to Defendant Mitchell's order of restitution.

Shelby Court of Criminal Appeals

Jerry Kevin Duke v. State of Tennessee
M2014-01673-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Mark J. Fishburn

The petitioner, Jerry Kevin Duke, appeals the denial of his petition for writ of error coram nobis, arguing that the statute of limitations should be tolled based on newly discovered evidence of new medical evidence and withheld exculpatory evidence of the child rape victim’s inconsistent statements.  The petitioner further argues that the newly discovered evidence may have resulted in a different verdict had it been presented at trial.  Following our review, we affirm the judgment of the coram nobis court denying the petition.

Davidson Court of Criminal Appeals

State of Tennessee v. Eugene Bernard Cuddy, III
E2014-01724-CCA-R3-CD
Authoring Judge: Judge Thomas t. Woodall
Trial Court Judge: Judge R. Jerry Beck

Defendant, Eugene Bernard Cuddy, III, was indicted in a three-count indictment by the Sullivan County Grand Jury for possession of Oxycodone, a Schedule II controlled substance, with intent to sell or deliver, possession of drug paraphernalia, and possession of Alprazolam, a Schedule IV controlled substance, with intent to sell or deliver. Defendant filed a motion to suppress evidence seized during a search of Defendant's person. Following a hearing, the trial court denied Defendant's motion to suppress. Defendant was convicted as charged. The trial court sentenced Defendant to an effective sentence of seven years' incarceration. In this appeal as of right, Defendant contends that: 1) the trial court erred by denying Defendant's motion to suppress; 2) the evidence is insufficient to sustain his convictions; 3) the trial court erred by instructing the jury that it could infer Defendant's intent from the amount of controlled substances Defendant possessed; and 4) the trial court abused its discretion in sentencing Defendant. Having reviewed the entire record and the briefs of the parties, we find no error. Accordingly, the judgments of the trial court are affirmed.

Sullivan Court of Criminal Appeals

Fredrick Sledge v. Tennessee Department of Correction, et al
M2014-02564-COA-R3-CV
Authoring Judge: Chief Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Fredrick Sledge (Petitioner), an inmate in the custody of the Tennessee Department of Correction (TDOC), challenges TDOC’s calculation of his release eligibility date. The chancery court (the trial court) granted TDOC summary judgment, finding that “the undisputed facts and law establish [Petitioner’s] sentence has been correctly calculated.” Because the criminal court’s order sentencing Petitioner awarded him 3,521 days of pretrial jail credit, while TDOC’s calculation of his release eligibility was based upon only 516 days of credit, there is a genuine issue of material fact regarding the correct calculation of his release eligibility date. We vacate the trial court’s summary judgment and remand for further proceedings.
 

Davidson Court of Appeals

Metropolitan Development and Housing Agency v. Howard Allen, Jr.
M2015-00079-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amanda Jane McClendon

A former tenant of Metropolitan Development and Housing Agency (“MDHA”) appeals the decision of the circuit court dismissing the case for failure to prosecute pursuant to Tenn. R. Civ. P. 41.02(1). We have concluded that the trial court erred in dismissing the case for failure to prosecute. The order is reversed and the matter is remanded to the trial court for further proceedings.

Davidson Court of Appeals

Metropolitan Development and Housing Agency v. Howard Allen, Jr. -Dissent
M2015-00079-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Amanda Jane McClendon

I agree with the majority’s conclusion that the circumstances in this case do not warrant dismissal for failure to prosecute. However, because I find other grounds for dismissal from the record, I respectfully dissent. See Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986). (stating Court of Appeals may affirm a judgment on a different ground than that relied upon by the trial court when the correct result was reached). 

Davidson Court of Appeals

Eva L. Hines v. Terence J. Hines
M2014-01836-COA-R3-CV
Authoring Judge: Chief Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Royce Taylor

This is a divorce case. Eva L. Hines (Wife) filed a complaint for divorce from Terence J. Hines (Husband) while he was incarcerated in Arkansas. Husband was released from prison several days before the scheduled date of trial. Before and after his release, Husband asked that the case be continued so he could secure an attorney. On the original trial date, the court granted Husband’s request and continued the case for two weeks. On the morning of the rescheduled trial date, Husband called and advised the court that he would be late; in response, he was told that trial would begin as scheduled. Husband did not appear at the courthouse in time for the trial. The trial proceeded in his absence, and the court entered a final divorce decree. Husband filed a Tenn. R. Civ. P. 60.02 motion requesting that the court set aside the final decree, which he says substantively amounts to a default judgment. He seeks a new trial. The court denied his motion. Husband appeals. We affirm the trial court’s judgment denying his Rule 60 motion

Rutherford Court of Appeals

State of Tennessee v. Randall T. Beaty
M2014-00130-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Dee David Gay

Defendant, Randall T. Beaty, was indicted for first degree felony murder and aggravated child abuse.  After a jury trial, he was convicted of reckless homicide and aggravated assault, which were charged to the jury as lesser-included offenses.  He received consecutive sentences of four years for reckless homicide and six years for aggravated assault, for an effective ten-year sentence to be served in the Department of Correction.  On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by allowing Detective Bachman to testify in violation of the rule of sequestration; (3) that the trial court erred by excluding a proffer by Amber Peveler; (4) that the trial court erred in failing to merge his convictions on double jeopardy grounds; and (5) that the trial court erred by ordering consecutive sentencing.  As to the alleged violation of the rule of sequestration, we hold, pursuant to State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010), that the State had the rightunder Tennessee Rule of Evidence 615 to designate an investigating officer as exempt from sequestration and the designated investigating officer can remain in the courtroom during the testimony of other witnesses.  We further conclude that, because the jury was instructed that both knowing or intentional aggravated assault and reckless aggravated assault were lesser-included offenses of aggravated child abuse, but the verdict form listed only aggravated assault without specifying the mens rea with which Defendant acted, Defendant’s conviction for aggravated assault must be reversed and the case remanded for a new trial on the offense of knowing aggravated assault.  After a thorough review of the record, we determine that there was no error as to Defendant’s remaining issues and affirm the conviction for reckless homicide and the judgment in all other respects.

Sumner Court of Criminal Appeals

State of Tennessee v. Kenneth Leigh McPeak
M2015-00089-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David M. Bragg

The defendant, Kenneth Leigh McPeak, appeals the revocation of the probationary sentence imposed for his Rutherford County Circuit Court convictions of attempted rape.  Discerning no error, we affirm.

Rutherford Court of Criminal Appeals

State of Tennessee v. John Daniel Simmons
M2014-02086-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Monte D. Watkins

John Daniel Simmons (“the Defendant”) was indicted with two counts of sexual battery by an authority figure after he was alleged to have engaged in illegal sexual touching of K.L. Following a jury trial, the Defendant was convicted as charged.  On appeal, the Defendant argues that (1) the trial court erred when it permitted the State to call Daniel Burnell and Tony Pham as witnesses because the State did not give sufficient notice of its intent to call them as witnesses; (2) the trial court erred when it permitted David Estes to testify about hearsay statements made by Dewanna Williams; and (3) the evidence was insufficient to support his convictions.  Upon review of the record and applicable law, we conclude that the trial court committed reversible error when it permitted Mr. Pham to testify after allowing the Defendant only a few minutes in the middle of trial to speak with him.  Additionally, we conclude that the trial court committed reversible error when it admitted hearsay within hearsay during Mr. Estes’s testimony.  We reverse the judgments of the trial court and remand the case for a new trial. 

Davidson Court of Criminal Appeals

Khalfani Marion v. State of Tennessee
W2015-00453-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge James M. Lammey

Petitioner, Khalfani Marion, was convicted of four counts of aggravated robbery, a Class B felony, and one count of especially aggravated kidnapping, a Class A felony. After merger of the four counts of aggravated robbery into two counts of aggravated robbery, the trial court imposed consecutive sentences of twenty years for the especially aggravated kidnapping conviction and nine years for each aggravated robbery conviction. Following petitioner's unsuccessful direct appeal, he filed a petition for post-conviction relief. The post-conviction court held an evidentiary hearing and denied relief. Appealing therefrom, petitioner raises eight instances of ineffective assistance of counsel: (1) whether trial counsel reasonably investigated petitioner's case; (2) whether trial counsel erred in failing to file a motion to sever petitioner's case from his codefendants; (3) whether trial counsel erred by failing to have petitioner sentenced under the 1989 Sentencing Act as written prior to the 2005 amendments; (4) whether trial counsel failed to object to the trial court's decision not to instruct the jury on facilitation; (5) whether trial counsel erred by failing to introduce evidence of petitioner's mental health history; (6) whether trial counsel failed to advise petitioner of the State's plea offer and sentence exposure; (7) whether trial counsel failed to impeach the State's witnesses on their identification of petitioner; and (8) whether trial counsel erred in failing to present mitigating evidence at the sentencing hearing. Following our review, we affirm the judgment of the post-conviction court.

Shelby Court of Criminal Appeals

State of Tennessee v. Derron Guy
W2045-00536-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Lee V. Coffee

Appellant, Derron Guy, pleaded guilty to two counts of carjacking, one count of aggravated robbery, two counts of employing a firearm during the commission of a dangerous felony, one count of attempted carjacking, and one count of possession of a firearm with the intent to go armed during the attempt to commit a felony. Pursuant to the terms of his guilty plea, he received an effective sentence of 22.2 years in confinement. In this motion to correct an illegal sentence, filed pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, he argues that: (1) his effective sentence extends beyond that permitted by statute; (2) his plea improperly “coupled” different offender ranges within the same proceeding; and (3) the trial court's failure to sever the offenses rendered his sentence illegal. The trial court summarily dismissed the motion for appellant's failure to state a colorable claim. We affirm the judgment of the trial court.

Shelby Court of Criminal Appeals

Vaal Hall, by and through his conservator, Theresa Anne Hall, and Theresa Anne Hall, individually v. Charles L. Owens Jr., et al.
W2014-02214-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This is an appeal from a trial court’s grant of summary judgment in a negligence case. Defendant’s truck collided with Plaintiff’s car causing Plaintiff serious injuries. Plaintiff sued Defendant for injuries stemming from the accident, which he alleged was proximately caused by Defendant’s negligence. Defendant filed a motion for summary judgment. It was undisputed that the accident occurred after Plaintiff’s car entered an intersection and proceeded to turn left across a lane of oncoming traffic despite the fact that the traffic signal facing him was red. It was further undisputed that the traffic signal facing Defendant was green as he proceeded into the intersection from the opposite direction in his truck. Traffic cameras installed at the intersection captured video footage of the collision, which was admitted as evidence. Based on the video footage and other undisputed evidence, the trial court determined that no reasonable juror could conclude that Plaintiff was less than 50% at fault. Plaintiff appealed. We affirm.

Madison Court of Appeals

James Arthur Johnson v. State of Tennessee
M2015-00655-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County jury found the Petitioner, James Arthur Johnson, guilty of two counts of first degree felony murder and one count of aggravated robbery.  The trial court sentenced the Petitioner to a total effective sentence of life plus eleven years in the Tennessee Department of Correction.  On appeal, this Court affirmed the Petitioner’s convictions and sentence.  State v. James Arthur Johnson, No. M2009-01147-CCA-R3-CD, 2010 WL 3323796, at *1 (Tenn. Crim. App., at Nashville, Aug. 24, 2010), perm. app. denied (Tenn. August 24, 2010).  The Petitioner filed a petition seeking post-conviction relief based upon his allegation that he received the ineffective assistance of counsel at trial.  The post-conviction court denied the petition after a hearing.  On appeal, after a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

Davidson Court of Criminal Appeals

Antonio Lamont Scales v. State of Tennessee
M2014-01671-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Monte D. Watkins

Petitioner, Antonio Lamont Scales, was convicted in Davidson County Criminal Court for the offenses of attempted second degree murder of one victim and reckless aggravated assault of another victim.  His co-defendant at trial was convicted of the same offenses.  On appeal, Petitioner challenged the sufficiency of the evidence to sustain the convictions, the trial court’s failure to provide the “missing witness” instruction to the jury, and the sentences imposed by the trial court.  The convictions were affirmed, but the sentences were vacated and the case was remanded for resentencing.  See State v. Timothy Washington Lyons and Antonio Lamont Scales, No. M2009-02524-CCA-R3-CD, 2011 WL 300141, at *1 (Tenn. Crim. App. Jan. 18, 2011).  After resentencing, no further appeal was instituted by Petitioner.  His effective sentence after remand was twenty years, down from twenty-two years originally imposed by the trial court.  Petitioner subsequently filed a petition for post-conviction relief which was dismissed after an evidentiary hearing.  This appeal followed.  After a thorough review, we affirm the judgment of the post-conviction court.

Davidson Court of Criminal Appeals

Frederick Greene v. State of Tennessee
W2014-01216-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Frederick Greene, was convicted of first degree (premeditated) murder and received a sentence of life imprisonment. The petitioner appeals the denial of his petition for post-conviction relief. On appeal, he contends that he received ineffective assistance of counsel. Following our review, we affirm the judgment of the post-conviction court.

Shelby Court of Criminal Appeals

State of Tennessee v. Gilberto Canales, Jr.
W2015-00359-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Clayburn Peeples

Defendant, Gilberto Canales, Jr., was indicted for one count of aggravated rape. After a jury trial, Defendant was convicted of the lesser-included offense of rape. On appeal, Defendant argues that the evidence is insufficient to support his conviction, that the trial court erred by admitting hearsay evidence, and that the prosecutor committed prosecutorial misconduct by making misleading statements and arguing improperly admitted evidence during closing argument. After a thorough review, we affirm the judgment of the trial court.

Gibson Court of Criminal Appeals

James Anthony Burgess v. State of Tennessee
M2015-00584-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge David A. Patterson

Petitioner, James Anthony Burgess, appeals the denial of his petition for writ of error coram nobis.  Because Petitioner has not identified any newly discovered evidence, we affirm the decision of the coram nobis court.

Putnam Court of Criminal Appeals