State of Tennessee v. Michael E. Owenby
E2001-02012-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Richard R. Vance

The Defendant, Michael E. Owenby, appeals as of right from his conviction by a jury of theft of property over $1,000, a Class D felony. He was sentenced to three years as a Range I standard offender, with ninety days to be served in confinement and the balance to be served in the Community Corrections program. He argues as his sole issue on appeal that there was not sufficient evidence presented at trial to support his conviction of theft. We affirm the judgment of the trial court but remand to the trial court for entry of an amended judgment deleting the "day for day" requirement relating to the ninety days of confinement.

State of Tennessee v. James Allen Bailey
E2001-02443-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Ben W. Hooper, II

 The defendant pled guilty to six counts of arson, Class C felonies, and one count of setting fire to personal property, a Class E felony. The trial court ordered an effective sentence of fifteen years incarceration followed by five years of probation. On appeal, the defendant argues: (1) the trial court erred in conducting an independent investigation into pyromania; (2) the length of his individual sentences is excessive; (3) the trial court erred in imposing consecutive sentencing; and (4) the trial court improperly denied alternative sentencing. We modify the defendant’s sentences to an effective term of ten years in the Department of Correction.

State of Tennessee v. William C. Smith
E2001-02339-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Rex Henry Ogle

The Defendant, William C. Smith, pled guilty to burglary, a class D felony, and theft under $500, a class A misdemeanor. Pursuant to the Defendant's plea agreement, he was sentenced as a Range I standard offender with the sentences to run concurrently. The parties left the length, method, and manner of service to the trial judge's discretion. After a sentencing hearing, the trial court sentenced the Defendant to four years in the Department of Correction for the burglary and a concurrent sentence of 11 months and 29 days at 75% for the misdemeanor theft. The Defendant now appeals as of right. We affirm the judgment of the trial court.

State of Tennessee v. James Allen Bailey - Dissenting
E2001-02443-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Ben W. Hooper, II
Based on my de novo review of the record in this case, I am unable to agree that the imposition of consecutive sentences is warranted. Therefore I respectfully dissent from that portion of the opinion which concludes that two of the Defendant’s sentences should be served consecutively.

Shanna Dean Alder v. State of Tennessee
E2002-00287-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Mary Beth Leibowitz

The petitioner appeals the denial of her petition for habeas corpus relief. She contends the trial court was without authority to revoke her judicial diversion after her diversionary probation expired, absent the issuance of a revocation warrant prior to its expiration. She, therefore, argues the trial court was without jurisdiction when it revoked judicial diversion, was consequently without jurisdiction when it sentenced her to additional years of probation, and was without jurisdiction when it subsequently issued a probation revocation warrant. We agree and reverse the denial of habeas corpus relief.

State of Tennessee v. Reginald Terry
W2001-03027-CCA-RM-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Fred Axley

A Shelby County jury convicted the Defendant of attempted aggravated burglary, and this Court affirmed the conviction on direct appeal. The Tennessee Supreme Court remanded the case to this Court solely to consider whether the trial court's failure to instruct on certain lesser-included offenses was "plain error," thus warranting review despite the Defendant's failure to timely file his motion for new trial. On remand, we conclude that the trial court's failure to instruct on the lesser-included offenses in this case was not "plain error." Accordingly, we affirm the judgment of the trial court.

State of Tennessee v. Ronald Simmons
W2001-02352-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant pled guilty to sexual battery, a Class E felony, in exchange for a two-year sentence. The trial court sentenced the defendant to ninety days of weekend confinement, suspended the balance of the two-year sentence, and placed the defendant on probation for four years. The defendant appeals his sentence, arguing that the trial court erred in denying his petition for judicial diversion and in sentencing him to ninety days of confinement. After a review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Daniel Henley
W2001-02962-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge John P. Colton, Jr.

The State of Tennessee appeals from the Shelby County Criminal Court's dismissal of its petition to declare Daniel Henley a motor vehicle habitual offender. Because the lower court erred in its determination that the state failed to prove the existence of three prior, qualifying convictions, we reverse and remand.

State of Tennessee v. Jerome Sawyer
W2001-01923-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Arthur T. Bennett

Convicted by a jury of the Class B felony offense of aggravated sexual battery and sentenced by the trial court to serve an incarcerative Range II sentence of eighteen years, the defendant, Jerome Sawyer, appeals and claims that the evidence insufficiently supports the verdict and that the court erroneously found him to be a Range II offender. We disagree and affirm.

Kenneth Lee Weston v. State of Tennessee
E2001-01053-CCA-RM-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Randall E. Nichols

A Knox County jury convicted the Petitioner of robbery by the use of a deadly weapon. The trial court found the Petitioner to be an habitual criminal and sentenced him to life imprisonment. This Court affirmed both the sentence and verdict on direct appeal. The Petitioner subsequently filed his first petition for post-conviction relief, alleging ineffective assistance of counsel at his trial. The post-conviction court denied relief, but no appeal ensued. The Petitioner then filed a second petition for post-conviction relief, alleging that counsel in his first post-conviction proceeding was ineffective for failing to file an appeal. After a hearing, the post-conviction court dismissed the second petition and ruled that the Petitioner did not have a constitutional right to effective assistance of counsel in a post-conviction proceeding. This Court affirmed. The Tennessee Supreme Court reversed and remanded the case to the post-conviction court for an evidentiary hearing to determine whether the Petitioner received ineffective assistance of counsel at his first post-conviction proceeding and whether, as a result, the Petitioner was effectively denied a first-tier appeal of his first post-conviction petition. Before the hearing, the Petitioner filed an amended petition for post-conviction relief. The post-conviction court heard the amended petition, but found that the issues raised were without merit. On appeal, this Court affirmed the post-conviction court’s finding that the Petitioner had been effectively denied a first-tier appeal in the original post-conviction proceedings, but held that the post-conviction court was not authorized to hear the amended petition. The supreme court affirmed this ruling and remanded the case to this Court for a first-tier appeal of the Petitioner’s original and unamended petition for post-conviction relief. Having reviewed the record, we conclude that the Petitioner received effective assistance of counsel at trial. Therefore, we affirm the judgment of the post-conviction court.

State of Tennessee v. John Travis Collins, alias
E2001-01301-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Mary Beth Leibowitz
The State challenges the trial court's jurisdiction to modify sentence more than six years after judgment. Generally a trial court would not have jurisdiction to modify a sentence more than 120 days after judgment becomes final. However, we conclude that where the defendant was never in the physical custody of the Department of Correction, jurisdiction to modify sentence remained in the trial court. We affirm the judgment of the trial court.

State of Tennessee v. Scott Craig
E2001-01528-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge R. Steven Bebb

Defendant, Scott Craig, was convicted by a Bradley County jury of one count of aggravated kidnapping and two counts of aggravated rape. He was sentenced to eight years for aggravated kidnapping and fifteen years each for the aggravated rape convictions. The trial court ordered the two aggravated rape convictions to be served concurrently with each other, but consecutively to the aggravated kidnapping conviction, for an effective sentence of twenty-three years. Defendant appeals his conviction and sentence, presenting the following issues for review: (1) whether the trial court made improper and prejudicial comments during the trial which deprived Defendant of his right to a fair trial; and (2) whether the trial court erred by imposing consecutive sentences. After a thorough review of applicable law and all relevant facts and circumstances in the record, we affirm Defendant's convictions. We reverse the judgment of the trial court concerning the length of Defendant's sentence for aggravated rape and the trial court's order of consecutive sentencing, and remand this matter for a new sentencing hearing.

State of Tennessee v. Richard Vanover
E2001-01671-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert E. Cupp

Defendant pled guilty to seventeen offenses and was subsequently sentenced to fourteen years in confinement. On appeal, defendant alleges that trial court committed error in (1) applying certain enhancing factors, (2) denying any form of alternative sentencing, and (3) ordering consecutive sentencing. We affirm the judgment.

Kecia L. Hill v. Calsonic Yourzu Corporation,
M2001-01314-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Charles D. Haston, Judge
In this appeal, the employer contends the evidence preponderates against the trial court's finding of a permanent injury related to the claimant's incident at work and the award of seven and one-half percent disability to the body. As discussed herein, the panel has concluded the judgment should be affirmed.

State of Tennessee v. James Michael Davis
E2001-01656-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Rebecca J. Stern

The defendant, James Michael Davis, was convicted of driving under the influence. The trial court imposed a sentence of 11 months, 29 days, with all but 48 hours suspended. In this appeal of right, the defendant asserts that because the police officers did not have "reasonable suspicion" to warrant an investigatory stop, the trial court erred by denying his motion to suppress. The judgment of the trial court is affirmed.

State of Tennessee v. William Robert Posey
E2001-02665-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Stephen M. Bevil

The Defendant, William Robert Posey, appeals as of right from the judgment of the trial court, which found him guilty of driving under the influence (DUI) as a third offender. The Defendant raises two central issues on appeal. First, the Defendant argues that the two preceding DUI convictions are invalid on their face and therefore cannot be used to enhance his punishment for the present conviction. Second, the Defendant argues that the trial court committed error by failing to hold a hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), to determine whether the Defendant personally waived his right to testify. Because the record is void of any evidence that the Defendant did personally waive his right to testify, we remand the case to the trial court for a hearing to determine whether the Defendant's right to testify was violated, and if so, whether the violation of the Defendant's right to testify was harmless beyond a reasonable doubt.

John Earl Scales v. State of Tennessee
M2001-00310-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve R. Dozier

The appellant, John Earl Scales, was convicted by a Davidson County jury of felony murder and attempted aggravated robbery. He was sentenced to life imprisonment for the murder with a concurrent three-year term for the attempted aggravated robbery conviction. On direct appeal this Court affirmed the convictions and sentences. State v. John Earl Scales, No. 01C01-9709-CR-00412 (Tenn. Crim. App., at Nashville Feb. 24, 1999), 1999 Tenn. Crim. App. LEXIS 168, at *28. On November 20, 2000, Scales filed a petition for post-conviction relief. On December 19, 2000, the post-conviction court summarily dismissed the petition. From that dismissal the appellant perfected the instant appeal. We find that the post-conviction court erred in summarily dismissing the appellant's claims regarding the alleged ineffectiveness of his appellate counsel on the grounds of waiver or previous determination. Moreover, we find that the post-conviction court's order indicating that such allegations do not state "colorable claims" does not set forth with sufficient specificity the court's findings with regard to the allegations concerning the alleged ineffectiveness of appellate counsel. We therefore remand this case for entry of an appropriate order in accordance with this opinion.

State of Tennessee v. Ernest Willie Mays
M2001-02446-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Allen W. Wallace

The defendant, Ernest Willie Mays, pled guilty to sale of cocaine, a Class C felony, and was sentenced as a Range I, standard offender to five years in the Tennessee Department of Correction. He appeals his sentence, arguing that it is excessive and that the trial court erred in (1) refusing to consider that less restrictive measures than incarceration had not been tried unsuccessfully, (2) not applying any mitigating factors, (3) finding that the offense constituted a criminal enterprise, and (4) considering the fact that he had four children out of wedlock. We affirm the sentence imposed by the trial court.

State of Tennessee v. Vernon DeWayne Waller
M2001-02414-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted the Appellant, Vernon Dewayne Waller, of sale of a counterfeit controlled substance, a class E felony. The trial court sentenced Waller as a career offender to six years in the Department of Correction. On appeal, Waller presents the following issues for review: (1) Did the trial court err in ruling that if the Defendant chose to testify, his prior felony drug convictions would be admissible to impeach his credibility; (2) Did the trial court err in allowing the State to introduce a substance alleged to be cocaine and a lab report identifying it as such through a witness other than the technician who tested the substance; and (3) Did the trial court err in finding the Defendant was a career offender. After a review of the record, we find that Waller's issues are without merit. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Jimmy Lee King
W2001-01690-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Julian P. Guinn

Jimmy Lee King stands convicted of the attempted first-degree murder of Billy Dwayne Pace. King received his conviction at the conclusion of a jury trial in the Benton County Circuit Court, and he was sentenced to a 20-year incarcerative term. Claiming that the evidence is insufficient to support the conviction, he has appealed. Because we are unpersuaded, we affirm.

State of Tennessee v. Michael L. Taylor
W2001-02744-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed McGinley

Pursuant to a negotiated plea agreement, the defendant pled guilty to possession of crack cocaine with the intent to resell, distribute or manufacture, possession of marijuana, possession of drug paraphernalia, and four counts of the sale of over .5 grams of crack cocaine. The defendant was sentenced as agreed to nine (9) years for each felony count and eleven months and twenty-nine days for each misdemeanor count. The agreement also provided that all of the sentences would be served concurrently for an effective nine-year sentence. Following a sentencing hearing, the trial court denied alternative sentencing. In this appeal, the defendant challenges the denial of alternative sentencing. We affirm.

State of Tennessee v. Wilson Neely
W2001-01327-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris B. Craft

Convicted at a jury trial of first-degree, premeditated murder and presently serving a life sentence, Wilson Neely appeals from the Shelby County Criminal Court. He claims that his conviction is improperly based upon uncorroborated and insufficient testimony of accomplices. Because we disagree, we affirm.

Christmas Lumber vs. Robert Valiga
E2001-02444-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John F. Weaver
After experiencing significant problems with the construction of a house he was having built, Robert E. Valiga ("Valiga") sued Robert H. Waddell ("Waddell") and John Graves ("Graves") (collectively referred to as "Defendants") seeking damages for the poor construction. Although the construction contract was between Valiga and R.H. Waddell Construction, Inc., no corporate charter had been filed when the contract was signed. The Trial Court concluded Waddell and Graves were partners and entered judgment against them individually for $80,045.79. After judgment was entered, Defendants filed motions seeking to amend their answers to assert a statute of limitations defense. These motions were denied by the Trial Court. Graves and Waddell appeal, challenging the Trial Court's conclusion that they were partners and subject to individual liability, the denial of their motions seeking to amend their answers to assert a statute of limitations defense, and the Trial Court's award of prejudgment interest to Valiga. We affirm.

Ray Edwards vs. Hallsdale-Powell Utility District
E2002-00395-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
This is an appeal from the grant of partial summary judgment for defendant that plaintiff could not maintain an action for inverse condemnation. On appeal, we vacate the grant of summary judgment.

State Dept of Children's Srvcs vs. B.J.A.L.
E2002-00292-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Shirley B. Underwood
The trial court terminated the parental rights of B.J.A.L. ("Mother") with respect to her minor female child, R.A.A. (DOB: September 15, 1989). Mother appeals, arguing, among other things, that the evidence preponderates against the trial court's determination that there is clear and convincing evidence to terminate her parental rights. We affirm.