State of Tennessee v. Donald Lockhart - Concurring
E2008-02046-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

Although concurring in the majority opinion, I express concern about whether
the certified question is dispositive of the case. Specifically, I question whether the stop of the defendant’s vehicle yielded any evidence that was necessary to the State’s proving the defendant guilty of DUI.

State of Tennessee v. Donald Lockhart
E2008-02046-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge E. Eugene Eblen

Appellant Donald Lockhart was indicted by a Loudon County Grand Jury for driving under the influence in violation of Tennessee Code Annotated section 55-10-401. The trial court denied a motion to suppress evidence derived from the stop of Appellant’s vehicle. Thereafter, Appellant pled guilty to the charge, but under Tennessee Rule of Criminal Procedure 37(b) preserved the following issue for appeal: “Whether the trial judge erred by failing to suppress evidence gathered pursuant to a traffic stop of the [Appellant] that was conducted by the Lenoir City Police Department and which the [Appellant] alleged was conducted in the absence of a valid warrant, probable cause or reasonable suspicion, all in violation of [Appellant’s] constitutional rights to be free of unreasonable searches and seizures?” On appeal, he argues that the citizen informant’s tip, combined with an officer’s determination that Appellant was impaired during a welfare check minutes before the stop, was insufficient to establish reasonable suspicion. Upon review, we affirm.

State of Tennessee v. Terry Wayne Hawkins - Concurring
E2009-00044-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Amy A. Reedy

I concur in the majority’s conclusion that a trial court is free to set any sentence
within the appropriate sentencing range “regardless of the presence or absence of mitigating and enhancement factors.” I write separately, however, to emphasize that the 2005 amendments to the Sentencing Act, when read in conjunction with those provisions not affected by the amendments and the Sentencing Commission Comments, are in and of themselves open to two interpretations: (1) that, although the enhancement and mitigating factors were rendered advisory, a trial court still has no discretion to enhance a defendant’s
sentence without finding applicable one of the enhancement factors enumerated in Code section 40-35-114 and (2) that a trial court is free to choose any sentence within the appropriate range so long as the imposition of the sentence complies with the principles and purposes of the Sentencing Act. The latter was first alluded to by our supreme court in State v. Carter, 254 S.W.3d 355 (2008). For the reasons set forth below, it is my view that latter interpretation is constitutionally required.

State of Tennessee v. Terry Wayne Hawkins
E2009-00044-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Amy A. Reedy

The Defendant, Terry Wayne Hawkins, was convicted by a Monroe County jury of aggravated sexual battery and was sentenced to eleven years as a Range I, violent offender. In this appeal as of right, he contends that the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

Eduardo SantAnder, Plaintiff-Appellee, American Home Assurance Co., Intervenor-Appellant, v. Oscar R. Lopez, Defendant
M2009-01210-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge J. Mark Rogers

Plaintiff was involved in a motor vehicle accident during the course and scope of his employment. Plaintiff brought a tort action against the driver of the other vehicle, and subsequently entered into a settlement with his employer and the workers' compensation carrier. Plaintiff then reached a settlement in the tort case, but before Judgment was entered his employer filed a Petition to Intervene in that case, asserting a subrogation lien on the tort recovery. The Trial Judge refused to allow intervention on the grounds that the Petition to Intervene was not timely filed. On appeal, we reverse and remand.

State of Tennessee v. Antonio Hill
W2009-00280-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris B. Craft

The defendant, Antonio Hill, was convicted by a Shelby County jury of robbery, a Class C felony, and attempted robbery, a Class D felony, as lesser included offenses of the indicted offenses of aggravated robbery and attempted aggravated robbery. The trial court subsequently sentenced the defendant to concurrent sentences of five years and three and one-half years for the respective convictions. On appeal, the defendant raises the single issue of whether his sentence is excessive. Specifically, he contends that the trial court erred in considering the enhancement factor that the defendant possessed or employed a firearm during the commission of the offenses based upon the jury’s rejection of the greater offenses, which included possession of a firearm as elements of the offense. Following review of the record and applicable sentencing law, we affirm the sentences as imposed.

Cory Myers v. State of Tennessee
W2009-00814-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald P. Harris

The Petitioner, Cory Myers, appeals pro se from the Circuit Court 1 for Gibson County’s dismissal of his petition for writ of habeas corpus. The judgment form in this case shows that Myers originally pled guilty to first degree murder for which he received a life sentence. However, in this appeal, Myers argues that the trial court lacked jurisdiction to sentence him because another form, entitled “Plea of Guilty and Waivers of Jury Trial and Appeal” (hereinafter “plea agreement form”), shows that he pled guilty to the offense of “felony homicide.” Based on the plea agreement form, Myers claims his conviction is void because “felony homicide” does not exist under Tennessee law. Upon review, we affirm the judgment dismissing the petition for writ of habeas corpus.

Deborah Southern Antrican vs. Alvin Michael Antrican
E2009-01028-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor E.G. Moody

This is a divorce case following a long-term marriage. Following a trial, the Trial Court classified the property as separate or marital, divided the marital property, awarded Wife $30,000 as her share of farm income that was earned after the parties separated, and awarded Wife alimony in futuro of $800 per month and alimony in solido of $20,000 for partial payment of her attorney fees. Both parties appeal raising various issues. We modify the award of $30,000 in farm income to an award of $2,184. We also modify the award of alimony in futuro to be $400 per month, with this modification to become effective sixty days from the date our judgment is entered. In all other respects, the judgment of the Trial Court is affirmed.

State of Tennessee v. Amos Oyeleye
W2009-00085-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Mark Ward

A Shelby County jury convicted the Defendant, Amos Oyeleye, of robbery, and the trial court sentenced him to five years of incarceration. On appeal, the Defendant contends that the evidence is insufficient to support his conviction and that the trial court erred when it set the length of his sentence. After a thorough review of the record and the applicable law, we affirm the trial court’s judgment.

State of Tennessee v. Thomas L. Turner, II
M2008-00482-SC-R11-CO
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Don R. Ash

During the course of an investigation for a robbery and homicide, officers provided Miranda warnings to the defendant, who sought clarification regarding his right to the presence of counsel. Ultimately, the defendant executed a waiver and made a statement to police. Indicted later for first degree murder and other offenses, the defendant filed a motion to suppress his entire statement, arguing that the investigating officers had failed to honor an unequivocal invocation of his right to counsel. The trial court granted the motion, the State received permission to take an interlocutory appeal, and the Court of Criminal Appeals reversed. We accepted the application for review to determine whether the defendant was equivocal in his request for counsel and, if so, whether the police properly limited further questions to the clarification of his right to counsel until the right was either clearly invoked or waived. Because the defendant did not clearly assert his right and the police officers limited the scope of their questions until the defendant chose to execute the waiver of rights form, the judgment of the Court of Criminal Appeals is affirmed.

Grady Hayes Brown v. State of Tennessee
W2009-00907-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Commissioner Nancy C. Miller-Herron

The Tennessee Claims Commission dismissed this claim for negligent deprivation of a statutory right upon finding that the statute relied upon contained no private right of action. We affirm.

State of Tennessee v. Lance Murray
W2009-00332-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey

A Shelby County jury convicted the Defendant, Lance Murray, of facilitation of robbery. On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgment.

Michael Joseph Grant v. State of Tennessee
E2009-00311-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carroll L. Ross

The petitioner, Michael Joseph Grant, appeals the summary dismissal of his petition for writ of error coram nobis. The petitioner claims the trial court should have held an evidentiary hearing and allowed evidence of witness statements that would have impacted the outcome of the proceedings. We conclude the writ of error coram nobis upon this record is not available to the petitioner because he pled guilty. The summary dismissal is affirmed.

National Collage of Business & Technology and Remington College; Memphis Campus v. Tennessee Higher Education Commission
M2009-00137-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal involves subject matter jurisdiction and exhaustion of administrative remedies. The petitioners filed an administrative petition with the defendant commission challenging a newly promulgated rule. Before the commission took action on the administrative petition,
the petitioners filed a complaint for declaratory judgment in the trial court, making essentially the same allegations. The commission filed a motion to dismiss in the trial court, arguing that the trial court did not have subject matter jurisdiction over the complaint, because the petitioners failed to exhaust their administrative remedies before filing the declaratory judgment lawsuit. The trial court granted the motion and dismissed for lack of subject matter jurisdiction. The petitioners now appeal. We reverse, finding that the trial court had subject matter jurisdiction over the petition.

State of Tennessee v. Tywan Garcia Armstrong
M2008-02837-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert G. Crigler

The Defendant, Tywan Garcia Armstrong, was convicted by a jury in Marshall County of (Count 1) sale of a Schedule II Controlled Substance, a Class B Felony; (Count 2) delivery of a Scheduled II Controlled Substance, a Class B felony; (Count 3) possession with the intent to sell a Schedule II Controlled Substance, a Class B felony; (Count 4) possession with the intent to deliver a Schedule II Controlled Substance, a Class B felony; and (Count 5) possession of a deadly weapon with intent to employ it in the commission of an offense, a Class E felony. In this appeal as of right, the Defendant argues that: (1) the trial court erred in denying his motion to suppress evidence obtained from the search of his car; (2) the evidence was insufficient to support his convictions for Counts 1, 2, and 5; and (3) the trial court erred in refusing to apply the mitigating factors submitted by the Defendant at the sentencing hearing. After reviewing the record, we affirm the judgments of the trial court.

Joby Lee Teal v. State of Tennessee
W2008-02471-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John P. Colton, Jr.

The petitioner, Joby Lee Teal, appeals the Shelby County Criminal Court’s summary dismissal of his “Motion for Correction of Void Judgment.” The State has filed a motion requesting that this court affirm the trial court’s dismissal pursuant to Rule 20, of the Rules of the Court of Criminal Appeals, arguing that the petitioner’s motion should be treated as a petition for writ of habeas corpus and that he failed to state a cognizable claim because he is not “imprisoned or restrained of liberty.” We agree, grant the State’s motion, and affirm the judgment from the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

State of Tennessee v. Carlous Leon Clark
W2009-00025-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Madison County grand jury indicted the Defendant, Carlous Leon Clark, for attempted first degree murder, two counts of aggravated assault, aggravated burglary, and assault. The Defendant moved to dismiss the charges, claiming that a trial would not comply with the speedy trial provisions of the United States and Tennessee constitutions. The trial court denied the Defendant’s motion to dismiss, and a Madison County jury convicted the Defendant of attempted first degree murder, assault, two counts of aggravated assault, and aggravated criminal trespass. On appeal, the Defendant contends that the trial court erred when it denied his motion to dismiss based on a violation of his right to a speedy trial. After a thorough review of the record and the applicable law, we affirm the trial court’s judgment.

Curtis Daniel Hart v. State of Tennessee
W2008-02715-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Curtis Daniel Hart, appeals the denial of his petition for post-conviction relief and contends that he received ineffective assistance of counsel. He was initially convicted of second degree murder, simple possession of marijuana, and simple possession of Alprazolam, a Schedule IV controlled substance, and sentenced to thirty-five years in confinement as a Range II offender. On appeal, the petitioner argues that counsel was ineffective in a variety of areas but failed to prove any of the allegations. Therefore, we affirm the judgment from the post-conviction court.

State of Tennessee v. Terry R. Cary
W2009-00583-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The defendant, Terry Cary, was convicted by a Madison County jury of promoting the manufacture of methamphetamine, a Class D felony, and sentenced as a career offender to twelve years in the Department of Correction. On appeal, the defendant raises the single issue of sufficiency of the evidence. Following review of the record, we affirm the judgment of conviction.

State of Tennessee v. Herman Sowell, Jr.
M2008-02358-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Don R. Ash

Defendant, Herman Sowell, Jr., appeals the dismissal of his motion requesting the trial court to modify his sentence of confinement to a suspended sentence. On appeal, Defendant argues that the trial court abused its discretion in finding no change in circumstances which would justify the requested modification. After a thorough review, we affirm the judgment of the trial court.

State of Tennessee v. Ricky Eugene Scoville
M2009-00538-CCA-MR3-CD
Authoring Judge: Judge J.C. McLin
Trial Court Judge: Judge Robert G. Crigler

A Marshall County jury convicted the defendant, Ricky Eugene Scoville, of two
counts of harassment. The trial court merged the convictions and sentenced the defendant as a Range I, standard offender, to two years in the Tennessee Department of Correction. On appeal, the defendant challenges the sufficiency of the convicting evidence. After review of the record, the parties’ briefs, and the applicable law, we affirm the judgment of the trial court.

Barry I. Chook v. Tashawn N. Pirela Jones and Kenneth Jones
W2008-02276-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This is an appeal of a discovery matter. The plaintiff was involved in a motor vehicle
accident with the defendants. One year and one day after the accident, the plaintiff filed a
lawsuit asserting negligence. The complaint sought money damages for damage to property
and personal injury. The defendants filed a motion to dismiss based on the statute of
limitations. The plaintiff sought extensive discovery of the defendants’ personal records.
The trial court denied the plaintiff’s motion to compel discovery and granted the defendants’
motion to dismiss. The plaintiff now appeals. We find that the order from which the
plaintiff appeals is not a final judgment. Accordingly, we dismiss the appeal.

State of Tennessee v. Michael Collins Reed
M2009-00550-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant-Appellant, Michael Collins Reed, appeals his sentence following the revocation of his probation. He originally pled guilty to attempted aggravated robbery, a Class C felony, and was sentenced as a multiple offender to eight years of confinement in the Tennessee Department of Correction. This sentence was suspended to ten years of supervised probation. Because this was Reed’s third probation violation, the trial court placed his eight-year sentence for attempted aggravated robbery into effect. On appeal, Reed concedes the probation violation, but argues the trial court should have reinstated his probation or imposed a rehabilitative sentence that addressed his drug addiction. Upon review, we affirm the judgment of the trial court.

Clarence Carnell Gaston v. State of Tennessee
W2009-01690-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree

The petitioner, Clarence Carnell Gaston, appeals the trial court’s denial of his petition to reopen his post-conviction petition. 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. Because the petitioner did not comply with the statutory requirements for seeking discretionary review of the denial of his motion, this court has no jurisdiction in this case. Accordingly, the appeal is dismissed.

State of Tennessee v. Joe Marvin Ellison
W2009-01134-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Joe Marvin Ellison, pled guilty to aggravated assault, aggravated robbery, aggravated kidnapping, and rape for an effective sentence of twenty-five years in the Department of Correction. He subsequently filed a motion to withdraw his guilty pleas, which was denied by the trial court. On appeal, he argues that the trial court erred in denying his motion. After review, we affirm the judgment of the trial court.