William Thomas Mayers v. State of Tennessee
M2014-01704-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, William Thomas Mayers, filed a petition for post-conviction relief in the Davidson County Criminal Court, alleging that his counsel was ineffective at trial and on appeal.  The post-conviction court denied the petition, and the Petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

Starla Merkel v. Carl Shane Merkel
E2014-01888-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge J. Michael Sharp

In this divorce case, Carl Shane Merkel (Husband) contends that the trial court erred in its division of the marital estate, its award of child support made retroactive to the date that Starla Merkel (Wife) filed her complaint, and its monetary award to Wife's father, Terry McKeel, who was allowed by agreed order to intervene as an indispensible party. The award to McKeel was based on the trial court's finding that Husband owed McKeel $15,343.45 for unpaid loans made during the marriage by McKeel to Husband. We find no error in the division of the marital estate and the trial court's child support order. We hold that the issue of Husband's debt to McKeel was properly raised in McKeel's cross-claim and that the trial court had jurisdiction to dispose of this claim under the factual scenario reflected in the record. Wife raises the issue of whether there is evidence supporting the trial court's order decreeing that Chris Allen, a friend of hers, could not be in the presence of the two children born to Husband and Wife. We agree and modify the trial court's judgment to remove the prohibition barring Allen from having contact with the children. The judgment is affirmed in all other respects.

State of Tennessee v. Billy Locke
E2015-00901-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Andrew Mark Freiberg

In 1998, a jury convicted the Defendant, Billy Locke, for DUI, third offense. The trial court sentenced the Defendant to serve eleven months and twenty-nine days, 160 days of which was to be served in confinement with the remainder to be served on probation. In 1999, the Defendant pleaded guilty to burglary, evading arrest, assault, and possession of burglary tools, and the trial court sentenced him to an effective sentence of three years to run consecutively with any sentence he received for violating his probation for the DUI conviction. Fifteen years later, in January 2015, the Defendant filed a Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence, arguing that the trial court was required to align his sentences consecutively because he was on probation and thus still “serving” his sentence for the DUI conviction when sentenced for the burglary-related convictions. The trial court denied the Defendant’s motion, and he appealed to this Court. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Eastman Credit Union v. Thomas A. Bennett
E2015-01339-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jean A. Stanley

This appeal involves the foreclosure sale of improved real property located in Erwin, Tennessee. The plaintiff lender filed a complaint seeking a foreclosure deficiency award in the amount of $53,489.59, plus interest and reasonable attorney's fees, pursuant to the promissory note. The defendant debtor asserted as an affirmative defense that the lender had purchased the property during a foreclosure sale for a sum materially less than the fair market value. Following a bench trial, the trial court found that the fair market value of the property was $158,900.00, an amount the lender had purportedly been offered by an employment relocation company prior to the foreclosure sale. The lender had purchased the home at foreclosure for $95,000.00. Finding the foreclosure sale price to be materially less than the fair market value, the trial court ruled that the debtor had successfully overcome the statutory presumption, pursuant to Tennessee Code Annotated § 35-5-118, that a foreclosure sale price is equal to fair market value. The court entered a deficiency judgment in favor of the lender in the amount of $9,659.62. The lender appeals. Discerning no reversible error concerning the award, we affirm. However, having determined that the promissory note provided for reasonable attorney's fees to the lender in the event of default, we remand for an evidentiary hearing on the amount of reasonable attorney's fees to be awarded for work performed during trial.

In re Joseph F., et. al.
E2015-00733-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee

This is a termination of parental rights case, focusing on the four minor children—Joseph F., Johnathon S., Sarah S., and Larry S. (“the Children”)—of the respondent mother, Elizabeth F. (“Mother”). In January 2011, Mother voluntarily placed all four Children in the custody of Ernest S., the biological father of the younger three children. Ernest S. passed away on June 27, 2011, while Mother was living in Oregon. Upon motion of Ernest S.'s minister and family friend, Betty Shirley, the Grainger County Juvenile Court granted temporary custody of the Children to Ms. Shirley on June 28, 2011. Ms. Shirley gave physical custody of the Children to the petitioners on July 8, 2011. The petitioners filed a petition to terminate the parental rights of Mother and to adopt the Children on that same day. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of Mother upon its finding by clear and convincing evidence that Mother (1) had abandoned the Children by willfully failing to provide financial support, (2) was guilty of severe abuse, and (3) was mentally incompetent to care for the Children. The court further found by clear and convincing evidence that termination of Mother's parental rights was in the Children's best interest. Mother has appealed. We affirm the trial court's judgment terminating Mother's parental rights in all respects.

State of Tennessee v. Mitchell Lee Davis
E2015-01220-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Rex Henry Ogle

The Defendant, Mitchell Lee Davis, pleaded guilty to burglary, misdemeanor theft, and sale of a Schedule II controlled substance, and the trial court entered the agreed sentence of five years, 180 days of which were to be served in confinement and the remainder to be served on probation. The Defendant's probation officer subsequently filed an affidavit alleging a probation violation. The trial court issued a warrant, and the parties agreed that the Defendant should serve 120 more days followed by reinstatement to probation. The trial court rejected the agreement, revoked the Defendant's probation, and ordered him to confinement. The Defendant did not appeal but then filed a motion to reduce his sentence pursuant to Tennessee Rule of Criminal Procedure 35, contending that the trial court improperly considered his lengthy criminal history when it revoked his probation. The trial court denied the Defendant's motion. On appeal, the Defendant contends that, after the trial court rejected the parties' agreement for the probation violation, the trial court violated his due process rights by not holding a hearing to determine whether there was sufficient evidence to support the probation violation. He further contends that the trial court abused its discretion when it revoked his probation because it based its decision on the Defendant's previous criminal history. After review, we affirm the trial court's judgment.

State of Tennessee v. Grady Joe Careathers
E2015-00904-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Don W. Poole

The Defendant, Grady Joe Careathers, pleaded guilty to aggravated assault in exchange for a probation sentence. Shortly thereafter, the Defendant was arrested for violating the Habitual Motor Vehicle Offender Act, a charge to which he pleaded guilty. At the same time, he entered a guilty plea to violating his probation. Over the next five years, the Defendant admitted to violating his probation sentence on several occasions. At his fifth revocation hearing, the trial court revoked his probation and ordered him to serve the remainder of his sentence in confinement. On appeal, the Defendant contends that the trial court erred by ordering him to serve his sentence in confinement. After review, we affirm the trial court's judgments.

Charles R. Blackstock v. State of Tennessee
E2015-01384-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Barry A. Steelman

In 2000, the Petitioner, Charles R. Blackstock, pleaded guilty to one count of especially aggravated kidnapping and two counts of rape of a child, and the trial court sentenced him to three consecutive twenty-five year sentences. This Court affirmed the consecutive sentencing on appeal, but modified the total effective sentence to seventy-one years. State v. Charles R. Blackstock, No. E2000-01546-R3-CD, 2001 WL 969036, at *1 (Tenn. Crim. App., at Knoxville, Aug. 27, 2001), no Tenn. R. App. P. 11 application filed. In 2013, the Petitioner filed a petition for habeas corpus relief, which was denied. The Petitioner appealed, and this Court affirmed. Charles R. Blackstock v. State, No. E2013-01173-CCA-R3-HC, 2014 WL 1092812, at *1 (Tenn. Crim. App., at Knoxville, Mar. 19, 2014), no Tenn. R. App. P. 11 application filed. In 2015, the Petitioner filed a petition for post-conviction relief alleging that he had received the ineffective assistance of counsel at the guilty plea hearing and also during the habeas corpus proceeding. The post-conviction court summarily dismissed the petition. On appeal, the Petitioner maintains that his counsel during the habeas corpus proceeding was ineffective. He further contends that the post-conviction court erred when it did not “mention[] the claim of ineffective assistance of counsel.” After a thorough review, we affirm the post-conviction court's judgment.

State of Tennessee v. Thomas Neal McClean
E2015-01957-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven Wayne Sword

The Defendant, Thomas Neal McClean, was convicted upon his guilty pleas to robbery, a Class C felony; burglary, a Class E felony; and theft of property valued at $500 or less, a Class A misdemeanor. See T.C.A. §§ 39-13-401 (2014) (robbery), 39-14-402 (2014) (burglary), 39-14-103 (2014) (theft), 39-14-105(a)(1) (2014) (grading of theft). He received an effective ten-year sentence as a Range III, persistent offender. In this appeal, he contends he received the ineffective assistance of counsel. Because his appeal is not upon any basis permitted by Tennessee Rule of Appellate Procedure 3(b), we dismiss the appeal.

Edgar Michael Galaway v. Patrice Jolene Galaway
M2015-00670-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Phillip R. Robinson

In this post-divorce appeal, Father asserts the trial court erred in failing to find a material change of circumstance had occurred such that he should be designated the child’s primary residential parent. Father also asserts the trial court erred in awarding Mother her attorney’s fees. We affirm the trial court in all respects.   

Linda Beard v. James William Branson, et al.
M2014-01770-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert E. Burch

The dispositive issue in this wrongful death action is whether the pro se complaint filed by the decedent’s surviving spouse tolled the statute of limitations. The defendants, a hospital and a physician, filed a motion for summary judgment, arguing that the complaint was a nullity because the surviving spouse was asserting claims in a representative capacity and the complaint was not signed by a licensed attorney. It is undisputed that the decedent was survived by three heirs, the surviving spouse and two children of the decedent. The trial court denied the motion concluding that, although the pro se complaint could not assert the claims of the children, the surviving spouse could properly assert his own claims. The trial court also held that the initial complaint was sufficient to toll the statute of limitations and the claims of the children were not time barred because a licensed attorney signed and filed an amended complaint that related back to the original filing pursuant to Tenn. R. Civ. P. 15. Following a jury trial, the defendants were found liable and damages were awarded. The hospital appealed. We conclude the claims asserted by the surviving spouse were brought in a representative capacity on behalf of the decedent and were not his individual claims. Filing a complaint on behalf of another constitutes the practice of law and “[p]roceedings in a suit by a person not entitled to practice law are a nullity.” Bivins v. Hosp. Corp. of Am., 910 S.W.2d 441, 447 (Tenn. Ct. App. 1995). Because the complaint filed by the surviving spouse was a nullity, it did not toll the statute of limitations and no other complaint was filed within the statute of limitations. Therefore, the trial court erred in denying the hospital’s motion for summary judgment based on the statute of limitations defense. Accordingly, we reverse and remand with instructions to dismiss all claims and vacate all judgments against the hospital. 

Wesley Dawone Coleman v. State of Tennessee
W2015-00369-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jeff Parham

The Petitioner, Wesley Dawone Coleman, appeals from the denial of post-conviction relief by the Circuit Court for Obion County. He was convicted of aggravated burglary, theft over $500, and evading arrest, and received an effective sentence of ten years in the Tennessee Department of Correction. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that the cumulative effect of counsel’s errors denied his constitutional right to a fair trial. Upon our review, we affirm the judgment of the post-conviction court.

Victor Clark v. State of Tennessee
W2015-00186-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald H. Allen

Victor Clark (“the Petitioner”) was indicted for two counts of attempted second-degree murder, two counts of aggravated assault, one count of reckless endangerment, and one count of employing a firearm during the commission of a dangerous offense. After a jury trial, the Petitioner was acquitted of both counts of attempted second-degree murder but convicted of all other charges. In this post-conviction proceeding, the Petitioner contends that he received ineffective assistance of counsel. The post-conviction court denied relief. Upon review of the record, we affirm the judgment of the post-conviction court.

Paul Williams EL v. Sheriff Andy Dickson, Carroll County
W2015-01614-CCA-R3-HC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Charles C. McGinley

The Petitioner, Paul Williams el, filed a Petition for Writ of Habeas Corpus Relief, challenging his conviction for a second or subsequent offense of driving on a cancelled, suspended, or revoked license. The habeas court summarily dismissed the Petition. On appeal, we conclude that the Petition failed to meet the procedural requirements of Tennessee Code Annotated section 29-21-107. Additionally, the Petitioner's claim is based on a complete misreading of Tennessee Code Annotated section 55-50-504 and is without merit. The judgment of the habeas court is affirmed.

State of Tennessee v. Brandon Waire
M2014-02140-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Stella L. Hargrove

In December 2012, the Maury County Grand Jury indicted Brandon Waire (“the Defendant”) on three counts of sale of cocaine over .5 gram within a drug-free zone.  Following a trial, a jury convicted the Defendant as charged, and the trial court sentenced the Defendant to an effective eight years’ incarceration.  On appeal, the Defendant asserts that he is entitled to relief from his convictions because:  (1) the trial court erroneously denied the Defendant’s motion for mistrial after the State’s confidential informant testified that he had served prison time with the Defendant; (2) the Defendant’s right to a fair trial was violated when the State failed to preserve video evidence of statements made by the confidential informant in violation of State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999); (3) the trial court erred when it failed to exclude the State’s late-disclosed witness from testifying; and (4) the evidence was insufficient to support his convictions.  Upon review, we affirm the judgments of the trial court.

State of Tennessee v. David William Lowery
E2015-00924-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald R. Elledge

An Anderson County jury convicted the Defendant-Appellant, David William Lowery, as charged of three counts of aggravated child abuse.  See T.C.A. § 39-15-402(a)(1) (Supp. 2007).  The trial court imposed concurrent twenty-five-year sentences with a release eligibility of one hundred percent for each count.  See id. § 40-35-501(i) (Supp. 2008).  Lowery’s sole issue on appeal is that the evidence is insufficient to sustain his convictions.  Upon review, we affirm Lowery’s convictions but remand the case for entry of corrected judgments in counts 1, 2, and 3 to reflect that he was charged with and convicted of three counts of aggravated child abuse and that these convictions are Class A felonies.    

Jacqueline Harrison v. Shelby County Board of Education
W2015-01543-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Walter L. Evans

This is a termination of employment case. Appellant Shelby County Board of Education appeals the trial court’s decision to reinstate a tenured teacher whose employment was terminated for inefficiency. The trial court found that there was insufficient evidence to support a finding of inefficiency. Discerning no error, we affirm and remand.

In re Estate of Patrick Takashi Davis
M2015-01425-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Randy M. Kennedy

Appellant appeals the trial court’s determination that Appellee, who was born in 1992, is an heir-at-law of the Decedent, who died intestate. Appellant argues that the Appellee, as a child born out of wedlock, was required to file a claim against decedent’s estate within the statutory period in order to inherit. However, the Decedent is listed on Appellee’s birth certificate. Under Tennessee Code Annotated Section 68-3-305(b) (1992), in order for his name to be listed on Appellee’s birth certificate, the decedent would have signed an “affidavit . . . acknowledging paternity.” With the enactment, in 1994, of Tennessee Code Annotated Section 27-7-113, such “affidavits” were deemed “voluntary acknowledgment[s] of paternity,” which constitute a “legal finding of paternity.” It is undisputed that the decedent’s estate consists only of real property. Because the inclusion of decedent’s name on Appellee’s birth certificate evinces the execution of a voluntary acknowledgment of paternity that constitutes a legal finding of paternity, Appellee’s portion of the estate vested, upon decedent’s death, in Appellee pursuant to Tennessee Code Annotated Section 31-2-103 and the laws of intestate succession, Tennessee Code Annotated Section 31-2-104. Affirmed and remanded. 

Mahalet B. Girma v. Haile A. Berhe
M2015-00586-COA-R3-CV
Authoring Judge: Judge Kenny Armstong
Trial Court Judge: Judge J. Mark Rogers

This is a divorce case. Wife appeals the trial court’s order concerning the division of property and award of various fees and expenses. Because the trial court did not enter an order on Wife’s motion for reimbursement of certain fees and expenses, the judgment of the trial court is not final and appealable as of right. Accordingly, we dismiss the appeal.  

State of Tennessee v. Darrel Pathrice McNeal
W2015-00316-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald H. Allen

Following a jury trial, the Defendant, Darrel Pathrice McNeal, was convicted of aggravated robbery, a Class B felony, and evading arrest, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-13-402, -16-603(a)(1). On appeal, the Defendant challenges only the sufficiency of the evidence underlying his conviction for aggravated robbery. However, because the Defendant filed an untimely notice of appeal and the interest of justice does not favor waiver of the timely filing requirement in this case, this appeal is dismissed.

Derrick Rice v. State of Tennessee
W2015-00226-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Derrick Rice, appeals as of right from the post-conviction court’s denial of his petition for post-conviction relief wherein he challenged his convictions for first degree premeditated murder and attempted first degree murder. In this appeal, the Petitioner contends that he received ineffective assistance of counsel in the following ways: (1) general sessions counsel failed to consult with the Petitioner regarding a plea offer from the State and to explain the consequences of declining that offer; (2) trial counsel failed to investigate and subpoena witnesses; (3) general sessions counsel and trial counsel failed to adequately communicate with the Petitioner; and (4) trial counsel failed to adequately investigate and prepare the case for trial. Discerning no error, we affirm the judgment of the post-conviction court.

Reginald Rome v. State of Tennessee
W2015-01399-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge W. Mark Ward

Petitioner, Reginald Rome, appeals the dismissal of his petition for a writ of error coram nobis which alleged newly discovered evidence. The coram nobis court found that due process principles did not require tolling the statute of limitations and that Petitioner had failed to prove that he was without fault in failing to present this evidence at the proper time. Upon our review, we affirm the judgment of the coram nobis court.

State of Tennessee v. David Reed
W2015-01740-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, David Reed, appeals the trial court's denial of his motion to correct an illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Defendant argues that the trial court's failure to award post-judgment jail credit for time he spent incarcerated out-of-state prior to the revocation of his probation renders his sentence illegal. Upon our review of the record and applicable authorities, we affirm the judgment of the trial court.

Kearn Weston v. State of Tennessee
W2015-00460-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James C. Beasley, Jr.

Petitioner, Kearn Weston, appeals the denial of his petition for post-conviction relief. Petitioner argues that he received ineffective assistance of counsel when trial counsel failed to file a pre-trial motion to dismiss the charge based on the loss of a surveillance video. Upon our review, we affirm the decision of the post-conviction court.

State of Tennessee v. Anthony Bailey
W2015-00784-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Glenn Wright

The defendant, Anthony Bailey, was convicted by a Shelby County Criminal Court jury of robbery, a Class C felony, and assault, a Class A misdemeanor. He was sentenced by the trial court as a Range I, standard offender to concurrent terms of five years in the workhouse for the robbery conviction and eleven months, twenty-nine days for the assault conviction. On appeal, he argues that the evidence is insufficient to sustain his robbery conviction, the trial court erred by denying his motion to suppress the victim's pretrial and in-court identifications, and the trial court erred by enhancing his sentence and by denying his request for probation. Following our review, we affirm the judgments of the trial court.