APPELLATE COURT OPINIONS

The Appellant, Shelby County Division of Corrections (“SCDC”), appeals the judgment of the trial court in favor of Appellee inmates. Appellee inmates filed suit against the SCDC, under the Tennessee Governmental Tort Liability Act (“GTLA”), for injuries sustained when a metal ventilation system fell from the ceiling while officers were performing a search of the cell block. The SCDC asserts three points of error: (1) that the SCDC is not a governmental entity, as defined by T.C.A.§ 29-20-102(3)(A) of the GTLA so as to be subject to suit thereunder; (2) that expert testimony was required as to the cause of the system’s collapse; and (3) that the trial court erred in not considering the fault of unknown inmates in manipulating the ventilation system. Finding no error, we affirm.

This appeal arises out of a real estate transaction in Maury County, Tennessee, wherein the Plaintiffs/Appellants purchased property from Defendants/Appellees John T. Mountain and Melody Mountain. Defendant/Appellee Carl Brooks served as an independent real estate agent for the transaction. Plaintiffs filed suit against the Defendants alleging fraud, misrepresentation and violation of the Consumer Protection Act. Both Defendants filed motions for summary judgment. By Order dated April 19, 2006, the trial court granted summary judgment in favor of the Defendants. Subsequently, the trial court awarded discretionary costs against the Plaintiffs. For the following reasons we affirm the judgment of the trial court.

The defendant, Jeffrey Lee Fields, appeals the order declaring him a motor vehicle habitual offender (MVHO) by default judgment. He contends, and the State agrees, that the Rules of Civil Procedure were not followed regarding service of process, notice of hearing, notice of default judgment, notice of entry and service of judgment. Further, he contends there were insufficient convictions to support a judgment declaring him a motor vehicle habitual offender. After review, we conclude that a conviction on appeal is a final conviction for the purpose of determining MVHO status; however, because the proper procedures were not followed in obtaining the judgment declaring the defendant a motor vehicle habitual offender, it should be vacated.

The Petitioner, Ricky Flamingo Brown, was convicted in 1986 of rape of his twelve year old daughter. The trial court sentenced him in abstentia to life in prison after he escaped from jail. After his capture in 1990, he began to serve his sentence. Upon agreement by the State, the Petitioner proceeded with a delayed direct appeal, which this Court dismissed. The Petitioner subsequently filed a number of collateral appeals, all of which were denied by the trial court, with some of those judgments appealed and affirmed in this Court. In 2006, the Petitioner then filed this habeas corpus petition alleging a void sentence. The habeas corpus court denied the petition without a hearing. After a thorough review of the applicable record and law, we affirm the judgment of the habeas court.

The majority, after finding plain error, remands for re-sentencing to conform with the requirements of Blakely v. Washington. I must respectfully dissent.

The Defendant, Timothy R. Bouton, appeals from the sentencing decision of the Hamilton County Criminal Court. The Defendant pled guilty to vehicular homicide and reckless endangerment with a deadly weapon. At a subsequent sentencing hearing, the trial court followed the pre-2005-revision sentencing law and imposed an effective ten-year sentence as a Range I, standard offender in the Department of Correction. In this appeal, the Defendant argues, for the first time, that the United States Supreme Court’s Blakely v. Washington, 542 U.S. 296 (2004), decision precludes enhancement of his vehicular homicide sentence above the presumptive minimum of eight years. The Defendant also argues that the trial court erred by ordering a sentence of total confinement. After a review of the record, we conclude that the trial court did not err in denying the Defendant an alternative sentence. However, we must notice as plain error that the trial court improperly enhanced the Defendant’s sentence by applying factors that were not determined by a jury. Because we cannot determine from the record before us the proper sentence to be imposed, this matter is remanded to the trial court for further resentencing in accordance with this opinion.

The trial court granted summary judgment to the defendant public housing authority, dismissing claims by its former employees for retaliatory discharge in violation of the Tennessee Public Protection Act and for constructive discharge based on a racially hostile work environment in violation of the Tennessee Human Rights Act. Because we find that the employees failed (1) to establish an essential element of a claim for retaliatory discharge or (2) to show that the hostile work environment was racially discriminatory, the judgment of the trial court is affirmed in all respects.

The petitioner, Courtney Perry, sought post-conviction relief from his conviction of felony murder and especially aggravated robbery. The Shelby County Criminal Court denied relief after an evidentiary hearing. On appeal, the petitioner argues he received ineffective assistance of counsel because trial counsel failed to raise a proper defense of duress and failed to address why the petitioner was present at the murder scene. We affirm the denial of post-conviction relief.

ORDER GRANTING IN PART AND DENYING IN PART APPELLEES’ PETITION TO REHEAR The appellees, NHC/OP, L.P., National Health Realty, Inc., NHC, Inc., a/k/a NHC, Inc., Tennessee, and National Health Corporation, have filed a petition to rehear the opinion of this Court filed on November 8, 2007. By order of January 4, 2008, appellant, Dorothy Owens, was ordered to file a response to the petition to rehear. Appellant’s response was filed on January 16, 2008. In their petition, the appellees allege that the Court improperly allowed discovery as to the principal’s competence to sign the power of attorney. Upon due consideration, the Court concludes that appellees’ petition to rehear is well-taken as to this issue and should therefore be granted. The petition to rehear is denied as to the remainder of the issues . It appearing to the Court from appellees’ Petition to Rehear and appellant’s response that footnote 4 of its Opinion filed November 8, 2007, should be modified, IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the attached Opinion be and the same is hereby substituted for that Opinion filed in this cause on November 8, 2007, without change to this Court’s judgment entered  contemporaneously with the filing of the original Opinion on November 8, 2007, and without the further taxing of costs. PER CURIAM

Defendant, William Keith Gillum, was charged in count one of the indictment with first degree premeditated murder, and in count two with aggravated assault. Defendant entered a best interest plea of guilty in count one to the lesser included offense of voluntary manslaughter, a Class C felony, and the State dismissed count two of the indictment. Following a sentencing hearing, the trial court sentenced Defendant to seven years. The trial court ordered Defendant to serve three months in the county workhouse, with Defendant placed on probation for the balance of his sentence. On appeal, Defendant challenges the length of his sentence, arguing that the trial court erred in the weight assigned to the one enhancement factor and the three mitigating factors. After a thorough review, we affirm the judgment of the trial court.

The Petitioner, Paul Graham Manning, appeals from the judgment of the trial court dismissing his petition for writ of error coram nobis. The trial court dismissed the petition because it was not timely filed and because the petition did not allege newly discovered evidence or make allegations which had not been previously raised or litigated. Following our review, we affirm the judgment of the trial court.

I concur in the majority’s analysis of the alleged Miranda violations in Parts I and II (A). I respectfully dissent, however, as to the majority’s conclusions in Part II (B) concerning the motion to suppress the evidence discovered in R.D.S’s truck.

Defendant pled guilty to misdemeanor possession of cocaine. Prior to his plea, Defendant filed and the trial court heard a suppression motion. The trial court, after the hearing and submission of briefs by the parties, denied the motion. Defendant properly preserved a certified question of law. After a thorough review of the record, we reverse the judgment of the trial court and dismiss the charge against Defendant.

R.D.S. v. STATE OF TENNESSEE
Appeal by Permission from the Court of Appeals, Middle Section
Circuit Court for Williamson County
No. II-CR04274 R.E. Lee Davies, Judge
No. M2005-00213-SC-R11-JV - Filed February 6, 2008
JANICE M. HOLDER, J., concurring and dissenting.
I concur in the majority’s analysis of the alleged Miranda violations in Parts I and II (A). I
respectfully dissent, however, as to the majority’s conclusions in Part II (B) concerning the motion
to suppress the evidence discovered in R.D.S’s truck.

The defendant, Michael Anthony Sales, pleaded guilty to two counts of violating an habitual traffic offender order and was sentenced to consecutive terms of five years and six months in the Department of Correction for each offense. On appeal, the petitioner argues that the sentence he received is excessive and contrary to law. We affirm the sentence of the trial court.

This appeal arises out of a finding of delinquency following a denial of a motion to suppress
incriminating statements and seized evidence. The trial court found that the juvenile defendant was not in custody at the time he made his incriminating statements, thus not triggering Miranda requirements; the Court of Appeals agreed. We affirm that part of the Court of Appeals’ holding. However, due to a lack of evidence in the record regarding the law enforcement officer’s role as a school resource officer, we remand the case to the trial court for a new trial to determine whether the law enforcement officer was required to have reasonable suspicion or probable cause to search the juvenile defendant’s truck. Tenn. R. App. P. 11; Judgment of the Court of Appeals Affirmed in Part, Reversed in Part and Remanded
 

This interlocutory appeal arises from a petition for contempt to enforce a child support order. Although it is undisputed that neither the parents nor the child who is the subject of the support order in this case resided in Crockett County for at least six months prior to the filing of the current petition, the trial court denied Mother’s request under Tennessee Code Annotated § 36-5-3003 to transfer the matter to Dyer County, where the child resides with Father. We reverse, remand, and order the matter transferred.

I respectfully dissent from the conclusion that probable cause did not exist for the search of the defendant. I would hold that the canine’s positive alert on the defendant’s car provided the authorities with probable cause to search the defendant, the car’s driver.

The defendant, Triston Lee Harris, appeals a certified question of law following his Lawrence County Circuit Court June 12, 2006 conviction of possession of cocaine with intent to sell, for which he received a six-year Department of Correction sentence. The defendant challenges the circuit court’s denial of his motion to suppress. We hold that although the defendant’s vehicle was subject to a search following a proper canine sweep, the contraband which was found on the defendant’s person should have been suppressed, and we reverse the judgment of the trial court.

The petitioner, Charles G. Summers, appeals the summary dismissal of his petition for writ of habeas corpus. He contends that his sentence is illegal and that his judgment is, therefore, void. The petitioner has established that his sentence for escape was imposed in direct contravention of a statute, and is, therefore, illegal and void. Because the petitioner has made a threshold showing that he is entitled to habeas corpus relief, the judgment of the habeas corpus court is reversed, and the case is remanded for the appointment of counsel and an evidentiary hearing to determine the scope of the remedy available to the petitioner.

The defendant, James David Johnson, was convicted of premeditated first degree murder; felony first degree murder; aggravated robbery, a Class B felony; and theft over $10,000, a Class C felony. The felony first degree murder conviction was merged with the premeditated first degree murder, and a life sentence was imposed. The defendant was sentenced to eighteen years as a multiple offender for aggravated robbery and to fifteen years as a career offender for theft over $10,000. The theft offense was set as concurrent to the aggravated robbery, but the two, together, were consecutive to the life sentence. This resulted in an effective sentence of life imprisonment plus eighteen years. On appeal, the defendant submits three issues: (1) the evidence was insufficient to support the convictions; (2) the trial court erred in failing to suppress the defendant’s statements; and (3) the trial court erred in admitting hearsay testimony. After review, we affirm the convictions.

The pro se petitioner, Bobby A. Davis, appeals the summary dismissal of his petition for writ of habeas corpus, arguing that his aggravated rape and aggravated robbery convictions are void due to various defects in the indictments. Following our review, we affirm the summary dismissal of the petition.

The Petitioner, David Wayne Smart, was convicted in 2001 of first degree premeditated murder and sentenced to life in prison. We affirmed that judgment on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The Petitioner subsequently filed a petition for post-conviction relief alleging he was denied the effective assistance of counsel. The post-conviction court denied the petition after a hearing. Upon a thorough review of the applicable record and law, we affirm the judgment of the post-conviction court.

This appeal arises from a dispute regarding the trial court’s award of alimony in futuro to Paula Nesbitt. The trial court granted the parties’ divorce, pursuant to Tennessee Code Annotated § 36-4-129, and ultimately awarded the divorce to the wife because the husband appeared to be at greater fault on the grounds of inappropriate marital conduct. Farrell Nesbitt challenges the trial court’s alimony in futuro award, arguing rehabilitative alimony was the proper award. We affirm the trial court’s ruling. Costs of this appeal shall be assessed to the appellant, Ferrell Nesbitt.

The Appellant, Christopher Keyln Dearing, proceeding pro se, appeals the Johnson County Criminal Court’s summary dismissal of his petition for the writ of habeas corpus. Dearing is currently an inmate at Northeast Correctional Complex in Johnson County as a result of his convictions for Class under the terms of his plea agreement, he pled guilty to Class D theft in exchange for a sentence of two years; however, the judgment form and Department of Correction records show that the actual length of the sentence he is serving is two years and one day. Dearing argues that, because the State has breached the plea agreement, his sentence of two years and one day is void. After review, we agree with the trial court that Dearing’s petition fails to state a cognizable claim for habeas corpus relief. Accordingly, the judgment of the trial court is affirmed.