APPELLATE COURT OPINIONS

Laurie Ann Searcy sought, by post-divorce Petition, a modification of the child custody and visitation privileges provided by the divorce decree. The trial court held that no change of circumstances had occurred “with a negative impact upon the child” and denied modification. We hold that the trial court applied an improper standard for determining the change of circumstances issue. We hold, however, that no change of circumstances has occurred under Cranston v. Combs, 106 S.W.3d 641 (Tenn. 2003) and Tennessee Code Annotated section 36-6-101(a)(2)(B) and affirm the judgment of the trial court.

Plaintiff-Appellant instituted a detainer action in general sessions court seekingpossession of property owned by Plaintiff-Appellant. From an adverse judgment in general sessions court, Plaintiff-Appellant appealed to the circuit court for a trial de novo. Defendant-Appellee filed a counter-claim in circuit court, alternatively requesting that if she is forced to vacate the premises, she should be awarded damages for improvements made to the premises. The trial court entered judgment for possession to the Defendant-Appellee. Plaintiff-Appellant appeals. We reverse.

The majority concludes that modification of the appellant’s eleven-year sentence is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

This case presents the issue of whether the trial court properly dismissed the Plaintiffs' action where there was an identical lawsuit, filed prior to this Circuit Court action, pending in General Sessions Court. We hold that the trial court correctly dismissed this case for lack of subject matter jurisdiction under the doctrine of prior suit pending.

This is an appeal of the trial court's order terminating the mother's parental rights to her six children. The mother, who had appeared at earlier hearings, did not appear at the termination hearing. A motion for default judgment was neither filed nor served on the mother. The trial court granted a default judgment based upon the mother's failure to appear at the termination hearing. We find that the mother's failure to appear did not constitute grounds for a default judgment in this case. We find that the State did not comply with Rule 55 of the Tennessee Rules of Civil Procedure. The judgment of the trial court is vacated and the cause is remanded.

The petitioner appeals the trial court's denial of his petition for writ of error coram nobis. Particularly, he avers that the court abused its discretion in summarily dismissing his petition solely on the lack of credibility of the affiant supporting the petition. We remand the matter to the trial court for an evidentiary hearing.

The defendant, Roderick Davis, was convicted by a ShelbyCountyCriminal Court jury of especially aggravated robbery, for which he received a sentence of 24 years, and especially aggravated burglary, for which he received a sentence of eleven years. The trial court imposed the sentences to run consecutively. On appeal, the defendant claims that the convicting evidence is insufficient and that the trial court erroneously excluded alibi evidence, instructed the jury, and sentenced him. Upon review, we affirm the conviction of especially aggravated robbery, reverse the conviction of especially aggravated burglary and modify it to aggravated burglary, and modify the sentences.

The appellant, Linda Herron, was convicted by a jury in the White County Criminal Court of second degree murder. The trial court sentenced the appellant to eighteen years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting her conviction and the trial court's jury instructions. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing the trial court's denial of habeas corpus relief. The Petitioner fails to assert a ground of relief entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

This is a child support action. The trial court awarded Mother retroactive child support, set base child support, and ordered Father to make monthly payments into educational and future child support trust funds. The trial court also ordered father to pay private elementary and high school tuition, provide health insurance, and maintain life insurance. The trial court awarded Mother’s reasonable attorney’s fees. We affirm as modified and remand.
 

The appellant, AB Bonding Company, Inc., appeals the order of the Davidson County Criminal
Court denying its “Motion to Remit Forfeitures” in the case of criminal defendant Elijah D. Truitt.
Because the record fails to reflect the entry of final judgments of forfeiture, the appeal is dismissed.

The Defendant was convicted for possession of cocaine with intent to sell, possession of marijuana, possession of hydromorphone, possession of diazepam, and possession of drug paraphernalia. The possession of cocaine conviction was a Class B felony and the other convictions were Class A misdemeanors. The jury also recommended fines related to these convictions. The total of the fines was just over $40,000. The trial court sentenced the defendant to eight (8) years for the possession of cocaine offense, and eleven months, twenty-nine days for each of the other offenses. These sentences were run concurrently. The trial court then granted the Defendant's request for alternative sentencing and suspended the Defendant's sentence for possession of cocaine for all but thirty (30) days and allowed him to serve ten years on intensive probation. The defendant appeals his sentence. We affirm the sentence imposed by the trial court.

This is an appeal as of right from a denial of post-conviction relief. The Defendant, John Henry Sparrow, III, was convicted by jury verdict of attempted especially aggravated kidnaping and received a twelve year sentence. This Court upheld the Defendant's conviction on direct appeal. See State v. John Henry Sparrow, III, No. M2000-03238-CCA-R3-CD, 2002 WL 560958 (Tenn. Crim. App., Nashville, April 16, 2002) (not for citation). The Defendant subsequently filed a petition for post-conviction relief, which was denied. The Defendant now appeals to this Court, raising the single issue of ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Defendant, Cedric Anthony, was indicted in count one for the aggravated robbery of Teresa Stegall, in count two for the aggravated robbery of Regina Davis, in count three for the aggravated robbery of Antoinette Hubbard, and in count four for the aggravated robbery of Leslie Ross. Following a jury trial, Defendant was convicted of all four counts of aggravated robbery and sentenced to eight years for each offense. The trial court ordered Defendant’s sentences for counts two, three, and four to be served concurrently, and his sentence for count one to be served consecutively to the other counts for an effective sentence of sixteen years. Defendant does not appeal the sufficiency of the convicting evidence but argues that his aggravated robbery convictions in counts three and four violate the principles of double jeopardy. Defendant does not argue on appeal that his conviction in count two of the aggravated robbery of Ms. Davis raises double jeopardy concerns. Defendant also argues that the trial court erred in ordering his sentence for count one, aggravated robbery, to be served consecutively to the other sentences. Since the filing of the briefs, Defendant has also asked us to consider the impact of the ruling in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) on his sentences. After a thorough review of the record, we affirm Defendant’s convictions for aggravated robbery in counts one and two. Because the facts and circumstances supporting the offenses in counts one, three, and four support only one conviction for aggravated robbery, we modify Defendant’s convictions for aggravated robbery in counts three and four to aggravated assault. We remand Defendant’s convictions in counts three and four for resentencing during which the trial court may only consider Defendant’s prior convictions as an enhancement factor under Blakely. We affirm Defendant’s convictions for aggravated robbery in counts one and two, and affirm the trial court’s imposition of consecutive sentencing.

The Petitioner, Keith Hatfield, appeals the trial court's denial of his petition for habeas corpus relief. 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 Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court.

I agree with the majority’s analysis in this case, except for its conclusion regarding whether Mother presented evidence demonstrating a need for child support based on income amounts in excess of $10,000 per month, for both the retroactive and prospective child support. Moreover, an upward deviation is warranted by Father’s failure to exercise visitation.

The petitioner, Morris Pepper, appeals as of right from the Lincoln County Circuit Court's denial of his petition for post-conviction relief from his conviction for first degree premeditated murder and sentence of life imprisonment. The petitioner contends that he received the ineffective assistance of counsel at trial. We affirm the judgment of the trial court.

The Petitioner, Jerry Anderson, appeals the trial court's denial of his petition for habeas corpus relief. 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 Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court.

A Shelby County Criminal Court jury convicted the defendant, Terry Webb, of robbery, a Class C felony, and theft of property five hundred dollars or less, a Class A misdemeanor. Following a sentencing hearing, the trial court merged the defendant’s theft conviction into his robbery conviction and sentenced him as a Range III, persistent offender, to fourteen years. In this appeal, the defendant claims (1) that the evidence is insufficient to support his conviction for robbery; (2) that the trial court erred when it denied him an opportunity to impeach a witness at trial; (3) that the trial court erred when it denied his request to alter the proposed jury instructions; (4) that the trial court erred when it allowed the victim’s in-court identification of the defendant; and (5) that his sentence is excessive. We affirm the judgment of the trial court.

The Defendant, Robert Hayden, pled guilty to aggravated robbery, especially aggravated kidnapping, and two counts of aggravated rape. His plea did not include an agreement as to his sentences, and he was subsequently sentenced by the court to twelve years for the robbery, twenty-five years for the kidnapping, and twenty-five years for each of the rapes. The sentences were imposed in such a manner as to result in an effective sentence of sixty-two years. The Defendant subsequently filed a direct appeal, claiming that his sentences were excessive. This Court affirmed the trial court's judgments. See State v. Robert A. Hayden, No. M2000-00901-CCA-MR3-CD, 2001 WL 567869 (Tenn. Crim. App., Nashville, May 25, 2001). The Defendant then filed for post-conviction relief, alleging that he received ineffective assistance of counsel in conjunction with his guilty plea and sentencing hearing. He further alleged that his plea was unknowing and involuntary because he was under the influence of medication at the time. After an evidentiary hearing, the trial court denied relief. This appeal followed. We affirm the judgment of the trial court.

The petitioner, Brian K. Mitchell, appeals pro se from the Lake County Circuit Court’s dismissal of his petition for habeas corpus relief. The petitioner attacks his conviction for especially aggravated burglary, a Class B felony, for which he received a thirty-year sentence. He contends that his sentence is illegal because, although he is a Range I, standard offender, the sentence he received is the maximum within Range III. We affirm the trial court’s dismissal of the petition.

After the Jefferson County Circuit Court revoked his probation, the defendant, Johnny Arwood, agreed to consecutive sentences in exchange for being placed back on probation. In this appeal, the defendant contends that the trial court erred by imposing consecutive sentences without first conducting a sentencing hearing or ordering a presentence report. We vacate the trial court's judgments and remand the case for proceedings consistent with this opinion.

A Hamilton County Grand Jury indicted the defendant, Gene Shelton Rucker, Jr., for felony murder and aggravated arson in connection with a fire that took the life of an individual who resided in the apartment structure that was burned. Following a jury trial, the defendant was convicted of the lesser-included offense of criminally negligent homicide and aggravated arson, as charged. The defendant now appeals his convictions and sentence. Specifically, the defendant argues (1) that the trial court erred by instructing the jury on criminal responsibility for the conduct of another; (2) that setting fire to personal property is a lesser-included offense of aggravated arson and should have been included in the charge to the jury; (3) that the instruction on the knowing mens rea element of aggravated arson was incorrect; (4) that the state violated the defendant's due process rights by advancing impermissibly inconsistent positions relative to the defendant and an indicted co-defendant; (5) that the evidence was insufficient to support his convictions; and (6) that his sentence should not have been enhanced on the basis of prior convictions that were not proven by certified copies of the underlying judgments. After a thorough review of the record, we affirm the defendant's convictions and sentence.

Defendant Jermaine Ivory was convicted by a jury of three charges involving the sale of cocaine. For these crimes, the trial court sentenced Jermaine Ivory to an effective sentence of thirty-six years in the Department of Correction. Codefendant James Ivory was convicted by the same jury of one of the same charges; James Ivory subsequently pled guilty to another cocaine offense, two marijuana offenses, and one count of felony possession of a firearm. For all of these offenses, James Ivory was sentenced to an effective sentence of twenty years in the Department of Correction. The consolidated direct appeal of these two Defendants was denied. See State v. James Lee Ivory, No. M2000-02145-CCA-R3-CD, 2003 WL 76980 (Tenn. Crim. App., Nashville, Jan. 10, 2003). Both Defendants subsequently filed for post-conviction relief. Jermaine Ivory alleged ineffective assistance of counsel in conjunction with his trial, claiming that his lawyer failed to adequately investigate his case, failed to adequately advise him about his case, and failed to investigate and/or pursue issues involving his mental health. James Ivory alleged that his trial counsel was ineffective at trial in failing to object to inadmissible evidence, and in failing to file a motion for new trial, thereby waiving a suppression issue. James Ivory also alleged that, due to his lawyer's ineffective assistance, his later guilty pleas were not knowing and voluntary. After a hearing, the trial court denied relief to both Defendants and this direct appeal followed. We affirm the judgments of the trial court.