APPELLATE COURT OPINIONS

The Appellant, Carlos Williams, appeals the summary dismissal of his pro se petition for post-conviction relief. On appeal, Williams acknowledges that the instant petition was not timely filed; however, he alleges that a prior petition was timely delivered to the appropriate prison  official for filing but apparently never received by the Shelby County Criminal Court Clerk. For this reason, we find it necessary to vacate the post-conviction court's ruling and remand for a determination of whether Williams’ prior petition was timely filed.

This is an appeal of a final decree of divorce primarily as it concerns custody of the parties’ children. The trial court awarded custody to mother and provided for a supervised visitation to father. Father appeals and, in addition to the custody issue, also presents issues pertaining to the trial court’s out-of-court interview with the children and the mental examination of the parties. We affirm.
 

The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. The judgment of the trial court is affirmed.

Petitioner, Nelson Keith Foster, appeals from the trial court's dismissal of his petition for post-conviction relief, without affording Petitioner an evidentiary hearing. In his petition, Petitioner asserted that he was entitled to relief from his three convictions for violation of the Habitual Motor Vehicle Offender Act (HMVO) due to ineffective assistance of counsel. The trial court dismissed the petition because Petitioner had argued in his direct appeal from the convictions that he was entitled to relief because he had received ineffective assistance of counsel. We affirm the judgment of the post-conviction trial court.

Following a judicial diversion revocation hearing, the trial court sentenced Defendant to six years in the Tennessee Department of Correction in accordance with the terms of his plea agreement which had been negotiated at the time Defendant pled guilty to one count of aggravated assault. The trial court sentenced Defendant without conducting a sentencing hearing. Defendant now appeals his sentence of confinement arguing that the terms of his plea agreement called for a probated sentence in the event his judicial diversion was subsequently revoked. Alternatively, Defendant argues that the terms of his plea agreement did not survive the revocation of his judicial diversion, and the trial court should have conducted a sentencing hearing prior to imposing Defendant's sentence. Defendant also argues that the trial court erred in requiring him to report to his probation officer as a condition of bond pending appeal. Following a thorough review of the record in this matter, we affirm the judgment of the trial court.

Wife filed for divorce alleging Husband was guilty of inappropriate marital conduct. Trial court granted Wife an absolute divorce, ordered a martial property distribution, and awarded wife alimony and attorney’s fees. Husband appeals. We affirm the distribution of marital property, modify the award of attorney’s fees, vacate the requirement to provide life insurance and remand.
 

Whether properly assigned or not this court may consider plain error upon the record under Rule 52(b) of the Tennessee Rules of Criminal Procedure. State v. Ogle, 666 S.W.2d 58 (Tenn. 1984). Before an error may be so recognized, it must be “plain” and must affect a “substantial right” of the accused. The word “plain” is synonymous with “clear” or equivalently “obvious.” United States v. Olano, 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous, but especially egregious error that strikes at the fairness, integrity, or public reputation of judicial proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined “substantial right” as a right of “fundamental proportions in the indictment process, a right to the proof of every element of the offense and . . . constitutional in nature.” In that case, this court established five factors to be applied in determining whether an error is plain:

(a) The record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused [must not have waived] the issue for tactical reasons; and
(e) consideration of the error must be "necessary to do substantial justice."

Id. at 641-42. Our supreme court characterized the Adkisson test as a “clear and meaningful standard” and emphasized that each of the five factors must be present before an error qualifies as plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).

The defendant was convicted of third offense driving under the influence (DUI) and driving on a revoked license. He contends on appeal that (1) the evidence was insufficient to support the convictions, (2) the trial court erred in denying his motion to suppress because the deputy did not have reasonable suspicion to initiate the stop, and (3) the deputy's mention of the horizontal gaze nystagmus (HGN) test during his testimony entitled the defendant to a mistrial. Concluding that no reversible error occurred, we affirm the judgments of the trial court.

The Defendant, Latasha Atkins, appeals her jury conviction for possession of cocaine with intent to sell, contending the evidence is insufficient to support her conviction. We disagree and affirm the judgment of the trial court.

This case arises out of a breach of contract by the Defendant for a roof Defendant installed on Plaintiff's freezer storage facility. The case was tried before a jury, who found the Defendant had materially breached the contract between the parties and awarded Plaintiff damages in the amount of $5,655.00. Subsequently, Plaintiff filed a motion to alter or amend the judgment or, in the alternative, a motion for additur or new trial. The trial court denied the motion to alter or amend the judgment but suggested an additur increasing the award to $30,655.00, which Defendant appealed. For the following reasons, we affirm the decision of the trial court.

The Defendant, Roger V. Alexander, pled guilty to one count of possession of anhydrous ammonia, a Class E felony. The trial court sentenced the Defendant to four years in the Department of Correction. The Defendant now appeals, alleging that the trial court should have sentenced him to Community Corrections. We affirm the judgment of the trial court.

I join with the majority in concurring that the Defendant is not entitled to the alternative sentence of Community Corrections. The Defendant is a Range II multiple offender, possessing a criminal history evincing a clear disregard for the law and whose past efforts at rehabilitation have failed. Thus, in the absence of evidence to the contrary, he is not entitled to the presumption in favor of alternative sentencing. Tenn. Code Ann. § 40-35-102(6). For this reason, I would affirm.

The petitioner appeals the dismissal of his petition for post-conviction relief from his second degree murder conviction, arguing that the post-conviction court erred in finding that he received the effective assistance of trial counsel. Based on our review of the record, we conclude the petitioner failed to meet his burden of demonstrating by clear and convincing evidence that he was denied the effective assistance of counsel. Accordingly, we affirm the post-conviction court's dismissal of the petition.

This appeal involves a state prisoner who desires to change his name for religious reasons. Even though the prisoner's petition was uncontested, the Davidson County Probate Court declined to permit the prisoner to change his name solely because he had been convicted of a felony. While we have determined that the probate court erred by denying the prisoner's petition solely because he had been convicted of a felony, we have determined that the petition was properly dismissed.

The Petitioner, James K. Robbins, appeals the trial court's dismissal of his petition for writ of habeas corpus. 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. The petitioner has not established that the challenged judgment is void or that his sentence has expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The petitioner, Conley R. Fair, filed for post-conviction relief, alleging the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition without an evidentiary hearing and without the appointment of counsel, finding that the petition was not timely filed. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for the appointment of counsel and an evidentiary hearing.

Following a jury trial, Defendant, Sedrick Williams, was found guilty of one count of first degree murder and one count of attempt to commit first degree murder. The trial court sentenced Defendant to life imprisonment for the first degree murder conviction. Following a sentencing hearing, the trial court sentenced Defendant to twenty-five years imprisonment for the attempted first degree murder conviction, and ordered his sentence for attempted first degree murder to run concurrently with his sentence for first degree murder. On appeal Defendant argues that the evidence was insufficient to support his convictions. Specifically, Defendant contends that the jury misapplied the law in rejecting his defense of self-defense, and the State failed to prove beyond a reasonable doubt that he acted with premeditation. Defendant also argues that the trial court's charge to the jury on flight, coupled with prosecutorial misconduct during closing argument, denied Defendant a fair trial. Defendant does not appeal his sentences. After a careful review of the record in this matter, we affirm the judgments of the trial court.

The appellant, Arthur Buford III, was convicted by a jury of two counts of first degree murder. After being sentenced to two consecutive life sentences, the appellant presents the following issues or our review: (1) whether the trial court abused its discretion by allowing the introduction of photographic evidence of the crime scene; (2) whether the evidence is sufficient to sustain the convictions; and (3) whether the trial court properly sentenced the appellant. Finding no reversible error, we affirm the judgment of the trial court.

A Shelby County jury convicted the defendant, Cornelius Richmond, of one count of robbery and three counts of forgery. The trial court ordered the defendant to serve an effective sentence of thirtythree years as a career offender. On appeal, the defendant contends: (1) the trial court erred in denying his motion to suppress his statement to the police; (2) the evidence is insufficient to support his robbery conviction; and (3) the trial court erred in failing to instruct the jury on facilitation as a lesser-included offense. Upon review of the record and the applicable law, we affirm the judgments of the trial court.

In 1964, Mr. and Mrs. Woodard executed a Joint Last Will and Testament (the "Joint Will") which provided that the survivor would receive the decedent's entire estate in fee simple. The Joint Will further provided that, upon the death of the survivor, the survivor's estate would be divided in equal one-fourth shares among George D. Woodard ("Plaintiff"), Mr. Woodard's son from a previous marriage, and Mr. and Mrs. Woodard's three daughters. Mrs. Woodard executed a new will in 1998 (the "1998 Will"), approximately twenty years after Mr. Woodard's death. Pursuant to the terms of the 1998 Will, Plaintiff was to receive $10,000, with the remainder of Mrs. Woodard's estate to be divided equally among her three daughters. Mrs. Woodard's three daughters sought to probate the 1998 Will after she passed away. Plaintiff then filed this lawsuit claiming, among other things, that the Joint Will created a contractual obligation on the part of Mrs. Woodard to distribute her estate in accordance with the terms of the Joint Will and, therefore, Plaintiff was entitled to one-fourth of Mrs. Woodard's estate. Plaintiff sued Mrs. Woodard's estate as well as his three half-sisters, Sandra Norton, Martha Scissom, and Barbara Lambert (collectively referred to as "Defendants"). The Trial Court granted Defendants' motion for summary judgment. We conclude there is a genuine issue of material fact regarding whether there existed a contractual obligation on the part of Mrs. Woodard to distribute her estate according to the terms of the Joint Will. Accordingly, we vacate the judgment of the Trial Court and remand for further proceedings.

Defendant, Jonathan M. Light, pled guilty to two counts of Class D felony burglary, one count of Class D felony theft, and one count of Class E felony theft. Pursuant to the negotiated plea agreement, he received sentences of two years for each of the Class D felonies, and one year for the Class E felony, all to be served concurrently with each other for an effective sentence of two years. Pursuant to the agreement, the manner of service of the sentence was to be determined by the trial court following a sentencing hearing. Defendant requested to serve his sentence in the Community Corrections program, but the trial court ordered the entire sentence to be served by incarceration. Defendant has now appealed this decision by the trial court. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

The plaintiff filed suit for repayment of $25,000 which he purportedly loaned to the defendant. The defendant contended that the money was not a loan, but was placed with him for a specific investment. Since the investment ultimately failed, the defendant claimed that he did not owe anything to the plaintiff. The trial court noted that the documents evidencing the transactions at issue were “replete with ambiguities,” but found that they were nonetheless sufficient to establish an enforceable loan contract. The court accordingly rendered a plaintiff’s judgment for $25,000 plus interest. We reverse.