APPELLATE COURT OPINIONS

This is an appeal from an order denying the defendants’ motions seeking to compel the parties to participate in mandatory arbitration. The trial court denied the motions to compel arbitration with respect to “the issue of the unconscionability of the precise agreement to arbitrate or delegation to arbitration” and “the issue of cancellation of the purchase agreements,” finding that such issues presented questions for the court rather than an arbitrator. The trial court also determined that the defendants had not waived their right to arbitration. The defendants timely appealed. Discerning no reversible error, we affirm the trial court’s judgment.

Petitioner, Christopher Bailey, appeals the denial of his petition for post-conviction relief. Following a jury trial, Petitioner was convicted of one count of rape of child and sentenced to twenty-five years at one-hundred percent. Petitioner contends on appeal that the
post-conviction court erred in denying the petition for post-conviction relief because he was denied effective assistance of counsel. He contends that trial counsel was ineffective for (1) failing to file a pre-trial motion in limine; (2) failing to object when the State asked the victim to testify about other times in which Petitioner forced the victim to perform oral sex; (3) asking the victim’s stepsister about her opinion of Petitioner’s character for truthfulness; (4) asking the victim why she slept downstairs; (5) failing to object when the State asked the victim about counseling and her medication; and (6) failing to argue during the Rule 412 hearing that Petitioner should be permitted to introduce evidence concerning the victim’s prior sexual behavior. Petitioner further argues: that the cumulative effect of trial counsel’s errors warrants post-conviction relief; that the post-conviction court erred in denying Petitioner’s request for funding for an investigator; and that the post-conviction court erred in denying Petitioner’s request to call the prosecutor as a witness at the post-conviction hearing. Following a review of the briefs and the record, we affirm the judgment of the post-conviction court.

The Appellant, Adonis Reynolds, pled guilty in the Knox County Criminal Court to two counts of burglary of a vehicle, one count of fraudulent use of a credit card, two counts of theft, and one count of evading arrest. Pursuant to the plea agreement, he received an effective three-year sentence in the Tennessee Department of Correction (TDOC). The trial court granted the Appellant judicial diversion and placed him on supervised probation for three years. Subsequently, the trial court revoked his probation and his judicial diversion and ordered that he serve his effective three-year sentence in confinement. On appeal, the Appellant contends that the trial court abused its discretion by revoking his probation and judicial diversion. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Following a jury trial in the underlying contract action and upon a verdict finding misrepresentation/concealment, the trial court entered a monetary judgment in favor of the plaintiff, Ski Chalet Village Owners Club, Inc. (“Ski Chalet”), and against the defendants, Richard Pate and Clint Bowman d/b/a P&B Construction & Remodeling, and J. Ron Dillmon, jointly and severally, in the amount of $166,401.26 for compensatory damages plus $190,000.00 in punitive damages.1 The trial court also awarded to Ski Chalet a $1,000.00 judgment against Mr. Dillmon on a separate claim of defamation. Upon Mr. Dillmon’s subsequent pro se motion, the trial court denied his request for a new trial, finding, inter alia, that Mr. Dillmon had failed to meet his burden of providing a valid excuse for his failure to appear at trial, failed to file any pleadings stating the reason for his failure to appear, and refused to testify under oath when given an opportunity to explain his failure to appear. In addition, the trial court found that an affidavit executed by a physician who had treated Mr. Dillmon, which Mr. Dillmon had filed with his motion for a new trial, did not sufficiently support a valid reason for Mr. Dillmon’s failure to appear. The trial court subsequently denied a motion filed by Mr. Dillmon for production of the trial transcript. Concerning a motion for the trial court judge’s recusal and a motion for contempt against opposing counsel filed by Mr. Dillmon after he had filed a notice of appeal, the trial court entered an order finding that it did not have subject matter jurisdiction to consider either motion. Mr. Dillmon has appealed. Discerning no reversible error, we affirm. Upon an issue raised by Ski Chalet, we decline to find the appeal frivolous and deny Ski Chalet’s request for attorney’s fees and expenses on appeal.

The Petitioner, Reginald McWilliams, acting pro se, appeals from the Shelby County Criminal Court’s denial of post-conviction relief for failure to prosecute on the part of the Petitioner. Because the record does not establish an abuse of process, we reverse the judgment of the post-conviction court and remand this matter for proceedings consistent with this opinion

The Appellant, Mario Johnson, appeals the trial court’s summary denial of his motion to correct an illegal sentence. The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Following a revocation hearing, the trial court revoked the probation of Defendant, Samantha Darlene Brewer, and ordered confinement for her sentence. On appeal, Defendant alleges the trial court abused its discretion and requests split confinement and furlough to substance abuse and mental health treatment courses. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

A Maury County Circuit Court Jury convicted the Appellant, Juan Ramon Chaves-Abrego, of rape of a child, a Class A felony, and the trial court sentenced him to thirty years to be served at one hundred percent. On appeal, the Appellant contends that the evidence is insufficient to support the conviction, that the admission of the victim’s forensic interview into evidence violated his right to confrontation, that the trial court erred by allowing proof of other bad acts, that cumulative error requires reversal of his conviction, and that his sentence is excessive. Based upon the record and the parties’ briefs, we conclude that the evidence is sufficient to support the conviction, that the Appellant’s sentence is not excessive, and that his remaining issues have been waived because his motion for new trial was untimely. Accordingly, we affirm the judgment of the trial court.

Jodie T. (“Mother”) appeals the termination of her parental rights to the minor children, Johnathan T., Jaylynn T., Jayla T., Johnna T., and Jaydan T. (collectively, “the Children”). In January 2019, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate Mother’s rights to the Children in the Campbell County Juvenile Court (“Juvenile Court”). Following a hearing in June 2019, the Juvenile Court terminated Mother’s parental rights after finding that DCS had proven the statutory ground of substantial noncompliance with the permanency plans and that termination of Mother’s parental rights was in the Children’s best interest. Mother timely appealed. Discerning no reversible error, we affirm.

A jury convicted the Defendant, Precious Briana Horton, of two counts of aggravated robbery, and the Defendant pleaded guilty to one count of theft of property valued under $500. The trial court sentenced the Defendant to eight years of incarceration. On appeal, the Defendant contends that: (1) the State exercised its preemptory challenges in a discriminatory manner; (2) the trial court erred when it excluded testimony regarding the Defendant’s mental health; (3) the trial court prohibited her from offering to the jury her pretrial, out-of-court statement; and (4) the evidence is insufficient to sustain one of her aggravated robbery convictions. After review, we affirm the trial court’s judgments.

A Shelby County Jury found Defendant, Rodney Miller, guilty of rape of a child, aggravated statutory rape, and aggravated sexual battery. The trial court imposed a sentence of thirty-six years for rape of a child, four years for aggravated statutory rape, and ten years for aggravated sexual battery to be served consecutively in confinement. On appeal, Defendant raises the following issues: (1) whether the evidence was sufficient to support his conviction for rape of a child; (2) whether the trial court properly admitted the victim’s medical history provided during her SANE examination; (3) whether the trial court properly denied Defendant’s motion for a bill of particulars; (4) whether the trial court erred by failing to merge Defendant’s conviction for aggravated sexual battery into his conviction for rape of a child; (5) whether the trial court erred by ordering consecutive sentences; and (6) cumulative error. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

The Petitioner, Shawn Dallas Owen, pled guilty to one count each of burglary, identity theft, credit card fraud, forgery, simple possession of marijuana, and driving on a revoked license. The Petitioner was given a total effective sentence of fourteen years to be served on supervised probation. Upon being served with a warrant alleging the Petitioner violated his probation, he subsequently filed a petition seeking post-conviction relief from his guilty plea, alleging, among other things, that trial counsel was ineffective because of the failure to properly advise the Petitioner regarding the grading of the credit card fraud offense to which he was pleading guilty. The Petitioner appeals the postconviction court’s denial of relief. Following our review, we affirm.

A jury convicted Defendant, Marcus Sturghill III, of two counts of aggravated robbery, and he received an eight-year sentence. Defendant was seventeen at the time he committed the crimes, and he gave a statement to law enforcement outside the presence of his parents, confirming that he had possession of a firearm on the date of the robbery. Defendant appeals the trial court’s denial of his motion to suppress his statement to police. We conclude that the trial court did not err in admitting the statement, and we affirm the convictions.

The Petitioner, Thomas Mitchell, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction for burglary, for which he is serving a ten-year, Range III sentence. He contends that the post-conviction court erred in denying relief on his ineffective assistance of counsel claims that (1) counsel failed to object and to request a mistrial when a witness testified that a police officer knew the Petitioner by name, (2) counsel failed to impeach a witness with prior inconsistent statements, (3) counsel failed to call a police officer as a witness, (4) counsel stated in closing argument that a witness had given a statement to the police in which the witness said the Petitioner entered one of the buildings from which the Petitioner was alleged to have removed wiring, (5) counsel failed to state explicitly in closing argument that the jury should consider lesser included offenses, and (6) the cumulative effect of counsel’s deficient performance in multiple instances deprived the Petitioner of the effective assistance of counsel. We affirm the judgment of the post-conviction court.

The Defendant, Timothy Dwayne Ison, alias, was convicted by a jury of first degree premeditated murder, for which he received a sentence of life imprisonment without the possibility of parole. On appeal, the Defendant argues (1) that there was insufficient evidence to support his conviction, specifically, challenging the element of premeditation, and (2) that evidence from social media posts was improperly admitted. After a thorough review of the record, we affirm the judgment of the trial court.

The Petitioner, Zacharious Cole, appeals from the order of the Madison County Circuit Court denying post-conviction relief from his jury convictions of attempted first-degree murder, especially aggravated robbery, and employing a firearm during the commission of a dangerous felony, for which he received an effective term of twenty-six years’ imprisonment. Following an evidentiary hearing, the
post-conviction court determined that trial counsel’s advice to the Petitioner to enter a post-sentencing waiver of his right to direct appeal was deficient but not prejudicial. On appeal, the Petitioner argues that the post-conviction court erred in denying relief. Because the record shows that the Petitioner was denied the right to pursue a direct appeal based on ineffective assistance of counsel, this matter is remanded to the trial court for entry of an order allowing the filing of a motion for new trial. See T.C.A.
§ 40-30-113(a)(3). Accordingly, the judgment of the post-conviction court is reversed, and this matter is remanded for proceedings consistent with this opinion.

A mother’s parental rights to her daughter were terminated on four grounds and on the trial court’s finding that termination was in the child’s best interest. Upon our review, we conclude that the record does not support the court’s determinations with respect to two of the grounds or the holding that termination of the mother’s rights was in the best interest of the child. While we affirm two of the grounds upon which the court terminated Mother’s rights, our reversal of the holding that termination of the mother’s rights was in the child’s best interest requires that the judgment be reversed and the petition dismissed.

I concur with the majority’s opinion except as to the holding that the ground as to the “failure to manifest an ability and willingness to assume custody” was not satisfied. This Court is split on this issue, and I agree with the line of cases that hold that the parent has to be able and willing rather than just either of the two. See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-14 (Tenn. Ct. App. June 20, 2018). I concur in all the rest of the majority’s opinion including termination of the father’s parental rights. Given this Court’s clear and irreconcilable split as to this question of statutory interpretation, I request the Tennessee Supreme Court accept and resolve this issue once it has the opportunity to do so.

The Defendant, Palikna Tosiwo Tosie, pleaded guilty to aggravated assault and reckless endangerment, and the trial court sentenced him to an effective sentence of six years to be served on probation. On appeal, the Defendant contends the trial court erred when it denied his request for judicial diversion. After review, we affirm the trial court’s judgment.

This appeal arises from a writ of garnishment issued by a Tennessee court against a Florida resident, garnishing wages he earned in Florida while working for an Ohio corporation that is registered to do business in Tennessee. The writ of garnishment was served on the employer’s registered agent for service of process in Tennessee, and the employer answered the writ without objection. The debtor timely filed a motion to terminate the garnishment, asserting that Florida law exempted his wages from collection. Following a hearing, the trial court concluded, sua sponte, that it lacked “jurisdiction” to issue a garnishment order because the debtor “lives in Florida and works full time in Florida.” This appeal followed. We have determined that the debtor waived the issue of personal jurisdiction by consenting to the court’s authority. We have also determined that the trial court has the authority to issue the garnishment order against the nonresident debtor’s employer with respect to a debt owed to the nonresident debtor because the employer is authorized to do business in Tennessee and has an agent upon whom process may be served. Therefore, we reverse the judgment of the trial court and remand this matter with instructions for the trial court to determine, inter alia, whether the debtor is entitled to an exemption under Florida or Tennessee law, and if so, to what extent, and to enter judgment accordingly.

Petitioner, Robert Nelson Buford, III, appeals the denial of his petition for post-conviction relief. Following a jury trial, Petitioner was convicted of facilitation of felony murder and facilitation of attempted especially aggravated robbery. The convictions were affirmed on direct appeal. State v. Robert Nelson Buford, III, No. M2011-00323-CCA-R3-CD, 2013 WL 375424, at *1-6 (Tenn. Crim. App. Jan. 31, 2013). Petitioner contends on appeal that the trial court erred in denying the petition for post-conviction relief because he was denied effective assistance of counsel. Following a review of the briefs and the record, we affirm the judgment of the post-conviction court.

Defendant, Cardis Terran Burns, appeals his convictions of multiple drug offenses and driving offenses. Defendant appealed, arguing that the trial court improperly admitted text messages from a phone seized during a traffic stop. While the appeal was pending, Defendant died. Counsel for Defendant filed a motion to abate ab initio. After the release of State v. Al Mutory, 581 S.W.3d 741 (Tenn. 2019), this Court denied Defendant’s motion and determined that the appeal should proceed despite Defendant’s death. After our review, we affirm the judgments of the trial court but remand for entry of a new judgment form to correct a clerical error to reflect that the conviction for possession of methamphetamine in a drug free zone with intent to deliver (count 4) merged with the conviction for possession of methamphetamine in a drug free zone with intent to sell (count 3).

The Defendant, Justin L. Kiser, was convicted by a Union County Criminal Court jury of five counts of especially aggravated kidnapping, a Class A felony. See T.C.A. § 39-13- 305 (2018). On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions; (2) the trial court erred by not requiring the State to show its good faith efforts to locate a missing witness before declaring that witness unavailable for trial; and (3) the trial court erred by sentencing the Defendant to twenty-one years’ confinement. We affirm the judgments of the trial court.

Defendant, DeMorris McKenzie, was indicted by the Knox County Grand Jury for one count of being a felon in possession of a firearm, one count of first degree premeditated murder, and one count of driving on a revoked license. Following a jury trial, Defendant was convicted as charged on all three counts. Following a sentencing hearing, Defendant was sentenced to life imprisonment for his first degree murder conviction. He was sentenced to serve two years for his firearm conviction and six months for his driving on a revoked license conviction. Those sentences were ordered to run concurrently with his life sentence. In this appeal as of right, Defendant contends that: 1) the trial court erred by allowing a witness to testify as to what she observed in security video footage of the apartment complex where the shooting occurred; 2) the evidence at trial was insufficient to support Defendant’s conviction for first degree murder; and 3) Defendant is entitled to relief under the cumulative error doctrine. Having reviewed the entire record and the briefs of the parties, we find no reversible error and affirm the judgments of the trial court.

Defendant, Brian Keith Capps, was charged in four separate indictments with two counts of possession with intent to sell over 0.5 grams of methamphetamine within 1,000 feet of a school; three counts of sale of over 0.5 grams of methamphetamine within 1,000 feet of a school; two counts of possession of drug paraphernalia; one count of possession with intent to sell Oxycodone; one count of driving on a revoked license; one count of violation of the registration law; and one count of tampering with evidence. Defendant pleaded guilty to one count of possession with intent to sell over 0.5 grams of methamphetamine and two counts of sale of methamphetamine in a drug-free zone. All of the remaining counts were dismissed. Defendant received concurrent sentences of eight years to be served at 100 percent for each of his sale of methamphetamine convictions. He was sentenced to eight years to be served at 30 percent for his possession with intent to sell methamphetamine conviction, which was ordered to be served consecutively to his other sentences, for a total effective sentence of 16 years with 8 years to be served at 100 percent. Defendant sought to withdraw his guilty pleas. Following an evidentiary hearing, the trial court denied Defendant’s motion. Defendant appeals. Having reviewed the record and the briefs of the parties, we affirm the judgment of the trial court denying the motion to withdraw the guilty pleas. However, there are clerical errors in the judgments in case number 26162. The judgments show a 30 percent release eligibility. The plea agreement was for 100 percent service of the sentence. The trial court must enter corrected judgments upon remand.