APPELLATE COURT OPINIONS

Petitioner, Travis Capshaw, appeals the denial of his post-conviction petition. Petitioner argues that he was denied effective assistance of counsel when his trial counsel (1) failed to adequately utilize mental health issues as a mitigating factor in Petitioner’s first degree murder charge and (2) such failure caused trial counsel to erroneously advise Petitioner to plead guilty. Following a review of the briefs of the parties and the record, we affirm the judgment of the post-conviction court.

Pro se Petitioner, Demarcus L. Gonner, appeals from the Davidson County Criminal Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. After review, we affirm the judgment of the trial court.

We granted this appeal to determine whether, after the death of a defendant during an appeal as of right from a conviction, the Court of Criminal Appeals should follow our holding in Carver v. State, 398 S.W.2d 719 (Tenn. 1966). We conclude that, due to changes in Tennessee’s public policy in the arena of victims’ rights, the doctrine of abatement ab initio must be abandoned. Because there is no evidence before the Court that any interest would benefit from allowing the deceased defendant’s appeal to continue, we hold that, in this case, the deceased defendant’s appeal as of right from his conviction should be dismissed.

Husband and wife were divorced in 2004. The parties’ marital dissolution agreement obligated husband to pay wife $950 a month in alimony. Husband failed to make payments for over ten years. In 2015, wife filed a motion for contempt and order for body attachment seeking to recover the alimony arrearages. At trial, husband argued that the equitable doctrines of laches, waiver, and unclean hands barred wife’s claim. The trial court disagreed and awarded wife $114,000 in past due alimony and $1,000 in attorney’s fees. Husband appeals. We affirm.

The petitioner, Darrell Dean Hochhalter, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

The Petitioner, Joshua Terron Johnson, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his 2014 convictions for facilitation of attempted first degree murder, employing a firearm during the commission of a dangerous felony, unlawful possession of a weapon, and aggravated assault and his effective sentence of twenty-six years. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

The defendant, Leroy Myers, Jr., was indicted for the aggravated assault of Sandra Custode, an inspector with the Department of Codes and Public Safety (“Metro Codes Department”), by intentionally or knowingly causing her to reasonably fear imminent bodily injury by use or display of a deadly weapon.  See Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii).  Following a bench trial, he was convicted of felony reckless endangerment, which is not a lesser-included offense of aggravated assault as indicted in this case.  Both the trial court and the Court of Criminal Appeals concluded that the defendant, through the actions of counsel, caused an effective amendment of the indictment.  We granted the defendant’s application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to consider whether and under what circumstances the actions of counsel can rise to the level of causing an effective amendment to an indictment absent the clear consent of the defendant.  Upon our review, we hold:  (1) Tennessee Rule of Criminal Procedure 7(b)(1) sets forth the procedure for amending an indictment with a defendant’s consent, and these mandates were not followed in this case; and (2) the actions of counsel amounted, at most, to mere acquiescence rather than an affirmative request for the trial court to consider felony reckless endangerment as a lesser offense.  We reverse the judgment of the trial court and the Court of Criminal Appeals, vacate the judgment of conviction, and dismiss the case.

A trial court terminated a father’s parental rights on the basis of abandonment by failure to visit and substantial noncompliance with a permanency plan. The father appealed, and we affirm the termination.

Two days before the parties’ divorce trial, wife discharged her attorney. Her attorney then moved to withdraw. One day before trial, wife moved pro se for recusal of the trial judge. On the morning of trial, the court denied the wife’s recusal motion and granted her attorney’s motion to withdraw. Wife was not present. After confirming that wife had notice of the date, the court proceeded with the trial. In the final decree, the court granted husband a divorce, classified and divided the marital property, and awarded husband a portion of his attorney’s fees. On appeal, we conclude that the trial court did not err in denying wife’s recusal motion, allowing her attorney to withdraw, or conducting the trial in her absence. But the court did err in awarding husband attorney’s fees as alimony in solido. So we reverse the court’s award of attorney’s fees as alimony in solido. In all other respects, we affirm.

The Department of Children’s Services filed a petition to terminate the parental rights of S.M. (mother) with respect to her child, K.S. The trial court determined that clear and convincing evidence supported multiple grounds for terminating mother’s parental rights. By the same quantum of proof, the court determined that termination is in the best interest of the child. We affirm.

Henry Epps, Petitioner, entered a best interest plea to six counts of sexual exploitation of a minor; the remaining nine counts of sexual exploitation of a minor were dismissed per the negotiated plea agreement. Petitioner received an effective sentence of eight years with release eligibility after service of 100% of the sentence in the Tennessee Department of Correction. Petitioner filed an original and an amended petition for post-conviction relief. After an evidentiary hearing, the post-conviction court denied relief. Petitioner filed a timely notice of appeal. This court reversed and remanded for a new post-conviction hearing and for entry of an order that contained specific findings of fact and conclusions of law relating to all issues raised. At the second post-conviction hearing, the post-conviction court admitted numerous affidavits and reports from Petitioner’s forensic expert and the State’s forensic expert. The post-conviction court then denied relief in an order. On appeal, Petitioner alleges that trial counsel’s performance was deficient because he “failed to consult with or inform [Petitioner] as to whether [Petitioner]’s expert would be used at trial” and “unilaterally discarded [Petitioner]’s defense, allowing him no say as to whether the case would proceed to a trial that would have presumably consisted of a jury hearing testimony from each side’s competing experts.” Petitioner asserts that he would have proceeded to trial absent trial counsel’s deficient performance. He also contends that he did not knowingly and voluntarily plead guilty because he “did not have a meaningful opportunity to confer with trial counsel about alternatives[,]” that “trial counsel . . . unilaterally deprived [Petitioner] of the option to choose trial[,]” and that Petitioner “had no prior experience with criminal proceedings, which would have weighed in favor of a finding that [Petitioner]’s plea was not voluntary, intelligent, or knowing.” After a thorough review of the facts and applicable case law, we affirm.

This appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. The trial court entered a final order that Employee was entitled to benefits. The trial court found that Employer failed to prove willful misconduct under Tenn. Code Ann. § 50-6-110(a)(1) because Employer failed to prove bona fide enforcement of its policy and that Employee had a valid subjective belief for violating said policy. We reverse the trial court’s finding that Employer failed to prove bona fide enforcement of its policy, but we affirm the trial court’s finding that Employee did not willfully violate Employer’s policy. As a result, we affirm the trial court’s judgment in favor of the Employee.

The Petitioner, Timothy Dunn, Sr., appeals from the Robertson County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective in failing to explain to the Petitioner the possible sentence he could receive if convicted at trial. Discerning no error, we affirm the judgment of the post conviction court.

Cyrus DeVille Wilson, Petitioner, filed a petition for writ of error coram nobis. He argued that two key witnesses for the State, Marquise Harris and Phedrek Davis, had recanted their testimony. Petitioner argued that this recanted testimony was newly-discovered evidence that may have affected the outcome of his trial if it had been admitted. The coram nobis court denied relief. On appeal, Petitioner asserts that the coram nobis court abused its discretion by denying his petition. He argues that the coram nobis court illogically credited Mr. Harris’ and Mr. Davis’ trial testimony as juveniles over their recanted testimony as adults. He also contends that Detective Bill Pridemore’s testimony that Mr. Harris only spoke with police after being assured that he would receive a Crime Stopper reward was newly-discovered evidence that may have had an impact on the outcome of his trial. After a thorough review of the facts and applicable case law, we affirm.

This case arises from the death of Robert D. Palmer, Sr. (“Decedent”). Prior to his death, Decedent entered into a contract with Wayne Eric Colvard and Wayne Eugene Colvard (collectively “Defendants”) for the sale of his tax preparation business. Decedent’s children, Robert Dean Palmer, Jr. and Suzanne Johnson (collectively “Plaintiffs”), filed suit against Defendants in their alleged capacities as personal representatives of Decedent’s estate for breach of contract, fraud, and unjust enrichment relating to the sale. The details of the complaint are not at issue in this appeal.

This case involves an action by the petitioner landowners disputing the grant of a zoning variance to their neighbors, the respondent landowners, for the construction of a carport. In a previous appeal, this Court reversed the respondent county zoning board’s grant of the variance and remanded to the trial court for collection of costs and “further proceedings consistent with this [Court’s] Opinion.” See Cobble v. Greene Cty., 559 S.W.3d 118, 127 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. May 16, 2018) (“Cobble I”). Our Supreme Court subsequently denied the county’s and zoning board’s application for permission to appeal, and this Court issued a mandate on the same day. On September 4, 2018, the petitioners filed a motion for discretionary costs. The county and the zoning board filed a response, asserting that the motion for discretionary costs was untimely pursuant to Tennessee Rule of Civil Procedure 54.04(2). The respondent landowners also filed a response objecting to the motion. Upon finding that this Court’s mandate was dispositive of all issues and that the petitioners had failed to file their motion within the thirty days allowed by Rule 54.04(2), the trial court entered an order denying the motion for discretionary costs. The petitioners have appealed. Discerning no reversible error, we affirm.

The Petitioner, Antonio Terrell Pewitte, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2015 conviction for aggravated child neglect and his twenty-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Defendant, Austin Andrew Morse, was indicted by the Davidson County Grand Jury for six counts of aggravated child abuse, four counts of aggravated child neglect, and four counts of aggravated child endangerment. Pursuant to a plea agreement, Defendant pleaded guilty to two counts of aggravated child neglect. The remaining counts were dismissed. It was agreed that Defendant’s sentences would be served concurrently with a 70 percent release eligibility date. The trial court would determine the length of the sentences. Following a sentencing hearing, the trial court imposed sentences of 19 and 21 years for Defendant’s convictions. In this appeal as of right, Defendant contends that the trial court abused its discretion in imposing the length of his sentences. Having reviewed the entire record and the briefs of both parties, we affirm the judgments of the trial court.

Defendants, Jordan Clayton, Carlos Stokes, and Branden Brookins, were convicted of first degree murder, conspiracy to commit first degree murder, attempt to commit first degree murder, two counts of employing a firearm during the commission of a dangerous felony, and reckless endangerment after a jury found them guilty of the murder of a seven-year-old female child. Defendant Clayton was also convicted of being a felon in possession of a firearm. On appeal, Defendants challenge the trial court’s refusal to sever the cases for trial, the admissibility of a recording of a preliminary hearing and a written statement of a witness with memory loss, and the sufficiency of the evidence. We determine that the trial court did not abuse its discretion by denying a motion to sever or by admitting the preliminary hearing recording and written statement into evidence. Additionally, we determine that the evidence was sufficient to support the convictions. Consequently, we affirm the judgments of the trial court with respect to the convictions for first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, and reckless endangerment. However, we reverse the judgments of the trial court with respect to the conspiracy to commit first degree murder convictions because the trial court improperly merged the conspiracy convictions with the first degree murder convictions. On remand, the trial court should reinstate the judgments for conspiracy to commit first degree murder.

The defendant, Shalonda Renee Pettus, entered an open plea to aggravated child neglect, and the trial court sentenced her to fifteen years’ incarceration in the Tennessee Department of Correction. On appeal, the defendant argues the trial court improperly weighed enhancement factor (1). After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

After Wife filed for divorce from her husband, the parties stipulated to an equitable division of personal property and to the grounds for divorce.  The court conducted a trial to resolve questions surrounding the classification and division of two parcels of improved real property and Wife’s requests for alimony and attorney’s fees.  The trial court determined one parcel of real property was separate property while the other was marital and provided for its division.  The court also awarded Wife alimony in solido and attorney’s fees.  On appeal, Husband challenges the classification and division of the real property and the awards of alimony and attorney’s fees.  We conclude that the court erred in calculating the amounts due from Husband to Wife to accomplish its division of marital property, so we modify the judgment in that respect.  Otherwise, because of a failure to fully comply with Rule 7 of the Rules of the Court of Appeals of Tennessee, Husband’s issues related to the classification, valuation, and division of property are deemed waived.  As to the remaining issues, we affirm the award of lump sum alimony in solido but reverse the award of attorney’s fees as alimony in solido.  

The Petitioner, Bernie Ray McGill, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his conviction of aggravated assault and tenyear sentence. On appeal, he contends that the post-conviction court erred by finding that his petition was barred by the statute of limitations because due process required that the statute of limitations be tolled. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Appeal of an award of discretionary costs to Defendants in healthcare liability action that had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, expert witness fees for medical providers who had treated Plaintiff, expenses for videotaped depositions, and costs for the travel time and deposition preparation time for Plaintiff’s vocational expert. On Plaintiff’s motion, the court modified the award to exclude videographer expenses, expenses attendant to the vocational expert’s deposition, and other court reporter expenses. We modify the award to exclude the witness fees for the providers who treated Plaintiff and to include the court reporter fee for the deposition of Plaintiff’s vocational expert; vacate the portion of the award that reduces the amount of court reporter fees and expenses and remand the case for reconsideration of the award; and reverse the order to the extent it requires the Plaintiff to post a bond or pay discretionary costs prior to re-filing the suit. 

This appeal involves a petition for modification of a permanent parenting plan. The initial permanent parenting plan order was entered by the McNairy County General Sessions Court (“trial court”) in October 2006. In November 2016, the father filed a petition in the trial court, alleging that a material change in circumstance had occurred due to the mother’s having been charged with aggravated statutory rape. The father concomitantly filed a petition requesting a temporary injunction granting him “emergency custody” and suspending the mother’s co-parenting time. The mother filed a motion to dismiss the petitions, alleging that the trial court lacked subject matter jurisdiction because the parties and the child all resided outside of Tennessee. In December 2016, the trial court entered an “Order for Visitation,” inter alia, modifying the father’s holiday co-parenting time and directing that the mother’s co-parenting time be supervised by her stepmother. Following a bench trial, the trial court granted the mother’s motion to dismiss for lack of subject matter jurisdiction pursuant to Tennessee Code Annotated § 36-6-217 (2017) of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The father has appealed. We affirm with one modification to the final judgment to clarify that with the trial court’s dismissal of this action, the December 2016 temporary order was no longer of any effect.

Defendant, Cedric Dante Harris, was convicted of possession of 0.5 grams or more of methamphetamine with intent to deliver, simple possession of marijuana, and tampering with evidence. He appeals, arguing that the evidence was insufficient to support his convictions. After carefully reviewing the record, we conclude that the evidence was sufficient. Accordingly, the judgments of the trial court are affirmed.