APPELLATE COURT OPINIONS

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State of Tennessee v. Christopher Scottie Itzol-Deleon

M2014-02380-SC-R11-CD

We granted the State’s application for permission to appeal in this case in order to determine (1) whether we should expressly overrule our decision in State v. Barney, 986 S.W.2d 545 (Tenn. 1999), and (2) whether the Court of Criminal Appeals erred in merging two of the Defendant’s convictions. We expressly overrule Barney and hold that double jeopardy principles apply when determining whether multiple convictions of sexual offenses arise from a single act of sexual assault. We further hold that, in light of the factors we adopt herein, under the facts and circumstances of this case, the Court of Criminal Appeals did not err in merging two of the Defendant’s multiple convictions. Accordingly, albeit for different reasons, we affirm the judgment of the Court of Criminal Appeals.

Authoring Judge: Chief Justice Jeffrey S. Bivins
Originating Judge:Judge Mark J. Fishburn
Davidson County Supreme Court 08/25/17
State of Tennessee v. Edward Nolan Lee Thomas

M2017-00040-CCA-R3-CD
The Defendant, Edward Nolan Lee Thomas, pleaded guilty to aggravated burglary and theft of property valued at less than $500. By agreement, the Defendant’s sentence was four years for the burglary conviction, concurrent with a sentence of eleven months, twenty-nine days for the theft conviction, with the trial court to determine the manner of service. The trial court subsequently ordered the Defendant to serve the sentences in confinement. On appeal, the Defendant contends that the trial court erred when it denied him judicial diversion and imposed a sentence of continuous confinement. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.
 
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge J. Randall Wyatt, Jr.
Davidson County Court of Criminal Appeals 08/25/17
Steven Woodrow Johnson v. State of Tennessee

M2016-02363-CCA-R3-PC
A Davidson County jury convicted the Petitioner, Steven Woodrow Johnson, of first degree felony murder, especially aggravated burglary, aggravated burglary, aggravated assault, and possession of a firearm during the commission of a dangerous felony, and the trial court sentenced him to an effective sentence of life in prison. This court affirmed the Petitioner’s convictions on appeal, save the especially aggravated burglary conviction, which we modified to aggravated burglary. State v. Steven Woodrow Johnson, M2011-00859-CCA-R3-CD, 2012 WL 3877787, at *1 (Tenn. Crim. App., at Nashville, Sept. 7, 2012), perm. app. denied (Tenn. Feb. 13, 2013). In 2013, the Petitioner filed a petition for post-conviction relief alleging that he had received the ineffective assistance of counsel. The post-conviction court held a hearing on the petition and denied relief. On appeal, we affirm the post-conviction court’s judgment.
 
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Mark Fishburn
Davidson County Court of Criminal Appeals 08/25/17
State of Tennessee v. Raymond Deshun Ross

W2016-01220-CCA-R3-CD

The defendant, Raymond Deshun Ross, appeals the dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2005 Henderson County Circuit Court jury convictions of aggravated assault, carjacking, felony theft, and misdemeanor reckless endangerment. Discerning no error, we affirm.

Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Roy B. Morgan, Jr.
Henderson County Court of Criminal Appeals 08/24/17
State of Tennessee v. William Christopher Davis

E2016-02132-CCA-R3-CD

Upon the request of the Department of Safety, the State filed a petition to declare William Christopher Davis, the Defendant, a “habitual offender” pursuant to Motor Vehicle Habitual Offenders Act (“the MVHO Act”). The trial court dismissed the petition after concluding that the MVHO Act was ambiguous regarding when the State had a duty to file a petition. On appeal, the State argues that it has an appeal as of right under Tennessee Rule of Appellate Procedure 3(c) from the dismissal of its petition and that the trial court erred in dismissing its petition on the grounds that the MVHO Act was ambiguous and penal in nature. The Defendant argues that the State does not have an appeal as of right from the dismissal of its petition and that the trial court correctly dismissed the petition. After a thorough review of the facts of this case and applicable case law, we conclude that the State does not have an appeal as of right from the dismissal of a motor vehicle habitual offender petition, and thus we dismiss the State’s appeal.

Authoring Judge: Judge Robert L. Holloway, Jr.
Originating Judge:Judge Bobby R. McGee
Knox County Court of Criminal Appeals 08/24/17
State of Tennessee v. Jeanet Marie Covington

M2016-02310-CCA-R3-CD

A Davidson County jury convicted the Defendant, Jeanet Marie Covington, of aggravated arson, and the trial court sentenced her to serve fifteen years in the Department of Correction. The Defendant timely filed a motion for new trial, which the trial court denied. The Defendant appeals the trial court’s denial of her motion, maintaining that the evidence was insufficient to support her conviction. We affirm the trial court’s judgment.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Monte Watkins
Davidson County Court of Criminal Appeals 08/24/17
Maurice O. Byrd, Jr. v. State of Tennessee

M2016-01061-CCA-R3-PC

A Montgomery County jury convicted the Petitioner, Maurice O. Byrd, Jr., of aggravated robbery, first degree felony murder, and premeditated first degree murder, and the Petitioner received an effective sentence of life. On appeal, this court affirmed the judgments. See State v. Maurice O. Byrd, No. M2010-02405-CCA-R3-CD, 2012 WL 5989817, at *1 (Tenn. Crim. App., at Nashville, Nov. 29, 2012), perm. app. denied (Tenn. Dec. 11, 2013). The Petitioner filed a post-conviction petition, and the post-conviction court denied relief following a hearing. On appeal, the Petitioner maintains that he received the ineffective assistance of appellate counsel. After review, we affirm the post-conviction court’s judgment.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge William R. Goodman, III
Montgomery County Court of Criminal Appeals 08/24/17
Kristin Holloway v. Group Properties, LLC

W2016-02417-COA-R3-CV

This negligence case was brought by Appellee/Tenant, who suffered injuries when a light fixture and a portion of the rental property ceiling fell due to a water leak. Tenant received a judgment in the general sessions court, and Appellant/Landlord appealed to the circuit court. Following de novo review, the circuit court entered judgment in favor of Tenant. Landlord appeals. Discerning no error, we affirm and remand.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Robert Samual Weiss
Shelby County Court of Appeals 08/24/17
The Germantown Manor Homeowners Association, Inc. v. GGAT Development Corp., et al.

W2016-01461-COA-R3-CV

Appellee, homeowner’s association, filed suit against Appellants, owners of lots in the development, to collect association fees. The trial court held that Appellee, a non-profit corporation, was not authorized to formally assess association fees until it elected a board of directors. Tenn. Code Ann. § 48-58-101. The trial court charged Appellants’ with association fees accruing after the election of the board and also denied Appellants’ counter-complaint for quantum meruit damages allegedly accrued for upkeep of certain common areas, which remained under Appellants’ ownership. Discerning no error, we affirm and remand.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Felicia Corbin Johnson
Shelby County Court of Appeals 08/24/17
Jonah Paul Anders v. Mayla Anders

W2016-02290-COA-R3-CV

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Authoring Judge: Per Curiam
Originating Judge:Judge Gina C. Higgins
Shelby County Court of Appeals 08/24/17
State of Tennessee v. Jonquarius Cunningham

W2016-00065-CCA-R3-CD

The Defendant, Jonquarius Cunningham, was convicted of one count of attempted second degree murder, one count of reckless endangerment, two counts of employing a firearm during the attempt to commit a dangerous felony, and two counts of aggravated assault. The trial court sentenced the Defendant to an effective sentence of twenty-three years’ incarceration. On appeal, he argues that the evidence is insufficient to sustain his convictions and that the trial court erred by ordering consecutive sentences. Upon review, we affirm the judgments of the trial court.

Authoring Judge: Judge Camille R. McMullen
Originating Judge:Judge Kyle Atkins
Madison County Court of Criminal Appeals 08/23/17
In Re Homer D., et al. - Dissent

M2017-00298-COA-R3-PT

The majority opinion dismisses this appeal due to the failure of the appellant, Sarah R. P. B., the child’s mother, to sign the initial notice of appeal as required by Tenn. Code Ann. § 36-1-124(d) or to file an amended notice that included her signature within the thirty-day time period for perfecting appeals. The majority has concluded that although the amended notice of appeal “did contain Appellant’s signature, it was filed . . . more than thirty days after the entry of the trial court’s judgment. As such, it, too, is insufficient to confer subject-matter jurisdiction on this Court.” I recognize that the majority opinion is based on two recent Court of Appeals decisions, but I respectfully disagree with those decisions and with the notion that Tenn. Code Ann. § 36-1-124(d) is jurisdictional. I also disagree with the notion that the statute compels this court to dismiss appeals in parental termination cases without affording the parent the opportunity to cure the defect by subsequently signing an amended notice of appeal even if that occurs after the expiration of the thirty-day time period set out in Tenn. R. App. P. 4(a). 

Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Originating Judge:Judge Daryl A. Colson
Overton County Court of Appeals 08/22/17
Henriette M. Fisher v. Chandranita Ankton

W2016-02089-COA-R3-CV

The trial court dismissed this lawsuit because proper service of process was not effectuated on the defendant. Because the defendant waived the specific defense relied upon by the trial court to dismiss this case by failing to comply with Rule 8.03 of the Tennessee Rules of Civil Procedure, we reverse the decision of the trial court and remand for further proceedings.

Authoring Judge: Presiding Judge J. Steven Stafford
Originating Judge:Judge Robert Samual Weiss
Shelby County Court of Appeals 08/22/17
State of Tennessee v. Tarell D. Lewis

M2016-02513-CCA-R3-CD
The defendant, Tarell D. Lewis, appeals his Davidson County Criminal Court guiltypleaded convictions of two counts of the sale of heroin, one count of the possession with intent to sell heroin, and one count of being a felon in possession of a firearm, claiming that the trial court erred by ordering a fully-incarcerative sentence. Discerning no error, we affirm.
 
Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Steve Dozier
Davidson County Court of Criminal Appeals 08/22/17
In Re Homer D., et al.

M2017-00298-COA-R3-PT

This is a termination of parental rights case. Upon the trial court’s entry of an order terminating her parental rights, Appellant filed a timely notice of appeal. However, Appellant did not comply with Tennessee Code Annotated Section 36-1-124(d) (Supp. 2016) in that she failed to sign the notice of appeal. Although Appellant attempted to correct the error by filing an amended notice of appeal, the amended notice was filed after the thirty day time period for perfecting appeals had expired. As such, this Court lacks subject-matter jurisdiction to adjudicate the appeal, and it is dismissed with prejudice.

Authoring Judge: Judge Arnold B. Goldin
Originating Judge:Judge Daryl A. Colson
Overton County Court of Appeals 08/22/17
Roy Zumstein v. Roane County Executive/Mayor, Assessor Of Property, Trustee

E2016-02037-COA-R3-CV

This appeal arises from a taxpayer’s successful challenge of the appraisal value assigned to his real property by the Roane County Property Assessor. The taxpayer filed a petition for judicial review challenging an administrative decision that affirmed the assessor’s valuation. The trial court ruled in favor of the taxpayer, overturning the administrative decision and ordering Roane County to pay the taxpayer’s attorney’s fees. On appeal, Roane County argues that the trial court had no authority to assess attorney’s fees against it. We agree and reverse the trial court’s award of attorney’s fees.

Authoring Judge: Judge Arnold B. Goldin, Jr.
Originating Judge:Judge Frank V. Williams, III
Roane County Court of Appeals 08/21/17
In Re: Dae'Jrien T.

E2017-00051-COA-R3-PT

This is an appeal from a final decree of adoption following the entry of an order terminating the parental rights of the appellant to her minor child. The only notice of appeal filed by the appellant within the time provided by Tennessee Rule of Appellate Procedure 4(a) for the filing of a notice of appeal did not comply with Tennessee Code Annotated § 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” Because this notice of appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Authoring Judge: Per Curiam
Originating Judge:Judge Frank V. Williams, III
Loudon County Court of Appeals 08/21/17
Tony Britton v. State of Tennessee

W2016-01298-CCA-R3-PC

The petitioner, Tony Britton, appeals pro se from the summary dismissal of his 2015 petition for post-conviction relief, which challenged his 2011 guilty-pleaded conviction of second degree murder. Because the petition was filed well beyond the applicable statute of limitations and because the petitioner failed to prove a statutory exception to the timely filing or a due process tolling of the statute of limitations, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge James M. Lammey, Jr.
Shelby County Court of Criminal Appeals 08/21/17
State of Tennessee v. Errol Johnson

W2016-00839-CCA-R3-CD

The defendant, Errol Johnson, was convicted of two counts of aggravated child neglect, a Class A felony, and two counts of criminally negligent homicide, a Class E felony. The trial court merged the two aggravated child neglect convictions and sentenced the defendant as a violent offender to twenty-two years in the Department of Correction. The trial court also merged the defendant’s convictions for criminally negligent homicide and sentenced him to two years. The defendant’s sentences were ordered to be served concurrently for an effective sentence of twenty-two years in the Department of Correction. On appeal, the defendant argues that the evidence is insufficient to support his convictions for aggravated child neglect and that the trial court imposed an excessive sentence. We conclude that the evidence is sufficient to sustain the jury’s verdict and affirm the judgments of the trial court. However, because aggravated child neglect is not an enumerated offense included in Tennessee Code Annotated § 40-35-501(i)(2), the trial court erred in its applying the statute and sentencing the defendant as a violent offender at 100% release eligibility. Therefore, we remand the matter for a new sentencing hearing.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge J. Robert Carter, Jr.
Shelby County Court of Criminal Appeals 08/21/17
State of Tennessee v. Leon Denton and Devan Denton

W2016-00910-CCA-R3-CD

After a jury trial, the defendants, Leon Denton and Devan Denton, were convicted of three counts of aggravated rape, one count of facilitation of aggravated rape, one count of facilitation of especially aggravated robbery, and two counts of facilitation of aggravated robbery. On appeal, the defendants assert the evidence was insufficient to support their convictions, arguing the State failed to overcome the defense of duress. The defendants also claim their right to a speedy trial was violated. Independently, Leon Denton argues his convictions violate double jeopardy. Following our review, we affirm the judgments of the trial court.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge James M. Lammey
Shelby County Court of Criminal Appeals 08/21/17
Elza Evans, III v. State of Tennessee

M2016-02332-CCA-R3-PC

The Petitioner, Elza Evans III, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he challenged his convictions for aggravated burglary, aggravated robbery, and two counts of especially aggravated kidnapping and his effective sentence of two consecutive terms of life imprisonment without the possibility of parole. On appeal, the Petitioner contends that trial counsel rendered ineffective assistance at trial and on appeal. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Steve R. Dozier
Davidson County Court of Criminal Appeals 08/21/17
Franklin-Murray Development Company, L.P. v. Shumacker Thompson, PC, Et Al.

M2015-01968-COA-R3-CV

This is a legal malpractice action in which the trial court granted partial summary judgment to the defendants, a law firm and its owners, on the plaintiff’s claim for lost profits and, in due course, granted summary judgment to the defendants on the remaining claims. The underlying suit arose from a failed real estate transaction in which a judgment for $200,000 for failure to perform a contract to purchase land for development was entered against the plaintiff in this action. The plaintiff appeals, contending that the court erred in various respects in granting the motions for summary judgment. Upon a thorough review of the record, we affirm the judgment of the trial court in all respects.

Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Judge Michael Binkley
Williamson County Court of Appeals 08/18/17
State of Tennessee v. Jabriel Linzy, Alias

E2016-01052-CCA-R3-CD

The Defendant, Jabriel Linzy, alias, appeals as of right from his convictions for first degree murder, attempted first degree murder, and employment of a firearm during the commission of a dangerous felony. The Defendant argues (1) that there was insufficient evidence to support his convictions, and (2) that evidence from social media posts was improperly admitted. Following our review, we affirm the judgments of the trial court.

Authoring Judge: Judge D. Kelly Thomas, Jr.
Originating Judge:Judge G. Scott Green
Knox County Court of Criminal Appeals 08/18/17
Carlisa Elmi v. Cheatham County Board of Education, et al.

M2016-02024-COA-R3-CV

This is an appeal of the termination of a tenured teacher’s employment pursuant to the Tenure Act, Tenn. Code Ann. §§ 49-5-501
and -515. The Cheatham County Director of Schools initiated these proceedings by filing a notice of charges recommending the termination of the tenured teacher on the grounds of insubordination and inefficiency. Following an administrative hearing, the hearing officer recommended dismissal. When the Cheatham County Board of Education voted to sustain the hearing officer’s decision and to dismiss the tenured teacher, the teacher sought review of the decision in the chancery court. The chancery court affirmed her dismissal, and this appeal followed. We have determined that the evidence preponderates against the chancery court’s factual findings and its conclusion that the teacher was insubordinate and inefficient as those terms are defined in the Tenure Act. We have also determined that the record fails to establish any basis for the dismissal of a tenured teacher. Therefore, we reverse the judgment of the chancery court and remand with instructions for the chancery court to determine the relief to which the tenured teacher is entitled for being dismissed without justification. This includes whether the teacher is entitled to back pay pursuant to Tenn. Code Ann. § 49-5-511(a)(3) and, if so, in what amount. 

Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Originating Judge:Chancellor David D. Wolfe
Cheatham County Court of Appeals 08/18/17
Edward Keith Morelock v. Ruth Ellen Mick Morelock

E2016-00543-COA-R3-CV

In this divorce case, Edward Keith Morelock (Husband) appeals the trial court’s decisions regarding (1) co-parenting time with the parties’ child; (2) division of marital property, (3) valuation of one of the marital assets, and (4) refusal of the court to award him spousal support. Husband argues that the trial court should have designated him primary residential parent and granted him more residential time with the child. He also asserts that the trial court overvalued the business owned by the parties, and that the court should have equally divided the assets and liabilities of that business rather than awarding and assigning all of them to him. Finally, he argues that the trial court should have ordered Ruth Ellen Mick Morelock (Wife) to pay him alimony. Finding no abuse of discretion, we affirm the trial court’s judgment.

Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Judge John C. Rambo
Washington County Court of Appeals 08/18/17