APPELLATE COURT OPINIONS

The defendant, Brandon Depriest Fuller, Jr., was convicted of reckless aggravated assault, a Class D felony. The trial court denied his request for judicial diversion and imposed a sentence of three years in the Department of Correction. On appeal, he argues that the trial court erred in denying judicial diversion and imposing a sentence of full confinement. After review, we affirm the judgment of the trial court denying the defendant's request for judicial diversion and imposition of a sentence of confinement.

After a bench trial, the trial court found the Defendant, Leopold Mpawinayo, guilty of two counts of violating the habitual motor vehicle offender law and sentenced him to three years for each conviction, ordering that the sentences be served consecutively and on probation.  The Defendant’s probation officer filed an affidavit asserting that the Defendant had violated his probation by being arrested for aggravated assault with a deadly weapon and by failing to pay his probation fees and court costs.  The trial court held a hearing and found that the Defendant had violated his probation.  The trial court ordered intensive probation with GPS monitoring.  Shortly thereafter, police arrested the Defendant for four counts of aggravated assault.  The trial court held a hearing and found that the Defendant had again violated his probation.  The trial court revoked the Defendant’s probation and sentenced him to serve one year, at 100%, followed by a new six-year period of intensive supervised probation, with additional requirements.  On appeal, the Defendant contends that the trial court erred when it revoked his probation and when it added additional conditions to his probation.  After review, we affirm the trial court’s judgment.

The Petitioner, James Ray Jones, Jr., pleaded guilty to possession of over seventy pounds of marijuana in a drug-free school zone and received a sentence of twenty-five years in the Department of Correction.  The Petitioner filed a post-conviction petition, and the post-conviction court denied relief following a hearing.  On appeal, the Petitioner maintains that his guilty plea was not voluntary because the State coerced the Petitioner into accepting the offer by threatening to prosecute his brother.  After review, we affirm the post-conviction court’s judgment.

The defendant, Kevin Patterson aka John O’Keefe Varner aka John O’Keefe Kitchen, appeals his Coffee County Circuit Court jury convictions of attempted second degree murder, aggravated assault, and possession of a firearm by a convicted felon, claiming that the trial court erred by refusing to sequester the jury, that the trial court should not have seated potential jurors who had served on the petit jury in a recent criminal trial, that the prosecutor’s closing argument was improper, and that the evidence was insufficient to support his conviction of attempted second degree murder.  Although we detect no error with regard to the defendant’s convictions, we find that the defendant’s sentence of life without the possibility of parole constitutes plain error because the State failed to comply with the notice requirements of Code section 40-35-120.  Accordingly, we affirm all of the defendant’s convictions as well as the five-year sentences imposed for the defendant’s convictions of aggravated assault and possession of a firearm by a convicted felon.  We reverse the trial court’s finding that the defendant was a repeat violent offender, vacate the sentence of life without the possibility of parole, and remand the case for resentencing within the appropriate sentencing range on the defendant’s conviction of attempted second degree murder.

Petitioner, Douglas Marshall Mathis, appeals the summary dismissal of his third petition for habeas corpus relief.  Because Petitioner’s claims have been previously litigated and are not cognizable in a habeas corpus proceeding, we affirm the summary dismissal of the petition for habeas corpus relief.

I concur with the lead opinion.  I write separately because I am sympathetic to the common sense approach that Judge Easter uses in the separate opinion (dissenting in part) to determine that the pre-trial notice substantially complied with the requirements of Tennessee Code Annotated section 40-35-120.  After all, the violent nature of the prior offenses, second degree murder and facilitation of second degree murder, should be obvious, and who knows better than the Defendant that there were separate periods of incarceration, even if the Defendant does not know the dates of those periods.  An argument could also be made that a reasonable statutory interpretation of Tennessee Code Annotated section 40-35-120(i)(2) is that “shall” is mandatory as it relates to “[t]he district attorney general[’s] fil[ing] a statement with the court,” but “shall” is “merely directory” as it relates to “set[ting] forth the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses.”  See Tenn. Code Ann. § 40-35-120(i)(2); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012).  In Myers v. AMISUB (SFH), Inc., our supreme court stated: “To determine whether the use of the word ‘shall’ in a statute is mandatory or merely directory, we look to see ‘whether the prescribed mode of action is of the essence of the thing to be accomplished.’”  Id. (citing 3 Norman J. Singer & J.D. Singer, Statutes and Statutory Construction § 57:2 (7th ed. 2008)); see alsoHoldredge v. City of Cleveland, 218 Tenn. 239, 402 S.W.2d 709, 713 (1966) (“[A] provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute . . . shows that the legislature intended a compliance with such provision to be essential to the validity of the act . . . , the statute must be regarded as mandatory.”).  Arguably, the essence to be accomplished by section 40-35-120(i)(2) is to place a defendant on notice that the state intends to seek to have him found to be a repeat violent offender and thereby face a sentence of life without possibility of parole.  If this statement is correct, then the other requirements are “merely directory” and substantial compliance should be sufficient.

This is the second appeal of this case. In the first appeal, the Husband appealed the trial court’s valuation of the marital assets and its overall distribution of the marital estate. Appellant Husband now appeals the trial court’s adoption of Appellee Wife’s property survey dividing certain real property. Husband also appeals the trial court’s valuation of a tractor and attachments, which were awarded to Wife in the final decree of divorce. Because Wife’s survey does not comport with the division of real property as set out in the final decree of divorce, the trial court abused its discretion in adopting it. Accordingly, we reverse the trial court’s order as to the adoption of Wife’s survey. As to the value of the tractor, we conclude that the trial court’s valuation is within the range of values represented by the evidence and affirm this portion of the trial court’s order. Reversed in part, affirmed in part and remanded.

A Shelby County jury convicted the defendant, Michael Halliburton, as charged of one count of attempted first degree premeditated murder, two counts of aggravated assault, and one count of domestic assault. After imposing a sentence, the trial court granted the defendant's motion for a new trial and entered an order recusing itself from presiding over the new trial. Thereafter, the State filed an application for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, which this court granted. On remand, the defendant was given a new sentencing hearing and a hearing on his motion for new trial. The successor trial court, serving as thirteenth juror, approved the jury's verdict and merged the defendant's convictions for aggravated assault and domestic assault with his attempted first degree murder conviction before imposing a sentence of twenty-one years. The successor court then denied the defendant's motion for new trial. On appeal, the defendant argues: (1) the evidence is insufficient to sustain his convictions because he was insane at the time he committed the offenses or, alternatively, was incapable of forming the requisite culpable mental states for the offenses; (2) the trial court abused its discretion in admitting several items of evidence; (3) the trial court abused its discretion in granting the State's motion in limine and excluding the testimony of two defense witnesses; and (4) the trial court erred in denying his motion for a mistrial on the basis that the rule of sequestration was violated. We affirm the judgments of the trial court.

The Petitioner, Gerald Collins, appeals from the denial of post-conviction relief by the Circuit Court for Gibson County. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that his guilty plea was involuntary. Upon review, we affirm the judgment of the post-conviction court.

A Davidson County jury convicted the Defendant, Rodney Earl Jones, of first degree felony murder and especially aggravated robbery. The trial court sentenced him to life for the first degree murder conviction and to twenty years for the especially aggravated robbery conviction, ordering the sentences to be served consecutively. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion for severance; (2) the trial court erred when it failed to instruct the jury about his co-defendant’s out of court statements; and (3) the evidence is insufficient to sustain his convictions. After review, we affirm the Defendant’s convictions.

Decedent’s sister was appointed as executor of the estate and subsequently filed a will contest complaint regarding a single bequest in the will. The trial court removed sister as executor and appointed an administrator pendente lite. Ultimately, the trial court dismissed sister’s will contest on the basis that the sister was estopped from attacking the will after her appointment as executor. Sister appeals. We affirm the trial court’s ruling with regard to sister’s standing to contest the will. However, we vacate the trial court’s dismissal of sister’s will contest on the basis of estoppel and remand for further proceedings consistent with this Opinion. Affirmed in part, vacated in part, and remanded.

The Defendant, Harold Allen Vaughn, and his co-defendants, were indicted by a Madison County Grand Jury for attempted first degree murder, aggravated assault, especially aggravated kidnapping, and especially aggravated robbery. Following a jury trial, the Defendant was convicted of attempted first degree murder resulting in serious bodily injury, aggravated assault, and especially aggravated robbery. The trial court merged the aggravated assault conviction into the attempted first degree murder conviction and sentenced the Defendant to an effective sentence of twenty-five years to be served in the Tennessee Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his convictions and that the trial court erred in failing to instruct the jury that his co-defendant was an accomplice as a matter of law. Upon review, we affirm the judgment of the trial court but remand for entry of a judgment form as to count two reflecting that the Defendant‟s aggravated assault conviction was merged with count one.

The defendant, Charles Travis Maples, appeals his Knox County Criminal Court jury convictions of three counts of the sale of cocaine in a drug-free school zone, arguing that the evidence was insufficient to support his convictions. Discerning no error, we affirm.

This appeal arises from an adjudication of dependency and neglect against the father of a child born out of wedlock and a denial of an intervening petition for custody filed by the father’s relatives. The father and intervening petitioners appeal the circuit court’s decision. We affirm.

This appeal arises from a declaratory judgment action filed by a prisoner to challenge the Tennessee Department of Correction’s manner of applying sentence reduction credits to his consecutive sentences. The trial court granted summary judgment to the Department of Correction upon concluding that it properly calculated the petitioner’s sentences and credits. We affirm. 

The Defendant, Jamichael Polk Armstrong, was convicted by a Maury County jury of facilitation of sale of cocaine over 0.5 grams in a drug-free school zone and sentenced to ten years in the Tennessee Department of Correction, with the first eight years to be served at one hundred percent release eligibility pursuant to the Drug-Free School Zone Act (hereinafter “the Act”).  On appeal, the Defendant claims that the evidence is insufficient to support his conviction and that the trial court erred by applying the Act to his facilitation conviction.  Following our review, we affirm the Defendant’s conviction but remand for resentencing.

This appeal involves the termination of a mother's parental rights to her four children by two different fathers. Mother contested the termination, but the fathers ultimately did not. The trial court found by clear and convincing evidence that several grounds for termination exist and that termination is in the best interests of the Children. The mother appeals. For the following reasons, we reverse the trial court's finding that Mother abandoned her children by failing to provide a suitable home. We also reverse the trial court's finding that Mother failed to substantially comply with the requirements of her permanency plans. However, we conclude that there is clear and convincing evidence to support the other grounds for termination relied upon by the trial court and that the termination of Mother's parental rights is in the Children's best interest.

Jonathon D. Brown (“the Defendant”) was convicted of aggravated rape, especially aggravated kidnapping, and theft of property over the value of $1,000 by a Robertson County jury.  The trial court sentenced the Defendant as a career offender to sixty years for both the aggravated rape and especially aggravated kidnapping charges, and to twelve years for the theft charge.  The trial court ordered the sentences to be served concurrently in the Department of Correction.  On appeal, the Defendant argues that venue was improper in Robertson County and that the evidence as to identity was insufficient for a rational juror to find that the Defendant was the assailant beyond a reasonable doubt.  After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

The petitioner, David Alan Hunter, appeals from the post-conviction court's denial of relief from his conviction for first-degree murder and attempted especially aggravated robbery. On appeal, the petitioner argues he received ineffective assistance of counsel due to trial counsel's failure to adequately explain the benefits of accepting a plea agreement despite his assertion of innocence and failure to convey a formal plea offer made by the State. Following our review, we affirm the denial of the petition.

The plaintiff is an inmate who filed a claim with the Claims Commission after the Tennessee Department of Correction made the determination that inmates were prohibited from possessing small electric heating appliances known as “hotpots.” He sought compensation for the loss of his hotpot under the Takings Clause of the U.S. Constitution. The Commission dismissed the plaintiff's claim because it did not have subject matter jurisdiction over takings claims involving only personal property. See Tenn. Code Ann. §§ 9-8-307(a)(1)(V); 12-1-202 (defining “private property” as “real property, or improvements to real property . . . .”). The plaintiff appealed, contending that the definition of “private property” was unconstitutional under the U.S. Supreme Court's decision in Horne v. Dep’t of Agric., --- U.S. ----,135 S. Ct. 2419, 192 L. Ed. 2d 388, (2015), which held that the government is required to pay just compensation under the Takings Clause when it physically takes possession of either real or personal property. We have determined that the Commission did not have authority to decide the plaintiff's facial challenge to the constitutionality of the statute. We have also determined the plaintiff would not be entitled to compensation even if his constitutional challenge to the statute was successful. Consequently, we affirm the dismissal of his claim.

The petitioner, William Phillips, Jr., appeals the dismissal of his petition for writ of habeas corpus/motion for Rule 36.1 correction of an illegal sentence, arguing that the trial court imposed an illegal sentence in violation of Tennessee Rule of Criminal Procedure 11(c)(1)(C) by altering the sentence in his negotiated plea agreement, which the trial court accepted prior to the sentencing hearing. Following our review, we affirm the judgment of the habeas court dismissing the petition.

Chad Ray Thompson (“the Defendant”) was indicted by the Warren County Grand Jury for one count of first degree premeditated murder, one count of first degree felony murder, and one count of especially aggravated robbery in connection with the death of his cousin, Tracy Allen Martin (“the victim”).  Following a jury trial, the Defendant was convicted of first degree premeditated murder, first degree felony murder, and facilitation of especially aggravated robbery.  On appeal, the Defendant argues that there was insufficient evidence to show premeditation for his first degree premeditated murder conviction and that there was insufficient evidence to prove the underlying felony of especially aggravated robbery for his first degree felony murder conviction.  Upon review, we conclude that the Defendant is not entitled to relief.  Accordingly, the judgments of the trial court are affirmed.

The plaintiff is an inmate who filed a claim with the Claims Commission after the Tennessee Department of Correction made the determination that inmates were prohibited from possessing small electric heating appliances known as “hotpots.” He sought compensation for the loss of his hotpot under the Takings Clauses of the Tennessee and U.S. Constitutions. The Commission dismissed the plaintiff's claim because it did not have subject matter jurisdiction over takings claims involving only personal property. See Tenn. Code Ann. §§ 9-8-307(a)(1)(V); 12-1-202 (defining “private property” as “real property, or improvements to real property . . . .”). The plaintiff appealed, contending that the definition of “private property” was unconstitutional under the U.S. Supreme Court‟s decision in Horne v. Dep’t of Agric., --- U.S. ----,135 S. Ct. 2419, 192 L. Ed. 2d 388, (2015), which held that the government is required to pay just compensation under the Takings Clause when it physically takes possession of either real or personal property. We have determined that the Commission did not have authority to decide the plaintiff's facial challenge to the constitutionality of the statute. We have also determined the plaintiff would not be entitled to compensation even if his constitutional challenge to the statute was successful. Consequently, we affirm the dismissal of his claim.

The petitioner, Michael D. Ellington, appeals the post-conviction court's denial of his petition for post-conviction relief from his premeditated first degree murder conviction. On appeal, he argues that the post-conviction court erred in denying relief because the State either committed prosecutorial misconduct or he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

The plaintiff is an inmate who filed a claim with the Claims Commission after the Tennessee Department of Correction made the determination that inmates were prohibited from possessing small electric heating appliances known as “hotpots.” He sought compensation for the loss of his hotpot under the Takings Clauses of the Tennessee and U.S. Constitutions.. The Commission dismissed the plaintiff's claim because it did not have subject matter jurisdiction over takings claims involving only personal property. See Tenn. Code Ann. §§ 9-8-307(a)(1)(V); 12-1-202 (defining “private property” as “real property, or improvements to real property . . . .”). The plaintiff appealed, contending that the definition of “private property” was unconstitutional under the U.S. Supreme Court's decision in Horne v. Dep’t of Agric., --- U.S. ----,135 S. Ct. 2419, 192 L. Ed. 2d 388, (2015), which held that the government is required to pay just compensation under the Takings Clause when it physically takes possession of either real or personal property. We have determined that the Commission did not have authority to decide the plaintiff's facial challenge to the constitutionality of the statute. We have also determined the plaintiff would not be entitled to compensation even if his constitutional challenge to the statute was successful. Consequently, we affirm the dismissal of his claim.