APPELLATE COURT OPINIONS

Mother appeals the trial court's termination of her parental rights. The trial court terminated her parental rights on the grounds that the children were victims of severe abuse and that mother had failed to financially support the children. The trial court also concluded that termination of parental rights was in the children's best interest. After a thorough review of the record, we conclude that there was not clear and convincing evidence of abandonment by willful failure to support. But, we conclude that there was clear and convincing evidence of severe abuse and that termination was in the best interest of the children. Consequently, we affirm the termination of Mother's parental rights.

The petitioner, Kenneth Lewis, appeals the denial of his petition for post-conviction relief. The petitioner is currently serving a thirty-five-year sentence for second degree murder. On appeal, the petitioner contends that he should have been granted relief because: (1) he was denied his rights to the effective assistance of counsel; (2) the trial court erred in failing to grant his request for a transcript of the jury selection or to allow introduction of notes detailing reasons certain jurors were struck from the panel; and (3) that the law should be changed to allow funding for expert witnesses in non-capital post-conviction cases. Following review of the record, we affirm the denial of post-conviction relief.

The Appellant, Connie Kohnsabanh Vongphakdy, pled guilty in the Rutherford County Circuit Court to one count of theft $60,000 or more but less than $250,000; four counts of theft of $10,000 or more but less than $60,000; and two counts of theft of $1,000 or more but less than $10,000.  Pursuant to the plea agreement, the Appellant received a total effective sentence of eight years.  After a sentencing hearing, the trial court denied alternative sentencing and ordered the Appellant to pay restitution in the amount of $178,300.  On appeal, the Appellant challenges the trial court’s denial of alternative sentencing.  The State concedes that the trial court did not consider the specific factors in Tennessee Code Annotated section 40-35-103 but contends that the trial court implicitly found that confinement was necessary to avoid depreciating the seriousness of the offense and to serve as a deterrent.  Upon review, we reverse the judgments of the trial court and and remand for resentencing.

The defendant, Rhonda Sowell, pled guilty in the Circuit Court for Madison County to driving under the influence (“DUI”) (Count 1), driving under the influence with a with a blood alcohol concentration of .08% or more (“DUI per se”) (Count 2), second offense DUI (Count 3), and violation of the light law pursuant to Tenn. Code Ann. § 55-9-402 (Count 4). Prior to pleading guilty, the defendant filed two suppression motions challenging the basis for the initial stop and the evidence collected subsequent to the stop. After the trial court denied both motions, the defendant pled guilty to all charges reserving two certified questions of law concerning the constitutionality of the traffic stop and the evidence obtained as a result. Upon review of the record, we hold that the traffic stop of the defendant was constitutional, supported by both reasonable suspicion and probable cause. Accordingly, we affirm the trial court's denial of the defendant's suppression motions. However, we remand the case to the trial court for entry of separate judgment forms for each conviction, including those that were merged, in light of our Supreme Court's order in State v. Marquize Berry, No. W2014-00785-SC-R11-CD, slip op. at 5 (Tenn. Nov. 16, 2015) (order granting Tenn. R. App. P. 11 application for appeal).

The Petitioner, Lavonta Laver Churchwell, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his convictions of two counts of first degree felony murder, two counts of especially aggravated robbery, and two counts of criminally negligent homicide and resulting effective sentence of life in confinement.  On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel.  Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The Defendant, Devontavious Bryant, along with co-defendant Deacon Williams, was indicted with one count of aggravated rape, one count of aggravated robbery, and one count of aggravated assault. Prior to trial, the State amended the aggravated robbery charge to robbery and dismissed the aggravated assault charge. The Defendant was tried separately from Mr. Williams and convicted of aggravated rape and robbery. On appeal, the Defendant argues that: (1) the evidence collected from a warrantless search of his bedroom should have been suppressed; (2) the video recording of the victim's statement given minutes after the offense should have been suppressed under Tennessee Rule of Evidence 403; and (3) there was insufficient evidence to support his conviction for aggravated rape because his DNA was not found at the scene. Discerning no error, we affirm the judgments of the trial court.

Defendant, Lizandro Guevara, appeals his eight convictions for aggravated sexual battery and four convictions for rape of a child.  He argues that the evidence is insufficient to support the convictions.  Because the evidence within the record is sufficient for a rational jury to conclude beyond a reasonable doubt that Defendant committed the offenses for which he was convicted, the judgments of the trial court are affirmed.

Defendant, Robert Carlyle Clanton, was convicted by a Bedford County jury of ten drug-related offenses for the sale of methamphetamine to a confidential informant.  The trial court imposed a total effective sentence of twenty-three years and six months.  On appeal, Defendant’s sole issue is that the trial court imposed an excessively lengthy sentence.  Upon our review of the record, we affirm the judgment of the trial court.

A Lincoln County Circuit Court Jury convicted the appellant, Zakkawanda Zawumba Moss, of six counts of first degree premeditated murder, and he received consecutive sentences of life in confinement.  On appeal, the appellant contends that the evidence is insufficient to support the convictions, that the trial court’s refusing to allow the jury to view a child witness’s video-recorded interview denied him of his right to due process, that the trial court improperly admitted the testimony of four witnesses into evidence, that the trial court should have granted his requests for a mistrial, that the trial court improperly admitted photographs into evidence that were overly prejudicial and cumulative, and that the trial court improperly instructed the jury.  Based upon the record and the parties’ briefs, we find no reversible error and affirm the judgments of the trial court.

The Defendant, Antwion Dowdy, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and four counts of aggravated assault, Class C felonies. See T.C.A. §§ 39-13-202 (2014), 39-13-102 (2014) (amended 2015). The trial court sentenced the Defendant to concurrent sentences of life imprisonment for first degree murder and five years for each aggravated assault. On appeal, he contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

A Davidson County Criminal Court Jury convicted the appellant, Shiema Moniqueke Reid, of perjury, a Class A misdemeanor, and the trial court sentenced her to eleven months, twenty-nine days to be served on supervised probation.  On appeal, the appellant contends that the evidence is insufficient to support the conviction.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

In this health care liability case, the defendants moved to dismiss the complaint on the grounds that the plaintiff failed to comply with Tenn. Code Ann. § 29-26-121, part of Tennessee’s Health Care Liability Act. Specifically, the defendants argue that the plaintiff failed to provide a statement in the pleadings that he complied with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, documentation demonstrating compliance with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, an affidavit of the person who mailed pre-suit notice to the defendants, and failed to provide a HIPAA compliant medical authorization form. The trial court dismissed the case. We have reviewed the record and find that the plaintiff failed to substantially comply with Tenn. Code Ann. § 29-26-121(b). We affirm the judgment of the trial court.

This is a declaratory judgment action in which the intervening plaintiff sought to establish priority lien status over the original plaintiff as well as a Rule 19 defendant. We affirm the decision of the Chancery Court.

This is a health care liability action. The plaintiff filed suit against the defendants concerning the inadequate care and treatment received by the decedent. He then amended his complaint to add the defendant hospital as a party after the defendants alleged comparative fault. The defendant hospital moved to dismiss, arguing that the failure to attach a certificate of good faith applicable to it required dismissal. The trial court granted the motion to dismiss, citing this court’s opinion in Sirbaugh v. Vanderbilt University, 469 S.W.3d 46 (Tenn. Ct. App. 2014). The plaintiff appeals. We affirm.

This is a healthcare liability case. Appellees, patient and her husband, filed suit against Appellants, physician and employer. Appellants raised the affirmative defense of comparative fault based on the fact that Appellee/patient had been non-compliant with medical advice. Appellees moved for partial summary judgment on the affirmative defense of comparative fault. The trial court granted the motion, and Appellants appeal. Because expert testimony adduced during discovery creates a dispute of material fact as to the question of Appellees’ non-compliance with medical advice and the effect of such non-compliance on Appellees’ injury, the grant of summary judgment was error.

Defendant, Ericka Alicia Smith, received a twelve-year sentence to be served on Community Corrections after pleading guilty to attempted aggravated child neglect.  After holding a hearing, the trial court determined that Defendant violated the conditions of her alternative sentence and ordered her to serve the remainder of her sentence in confinement.  On appeal, Defendant argues that the trial court abused its discretion by refusing to impose another alternative sentence.  We affirm the judgment of the trial court.

The petitioner, John Armstrong, appeals the denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. He contends that his effective eighteen-year sentence for attempted first degree murder and unlawful possession of a firearm during the commission of a dangerous felony is illegal because the use or employment of a firearm was an essential element of his conviction for attempted first degree murder. Following our review, we affirm the judgment of the trial court.

A jury convicted the defendant, Unjolee Tremone Moore, of first degree felony murder; attempted especially aggravated robbery, a Class B felony; attempted second degree murder, a Class B felony; and the employment of a firearm during the commission of or attempt to commit a dangerous offense, a Class C felony. On appeal, the defendant challenges the sufficiency of the evidence, the trial court's refusal to dismiss based on the failure of police to collect a co-defendant's telephone, and the trial court's decision to admit the defendant's statement to police into evidence. After a thorough review of the record, we conclude that the defendant is not entitled to relief, and we affirm the judgments of the trial court.

Appellant appeals from the denial of her motion to alter or amend the trial court’s judgment finding her guilty of thirty-seven counts of criminal contempt and sentencing her to 403 days incarceration. We affirm the trial court’s denial of Appellant’s post-trial motion on the ground that the trial court erred in finding her non-payment of child support willful. We also affirm the denial of Appellant’s post-trial motion based upon evidence that Appellant obtained a loan to pay her support obligation after the contempt hearing. We vacate the trial court’s denial of Appellant’s post-trial motion, however, on the ground that trial court failed to consider whether Appellant’s sentence was excessive. We therefore remand to the trial court to make appropriate findings of fact and conclusions of law to support its ruling and to consider whether Appellant’s sentence is excessive. Affirmed in part; vacated in part and remanded. 

The petitioner, Ricky Lee Webb, appeals from the Gibson County Circuit Court's summary dismissal of his petition for writ of certiorari in which he sought relief from his 1983 jury convictions of first degree murder and rape on the basis of alleged erroneous evidentiary rulings. Because no appeal as of right lies from the trial court's ruling in this case, the appeal is dismissed.

The defendant, Shenekia M. Parks, was sentenced by the trial court to ten years in the Tennessee Department of Correction after pleading guilty to attempted aggravated child neglect. On appeal, the defendant argues that the trial court improperly enhanced her sentence for attempted aggravated child neglect, a Class B felony, from the minimum of eight years to ten years. The defendant argues the trial court failed to properly apply the applicable enhancement and mitigating factors to her sentence. The defendant also contends that the trial court erroneously denied her request for alternative sentencing. Following our review of the briefs, the record, and the applicable law, we affirm the defendant’s ten-year sentence.

This is a termination of parental rights case. Appellant/Father appeals the termination of his parental rights on the sole ground of persistence of the conditions that led to the child’s removal. Tenn. Code Ann. §36-1-113(g)(3). As a threshold requirement, in order for the persistence of conditions ground to apply in termination of parental rights proceedings, there must be a prior order adjudicating the child to be dependent and neglected. No such order is included in the appellate record. Furthermore, it is undisputed that Appellant was incarcerated at the time the child was removed from the home. Removal of the child from the parent’s home is a threshold requirement for applicability of the persistence of conditions ground. Because there is no order on dependency and neglect and because the child was not removed from Appellant’s custody or home, we conclude that the threshold requirements for applicability of the persistence of conditions ground are not met in this case. Reversed and remanded.

This interlocutory appeal involves the failure of an Ohio corporation to obtain authorization to transact business in Tennessee prior to filing suit. The Ohio corporation filed this action against a former employee, seeking monetary damages and injunctive relief for breach of contract, unjust enrichment, and misappropriation of trade secrets. The former employee moved for partial summary judgment on the ground that the Ohio corporation had not obtained a certificate of authority from the Tennessee Secretary of State, as required by law, and thus was barred from maintaining an action in Tennessee court. The trial court granted the motion but allowed the Ohio corporation thirty days to obtain the certificate. After obtaining the certificate, the Ohio corporation filed a motion to reinstate its claims against the former employee. The trial court denied the motion, ruling that the certificate of authority only allowed the Ohio corporation to maintain an action on claims that arose after the date the certificate of authority was issued. We granted the Ohio corporation’s application for an interlocutory appeal. We conclude, based on the plain language of Tennessee Code Annotated § 48-25-102, that a foreign corporation who has filed an action in a Tennessee court without a certificate of authority may obtain a certificate during the pendency of the case and then prosecute the action. Therefore, we reverse the decision of the trial court and remand for further proceedings.

Defendant, Timothy John McKnight, Jr., appeals from his conviction of aggravated robbery, arguing that the evidence is insufficient and that the trial court abused its discretion by improperly limiting cross-examination of two witnesses.  After carefully reviewing the record, we affirm the judgment of the trial court.