APPELLATE COURT OPINIONS

Petitioner, Mario D. Jones, was convicted of possession with intent to sell more than fifty (50) grams of a Schedule II controlled substance, a Class A felony. He was sentenced to twenty years in confinement. Petitioner filed the instant petition for post-conviction relief, in which he alleged that he received ineffective assistance of counsel and was denied his due process rights. Following an evidentiary hearing, the post-conviction court denied relief. On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel: (1) failed to call unspecified witnesses to challenge the weight of the tablets that he possessed and (2) failed to call the officer who was responsible for the storage of evidence. Petitioner also argues that he was denied due process by a State sentencing offer that was contingent upon his payment of a $500,000 fine. Finally, petitioner alleges that the post-conviction court erred by excluding from the evidentiary hearing an incomplete transcript of a sentencing hearing in an unrelated case regarding an officer involved in petitioner‟s case. After our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

The defendant, David Lewis, entered pleas of guilty to two counts of aggravated assault and one count of possession of a handgun while intoxicated. He was sentenced to concurrent sentences of four years at 30% for the first count of aggravated assault, three years and six months at 30% for the second count, and eleven months and twenty-nine days for possession of a handgun while intoxicated. The trial court denied his request for judicial diversion or a suspension of his sentences, and his sole issue on appeal is that the court erred in these determinations. Having carefully reviewed the record, we affirm the judgments of the trial court but remand for entry of a corrected judgment in Count 3 to reflect the defendant's conviction offense as possession of a handgun while intoxicated.

A Madison County Grand Jury indicted the Defendant, Travarious Dejaun White, on one count of carjacking, two counts of aggravated robbery, and one count of felony evading arrest. The incident leading to the Defendant’s arrest occurred on August 26, 2007. Following a jury trial, the Defendant was convicted of all charged offenses. The trial court sentenced the Defendant to eight years for carjacking, eight years each for both counts of aggravated robbery, and one year for felony evading arrest. The court ordered all sentences to be served consecutively, for a total effective sentence of twenty-five years. On appeal, the Defendant challenges the sufficiency of the evidence supporting his conviction for carjacking and aggravated robbery. After review, we affirm the judgments of the trial court.

At issue in this conservatorship action is the amount and type of support the spouse of a ward is entitled to receive from the ward's estate pursuant to Tenn. Code Ann. § 34-3-109, which authorizes the court to “establish the amount of financial support to which the spouse . . . [is] entitled.” The ward's son and step-son from a previous marriage filed a petition for the appointment of a conservator; the ward's wife opposed the conservatorship. A conservatorship was created, and the court appointed third-party conservators for the ward's estate and person. Thereafter, the wife requested over $19,250 per month as spousal support, which included attorney's fees she incurred in the trial court proceedings. At the court's request, she filed statements of her expenses over a twelve-month period preceding the appointment of the conservator. The petitioners opposed her request contending it was excessive and that her separate assets should be considered in awarding support. After excluding “outlier” expenses that were significantly larger than her average monthly expenses and the attorney's fees the wife sought to recover as miscellaneous expenses, the trial court awarded spousal support of $9,010 per month. Petitioners and the wife appeal. Petitioners contend the award was excessive. The wife contends the court erroneously excluded bona fide expenses including, particularly, the attorney's fees she incurred in these proceedings. We affirm.

The defendant, Frederick DeWayne Gross, filed a motion to correct illegal sentences under Tennessee Rule of Criminal Procedure 36.1, alleging that his sentences were improperly ordered to be served concurrently.  The trial court reviewed the motion and dismissed it without holding a hearing, having determined that the defendant did not present a colorable claim because there was no statute mandating consecutive sentencing in his case.  The defendant appeals the trial court’s dismissal.  Upon review, we conclude that the trial court did not err in dismissing the petition, and we affirm the judgment of the trial court.

The Defendant, Jarus Smith, appeals as of right from his jury convictions for facilitation of attempted second degree murder, possession of contraband in a penal institution, and two counts of aggravated assault.  One count of aggravated assault was merged into the facilitation conviction, and the trial court imposed consecutive terms of ten years for each of the remaining three convictions, resulting in a total effective sentence of thirty years’ incarceration.  On appeal, the Defendant raises the following issues for our review: (1) whether the evidence was sufficient to support his convictions; (2) whether hearsay statements made by one of the victims were grounds for a mistrial and the curative instructions given were inadequate to address the harm; (3) whether the trial court abused its discretion by denying the Defendant’s motion for a continuance; (4) whether the superseding indictment, which added multiple counts of aggravated assault, should been dismissed as violative of the Tennessee Rules of Criminal Procedure; and (5) whether the trial court erred by enhancing the length of his sentencing terms for his facilitation of attempted second degree murder and contraband possession convictions.  Following our review, we affirm the trial court’s judgments.

Defendant, Elashanti Dean, pled guilty to five counts of aggravated robbery in 1998. He filed a motion under Tennessee Rule of Criminal Procedure 36.1, alleging that his concurrent sentences were illegal because he was released on bond in one case at the time he committed the crimes in four other cases. The trial court summarily dismissed the motion. Upon our thorough review of the record, we determine that Defendant has not presented a colorable claim for relief because the judgments are silent as to whether his sentences were to run concurrently or consecutively. Therefore, we affirm the decision of the trial court.

I respectfully dissent from the majority's conclusion that the Defendant has failed to state a colorable claim pursuant to Tennessee Criminal Procedure Rule 36.1. I also write separately to address the majority's discussion relative to whether a claim raised pursuant to Rule 36.1 is moot if a defendant has fully served the relevant sentence and to address my concerns that Rule 36.1 permits a defendant to withdraw a guilty plea to which a sentence has expired.

This appeal results from the trial court‘s entry of a default judgment. Discerning no error, we affirm.

I respectfully disagree with the majority’s conclusion that a petitioner is not entitled to seek relief under Rule 36.1 when his sentence has been fully served. “On its face, Rule 36.1 does not limit the time within which a person seeking relief must file a motion, nor does it require the person seeking relief to be restrained of liberty.” State v. Donald Terrell, No. W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson, Dec. 8, 2014).

The Defendant-Appellant, Jonathan Lavelle Ewing, appeals the trial court’s revocation of his probation and reinstatement of his effective eight-year sentence in the Department of Correction.  He previously pled guilty to two counts of sale of .5 grams or more of cocaine and received concurrent eight-year sentences.  He was ordered to serve one year in confinement with the remainder suspended and Ewing placed on probation.  On appeal, Ewing argues that the trial court abused its discretion in reaching a decision that was unsupported by the evidence.  Upon our review, we affirm the judgment of the trial court.

The trial court approved Petitioners'/Conservators' petition to establish a Supplemental Needs Trust for their Ward but declined to approve a proposed remainder provision naming two charities as beneficiaries. The trial court ruled that any amounts remaining in the Trust when it terminated would be distributed under the laws of intestate succession. The trial court also excluded evidence offered by Petitioners to demonstrate what they asserted was the Ward's intent. We affirm, as modified.

The petitioner, Travis Ware, appeals the trial court’s denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, he contends that the trial court erred in dismissing his petition because he received illegal concurrent sentences for crimes that he committed while released on bail. Following our review, we affirm the judgment of the trial court.

In this case a same-sex couple lawfully married in Iowa sought to obtain a divorce in Tennessee and raised a constitutional challenge to Tenn. Const. art. XI, § 18 and Tenn. Code Ann. § 36-3-113 (collectively “the Anti-Recognition Laws”). Tennessee‟s Attorney General was granted leave to intervene in the suit. After a hearing the Circuit Court for Roane County (“the Trial Court”) held, inter alia, that the Anti-Recognition Laws did not violate the United States Constitution. Frederick Michael Borman appealed to this Court. While the appeal was pending, the United States Supreme Court issued its Opinion in Obergefell v. Hodges, 576 U.S. ___ (2015) holding, inter alia, that a State may not refuse to recognize a lawful same-sex marriage performed in another State. We, therefore, reverse the Trial Court's judgment.

Defendant, Glen B. Howard, was indicted by the Hamilton County Grand Jury with five counts of rape of a child and one count of aggravated sexual battery. After a jury trial, Defendant was found guilty of four counts of rape of a child and one count of aggravated sexual battery as charged and one count of aggravated sexual battery as a lesser included offense of rape of a child. He was sentenced to an effective sentence of fifty years in incarceration. After a thorough review of the record, and in light of State v. John J. Ortega, Jr., No. M2014-01042-CCA-R3-CD, 2015 WL 1870095 (Tenn. Crim. App. Apr. 23, 2015), we determine that Defendant‟s conviction for aggravated sexual battery as a lesser included offense of rape of a child was improper. We are unable to determine from the record whether the evidence supports a conviction for the next properly charged lesser included offense, child abuse. Consequently, we vacate the conviction for aggravated sexual battery. The remaining convictions and fifty year sentence are affirmed. Accordingly, the judgments of the trial court are affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion.

Petitioner, Dewayne Leggs, is appealing the order of the trial court denying his petition seeking habeas corpus relief.  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  The motion is hereby granted.

The Defendant, Caleb Joseph Latham, entered guilty pleas to driving under the influence (“DUI”), first offense, and DUI per se. See Tenn. Code Ann. § 55-10-401. As a part of his guilty pleas, the Defendant reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) challenging his warrantless seizure. Following our review, we conclude that the trial court should have granted the Defendant's motion to suppress because he was subjected to a seizure without reasonable suspicion. The ruling of the trial court is reversed, and the charges against the Defendant are dismissed.

The defendant, Darrell Anderson, was convicted of attempted aggravated assault, a Class D felony. On appeal, he argues that the evidence is insufficient to sustain his conviction. Following our review of the briefs of the parties, the record, and the applicable law, we affirm the judgment of the trial court.

Petitioner, Leroy Johnson, pled guilty to second degree murder and was sentenced to twenty-two years in the Department of Correction. He subsequently filed a petition for writ of error coram nobis that was summarily dismissed by the trial court as being time-barred and for failing to allege newly discovered evidence. Petitioner now appeals the denial of his petition. After review, we affirm the judgment of the trial court.

Robert T. Stooksbury, Jr. (the creditor) obtained a judgment in federal district court against, among others, Rebecca Ross Jordan, the daughter of Patricia Ross, the plaintiff in the case now before us. The creditor then attempted, in federal court, to garnish the funds in three bank accounts jointly held by Jordan and plaintiff. Plaintiff argued to the federal court that the funds should not be subject to garnishment because, according to her, they were solely owned by plaintiff. The federal district court, applying Tenn. Code Ann. § 45-2-703(a) (2007), held that the “applicable statutory authority directs that the moneys deposited into the account[s] owned by both Ms. Ross and Ms. Rebecca Ross Jordan are subject to the claims of creditors of either depositor . . .” and, consequently, the federal court allowed execution on and garnishment of the funds. The federal court later ordered, without objection by plaintiff, disbursement of the funds to the creditor. Plaintiff then brought this action under Tenn. Code Ann. § 45-2-703(a), which provides in pertinent part that “any other depositor not indebted to the creditor may, by commencing a separate action against the creditor, establish the rights that the depositor may have in the funds.” The creditor in the case now before us filed a motion to dismiss on the ground that plaintiff’s claim was barred by the doctrine of res judicata. The trial court agreed and dismissed plaintiff’s action. We affirm the judgment of the trial court.

“Hard cases, it has frequently been observed, are apt to introduce bad law.” Winterbottom v. Wright, 152 Eng. Rep. 403, 404 (1842). The same is true of “cases in which . . . moral indignation . . . is aroused” by egregious facts. Glanville Williams, The Sanctity of Life and the Criminal Law 105 (1957). The defendant here, convicted of the rape of a child and already serving a forty-year sentence for related federal offenses, deserves no sympathy. Because, however, constitutional principles sometimes get in the way of what might otherwise qualify as a just punishment, I must dissent from my colleagues. The fundamental principle at issue here is the right to a unanimous jury verdict, see Tenn. Const. art. I, § 6, which requires the State to elect the specific evidence it is relying upon for a conviction when the jury hears proof of more than one instance of sexual misconduct. State v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001). Regrettably, the State misidentified the factual basis for the charged offense in this instance. Because this error, although clearly inadvertent, served to undermine the fundamental right to a unanimous verdict, I believe that a new trial should be ordered.

The plaintiffs filed suit against the defendants to settle a boundary dispute. During the litigation, the defendants, who had for years enjoyed the continuous and exclusive possession of their lands, discovered that their ancestors, husband and wife, had acquired title during the “gap years” and, in consequence, had owned the lands as tenants in common rather than tenants by the entirety. The defendants, proceeding as third-party plaintiffs, filed a motion to quiet title against third-party defendants, also descendants of their ancestors, who each claimed an ownership interest in the disputed lands by inheritance. The trial court granted summary judgment in favor of the third-party defendants. The Court of Appeals affirmed. On remand, the defendants/third-party plaintiffs amended their complaint, seeking to establish title by prescription. The trial court again denied relief, and the Court of Appeals affirmed, holding that the third-party defendants‟ “undisputed ignorance” of their status as co-tenants in common with their relatives precluded a “presumptive ouster” and, therefore, prevented the defendants/third-party plaintiffs from taking title by prescription. Because the undisputed facts establish that each of the elements of title by prescription has been satisfied, the Court of Appeals is reversed and the original defendants are awarded title by prescription. This cause is remanded to the trial court for further proceedings consistent with this opinion.

In this conservatorship case, East Tennessee Human Resources Agency was appointed as the financial conservator for the ward. The first annual accounting was approved by all parties. The trial court approved the second annual accounting and the subsequent final accounting following the ward's death. The ward's daughter objected and filed numerous other motions challenging the handling of the ward's finances. The trial court denied each motion and closed the conservatorship. The daughter appeals. We affirm.

Christina L. ("Mother") and Ian C. ("Father") appeal the termination of their parental rights to the minor child Serenity L. ("the Child"). We find and hold that the Juvenile Court for Washington County ("the Juvenile Court") did not err in finding that clear and convincing evidence existed of grounds to terminate Mother‘s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i) for abandonment by willful failure to visit and by willful failure to support and § 36-1-113(1)(A)(iv) for wanton disregard; and to terminate Father‘s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(iv) for wanton disregard and § 36-1-113(g)(9) for failure to manifest the ability and willingness to assume custody, risk of substantial harm, and failure to establish paternity. We further find and hold that the Juvenile Court did not err in finding that clear and convincing evidence existed that it was in the Child‘s best interest for Mother‘s and Father‘s parental rights to be terminated. We, therefore, affirm the termination of Mother‘s and Father‘s parental rights to the Child.

This post-divorce appeal concerns the mother's notice of intent to relocate with the parties' minor child. The father responded by filing a petition in opposition to the requested relocation. Following a hearing, the trial court granted the father's petition. The mother appeals. We reverse the order of the trial court and remand for further proceedings regarding the best interest of the minor child.