APPELLATE COURT OPINIONS

The petitioner, Larry Boyd, appeals the denial of his petition for post-conviction relief. He argues that he received ineffective assistance of counsel, which led him to enter a guilty plea “under duress.” Specifically, he asserts that counsel “refused” to set the case for trial and failed to investigate the facts of the case, interview key witnesses, and adequately communicate with him. After review, we affirm the denial of post-conviction relief.

The Defendant, Chester Carr Peterson, pled guilty to possession with intent to sell less than .5 grams of cocaine and evading arrest. The trial court sentenced the Defendant to a sentence that included community corrections. The Defendant’s community corrections officer filed a violation warrant, and, after a hearing, the trial court revoked the Defendant’s community corrections sentence, finding that he had violated the terms of his sentence, and ordered him to serve the remainder of his sentence in confinement. On appeal, the Defendant contends that the trial court erred by revoking his community corrections sentence and ordering him to serve the balance of his sentence in prison. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Following a jury trial, the defendant, Joseph Davison, was convicted of two counts of rape and sentenced to twelve years for each count, to be served consecutively in the Department of Correction. On appeal, the defendant argues that the trial court erred in denying his motion to dismiss the indictment based upon the fact that the original charges filed against him only identified his DNA profile, and he was not identified by name until after the statute of limitations had expired. He also challenges the sufficiency of the evidence and imposition of consecutive sentencing. Following our review, we affirm the judgments of the trial court.

Adrian Hill ("the Defendant") appeals the trial court’s judgments finding him guilty of failing to comply with a child support order in two separate cases under Tennessee Code Annotated section 36-5-104(a). The trial court convicted the Defendant on one count in each of the two cases after conducting a bench trial. On appeal, the Defendant asserts that he was: (1) denied the right to grand jury action; (2) denied the right to a trial by jury; and (3) sentenced contrary to the applicable sentencing laws for criminal offenses. Upon review, because the statute at issue is a general criminal statute as opposed to a contempt statute, we conclude that the Defendant was entitled to grand jury action as a requirement to invoke the jurisdiction of the trial court. The record demonstrates that the Defendant did not receive grand jury action and did not waive his right to grand jury action. Therefore, we are compelled to vacate the judgments of the trial court and dismiss the charges against the Defendant.

While it is uncertain from the record, it appears the Petitioner, Joe Billy Russell, Jr., pled guilty in 1994 to two counts of the sale of cocaine. Pursuant to a negotiated settlement, which included the Petitioner’s agreement not to apply for alternative sentencing, the trial court sentenced him to two concurrent sentences of four years each. In 2011, the Petitioner filed a pro se motion to vacate the judgment, alleging that he received the ineffective assistance of counsel and that his guilty plea was not voluntarily entered. The trial court dismissed the motion, finding that it was filed beyond the expiration of the statute of limitations. On appeal, the Petitioner contends the trial court erred when it dismissed his petition. After reviewing the record, we affirm the trial court’s judgment.
 

The Petitioner appeals the denial of his petition for post-conviction relief from his conviction for first degree felony murder. While the Petitioner raised a multitude of issues below, on appeal, his sole issue is whether he received ineffective assistance of counsel at trial. Specifically, the Petitioner makes the following arguments on appeal: (1) that trial counsel failed to present evidence that in the ten years between the first and second trials, the methods by which the State’s expert witness reached his conclusion of arson had been discredited by the scientific community; (2) that trial counsel failed to advance the defense theory of an accidental fire by not calling as a witness the physician who treated both the Petitioner and the victim to testify regarding the burn patterns on their bodies; and (3) that trial counsel failed to move for a mistrial when the State and the State’s witnesses referenced the Petitioner’s prior trial. After a thorough review of the record, we affirm the judgment of the post-conviction court denying relief.

Keith J. Allen (“the Petitioner”) filed a petition for writ of habeas corpus, alleging that the sentence on his first degree felony murder conviction is illegal, and, therefore, his judgment of conviction is void. The habeas corpus court dismissed his petition without a hearing. The Petitioner now appeals, arguing that the trial court lacked authority to impose a life sentence for his conviction. After a thorough review of the record and the applicable law, we affirm the judgment of the habeas corpus court.

The Tennessee Department of Environment and Conservation issued a draft permit allowing a proposed rock quarry to discharge storm water and wastewater into a nearby creek. Owners of property allegedly affected by the discharge filed a declaratory order petition with the Water Quality Control Board, seeking a declaration construing the rules regarding the protection of existing uses of waters.The Water Quality Control Board dismissed the petition as not ripe. The Tennessee Department of Environment and Conservation subsequently issued a final permit to the quarry and the property owners filed both a permit appeal and another declaratory order petition with the Water Quality Control Board. The Water Quality Control Board again dismissed the declaratory order petition. The property owners subsequently filed a petition for a declaratory judgment in the Davidson County Chancery Court. The Water Quality Control Board and the Tennessee Department of Environment and Conservation argued that the petition was not ripe and that the property owners had not exhausted their administrative remedies. In addition, the Water Quality Control Board and the Tennessee Department of Environment and Conservation argued that Tennessee Code Annotated Section 69-3-105(i) precluded the property owners from bringing a declaratory order petition prior to issuance of a permit. The trial court ruled in favor of the property owners and issued a declaratory judgment on the construction of Tennessee Compiled Rule and Regulation 1200-04-03-.06. We affirm the trial court’s rulings with regard to ripeness, exhaustion of administrative remedies, and Tennessee Code Annotated Section 69-3-105(i), but reverse the grant of summary judgment on the construction of Tennessee Compiled Rule and Regulation 1200-04-03-.06 and remand for further proceedings.
 

Defendant, Charles Reginald Underwood, Jr., appeals the trial court’s revocation of his community corrections sentence and the imposition of a sentence of confinement. Following our review of the record, we affirm the judgment of the trial court.

A Bedford County Grand Jury returned an indictment against Defendant, Richard Dale Capps, charging him with two counts of aggravated assault and one count of conspiracy to commit aggravated assault. An indictment was also returned against co-defendant Sarah Malone charging her with conspiracy to commit aggravated assault. The present appeal only involves Defendant. Following a joint jury trial, Defendant was convicted of aggravated assault, reckless aggravated assault, and conspiracy to commit aggravated assault. Co-defendant Malone was convicted as charged. Defendant was sentenced as a Range II offender to eight years for aggravated assault and six years for conspiracy to commit aggravated assault with the sentences to be served concurrently in confinement. Defendant’s conviction for reckless aggravated assault merged with his conviction for aggravated assault. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred in denying his request to admit the prior inconsistent statements of Andrew Pugh and Maurice Smith as substantive evidence; and (3) that the trial court improperly sentenced Defendant as a Range II offender because the State did not give timely notice of its intent to seek enhanced punishment. After a thorough review, we affirm the judgments of the trial court.
 

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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. The employee filed suit for benefits, alleging that he aggravated a back injury while performing his job responsibilities. His employer contended that the incident resulted only in an increase in pain from a pre-existing injury and was not, therefore, compensable. At the conclusion of the evidence, the trial court found in favor of the employee and, using an eight percent medical impairment rating and a multiplier of one and one-half times the medical impairment rating, awarded permanent partial disability benefits. The employer appealed, contending that the evidence preponderates against the trial court’s finding that a compensable injury occurred and, alternatively, that the evidence preponderates against the trial court’s finding that the employee was entitled to an eight percent medical impairment rating. Because the evidence does not preponderate against the findings of the trial court, the judgment is affirmed.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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. The employee, a human resources director, slipped and fell while performing her job responsibilities. The employee did not return to work following the incident and was subsequently terminated. Although the employee received temporary total disability benefits, she filed suit alleging that she was entitled to additional temporary total and permanent partial disability benefits. While concluding that the employee had sustained a 19% permanent partial disability to the body as a whole, the trial court capped the award at one and one-half times the medical impairment rating because the employee was not denied a meaningful return to work. The employee has appealed, contending that the evidence preponderates against the trial court’s finding that she had a meaningful return to work. She also contends that she is entitled to temporary partial disability benefits. In response, the employer asserts that the 19% impairment rating is excessive. Because the evidence does not preponderate against the findings of the trial judge, the judgment is affirmed.

In accordance with Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Panel for a hearing and a report of findings of fact and conclusions of law. The employee, who sustained injuries while attempting to repair a piece of food service equipment, filed a claim for workers’ compensation benefits. Later, the employer terminated the employee, alleging misconduct in the performance of his duties. The trial court ruled that because the employer had discharged the employee in retaliation for the claim, the employee did not have a meaningful return to work and, furthermore, was entitled to the statutory maximum of six times the medical impairment. The employer appealed. Because the evidence supports the ruling of the trial court, the judgment is affirmed.

The Defendant, James Edward Kilby, III, pled guilty to felony reckless endangerment and reckless aggravated assault. For the felony reckless endangerment conviction, the trial court imposed a two-year sentence, ordering the Defendant to serve six months of incarceration before release to the community corrections program. For the reckless aggravated assault conviction, the trial court imposed a four-year sentence, ordering the Defendant to serve eleven months and twenty-nine days of incarceration before release to the community corrections program. The trial court ordered that these sentences be served consecutively, for a total effective sentence of six years, to serve eighteen months of incarceration followed by community corrections. In this appeal, the Defendant contends the trial court improperly ordered the Defendant to serve more than one year in split confinement. After a thorough review of the record and relevant authorities, we conclude that the trial court erred when it sentenced the Defendant. As such, we reverse the trial court’s judgments and remand the cases for a new sentencing hearing.

Appellant, Larry D. McGuire, was indicted by the Maury County Grand Jury for felon in possession of a handgun. After a guilty plea, Appellant was sentenced to two years in incarceration as a Range II, multiple offender. After several months in incarceration, Appellant was granted determinate release. Subsequently, a probation violation warrant was filed. Appellant’s probation was partially revoked for time served and Appellant was reinstated to a new, two-year term of probation. A second probation violation warrant was filed. After a hearing, Appellant’s probation was revoked. The trial court ordered him to serve his sentence in confinement. Appellant appeals, claiming that the trial court erred in determining that he violated his probation and ordering that he serve the sentence in incarceration. After a review of the record and authorities, we conclude that the trial court did not abuse its discretion in revoking Appellant’s probation. Consequently, the judgment of the trial court is affirmed.

The trial court entered an order of involuntary dismissal pursuant to Rule 41.02(2) in this action for malicious prosecution. We affirm.

The defendant, Charles W. White, Sr., was convicted of driving under the influence (“DUI”) by a Henderson County Circuit Court jury and sentenced to eleven months and twenty-nine days, with all but forty-eight hours suspended. His driver’s license was also suspended for one year for violation of the implied consent law. On appeal, he challenges the trial court’s denial of his motion to suppress the stop of his vehicle. After review, we affirm the judgment of the trial court.

A grand jury indicted appellant, Michael Jarvis Shipp, for one count of first degree murder and one count of especially aggravated robbery. A jury found him guilty of first degree murder and the lesser-included offense of aggravated robbery, for which the trial court imposed concurrent sentences of life and eight years, respectively. On appeal, appellant challenges the sufficiency of the convicting evidence underlying both counts. We find that the evidence was sufficient to convict appellant on both counts and affirm the judgments of the trial court.

Defendants in suit to reform deed of trust or warranty deed appeal the denial of their motion to dismiss action on ground of prior suit pending. Finding no error, we affirm.
 

This lawsuit originated as a medical malpractice action that was filed against the Hospital and other defendants in 2000. The trial court granted summary judgment in favor of the Hospital on the medical malpractice claim in 2003 because Plaintiffs had failed to come forward with competent testimony from a medical doctor regarding causation. Thereafter, Plaintiffs filed a supplemental complaint to allege that the Hospital had tortiously interfered with the Plaintiffs’ contract with a nurse expert witness. The trial court granted summary judgment in favor of the Hospital on this claim in 2010. Plaintiffs appealed. We affirm the trial court’s order granting summary judgment on the issue of tortious interference with contract, but we reverse the trial court’s order granting summary judgment on the medical malpractice claim and remand for further proceedings.

Father has a son who was placed in the custody of his maternal grandmother when he was ten months old because Mother was deceased and Father was incarcerated. Grandmother filed a petition for termination of Father’s parental rights. Following a hearing the trial court determined Father had abandoned his child as that term is defined by Tenn. Code Ann. §361-102(1)(A)(iv) and that it was in the child’s best interests for Father’s parental rights to be terminated. Father has been incarcerated for all but five months of the child’s life and has engaged in conduct that exhibits his wanton disregard for his son’s welfare. The child has no meaningful relationship with Father due to Father’s life choices, which have resulted in repeated arrests and periods of incarceration. We agree with the trial court that Father has abandoned his child and that it is in the child’s best interest for Father’s parental rights to be terminated. We therefore affirm the trial court’s judgment.
 

The defendant, Bobby Lewis Smith, was convicted by a Clay County jury of delivery of a schedule III controlled substance, a Class D felony. He was subsequently sentenced, as a Range III offender, to serve nine years in the Department of Correction. On appeal, he contends: (1) that the evidence is insufficient to support the verdict; (2) that the trial court erred in allowing admission of a videotape in violation of the Confrontation Clause and authentication rules; and (3) that ordering service of the nine-year term resulted in an excessive sentence. Following review of the record, we affirm the judgment of the trial court.

The defendant was indicted on one count of driving under the influence (DUI) and one alternative count of driving with a blood alcohol content of .08 or higher. Prior to trial, the defendant filed a motion to  suppress certain evidence obtained by the police on the grounds that the defendant was arrested without probable cause. The trial judge granted this motion and ultimately dismissed both counts. On appeal, the State argues that the trial court erred by determining that the arresting officer did not have probable cause. After reviewing the record and the arguments of the parties, we conclude that the trial court committed no error and affirm its judgment accordingly.

The widow of a man who suffered a devastating injury while undergoing a medical procedure in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure, claiming medical malpractice, failure to obtain informed consent, and battery. The defendant hospital filed a motion for summary judgment, and the defendant doctor filed a motion to dismiss, both arguing that the plaintiff’s malpractice claims had to be dismissed because she failed to strictly comply with requirements of the Medical Malpractice Act, specifically Tenn. Code Ann. § 29-26-121 (a)(1) (60-day notice) and §29-26-122(a) (certificate of good faith). The trial court granted both motions in part and denied them in part. We reverse the trial court’s dismissal of the medical malpractice claims against both defendants as well as the related claims. We also reverse the trial court’s dismissal of the claim against the defendant doctor for failure to obtain the patient’s informed consent, but we affirm its dismissal of the medical battery claim against the defendant doctor.
 

A Marion County Circuit Court jury convicted the defendant, Eric Lebron Hale, of aggravated robbery, and the trial court imposed a sentence of 17 years’ incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence and contends that the jury instructions provided by the trial court resulted in an improper constructive amendment to the indictment, that a fatal variance existed between the indictment and the proof adduced at trial, that the trial court erred by admitting the testimony of a certain witness, that the trial court committed errors in juryinstructions granted and refused, and that the cumulative effect of the errors deprived him of the right to a fair trial. Because the evidence was insufficient to support the defendant’s conviction of aggravated robbery as it was charged in the indictment, and because the jury instructions on the offense of aggravated robbery resulted in an improper constructive amendment of the indictment, and because a fatal variance existed between the indictment and proof adduced at trial, the defendant’s conviction of aggravated robbery is reversed. In its stead we impose a conviction of the lesser included offense of theft of property valued at $500 or less and remand the case to the trial court for a sentencing hearing on the newly-imposed misdemeanor conviction.