APPELLATE COURT OPINIONS

The Defendant, Jim Hunter, was indicted for attempted first degree murder and domestic aggravated assault. After a jury trial, the Defendant was convicted of reckless endangerment and  reckless aggravated assault. The trial court sentenced the Defendant to concurrent sentences of eight years for the reckless aggravated assault conviction and 11 months and 29 days for the reckless endangerment conviction. In this appeal as of right, the Defendant contends (1) that the trial court violated his Sixth Amendment right to a jury trial by basing his sentence on enhancement factors not determined by the jury and (2) that one of his convictions should not have been considered in determining his status as a multiple offender because of its age. Following our review, we affirm the judgments of the trial court.

The issues in this case are whether Tennessee's "common county rule" deprived the Rutherford County Circuit Court of subject matter jurisdiction and whether the court erred in assessing discretionary costs. This wrongful death action arises from a fatal vehicular accident in Normandy, Bedford County, Tennessee, in which the decedent's vehicle was stuck by a train owned by CSX Transportation, Inc. The mother of the decedent, in her individual capacity and as the personal representative of the decedent's estate, timely filed this action in the Circuit Court for Rutherford County against CSX and the conductor of the train. Over the next five years the parties conducted extensive discovery. On the first day of trial, the plaintiff voluntarily dismissed the case without prejudice. On the motion of the defendants, the Rutherford County Circuit Court assessed $34,098.27 in discretionary costs against plaintiff. In this appeal, plaintiff contends the Rutherford County Circuit Court lacked subject matter jurisdiction as a consequence of the common county rule, and that it erred in awarding discretionary costs. We have determined that the common county rule does not apply, the Rutherford County Circuit Court had subject matter jurisdiction, and that the court did not abuse its discretion in assessing discretionary costs of $34,098.27 against plaintiff after she voluntarily dismissed this action. Accordingly, we affirm the award of discretionary costs.

Petitioners, custodians of two minor children, filed this action to terminate the mother's parental rights. Following an evidentiary hearing, the trial judge found there was clear and convincing evidence to support termination, based upon willful failure to support/visit and persistent conditions. The court also found that the evidence was clear and convincing that termination was in the children's best interest. On appeal, we affirm the Judgment of the trial court.

Defendant, Franklin A. Christy, appeals the trial court's order revoking his probation and ordering him to serve his sentence in confinement. In this appeal, Defendant acknowledges that the evidence showed he violated the terms of his probation. However, he argues that the trial court should have sentenced him to community corrections rather than order service

The defendant, Elliot Fullilove, was convicted of first degree (felony) murder and especially aggravated robbery, a Class A felony. He was sentenced to concurrent life sentences. On appeal, he argues that the evidence was insufficient to support his convictions and that the trial court erred in denying his motion to suppress a statement he made to the police, in admitting hearsay, and in admitting a crime scene photograph. After careful review, we affirm the judgments from the trial court.

The defendant, Michael Anthony Tharpe, appeals the revocation of his probation by the Circuit Court for Carroll County. On May 11, 2009, he entered a guilty plea to theft over $500, and was sentenced to three years probation. He later committed new law violations and failed to report to his probation officer. Following a hearing on March 29, 2010, the defendant's probation was revoked, and he was ordered to serve the balance of his sentence in confinement. After careful review, we affirm the judgment of the Circuit Court.

The Defendant, Archie Hill, Jr., pled guilty to one count of aggravated burglary and one count of burglary. The trial court sentenced him to seven years, with the Defendant to serve eleven months and twenty-nine days in confinement and then be released to probation. Soon after the Defendant began serving his probation sentence, a violation of probation affidavit was filed against the Defendant. After a hearing, the trial court revoked the Defendant's probation sentence and ordered him to serve the remainder of his sentence in confinement. The Defendant appeals, contending the trial court erred in placing into effect his original sentence. After a thorough review of the record and applicable law, we affirm the trial court's judgment.

The Appellant, Albert Lynn Norton, appeals as of right from the Blount County Circuit Court's order revoking his probation and ordering him to serve his sentences in incarceration. On appeal, he argues that the trial court abused its discretion by ordering him to serve his sentences in confinement. Following our review, we affirm the judgment of the trial court.

The Defendant, Matthew Joseph Carter, was sentenced as a Range I, violent offender to twenty-three years for second degree murder, a Class A felony, and as a Range I, standard offender to eleven years each for two counts of attempted second degree murder, a Class B felony, and to six years each for three counts of aggravated assault, a Class C felony. The trial court ordered partially consecutive sentences, for an effective forty-year sentence in the Department of Correction. On appeal, the Defendant contends that the sentences are excessive and that the trial court erred in imposing consecutive sentencing. Although we conclude that the trial court erred in applying three of the nine enhancement factors, we hold that the lengths of the sentences imposed by the trial court are appropriate. We hold, though, that the imposition of consecutive sentences was in error and modify the Defendant's sentences to be served concurrently, for an effective twenty-three-year sentence.

Petitioner, Russell Lee Maze, appeals the dismissal of his petition for post-conviction relief in which he alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that (1) counsel failed to make an offer of proof regarding the testimony of Dr. Edward Yazbak; and (2) counsel failed to consult with a qualified medical expert regarding imaging evidence of the victim's neurological damage and failed to present a qualified medical expert to contradict the State's medical evidence regarding causation of the victim's brain and neurological damage. Petitioner also contends that the trial court erred in denying his petition for writ of error coram nobis. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel. Furthermore, the trial court did not abuse its discretion when it denied the petition for writ of error coram nobis. Accordingly, we affirm the judgment of the post-conviction court.

The petitioner, Philander Butler, pro se, appeals the summary dismissal of his petition for post-conviction relief for being filed after the statute of limitations had expired. On appeal, he argues that the post-conviction court erred in dismissing his petition before appointing counsel and conducting a hearing to determine the merits of his petition. After review, we affirm the summary dismissal of the petition for post-conviction relief.

I write this concurring opinion because I find it very difficult to believe that the contractual rights at issue were not foreclosed upon and, thus, passed to the bank as a result of the foreclosure, in which event Defendants would be entitled to summary judgment as a matter of law as the trial court found. However, as the majority correctly notes, there may be a small crack in the evidentiary chain that pertains to material facts at issue. I am not fully convinced there is a deficiency, but for purposes of summary judgment the court must be convinced that material facts are not in dispute.

Defendant, Chad Nicholas Hale, was convicted of driving under the influence (DUI) per se, a Class A misdemeanor. He was sentenced to eleven months, twenty-nine days to serve 10 days by incarceration and the balance suspended and served on probation. On appeal, Defendant contends that the trial court erred by failing to suppress the results of his breath alcohol content test. After a thorough review of the record, we affirm the judgment of the trial court.

Defendant, Thomas P. Isbell, was indicted for possession of oxycodone, burglary, two counts of theft over $1,000, and vandalism over $10,000. On October 21, 2008, Defendant pled guilty as charged. The sentence was left to the trial court's determination. Following a sentencing hearing, the trial court merged the two theft convictions and imposed an effective sentence of three years and six months, as a Range I standard offender, to be served by incarceration. On appeal, Defendant challenges the trial court's denial of alternative sentencing. After a thorough review of the record, we affirm the judgments of the trial court.

Purchaser of landlocked property brought action against the sellers, seeking to recover damages allegedly caused by the failure of the sellers to complete a road extension or otherwise to insure reasonable access to the property, which had been purchased for development of multi-family rental units. The trial court granted summary judgment to the sellers, finding that the right of the purchaser to proceed with the action was extinguished when the bank that provided financing for the development of the property foreclosed on the loan secured by the property and subsequently sold the property to another entity. The court concluded that the purchaser did not have standing to pursue the claims. Finding that a genuine issue of material fact exists as to whether the purchaser's cause of action was included in the assets foreclosed upon, we reverse the judgment of the trial court and remand for further proceedings.

The defendant, Vicky Ann Gillig, a/k/a Vicki Gillig, a/k/a Vicky Taylor, a/k/a Vicky Little, entered best interest guilty pleas in the Sullivan County Criminal Court to the offenses of aggravated assault, a Class C felony; child abuse and neglect, a Class A misdemeanor; and contributing to the delinquency or unruliness of a minor, a Class A misdemeanor, in exchange for an effective sentence of four years. Following a sentencing hearing, the trial court denied the defendant's request for probation, the denial of which she now appeals. After review, we affirm the trial court's sentencing decision.

The petitioner, Curtis Smith, appeals the denial of his petition for post-conviction relief. On appeal, he argues that the court erred in determining that: his guilty plea was knowingly and voluntarily entered; trial counsel provided effective assistance of counsel; and the trial court did not abuse its discretion in accepting his guilty plea. After careful review, we affirm the denial of post-conviction relief.

Employee alleged that she injured her left arm in the course of her employment.  Employer denied liability, contending employee’s injuries were not causally related to or arising from her employment. The trial court found that employee injured her left wrist, left elbow, and left shoulder in the course and scope of her employment, and it awarded 39% permanent partial disability to the body as a whole. The trial court ordered employer to pay the treating physician the entire cost of surgery and treatment, and it ordered physician to reimburse TennCare. Employer has appealed. We affirm as to the arm injury but conclude that the evidence preponderates against the trial court’s finding that employee’s shoulder injury was related to her employment. We also conclude that the trial court erred regarding the payment of medical expenses to the physician. Accordingly, we remand the case to the trial court for a determination of permanent partial disability to the arm and entry of an order regarding reimbursement of medical expenses.

The defendant, Michael Hilliard, was indicted on March 25, 2003, for first degree premeditated murder, felony murder, attempted first degree murder, and especially aggravated robbery. The defendant was tried on the charges in June 2007, with the State seeking the death penalty. However, a mistrial was declared after the jury was unable to reach verdicts on the charges. In December 2007, the defendant was indicted for especially aggravated robbery, allegedly occurring during the 2002 episode in which the victim was shot and the defendant was charged with attempted first degree murder. The defendant then was tried upon the indictment returned in 2003, as well as that returned in 2007, and found guilty of two counts of criminally negligent homicide which were merged, one count of misdemeanor reckless endangerment, and two counts of aggravated robbery. He was sentenced to an effective sentence of seventeen years, eleven months, twenty-nine days. On appeal, he argues both that the trial court erred in not dismissing the 2007 indictment for especially aggravated robbery because it was not returned with the 2003 indictment and in concluding that he could not present evidence of the guilt of a third party. Following our review, we affirm the judgments of the trial court.

The defendant, Calvin Eugene Bryant, Jr., was convicted by a Davidson County Criminal Court jury of two counts of sale of a Schedule I controlled substance in a Drug-Free School Zone and two counts of delivery of a Schedule I controlled substance in a Drug-Free School Zone, all Class A felonies. The delivery counts were merged with the sale counts, and the defendant was sentenced to concurrent terms of seventeen years in the Department of Correction. On appeal, he argues that the evidence was insufficient to sustain his convictions; the trial court erred in declaring one of the State's witnesses unavailable and allowing the witness's prior testimony to be read to the jury; the trial court erred in failing to instruct the jury on the lesser-included offense of facilitation; and the trial court erred in ordering that he serve 100% of his effective seventeen-year sentence. After review, we affirm the defendant's convictions but remand for entry of corrected judgments showing that 100% service only applies to fifteen years of the seventeen-year sentence.

The appellant, Derrick Gates, pled guilty in the Shelby County Criminal Court to aggravated robbery and attempted aggravated robbery. After a sentencing hearing, the trial court ordered him to serve consecutive sentences of thirty and ten years, respectively. On appeal, the appellant argues that the trial court erred by ordering consecutive sentencing. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

The Petitioner, Gene Shelton Rucker, appeals as of right from the Hamilton County Criminal Court's dismissal of his petition for a writ of habeas corpus. The Petitioner contends that his sentence was enhanced in violation of his Sixth Amendment rights. Following our review, we affirm the judgment of the habeas corpus court.

Mother appeals from the termination of her parental rights on the grounds of abandonment, substantial noncompliance with permanency plans, and mental incompetence. We affirm.

The Defendant, Michael Pierre Adams, appeals as of right from the Hamilton County Criminal Court's revocation of his community corrections sentences and order of incarceration. The Defendant contends that (1) the trial court's revocation is erroneous and based upon insufficient proof and (2) the State failed to provide him with adequate discovery before the hearing. Additionally, the judgments of the trial court do not reflect that the Defendant was given credit for time served in community corrections. See Tenn. Code Ann. _ 40-36-106(e)(4). Following our review, we affirm the judgments of the trial court but remand the case for correction of the judgments to reflect credit for time served in community corrections.