APPELLATE COURT OPINIONS

The Defendant, Ket T. Voun, a Cambodian native, was convicted, upon his guilty pleas, of aggravated robbery and facilitation of second degree murder. Following a sentencing hearing, the Davidson County Criminal Court ordered him to serve his eight-year sentence for facilitation of second degree murder in total confinement. He now appeals, arguing that, due to his likely deportation for these crimes, a probationary sentence was warranted. After a review of the record, we affirm the sentencing decision of the trial court.

Anne Dowd and Ferrell Ervin filed a motion to intervene and to stay the distribution of the estate of Cleo M. Snapp, claiming they were heirs of the estate. Ms. Dowd asserted that she was the non-marital child of Thomas Ervin, a brother of Ms. Snapp, and Mr. Ervin asserted that his father, Ben Ervin, was the non-marital child of Thomas Ervin. The executrix of the estate responded by filing a motion to deny their claims. After a hearing, the trial court granted the executrix's motion to deny the claims because they were untimely. We affirm.

A Davidson County jury convicted the Petitioner, Levi Battle, III, of possession of twenty-six grams or more of cocaine with intent to sell or deliver, and the trial court sentenced him as a career offender to thirty years in the Tennessee Department of Correction. On direct appeal, the Petitioner challenged the denial of his motion to suppress, and we affirmed the trial court's judgment. State v. Levi Battle, III, No. M2006-00288-CCA-R3-CD, 2007 WL 957207, at *1 (Tenn. Crim. App., at Nashville, Mar. 29, 2007), perm. app. denied (Tenn. Aug. 13, 2007). The Petitioner then filed a petition for post-conviction relief in which he alleged that he received the ineffective assistance of counsel, and, after a hearing, the post-conviction court dismissed the petition. After a thorough review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

The Defendant, Jonathan Jasper Smith, entered guilty pleas in the Sullivan County Circuit Court to one count of attempting to obtain narcotics by fraud, a Class D felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. Pursuant to the plea agreement, the Defendant received concurrent sentences of two years as a Range I, standard offender, and eleven months twenty-nine days, respectively. In a separate case, the Defendant pled guilty to violation of a habitual traffic offender order, a Class E felony; speeding, a Class C misdemeanor; and failure to show proof of financial responsibility, a Class C misdemeanor. He received an effective sentence of two years for these offenses to be served consecutively to the drug-related cases. The manner of service was left to the trial court's determination. Following an alternative sentencing hearing, the trial court denied probation and all other forms of alternative sentencing. In this appeal as of right, the Defendant contends that the trial court erred in denying him alternative sentencing. Following our review, we affirm the judgments of the trial court.

A Knox County Criminal Court jury convicted the defendant, Marvin J. Hill, of first degree premeditated murder, see T.C.A. _ 39-13-202 (2003), and abuse of a corpse, see id. _ 39-17-312. The trial court imposed sentences of life imprisonment and six years, respectively, and ordered the sentences to be served concurrently for an effective sentence of life in prison. In this appeal, the defendant argues that the trial court should have suppressed bodily fluids obtained from the victim's body as fruit of the defendant's unconstitutionally procured statement, contends that the trial court erred by admitting into evidence telephone calls the defendant placed while in jail and a videotape recording of the victim's body being recovered by authorities, asserts that the trial court should not have ruled that he could be impeached by convictions greater than 10 years old, claims that the trial court erred by permitting the State to argue that the victim had been raped prior to her death, and challenges the sufficiency of the convicting evidence. Discerning no error, we affirm the judgments of the trial court.

The Petitioner, Thomas T. Nicholson, appeals the denial of post-conviction relief in the Criminal Court for Loudon County from his conviction upon a plea of nolo contendere to sexual battery by an authority figure, a Class C felony, for which he received a six-year sentence in the Department of Correction. On appeal, the Petitioner contends that he received the ineffective assistance of counsel and that as a result, his plea was not voluntarily, knowingly, or intelligently entered. We hold that the Petitioner received the ineffective assistance of counsel because he was given erroneous advice about release eligibility. We reverse the judgment of the trial court denying post-conviction relief, we vacate the Petitioner's conviction, and we remand the case for further proceedings consistent with this opinion.

Father appeals the trial court's termination of his parental rights. Finding that Father was in substantial non-compliance with the permanency plan and that termination was in the child's best interest, the court's decision is affirmed.

Plaintiff brought this action, asserting that defendants were constructing a fence which impacted on her driveway right-of-way, and sought an injunction against the construction of the fence. The Trial Court determined the fence was being constructed on defendants' property and denied plaintiff relief. However, the Trial Court also determined that the fence served no useful purpose, and suggested it was a spite fence. Plaintiff has appealed. On appeal, we affirm the Trial Judge as modified, the modification being that the defendant had testified in the Trial Court that he was building a fence of the same style and character as the fence around the rest of his property, which was a split board type, and would not block plaintiff's view. We modify the Judgment to restrict the defendants to constructing a fence as depicted in the exhibits filed in the Trial Court, i.e., the same type of fence he has constructed around the remainder of his property.

The parties each own a one-half undivided interest in property previously used as medical offices. MBC filed a complaint for partition and sale, which the trial court granted, finding that the property could not be partitioned in kind and that it was to the parties’ advantage to sell it. Dr. Couch appeals, and we affirm.

The Defendant, Jason Lee White, was convicted by a jury of one count of burglary, one count of aggravated robbery, and one count of especially aggravated kidnapping. In this direct appeal, he contends that the trial court erred: (1) in denying his motion to set aside his conviction for especially aggravated kidnapping; and (2) in upholding the State's use of a peremptory challenge under Batson v. Kentucky, 476 U.S. 79 (1986). After our review, we reverse and dismiss the Defendant's especially aggravated kidnapping conviction. In all other respects, the judgments of the trial court are affirmed.

The Defendant, Brittany Scott Pye, was convicted by a Maury County jury of sale of .5 gramsor more of cocaine, a Class B felony. See Tenn. Code Ann. _ 39-17-417. Following a sentencing hearing, the trial court imposed a fifteen-year sentence for this conviction, which was ordered to be served consecutively to two prior sentences. In this direct appeal, the Defendant challenges only the imposition of consecutive sentences. After a review of the record, we affirm the judgment of the trial court. However, we must remand for entry of a corrected judgment.

Petitioners challenge a mosquito spraying plan adopted by a local board of health alleging that it violates an ordinance on the same subject. Dismissal by the trial court is affirmed since there is no conflict between the plan and ordinance and petitioners fail to allege a legally cognizable ground to challenge the plan since dissatisfaction with the plan is not sufficient.

A Shelby County jury found the defendant, Joseph Pollard, guilty of first degree murder, attempted voluntary manslaughter, a Class D felony, and aggravated assault, a Class C felony. He received a life sentence for his first degree murder conviction, two years as a standard offender for attempted voluntary manslaughter, and three years as a standard offender for aggravated assault, to be served concurrently in the Tennessee Department of Correction. On appeal, the defendant argues that the evidence was insufficient to support a first degree murder conviction and that the trial court erred in dismissing his motion for mistrial. Following our review of the record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

The Department of Children's Services brought this action to sever the parental rights of the mother to her three minor children. As the case developed, the sole ground for termination relied upon by the Department was the mother's conviction for violation of Tenn. Code. Ann. _ 39-15-402, concerning child abuse. However, this particular statute is not listed as the grounds for termination in Tenn. Code Ann. _37-1-102(C). The Trial Court terminated the parental rights based upon her criminal conviction. The mother has appealed. We reverse the Trial Court on the grounds that the statute relied upon by the Department does not establish grounds for termination of parental rights.

The Defendant was indicted for sale and delivery of less than .5 grams of a Schedule II controlled substance, both Class C felonies. A jury acquitted the Defendant of the sale of a Schedule II controlled substance but convicted him of the lesser-included offense of simple possession or casual exchange of a Schedule II controlled substance. The jury also convicted the Defendant of delivery of a Schedule II controlled substance. The trial court sentenced the Defendant as a career offender to fifteen years confinement for the delivery conviction. In his appeal as of right, the Defendant raises five issues for this court's review: (1) whether the verdicts were inconsistent; (2) whether the convictions for simple possession or casual exchange merge with the delivery conviction; (3) whether the Defendant received a fair trial when jurors were found sleeping during the presentation of evidence; (4) whether the evidence was sufficient to convict the Defendant of delivery of a Schedule II controlled substance; and (5) whether the Defendant received a fair trial when he was intoxicated and unable to assist trial counsel at the time of trial. We conclude that the issues regarding the sleeping jurors and the Defendant's alleged intoxication are waived because the Defendant failed to file a timely motion for a new trial. Following our review, we conclude that the verdicts were not inconsistent and that the evidence was sufficient to support his convictions. However, we conclude that the judgments do not properly reflect the jury's verdict or the trial court's merger of the offenses Therefore, we remand the case for correction of the judgments.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. After developing an allergy to latex, a hospital employee filed a claim for workers’ compensation benefits in the Chancery Court for Davidson County. While the case was pending, the trial court declined to require the employee to submit to an independent medical examination in accordance with Tenn. Code Ann. § 50-6-204(d)(1) (Supp. 2009). The trial court conducted a bench trial and determined that the employee’s latex allergy was an occupational disease. The trial court also determined that the employee had a fifteen percent impairment to the body as a whole and awarded her permanent partial disability at fifty percent. The employer has appealed. We have determined that the trial court erred by failing to require the employee to submit to an independent medical examination. Accordingly, we vacate the judgment and remand the case for further proceedings.

The petitioner, Christina Kay Deering, appeals from the Jefferson County Circuit Court's dismissal of a petition for post-conviction relief filed on her behalf by her mother, Melissa Deering. The State has moved to have this court summarily affirm the dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the motion and affirm the order of dismissal pursuant to Rule 20.

We granted appeal to determine whether a trial court may grant an intervening adoption petition pursuant to Tennessee Code Annotated section 36-1-116(f)(1) when the intervening petitioners did not have physical custody or the right to receive physical custody of the child sought to be adopted at the time they filed their petition. The maternal grandparents petitioned to adopt the child, who was in their physical custody, and the paternal grandparents filed an intervening adoption petition. After engaging in a comparative fitness analysis, the trial court granted the paternal grandparents' petition. The Court of Appeals held that the trial court erred in considering the paternal grandparents' petition because they did not meet the physical custody requirement in section 36-1-116(f)(1) and remanded the case to the trial court to enter an order granting the maternal grandparents' petition. We hold that section 36-1-116(f)(1) includes an exception to the physical custody requirement when the petitioners have filed an intervening adoption petition and the child sought to be adopted is in the physical custody of the original petitioners. We also hold that the evidence does not preponderate against the trial court's findings that the paternal grandparents were fit, that they were financially capable of providing for the child, and that the child's best interests would be served by granting their petition. We therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court in all respects.

The Defendant, Antonio Santial Jones, appeals his conviction by a jury in the Davidson County Criminal Court for second degree murder, a Class A felony, for which he was sentenced as a Range I, violent offender to twenty-two years in the Department of Correction. The Defendant contends that the evidence was insufficient to support his conviction and that the testimony of two witnesses should have been considered accomplice testimony, requiring independent corroboration. We affirm the judgment of the trial court.

This is an appeal in a civil rights action filed by the Appellant, a pro se litigant. During the course of the proceedings, the Appellant was incarcerated. The trial court involuntarily dismissed the Appellant’s claim pursuant to Tennessee Rule of Civil Procedure 41.02 upon finding that the Appellant failed to prosecute his case. The Appellant appeals the dismissal. Finding that the trial court failed to rule on several of the Appellant’s motions and objections, we reverse the trial court’s dismissal and remand for further proceedings.

The defendant, Abron Spraggins, was convicted by a Shelby County Criminal Court jury of aggravated assault, a Class C felony, and reckless endangerment with a deadly weapon, a Class E felony, and was sentenced by the trial court to an effective term of thirteen years in the Department of Correction. The defendant raises three issues on appeal: (1) whether the trial court committed plain error by instructing the jury that felony reckless endangerment was a lesser-included offense of aggravated assault as charged in the indictment; (2) whether the evidence was sufficient to sustain the convictions; and (3) whether the trial court erred by enhancing the defendant’s aggravated assault sentence and ordering that the aggravated assault and reckless endangerment sentences be served consecutively. Following our review, we affirm the judgments of the trial court.

The defendant, Abron Spraggins, was convicted by a Shelby County Criminal Court jury of aggravated assault, a Class C felony, and reckless endangerment with a deadly weapon, a Class E felony, and was sentenced by the trial court to an effective term of thirteen years in the Department of Correction. The defendant raises three issues on appeal: (1) whether the trial court committed plain error by instructing the jury that felony reckless endangerment was a lesser-included offense of aggravated assault as charged in the indictment; (2) whether the evidence was sufficient to sustain the convictions; and (3) whether the trial court erred by enhancing the defendant's aggravated assault sentence and ordering that the aggravated assault and reckless endangerment sentences be served consecutively. Following our review, we affirm the judgments of the trial court.

Shortly after their marriage, both Husband and Wife filed complaints for divorce. The trial court found both parties guilty of inappropriate marital conduct and granted a divorce. Husband raises numerous issues on appeal. We affirm.

As the majority opinion observes, the Court of Criminal Appeals has twice held that petitioner Davis’s sentences were illegal. After our intermediate appellate court’s first opinion in this case, Davis v. State, No. M2007-01729-CCA-R3-HC, 2008 WL 1958174, at *3 (Tenn. Crim. App. May 6, 2008), we granted the State’s application for permission to appeal and remanded for reconsideration in light of our decision in Edwards v. State, 269 S.W.3d 915 (Tenn. 2008). Upon reconsideration, the Court of Criminal Appeals again remanded to the trial court for the entry of habeas corpus relief. Davis v. State, No. M2009- 00011-CCA-RM-HC, 2009 WL 961777, at *4 (Tenn. Crim. App. April 8, 2009). Upon application by the State, we granted permission to appeal.

While cohabitating with Appellant, Mother gave birth to a child, and shortly thereafter, Appellant acknowledged paternity. Several years later, a DNA test allegedly indicated that Appellant was not the child’s biological father. After receiving the DNA test results, Appellant waited more than two years to file a petition to disestablish paternity, which the juvenile court denied. Because Appellant failed to file his petition for Rule 60.02 relief “within a reasonable time,” we affirm the decision of the juvenile court.