APPELLATE COURT OPINIONS

This appeal concerns the revocation of a criminal defendant’s probation. We granted Defendant’s application for permission to appeal to consider whether revocation proceedings are a one-step or two-step process on the part of the trial court and the appropriate appellate standard of review to be employed in reviewing such determinations. Defendant in this case pleaded guilty to theft of property over $1,000 but less than $10,000 and received a six-year sentence, which the trial court suspended to supervised probation. A series of revocation proceedings ensued. At Defendant’s fifth and final revocation hearing, the trial court fully revoked his probation. Defendant took issue with the consequence imposed for his probation violation; however, the Court of Criminal Appeals found no abuse of discretion on the part of the trial court and affirmed its decision. Judge Timothy L. Easter filed a separate concurring opinion in which he emphasized his belief that a trial court, after it has determined probation should be revoked, is not statutorily required to hold an additional hearing or make any additional findings to determine the manner in which the original sentence should be served. We granted Defendant’s application for permission to appeal. While we do not agree with Defendant that the trial court abused its discretion in ordering him to serve the balance of his six-year sentence in prison, we do take this opportunity to clarify and bring uniformity to the standards and principles applied by the trial courts and appellate courts in probation revocation proceedings. We conclude that a probation revocation proceeding ultimately involves a two-step inquiry. A trial court, upon finding by a preponderance of the evidence that a defendant violated the conditions of his or her probation, must determine (1) whether to revoke probation, and (2) the appropriate consequence to impose upon revocation. On appeal, the appellate court must review both decisions separately for abuse of discretion. More specifically, if the trial court has properly placed its findings on the record, the standard of review for probation revocations is abuse of discretion with a presumption of reasonableness. Considering this Court’s prior opinions establishing the appellate standard of review of a trial court’s sentencing decisions, we expressly extend the same principles to appellate review of a trial court’s decision to revoke probation. Because we conclude that the trial court did not abuse its discretion in Defendant’s case, we affirm the decision of the Court of Criminal Appeals.

Defendant, Darius Henderson, was convicted following a jury trial of one count of theft of property valued over $2,500 but less than $10,000 (Count 1) and one count of evading arrest while operating a vehicle (Count 2). Based on Defendant’s prior Tennessee convictions and a Georgia conviction, the trial court sentenced Defendant as a Range III persistent offender to consecutive sentences of twelve years in Count 1, and six years in Count 2. On appeal, Defendant argues that the trial court erred in sentencing him as a Range III persistent offender because he had only four prior Tennessee felonies and the State did not submit proof that Defendant’s Georgia conviction qualified as a felony conviction in a foreign jurisdiction. See T.C.A. §40-35-107. Following our review, we reverse the judgment of the trial court and remand for Defendant to be sentenced as a Range II offender.

The Petitioner, Yasin Solomon Hawkins, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and that his waiver of the right to a jury trial was not knowing, intelligent, and voluntary.  After review, we affirm the post-conviction court’s judgment. 

A Davidson County grand jury indicted the defendant, Keinesa Renee Kyshay Lillard, for one count of attempted first-degree murder, one count of employing a firearm during the commission of a dangerous felony, one count of especially aggravated robbery, one count of evading arrest by use of a motor vehicle involving risk of death or serious bodily injury to others, and four counts of simple possession of a controlled substance.  Following trial, a jury convicted the defendant of attempted second-degree murder (count one) and employing a firearm during the commission of a dangerous felony (count two), for which she received an effective sentence of thirty-two years in confinement at 100 percent.  On appeal, the defendant argues the evidence presented at trial was insufficient to support her conviction for attempted second-degree murder, the trial court erred in failing to instruct the jury on the lesser-included offense of misdemeanor reckless endangerment, and her sentence was excessive.  After reviewing the record and considering the applicable law, we affirm the judgments of the trial court and remand for the execution of a amended judgment for the employing a firearm during the commission of a dangerous felony conviction.

This appeal concerns an ATV (all-terrain vehicle) accident. Sam Vaulton, a minor, by his parents, next friends and natural guardians, Barry Vaulton and Joy Vaulton, and Barry Vaulton and Joy Vaulton, individually (“Plaintiffs,” collectively) sued Polaris Industries, Inc. (“Polaris”) and Ritchie Power Sports, LLC (“Ritchie”) (“Defendants,” collectively) in the Circuit Court for Jefferson County (“the Trial Court”) for injuries Sam Vaulton received from the winch on his ATV (called “The General”). The General was manufactured by Polaris and sold by Ritchie. Sam Vaulton lost his right index finger when he directed his friend to push the “out” button on the winch-controls while Sam Vaulton was holding the winch-hook and the cable went in rather than out. Defendants filed motions for summary judgment, which the Trial Court granted. Plaintiffs appeal. We affirm the Trial Court’s conclusion that there is no genuine issue of material fact as to whether Plaintiffs were provided an owner’s manual or safety instructions; the undisputed evidence shows they were provided. However, there are genuine issues of material fact as to whether a tether was attached to the winch-hook and whether the General’s winch was in a defective or unreasonably dangerous condition when it left Polaris’ control. We hold further that the Trial Court erred in concluding at this summary judgment stage that Polaris had no duty to attach a rubber stopper to the winch. We, therefore, reverse the Trial Court’s grant of summary judgment to Defendants, and remand for further proceedings consistent with this Opinion. The judgment of the Trial Court is thus affirmed, in part, and reversed, in part.

The Defendant, Emily Leanne Brooks, entered an open guilty plea to second degree murder. Prior to sentencing, she obtained new counsel and filed a motion to withdraw her plea one week after it was entered. That motion, along with her subsequent motion to reconsider, was denied following the trial court’s balancing analysis of the factors set forth in State v. Phelps, 329 S.W.3d 436, 446 (Tenn. 2010), and its determination that the Defendant was not a credible witness. The Defendant was, thereafter, sentenced to twentyone years. She appeals as of right, noting that she immediately sought to withdraw her plea and arguing (1) that the significance of her traumatic brain injury on her decision-making process was underappreciated by her prior attorneys and the trial court, and (2) that given her difficulties, she should have been allowed to speak with her parents who were present in the courtroom before being required to accept the take-it-or-leave plea deal that was presented that day. Following our review, we affirm.

Pro-se petitioner, Joseph Smith, filed an untimely notice of appeal from the Shelby County Criminal Court’s denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Following our review of the entire record and the briefs of the parties, we conclude that the interest of justice does not warrant a waiver of the notice requirement because Petitioner failed to state a colorable claim for relief. Therefore, we dismiss this appeal as untimely.

In this divorce case, Husband and Wife filed cross-appeals seeking review of the trial court’s: (1) division of marital property; (2) award of alimony in futuro to Wife; and (3) award of alimony in solido to Wife. Husband raises additional issues concerning the trial court’s reliance on testimony from Wife’s medical expert and the trial court’s refusal to apply the missing witness rule. Discerning no error, we affirm and remand.

Father appeals from the Williamson County Circuit Court’s order suspending his parenting time with his minor children.  The Circuit Court had tried the matter de novo following an appeal by Father from prior proceedings in the Williamson County Juvenile Court.  Based upon our review of the record, we conclude that Father failed to timely perfect his appeal to the Circuit Court from the Juvenile Court’s order.  Therefore, we conclude that the Circuit Court did not have subject matter jurisdiction to hear the appeal, and we vacate its order and dismiss the case. 

The Defendant, Daron Hall, was convicted by a Knox County Criminal Court jury of evading arrest, a Class E felony; driving a motor vehicle while his license was suspended, a Class B misdemeanor; criminal impersonation, a Class B misdemeanor; violating the “light law,” a Class C misdemeanor; and operating a motor vehicle without a proper license plate, a Class C misdemeanor. See T.C.A. §§ 39-16-603 (2018) (subsequently amended) (evading arrest), 55-50-504 (2018) (driving on a suspended license), 39-16-301 (2018) (criminal impersonation), 55-9-402 (2018) (motor vehicle light law), 55-5-114 (2018) (proper license plate). The trial court sentenced the Defendant as a career offender to six years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred by denying his motion for a continuance. We affirm the judgments of the trial court.

A juvenile was adjudicated delinquent in juvenile court, as well as circuit court on de novo appeal, for rape of a child and incest. On appeal to this Court, the juvenile argues that the evidence was insufficient to prove that he committed those offenses. We affirm.

A seller entered into an agreement to sell its meal preparation business and assets to a purchaser who was also in the meal preparation business.  When the seller failed to perform certain of its obligations under the agreement, the purchaser ceased performing its contractual obligations.  The seller filed a breach of contract claim against the purchaser, and the purchaser moved for summary judgment based on the seller committing the first material breach.  The trial court granted summary judgment to the purchaser, and the seller appealed.  We affirm as modified and remand for a determination of the purchaser’s reasonable attorney fees incurred on appeal.

Defendant, Robert M. Atwell, Jr., was convicted by a jury of one count of violating the sex offender registry. The trial court imposed a sentence of one year, with ninety days incarceration, and the remainder to be served on probation. On appeal, Defendant argues that: the trial court erred by admitting specific evidence of his prior sexual offenses after he offered to stipulate his status as a sex offender; his conviction for violation of the sex offender registry violates the Ex Post Facto Clause of both the United States and Tennessee Constitutions; there was a fatal variance between the indictment and the proof presented at trial; and there was cumulative error. Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

Henry Lee Jones, Petitioner, filed a pro se petition for post-conviction relief with the assistance of the Office of the Post-Conviction Defender (“OPCD”). The post-conviction court determined that the petition stated a colorable claim and appointed the OPCD to represent Petitioner. Shortly thereafter, the effects of COVID-19 began to impact and impede the day-to-day operations of parts of the Tennessee court system. The OPCD, citing the voluminous record and inability to fully investigate potential claims because of the impact of COVID-19, sought several extensions of time in which to file an amended petition. Seven months after the OPCD was appointed to represent Petitioner, the post-conviction court removed the OPCD from representation and appointed private counsel to represent Petitioner without notice or a hearing. The OPCD sought an extraordinary appeal to this Court pursuant to Rule 10 of the Rules of Appellate Procedure. This Court granted the application and directed the parties to address the following issues: (1) “whether the post-conviction court abused its discretion in removing the [OPCD] as counsel of record;” and (2) “whether the [OPCD] has the authority to act as counsel of record for [Petitioner] in this Court.” After review, we determine that the OPCD had the authority to appeal the removal and that the post-conviction court improperly removed the OPCD from the case. As a result, we reverse the judgment of the post-conviction court and remand the case for further proceedings consistent with this opinion.

This appeal involves an arbitration agreement executed in connection with a patient’s admission to a nursing home. The arbitration agreement was executed by the patient’s brother, who had been designated as the patient’s attorney-in-fact for health care pursuant to a durable power of attorney for health care executed by the patient several years earlier. When the patient’s brother filed this wrongful death suit in circuit court, the nursing home defendants filed a motion to compel arbitration. The patient’s brother then asserted that he did not have authority to bind the patient to the arbitration agreement because the patient had been mentally incompetent when he executed the durable power of attorney for health care years earlier. The defendants argued that the trial court was not permitted to “look beyond” the durable power of attorney for health care to determine the competency of the patient at the time of its execution. The trial court ruled that it would “look beyond” the power of attorney for health care in order to consider the patient’s competency and allowed the parties to engage in discovery related to the issue of incompetence. Discovery ensued, and the parties submitted additional evidence regarding the patient’s competency. The trial court then found by clear and convincing evidence that the patient was incompetent at the time the durable power of attorney for health care was executed. As a result, the trial court concluded that the patient’s brother lacked authority to sign the arbitration agreement as attorney-in-fact for health care. The trial court denied the motion to compel arbitration, and the defendants appealed. Pursuant to the Tennessee Supreme Court’s decision in Owens v. National Health Corp., 263 S.W.3d 876 (Tenn. 2007), we hold that the trial court erred in looking beyond the durable power of attorney for health care to examine the patient’s competency at the time it was executed. We reverse the decision of the trial court and remand for further proceedings consistent with this opinion.

Defendant, Randal Ledon Tate, was convicted by a jury of possession with intent to sell less than fifteen grams of heroin within 1,000 feet of a school (count 1), possession with intent to deliver less than fifteen grams of heroin within 1,000 feet of a school (count 2), simple possession of Alprazolam (“Xanax”) (count 3), possession with intent to deliver Xanax within 1000 feet of a school (count 4), driving without a license (count 5), criminal impersonation (count 6), violation of the financial responsibility law (count 7), violation of the registration law (count 8), and driving a motor vehicle without operational taillights. (count 9). The trial court merged count 2 into count 1 and count 3 into count 4 and imposed an effective fifteen-year sentence as a Range I offender to be served in confinement. On appeal, Defendant argues: that the evidence was insufficient to support his convictions for possession of Xanax and heroin with intent to sell or deliver; that the trial court erred by admitting text messages about prior drugs sales; and that the trial court erred by denying his motion to dismiss based on an alleged Ferguson violation. After hearing oral arguments, and following a review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

The defendant, Earlie M. Jones, pled guilty to burglary, shoplifting, subsequent offense driving on a revoked license, and evading arrest, resolving the charges against him in five separate indictments.  As a result of his plea, he was sentenced to an effective term of four years’ incarceration.  On appeal, the defendant argues the trial court erred in denying his oral motion to withdraw his guilty pleas prior to imposition of the sentence.  After review, we affirm the judgment of the trial court but remand the case for entry of corrected judgments in Count 1 of case number 28153 and Count 2 of case number 28152.

The Petitioner, Nathan Scarborough, pleaded guilty to aggravated child abuse of a child eight years of age or less and second degree murder, and he received an effective thirty-three-year sentence. The Petitioner filed a petition for post-conviction relief, contending that he received ineffective assistance of counsel and that he did not plead guilty knowingly and voluntarily. Following a hearing, the post-conviction court denied the petition, and the Petitioner appeals. After review, we affirm the judgment of the post-conviction court.

This appeal arises from a petition for divorce filed in the Chancery Court for Rutherford County (the “trial court”). Noblelynn Shelby Norris (“Wife”) was granted a divorce from Terry Jamar Norris (“Husband”) after a hearing held on September 30, 2019. The trial court named Wife primary residential parent of the parties’ minor son, set child support, and awarded Wife her attorney’s fees. Because the trial court has never awarded Wife a specific amount of attorney’s fees, however, the order appealed from is nonfinal and must be dismissed.

The Petitioner, DeMarco Waters, appeals the denial of post-conviction relief with respect to his convictions for one count of first degree premeditated murder, three counts of attempted first degree murder, one count of attempted second degree murder, and four counts of employing a firearm during the commission of a dangerous felony, for which he received an effective sentence of life imprisonment plus seventy-seven years. On appeal, the Petitioner maintains that he received ineffective assistance of counsel at trial. We affirm the judgment of the post-conviction court.

A minority shareholder in a close corporation brought a shareholder oppression claim.  The trial court heard the claim in two phases.  After the first phase, the trial court found that there was shareholder oppression by the majority shareholder and determined that redemption of the minority shareholder’s shares was the appropriate remedy.  After the second, the court found the fair value of the minority shareholder’s shares.  The court later awarded attorney’s fees to the minority shareholder, but it failed to award fees associated with the second phase of trial.  The court also denied the minority shareholder’s request for prejudgment interest and dismissed an unjust enrichment claim.  On appeal, the minority shareholder takes issue with the court’s fair-value determination.  He also claims that he was entitled to prejudgment interest, as well as attorney’s fees for both phases of trial.  And he argues that the court erred in dismissing his unjust enrichment claim.  We affirm.  

The Petitioner, Seddrick Curry, pleaded guilty to two counts of aggravated burglary, one count of theft of property valued at $10,000 or more but less than $60,000, and one count of theft of property valued at $1,000 or more but less than $10,000, and he was sentenced to an effective thirty-year period of incarceration. The Petitioner filed a motion to withdraw his guilty pleas, claiming that his pleas were not knowingly and voluntarily entered due, in part, to the ineffective assistance of counsel. The trial court denied the Petitioner’s motion, and the trial court’s decision was affirmed on appeal. The Petitioner then petitioned for post-conviction relief on the basis that he received ineffective assistance of counsel. The post-conviction court denied his petition, and the Petitioner appeals. After review, we conclude that the issue presented on appeal has been previously determined, and we affirm the denial of post-conviction relief.

A decedent bequeathed his ownership interest in a corporation to his sister.  During the decedent’s lifetime, the corporate assets were sold, and the corporation terminated.  The decedent’s widow petitioned the probate court to construe the will.  Among other things, she argued that the decedent’s gift to his sister had been adeemed by extinction.  The probate court granted the widow summary judgment on this issue.  Based on the undisputed facts, we conclude that the gift was adeemed by extinction.  So we affirm.  

The Petitioner, Christopher Demotto Linsey, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel was ineffective for failing to file a motion to suppress evidence obtained from his cell phone, failing to object to evidence presented at trial, and failing to file a timely motion for new trial.   Based on our review, we affirm the judgment of the post-conviction court denying relief.   

This action involves the termination of a mother’s parental rights to her minor children. Following a bench trial, the trial court found clear and convincing evidence in support of one statutory ground of termination, the persistence of conditions which led to removal. The court also found that termination was in the best interest of the children. We vacate the judgment of the trial court, holding that the record does not contain clear and convincing evidence to support the sole statutory ground of termination found by the trial court.