APPELLATE COURT OPINIONS

The Defendant, Christopher Lawrence Milliken, pled guilty to one count of resisting a stop, frisk, halt, arrest or search; one count of simple possession of marijuana; and one count of violating the implied consent law. In conjunction with his guilty pleas, the Defendant reserved a certified question of law for this Court's consideration. Because the certified question of law is not dispositive of the Defendant's case, we dismiss this appeal.

While I concur in the majority opinion on some issues, I must dissent from the affirmance of the termination of the Hes’ parental rights on the ground of willful failure to visit.1 I would instead reverse the trial court’s termination of the Hes’ parental rights.

On December 17, 1999, Defendant, Henry Martinez, pled guilty to the Class A felony offense of conspiracy to sell more than 300 pounds of marijuana. Under the negotiated plea agreement, he received a sentence of fifteen (15) years as a Range I, standard offender. Also, pursuant to the negotiated plea agreement, the State dismissed a charge of possession with intent to deliver seventy (70) pounds of marijuana within 1000 feet of a school, as long as he testified truthfully against his co-defendants in the case. On July 19, 2004, Defendant filed a motion to withdraw his guilty plea. The motion was denied by the trial court and defendant has appealed to this Court. The State has filed a motion to affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. We conclude that the motion has merit, grant same, and affirm the judgment of the trial court.

In this appeal, we are called upon to evaluate the trial court’s decision to terminate the parental rights of the biological parents to a minor child. The biological parents are Chinese immigrants who are presently in this country illegally and are subject to deportation proceedings. Shortly after coming to the United States, the biological parents had a daughter. Facing financial difficulties at the time of their daughter’s birth, the parents decided to place their daughter in the care of an adoption agency until their financial situation improved. The agency placed the child with foster parents who agreed to care for the child over an initial three month period. At the conclusion of the three month foster care period, the biological parents agreed to the entry of a consent order by the juvenile court transferring custody of the child to the foster parents. The biological parents continued to visit with their daughter at the home of the custodial non-parents approximately once each week for one hour each visit. However, they paid no child support to the custodial non-parents. The biological parents subsequently filed a petition to modify the juvenile court’s custody order seeking to regain custody of their daughter, which the court denied. Thereafter, the biological parents continued to visit their daughter with the same frequency as before. On one day in particular, the biological parents asked to take their daughter fora family portrait, and the custodial non-parents refused their request. When the biological parents refused to leave the custodial non-parents’ home, the police were called. After speaking with the police, the biological parents left the home and never returned to visit their daughter citing their fear of arrest. A short time after this incident, the biological parents filed a second petition to modify the juvenile court’s custody order. In response, the custodial non-parents filed a petition to adopt the child and to terminate the biological parents’ parental rights in the chancery court, primarily relying on the ground of abandonment. As a result, the biological parents’ petition to modify the custody order was transferred to the chancery court. Following a lengthy and tortured procedural history, the chancery court held a bench trial in the matter and subsequently entered an order terminating the biological parents’ parental rights. The biological parents filed a timely appeal to this Court. We affirm in part and reverse in part the decisions of the chancery court in this case. However, in light of our decisions on certain issues presented in this case, we need not remand this case to the chancery court for further proceedings.

M.D. ("Mother") filed a petition seeking to terminate the parental rights of R.L.H. ("Father") to the parties' seven year old son. Following a hearing, the Juvenile Court held that grounds for terminating Father's parental rights had been established by clear and convincing evidence. However, the Juvenile Court made no factual findings or conclusions of law as to whether terminating Father's parental rights was in the best interest of the child. The judgment of the Juvenile Court is affirmed in part, vacated in part, and remanded for further proceedings.

I must respectfully dissent from the majority Opinion. The issue presented for review, as stated by the Appellants is:

Whether the Chancery Court correctly held that County Charter, Article II, § 2.03(g)(the “Charter”and the “Amendment”), which provides that no County Mayor or County Commissioner is eligible to be elected to or to hold office for more than two consecutive four year terms, is valid in accordance with the third paragraph of Tennessee Constitution, Article VII, Section 1 and Tenn. Code Ann. § § 5-1-201, et seq.

The Defendant, Bernardo C. Lane, petitioned for post-conviction relief, alleging ineffective assistance of counsel. After an evidentiary hearing, the trial court denied relief. This direct appeal followed. We affirm the judgment of the trial court.

This is a direct appeal as of right from jury verdict convictions for aggravated robbery, aggravated burglary and theft of property. The Defendant, Lester James Farris, Jr., was sentenced as a Range II, multiple offender to an effective twenty year sentence. The Defendant argues three issues on appeal: (1) the trial court erred in denying his motion to suppress a statement he made to law enforcement officers; (2) there is insufficient evidence to find him guilty beyond a reasonable doubt of the three offenses for which he was convicted; and (3) his sentence is excessive. We affirm the judgments of the trial court.

This appeal from a declaratory judgment action requires us to determine whether term limits imposed on Shelby County Commissioners by the 1994 amendments to the Shelby County Charter, Article II, section 2.03(G), are permissible under Tennessee Code Annotated § 5-1-210 and, if so, whether § 5-1-210 is unconstitutional under the Tennessee Constitution, Article VII, Section 1. We hold that term limits are permitted as “qualifications” under Tennessee Code Annotated § 5-1-210(4). We further hold that Tennessee Code Annotated § 5-1-210(4), insofar as it permits county charters to prescribe the qualifications of members of the county legislative body, is void as unconstitutional under Article VII, Section 1, of the Tennessee Constitution. We accordingly vacate the judgment of the trial court, award summary judgment to Plaintiffs/Appellants, and enjoin enforcement of section 2.03(G) of the Shelby County Charter.

This is an appeal as of right from a denial of post-conviction relief. The Defendant, Wade P. Tucker, was convicted of attempted first-degree murder pursuant to a guilty plea, and especially aggravated robbery and aggravated burglary following a bench trial. The Defendant was sentenced to twenty-four years in the custody of the Tennessee Department of Correction (TDOC). This Court upheld the Defendant's attempted murder and especially aggravated robbery convictions on direct appeal, but reversed the conviction for aggravated burglary. See State v. Wade P. Tucker, No. M2001-02298-CCA-R3-CD, 2002 WL 1574998 (Tenn. Crim. App., Nashville, July 17, 2002). The Defendant subsequently filed a petition for post-conviction relief, which was denied. The Defendant now appeals denial of post-conviction relief, arguing: (1) his conviction for attempted first degree murder is void due to a faulty guilty plea; and (2) he received ineffective assistance of trial counsel. We affirm the judgment of the post-conviction court.

The Defendant, Ronnie D. Sims, was convicted by a jury of one count of aggravated robbery, one count of vandalism, and one count of possession of burglary tools. After a hearing, the trial court sentenced the Defendant as a Range II, multiple offender, to seventeen years in the Department of Correction for the aggravated robbery conviction. The trial court sentenced the Defendant to concurrent sentences of six years for the vandalism conviction and eleven months, twenty-nine days for the burglary tools offense. In this direct appeal, the Defendant contests the sufficiency of the evidence; claims that his right to a fair trial was compromised by the State's loss of evidence; and complains that his seventeen year sentence for the aggravated robbery is excessive. We affirm the judgments of the trial court.

This case involves an intrafamily transaction in real property. A now-deceased owner of a piece of commercial property held by tenancy by the entireties agreed to sell it to his nephew in a handshake transaction. The nephew made a $10,000 down payment, began paying off the balance in monthly installments, and made improvements to the property. After the seller died, his widow filed a complaint for declaratory judgment asking the court to declare the rights of the parties with regard to the real property. Although the trial court found there was indeed an agreement between the uncle and the nephew to sell the land to the nephew, the court declined to require the widow to effectuate the contract, not because she had not agreed to the sale, but because she offered to reimburse the nephew for all his out-of-pocket costs. Because we conclude the widow should be estopped from asserting the statute of frauds to avoid the sale, and because her offer cannot limit the buyer’s remedies, we reverse.

This appeal involves interpretation of a warranty contract for used cars. Since the contract provided no exclusion for an inaccurate odometer, we affirm the trial court's enforcement of the warranty.

The Metropolitan Government of Nashville and Davidson County appeals the summary dismissal of an action against Cigna Healthcare of Tennessee, Inc. The claims are a result of Cigna's failure to purchase a performance bond in assurance of Cigna's fulfillment of its obligation to Metro employees. Metro circulated a Request for Proposal to provide health insurance services for Metro employees for a four-year period which required the successful bidder to purchase a performance bond. Cigna was a successful bidder and fully performed all obligations, with the exception of the performance bond. As the term neared expiration, Metro discovered Cigna had not provided the bond and, moreover, that the parties had failed to execute a written agreement. After negotiations to execute a written agreement failed, Metro filed this action contending Cigna was unjustly enriched by failing to provide the performance bond and, alternatively, that Cigna was in breach of contract by failing to provide the bond. Cigna denied liability and moved for summary judgment. The trial court summarily dismissed the unjust enrichment claim finding Cigna had not charged Metro for the cost of a performance bond, thus it was not unjustly enriched. The trial court also dismissed the breach of contract claim finding Metro had failed to satisfy a condition precedent to recover on the claim. Metro appeals contending material facts are in dispute. We affirm the dismissal of both claims.

The Petitioner, Mark Steven Parker, appeals the lower court’s denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition was filed outside the applicable statute of limitation and is, therefore, time-barred. Accordingly, we affirm the trial court’s dismissal.

The defendant, Louise Dawson Marlow, pled nolo contendere to reckless homicide and agreed to a sentence of seven years as a Range II, multiple offender. The trial court sentenced the defendant to one year in confinement followed by six years in community corrections. This Court concluded on direct appeal that the defendant was not eligible for community corrections and remanded for re-sentencing. Upon remand, the trial court re-sentenced the defendant to serve her entire sentence in confinement. The defendant again appeals, arguing that the trial court erred in re-sentencing. We affirm the judgment of the trial court.

The unsuccessful plaintiff brings this appeal from the trial court's summary judgment dismissing his malpractice claim. Because the plaintiff did not respond to the defendant's properly supported Motion for Summary Judgment, we affirm.

The Petitioner, Joe Clark Mitchell, appeals the trial court's denial of his motion to dismiss and expunge. The State has filed a motion requesting that the Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The Petitioner, Darrell E. Braddock, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

The defendant, Cecil Moss, filed two motions in Dickson County Circuit Court requesting pretrial jail credits and sentencing credits on his two convictions for sale of cocaine and the trial court denied both motions. The defendant appeals, contending the trial court erred in denying him jail credit. We hold that this case is not properly before this court because no appeal as of right exists from the trial court's dismissal of the motions, and we dismiss the appeal.

The petitioner, James Lavell Carrethers, appeals from the Davidson County Criminal Court's dismissal of his petition for post-conviction relief from his conviction for second degree murder, a Class A felony. He contends that the trial court erred in instructing the jury and that he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

The petitioner, William Binkley, was convicted by a Rutherford County Circuit Court jury of attempted first degree murder and reckless endangerment, and the trial court sentenced him to an effective twenty-five-year sentence. Subsequently, the petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of trial counsel. After an evidentiary hearing, the post-conviction court denied post-conviction relief, and the petitioner appealed. The State argues that the appeal should be dismissed because the petitioner filed his post-conviction petition outside the one-year statute of limitations. We conclude that the case should be remanded in order for the post-conviction court to determine whether the petition was filed outside the one-year statute of limitations. Regarding the petitioner's ineffective assistance of counsel claim, we hold that the post-conviction court properly ruled that the petitioner did not receive the ineffective assistance of counsel.

The petitioner, Calvin J. Grissette, appeals the Davidson County Criminal Court's order dismissing his November 2, 2004 petition for post-conviction relief that challenged his 2003 convictions of second degree murder and attempt to commit second degree murder. In his petition, the petitioner claimed infirmity in his convictions due to the ineffective assistance of counsel. Because the record supports the post-conviction court's denial of relief, we affirm.

Plaintiff appeals the dismissal by the trial court of his action under the Uniform Administrative Procedure Act challenging the calculation of his prison sentence. Holding that his petition to review in the Chancery Court of Davidson County was untimely under Tennessee Code Annotated section 4-5-322(b)(1), the trial court dismissed the action. We affirm the trial court.

The state appeals the Bedford County Circuit Court's suppression of statements made by the defendant at the defendant's second sentencing hearing. It claims that despite its failure during discovery to give the defendant notice of his statements, the trial court abused its discretion in suppressing the state's evidence, which it contends is the most drastic measure available and should only be employed when no other appropriate remedy exists. The state argues that granting the defendant a continuance would have been an appropriate remedy. We conclude the trial court erred in suppressing the statements and remand the case for further proceedings consistent with this opinion.