APPELLATE COURT OPINIONS

The Appellant, Terry L. Tabor, was convicted by a Sullivan County jury of driving under the influence ("DUI"), speeding, and failure to use headlights. As a result of Tabor's conviction for DUI, he received a sentence of eleven months and twenty-nine days, with six months service in confinement. On appeal, Tabor raises two issues for our review: (1) whether the evidence is sufficient to support the conviction for DUI; and (2) whether the court erred in ordering him to serve six months in jail. After review, the judgment of conviction and resulting sentence are affirmed.

This is an appeal from the denial of post-conviction relief. The Petitioner, Shawn Donzell Anglin, pled guilty to and was convicted of facilitation of possession for resale of more than 0.5 grams of cocaine. Pursuant to a plea agreement, the Petitioner was sentenced to ten years to be served in Community Corrections and was fined $2,000. The Petitioner filed for and was denied post-conviction relief. The Petitioner now appeals the trial court's order denying post-conviction relief, claiming his trial counsel provided ineffective assistance of counsel which resulted in an involuntary guilty plea. We affirm the judgment of the trial court.

This case is before us after remand by the Tennessee Supreme Court. The defendant, who was indicted on three counts of rape of a child, a Class A felony, pled guilty to one count of incest, a Class C felony, in exchange for a negotiated eight-year sentence as a Range II, multiple offender.  On direct appeal, this court originally vacated the judgment of conviction on the grounds that incest is not a lesser-included offense of rape, without reaching the merits of the defendant’s sentencing issues.  Thomas Poston Studdard v. State, No. W2003-01210-CCA-R3-PC, 2004 WL 370259 (Tenn. Crim. App. Feb. 27, 2004), perm. to appeal granted (Tenn. Sept. 7, 2004). Our supreme court, however, concluded that the trial court had jurisdiction to accept the defendant’s guilty plea and remanded the case to this court for consideration of the defendant’s sentencing issues. Studdard v. State, __ S.W.3d __, 2005 WL 3192279 (Tenn. 2005). Following our review, we affirm the judgment of the trial court.

This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the Department’s confirmation of the prisoner as a member of a Security Threat Group.  The prisoner filed a petition pursuant to Tenn. Code Ann. § 4-5-225 (2005) in the Chancery Court for Davidson County seeking a declaratory judgment that the Department’s Security Threat Group policies and their application to him were invalid. The trial court granted the Department’s Tenn.  R. Civ. P. 12.02(6) motion to dismiss, and the prisoner has appealed. We have determined that the prisoner failed to state a claim upon which relief can be granted because Tenn. Code Ann. § 4-5-225 petitions cannot be used to challenge the Department’s internal management policies.

A Rutherford County Circuit Court jury convicted the appellant, Letonio Swader, of first degree felony murder, second degree murder, attempted especially aggravated robbery, and possession of a deadly weapon during the commission of an offense. The trial court merged the murder convictions and sentenced the appellant to life. The trial court also sentenced the appellant to ten years for the attempted especially aggravated robbery conviction and two years for the possession of a weapon conviction. The trial court ordered the appellant to serve the life and ten-year sentences concurrently and ordered that the two-year sentence be served consecutively to the other two sentences. On appeal, the appellant claims (1) that the State committed reversible error by telling potential jurors during voir dire that the punishment for first degree murder in this case was life with the possibility of parole, (2) that the trial court erred by failing to suppress his statement to police, and (3) that the evidence is insufficient to support the convictions because there is no evidence to corroborate his statement to police that he intended to rob someone. Upon review of the record and the parties' briefs, we conclude that the State's comments during voir dire were improper but harmless error and affirm the judgments of the trial court.

Vernon Frye, a defendant, appeals the grant of a post-trial motion to alter or amend the judgment for the defendant, resulting in a judgment against him of $65,000. Plaintiffs, Tom and Hazel Albert, sued Vernon Frye on a check he signed and delivered to them but stopped payment on before it was presented to the bank. Following a bench trial, the trial court dismissed Plaintiffs’ claim against Vernon Frye upon the finding Plaintiffs had not proven fraud. In a post-trial motion to alter or amend, Plaintiffs contended they were entitled to relief pursuant to Tenn. Code Ann. § 47-3-414(b) because Frye, the drawer, was obliged to pay the draft according to its terms without proof of fraud. The trial court agreed and entered a new judgment awarding damages in the amount of the check against Vernon Frye. Finding the trial court did not abuse its discretion by granting the Tenn. R. Civ. P. 59.04 motion to amend the judgment, we affirm.

The Appellant, Travis Ray Wilkins, was convicted by a Cocke County jury of aggravated burglary and theft of property over $500. As a result of these convictions, Wilkins received an effective sentence of five years. On appeal, Wilkins argues that the evidence is insufficient to support either of his convictions. After review of the record, we conclude that the evidence supports the convictions.

This is a claim filed against the State by a minor-decedent’s father for the wrongful death of the minor-decedent based on T.C.A. 9-8-307 (a)(1)(E) (Negligent Care, Custody and Control of Person). Claims Commissioner found that the State did not have care, custody and control of the minor child and, therefore, the Claims Commission is without jurisdiction to consider the claim.  Father appeals. We affirm.

A repairer sold equipment at auction to enforce its lien and collect its charges for repairs. It also attempted to collect storage charges that had not been agreed to. The trial court found the repairer was not entitled to storage charges, and we agree under the facts of this case. The trial court also awarded the owner of the equipment damages for the difference in the fair market value of the equipment and the amount received at auction. We modify that award to the measure authorized by statute in the absence of a challenge to the auction procedures. The trial court found the repairer violated the Tennessee Consumer Protection Act, and we reverse that holding.

Taxpayer insurance companies brought suit in consolidated cases for refund of franchise and excise taxes which taxpayers had paid under protest. The taxes were assessed as a result of an audit conducted by the Tennessee Department of Revenue's field audit division and covering tax years 1995 through 1998. The taxpayers assert that they are allowed to take credit against the franchise and excise taxes for the amount they actually paid in gross premiums tax plus the credit they were granted against said tax by virtue of Tennessee investments. The Commissioner asserts that they are only entitled to credit on the franchise and excise taxes for the amount of gross premiums tax actually paid. The Chancery Court of Maury County entered judgment granting taxpayers motion for summary judgment holding that the commissioner's interpretation of the statutes defeated the incentives for investment in Tennessee securities provided under the gross premiums tax statutes. The revenue commissioner appealed. Finding that Commissioner of the Department of Revenue is not estopped from assessing franchise and excise taxes against the Appellee, either by statute or by equity, and that the credit against franchise and excise taxes includes only the amount of gross premiums taxes paid and collected by the Department of Commerce and Insurance, we vacate the summary judgment granted to the Appellees and grant summary judgment for Appellant.

This appeal involves a dispute between the developers of the site of a former commercial laundry and dry cleaning plant located in a residential neighborhood and a group of neighboring residents and property owners. Following two public hearings, the Metropolitan Board of Zoning Appeals approved a mixed-use development that included renovating two of the existing structures and constructing a new structure containing underground parking and additional retail and residential space. The neighboring property owners filed a petition for a common-law writ of certiorari and a writ of supersedeas in the Chancery Court for Davidson County challenging the Board’s decision. Following a review of the record of the Board’s proceedings, the trial court upheld the Board’s decision, and the property owners appealed. We have determined that the Board followed the proper procedures and did not act arbitrarily, and that its decision is supported by material evidence.

The defendant, Tim Flood, appeals from his Knox County Criminal Court jury convictions of four counts of rape of a child, for which he received an effective sentence of 40 years in the Department of Correction. On appeal, the defendant claims that the convictions are unsupported by the evidence and that the trial court erred in refusing to allow a proposed defense witness to testify. Because the refusal to permit the defendant to call a witness was error, we reverse the convictions and remand the case.

The Petitioner, Charles Dewayne Moore, appeals from the trial court's summary dismissal of his petition seeking habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted. The judgment of the trial court is affirmed.

This appeal arises from the last of many petitions and counter-petitions by both parties to change custody of the parties' only child, to modify child support, to acquire arrearage judgments for non-paid child support, and for contempt of court. The order from which this appeal arose awarded custody of the child to the mother and dismissed the father's petition for contempt. Prior to this order, custody had been awarded to the father; however, he had not provided financial support for the child, and the child had not lived with him since the entry of the order awarding him custody. The dismissal of the father's petition was based upon the trial court's finding the father had failed to comply with the previous order he was seeking to enforce. Finding no error, we affirm.

This is a consolidation of three appeals involving three tariffs filed by BellSouth Telecommunications, Inc. with the Tennessee Regulatory Authority. All three tariffs contained bundled offerings of telecommunications services and non-telecommunications services. The Consumer Advocate Division of the Office of the Attorney General was allowed to intervene in these proceedings in order to address the question of BellSouth’s obligation, under the Federal Telecommunications Act of 1996, to offer for resale the telecommunications services contained in the bundled offerings. The Tennessee Regulatory Authority entered orders allowing the tariffs to go into effect without the telecommunications service portions thereof being offered for resale. The Consumer Advocate appealed and the cases were consolidated for that purpose. In 2005, during the pendency of this appeal, the Tennessee General Assembly enacted T.C.A.§65-37-103 (Supp. 2005).  This statute specifically exempts retail offerings of combinations or bundles of products or services from the jurisdiction of the Tennessee Regulatory Authority. In addition, all three of the tariffs at issue in this case expired, by their own terms, during the pendency of this appeal, rendering the appeal moot. Because we do not find that these appeals fall within any of the exceptions to the mootness doctrine, we dismiss the appeal as moot.

This is a direct appeal as of right from convictions entered on a jury verdict of guilty of two first degree premeditated murders. The jury sentenced the Defendant to life without the possibility of parole for one conviction, and he received a life sentence for the other. On appeal, the Defendant advances five arguments: (1) the state violated his equal protection rights by striking three African Americans during jury selection; (2) the court erred by admitting into evidence a photograph of one of the victims; (3) the court erred by admitting into evidence a threatening statement made by the Defendant three years prior to the date of the crimes at issue in this case; (4) the court erred by failing to declare a mistrial when the State made a statement during closing argument which was unsupported by the evidence; and (5) the evidence was insufficient to support the jury's guilty verdicts. We affirm the judgments of the court.

The defendant was charged with two counts of vehicular homicide and one count of driving under the influence. He pled nolo contendere to one count of vehicular homicide. The defendant was on probation for prior convictions at the time of his plea and sentencing. A subsequent warrant for violation of probation was issued for his probationary sentence. The trial court sentenced the defendant to six years on his vehicular homicide plea to run consecutively to his probationary terms. On appeal, the defendant argues that the trial court should not have ordered the vehicular homicide sentence to be served consecutively to his probationary sentence. We conclude that the trial court did not err, and affirm the judgment of the trial court.

Both parties appeal aspects of the final divorce decree. Husband contends the trial court erred by awarding wife transitional alimony in excess of his ability to pay and in excess of her need. Wife raises six issues, contending she should have been granted the divorce due to his abuse; that child support should be increased; that she should be awarded the tax deductions for all three children; that she should be named trustee of life insurance for the benefit of the children; and that husband should pay her attorney fees at trial and on appeal. We affirm the trial court in all respects but one, finding the transitional alimony was set at an amount greater than husband's ability to pay.

Petitioner, Richard Howell, appeals the dismissal of his petition for post-conviction relief which alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that trial counsel's assistance was ineffective for failure to object to the admission of certain evidence at trial. After a thorough review of the record, we conclude that Petitioner has failed to show that he was prejudiced by any deficiencies in his trial counsel's performance and affirm the judgment of the post-conviction court.

In this appeal, the issue presented is whether a party has standing to pursue a personal injury claim in state court that accrued after the filing of the party’s bankruptcy petition and before the closing of the bankruptcy case. Ms. Headrick filed a Chapter 13 bankruptcy petition. While the bankruptcy case was pending, Ms. Headrick was involved in a single car accident and was treated for her injuries by Dr. Daniel Johnson at Bradley County Memorial Hospital. Subsequently, she converted her Chapter 13 bankruptcy case to a Chapter 7 bankruptcy case. While the Chapter 7 case was still pending, she discovered that she suffered a hip fracture in the car accident which she alleges that Dr. Johnson and the Hospital failed to timely diagnose and treat. Thereafter, Ms. Headrick received a discharge in bankruptcy and the bankruptcy case was closed. Ms. Headrick then filed a medical negligence case against Dr. Johnson and Bradley Memorial Hospital. The Defendants filed a motion for summary judgment asserting that Ms. Headrick did not have standing to bring the case. The trial court agreed and dismissed the case. After review of the record and applicable authorities, we hold that Ms. Headrick’s post-bankruptcy cause of action is not part of the bankruptcy estate and therefore, as a matter of law Ms. Headrick did have standing to bring the lawsuit. The trial court’s decision is reversed.

The appellant, Larry Ballentine,¹ was convicted by a jury in the Wayne County Circuit Court of possession of a Schedule III controlled substance with the intent to sell. He received a sentence of six years incarceration in the Tennessee Department of Correction. On appeal, the appellant contests the sufficiency of the evidence supporting his conviction and the trial court's evidentiary rulings on impeachment evidence. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

An inmate incarcerated in a prison operated by Corrections Corporation of America sued the corporation for damages arising from its alleged failure to provide him with proper dental care while he was in its custody. The defendant filed a motion to dismiss for improper venue and/or for untimeliness. The trial court granted the motion and dismissed the case with prejudice, but did not state the reason for its decision. We affirm the trial court because the one-year statute of limitations had passed before the plaintiff filed his complaint.

In this child custody case, Father appeals and argues that the trial court erred in awarding Mother primary residential custody of the parties' twin minor children. Mother also appeals and argues that the trial court erred in setting Father's child support, in failing to assess her attorney's fees against Father, and in changing the children's surname to that of Father. After careful review of the evidence and applicable authorities, we find no error and affirm the judgment of the trial court in all respects.

For the reasons stated herein, I respectfully dissent from the majority’s conclusion. I further wish to express concerns over a recurring anomaly with which we are faced. An ever-increasing number of incarcerated inmates are filing habeas corpus petitions in reliance upon the holding in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). These petitioners complain that their sentences are illegal, as they were required to be sentenced consecutively rather than concurrently. In the instant case, the petitioner received an effective sentence of twenty years but complains that he should have received a sentence of at least twenty-three years. At the time of his guilty plea, he was facing a sentence of forty-three years minimum, if all sentences ran consecutively. I fail to understand how the petitioner is aggrieved by the agreed sentence.

Thomas David Caldwell ("Father") filed a complaint for divorce from his wife of ten years, Davina Kay Duke Caldwell ("Mother"). The trial court, inter alia, awarded the parties a divorce, named Mother primary residential parent of the parties' minor child, and divided the parties' marital property. Father appeals both the custody determination and the division of marital property. We affirm.