APPELLATE COURT OPINIONS

This case is about termination of parental rights. The father was incarcerated, and the mother lived in a mobile home in abysmal conditions, with no telephone and no transportation. The child was born on the floor of the mobile home and hospitalized shortly thereafter. Due to the poor living conditions, the State took custody of the child. Over the next three years, the mother and father worked with the Department of Children’s Services in an attempt to remedy the conditions that prevented the child’s return. These conditions included alcohol and drug abuse and domestic violence. The juvenile court found that the parties continued to engage in physical abuse, and that the mother nevertheless continued to live with the father, creating unsafe living conditions for the child. The juvenile court terminated the parental rights of both parents, finding that the conditions that precluded the child’s safe return to the home still persisted after three years and would likely continue. The mother appealed. We affirm, finding that the evidence supports the juvenile court’s finding of persistent conditions.

Tennessee Insurance Guaranty Association, a statutory agency created to meet certain obligations of insolvent insurance companies relative to workers' compensation, sued Centre Insurance Company seeking exoneration of certain workers' compensation obligations assumed by the agency upon the insolvency of Commercial Compensation Insurance Company. The trial judge granted summary judgment to Centre, and we affirm the action of the trial court.

This case involves the wrongful cutting of timber on the plaintiff’s property. Freddie D. Alley brought this action against McLain’s Inc. Lumber and Construction, which cut and harvested timber from his property after Defendant Stephen Snodgrass falsely represented to McLain’s that he owned the property and wanted to sell the timber. McLain’s filed a counter-complaint and a third-party complaint against the co-owners of the property, alleging their comparative fault in preparing and executing a contract for sale of the real estate to Mr. Snodgrass. The case was tried to a jury, which found the co-owners partially at fault, Mr. Snodgrass partially at fault, and no fault on the part of McLain’s. The issue presented is whether the trial court erred in failing to set aside the jury verdict and grant a new trial. We hold that based on stipulations prior to trial, there was no material evidence of negligence on the part of the co-owners. We also hold that the jury verdict is inconsistent. Therefore, we reverse the judgment in part, vacate in part and remand for a new trial.

The Petitioner, Harold Lindell Scharkley, filed a petition for post-conviction relief contending that his guilty pleas were involuntary and unknowing because he received ineffective assistance of counsel and because the trial court failed to follow the requirements of Rule 11 of the Tennessee Rules of Criminal Procedure. After a hearing, the post-conviction court denied the Petitioner’s request for post-conviction relief. Finding no reversible error, we affirm the judgment of the post-conviction court.

The petitioner appeals the denial of post-conviction relief, contending that trial counsel was ineffective in: (1) declining a curative instruction following a witness' characterization of the petitioner as "a robber;" (2) failing to object to the untimely disclosure of audiotapes containing statements made by the petitioner to a key prosecution witness; (3) failing to argue that the term "recklessly" was statutorily inapplicable to the petitioner, and because the term was included in the indictment, failing to get a jury instruction on reckless homicide. Upon review, we affirm the denial of post-conviction relief.

This is the second appeal in an action to collect attorney’s fees. The plaintiff attorney represented the defendant in her divorce action, which lasted from 1996 to 1999. He billed the defendant approximately $100,000 for his services. Over the course of the divorce action, the defendant paid
the plaintiff about $61,000, and still owed a balance of about $39,000. The attorney filed this lawsuit to recover the balance. After a two-day trial, the trial court concluded that the plaintiff attorney’s fees were fair and reasonable, and that the defendant owed the plaintiff the fees claimed. The
defendant now appeals that decision. We affirm.

In this post-divorce proceeding, Wife sought an increase in child support based upon Husband's substantial inheritance from his mother. She also sought relief for Husband's alleged breach of the Marital Dissolution Agreement relative to the disposition of property. She further sought child support based upon imputed income of Husband because of voluntary underemployment. Husband appealed the judgment of the trial court. Wife assigned error as to certain findings by the trial court. We affirm as modified herein the judgment of the trial court.

The Defendant, Carlos Eddings, was tried and convicted for aggravated robbery, and the trial court sentenced the Defendant to ten years in prison. The Defendant appealed, and a majority of this Court concluded that his sentence must be modified to eight years pursuant to the United States Supreme Court case Blakely v. Washington, 542 U.S. 296 (2004). State v. Carlos Eddings, No. W2003-02255-CCA-R3-CD, 2004 WL 2266794, at *1 (Tenn. Crim. App., at Jackson, Oct. 8, 2004). The State filed an application for permission to appeal with the Tennessee Supreme Court pursuant to
Rule 11(a) of the Tennessee Rules of Appellate Procedure. On May 23, 2005, the Tennessee Supreme Court granted the State’s application for the purpose of remanding the case to this Court for reconsideration in light of State v. Gomez, 163 S.W.3d 632 (Tenn. 2005). On remand, we affirm
the Defendant’s ten-year sentence.

The Defendant, Derek Bates, was convicted by a jury of two counts of aggravated robbery, which the trial court subsequently merged into a single conviction. The trial court sentenced the Defendant as a Range I, standard offender to nine years in the Department of Correction. In this direct appeal, the Defendant challenges the sufficiency of the evidence and the constitutionality of his sentence. We affirm the judgment of the trial court.

The Defendant, Bobby Nelson, upon his plea of guilty, was convicted of arson, a Class C felony. Pursuant to the plea agreement, the trial court was to establish the length and manner of service of the Defendant's sentence. The sentence for arson was to be served concurrently with another sentence the Defendant was already serving for prior convictions. Following a sentencing hearing, the trial court found the Defendant was a Range I, standard offender, sentenced him to four and a half years, and ordered the Defendant serve his entire sentence with the Tennessee Department of Correction (TDOC). On appeal, the Defendant argues two issues pertaining to sentencing: (1) the trial court erred by imposing an excessive sentence, and (2) the trial court erred in denying probation or alternative sentencing. We affirm the judgment of the trial court.

Plaintiff/Patient filed a complaint against Defendant/Doctor alleging medical malpractice for failure to obtain her informed consent before operating. The trial court granted summary judgment to Defendant/Doctor on the basis that Plaintiff/Patient had failed to meet the burden of proof required by T.C.A. §29-26-115 and T.C.A. §29-26-118. Plaintiff appeals. We affirm.

The defendant, Darryl Ammons, was indicted and tried for one count of attempt to commit first degree murder and aggravated assault. He was subsequently convicted by a jury of attempted criminally negligent homicide and aggravated assault. The trial court merged the conviction for attempted criminally negligent homicide into the conviction for aggravated assault and sentenced the defendant to ten years as a Range II multiple offender. Upon review, we vacate the defendant's conviction for attempted criminally negligent homicide but affirm his conviction for aggravated assault.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated §50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in awarding to the employee a 66% vocational disability to body as a whole as a result of his employment with Genlyte Thomas Group, LLC, in awarding temporary total benefits and in commuting a portion of the award to a lump sum for the plaintiff to purchase a vehicle. We conclude that the evidence presented supports the findings of the trial judge and, in accordance with Tenn. Code Ann. §50-6-225(e)(2), affirm the judgment of the trial court.

Defendant, Johnny Quent Crudup, was indicted on two counts of theft of property of more than $1,000 but less than $10,000, a Class D felony, and two counts of theft of property of more than $10,000 and less than $60,000, a Class C felony. Defendant filed an application for pretrial diversion which was subsequently denied by the district attorney general. The trial court denied the writ of certiorari and affirmed the district attorney general's decision. Defendant was granted permission to take an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Defendant contends that the district attorney general abused his discretion in denying Defendant's application, and that the denial was improperly made by an assistant district attorney instead of the district attorney. We affirm the trial court's order denying pretrial diversion.

The Appellant, Chris Edward Porter, appeals the sentencing decision of the Marshall County Circuit Court which resulted in the imposition of an effective ten-year sentence of incarceration. On appeal, Porter challenges the trial court's denial of alternative sentencing. After review of the record, we affirm the judgment of the trial court.

The petitioner, Ricky Thomas Hughes, II, appeals from the post-conviction court's denial of post-conviction relief. On appeal, he contends that he received the ineffective assistance of counsel when his trial counsel failed to properly investigate and prepare his case for trial and failed to advise him of the consequences of proceeding to trial. The petitioner also contends that his sentences are invalid under Blakely v. Washington, 542 U.S. ----, 124 S.Ct. 2531 (2004). Following our review, we affirm the judgment of the post-conviction court denying post-conviction relief.

In this action for personal injuries allegedly due to defendant's negligence, the Trial Court granted defendant summary judgment on the grounds that plaintiffs had executed a Waiver and Release of Liability which was required by defendant prior to plaintiffs' participation in white water rafting. Plaintiffs have appealed, insisting the Release is void as against the public policy of this State. We affirm.

The defendant, Shawnta Lamont Marsh, pled guilty to six counts of sale or delivery of cocaine over .5 grams. The trial court merged all but three of the convictions and ordered the defendant to serve consecutive sentences of eight years and one month for each offense. The effective sentence is twenty-four years and three months. In this appeal of right, the defendant contends that the trial court erred by ordering consecutive sentencing. The judgments of the trial court are affirmed.

The Petitioner, Gregory Eidson, filed a petition for wit of habeas corpus seeking relief from allegedly void judgments, which the trial court summarily dismissed. On appeal, the Petitioner contends that the habeas corpus court erred when it dismissed his petition. Finding that there exists reversible error in the judgment of the habeas corpus court, we reverse its dismissal of the Petitioner's petition for habeas corpus relief, and we remand the case for the appointment of counsel and an evidentiary hearing.

The Defendant, Paul Friedman, pled guilty to one count of promoting prostitution. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether Tennessee Code Annotated section 39-13-512 (2003), et seq., under which he was indicted, was unconstitutional. We conclude that this statute is constitutional, and the judgment of the trial court is therefore affirmed.

Petitioners, Mother and her husband, brought a petition to terminate Father’s parental rights on the grounds of abandonment. The trial court found that clear and convincing evidence did not support a finding a willful abandonment and dismissed the petition. We affirm.

The appellant, William Harlon Adams, appeals his convictions for vandalism of less than five hundred dollars ($500) and criminal attempt to commit resisting arrest. The following issues are presented for our review: (1) whether the trial court erred in denying the motion to suppress; (2) whether the trial court erred in instructing the jury on the offense of attempt to resist arrest; (3) whether the trial court erred in denying the motion to dismiss; (4) whether the evidence was sufficient to support the conviction for vandalism; and (5) whether the trial court correctly sentenced the appellant. After a thorough review, we determine that attempt to resist arrest is not a crime, thus, we reverse the appellant's conviction and remand the case for any further proceedings which may be necessary. We affirm the remainder of the judgment of the trial court, including the conviction for vandalism.

The petitioner, Dennis Harmon, appeals the dismissal of his petition for post-conviction relief, alleging that his counsel was ineffective and that his guilty plea was not knowingly and voluntarily entered. After an evidentiary hearing, the post-conviction court dismissed the petition, and the petitioner appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

After a bench trial, the Williamson County Criminal Court convicted the petitioner, Johnnie M. Talley, III, of five counts of making a false report and sentenced him to an effective sentence of eight years in the Department of Correction (DOC). Subsequently, the petitioner filed a petition for post-conviction relief, alleging (1) that his counsel was ineffective for failing to have him evaluated by a psychologist and (2) that he did not knowingly and voluntarily waive his rights to a jury trial or to testify. After an evidentiary hearing, the post-conviction court dismissed the petition, and the petitioner now appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

I respectfully disagree with the result reached in the majority opinion. I believe that the petitioner’s decision to plead guilty to the twelve-year sentence instead of the 7.2-year sentence resulted from inadequate advice.