APPELLATE COURT OPINIONS

The petitioner appeals the trial court's dismissal of his pro se petition for writ of habeas corpus, in which he contended that his sentence violated the Double Jeopardy Clause of the Fifth Amendment because he was classified as both a Range II, persistent offender and a Class X offender. We conclude that the petitioner was properly sentenced based upon both the classification of the offense (Class X) and the offender classification (Range II, persistent). As such, we affirm the trial court's dismissal of the habeas petition.

The defendant, Gustavo Chavez, pled guilty to one count of aggravated sexual battery, a Class B felony. After conducting a sentencing hearing, the trial court classified him as a Range I offender and imposed a ten year sentence at 100% service in the Department of Correction. On appeal, the defendant challenges the length of the sentence imposed by the trial court. After reviewing the record and the applicable law, we affirm the defendant’s conviction. However, in light of Blakely v. Washington, 542 U.S. ----, 124 S. Ct. 2531 (2004), we modify the defendant’s sentence to an effective sentence of eight years at 100% service. We, therefore, remand the case for entry of a judgment that is consistent with this opinion.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. The issue in this case is whether the trial court's award of permanent total disability is supported by a preponderance of the evidence. We find no error and affirm the judgment of the trial court.

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) for hearing and reporting of findings of fact and conclusions of law. The employee contends the trial court erred (1) when it held that the employee’s phlebitis did not arise out of and in the scope of her employment, (2) in finding that the employee’s torn rotator cuff was not timely reported, and (3) in finding that the employee’s torn rotator cuff did not arise out of and in the scope of her employment.  We affirm the trial court’s finding that the employee’s phlebitis did not arise out of her employment.  However, we reverse the trial court’s findings that the employee’s rotator cuff was not timely reported and did not arise out of and in the course of her employment.

In this dispute, plaintiffs sought declaratory judgment as to use of their lake by defendant, payment of fees and injunctive relief. Defendant counter-claimed for a declaratory judgment as to its use of the lake, disputed any obligation to pay fees to the plaintiff, and sought monetary damages and attorney's fees. The Trial Court held that plaintiffs' owned the lake and the master deed provided for maintenance fee and membership fees, that defendant's members were required to pay. But if the defendants' members did not use the lake they would not be required to pay the fees. On appeal, we hold the Court correctly found that the lake was an amenity and that a lake use fee was required to be paid to plaintiffs pursuant to the master deed and exhibits. But the Court erred in holding that defendant owners could choose not to use the lake and not pay the fees. We otherwise affirm the Court's rulings on the issues raised on appeal.

Appellants, who were represented in a lawsuit by Appellees, appeal the dismissal of their attorney malpractice suit against Appellees on the ground, among other things, that the Appellants did not file suit within the one-year statute of limitations for attorney malpractice actions. Finding no error, we affirm.

In this action to terminate father's parental rights, the Trial Court refused to appoint counsel for father, despite his claim of indigence. On appeal, we vacate the Judgment and remand for further hearing on the issue of indigency.

The Appellant, Anthony Lee Hill, was convicted by a Scott County jury of nine counts of sexual battery and received an effective two-year split confinement sentence with service of six months in the county jail. On appeal, Hill raises two issues for our review: (1) whether the evidence is sufficient to support the nine convictions and (2) whether the statutory language of the phrase "can reasonably be construed as being for the purpose of sexual arousal or gratification" improperly lessens the State's burden of proof and is, thus, unconstitutional. After review, the judgments of conviction are affirmed.

While Beatrice Harmon Montgomery ("Plaintiff") and Terry Lane Montgomery ("Defendant") never married, they lived together for many years beginning in 1969. Plaintiff and Defendant had one child, Brian Montgomery. During their relationship, Plaintiff and Defendant accumulated substantial assets and operated several businesses. Plaintiff filed this lawsuit seeking dissolution of her implied business partnership with Defendant. Brian Montgomery intervened claiming he also was a partner in two of the business ventures. The Trial Court concluded that Plaintiff and Defendant were equal partners in all of their business pursuits, and that Brian also was a partner in two of them. It is this ruling that forms the basis for most of the numerous issues raised on appeal. We reverse in part, vacate in part, affirm in part as modified, and remand for further proceedings consistent with this Opinion.

This case involves the interpretation of a portion of the Tennessee Public Records Act, Tenn. Code Ann. § 10-7-503. The issue presented is whether the statutory exemption set forth in Tenn. Code Ann. § 10-7-503(d)(1) is available to the Appellee which is a nonprofit joint municipal-county economic development commission. The trial court granted the commission’s motion for summary judgment, finding that the exemption was applicable and the commission did not have to provide its records to the Appellant. We hold that the commission is entitled to the statutory exemption, but that there is a genuine question of material fact as to whether the commission is the functional equivalent of a public agency. Accordingly, we vacate the judgment and remand for further proceedings consistent with this opinion.

The defendant was convicted of theft under $500 and evading arrest, and was sentenced to two consecutive sentences of eleven months and twenty-nine days at 75% release eligibility. On appeal, he challenges the sufficiency of the evidence, the failure to admit the testimony of a defense witness, and the length and consecutive nature of his sentences. Upon thorough review, we affirm the judgments and the sentences.

In this workers' compensation action, the plaintiff sought compensation for a work-related injury which caused reflex sympathetic dystrophy in his left arm, a scheduled member for workers' compensation purposes. The plaintiff contended that reflex sympathetic dystrophy which affects only a scheduled member nevertheless entitles a claimant to body-as-a-whole compensation because the American Medical Association's Guides to the Evaluation of Permanent Impairment convert reflex sympathetic dystrophy to a rating for the body as a whole. Alternatively, the plaintiff contended that his condition extended beyond his arm because he was denied potential future treatment options for other, non-work-related injuries and because his arm's hypersensitivity and pain caused insomnia, chronic fatigue, and a diminished ability to concentrate. Holding that reflex sympathetic dystrophy must always be apportioned to the body as a whole, the trial court awarded the plaintiff permanent total disability benefits. Reversing the trial court, we hold that an award for reflex sympathetic dystrophy may be limited to the compensation for scheduled members as provided in Tennessee Code Annotated section 50-6-207(3)(A) to (D) (1999). Further, we hold that for reflex sympathetic dystrophy to be properly apportioned to the body as a whole under Tennessee Code Annotated section 50-6-207(3)(F) (1999), the claimant's injury must affect a portion of the body not statutorily scheduled, affect a particular combination of members not statutorily provided for, or cause a permanent injury to an unscheduled portion of the body. Having so held, we determine that the preponderance of the evidence fails to show that the plaintiff's condition has extended beyond his arm as a scheduled member. Therefore, we vacate the trial court's award of permanent total disability benefits to the plaintiff and hold that the plaintiff's permanent disability award is limited exclusively to 200 weeks of benefits pursuant to Tennessee Code Annotated section 50-6-207(3)(A)(ii)(m) (1999). We remand this case to the trial court for further proceedings consistent with this opinion, as may be necessary.

I agree with the majority’s conclusion that the Commission is not entitled to summary judgment on the record presently before us. I disagree, however, with the majority’s rationale for that conclusion. Specifically, I disagree with the assertion that the public’s access to the Commission’s records depends upon whether, in the words of the majority, “[the Commission] is the functional equivalent of a governmental agency.” I believe this concept of “functional equivalen[cy],” as promulgated by the Supreme Court in Memphis Publ’g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d 67, 79 (Tenn. 2002), is not material to the issue now before us.

The petitioner, Michael Keith Kennedy, entered a plea of nolo contendere to numerous counts of burglary, theft, and vandalism arising out of events that occurred in Chester and Henderson Counties.  As a result, he was sentenced to fifteen (15) years for the Chester County convictions and twelve (12) years for the Henderson County convictions, to be served concurrently, for an effective sentence of fifteen (15) years. Pursuant to the plea agreement, the petitioner reserved the following certified question of law for appeal: “Did the defendant give an unequivocal, specific, intelligent, and voluntary consent to the warrantless search of his premises and vehicles, uncontaminated by duress or coercion?” This Court determined that the certified question was not dispositive as to three of the petitioner’s convictions, but determined the petitioner knowingly and voluntarily consented to the search as to the remaining convictions. See State v. Michael Kennedy, No. W2001-03107-CCA-R3-CD, 2003 WL 402798 (Tenn. Crim. App., at Jackson, Feb. 21, 2003), perm. app. denied (Tenn. May 27, 2003). Subsequently, the petitioner filed a petition for post-conviction relief alleging: (1) that he was denied effective assistance of counsel; (2) that the trial court erred by imposing restitution; (3) that the trial court erred by admitting his prior felony convictions; and (4) that the trial court erred by failing to appoint counsel. After a hearing on a motion to dismiss filed by the State, the trial court dismissed the petition without an evidentiary hearing. For the following reasons, we affirm in part, reverse in part, and remand for an evidentiary hearing consistent with this opinion.

The petitioner, Terrence A. Sawyers, appeals the denial of his petition for post-conviction relief. The issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

The petitioner was convicted for assault in Shelby County. During the proceedings on these convictions, the trial court found the petitioner in contempt of court on two occasions. On appeal, we reversed the petitioner’s convictions for assault. Upon remand, the State moved to nolle prosequi the petitioner’s assault charges, and the trial court entered nolle prosequi on September 7, 1999, without cost, which dismissed the assault charges against the petitioner without prejudice. These charges were later expunged. On March 18, 2003, the petitioner filed two petitions to expunge the contempt judgments. The trial court denied the petitioner’s petition to expunge the contempt convictions in January of 2004. The petitioner filed a notice of appeal to this Court on February 20, 2004. The petitioner presents five issues for review: (1) whether the trial court erred under Tennessee’s Expungement Statute by refusing to expunge the petitioner’s contempt records and the related records in general sessions court; (2) whether the trial court clerk and the chief administrative official of the State violated petitioner’s due process rights and the provisions of Tennessee Code Annotated section 40-32-102 by not expunging petitioner’s contempt records within sixty days of filing an expungement petition; (3) whether the trial court and district attorney general violated the petitioner’s constitutional rights of due process and equal protection by causing petitioner to be held
in contempt; (4) whether the trial court improperly allowed petitioner to waive counsel on December 5, 1997, in case number 97-06150; and (5) whether the trial court had jurisdiction in case numbers 96-09407,-08 and 97-06150. We affirm the judgment of the trial court.

The petitioner, Alfio Orlando Lewis, appeals as of right from the dismissal of his petition for post- conviction relief by the Davidson County Criminal Court. He seeks relief from his convictions for two counts of attempted second degree murder and consecutive twelve-year sentences. The petitioner contends that he received the ineffective assistance of counsel at his trial and that his sentences are invalid under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). We affirm the judgment of the trial court.

The petitioner, Richard A. Emmitt, was convicted in 1984 of assault with intent to commit second degree murder, aggravated kidnapping, aggravated rape, armed robbery, and first degree burglary and received an effective sentence of 125 years. His convictions were affirmed on direct appeal. The petitioner filed a petition for post-conviction relief on January 21, 2004, which the post-conviction court dismissed as untimely. The petitioner appeals, claiming the statute of limitations was tolled. Following our review, we affirm the dismissal of the petition.

The appellants, Christopher L. Williams, Corey A. Adams, and Ortega Wiltz, appeal as of right from their convictions in the Davidson County Criminal Court. Following a jury trial, Appellant Williams was convicted of three counts of especially aggravated kidnapping, Appellant Adams was convicted of three counts of facilitation of especially aggravated kidnapping, and Appellant Wiltz was convicted of two counts of facilitation of especially aggravated kidnapping. Thereafter, the trial court sentenced Appellant Williams to a total effective sentence of seventy-five years incarceration. Appellant Adams was sentenced to a total effective sentence of thirty-six years incarceration, and Appellant Wiltz was sentenced to a total effective sentence of forty years incarceration. On appeal, the appellants challenge the sufficiency of the evidence to sustain their convictions and the sentences imposed by the trial court. Appellant Adams also challenges the trial court's ruling that certain prior convictions were admissible for the purpose of impeaching a defense witness. Based upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

Petitioner, Willie E. Kyles, Jr., filed a pro se petition for post-conviction relief, as amended after the appointment of counsel, arguing that he received ineffective assistance of counsel at trial.  Specifically, Petitioner contends that his trial counsel (1) failed to adequately investigate the facts surrounding Petitioner’s case or interview potential witnesses; (2) failed to file a motion to suppress; and (3) failed to challenge the chain of custody of the State’s evidence introduced at trial.  After review of the record in this matter, we affirm the trial court’s dismissal of Petitioner’s petition for post-conviction relief.

The defendant, Orson Wendell Hudson, pled guilty in Sumner County Criminal Court to possession with the intent to sell more than twenty-six grams of cocaine, a Class B felony, and the trial court sentenced him as a Range I, standard offender to eight years in the Department of Correction. The defendant appeals upon certified questions of law from the trial court's denial of his motion to suppress evidence seized pursuant to a traffic stop. He claims the trial court should have granted his motion because (1) the arresting officer's stated justification for stopping his car was pretextual, (2) the officer did not have probable cause to stop his car for following too closely, (3) the officer's questioning transformed his detention into an unreasonable seizure, (4) the officer's questioning of his six-year-old daughter outside his presence was illegal, and (5) the officer coerced his consent to search. We affirm the trial court.

The defendant appeals the revocation of his probation after he left the state to participate in a religious activity, failed to complete the required psychosexual evaluation, and failed to obtain employment. The defendant contends that the trial court erred in (1) basing his revocation on an order that violated his right to free exercise of his religion, and (2) determining that he had failed to complete the psychosexual evaluation and obtain employment because his arrest in Texas prevented him from having an opportunity to comply with those conditions. Following our review, we affirm the trial court's revocation of probation.

Upon entering a "best interest"guilty plea, the Defendant, Jeremy Miller, was convicted of attempted aggravated child abuse, a Class B felony. The trial court sentenced the Defendant as a Range I, standard offender to eleven years in the Department of Correction. On appeal, the Defendant raises the issue of whether the trial court erred in ordering an excessive sentence by: (1) improperly weighing enhancement and mitigating factors; and (2) denying alternative sentencing. We modify the sentence of the trial court to comply with the dictates of Blakely v. Washington, 542 U.S. ____, 124 S. Ct. 2531 (2004). We remand for the trial court to consider the Defendant's suitability for probation.

The defendant, Gary Wayne Young, appeals as of right the Davidson County Criminal Court's denial of his motion to withdraw his guilty pleas to two Class B felony drug offenses and its imposition of concurrent sentences of twenty-one years as a Range II, multiple offender. He contends that his guilty pleas were involuntary and unknowing because he was under the influence of narcotics when he entered them and that the sentences are illegal because they are outside of the range for a multiple offender convicted of a Class B felony. We affirm the judgments of the trial court.

The defendant, Rebecca G. Ratliff, appeals from the Sullivan County Criminal Court's revocation of her probation. On appeal, the defendant claims that the trial court erred in ordering her to serve her original two-year sentence in the Department of Correction. Because the record supports the trial court in its discretionary determination to order incarceration, we affirm.