APPELLATE COURT OPINIONS

A Warren County jury convicted the defendant, Abel Torres, of one count of attempted especially aggravated robbery and two counts of attempted second degree murder, Class B felonies, and the trial court sentenced him to twelve years for each conviction, to be served consecutively for an effective sentence of thirty-six years in the Department of Correction (DOC). On appeal, this court affirmed the defendant's convictions but modified the length of his sentences from twelve years to ten and remanded the case for a determination by the trial court of the reasons justifying the imposition of consecutive sentencing. State v. Abel Caberra Torres, No. M2001-01412-CCA-R3-CD, Warren County (Tenn. Crim. App. June 10, 2003). On remand, the trial court again imposed consecutive sentencing and the defendant appeals, claiming the trial court erred under both state law and the rule announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). The state contends the trial court properly sentenced the defendant. We affirm the trial court's imposition of consecutive sentencing but conclude that Blakely requires us to modify the defendant's sentences from ten years to eight for an effective sentence of twenty-four years.

M.B. and P.B. were husband and wife with four children born during the marriage. L.C.B., the fourth of these children, was born in 1997, nine years after M.B. had undergone a vasectomy. P.B. had engaged in an extramarital affair with R.D. and subsequent to the divorce of M.B. and P.B., the relationship between R.D. and P.B. ripened into marriage with P.B. becoming P.D. In the case at bar, R.D. and P.D. sued to establish R.D. as the biological father of L.C.B. and to terminate the parental rights of M.B. An answer and counterclaim was filed by M.B. denying the allegations of the complaint and seeking to terminate the parental rights of R.D. Holding that the claim of R.D. was barred by laches, the trial court dismissed the complaint. We hold that the complaint of R.D. is not barred by laches but affirm the action of the trial court.

This is a direct appeal as of right from a bench trial conviction of first degree premeditated murder. The Defendant, William Keith Matthews, was sentenced to life in prison. On appeal, the Defendant argues four issues: (1) there was insufficient evidence to find the Defendant guilty of first degree premeditated murder beyond a reasonable doubt, and in the alternative, the defense of insanity was established; (2) the trial court erred in not granting the Defendant’s motion for judgment of acquittal; (3) the Defendant was not competent to stand trial; and (4) the Tennessee statute providing for the insanity defense is unconstitutional. We affirm the judgment of the trial court.

The Appellant, Vick R. Nichols, Jr., appeals his convictions by a Lewis County jury finding him guilty of two counts of felony reckless endangerment as lesser included offenses of the indicted charges of aggravated assault. Following a sentencing hearing, Nichols was granted judicial diversion. On appeal, Nichols raises five issues for our review: (1) whether felony reckless endangerment is a lesser included offense of aggravated assault; (2) whether the trial court violated Tenn. R. Crim. P. 30(c) by failing to reduce supplemental jury instructions to writing; (3) whether the trial court properly declined to instruct the jury with regard to certain hunting rules and regulations contained in Title 70, Tennessee Code Annotated; (4) whether the trial court erred by refusing to instruct the defense of third parties; and (5) whether the evidence was sufficient to support the verdicts. The State concedes that felony reckless endangerment is not a lesser included offense of aggravated assault as indicted. We agree. Notwithstanding reversible error, we conclude that no appeal of right, as provided by Rule 3, Tenn. R. App. P., lies, as the Appellant was granted judicial diversion and no judgment of conviction has been entered. Accordingly, the appeal is dismissed.

In 2003, a prisoner in the custody of the Tennessee Department of Correction filed a claim in the Tennessee Claims Commission against the State of Tennessee for medical malpractice. In 2001, the prisoner underwent surgery to install a colostomy due to the alleged negligence of the prison medical staff in improperly diagnosing his condition. The Commissioner granted the State’s motion for summary judgment, finding the statute of limitations barred the prisoner’s claim. Since the prisoner was aware that the State’s negligence caused his injury at the time of his surgery, the discovery rule does not toll the running of the applicable statute of limitations. We affirm.
 

This appeal involves a protracted dispute over the payment of child support. Following a job-related injury, the father requested the Circuit Court for Davidson County to reduce his child support obligation, but then unilaterally reduced his child support payments. After the trial court dismissed the father's petition for failure to prosecute, the mother filed a petition seeking a judgment for the child support arrearage. The husband responded by renewing his request to reduce his child support obligation. Following a hearing, the trial court awarded the mother a $13,472 judgment against the father without considering his request for a reduction in his child support payments. We have determined that the order dismissing the father's petition for failure to prosecute was not properly entered. Therefore, the trial court erred by awarding the mother a judgment for the child support arrearage without considering the father's petition to reduce his child support.

In 1996, the petitioner, Robert L. Leverette, pled guilty in the Circuit Court of Bedford County to four counts of rape, Class B felonies, and to one count of incest, a Class C felony. He was sentenced to ten years for each rape and to five years for the incest to be served in the Department of Correction. The trial court classified him as a Range I, standard offender with a release eligibility at thirty percent of his sentence and ordered two of the rape convictions to run concurrently. The Department of Correction, however, classified him as a multiple rapist pursuant to Tennessee Code Annotated section 39-13-523, which requires that multiple rapists serve one hundred percent of a sentence. As a result, the petitioner filed a petition for the writ of habeas corpus. The trial court granted partial relief and vacated three of his four rape sentences. On appeal, the petitioner claims that his entire sentence should be vacated and the case remanded. Finding no error, we affirm the decision of the trial court.

The Appellant, Gregory Mullins, appeals the decision of the Sullivan County Criminal Court revoking his probation and ordering him to serve the remainder of his sentence in confinement. In March 2003, Mullins pled guilty to three counts of burglary, three counts of theft under $500, two counts of theft over $1000, evading arrest, and speeding. Mullins' effective eight-year sentence was suspended, and he was placed on supervised probation. On October 1, 2003, and October 10, 2003, probation violation warrants were filed against Mullins. After a revocation hearing was held on the October 10th warrant, he was found to be in violation of his probation, and his original sentences to the Department of Correction were reinstated. On appeal, Mullins does not contest the trial court's findings that he violated the terms of his probation. Rather, he argues that the trial court abused its discretion by ordering confinement rather than reinstating his probation with more restrictive conditions. After review, we find no error and affirm the judgment of the trial court.

The defendant, Phillip Aaron York, was convicted of eight counts of child rape. Sentences of twenty-five years were imposed for each conviction. Two convictions were ordered to run consecutively, with the remaining convictions to run concurrently, for a total effective sentence of fifty years to be served in the Department of Correction. On appeal, the defendant challenges (1) the sufficiency of the evidence, and (2) the length of the sentence imposed by the trial court. Upon review of the record and applicable law, we conclude that the evidence is sufficient to sustain the convictions for rape of a child, but that pursuant to Blakely v. Washington, 542 U.S. ----, 124 S. Ct. 2531 (2004), enhancement factors (2) and (16) cannot be applied. Accordingly, we affirm the convictions, but modify the sentence imposed from a fifty-year effective sentence to a forty-year effective sentence.

All parties sought declaratory judgment as to whether or not driver Michael George Eberly was an omnibus insured under the permissive user provisions of his employer's policy of insurance at the time of the accident in issue. The Chancellor in non-jury trial found that Eberly had only engaged in a "minor deviation" from employer restrictions on his permissive use of the vehicle, and required National Union Fire Insurance Company to protect Eberly as an omnibus insured under the policy. We reverse the action of the trial court.

Sweetwater Hospital Association ("the Hospital") entered into a contract with its then-employee, Anita Houser Carpenter ("the defendant"), by the terms of which the Hospital agreed to provide tuition assistance to enable the defendant to attend school. The contract further provides that if the defendant works for the Hospital for a period of five years following the completion of her studies, her loan would be forgiven. At the conclusion of a course of studies to become a nurse anesthetist, the defendant sought employment elsewhere because it appeared to her that there were no nurse anesthetist positions available at the Hospital. The Hospital brought this action for breach of contract, seeking repayment for the monies furnished to the defendant under the contract. The defendant responded that the Hospital breached the contract by failing to offer her a position as a nurse anesthetist. Following a bench trial, the trial court entered a judgment for the Hospital. The defendant appeals. We affirm.

This appeal involves a dispute over the conservatorship of an elderly woman suffering from Alzheimer’s Disease. The woman’s son moved his mother to Tennessee against the wishes of his stepsister who had been appointed guardian in Florida, and filed an action in the Rutherford County Probate Court to be named conservator. The stepdaughter objected to her stepbrother’s petition and demanded an accounting of her stepmother’s property. The probate court dismissed the son’s petition and ordered an accounting. The son asserts on this appeal that the probate court had jurisdiction over his petition. We have determined that the probate court properly dismissed the son’s petition for the appointment of a conservator and properly ordered the son to account for his use of his mother’s assets.

Defendants U. S. Professionals, LLC and Satya B. Shaw and Rajashree S. Shaw, individually, appeal the judgment of the trial court awarding Plaintiff Neeraj Chopra compensatory and punitive damages for breach of contract and intentional misrepresentation. We affirm.
 

Husband appeals a trial court judgment awarding permanent alimony to the Wife, asserting in the appeal that the evidence preponderates against the judgment of the trial court. We affirm the action of the trial court.

Following a jury trial, Defendant, John Ramsey Duncan, was convicted of four counts of rape of a child, a Class A felony, and four counts of aggravated sexual battery, a Class B felony. After a sentencing hearing, the trial court sentenced Defendant to twenty-two years for each rape of a child conviction, and ten years for each aggravated sexual battery conviction. The trial court ordered Defendant's sentence for his rape of a child conviction in count two to run consecutively to his sentence for his rape of a child conviction in count one, and all other sentences to run concurrently to count one, for an effective sentence of forty-four years. On appeal, Defendant argues that the evidence is insufficient to support his convictions, and that the trial court erred in ruling certain out-of-court statements made by the victim to witnesses Lisa Dupree and Julie Carter as admissible. In addition, since the filing of the briefs, Defendant has also asked us to consider the impact of the ruling in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) on the length of his sentences and the trial court's imposition of consecutive sentencing. After a thorough review of the record, we affirm Defendant's convictions and the imposition of consecutive sentencing. We modify under Blakely each of Defendant's sentences for rape of a child to twenty years, and each of his sentences for aggravated sexual battery to eight years.

The defendant, Tim Brawley, appeals from the Williamson County Circuit Court’s order revoking his probation. On appeal, he claims that the trial court lacked jurisdiction to revoke his probation because his sentences had expired before the violation warrant was issued. We disagree and affirm the trial court’s order

The Appellant, Martin Jeffery Edwards, was convicted following a jury trial of two counts of delivery of a schedule II controlled substance, Class C felonies. On appeal, Edwards argues that (1) the evidence is insufficient to support the convictions and (2) the trial court erred in denying a severance of the two counts. After review, we conclude that these issues are without merit.  Accordingly, the judgment of the Lauderdale County Circuit Court is affirmed.

The appellant, Michael McKellar, pled nolo contendere to multiple charges of theft of property between $10,000 and $60,000 arising from indictments in both Cheatham County and Humphreys County where the appellant and a partner solicited funds from investors to finance the purchase of a defaulted Nigerian oil contract. In Cheatham County, the appellant was sentenced to a three (3) year sentence in the Tennessee Department of Correction, but the sentence was suspended. In Humphreys County, the appellant was sentenced to a four (4) year sentence in the Tennessee Department of Correction. The Humphreys County sentence was also suspended. After a joint restitution hearing, the trial court ordered the appellant to pay restitution to one of the victims in Cheatham County in the amount of $1,000 and to one of the victims in Humphreys County in the amount of $22,900 based on finding that the appellant had converted that amount of money to his own personal use. On appeal, the appellant argues that the evidence presented at the restitution hearing was insufficient to support the award of restitution and that the trial court erred in ordering the appellant to pay restitution without making specific findings or reviewing evidence of the appellant's ability to pay the restitution. Because we hold the trial court erred in determining the amount of restitution by focusing on whether the appellant had converted the money for his own use rather than the actual pecuniary loss suffered by the victims and because the trial court did not make specific findings regarding the appellant's ability to pay restitution, we remand for a new restitution hearing.

This case has taken a rather Byzantine course through the Tennessee courts. Originally, the defendant was convicted of the 1996 first degree premeditated murder of Melinda Sue Perrin. This court reversed the conviction based upon insufficiency of evidence of a premeditated killing. We imposed a conviction of second degree murder and remanded to the trial court for sentencing. See State v. Donald Wallace, No. 01C01-9711-CC-00526 (Tenn. Crim. App., Nashville, Sept. 30, 1998) (Wallace I). In Wallace I, this court declined to adjudicate certain issues on appeal for lack of a timely motion for a new trial. Id., slip op. at 7-8. On remand, the court imposed a sentence of 25 years, and this court affirmed the sentence. See State v. Donald Wallace, No. M1999-00954-CCA-R3-CD (Tenn. Crim. App., Nashville, Nov. 29, 1999) (Wallace II). During the pendency of the sentencing appeal, the defendant filed a petition for post-conviction relief. The post-conviction court denied relief except to grant the defendant a new opportunity to file a motion for new trial and an appeal. See Donald Wallace v. State, No. M2001-02722-CCA-R3-PC (Tenn. Crim. App., Nashville, Dec. 9, 2002) (Wallace III). The post-conviction ruling was not appealed, but after the trial court denied the defendant's new motion for new trial, the defendant appealed the denial of the motion, resulting in the opinion in Wallace III. In that opinion, this court held that the defendant was entitled to no statutory delayed appeal and that the post-conviction court had erred in availing a new opportunity for a new trial motion and appeal without requiring a showing of prejudice as a prerequisite of a claim of ineffective assistance of counsel. Wallace III, slip op. at 5-8. Our supreme court granted an appeal, reversed, and remanded the case to this court for adjudication of the issues raised in the dispensatory motion for new trial and appeal in Wallace III. See Wallace v. State, 121 S.W.3d 652 (Tenn. 2003) (Wallace IV). We now undertake to fulfill the terms of the supreme court's remand by determining whether (1) the trial court erred in allowing the state to use hearsay evidence and (2) the prosecutor was guilty of misconduct that deprived the defendant of due process and a fair trial. Upon our review, we discern no reversible error and affirm the conviction of second degree murder.

The appellant, James Wayne Kimbrough, was convicted in the Davidson County Criminal Court of first degree premeditated murder, felony murder, and two counts of spousal rape. Following a capital sentencing hearing, the jury imposed a sentence of life imprisonment in the Tennessee Department of Correction without the possibility of parole for his felony murder conviction. Additionally, he received a sentence of fifteen years for each of his spousal rape convictions as a Range III, persistent offender. On appeal, the appellant contends that the trial court erred in failing to grant "all aspects" of his motions to suppress, that the evidence is not sufficient to support his convictions, and that the trial court made numerous errors during the sentencing phase of his trial. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

This appeal involves a civil contempt sanction against a former husband for failing to make payments required by the parties' marital dissolution agreement. The former wife filed a petition in the Circuit Court for Williamson County seeking to hold her former husband in either criminal or civil contempt. Following a hearing, the trial court awarded the former wife a $26,378 judgment for the arrearage and a $2,000 judgment for attorney's fees. The trial court also found the former husband to be in civil contempt and ordered him incarcerated for six months or until he made the payments required by the martial dissolution agreement. The former husband appealed. We affirm the portions of the judgment awarding the former wife $28,378; however, we vacate the civil contempt judgment against the former husband because the trial court failed to make an affirmative finding that he was presently able to meet his financial obligations under the marital dissolution agreement.

The appellant, Jackie Samuel Finger, pled guilty to aggravated burglary and attempted rape. The plea agreement specified that he would receive a four-year sentence on each charge as a Range I, Standard Offender and that the sentences would run concurrently, for an effective sentence of four years. The manner of service of the sentence was to be determined by the trial court. After a hearing, the trial court denied alternative sentencing and ordered the appellant to serve the sentence in the Department of Correction in the Special Needs Facility. On appeal, the appellant challenges his conviction for aggravated burglary as void due to a mistake on the judgment form and the trial court's denial of alternative sentencing. Because the trial court corrected the judgment to reflect the proper conviction and properly denied alternative sentencing, we affirm the judgment of the trial court.

The appellant, Emmanuel S. Trotter, also known as "Batman," was indicted on charges of felony murder, first degree premeditated murder, especially aggravated burglary, and especially aggravated robbery. The appellant primarily represented himself at trial and was ultimately convicted by a jury of criminally negligent homicide, especially aggravated burglary, criminal attempt to commit especially aggravated robbery, and second degree murder. The trial court merged the criminally negligent homicide conviction with the second degree murder conviction and sentenced the appellant to an effective sentence of fifty-five years. The issues presented on appeal are whether: (1) the appellant made a knowing and intelligent waiver of his right to counsel; (2) the evidence sufficiently corroborated the accomplice testimony of Helen Trotter; (3) the evidence was sufficient to support the verdict; and (4) the State knowingly proffered false testimony. We affirm the judgment of the trial court.

Appellant appeals from the trial court’s order imposing Tenn. R. Civ. P. 37 sanctions, which includes dismissal with prejudice of Appellant’s post-divorce “Motion for Rehearing of Child Support” and “Petition to Modify Custody and/or Visitation.” Finding no evidence on which to conclude that the trial court abused its discretion in applying these sanctions, we affirm the judgment of the trial court, and remand for determination of damages for the filing of a frivolous appeal.

The defendant, George A. Johnson, was convicted of rape, a Class B felony, and statutory rape, a Class E felony, and was sentenced as a Range II, multiple offender to twenty years at 100% in the Department of Correction for the rape conviction and four years at 35% for the statutory rape conviction, to be served concurrently. Additionally, both sentences were to be served consecutively to the remainder of a three-year sentence for attempted aggravated sexual battery for which the defendant's probation was revoked as a result of the convictions currently on appeal. On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to sustain his convictions; and (2) whether the trial court erred in not suppressing his confession, imposing the maximum sentence, and not allowing the defendant to impeach the victim with a prior inconsistent statement. Based on our review, we affirm the judgments of the trial court.