APPELLATE COURT OPINIONS

The Defendant, Christopher A. Johnson, seeks to appeal as of right from the trial court's denial of his "Petition to Enforce the Plea Agreement." The State argues that this appeal should be dismissed because an appeal as of right does not lie from a trial court's denial of a petition to enforce a plea agreement. We agree with the State's argument and dismiss this appeal.

On this consolidated appeal, the defendant challenges the manner and consecutive nature of his sentences. After analyzing the issues properly before us, we conclude that the trial court did not err in revoking the defendant's probation on the former sentence or in denying him probation on the latter. Further, we hold the consecutive sentences to be warranted and proper in this instance. Therefore, we affirm.

The defendant, Darius Jones, was convicted of one count of felony murder, four counts of aggravated robbery, three counts of attempted especially aggravated robbery, two counts of attempted aggravated robbery, and one count of aggravated burglary. The trial court ordered consecutive sentences of life with the possibility of parole for the felony murder, ten years for each of the aggravated robberies and attempted especially aggravated robberies, and four years for each of the attempted aggravated robberies and the aggravated burglary, for an effective sentence of life plus eighty-one years ¹. In this appeal of right, the defendant argues that the evidence was insufficient, that the trial court erred by admitting photographs of the crime scene, that the trial court erred by limiting the defense cross-examination of a homicide detective, that the trial court erred by admitting the videotaped preliminary hearing testimony of one of the victims, that the trial court erred in its instructions to the jury, that the sentence was excessive, and that cumulative error requires reversal.  The conviction for felony murder and sentence of life with the possibility of parole are affirmed. The remaining judgments of conviction are affirmed, but the causes are remanded for resentencing.

Lydia Ann Bishop Watkins ("Wife") filed for divorce from William C. Watkins, Jr., ("Husband") after thirty-five years of marriage. The Trial Court awarded Wife a divorce and distributed the marital property. The Trial Court also concluded that Wife was not economically disadvantaged and refused to award her any alimony. The Trial Court ordered each party to be responsible for his or her attorney fees. Wife appeals claiming the Trial Court's distribution of the marital property was inequitable, the Trial Court erred by not awarding her alimony in futuro, and the Trial Court erred by not requiring Husband to pay her attorney's fees. We affirm the judgment of the Trial Court.

Defendant, Charles Jackson, Jr., entered a plea of guilty to possession of cocaine of over 0.5 grams with intent to sell, a Class C felony. The trial court imposed the recommended sentence of eight years as a Range II multiple offender. As a part of the plea agreement, Defendant reserved two certified questions of law under Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure arguing that the trial court erred in not suppressing items found during a search of his vehicle. We affirm the judgment of the trial court.

The chancery court reversed the Assessment Appeals Commission and held that Youth Programs, a charitable organization, is entitled to a property tax exemption on real property in Shelby County used in conjunction with the FedEx/St. Jude Classic golf tournament. The trial court determined the disputed property is used exclusively for a charitable purpose and that an unusable area is used constructively and is likewise exempt. The Shelby County Assessor of Property and the State appeal. We affirm.
 

The Petitioner, James W. Taylor (aka Lutfi S. Talal), filed a petition for writ of habeas corpus seeking relief from an allegedly void judgment, which the trial court dismissed. The Petitioner now appeals contending that the trial court erred when it dismissed his petition because: (1) his presentments were fatally defective which deprived the trial court of proper jurisdiction; (2) the trial judge violated his constitutional rights; (3) the trial court erred when it ordered that the Petitioner's sentences run consecutively; (4) the trial court erred when it found that the Petitioner was a Range II offender; (5) the trial court erred when it approved an illegal judgment of conviction; and (6) the habeas corpus court erred when it denied the Petitioner a right to respond to the State. Finding no error in the judgment of the trial court, we affirm the trial court's dismissal of the Petitioner's petition for habeas corpus relief.

The petitioner, Eric Thomas, appeals as of right from the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court. He seeks relief from his Class C felony conviction for robbery and resulting sentence of eight years and one day in confinement. He contends that the post-conviction court erred in dismissing his petition and that he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

The defendant, Larry E. Shannon, appeals the trial court's order extending his probation by an additional eighteen months. He contends that the trial court lacked jurisdiction because his sentence expired before the probation revocation warrant was issued. We affirm the judgment of the trial court.

The petitioner appeals the trial court's denial of his petition for writ of error coram nobis. Particularly, he avers that the court abused its discretion in summarily dismissing his petition solely on the lack of credibility of the affiant supporting the petition. We remand the matter to the trial court for an evidentiary hearing.

The defendant, James Michael Moffitt, appeals from the Hamblen County Criminal Court's imposition of a conviction of rape and a sentence of ten years in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and the propriety of a ten-year sentence. Because the conviction is unsupported by sufficient evidence establishing the corpus delicti, we reverse the conviction and dismiss the indictment.

The Defendant, Dennis Eugene Evans, pled guilty to robbery and aggravated kidnapping. The Defendant was sentenced as a Range I standard offender to concurrent terms of three and eight years, respectively. The original judgments indicated that the Defendant would be eligible for parole after having served thirty percent of his sentence. The trial court subsequently corrected the judgment for the Defendant's aggravated kidnapping conviction to reflect that the sentence was to be served at one hundred percent. The Defendant subsequently filed a petition for post-conviction relief to set aside the corrected judgment. The trial court summarily denied relief, and this appeal followed. We affirm the judgment of the trial court.

In June of 2001, the appellant, Ricky Grover Aaron, was convicted by a jury of especially aggravated sexual exploitation of a minor and false imprisonment. As a result of his convictions, the trial court sentenced the appellant to eleven (11) years for the conviction for especially aggravated sexual exploitation of a minor and eleven months, twenty-nine days on his conviction for false imprisonment. The trial court further ordered that the appellant’s sentences be served concurrently to each other, but consecutively to a federal sentence he was already serving.

On July 8, 2004, this Court affirmed both the appellant’s convictions and the sentence imposed by the trial court. See State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD, 2004 WL 1533825 (Tenn. Crim. App. at Nashville, Jul. 8, 2004). On July 14, 2004, the appellant filed a petition to rehear, urging this Court to consider the impact of the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), delivered on June 24, 2004, on his sentence. Finding the position well-taken due to the potential impact of the Blakely decision upon the current Tennessee Sentencing Act, this Court granted the petition to rehear on August 2, 2004. The parties filed supplemental briefs fully addressing their view of the impact of Blakely on the appellant’s sentence. After a thorough review, we conclude that in light of Blakely, the trial court impermissibly considered certain enhancement factors to arrive at the appellant’s sentence for especially aggravated sexual exploitation of a minor. Therefore, we modify the appellant’s sentence for especially aggravated sexual exploitation of a minor from eleven (11) years to nine (9) years. Accordingly, the portion of the previous opinion of this Court affirming the appellant’s sentence is vacated. All other portions of this Court’s previous opinion are affirmed.

The defendant, Roderick Davis, was convicted by a ShelbyCountyCriminal Court jury of especially aggravated robbery, for which he received a sentence of 24 years, and especially aggravated burglary, for which he received a sentence of eleven years. The trial court imposed the sentences to run consecutively. On appeal, the defendant claims that the convicting evidence is insufficient and that the trial court erroneously excluded alibi evidence, instructed the jury, and sentenced him. Upon review, we affirm the conviction of especially aggravated robbery, reverse the conviction of especially aggravated burglary and modify it to aggravated burglary, and modify the sentences.

I concur with Judge Smith’s lead opinion; however, I am writing separately for two reasons.  First, I have reconsidered, and upon further reflection, retreat from my earlier position that sentences found to be in violation of Blakely should be remanded for a new sentencing hearing in the trial court. Until such time as there is clear authority for our courts to deal with Blakely issues, whether by case law or by statute, judicial economy and sentencing considerations, including uniformity of application of sentencing factors, dictates that most sentences found to be in violation of Blakely should be modified, if at all, by the appellate courts. Clearly, the appellate courts have been given the authority to do so by the legislature Tenn. Code Ann. § 40-35-401(c).

Laurie Ann Searcy sought, by post-divorce Petition, a modification of the child custody and visitation privileges provided by the divorce decree. The trial court held that no change of circumstances had occurred “with a negative impact upon the child” and denied modification. We hold that the trial court applied an improper standard for determining the change of circumstances issue. We hold, however, that no change of circumstances has occurred under Cranston v. Combs, 106 S.W.3d 641 (Tenn. 2003) and Tennessee Code Annotated section 36-6-101(a)(2)(B) and affirm the judgment of the trial court.

This case involves a custody dispute between the parents of one daughter. Mother lives in Belgium, and Father, the primary residential custodian, currently lives in Lewis County, Tennessee, although he has also lived with his daughter in Hawaii, Oregon, and Washington State at various times since the parties' separation in 1998. Father has refused to allow most of Mother's visitation since the divorce became final, has interfered with communication between Mother and Daughter, and has convinced Daughter to falsely accuse her maternal grandfather and stepfather of sexual abuse. The trial court found that these occurrences amounted to a material change in circumstances and found that it would be in the best interest of Daughter to make Mother her primary residential custodian and to allow Daughter to move to Belgium with Mother. We affirm the trial court.

The majority concludes that modification of the defendant’s sentences for especially aggravated robbery and aggravated burglary is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

The Petitioner, Lawrence Allen Hodge, appeals the trial court's denial of his petition for 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. Because Petitioner has failed to show either that his sentence has expired or that the trial court was without jurisdiction, we grant the State's motion and affirm the judgment of the lower court.

This case presents the issue of whether the trial court properly dismissed the Plaintiffs' action where there was an identical lawsuit, filed prior to this Circuit Court action, pending in General Sessions Court. We hold that the trial court correctly dismissed this case for lack of subject matter jurisdiction under the doctrine of prior suit pending.

This is an appeal of the trial court's order terminating the mother's parental rights to her six children. The mother, who had appeared at earlier hearings, did not appear at the termination hearing. A motion for default judgment was neither filed nor served on the mother. The trial court granted a default judgment based upon the mother's failure to appear at the termination hearing. We find that the mother's failure to appear did not constitute grounds for a default judgment in this case. We find that the State did not comply with Rule 55 of the Tennessee Rules of Civil Procedure. The judgment of the trial court is vacated and the cause is remanded.

The majority concludes that modification of the appellant’s eleven-year sentence is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

Plaintiff-Appellant instituted a detainer action in general sessions court seekingpossession of property owned by Plaintiff-Appellant. From an adverse judgment in general sessions court, Plaintiff-Appellant appealed to the circuit court for a trial de novo. Defendant-Appellee filed a counter-claim in circuit court, alternatively requesting that if she is forced to vacate the premises, she should be awarded damages for improvements made to the premises. The trial court entered judgment for possession to the Defendant-Appellee. Plaintiff-Appellant appeals. We reverse.

The Defendant, Robert Hayden, pled guilty to aggravated robbery, especially aggravated kidnapping, and two counts of aggravated rape. His plea did not include an agreement as to his sentences, and he was subsequently sentenced by the court to twelve years for the robbery, twenty-five years for the kidnapping, and twenty-five years for each of the rapes. The sentences were imposed in such a manner as to result in an effective sentence of sixty-two years. The Defendant subsequently filed a direct appeal, claiming that his sentences were excessive. This Court affirmed the trial court's judgments. See State v. Robert A. Hayden, No. M2000-00901-CCA-MR3-CD, 2001 WL 567869 (Tenn. Crim. App., Nashville, May 25, 2001). The Defendant then filed for post-conviction relief, alleging that he received ineffective assistance of counsel in conjunction with his guilty plea and sentencing hearing. He further alleged that his plea was unknowing and involuntary because he was under the influence of medication at the time. After an evidentiary hearing, the trial court denied relief. This appeal followed. We affirm the judgment of the trial court.

The Petitioner, Jerry Anderson, appeals the trial court's denial of his petition for 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. Because Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court.