APPELLATE COURT OPINIONS

The petitioner, Jon Hall, appeals as of right the judgment of the Madison County Circuit Court denying his petition for post-conviction relief from his capital murder conviction. The petitioner was convicted of the 1994 first degree murder of his estranged wife, Billie Jo Hall. At the conclusion of the penalty phase of the trial, the jury found one aggravating circumstance that the murder was especially heinous, atrocious and cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. See T.C.A. § 39-13-204(i)(5). The jury further found that the aggravating circumstance outweighed the evidence of mitigating circumstances beyond a reasonable doubt and sentenced the petitioner to death. The petitioner’s conviction and sentence of death were affirmed on appeal. See State v. Hall, 8 S.W.3d 593 (Tenn. 1999), reh’g denied, (Dec. 27, 1999), cert. denied, 531 U.S. 837 (2000). The petitioner filed a pro se petition for post-conviction relief on December 7, 2000, which was followed by an amended petition on November 1, 2001. On February 20, 2003, the trial court denied relief and dismissed the petition. The petitioner appeals, claiming that: (1) counsel were ineffective at the guilt phase; (2) counsel were ineffective at the penalty phase; (3) the heinous, atrocious or cruel aggravating circumstance is unconstitutional as applied in this case; (4) the imposition of the death penalty is unreliable and violates principles protected by both the United States and Tennessee Constitutions; and (5) the death sentence is unconstitutional as it infringes upon the petitioner’s right to life and is not necessary to promote any compelling state interest. We conclude that no error of law requires
reversal, and we affirm the trial court’s denial of post-conviction relief.

After a jury trial held on January 15 and 16, 2003, the defendant, Timothy Ryan Baggett, was found guilty of one count of rape as charged. The trial court then sentenced the defendant to ten (10) years as a violent offender at 100% service of sentence. The defendant appealed to this Court arguing: (1) that there was insufficient evidence to support his conviction; (2) that the prosecutor made improper comments during closing argument that amounted to prosecutorial misconduct; and (3) that in sentencing the defendant the trial court relied upon evidence not in the record. We have found each of these issues to be without merit and, therefore, affirm the judgment of the trial court, but modify the defendant's sentence to eight years at 100% service of sentence.

The petitioner, Clyde Dewayne Wesemann, appeals the dismissal of his petition for post-conviction relief from his convictions for first degree murder, aggravated burglary, and theft of property under $500, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. After a thorough review of the record, we affirm the dismissal of the petition.

In this appeal we remand to the Trial Court with instructions and lift stay issued by this Court.

The Appellant, Weltha Womack, was convicted by a Knox County jury of one count of aggravated rape, a class A felony, and two counts of misdemeanor assault, resulting in an effective fifteen-year sentence. On appeal, Womack raises the following issues for our review: (1) the voluntariness of his statements to the police; (2) whether the trial court erred by permitting the State to amend the presentment on the morning of trial; (3) whether the trial court properly instructed the jury with regard to the requisite mental state for aggravated rape; and (4) whether the prosecutor's comments constituted prosecutorial misconduct in its closing argument. After review, we find merit with regard to issues (1) and (3) with respect to Womack's conviction for aggravated rape. Accordingly, the judgment of conviction for aggravated rape is reversed, and this case is remanded for a new trial consistent with this opinion.

This is a child support case. The parties divorced in 1991 and were awarded joint custody of their three minor children. Since the divorce, the parties have been engaged in an ongoing legal battle over child support issues. In May 2002, the trial court confirmed the findings of a special master, resolving all disputes except for child support for years 2001, 2002, and 2003. In September 2003, the parties agreed to use the findings of the special master to calculate the remaining child support issues. The mother filed a proposed consent order. After she received no response, she filed a motion for summary judgment, which was granted. The grant of summary judgment to the mother resolved the remaining issues. The father appealed the grant of summary judgment arguing, inter alia, that the report of the special master was “clearly erroneous.” We affirm the findings of the trial court with modifications, and grant the mother’s request for attorney’s fees.

The petitioner, Deborah Graham, appeals the trial courts denial of her petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

This is a wrongful death action growing out of allegations of medical malpractice lodged against Dr. Becky C. Wright and Metropolitan Anesthesiologist Alliance. On December 7, 2000, surgery was performed on the decedent to remove her gallbladder. Ultimately, the decedent suffered irreversible encephalopathy and lingered in a comatose state for nearly a year and a half before she died on April 24, 2002.

This is a divorce case. Prior to their marriage, the parties entered into an antenuptial agreement, designed to keep separate all property brought into the marriage, as well as all property acquired during the marriage unless acquired jointly. The trial court granted Wife a divorce on the ground of inappropriate marital conduct. The trial court classified and divided the parties' separate and marital property in accordance with the antenuptial agreement. As a result, Husband was allowed to retain much of his separate property and retirement. The trial court denied Wife's requests for alimony and attorney's fees. Wife has appealed. For the reasons stated below, we affirm.

This is the third appeal of a case involving a divorced father’s parental rights to his eleven-year-old daughter. The father maintained only sporadic contact with his daughter following his divorce from the child’s mother. After the child’s mother remarried, she and her new husband filed a petition in the Chancery Court for Robertson County seeking to terminate the father’s parental rights and to permit the mother’s new husband to adopt the child. We reversed the first order terminating the father’s parental rights because the trial court had failed to conduct the statutorily required best interests analysis. On remand, the trial court determined that terminating the father’s parental rights was in the child’s best interests without conducting an evidentiary hearing. We reversed the second termination order and remanded the case to enable the parties to present evidence. Following an evidentiary hearing, the trial court entered a third order terminating the father’s parental rights and granting the stepfather’s petition to adopt the child. The father has appealed the trial court’s conclusion that terminating his parental rights is in his daughter’s best interests. We have determined that the record contains clear and convincing evidence to support the trial court’s decision.

The Defendant, Anthony Williamson, was convicted by a jury of robbery. He was subsequently sentenced as a Range III offender to serve fifteen years in the Department of Correction. In this appeal, the Defendant challenges the sufficiency of the convicting evidence. Finding the evidence legally sufficient to support the Defendant’s conviction, we affirm the judgment of the trial court.

The Defendant, Quentin Lewis, appeals from an order of the trial court dismissing his petition for writ of habeas corpus. The allegations contained in the petition fail to establish either a void judgment or an expired sentence. The judgment of the trial court dismissing the petition is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

This is an action by remaindermen against a life tenant for property damage and waste to real property. The defendant’s decedent had a life estate in a 1,700 acre tract of land. In September 1995, she sold timber from the property to a timber company. At that time, a timber deed was registered in the county register’s office. The timber deed was later extended through October 1997. The decedent died in February 1998. The plaintiff remaindermen, who had received title to the property in fee simple at the death of the decedent, subsequently discovered that the deceased life tenant had clear-cut all of the timber from the property. In June 2000, the plaintiffs filed this action against the decedent’s estate, claiming damages from the clear-cutting of the property. The estate filed a motion for summary judgment, arguing that the claim was time-barred based on the applicable three-year statute of limitations. It asserted that the cause of action accrued in September 1995 when the timber deed was registered, because registration of that instrument constituted “notice to the world” under T.C.A. § 66-26-102. The trial court granted summary judgment in favor of the estate. The plaintiffs now appeal. We reverse, concluding that registration of the timber deed alone does not constitute constructive notice, and that genuine issues of material fact exist as to when the damage occurred and when the plaintiffs knew or should have known of it.

The trial court terminated the parental rights of T.N.S.S. ("Mother") with respect to her three children, D.D.M. (DOB: February 10, 1989), D.S.Jr. (DOB: August 7, 1990), and D.J.S. (DOB: July 27, 1991). Mother appeals, arguing, inter alia, that the evidence preponderates against the trial court's dual findings, by clear and convincing evidence, that grounds for termination exist and that termination is in the best interest of the children. We affirm.

After the death of his estranged wife, the surviving husband discovered that she had secretly placed their marital residence into a revocable trust the assets of which, on her death, passed to the benefit of their son. The husband brought suit to have the transfer to the trust declared a fraudulent conveyance and to impose a resulting trust on the property for his benefit. The trial court granted him the relief he requested. While we agree with the trial court that the wife could not convey away the husband's interest in the farm, our reasoning and ultimate result differ from that of the trial court. We affirm the resulting trust, but reverse the voiding of the conveyance of the wife's half interest.

This case is about enforcement of a settlement agreement. In 1994, the parties entered into a joint agreement for the development of residential property. In 1996, the plaintiff filed a lawsuit against the defendants, alleging breach of contract. The parties attempted to reach a settlement agreement to resolve the dispute. This resulted in a written agreement signed only by the defendant. The defendant made some payments pursuant to the written agreement, but further disputes arose. The defendant moved to enforce the settlement agreement. The plaintiff alleged that she never agreed to the final settlement agreement. The trial court held that the written settlement agreement was binding on the parties. The plaintiff then appealed this ruling, again alleging that no settlement agreement ever existed, and, in the alternative, that the defendant breached the settlement agreement by not tendering the required payments. We vacate the order of the trial court, finding that even if a valid settlement agreement existed, the defendant breached the agreement by failing to tender the required payments.
 

This appeal arises out of the parties’ divorce following their second marriage to each other.  The trial court inter alia awarded the wife $75,000 for her contributions, in the form of personal services to the husband’s medical practice, and awarded her one-half of the equity in the home where the parties resided during the second marriage. Husband appeals the first award, arguing that the medical practice was his separate property and that the wife failed to prove any increase in the value of the practice during the marriage. He appeals the second award, arguing that the trial court erred by not considering two marital debts when it awarded half of the equity in the home to the wife. We vacate the $75,000 award pertaining to the value of the husband’s medical practice because there is no evidence of the value of the practice at the beginning or end of the second marriage. We remand for further proceedings the award of the equity in the home because the trial court failed to consider two marital debts, the husband’s loan to wife of $18,500 – which she used to buy her current residence – and the couple’s debt of $10,599.12, for which they were jointly liable. On remand, the trial court should consider inter alia: 1) the purpose of each debt, 2) which party incurred the debt, 3) which party benefitted from incurring the debt, and 4) which party is best able to repay the debt.

The Appellant, Christopher Demotto Linsey, appeals from the judgment of the Montgomery County Circuit Court revoking his community corrections sentences. Linsey pled guilty to aggravated robbery, aggravated burglary, and theft of property over $1,000.00 and, for these convictions, he received an effective eight-year sentence to be served in the Community Corrections Program. On November 21, 2002, a warrant was issued, alleging that Linsey violated the terms of his community corrections agreement based upon new arrests for domestic assault and possession of illegal drugs for resale and of drug paraphernalia. Following a hearing, the trial court ordered revocation of his community corrections sentences, and further ordered that his sentence for aggravated robbery be increased to ten years and that he serve the remainder of his now effective ten-year sentence in the Department of Correction. On appeal, Linsey argues that (1) the evidence was insufficient to establish that a violation occurred, (2) the trial court, in resentencing him to ten years for aggravated robbery, failed to conduct a sentencing hearing as required by the 1989 Sentencing Act, and (3) his sentences are excessive in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Finding no reversible error, the judgment of the trial court is affirmed.

I concur in the results of the opinion written by Judge Clement under the facts of this case and also concur in the holding that the method of presenting evidence to the trial court characterized as a “mediation” or an “Alternative Dispute Resolution Procedure” qualifies as neither under Tenn. S. Ct. R. 31.

I concur with the majority opinion in all respects save its treatment of the question whether the appellant waived his right to review alleged sentencing error vis-a-vis Blakely v. Washington, 542 U. S. ___, 124 S. Ct. 2531 (2004). First, a number of members of this Court, including the author of this concurring opinion, have concluded that Blakely review is not waived because the appellant failed to raise the issue at trial after Apprendi v. New Jersey, 530 U. S. 466, 120 S. Ct. 2348 (2000); was decided but before Blakely was decided, so long as the case was pending on direct appeal at the time of the Blakely decision. See e.g. State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD, 2004 WL 1533825 (Tenn. Crim. App. at Nashville, Jul. 8, 2004); State v. Charles Benson, No. M2003-02127-CCA-R3-CD, 2004WL2266801 (Tenn. Crim. App. at Nashville, Oct. 8,2 004); State v. Julius E. Smith, No. E2003-01059-CCA-R3-CD, 2004 WL 1606998 (Tenn. Crim. App. at Knoxville, July 19, 2004); State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 wl 1607002 (Tenn. Crim. App. at Knoxville, July 19, 2004). These cases rest on the proposition that Blakely establishes a new rule in this State with respect to sentencing, one that was not dictated by the existing precedent of Apprendi. State v. Ricky Gover Aaron, No. M2002-02288-
CCA-R3-CD, 2004 WL 1533825 (Tenn. Crim. App. at Nashville, Jul. 8, 2004); State v. Charles Benson, 2004 WL 2266801 at *8; see also Blakely v. Washington, 124 S. Ct at 2549-50 (O’Connor, J. Dissenting).

A Maury County Circuit Court jury convicted the defendant, Terrance Cecil, of possessing twenty-six grams or more of cocaine with intent to sell, a Class B felony, and the trial court sentenced him as a Range I, standard offender to ten years to be served in the Department of Correction. On appeal, the defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

In an appeal from a final decree of divorce, Wife challenges trial court’s classification,
valuation, and distribution of marital property, and husband challenges trial court’s award of alimony to wife. Wife contends that the trial court erred in several respects: in its classification and valuation of the parties’ marital residence; in failing to find that the appreciation of Husband’s separate property should be included in the marital estate; in its valuation of the automobile primarily driven by her; in failing to distribute certain marital assets and liabilities; and in failing to award her alimony in solido from husband’s separate estate. Husband contends that the court erred in awarding wife rehabilitative alimony for a period of seven years. Finding that the trial court erred in classifying and distributing themarital property, wecorrect the judgment of the trial court and make an equitable division of property.
 

The defendant appeals her conviction for first degree premeditated murder. On appeal, the defendant challenges the sufficiency of the evidence to support the conviction and contends that the trial court erred in disallowing cross-examination of an unavailable witness. We affirm the conviction.

The defendant, Anthony Davidson, appeals the trial court's order revoking his probation. The single issue presented for review is whether the trial court abused its discretion by ordering the remainder of the sentence to be served. The judgment is affirmed.

The Appellant, David Ivy, appeals as of right his sentence of death resulting from the June 2001 murder of Lakisha Thomas. On January 10, 2003, a Shelby County jury found Ivy guilty of premeditated first-degree murder. Following a separate sentencing hearing, the jury unanimously found the presence of two statutory aggravating circumstances, i.e., Ivy had previously been convicted of a violent felony offense and the murder was committed to avoid prosecution. The jury further determined that these aggravating circumstances outweighed any mitigating circumstances and imposed a sentence of death. The trial court approved the sentencing verdict. Ivy appeals, as of right, presenting for our review the following issues: (1) whether the evidence was sufficient to establish his identity as the perpetrator, (2) whether the trial court improperly permitted hearsay statements of the victim to be admitted into evidence, (3) whether the trial court erred by impaneling an anonymous jury, (4) whether the trial court erred in refusing to permit the defense, during closing argument, to discuss the rationale behind the hearsay exclusion, (5) whether the trial court erred by preventing defense counsel from arguing “residual doubt” as a non-statutory mitigating circumstance, (6) whether the trial court erred by permitting the State to introduce evidence that Ivy had previously been charged with first degree murder, (7) whether the trial court’s instruction that Ivy’s prior offenses were offenses whose statutory elements involved the use of violence violated his right to trial by jury, (8) whether the death penalty imposed in this case violated due process because the indictment failed to allege the aggravators relied upon by the State, (9) whether the trial court erred in refusing to answer the jury’s questions as to the consequences if they were unable to reach an unanimous verdict as to punishment, and (10) whether Tennessee’s death penalty statutory scheme is unconstitutional. Finding no error requiring reversal, we affirm Ivy’s conviction and sentence of death.