APPELLATE COURT OPINIONS

The Petitioner, Timothy Earl Waters, appeals the trial court's summary dismissal of his petition for common law writ of certiorari seeking relief from a post-conviction judgment. 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. Finding that the lower court properly dismissed the petition, theState's motion is granted and the judgment of the trial court is affirmed.

Following a bench trial, the defendant, Roxanne R. Vance, was convicted of DUI per se, a Class A misdemeanor, and was sentenced to eleven months, twenty-nine days, all suspended except seven days with the balance to be served on probation. In addition, her driver's license was suspended for one year and she was ordered to pay a fine of $350 and attend alcohol and drug safety school. On appeal, she argues that the trial court erred in finding that her breath alcohol test results created an irrebuttable presumption of DUI per se and that the evidence was insufficient to support her conviction. Based upon our review, we affirm the judgment of the trial court.

The Petitioner, Henry Rankins, filed a petition for post-conviction relief based on the Post- Conviction DNA Analysis Act. The trial court denied relief and Petitioner now seeks review of the lower court’s decision. 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. After review, we conclude that the petition fails to satisfy the criteria of the Post-Conviction DNA Analysis Act. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The petitioner, Patrick E. Simpson, pled guilty to two counts of aggravated assault and was sentenced to concurrent terms of three years to be served consecutively to his parole violation. He appeals the summary dismissal of his petition for habeas corpus relief, arguing that the trial court failed to enforce his guilty plea agreement and that his sentence has expired. Following our review, we affirm the dismissal of the petition.

The petitioner, Don Wesley McMillen, entered a plea of guilty to two (2) counts of attempted rape of a child in May of 1998. In exchange for the guilty pleas, the petitioner received concurrent, seventeen-year sentences at 35% as a Range II Offender. The petitioner timely filed a petition for post-conviction relief arguing that he received ineffective assistance of counsel and that his guilty plea was not knowing or voluntary because the trial court violated the provisions of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). The trial court denied the petition following an evidentiary hearing and this appeal followed. We affirm the dismissal of the post-conviction petition.

The petitioner, Ronald L. Johnson, appeals as of right from the Davidson County Criminal Court's summary dismissal of his petition for writ of habeas corpus. He argues that his convictions for two counts of passing worthless checks are void because they were not ordered to be served consecutively to a sentence from which he had been paroled at the time of the check offenses, his parole subsequently being revoked. The habeas corpus court dismissed his petition without a hearing, and we affirm that action.

Mother appeals the trial court’s order terminating parental rights and decree of guardianship. We affirm and vacate, in part.
 

Donna S. Young ("Plaintiff") sued Fred C. Hartley, M.D. ("Defendant") claiming that during a tubal ligation, defendant negligently performed additional surgeries upon plaintiff's vaginal area without her consent and that those extra surgeries caused plaintiff to suffer physical and emotional damage. After trial, the jury returned a verdict in defendant's favor. Plaintiff appeals raising, among other things, several questions regarding the admission of evidence at trial. We affirm.

The trial judge dismissed this medical malpractice action on the ground that the statute of limitations had run. On appeal, we vacate and remand.

The defendant, Ira Ishmael Muhammed, was convicted of attempted second degree murder, a Class B felony; two counts of aggravated assault, Class C felonies; attempted voluntary manslaughter, a Class D felony; and felony reckless endangerment which the trial court, acting as thirteenth juror, dismissed at the sentencing hearing. He was sentenced as a Range I, standard offender to twelve years for the attempted second degree murder conviction, six years for each aggravated assault conviction, and four years for the attempted voluntary manslaughter conviction, with the sentences to be served consecutively, for an effective sentence of twenty-eight years. On appeal, the defendant argues: (1) the trial court erred in admitting an audiotape of telephone conversations between him and his ex-wife, one of the victims; (2) the trial court erred in not suppressing an audiotape of statements he made shortly after being shot; (3) the trial court erred in imposing consecutive sentencing; and (4) the application of consecutive sentencing is unconstitutional. Following our review, we affirm the judgments of the trial court.

On November 30, 1992, the petitioner, Michael Douglas Hughes, entered a plea of no contest to one (1) count of aggravated rape and a plea of guilty to ten (10) counts of aggravated rape. He received an effective eighty-year sentence after a sentencing hearing. The petitioner’s sentence was affirmed in a delayed appeal. See State v. Michael Douglas Hughes, No. 01C01-9701-CR-00021, 1998 WL 301730, at *1 (Tenn. Crim. App. at Nashville, June 10, 1998), perm. to appeal denied (Tenn. Feb. 22, 1999). The petitioner sought post-conviction relief on various grounds. After the trial court denied the petition as untimely, the petitioner appealed. This Court reversed the trial court’s dismissal of the petition and remanded for an evidentiary hearing. See Hughes v. State, 77 S.W.3d 801 (Tenn. Crim. App. 2001). On remand, the trial court denied the petition after an evidentiary hearing. The petitioner then presented this appeal, arguing that the trial court erred finding that the petitioner received the effective assistance of counsel and that his guilty plea was knowingly and voluntarily entered. We affirm the dismissal of the petition.

A jury convicted the Defendant, James A. Bates, of two counts of especially aggravated kidnapping, three counts of assault (which the trial court merged into a single count), one count of possession of a firearm by a convicted felon, one count of felony evading arrest, and one count of possession of marijuana. The trial court subsequently sentenced the defendant on the especially aggravated kidnapping convictions as a Range II, multiple offender to an effective term of thirty-eight years in the Department of Correction. The defendant now appeals, challenging the sufficiency of the evidence supporting his convictions of especially aggravated kidnapping and the trial court's decision to sentence him as a Range II, multiple offender on those offenses. We affirm the judgments of the trial court.

The Appellant, Eddie Wayne Gordon, appeals the Gibson County Circuit Court’s denial of his petition for post-conviction relief. In 1983, Gordon pled guilty to first degree murder and was sentenced to life imprisonment. In 1984, Gordon, proceeding pro se, filed the instant petition for post-conviction relief. For twenty years, Gordon has unsuccessfully sought an evidentiary hearing on his petition. Fundamental fairness dictates that Gordon receive the process that is due him. Accordingly, the judgment of the trial court is reversed, and this matter is again remanded to the Gibson County Circuit Court for an evidentiary hearing upon Gordon’s petition for post-conviction relief.

This is a zoning dispute involving billboards. Its posture is not traditional because the Board of Zoning Appeals and the owner of the billboards are in agreement. The Board granted the owner two variance from a zoning ordinance; this action was challenged by the Appellees who claimed that the erection of the billboards adversely affected the value, use, and enjoyment of their property, which vested them with a special interest and entitlement to file a petition for certiorari for a judicial review of the Board's action. The Writ was granted, and a hearing resulted in a finding that the action of the Board of Zoning Appeals was unlawful and capricious.

A Knox County jury convicted the Defendant, Bobby Joe Gentry, of aggravated rape, and the trial court sentenced the Defendant as a repeat violent offender to life in prison without the possibility of parole. The Defendant appeals, contending that: (1) the evidence is insufficient to support his conviction; (2) the trial court erred when it failed to dismiss the indictment; (3) the trial court erred when it charged the jury on the elements of aggravated rape and aggravated sexual battery and on the culpable mental state; (4) he was denied effective assistance of counsel; (5) Tennessee Code Annotated section 40-35-120 (1997), under which the Defendant was sentenced as a violent offender, is unconstitutional; and (6) the trial court erred when it found that the Defendant qualified as a violent offender pursuant to Tennessee Code Annotated section 40-35-120. Finding no reversible error, we affirm the trial court's judgment.

The petitioner, William Berrios, appeals the post-conviction court's denial of his post-conviction relief petition in relation to his guilty plea to felony murder for which he received a life sentence. On appeal, the petitioner contends: (1) the state failed to satisfy a condition of the plea agreement; and (2) his plea was unknowingly and involuntarily entered. We affirm the judgment of the post-conviction court.

After twenty-one years of marriage and raising two children, now adults, Wife filed for divorce. The trial court granted the divorce and ordered Husband to pay rehabilitative alimony for three years, awarded Wife sole possession of the marital residence and ordered Husband to pay the mortgage as alimony in futuro until Wife remarries, lives with a person of the opposite sex or dies. Husband was also required to pay Wife's attorney fees. Husband appealed. We modify the trial court's order requiring Husband to pay alimony in futuro and reconstitute it as rehabilitative alimony with a three year limit. In all other aspects, we affirm the trial court.

In this litigation arising out of an automobile accident, Waynell C. Burnette ("the plaintiff") filed a motion asking the trial court to sanction Teddy Sundeen and Elhame Dauti ("the defendants") for a discovery abuse. Acting under the authority of Tenn. R. Civ. P. 37.02, the court entered a judgment by default against both defendants and, in the same order, awarded the plaintiff damages of $100,000. The defendants appeal, contending that they were not afforded proper notice of the plaintiff's intention to raise the issue of damages at the hearing on the motion for sanctions. We vacate so much of the trial court's order as awards the plaintiff unliquidated damages of $100,000.

The petitioner, William Alexander Cocke Stuart, pled guilty in the Davidson County Criminal Court to theft of property over $10,000 and received a five-year sentence to be served in split confinement. Subsequently, he filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel and that his guilty plea was not knowing or voluntary. The post-conviction court, without holding an evidentiary hearing, dismissed the petition and the petitioner appealed. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for further proceedings.

A Franklin County jury convicted the Defendant, Tyrie Brown, of possession with intent to deliver more than 0.5 grams of cocaine, assault and resisting arrest. The trial court sentenced the Defendant to thirteen years for the possession conviction and ninety days on both the assault conviction and the resisting arrest conviction. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. Finding no reversible error, we affirm the judgments of the trial court.

In this appeal in a medical malpractice lawsuit, the Appellants, J.D. Lee and the law firm of Lee, Lee & Lee, contend that the Knox County Circuit Court erred in its award of attorneys' fees. We affirm the judgment of the Trial Court and remand.

The custody of a four-year old boy is the pivotal issue in this case. The Chancellor found that the father was the better qualified to be the primary residential custodian of his son following a recitation of the bizarre conduct of the mother. We affirm.

Plaintiffs sued defendant alleging that defendant was negligent, breached its fiduciary duty, and committed fraud and state securities act violations in brokering the sale of municipal bonds to plaintiffs. Defendant filed a motion to dismiss for lack of subject matter jurisdiction and improper venue based upon an arbitration agreement plaintiffs entered into with a third party. The trial court denied defendant's motion to dismiss and defendant appealed. After reviewing the record, we hold that defendant has failed to prove that it is an intended third party beneficiary of the arbitration agreement. We affirm.

By special verdict the jury found that the defendant automobile dealer willfully and knowingly
violated the Consumer Protection Act by selling the Plaintiff a used Lexus automobile that had been wrecked but nevertheless was a certified vehicle under the manufacturer’s guidelines. More than a year later - after the Plaintiff himself wrecked the vehicle and drag-raced it various times - he discovered that some panels had been re-painted, leading to the conclusion that the vehicle had been wrecked before he purchased it. The dealer agreed to repurchase the vehicle which was left in its charge, but the Plaintiff, after consulting counsel, returned to the Defendant’s place of business and removed the vehicle. The jury assessed damages of $4000.00, remitted to $2500.00. The Plaintiff moved for treble damages and attorney fees: the Defendant moved for judgment NOV, because the issue of “willful and knowing” violation of the Tennessee Consumer Protection Act is a question of law for the court. The motion for judgment NOV was granted. Plaintiff was awarded $5000.00 attorney fees which he claims is inadequate. We affirm.

Donna Elizabeth Frazier Hill ("Mother") filed a complaint against Stacey G. Hill ("Father") seeking to modify the parties' Permanent Parenting Plan ("the parenting plan"). Father responded and filed a counterclaim. Mother proposed a revised plan that would reduce Father's visitation time and increase his child support obligation. The trial court denied Mother's revised plan with respect to the oldest child, but granted her proposed changes with respect to the other children. The trial court designated Father as the primary residential parent of the oldest child and increased his child support obligation for the younger children; however, the trial court refused to order Mother to pay child support for the oldest child on the ground that Father "has not required the [oldest] child to comply with the original Parenting Plan based on the child's expressed desires." Father appeals, arguing that the trial court erred in deviating from the Child Support Guidelines ("the Guidelines") based upon the ground espoused by the court. We vacate so much of the trial court's order as absolves Mother of any obligation to support the oldest child in the custody of Father.