APPELLATE COURT OPINIONS

The defendant pled guilty in the Williamson County Circuit Court to sexual battery by an authority figure and incest, Class C felonies. After a sentencing hearing, the trial court sentenced him as a Range I, standard offender to concurrent sentences of four years for each conviction to be served as eleven months, twenty-nine days at seventy-five percent in the county jail and the remainder on supervised probation. The defendant appeals, claiming that the trial court erred by denying his request for full probation. We affirm the judgments of the trial court.

The defendant, Daniel Andrew Decker, appeals the trial court's order removing Assistant District Public Defender Karla Gothard as his counsel. Because the trial court did not abuse its discretionary authority, the judgment is affirmed.

The defendant, Jay Chambers, was convicted of one count of rape. The trial court imposed a Range I sentence of ten years. In this appeal, the defendant asserts that a former sheriff's deputy should not have been permitted to sit as a juror; that the trial court erred by permitting members of the jury to separate during a break; and that he was denied the effective assistance of counsel. Because the defendant's motion for new trial was untimely and the issues, even if meritorious, would not warrant a dismissal of the charge, the interests of justice do not require waiver of the timely filing of the notice of appeal. Accordingly, the appeal is dismissed.

The petitioner appeals the lower court's denial of his post-conviction relief petition. The petitioner entered a plea of nolo contendere to aggravated assault as a Range II offender, for which he was sentenced to ten years' incarceration at 35 percent. He contends on appeal that his trial counsel was ineffective for failing to properly investigate his case and that his plea was entered involuntarily. We affirm the judgment of the post-conviction court.

I respectfully dissent. I do not believe the record justifies removing counsel from representing the defendant. I see no design or scheme in place by which Ms. Gothard sought to thwart justice or its proper administration. Nor do I view the case as one by which she made material misrepresentations or disobeyed trial court orders. Rather, I find material discrepancies between the trial court’s findings, upon which the majority opinion is based, and the transcript of trial court proceedings. For example, the majority opinion specifies counsel’s failing to comply with the trial court’s “directive” to have her expert witness in court to support her request for a continuance.  However, the trial court did not order counsel to produce the expert nor did counsel defy any such order.

I concur in the results reached in the majority opinion. I believe, however, that the failure to file a motion for new trial does not foreclose our acting on plain error which affects substantial rights of the defendant. See Tenn. R. Crim. P. 52(b). For example, courts have reversed convictions and granted new trials based upon plain error because of the failure to instruct on lesser included offenses even though the issue was not preserved by the motion for a new trial. See, e.g., State v. Terry, 118 S.W.3d 355 (Tenn. 2003); State v. Walter Wilson, W2001-01463-CCA-R3-CD, Shelby County (Tenn. Crim. App. Sept. 4, 2002); State v. Jason Thomas Beeler, W1999-01417-CCA-R3-CD, Obion County (Tenn. Crim. App. Nov. 22, 2000). Thus, we should not necessarily limit our consideration to whether the defendant’s claims would result in dismissal.

The petitioner, Sparkle David Munsey, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, he contends that (1) he did not knowingly, voluntarily, and intelligently waive his right to counsel and (2) his sentence should be vacated because the trial court failed to advise him of his right to appeal pursuant to Federal Rule of Criminal Procedure 32(A)(2). The judgment of the trial court is affirmed.

The petitioner, Ernest B. Eady, was convicted of second degree murder and sentenced to confinement for twenty years. His conviction and sentence were affirmed by this court and application for permission to appeal was denied by the supreme court. He filed a petition for post-conviction relief, alleging that trial counsel was ineffective for not raising as an issue on appeal that the jury had not been properly instructed as to murder second degree. Following a hearing, the post-conviction court granted the petition, and the State appealed. We reverse the order of the post-conviction court and remand for an order dismissing the petition for post-conviction relief.

The defendant, James Dale Walker, pled guilty in the Blount County Circuit Court to aggravated sexual exploitation of a minor, a Class C felony, and sexual exploitation of a minor, a Class E felony. Pursuant to the plea agreement, the defendant received concurrent sentences of six and two years, respectively, as a Range I, standard offender. The manner of service of the sentences was to be determined by the trial court. After a sentencing hearing, the trial court ordered that the defendant serve his sentences in total confinement. On appeal, this court reversed and remanded, ordering that the trial court reconsider a sentencing alternative to confinement in the Department of Correction (DOC). See State v. James Dale Walker, No. E2002-00263-CCA-R3-CD, Blount County (Tenn. Crim. App. Oct. 18, 2002). After a second sentencing hearing, the trial court ordered that the defendant serve six months in confinement and the remainder of his sentences on supervised probation. The defendant appeals, claiming that he should have received full probation. We affirm the judgments of the trial court.

Petitioner Terrance L. Turner was convicted in the Davidson County Criminal Court of two counts of attempted second degree murder and one count of especially aggravated kidnapping. Turner received a total effective sentence of twenty-eight years incarceration in the Tennessee Department of Correction. Subsequently, Turner filed for post-conviction relief, alleging that he received the ineffective assistance of counsel. Petitioner Jermaine Montez Bradford was convicted of especially aggravated kidnapping and was sentenced to twenty-three years incarceration. Thereafter, Bradford filed for post-conviction relief, alleging that he received the ineffective assistance of counsel because counsel denied him the right to testify at trial. The post-conviction court denied both petitions and the petitioners timely appealed. Upon our review of the record and the parties' briefs, we affirm the judgments of the post-conviction court.

Gabriel Antonio Clark appeals from the Madison County Circuit Court’s denial of his petition for
post-conviction relief. Because we agree with the lower court that the petitioner failed to prove his
allegations by clear and convincing evidence, we affirm.

Charles C. Phillips, Jr. sued United Services Automobile Association ("USAA") under his homeowners insurance policy. His suit was prompted by USAA's denial of coverage for water damage to the plaintiff's house. The plaintiff claims that the damage was due to water seepage as a direct result of the faulty design or negligent installation of the synthetic stucco system applied to the exterior of his house. The plaintiff amended his complaint, seeking class certification for all other USAA insureds who had sustained similar losses caused by the failure of synthetic stucco material and whose claims had been denied by USAA. Following a bench trial on the issues of coverage and class certification, the trial court determined that the plaintiff's policy provided coverage for the water damage that ensued as a result of water penetrating the stucco exterior. In addition, the trial court ordered that a class of plaintiffs be conditionally certified. USAA appeals the finding of coverage. We affirm.

A mediated agreement provided that Husband would sell his one-half interest in Pigeon Forge property to Wife for $500,000.00, but if the purchase price was not paid in one year, the property would be sold at auction and the net proceeds divided. The property was sold at auction for $244,429.00, net. Wife claims this amount plus $255,271.00 and the trial court agreed.

This is an inverse condemnation claim brought by Fred M. Leonard ("Plaintiff") against the City of Knoxville (the "City") and Knox County (the "County"). Plaintiff sought damages to his property resulting from flooding which occurred during and after construction to Gleason Road in Knoxville. The Trial Court granted the County's motion for summary judgment because the County had no involvement with the road construction and because the construction occurred solely within the City's limits on a city street. The Trial Court granted Plaintiff's motion seeking to prohibit the City from introducing evidence at trial pertaining to the deed between the City and Plaintiff's predecessor in title, which the City claimed estopped Plaintiff from pursuing this litigation. The jury returned a verdict for Plaintiff for $50,000 and concluded that Plaintiff's action was not barred by the applicable one year statute of limitations. We affirm the grant of summary judgment to the County and the jury's verdict that this action was filed timely. We conclude, however, that the Trial Court erred when it prohibited the City from introducing the deed and evidence concerning whether that deed operated to estop Plaintiff from pursuing this action.

A Dickson County jury convicted the Defendant, Wilbur Leon Deck, Jr., of Driving Under the Influence of an Intoxicant ("DUI"), second offense. The trial court sentenced the Defendant to eleven months and twenty-nine days in the county jail, which it suspended after the Defendant served ninety days in jail. On appeal, the Defendant contends that the trial court erred when it failed to dismiss the presentment because the caption of the presentment stated the incorrect term of the grand jury. Finding no reversible error, we affirm the trial court's judgment.

This case involves a dispute between a Williamson County property owner who decided to oversee the construction of his own house and the masonry contractor he hired to do the brick work on the project. The brick mason filed suit in the Williamson County Chancery Court claiming the property owner had breached the parties' oral agreement by failing to pay the balance due under the agreement. The property owner responded by claiming it was the brick mason who had breached the contract, accusing the brick mason of failing to finish the work in a professional manner, and charging the brick mason with slander. The trial court found in favor of the brick mason on his breach of contract claim, rejected the property owner's claims, and entered a $29,268.99 judgment in favor of the brick mason. The property owner appealed. We concur with the trial court's finding that the property owner breached the contract and, therefore, affirm the judgment.

The petitioner appeals the Hardin County Circuit Court’s denial of his petition for post-conviction relief in which he alleged (1) ineffective assistance of counsel, and (2) due process violations as to the jury venire. We conclude that the petitioner was not denied the effective assistance of counsel, and the petitioner’s other claims have been waived. We affirm the denial of post-conviction relief.

The defendant, David C. Beats, was convicted of theft over $10,000.00 and received a ten-year suspended sentence. After a positive drug screen, the trial court revoked probation and ordered service of the original sentence. In this appeal of right, the defendant argues that the trial court abused its discretion by revoking his probation. The judgment is affirmed.

Chancellor found father of minor child, who told child he is gay, in contempt for violating restraining order which prohibited father "from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle." Father appeals, asserting the restraining order was overbroad and/or vague, not issued pursuant to Tenn. R. Civ. P. 65.03, and had expired prior to the alleged offense. While we find the restraining order was issued properly and not overly broad, we find the father's act of telling child he is gay did not violate the restraining order as written.

The defendant, Dexter Lineberry, was convicted by a Wayne County jury of assault, a Class B misdemeanor, and evading arrest, a Class A misdemeanor. The trial court sentenced the defendant to six months with all but ninety days suspended for the assault conviction, and eleven months and twenty-nine days with all but ninety days suspended for the evading arrest charge, with the sentences to be served concurrently. In this appeal as of right, the defendant presents two issues: (1) whether the evidence is sufficient to support the defendant's conviction for assault; and (2) whether the ninety-day jail sentence was appropriate. Following our review, we affirm the judgments of the trial court.

The petitioner, Thomas Edward Reddick, pled guilty in the Knox County Criminal Court to second degree murder and received a sentence of twenty-eight years imprisonment in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, which petition the post-conviction court dismissed for failure to state a colorable claim for relief. The petitioner appealed. Upon review of the record and the parties' briefs, we dismiss the petitioner's appeal as being untimely.

The biological, custodial parent of a minor child appeals the juvenile court’s award of visitation rights to the child’s adult half-sister. We find no authority granting an adult sibling visitation rights to a minor child. We accordingly vacate the juvenile court’s order.
 

In this class action, the Trial Court refused to permit Homebuilders and individual claimants to intervene. On appeal, we reverse as to Homebuilders, but affirm as to the individual claimants.

The petitioner, Marquez Crenshaw, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his five especially aggravated kidnapping convictions, his especially aggravated robbery conviction, and his aggravated burglary conviction and resulting effective sentence of twenty-seven years. He claims he received the ineffective assistance of counsel, primarily regarding the failure to present alibi evidence. We affirm the judgment of the trial court.

The Trial Court granted defendants Summary Judgment on claims of fraud in the inducement to contract. On appeal, we Affirm.