APPELLATE COURT OPINIONS

The Appellants, Lloyd E. Ferrell and Debra L. Ferrell, appeal the denial of post-conviction relief by the Hardin County Circuit Court. On appeal, both contend that the post-conviction court erred by not finding ineffective assistance of counsel. In addition, Debra Ferrell asserts: (1) that she should be granted a new trial because the State failed to provide Brady/Bagley material: (2) that the postconviction court erred by not making written findings of fact on each issue raised in the petition, and (3) that the cumulative effect of all errors at trial, in addition to counsel’s ineffectiveness, deprived her of a meaningful defense. After review, we affirm the dismissal of the petitions.

Pursuant to Tennessee Supreme Court Rule 23, we accepted certification of a question of law from the United States District Court for the Middle District of Tennessee concerning regulations issued by the Tennessee Department of Human Services. The certified question from the district court asks us to determine whether the rationale of statutorily imposed vicarious liability under Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799 (Tenn. 2000), applies to rules governing licensing and operation of day care centers in Tennessee. For the reasons given herein, we answer that our holding in Gleaves is distinguishable from the present case, and the Tennessee regulations governing day care centers do not, absent fault on the part of the licensee, provide for vicarious liability for the injurious acts of an employee occurring outside the scope of employment.

The defendant pled guilty to one count of Class D felony theft over $10,000, received an agreed three-year sentence, and agreed to allow the trial court to determine the manner in which her sentence would be served. The trial court ordered the sentence to be served in incarceration. In this appeal, the defendant argues the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.

Defendant, Carla Moten, was indicted by the Shelby County Grand Jury for aggravated burglary and intentional aggravated assault. Defendant was convicted by a jury of the lesser-included offense of reckless aggravated assault. The jury also found Defendant guilty of aggravated criminal trespass as a lesser-included offense of aggravated burglary. Defendant was sentenced to two years for her reckless aggravated assault conviction and six months for her aggravated criminal trespass conviction, to be served concurrently. In her appeal as of right, Defendant argues that the evidence at trial was insufficient to support her conviction for reckless aggravated assault. We disagree, and affirm the judgment of the trial court regarding the conviction for reckless aggravated assault. However, we find plain error in the conviction for aggravated criminal trespass as a lesser-included offense of aggravated burglary and therefore reverse and dismiss the conviction for aggravated criminal trespass.

The threshold issue presented in this appeal is whether the Court of Criminal Appeals erred in holding that the defendant’s motion to dismiss was not capable of pretrial determination under Tennessee Rule of Criminal Procedure 12(b) because it requires a determination of the general issue of the defendant’s guilt or innocence. In our view, the defendant’s motion presents a legal question – the proper interpretation of a statute – and does not require a determination of the defendant’s guilt or innocence. Having decided the threshold issue, we also are of the opinion
that the trial court correctly interpreted the statute when it held that a parent is not subject to prosecution for especially aggravated kidnapping under Tennessee Code Annotated section 39-13-305(a)(2) when the indictment fails to allege that the minor child was removed or confined by force, threat, or fraud. Therefore, the judgment of the Court of Criminal Appeals is reversed. The judgment of the trial court granting the defendant’s pretrial motion to dismiss count one of the indictment is reinstated.

A Williamson County jury convicted the defendants of DUI, first offense. Defendant Daniel was sentenced to eleven months and twenty-nine days, all suspended except for 90 days incarceration. Defendant Echols' eleven-month and twenty-nine day sentence was suspended after 30 days incarceration. The sole issue on appeal is whether their sentences are excessive. We find the defendants failed to file their notices of appeal within 30 days of the trial court's orders overruling their motions for new trial; therefore, their appeal is dismissed.

The defendant, Derek T. Payne, was convicted by a Shelby County Criminal Court jury of second degree murder, a Class A felony, and attempted especially aggravated robbery, a Class B felony, and was sentenced by the trial court to an effective sentence of thirty-seven years in the Department of Correction. In this appeal as of right, he challenges the sufficiency of the evidence in support of his convictions, the sentences imposed, and the trial court's evidentiary rulings. We affirm the judgments of the trial court.

A Shelby County jury found the Defendant guilty of especially aggravated robbery and felony murder in the perpetration of a robbery. The trial court sentenced the Defendant as a Range I violent offender to life imprisonment for the felony murder conviction and to twenty-two years for the especially aggravated robbery conviction. On appeal, the Defendant argues that the trial court erred by failing to give a requested jury instruction on lost or destroyed evidence, that the evidence presented by an accomplice was not sufficiently corroborated to support the convictions, and that the trial court erred in sentencing the Defendant for the especially aggravated robbery conviction by not including in the record specific findings regarding the enhancement and mitigating factors considered in sentencing him. We affirm the Defendant's convictions, but remand to the trial court for a new sentencing hearing for the especially aggravated robbery conviction.

I respectfully dissent from the majority opinion. I believe the trial court erred by limiting the definition of passion to anger relative to the adequate provocation necessary for voluntary manslaughter.

The petitioner, Michael Edmondson, appeals as of right the Shelby County Criminal Court's denial of his petition for post-conviction relief. He challenges his convictions pursuant to guilty pleas contending that he received the ineffective assistance of counsel because his trial attorney failed to investigate and prepare his case for trial. We affirm the trial court's denial of the post-conviction petition.

A Davidson County jury convicted the defendant, Anthony R. Parham, of sexual battery. In this appeal as of right, the defendant raises the issue of whether the evidence was sufficient to support the conviction for sexual battery. We affirm the judgment of the trial court.