APPELLATE COURT OPINIONS

In this conservatorship action, three of the conservatee’s five adult children filed a petition for conservatorship over the conservatee in May 2015 and subsequently filed an emergency petition for conservatorship in June 2015. Following a hearing, the conservatorship court granted the emergency petition, naming one of the petitioners as conservator over the conservatee’s property and one of the petitioners as conservator over the conservatee’s person. The conservatee’s two non-petitioning children subsequently filed a motion in opposition to the conservatorship and requested that it be dissolved. The conservatee then filed an answer to the petition and motion to dismiss the conservatorship. Following various subsequent motions and a hearing conducted in September 2015, the conservatorship court entered an order in October 2015, inter alia, appointing East Tennessee Human Resources Agency (“ETHRA”) as an emergency interim conservator over the conservatee’s property but maintaining the originally named petitioner as conservator over the conservatee’s person. The conservatorship court subsequently memorialized these appointments as permanent in an order entered in December 2015. Upon motions for attorney’s fees filed by the petitioners’ counsel in January 2016, the conservatorship court found that the attorney’s fees requested were reasonable and granted them in an order entered in March 2016. On March 29, 2016, ETHRA filed the last of three successive inventory and property management plans. The conservatee died on May 2, 2016. Upon multiple motions requesting fees, the conservatorship court conducted a hearing and subsequently entered an order on June 21, 2016, inter alia, awarding reasonable fees and expenses to the attorney ad litem, the conservator of the person, and the petitioners’ counsel and former counsel. ETHRA filed a motion to enter final accounting on August 25, 2016, and concomitantly filed a motion requesting $9,112.50 in fees for the services of its representative agent. In September 2016, the petitioners’ counsel filed additional requests for attorney’s fees, and in October 2016, ETHRA’s counsel filed a motion for attorney’s fees. On October 6, 2016, ETHRA filed a motion to close the conservatorship. The petitioners subsequently filed an objection to the final accounting, and the two non-petitioning children filed separate objections to the petitioners’ supplemental motions for attorney’s fees filed subsequent to the conservatee’s death. Following two hearings, the conservatorship court entered an order on March 28, 2017, granting ETHRA’s motion to close the conservatorship and motions for its representative’s fees and attorney’s fees. The conservatorship court declined to consider the petitioners’ pending supplemental motions for attorney’s fees, referring those to the probate court in a subsequent order. The conservatorship court also referred any claims arising from the petitioners’ objections to the final accounting to the probate court. The petitioners have appealed, asserting improper transfer to probate court of their pending motions requesting attorney’s fees, a lack of itemization of the services provided by the ETHRA representative, and deficiencies in the final accounting. Having determined that the conservatorship court improperly transferred to the probate court the petitioners’ motions for attorney’s fees without making necessary findings of fact and improperly closed the conservatorship without making findings of fact concerning the petitioners’ objections to the final accounting, we vacate those portions of the judgment. We affirm the undisputed grant of attorney’s fees to ETHRA’s counsel. We remand for entry of findings of fact and conclusions of law concerning the petitioners’ objections to the final accounting and concerning whether the attorney’s fees requested in the petitioners’ counsel’s pending attorney’s fee motions were incurred in relation to the conservatorship and, if so, whether reasonable attorney’s fees should be granted upon each of these motions. We also direct the conservatorship court to enter an order on remand directing ETHRA to present a detailed explanation of the basis for its representative’s claim for fees and expenses for the conservatorship court’s consideration based upon the factors provided in Tennessee Code Annotated § 34-1-112(a) (2015).

The Petitioner, Allen Booker, appeals the denial of his petition for post-conviction relief, arguing that he failed to receive due process at his trial or in the post-conviction evidentiary hearing and the post-conviction court erred in finding that he received effective assistance of trial counsel. Following our review, we affirm the judgment of the post-conviction court.

Trust beneficiary filed suit against co-trustees and various business entities in tort for the alleged wrongful withholding of distributions. Defendants filed a motion to dismiss based on several grounds. The trial court dismissed trust beneficiary’s complaint relying on each of the grounds asserted by the defendants. We affirm the dismissal of the complaint based on the statute of limitations. We also grant reasonable attorney’s fees, costs, and expenses incurred by defendants on appeal.

A Shelby County Criminal Court Jury convicted the Appellant, Maurice Baxter, of aggravated rape, aggravated burglary, and theft of property valued more than $1,000, and he received an effective sentence of fifty-eight years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the convictions, that the trial court erred by allowing the jury to hear that his DNA profile was in the CODIS database, that the trial court erred by allowing the defense’s DNA expert to testify for the State, and that the State committed prosecutorial misconduct during its rebuttal closing argument. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the defense expert’s testifying for the State constitutes reversible error. We also conclude that the State committed prosecutorial misconduct and that the cumulative effect of that error further warrants reversal. Accordingly, the Appellant’s convictions must be reversed and the case remanded to the trial court for further proceedings consistent with this opinion.

I write separately for the sole purpose of reiterating my belief that a prosecutor’s error in arguments to a jury should not be designated as “prosecutorial misconduct” or other words of similar import. See State v. Timothy McKinney, No. 2016-00834-CCA-R3-CD, 2018 WL 1055719 (Tenn. Crim. App. Feb. 23, 2018), Woodall, dissenting.

The Defendant, Michael A. Flippen, Jr., entered a guilty plea to second degree murder, with the length of his sentence to be determined by the trial court. Following a hearing, the Defendant received a twenty-year sentence to be served in the Tennessee Department of Correction. On appeal, the Defendant challenges the length of his sentence, arguing that the trial court abused its discretion in applying certain enhancement factors. After review of the record and applicable law, we affirm the judgment of the trial court.

A mother appeals the termination of her parental rights. The juvenile court found four statutory grounds for termination of parental rights: abandonment by failure to visit, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions. The juvenile court also found that termination of the mother’s parental rights was in the child’s best interest. We conclude that the record contains clear and convincing evidence to support the grounds for termination and that termination is in the child’s best interest. Thus, we affirm the termination of the mother’s parental rights.

The defendant, the alleged guarantor of the obligations of BPC of Memphis, LLC, under a lease agreement, appeals the grant of summary judgment in favor of the plaintiff, finding the defendant personally liable for the tenant’s obligations under the lease. BPC, the tenant, occupied the leased premises from December 2012 until August 2015, at which time it stopped paying rent. After BPC and the defendant refused the plaintiff’s demands for payment, the plaintiff commenced this action against BPC and the defendant as the guarantor. In the answer to the complaint, the defendant denied signing any document that purports to establish his personal liability. The plaintiff filed a motion for summary judgment that was properly supported by a statement of undisputed facts and affidavits pursuant to Tenn. R. Civ. P. 56. The defendant’s response was supported by his affidavit in which he disputed the plaintiff’s statement of fact that he signed “the lease” or “the Personal Guarantee section” of the lease. The chancery court granted the plaintiff’s motion for summary judgment stating, in part, “[i]n the face of the mountain of evidence in the record submitted by Plaintiff, Defendants had the burden to bring forward evidence other than Mr. Panchikal’s blanket denial in order to create a genuine issue of material fact,” and “Defendants failed to meet their burden.” The court also stated it was “mindful that Defendants have attempted to put into question Paragraphs 10, 21, and 27 in Plaintiff’s Statement of Undisputed Fact.” This appeal followed. We have determined that the defendant created a genuine dispute of a material fact by stating, inter alia, in his affidavit that “the documents claimed to bear my signature by the Plaintiffs are a forgery,” and “I never executed any guaranty section on any lease, contract or other document.” Accordingly, we reverse and remand for further proceedings.

The Defendant, Larry Franklin Mann, appeals his convictions following a jury trial in 2001 for attempted first degree murder, aggravated assault, and especially aggravated kidnapping, for which he received an effective sentence of twenty-five years. On appeal, the Defendant maintains that the trial court erred in failing to instruct the jury in accordance with State v. White, 362 S.W.3d 559 (Tenn. 2012). We conclude that the trial court’s failure to issue the instruction was harmless beyond a reasonable doubt, and we, therefore, affirm the judgments of the trial court.

This appeal involves a plaintiff with a personal injury claim who has challenged the validity of a declaratory judgment involving the defendant tortfeasor and his insurer because the personal injury plaintiff was not made a party to the declaratory judgment action. The personal injury plaintiff brought an action for damages against the defendant tortfeasor in December 2013 in Hamilton County, prior to the filing of the instant declaratory judgment action, based upon an automobile accident that occurred in December 2012. The defendant tortfeasor in the personal injury action reportedly failed to notify his insurance company of the lawsuit or cooperate with his insurance company regarding an investigation into the accident, which allegedly amounted to a breach of the automobile insurance policy between them. In March 2015, the insurance company filed the instant action in the Bradley County Chancery Court against the defendant tortfeasor, seeking a declaratory judgment that the insurance company had no duty to defend or indemnify the defendant tortfeasor based on his alleged breach of the insurance contract. In June 2015, the Bradley County Chancery Court entered a declaratory judgment against the defendant tortfeasor, holding that the insurer had no duty to defend or indemnify him. In June 2017, the personal injury plaintiff filed a petition to set aside that declaratory judgment pursuant to Tennessee Rule of Civil Procedure 60.02, alleging that she was a missing indispensable party to the declaratory judgment action and requesting to intervene therein. Following a hearing, the Bradley County Chancery Court denied the personal injury plaintiff’s petition. The personal injury plaintiff has appealed. Having determined that the personal injury plaintiff had a sufficient interest in the declaratory judgment action and was therefore an indispensable party, we set aside the underlying declaratory judgment as void for lack of subject matter jurisdiction.

The Appellant, Geremy Paul Mathis, was convicted by a Coffee County Circuit Court Jury of initiating a process intended to result in the manufacture of methamphetamine, a Class B felony. The trial court sentenced the Appellant as a Range I, standard offender to eleven years in the Tennessee Department of Correction. On appeal, the Appellant contends that the trial court erred by (1) denying his motion to suppress the “meth lab” discovered after an officer ordered the Appellant to exit the vehicle in which he was a passenger, (2) denying his motion for mistrial after a defense witness made repeated references to the Appellant’s previous incarceration, and (3) refusing to grant the alternative sentence of community corrections. The Appellant further contends that the evidence was not sufficient to sustain his conviction. Upon review, we affirm the judgment of the trial court.

Petitioner, Roy Smith, was convicted at trial of several drug-related offenses and sentenced to twelve years to be served consecutively to a prior aggregate sentence of thirty-seven years. Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel when trial counsel advised him to reject a favorable plea offer in favor of attempting to have the charges dismissed at trial based on a jurisdictional argument. The post-conviction court denied relief. Petitioner now appeals, asking this Court, among other things, to require the State to re-extend the alleged plea offer pursuant to Lafler v. Cooper, 566 U.S. 156, 174 (2012). We decline and affirm the judgment of the post-conviction court.

I respectfully disagree with the conclusion reached by the majority in this case. In this appeal, the Petitioner contends that he received ineffective assistance of counsel at the plea negotiation stage. Specifically, the Petitioner argues that trial counsel was deficient in proceeding to trial based on an erroneous jurisdictional argument. As a result, the Petitioner argues that, but for trial counsel’s erroneous advice, he would have accepted the State’s more favorable plea offer. The State argues that the Petitioner has failed to overcome the presumption that trial counsel exercised reasonable judgment in all strategic decisions. Moreover, the State asserts that because the Petitioner has failed to prove he would have accepted the ten-year offer extended to him instead of the twentyyear offer, he has failed to prove prejudice. For the reasons that follow, I would have reversed the judgment of the post-conviction court and remanded this matter for a rehearing. The facts underlying the Petitioner’s convictions stem from the execution of a search warrant upon his home resulting in the discovery of oxycodone and several hundred dihydrocodeinone pills. State v. Roy Allen Smith, No. M2014-01172-CCA-R3- CD, 2015 WL 3550106, at *1 (Tenn. Crim. App. June 8, 2015) perm. app. denied (Tenn. Oct. 15, 2015). The Petitioner was ultimately convicted after a jury trial of simple possession of a Schedule II controlled substance, possession of a Schedule III controlled substance with the intent to manufacture, deliver, or sell, maintaining a dwelling used for keeping or selling controlled substances, and possession of drug paraphernalia, for which he received an effective twelve-year sentence. Id. The trial court ordered the Petitioner’s twelve-year sentence to be served consecutively to six prior convictions with an aggregate sentence of thirty-seven years for which the Petitioner had been on probation at the time that the instant offenses were committed. Roy Allen Smith, at *3. In total, it appears that the Petitioner received an effective forty-nine-year sentence, the bulk of which is for driving offenses.

Defendant, Wellington Thomas, pled guilty to driving under the influence (“DUI”), second offense, and evading arrest. In doing so, Defendant reserved a certified question of law regarding the legality of his traffic stop. The police officer that stopped Defendant observed Defendant’s vehicle touching the fog line twice and crossing the centerline dividing southbound lanes of traffic without a signal. The basis for the traffic stop cited by the police officer was that Defendant had failed to maintain his lane. Defendant filed a motion to suppress and contended that the traffic stop was unconstitutional. The trial court denied the motion to suppress. After a review of the record and the dash camera video depicting Defendant’s driving, we affirm the judgment of the trial court.

The Appellant, Andrea Spencer, appeals as of right from the Shelby County Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Appellant contends that the trial court erred because his motion stated a colorable claim for sentencing outside the statutory ranges and a Blakely v. Washington violation. Discerning no error, we affirm the judgment of the trial court.

Joshua L. Carter, Petitioner, was convicted in separate jury trials of sale of less than .5 grams of cocaine in a drug-free zone; possession with the intent to sell or deliver more than .5 grams of cocaine in a drug-free zone; simple possession of marijuana; and evading arrest in case number 2011-B-1648 and of voluntary manslaughter, attempted especially aggravated robbery, and felony murder in case number 2011-D-3013. Petitioner received a total effective sentence of forty years as a multiple offender in case number 2011-B-1648 and received a life sentence in case number 2011-D-3013, to be served consecutively to his forty-year sentence. These cases were consolidated on appeal, and this court affirmed Petitioner’s convictions. Petitioner filed petitions for post-conviction relief. The post-conviction court consolidated the petitions and denied relief. On appeal, Petitioner asserts that: (1) trial counsel in case number 2011-D-3013 failed to call an alibi witness; (2) trial counsel in case numbers 2011-B-1648 and 2011-D- 3013 failed to properly investigate the cases; and (3) trial counsel in case number 2011- B-1648 failed to withdraw. After a thorough review of the facts and applicable case law, we affirm the post-conviction court’s denial of relief.

Dedrick Wiggins (“Defendant”) was convicted by a Shelby County jury of second degree murder and sentenced to thirty-five years’ incarceration. In this direct appeal, Defendant contends that the trial court erred in admitting the victim’s statement under the dying declaration hearsay exception and that the evidence presented at trial was insufficient to support his conviction. Following a thorough review, we affirm the judgment of the criminal court.

The Petitioner, Joshua Brown, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance of counsel and that his guilty pleas were unknowingly and involuntarily entered. Following our review, we affirm the denial of the petition.

An Obion County grand jury indicted Tony Alan Winsett, Janet Michelle Stanfield, and Justin Bradley Stanfield for multiple drug and weapons charges based on the warrantless search of their home and the subsequent automobile stop involving defendants Winsett and Janet Stanfield.  The defendants filed motions to suppress the evidence against them based on an allegedly improper search.   Following a suppression hearing, the trial court granted the defendants’ motions and dismissed the charges against them.  The Court of Criminal Appeals affirmed the trial court’s ruling.  The State then filed an application for permission to appeal to this Court.  See Tenn. R. App. P. 11(a).  We granted the State’s application and, upon review, hold that, with respect to defendants Winsett and Janet Stanfield, the warrantless search of the residence was constitutionally permissible based on defendant Winsett’s status as a parolee and the doctrine of common authority.  However, we conclude that the warrantless search with respect to defendant Justin Stanfield was constitutionally unreasonable because he retained a reasonable expectation of privacy in his bedroom and the State failed to carry its burden of proving that defendant Winsett exercised common authority over Justin Stanfield’s bedroom.  Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. 

The warrantless search of the home of Tony Winsett, Janet Stanfield, and her son, Justin Stanfield, violated their rights under Article I, section 7 of the Tennessee constitution to be free from unreasonable searches and seizures. Mr. Winsett’s parolee status should not subject him, Ms. Stanfield or Mr. Stanfield to a warrantless and suspicionless search. The trial court did not err in suppressing evidence from the illegal search of the Winsett/Stanfield home. The majority does not err in suppressing the evidence as to Mr. Stanfield, although I do not agree with the majority’s reasoning. 

Appellant, Jonathan C. Hood, appeals the trial court’s summary dismissal of his petition seeking habeas corpus relief. The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

A manufacturer of military uniforms entered into an agreement with its supplier of fabric and the manufacturer’s bank whereby the bank would disburse funds from the manufacturer’s account to pay invoices for fabric the supplier shipped to the manufacturer. After several months, the supplier learned that the process for paying the invoices was not being followed and sent the bank the unpaid invoices directly and demanded payment. The manufacturer filed a declaratory judgment action, naming the supplier and the bank as defendants, and asked the court to determine the “rights, status or other legal relations” under the agreement. The supplier filed a crossclaim against the bank, asserting claims for breach of the disbursement agreement, breach of duty of good faith and fair dealing, violation of Tennessee Consumer Protection Act (“TCPA”), fraud in the inducement of contracting, and civil conspiracy to commit fraud in the inducement. The court granted summary judgment to the bank on all of the supplier’s claims except the civil conspiracy claim; the supplier appeals. Upon a thorough review of the record, we reverse the judgment of the trial court and remand the case for further proceedings.  

This appeal concerns visitation and parenting responsibilities following a divorce. The trial court granted decision-making authority over both children, a son and a daughter, to the father. After granting both parties 50/50 visitation with the son, the court awarded the father most of the visitation time with the daughter. The mother appeals. We affirm the decision of the trial court.

Defendant, Donald Ray Mahaffey, was convicted of the sale of more than 0.5 grams of methamphetamine; delivery of more than 0.5 grams of methamphetamine; conspiracy to sell and deliver more than 0.5 grams of methamphetamine; possession of a firearm during the commission of or attempt to commit a dangerous felony; unlawful possession of a weapon after having been convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon; possession of marijuana for resale; and possession of drug paraphernalia. The trial court imposed an effective sentence of thirty-two years in the Department of Correction. On appeal, Defendant argues that the evidence was insufficient to support his conviction for possession of a firearm during the commission of a dangerous felony. Having reviewed the entire record and the briefs of the parties, we find no error and affirm the judgments of the trial court.

The petitioner, Katherine Louise Holmes, appeals the denial of her petition for post-conviction relief, which petition challenged her 2012 conviction of attempted first degree murder, alleging that she was deprived of the effective assistance of counsel at trial. Discerning no error, we affirm the denial of post-conviction relief.