APPELLATE COURT OPINIONS

A Shelby County jury convicted the defendant, Curtis Morris, of first-degree murder, aggravated child abuse, aggravated child neglect, and felony murder of his seventeen-month-old son. On appeal the defendant argues: the trial court erred when excluding a daycare record; the trial court erred when permitting the jury to view autopsy photos of the victim; the trial court erred when allowing certain expert testimony; the State failed to properly elect offenses; the trial court erred when failing to define “knowing” in its aggravated child abuse instructions; the State presented insufficient evidence to support the jury’s verdict; and the cumulative effect of these errors resulted in the denial of a fair trial. Based on our thorough review of the record, pertinent authorities, and arguments of the parties, we affirm the judgments of the trial court.

The Petitioner, Nasir Hakeem, appeals the Montgomery County Circuit Court’s denial of post-conviction relief, arguing that his attorneys were ineffective for failing to inform him of the deportation and other immigration consequences of a conviction at trial pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). The State contends that the petition is time-barred and that the post-conviction court erred in tolling the one-year statute of limitations based on the Petitioner’s ignorance of Padilla. Because the postconviction court erred in tolling the limitations period, this court is deprived of jurisdiction to hear this appeal. Accordingly, the appeal is dismissed.

The defendant, Dequevion Lamar Lee, was convicted by a Madison County jury for attempted first-degree murder and aggravated assault. On appeal, he argues the evidence is insufficient to sustain his convictions. Upon review, we affirm the judgments of the trial court but remand the case for entry of a corrected judgment form as to count two reflecting the defendant’s aggravated assault conviction was merged with count one.

A Coffee County jury convicted the Defendant, Nathaniel Morton Champion, of possession of contraband in a penal institution, a Class C felony, for which the trial court imposed an eight-year sentence to run consecutively to the Defendant’s prior sentences. On appeal, the Defendant contends that: (1) the trial court erred by denying his motion to dismiss the indictment based on the State’s failure to preserve evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999); (2) the evidence introduced at trial was insufficient to support his conviction; (3) the trial court abused its discretion by denying the Defendant’s request for a continuance based on the failure of a defense witness to appear to testify at trial; (4) the Defendant’s waiver of the right to counsel was not knowing and intelligent; and (5) the trial court abused its discretion by enhancing the Defendant’s sentence to eight years and ordering consecutive sentencing. Following a thorough review, we affirm the Defendant’s judgment of conviction.

In April 2005, Donald Scott Kimbrough (“the Petitioner”) pled guilty to second degree murder and attempted second degree murder. Pursuant to a plea agreement, the Defendant received an effective sentence of twenty-five years’ incarceration. Almost twelve years after his guilty plea, in March 2017, the Petitioner filed an untimely petition for post-conviction relief. The Petitioner acknowledged that his petition was untimely filed but asserted that the statute of limitations should be tolled because he was a minor at the time of the offenses. The post-conviction court summarily dismissed the petition as time-barred after finding that no statutory exception existed to toll the limitations period and that the Petitioner failed to establish a basis for due process tolling. The Petitioner now appeals the post-conviction court’s order. However, because the Petitioner filed an untimely notice of appeal with this court and the interest of justice does not favor a waiver of the timely filing requirement in this case, the Petitioner’s appeal is dismissed.

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court after the trial court denied a motion for recusal. Because the petition for recusal appeal was not timely filed in accordance with Tennessee Supreme Court Rule 10B, we dismiss the appeal.

Defendant, Pamela Moses, was placed on intensive probation following the entry of guilty pleas to several offenses. The State filed two petitions to revoke her probation. After a lengthy hearing, the trial court revoked Defendant’s probation and ordered the “original judgment of conviction” into execution with additional jail credit for time served in confinement. Defendant argues on appeal that the trial court improperly revoked probation. For the following reasons, we affirm the judgment of the trial court.

Originally, I was assigned the task of drafting an opinion in this case. I circulated my draft to the other panel judges, the Honorable W. Neal McBrayer and the Honorable Arnold B. Goldin. Judges McBrayer and Goldin do not agree with me “that the voluntary payment doctrine barred recovery.” I have read the majority opinion drafted by Judge McBrayer and concurred in by Judge Goldin. I now formally dissent from that majority opinion.

The State of Tennessee appeals from the Houston County Circuit Court’s order granting the Defendant, Trevor Wallace’s, motion to dismiss the indictment charging him with driving under the influence. See T.C.A. § 55-10-401(a) (Supp. 2014) (amended 2015). The trial court granted the motion on the basis that the indictment failed to state an offense. The State contends that the trial court erred in granting the motion to dismiss. We reverse the judgment of the trial court and remand the case for further proceedings.

This action involves a will contest in which the decedent’s daughter alleged that the current will was void due to either undue influence or lack of mental capacity. The case proceeded to a jury trial, after which the jury invalidated the will. We affirm.

This appeal arises from a declaratory judgment action seeking to determine whether the decedent died intestate. The decedent executed a will in 2005 and executed another will in 2011, which expressly revoked all prior wills and codicils. Following the decedent’s death in 2016, the original of the 2011 will could not be located; however, the original of the 2005 will was found in the decedent’s personal filing cabinet. The decedent’s children then filed a Petition to Open Estate and [for] Declaratory Relief, seeking a declaration that the decedent died intestate. The decedent’s live-in companion of approximately 30 years, and a beneficiary under both wills, filed an answer, contending that the decedent died testate under either the 2005 or the 2011 will. At the trial, the decedent’s companion conceded that she did not have evidence to overcome the presumption that the decedent revoked the 2011 will; thus, the trial focused on whether the decedent intended to revive his 2005 will upon revoking the 2011 will. The trial court found “there is no proof Decedent revoked the 2011 Will with the intent to execute a later will,” and “[g]iven the preservation and nearby-safekeeping of the 2005 Will following revocation of the 2011 Will and the lack of evidence indicating a contrary intent, the Court concludes Decedent intended to revive his 2005 Will.” We affirm.

Father unilaterally modified his child support obligation without submitting a petition to modify to the trial court because his oldest child emancipated. The trial court found that Father had impermissibly modified his child support obligation based, inter alia, on the fact that Father failed to follow the Child Support Guidelines. Discerning no error, we affirm the trial court’s judgment.

The defendant, Kenneth Michael McIntosh, pled guilty to sixteen counts of aggravated child abuse and a single count of child abuse. The trial court sentenced the defendant to eight years for each aggravated child abuse conviction and eleven months and twentynine days for the single child abuse conviction and ordered two of the sentences for aggravated child abuse to be served consecutively for an effective sentence of sixteen years. On appeal, the defendant argues the trial court erred in ordering two of his eightyear sentences to be served consecutively. Upon review, we affirm the findings of the trial court.

This case was originally filed in general sessions court. The general sessions court entered a default judgment against Appellant in the amount of $8,066.04 on January 27, 2012. In September of 2015, Appellant filed a motion for relief from the general sessions judgment, alleging that the judgment was void because she was not properly served with the civil warrant. The general sessions court denied the motion, and Appellant appealed to the circuit court. The circuit court vacated the general sessions’ default judgment finding that Appellant was not properly served but remanded the case to general sessions for a trial on the merits. Because the general sessions court lacked personal jurisdiction over Appellant, we conclude that the default judgment entered in the general sessions court is void. Accordingly, we affirm the circuit court’s order vacating the default judgment, but reverse the circuit court’s remand of the case to general sessions court, and instead we remand to the circuit court with instructions to dismiss the case.

This appeal arises out of protracted litigation following a foreclosure sale. The plaintiff asserted claims against the mortgage holder and the purchaser at the foreclosure sale for breach of contract, breach of the implied duty of good faith and fair dealing, improper foreclosure, and fraud. The trial court dismissed each of the claims, and the plaintiff appeals. Due to the deficiencies in the plaintiff’s brief on appeal, we conclude that she has waived consideration of any issues and hereby dismiss the appeal.

The Petitioner, William Casey, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he challenged his convictions for first degree criminal sexual conduct and two counts of aggravated rape for offenses that occurred in 1979 and 1980. The Petitioner raised numerous issues in his petition, alleging errors at trial, prosecutorial misconduct, and ineffective assistance of counsel at trial and on appeal. The post-conviction court entered a preliminary order dismissing all of the Petitioner’s claims of errors at trial, prosecutorial misconduct, and ineffective assistance of appellate counsel and the majority of his claims of ineffective assistance of trial counsel. Following an evidentiary hearing on the Petitioner’s remaining claims, the postconviction court entered an order denying the Petitioner relief. On appeal, the Petitioner contends that the post-conviction court erred in dismissing the majority of his claims before the evidentiary hearing and in finding that the Petitioner failed to establish during the evidentiary hearing that he is entitled to relief as to his remaining claims. We conclude that the post-conviction court properly dismissed the Petitioner’s claims of errors during the trial and prosecutorial misconduct and properly denied the Petitioner relief as to his claims presented during an evidentiary hearing. We also conclude the post-conviction court erred in dismissing the Petitioner’s claims of ineffective assistance of counsel at trial and on appeal without conducting an evidentiary hearing. Accordingly, the post-conviction court’s judgment is affirmed in part and reversed in part, and we remand the case to the post-conviction court for an evidentiary hearing on the issues of ineffective assistance of counsel at trial and on appeal that were dismissed by the court in its preliminary order and properly preserved by the Petitioner on appeal.

Pro se Petitioner, Chris Jones, appeals the Shelby County Criminal Court’s dismissal of his petition for writ of error coram nobis. The Petitioner concedes that his petition was filed nearly seven years beyond the one-year statute of limitations and argues that due process consideration warrants tolling of the limitations period. Upon review, we affirm the dismissal of the petition.

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights on the ground of: abandonment by willful failure to visit. Appellant also appeals the trial court’s finding that termination of her parental rights is in the children’s best interests. Because Appellee/Father thwarted Appellant’s attempts to visit the children, we conclude that Appellees failed to meet their burden to show, by clear and convincing evidence, that Appellant abandoned the children. Accordingly, we reverse the order terminating Appellant’s parental rights.

In this appeal, we address the constitutionality of police officers’ search of trash located within the curtilage of the home of the Defendant, Williams Zachary Weatherly. The police officers utilized evidence obtained from the Defendant’s trash to secure a search warrant for the Defendant’s home and vehicle. As a result of evidence seized from the Defendant’s trash and during the execution of the search warrant, the Defendant was charged with possession with the intent to sell or deliver more than one-half ounce of marijuana and possession of a firearm during the commission of a dangerous felony. The Defendant filed a motion to suppress. Following a hearing, the trial court granted the motion, finding that the warrantless search of the Defendant’s trash was unconstitutional and that the search warrant failed to establish probable cause. The State appealed. Upon reviewing the record and the applicable law, we affirm the trial court’s granting of the motion to suppress.

A mother obtained a default judgment against her former spouse for child support arrearages and other amounts. At the mother’s request, the trial court entered orders of income assignment to the former spouse’s employers, each directing them to deduct a set amount from the former spouse’s salary to satisfy the default judgment. Nearly fourteen and one-half years later, the former spouse asked the court to terminate the wage assignment, claiming the culmulative amount deducted from his income exceeded the amount of judgment plus interest. The former spouse also sought a judgment against the mother to the extent she had received more than she was entitled to under the default judgment. The mother argued that the voluntary payment doctrine barred recovery. The trial court found that the former spouse’s “overpayments were made with full knowledge of the facts chargeable to him” but that they “were not voluntary payments.” Accordingly, the court entered judgment against mother plus statutory post-judgment interest.

A jury convicted the Petitioner, Tina Nelson, of first degree felony murder committed during the perpetration of aggravated child abuse and of the underlying felony of aggravated child abuse. She petitioned for post-conviction relief, asserting ineffective assistance of counsel, and her petition was denied. On appeal, the Petitioner alleges that she is entitled to post-conviction relief because her trial counsel failed to properly investigate her case or present witnesses, failed to move for a severance, failed to properly challenge testimony that she showed no emotion, and failed to establish that her mental impairment prevented her from assisting in her own defense. After a thorough review of the record, we affirm the denial of post-conviction relief.

An employee filed a claim for workers’ compensation, alleging he injured his left knee in the course and scope of his employment. The Court of Workers’ Compensation Claims denied the claim, finding the employee had failed to prove that his knee injury arose primarily out of his employment. The Workers’ Compensation Appeals Board affirmed. The employee appealed, contending that the evidence preponderated against the judgment of the Court of Workers’ Compensation Claims. After careful review, we affirm the decision of the Workers’ Compensation Appeals Board.

The Petitioner, Steven Davis, appeals the post-conviction court’s dismissal of his petition as time-barred, arguing that he delivered his petition to the designated employee in the prison mail room in a timely manner. Following our review, we affirm the summary dismissal of the petition.

In this personal injury action arising from an automobile-motorcycle accident, the trial court granted the plaintiff’s motion to enlarge the time allowed to obtain service of process on the defendant upon finding that the plaintiff’s failure to timely obtain service of process had been due to excusable neglect. Consequently, the trial court in the same order denied the defendant’s motion to dismiss the plaintiff’s complaint for lack of service. Upon the defendant’s subsequent motion, the trial court granted permission for an interlocutory appeal, as did this Court. Upon review of the issues certified by the trial court, we affirm the trial court’s utilization of Tennessee Rule of Civil Procedure 6.02 as a method of enlarging the timeframe for issuance and service of process, pursuant to Tennessee Rule of Civil Procedure 3, when the complaint was timely filed and when excusable neglect can be demonstrated. However, having concluded that the trial court made insufficient findings and conclusions regarding excusable neglect in this matter, we vacate the trial court’s determination on that issue and remand this matter to the trial court for further proceedings consistent with this opinion. We also vacate the trial court’s determination that the defendant would be estopped from asserting a defense based on the statute of limitations because the parties had no express agreement waiving service of process in this matter.

The Defendant, Daniel Lee Mooneyhan, appeals his Bedford County convictions for Count 1: aggravated burglary, and Counts 2 and 4: theft of property between the value of $1,000 and $10,000, for which he received an effective sentence of five years with a 30% release eligibility, to serve in the Department of Correction. The Defendant contends that the evidence presented at trial was insufficient to support his convictions in Counts 1, 2, and 4 because the State offered no independent evidence to corroborate an accomplice’s testimony about the Defendant’s involvement in the offenses. The Defendant does not appeal his conviction in Count 3, felon in possession of a handgun. Upon review, we affirm the judgments of the convictions, but remand for merger of Counts 2 and 4.