APPELLATE COURT OPINIONS

The trial court determined that the defendant, Janet Kimberly Hughes, breached her fiduciary duty to the plaintiff, Johnny Stephen Francis, by utilizing a power of attorney to withdraw funds from Mr. Francis’s bank account for Ms. Hughes’s sole benefit. The trial court ordered Ms. Hughes to repay those funds. Ms. Hughes timely appealed. Because Ms. Hughes has failed to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we dismiss this appeal.

I concur with the majority opinion in this case. I write separately to expand upon what I feel is the inappropriate procedure employed during this post-conviction proceeding. I am unaware of any authority that allows a trial counsel to allege ineffective assistance of counsel against himself or herself. Trial counsel in this case had a clear conflict of interest. See Frazier v. State, 303 S.W.3d 674, 682-83 (Tenn. 2010) (noting that an attorney in a post-conviction proceeding who had represented the petitioner on direct appeal had a clear conflict of interest); see also Velarde v. United States, 972 F.2d 826, 827 (7th Cir. 1992) (“[T]rial counsel … can hardly be expected to challenge … his own ineffectiveness.”) (quoting United States v. Taglia, 922 F.2d 413, 418 (7th Cir. 1991)). Attorneys are obligated to avoid ethical violations in their practice of law. Frazier, 303 S.W.3d at 683.

A creditor obtained a default judgment in general sessions court and the debtor appealed the judgment to circuit court. The debtor was not in the courtroom when the case was called in circuit court, and the court awarded the creditor a default judgment. The debtor appeals the circuit court’s judgment, and we affirm based on the language of Tenn. Code Ann. §§ 27-5-106 and -107.

The petitioner in this Tennessee Public Records Act proceeding requested hard copies and electronic copies of records relating to a landfill maintained by the Solid Waste Board of Hamblen County/Morristown and an upcoming meeting of the Board. The trial court held a hearing as required by the TPRA, after which it dismissed the petition, holding that, under the facts presented, the petitioner was given access to the records in compliance with the TPRA. Upon our review, we conclude that, while some of the records sought were not available at the time of petitioner’s request, some records were available and were not produced for petitioner’s review. Accordingly, we reverse the judgment in part and affirm in part; we remand the case for further proceedings.

Employer appeals from the agency’s decision to award unemployment benefits to an employee. Because the record contains substantial and material evidence to support the agency’s decision, we affirm. 

The Defendant-Appellant, Corey Forest, entered a guilty plea to possession of more than .5 grams of a Schedule II substance and to unlawful possession of a firearm and attempted to reserve two certified questions pursuant to Tennessee Criminal Procedure Rule 37(b)(2) regarding whether the stop of his vehicle was lawful. After this court dismissed the appeal because the certified questions were not properly reserved, Forest filed a timely petition for post-conviction relief and obtained an agreed order stating that defense counsel had provided ineffective assistance in drafting the certified questions. The trial court then vacated Forest’s judgments of conviction and allowed him to withdraw his guilty plea. Thereafter, Forest and the State agreed to re-enter the original plea agreement. Following a new plea submission hearing, the trial court accepted Forest’s guilty plea to the same offenses and entered new judgments of conviction, with Forest reserving two new certified questions of law regarding the stop of his vehicle. Because the parties and the trial court did not follow the post-conviction procedures and law before the new certified questions were reserved and because Forest cannot establish that he was prejudiced by counsel’s errors based on this record, we dismiss Forest’s appeal, vacate the agreed order granting post-conviction relief, as well as the subsequent plea agreement and guilty plea, and remand the case to the trial court for further proceedings consistent with this opinion.

Defendant, Spencer T. Gibson, pled guilty in the Davidson County Criminal Court to the offense of robbery and received a sentence of eight years on supervised probation. We note that Defendant agreed to be sentenced outside of the statutory range in exchange for the reduced charge. On February 9, 2016, a probation violation warrant was issued. Following a hearing, the trial court revoked probation and ordered Defendant to serve the balance of his sentence by incarceration. On appeal, Defendant argues that the trial court abused its discretion in revoking his probation and ordering him to serve his eight-year sentence in confinement. We affirm the judgment of the trial court.

A Shelby County jury convicted the Defendant, Christopher Talley, of attempted second degree murder, aggravated assault, and theft of property valued under $500. The trial court sentenced him to an effective sentence of twenty-four years of incarceration. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions; (2) the prosecutor committed prosecutorial misconduct; and (3) the trial court erred when it applied certain enhancement factors at sentencing. After review, we affirm the trial court’s judgments.

I concur in the majority opinion, but write separately to again say that the term “prosecutorial misconduct” should not be used to describe errors by counsel for the State in making arguments to the jury. Instead, I believe it should be referred to as “improper prosecutorial argument” for non-constitutional errors.

The Petitioner, Gregory Woods, appeals from the denial of post-conviction relief, alleging that he was not competent to enter a guilty plea, that he was improperly sentenced as a Range II offender, and that he received ineffective assistance of counsel. Pursuant to a plea agreement, the Petitioner entered a guilty plea to aggravated sexual battery, for which he received an effective sentence of twenty years as a Range II offender.1 Upon our review, we affirm the judgment of the post-conviction court.

Defendant, Mack Transou, appeals the dismissal of his “Motion for Correction of Clerical Oversight Pursuant to Rule 36” of the Tennessee Rules of Criminal Procedure, in which Defendant alleged his March 1999 judgment of conviction for driving after being declared a habitual motor vehicle offender contained a clerical error because it failed to properly list his pretrial jail credits. Defendant contends on appeal that the trial court erred in denying his motion. Upon review, we affirm the judgment of the trial court.

The Defendant, Michael Anthony Rodgers, was convicted by a Madison County Criminal Court jury of possession of heroin with the intent to deliver, a Class B felony; possession of methamphetamine with intent to deliver, a Class C felony; and simple possession of methamphetamine and heroin, both Class A misdemeanors, and was sentenced by the trial court as a Range IV, persistent offender to an effective term of twenty-two years at 45% in the Department of Correction, to be served consecutively to his sentence in a federal case. On appeal, he challenges the sufficiency of the evidence in support of his felony drug convictions, arguing that there was insufficient proof from which the jury could infer that he possessed the drugs with the intent to deliver. Following our review, we affirm the judgments of the trial court.

The Appellant, Rudolph Miller Brooks, Jr., appeals from the Blount County Circuit Court’s order revoking his community corrections sentence and ordering him to serve his sentence in confinement. The Appellant’s counsel has filed a motion to withdraw pursuant to Rule 22 of the Rules of the Tennessee Court of Criminal Appeals. We conclude that counsel’s motion is well-taken and, in accordance with Rule 22(F), affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

The Petitioner, Kristie M. Smith, appeals from the denial of post-conviction relief, alleging the trial court erred in summarily dismissing her petition for post-conviction relief. Upon our review, we affirm the judgment of the post-conviction court.

This case involves a second healthcare liability action brought by Crystal Herpst on behalf of the estate of her deceased father, James Ingram. The defendants are Dr. LeAnthony A. Hardy – Mr. Ingram’s treating physician – as well as Parkridge Medical Center, Inc., Chattanooga Diagnostic Associates, LLC, and Columbia Medical Group- Parkridge, Inc. (the Parkridge defendants). The trial court determined that plaintiff could not avail herself of Tennessee’s saving statute because her first complaint was not filed prior to the expiration of the applicable statute of limitations. The court therefore dismissed plaintiff’s second complaint as untimely filed. She appeals. We affirm.

I concur in the majority’s conclusion that it was unnecessary for the trial court to treat the motions of LeAnthony A. Hardy, M.D., Parkridge Medical Center, Inc. Chattanooga Diagnostic Associates, LLC, and Columbia Medical Group-Parkridge, Inc. to dismiss as motions for summary judgment. But I reach that conclusion without resort to the pleadings filed in another case. Examining the allegations of the complaint filed in this action only, Crystal Herpst filed outside the applicable statute of limitations. So on the basis of the pleadings filed in this case I would affirm the dismissal of the complaint.

In this appeal of a certified question of law, the defendant challenges the constitutionality of a statute that imposes a fee upon persons convicted of certain drug and alcohol offenses when forensic scientists employed by the Tennessee Bureau of Investigation (“TBI”) have conducted chemical tests to determine blood alcohol or drug content. The challenged statute earmarks the fees imposed to an intoxicant testing fund, and monies within this fund do not revert to the State’s general fund but “remain available for appropriation to the [TBI] as determined by the [G]eneral [A]ssembly.” Tenn. Code Ann. § 55-10-413(f)(3)(B) (2017). The defendant argues that this statutory scheme provides TBI forensic scientists with a personal and institutional financial incentive to produce blood alcohol test results that secure convictions, which, in turn, increases fees and funding for the TBI. Relying on Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Vill. of Monroeville, 409 U.S. 57 (1972); and Connally v. Georgia, 429 U.S. 245 (1977), the defendant asserts that these financial incentives create an appearance of impropriety and deprive her of the federal and state constitutional right to a fair and impartial trial. We conclude that, under both the federal and state constitutions, the standards of neutrality announced in Tumey, Ward, and Connally apply only to persons exercising judicial or quasi-judical authority and do not apply to TBI forensic scientists, who do not exercise such authority. Furthermore, even if the Tumey standards applied to TBI forensic scientists, the defendant’s constitutional claim would fail because, as salaried employees, the TBI forensic scientists have no direct, personal, substantial pecuniary interest in fees imposed pursuant to the statute, and any institutional financial interest the TBI forensic scientists may have as a result of the statute is too remote to give rise to an appearance of impropriety. We also disagree with the Court of Criminal Appeals’ holding that the statute violates substantive due process by creating a situation analogous to an expert witness contingency fee arrangement. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated.

Mother appeals the termination of her parental rights to her two children. Upon our review, we conclude that the order of termination fails to comply with Tennessee Code Annotated section 36-1-113(k)’s requirement that the court make specific factual findings, which precludes our meaningful review. We vacate the order and remand for entry of an order that complies with subsection 113(k).

The Defendant, Eric Orlando Carter, was indicted on one count each of first degree premeditated murder, first degree felony murder, and attempted first degree murder. See Tenn. Code Ann. §§ 39-12-101, -13-202. Following a jury trial, the Defendant was convicted of first degree premeditated murder and attempted first degree murder. The jury was unable to reach a verdict on the charge of first degree felony murder. A mistrial was declared on that charge, and it was subsequently dismissed by the State. The trial court then imposed a total effective sentence of life imprisonment. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his convictions; and (2) that the trial court erred in denying his motion to dismiss for lack of a speedy trial. Discerning no error, we affirm the judgments of the trial court.

The Defendant-Appellant, Stephen Douglas Smith, was convicted by a Marshall County jury of one count of rape of a child, four counts of aggravated statutory rape, and forty counts of especially aggravated sexual exploitation of a minor, for which he received an effective sentence of forty-one years. T.C.A. §§ 39-13-522, -506; 39-17-1005. On appeal, the Defendant argues that: (1) the evidence was insufficient to support his convictions; (2) the trial court improperly admitted a thumb drive and the photographs from it into evidence; and (3) the trial court erred in denying his motion to cross examine the victim regarding her sexual history. Upon review, we affirm the judgments of the trial court.

The defendant, John Ewing Clemmons, appeals from the entry of an order denying his “Petition/Motion for Modification and/or Reduction of Sentence Pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure.” In denying the defendant’s motion, the trial court determined it no longer had jurisdiction over the defendant’s sentence. Following our review of the record, we affirm the ruling of the trial court.

Defendant, Rashunus B. Pearsons, was indicted for two counts of aggravated assault and two counts of harassment. Defendant was uncooperative with his appointed attorneys, and the trial court allowed Defendant to represent himself at trial. After a jury trial, Defendant was found guilty of all counts. On appeal, Defendant argues that his right to a speedy trial was violated, that the trial court erred by granting the State’s motion in limine to exclude mention of the victim’s immigration status, that the evidence was insufficient to support his conviction for aggravated assault, and that the trial court deprived him of his right to counsel. After a thorough review of the record, we conclude that proper procedure was not followed to secure a waiver of the right to counsel from Defendant and that Defendant did not forfeit his right to counsel. Therefore, we reverse the judgments of the trial court and remand this case for a new trial.

The Defendant, Jason Paul Baker, appeals his conviction for premeditated first degree murder and his sentence of life imprisonment without the possibility of parole. In imposing the sentence, the jury found one aggravating circumstance: the Defendant was previously convicted of one or more felonies with statutory elements involving the use of violence to the person. See T.C.A. § 39-13-204(i)(2). On appeal, the Defendant contends: (1) the evidence established that he was insane at the time of the offense; (2) the evidence is insufficient to support his conviction; and (3) the trial court erred during the penalty phase in allowing the State to rely upon the Defendant’s prior aggravated assault conviction to establish the (i)(2) aggravating circumstance. The State concedes that the trial court erred during the penalty phase, and we agree. Accordingly, we reverse the Defendant’s sentence of life imprisonment without the possibility of parole and remand the case to the trial court for entry of a judgment reflecting a sentence of life imprisonment. We otherwise affirm the judgment of the trial court.

A Greene County jury convicted the Defendant, James Douglas Black, of first degree premeditated murder and first degree felony murder of Courtney Thompson and Terrance Stewart. The trial court imposed concurrent life sentences. On appeal, the Defendant asserts that the evidence is insufficient to support his convictions. After review, we affirm the trial court’s judgments, but we remand for entry of corrected judgments reflecting the merger of certain counts.

Little Hurricane Properties, LLC (“Plaintiff”) filed its Complaint to Remove Cloud on Title and for Injunction against Ralph Cafaro and Margetta Langlois (“Defendants”) in the Chancery Court for Cumberland County (“the Trial Court”). The properties at issue are located in Cumberland and DeKalb Counties. The Trial Court ruled in favor of Plaintiff. Defendants appealed. We hold that, to the extent Plaintiff seeks to quiet title to land in DeKalb County, Cumberland County is not the proper venue. We vacate that element of the Trial Court’s judgment and remand for this case to be transferred to an appropriate court in DeKalb County to address Plaintiff’s action to quiet title to land in that county. Otherwise, we affirm the Trial Court.