APPELLATE COURT OPINIONS

The defendant, Alexander Jackson, was convicted by a Shelby County Criminal Court jury of two counts of rape, which the trial court merged and sentenced him to a term of nine years. On appeal, he argues that his right against self-incrimination was violated by a statement of the prosecutor during closing argument which he asserts amounts to plain error. After review, we affirm the judgment of the trial court.

This appeal involves the termination of a father’s parental rights to his two children. In 2011, the children were adjudicated dependent and neglected, and the children were placed in the custody of their great-grandmother, and later, in the custody of a family friend. After the children had lived with the family friend for three continuous years, the caregiver filed a petition to terminate the father’s parental rights. The trial court terminated the father’s rights on the grounds of abandonment, Tenn. Code Ann. § 36-1-113(g)(1), as defined by both Tenn. Code Ann. § 36-1-102(1)(A)(i) and Tenn. Code Ann. § 36-1-102(1)(A)(iv), for failure to visit and support and for engaging in conduct that exhibits a wanton disregard for the welfare of the children. The court further found termination was in the children’s best interests. We have concluded that the trial court erred by relying on Tenn. Code Ann. § 36-1-102(1)(A)(iv), abandonment by wanton disregard, as a ground to terminate the father’s rights. We also hold that the court erred in terminating the father’s rights on the basis of his failure to support the children. However, the trial court correctly determined that the father abandoned the children by willfully failing to visit. Thus, we affirm the trial court’s judgment in part and reverse in part.

In this appeal as of right, the State challenges the order of the trial court granting the defendant's motion to suppress the evidence obtained during the stop of the defendant and dismissing the driving under the influence charge in this case. Because the community caretaking exception does not apply in this case and because reasonable suspicion did not otherwise justify the stop of the defendant's vehicle, we affirm the judgment of the trial court.

This is Defendant’s, Hollis Fisk, Jr., direct appeal of his robbery conviction and accompanying eight-year sentence in confinement.  He argues that the evidence is insufficient to support the conviction and that the trial court abused its discretion in determining the length of his sentence and by denying an alternative sentence.  We affirm the judgment of the trial court.

The defendant, Norman McDowell, was sentenced to twenty years in confinement by the trial court for the merged convictions of aggravated rape and rape. On appeal, the defendant argues that the trial court improperly enhanced his aggravated rape sentence from the minimum fifteen years to twenty years in violation of the purposes and principles of the Tennessee Criminal Sentencing Reform Act. Following our review of the briefs, the record, and the applicable law, we affirm the twenty year sentence.

The defendant, Anthony Jackson, was indicted for attempted first degree premeditated murder, employing a firearm with intent to commit a felony, and convicted felon in possession of a firearm. After trial, a jury found the defendant guilty of the lesser-included offense of attempted voluntary manslaughter, employing a firearm with intent to commit a felony, and convicted felon in possession of a firearm. The trial court subsequently held a sentencing hearing and imposed sentences of twelve years for attempted voluntary manslaughter, fifteen years for employing a firearm with intent to commit a felony, and fifteen years for convicted felon in possession of a firearm with all sentences to be served consecutively for an effective sentence of forty-two years. On appeal, the defendant argues that there was insufficient evidence to support his convictions, and the trial court imposed an excessive sentence. Following our review, we affirm the judgments of the trial court.

Capital defendant brought a declaratory judgment action seeking to enjoin his execution, asserting that he meets the statutory criteria of being intellectually disabled and, therefore, is ineligible to be sentenced to death. Defendants, the warden of the institution where he is incarcerated and the Tennessee Attorney General, moved to dismiss the complaint on the grounds that the trial court lacked subject matter jurisdiction, that the suit was barred by the doctrine of sovereign immunity, and that the suit failed to state a claim for relief. The trial court granted the motion and dismissed the case. Finding no error, we affirm the holding of the trial court.

Nearly four decades after pleading guilty to rape, armed robbery, burglary, kidnapping, grand larceny, and assault with intent to commit murder, Petitioner, Gregory L. Hatton, filed a petition for writ of error coram nobis.  The trial court summarily dismissed the petition as time-barred.  However, the Tennessee Supreme Court has recently determined that a writ of error coram nobis is not an available procedural mechanism to collaterally attack a guilty plea.  Therefore, we affirm the judgment of the trial court on the separate grounds discussed herein.

The defendant, Prince Dumas, entered a guilty plea to one count of a first offense for driving under the influence (“DUI”), a Class A misdemeanor. As part of the plea, the defendant reserved a certified question of law. The defendant asserts that police initiated a seizure without reasonable suspicion and that because all of the evidence stems from this seizure, he is entitled to have the indictment dismissed. We conclude that the defendant's certified question, as drafted, is not dispositive of the case, and we are accordingly constrained to dismiss the appeal.

The defendant, Andrew Lorenze Allen, appeals his Washington County Criminal Court jury convictions of aggravated child abuse and aggravated child neglect, claiming that the evidence was insufficient to support his convictions. Discerning no error, we affirm.

In 1994, the employee received workers’ compensation benefits and future medical benefits for a work-related cervical spine injury and left carpal tunnel syndrome she sustained in 1991. The year after the employee received workers’ compensation benefits, the physician treating her work-related injury referred the employee to her primary care physician for continued treatment of her work injury. From 1995 to the present, the employee’s primary care physician has treated her work-related injury and other medical problems unrelated to her work. In 2010, the employee underwent two surgeries on her left shoulder and left knee unrelated to her work injuries. In June 2013, the employer filed a motion seeking an independent medical evaluation, which the trial court granted. After receiving the report from the evaluation, the employer filed motions seeking to “de-authorize,” or remove the employee’s treating physician and permission to provide a panel of three pain management physicians for the employee’s future medical treatment. The trial court denied the motions. The employer has appealed from that order. Pursuant to Tennessee Supreme Court Rule 51, the appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. We reverse the judgment of the trial court and remand for proceedings consistent with this decision.

Parties in divorce proceeding entered into an agreement on the day of trial, memorialized in writing, disposing of the marital assets and debts, adopting a parenting plan, and agreeing “as a division of marital assets” that Wife would “receive the sum of $2,100.00 per month directly from Husband’s military pension.” Husband filed motions both before and after the final decree was entered, seeking to modify the agreement by removing the provision that required him to pay $2,100.00 to Wife on the ground that the $2,100.00 payment exceeded fifty percent of his military retirement and included a monthly payment for service-related disability pay. The trial court denied Husband’s motions and he appeals. Finding no error, we affirm the holding of the trial court.

Plaintiff, whose rights of citizenship had been restored, brought action against the state coordinator of elections and election commission for declaratory, injunctive, and other relief, asserting that the Defendants had improperly refused to restore his right to vote. On motion of Defendants, the trial court dismissed the complaint with prejudice for lack of subject matter jurisdiction and failure to state a claim for relief; the court also denied plaintiff’s application to amend his complaint to assert a claim for mandamus. Finding no error, we affirm the dismissal of the complaint and denial of the application to amend; we modify the judgment to make the dismissal without prejudice.  

This appeal arises from a change in the primary residential parent for two minor children. Mother and Father divorced in Oklahoma. After Mother and the children moved to Tennessee, Father petitioned to modify the joint custody plan adopted in the Oklahoma divorce proceeding. Father alleged a material change in circumstance based upon Mother’s violations of the joint custody plan and Mother’s interference with Father’s relationship with the children. Following a hearing, the trial court found a material change in circumstance and that naming Father the primary residential parent was in the best interest of the children. While not contesting that a material change in circumstance occurred, on appeal, Mother asserts that a change in primary residential parent was not in the children’s best interest. After reviewing the record, we do not find the evidence preponderates against the trial court’s best interest findings. We affirm the judgment of the trial court.

This interlocutory appeal arises out of the design and construction of a six-story hotel. The owner of the hotel sued LLW Architects, Inc. for breach of contract based on an AIA Standard Form of Agreement Between Owner and Architect. The owner also asserted claims for professional liability against LLW and its principal architect, Dell Livingston, alleging the breach of a duty of care in carrying out their professional services. The trial court summarily dismissed all claims against LLW and Mr. Livingston as time barred by the three-year statute of limitations for damage to real property: Tenn. Code Ann. § 28 3 105. Portions of the hotel first opened for business on May 30, 2007, and the hotel was approved for final use and occupancy on June 26, 2007. Plaintiff commenced this action on October 20, 2010. The owner-architect agreement states that the statutes of limitations for “[c]auses of action between the parties to this Agreement” begin to run on “the date of Substantial Completion.” The accrual provision also states that “[i]n no event shall such statutes of limitations commence to run any later than the date when the Architect’s services are substantially completed.” The agreement defines “Substantial Completion” as “the stage of progress of the Work when the Work or designated portion thereof is sufficiently complete . . . so that the Owner can occupy or utilize the Work for its intended use . . . .” The agreement also defines “date of Substantial Completion” as “the date certified by the Architect . . . .” The trial court held that the accrual provisions applied to the individual architect because Plaintiff’s claims against him were based on duties specified in the architectural agreement. The trial court also determined that June 1, 2007 was the date of Substantial Completion because the hotel was being used for its intended purpose on that date. We respectfully disagree, having determined that LLW and Mr. Livingston were not entitled to summary judgment because they failed to establish the elements of their affirmative defense based on the statute of limitations. Accordingly, we reverse and remand for further proceedings.

In this divorce action, Father appeals the trial court’s classification of the marital residence as an asset and the division of the marital estate. He also challenges the designation of Mother as the primary residential parent and the residential schedule. For her issue, Mother contends she should be granted exclusive authority to make all major decisions regarding the child due to the parents’ inability to agree upon such matters. We affirm the trial court’s classification and division of the marital estate. We also affirm the designation of Mother as the primary residential parent and the parenting plan with one exception. The parenting plan directs major decisions concerning the child be made jointly by Mother and Father. Because the evidence preponderates in favor of the finding that the parents are unable to agree upon matters concerning the child’s education and non-emergency healthcare, we remand with instructions to modify the parenting plan by awarding Mother sole decision-making authority regarding such matters. See Tenn. Code Ann. § 36-6-407(b) (“The court shall order sole decision-making to one (1) parent when . . . [b]oth parents are opposed to mutual decision making;”).

In this child support arrearage case Jennifer L. Waldo (“Respondent”) appeals the June 24, 2015 order of the Juvenile Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and sentencing Respondent to incarceration in the Roane County Jail with the incarceration held in abeyance so long as Respondent pays at least $50.00 per month toward child support. We find and hold that no evidence was introduced showing that Respondent had the present ability to pay $50.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing her to incarceration held in abeyance was in error. We reverse the Trial Court’s June 24, 2015 order, and we dismiss this case.

The mother of a child born in January 2015 appeals the termination of her parental rights. In March 2015, the two-month-old child was placed in state custody after the Department of Children’s Services received a referral that the child had been exposed to drugs in utero. Thereafter, the juvenile court adjudicated the child dependent and neglected and found that the mother had committed severe child abuse as defined in Tenn. Code Ann. § 37-1-102(b)(21). The mother did not appeal this order. In June 2015, the Department filed a petition for termination of parental rights. After a hearing, the trial court found the evidence clearly and convincingly established that the mother committed severe child abuse and that termination of the mother’s parental rights was in the child’s best interests. We affirm.

Mother appeals the termination of her parental rights to her seventeen-year-old daughter. We have concluded that the Department failed to prove by clear and convincing evidence that it is in the child’s best interest to terminate her mother’s parental rights in part because the child is seventeen years old, is not a candidate for adoption, and intends to maintain a relationship with Mother when she turns eighteen. Therefore, we reverse the termination of Mother’s parental rights to her seventeen-year-old daughter.

Following a jury trial, the Defendant, James Lackey, was convicted of one count of second degree murder, seeTennessee Code Annotated section 39-13-210, for which he received a sentence of twenty-two years to be served at one-hundred percent.  On appeal, the Defendant contends (1) that the evidence was insufficient to support his conviction, arguing that the proof supported a finding that he acted in self-defense, and (2) that the twenty-two year sentence imposed was excessive.  Following our review, we affirm the judgment of the trial court.

This is a termination of parental rights case regarding the parental rights of the mother, Brandy L. (“Mother”) to her minor children, Selena L. and Isabella H., ages five and two respectively when the termination action was filed (collectively, “the Children”). Mother voluntarily placed Selena L. in the custody of a relative in 2009, shortly after the child’s birth. On April 13, 2012, the Hamilton County Juvenile Court (“juvenile court”) placed the Children into the custody of the maternal great-grandmother, Vickie R. (“Petitioner”), upon Petitioner’s filing an action for custody. On August 25, 2014, Petitioner filed petitions in the Bradley County Circuit Court (“trial court”) seeking to terminate the parental rights of Mother and to adopt the Children. Following a bench trial, the court terminated Mother’s parental rights to the Children after determining by clear and convincing evidence that Mother had abandoned the Children by: (1) willfully failing to visit them, (2) willfully failing to financially support them, and (3) exhibiting a wanton disregard toward their welfare. The trial court further found by clear and convincing evidence that terminating Mother’s parental rights was in the best interest of the Children. Mother has appealed. We reverse the trial court’s finding that Mother abandoned the Children by willfully failing to support them during the determinative four-month period. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s parental rights to the Children.

The trial court terminated Father’s parental rights on grounds of substantial noncompliance with a permanency plan and persistent conditions. The trial court also found that termination was in the child’s best interest. Discerning no error, we affirm.

The petitioner, Deandre Blake, appeals the post-conviction court's denial of his petition for post-conviction relief in which he challenged his convictions for two counts of felony first degree murder and resulting life sentence. On appeal, the petitioner contends that he received ineffective assistance of counsel at trial. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

Following a jury trial in 1992, the Defendant, David Cloar, was found not guilty by reason of insanity on two counts of first degree murder. The Defendant was then involuntarily committed to the Middle Tennessee Mental Health Institute pursuant to Tennessee Code Annotated section 33-7-303(c). The Defendant now appeals from the trial court’s order denying his discharge, following a ninety-day furlough to a residential group home, from involuntary commitment. The Defendant contends that it was not established by clear, unequivocal, and convincing evidence that he was ineligible for discharge under the applicable statute. Following our review, we reverse the judgment of the trial court and remand this case for the entry of an order discharging the Defendant pursuant to the discharge plan submitted by the Middle Tennessee Mental Health Institute.

The Defendant, Brian Lee Webb, was convicted by a Benton County jury of rape of a child (Count 1) and aggravated sexual battery (Count 2). He was sentenced to a concurrent term of forty years' confinement for the child rape conviction and twelve years' confinement for the aggravated sexual battery conviction, for an effective sentence of forty years in the Tennessee Department of Correction (TDOC). On appeal, the Defendant argues that the evidence is insufficient to sustain his convictions and that the trial court erred in not considering certain mitigating evidence in sentencing. Because neither the record nor the judgment reflects service of the aggravated sexual battery conviction at 100% as mandated by statute, we are compelled to remand Count 2 for entry of corrected judgment. In all other respects, we affirm the judgments of the trial court.