APPELLATE COURT OPINIONS

This is a termination of parental rights case. Appellants appeal the trial court’s termination of their parental rights to three minor children on the grounds of: (1) abandonment by failure to provide suitable housing; (2) persistence of the conditions that led to the removal of the children from Appellants’ home; and (3) severe child abuse. As to Appellant/Mother, the trial court also found that Appellee, the Department of Children’s Services, had proven, by clear and convincing evidence, that mother failed to substantially comply with the requirements set out in the permanency plan; mother appeals the termination of her parental rights on this additional ground. Appellants also appeal the trial court’s determination that termination of their parental rights is in the best interests of the children. Discerning no error, we affirm and remand.

Defendant, Randall T. Beaty, was indicted for first degree felony murder and aggravated child abuse.  After a jury trial, he was convicted of reckless homicide and aggravated assault, which were charged to the jury as lesser included offenses.  He received consecutive sentences of four years for reckless homicide and six years for aggravated assault, for an effective ten-year sentence to be served in the Department of Correction.  On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by allowing Detective Bachman to testify in violation of the rule of sequestration; (3) that the trial court erred by excluding a proffer by Amber Peveler; (4) that the trial court erred in failing to merge his convictions on double jeopardy grounds; and (5) that the trial court erred by ordering consecutive sentencing.  As to the alleged violation of the rule of sequestration, we hold, pursuant to State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010), that the State had the rightunder Tennessee Rule of Evidence 615 to designate an investigating officer as exempt from sequestration and the designated investigating officer can remain in the courtroom during the testimony of other witnesses.  We further recognize, as a matter of plain error, that the jury’s verdict for aggravated assault failed to specify the mens rea with which the Defendant acted, and we conclude that the Defendant’s judgment of conviction for knowing aggravated assault, a Class C felony, must be modified to reflect a conviction for reckless aggravated assault, a Class D felony.  We, therefore, modify the conviction in Count 2 to a Class D felony reckless aggravated assault, find sufficient evidence to support the conviction, and modify Defendant’s sentence in Count 2 to four years’ incarceration to be served consecutively to the four year sentence for reckless homicide. We also conclude that the conviction for reckless aggravated assault does not merge with the conviction for reckless homicide.  All other aspects of Defendant’s convictions are affirmed.

After an unsuccessful motion to dismiss the indictment against him, the Defendant, Franklin Childs, Jr., pled guilty to one count of promoting the manufacture of methamphetamine and sought to reserve a certified question of law.   See Tenn. R. Crim. P. 37(b)(2).  In this appeal, he attempts to challenge the trial court’s refusal to grant his pre-trial motion to dismiss, alleging that the State’s failure to preserve evidence foreclosed his right to a fundamentally fair trial and that dismissal of the indictment was the only appropriate remedy.  Following our review, we conclude that we do not have jurisdiction to decide this appeal because the issue presented is not dispositive.  Consequently, the appeal is dismissed.

I respectfully dissent from that portion of the majority's opinion which modifies a judgment to impose a conviction for a lesser included offense even though there is legally sufficient evidence to sustain the conviction for the greater offense.  I concur in all other aspects of the majority’s opinion.

In this probate action, the executrix proposed to distribute the decedent’s real and personal property in a manner that she claimed was in accordance with the decedent’s Last Will and Testament (“Will”). One beneficiary, one of the decedent’s three adult children, objected, claiming that the decedent had granted her an option to purchase one parcel of real property owned by the decedent. The trial court determined that the real property in question was an asset of the probate estate and that the executrix could administer it in accordance with the decedent’s Will. The trial court also determined that a settlement agreement executed by the decedent’s three children precluded the claim of an option to purchase. The beneficiary appealed. Discerning no reversible error, we affirm the judgment of the trial court.

In this property dispute involving two sisters, the plaintiff instituted the action, seeking to set aside a recorded deed on the basis that the instrument contained a forged signature. The defendant’s counsel, who filed an answer to the complaint, was attorney of record at the time of the trial. On the date of trial, the defendant’s counsel did not appear in court because he had been recently suspended from the practice of law, a fact unknown to the defendant until she appeared for trial. When the trial court elected to proceed with the hearing, the defendant represented herself. Upon the conclusion of the trial, the trial court announced its decision in favor of the plaintiff, determining that the deed contained a forged signature and ordering that the deed be set aside. The court also ordered that the defendant pay all costs, including the expense for the plaintiff’s expert witness. The defendant subsequently retained new counsel, who filed a motion for new trial. The motion was denied. The defendant appeals. Determining that the trial court erred in failing to order a continuance of the trial, we vacate the judgment of the trial court and remand for a new trial on the merits.

The defendant, Rebekah Dearmond, appeals from her Maury County Circuit Court guilty-pleaded conviction of second offense driving under the influence (“DUI”), claiming that the trial court erred by denying her motion to suppress.  Because the defendant failed to properly preserve a certified question of law for our review, the appeal is dismissed.

Aimee Denise Wallace (“the Defendant”) pleaded guilty to one count of possession of drug paraphernalia and requested that she be placed on judicial diversion. The trial court, after acknowledging that the Defendant was a “qualified defendant” for judicial diversion under Tennessee Code Annotated section 40-35-313(a)(1)(B)(i), denied the Defendant’s request based solely upon the fact that she had a prior conviction for a class A misdemeanor. On appeal, the Defendant asks this court to reverse the trial court’s order denying judicial diversion, conduct a de novo review, and order that the Defendant be placed on judicial diversion. The State concedes that the trial court erred. After review, we conclude that the trial court erred because it denied judicial diversion without considering and weighing all the relevant factors. Because the trial court failed to conduct an evidentiary hearing, the record before us is not sufficient for us to conduct a de novo review. The judgment of the trial court is reversed and remanded for reconsideration and a hearing on the issue of judicial diversion.

We granted permission to appeal in this case to determine whether a criminal defendant who pleads guilty may later seek to overturn his plea via a petition for writ of error coram nobis filed pursuant to Tennessee Code Annotated section 40-26-105. Although this Court held in Wlodarz v. State, 361 S.W.3d 490 (Tenn. 2012), that guilty pleas may be subject to a collateral attack via a petition for writ of error coram nobis, we now overturn that decision. We hold that the statute setting forth the remedy of error coram nobis in criminal matters does not encompass its application to guilty pleas. Accordingly, we affirm the judgment of the Court of Criminal Appeals on the separate grounds stated herein.

I respectfully disagree with the Court’s decision. In my view, this Court should apply the doctrine of stare decisis, adhere to its previous reasoning in Wlodarz v. State, 361 S.W.3d 490 (Tenn. 2012), and hold that the writ of error coram nobis under Tennessee Code Annotated section 40 26 105 (2014) may be used in a collateral attack on a guilty plea. 

The Petitioner, Howard Hawk Willis, appeals the Washington County Criminal Court's summary dismissal of his pro se petition for writ of error coram nobis. The Petitioner seeks relief from his two premeditated first degree murder convictions and the resulting sentences of death, arguing (1) the coram nobis court abused its discretion in summarily dismissing his petition without taking into account due process considerations; (2) the coram nobis court's grounds for dismissal were erroneous; and (3) his pro se petition satisfied the coram nobis pleading requirements and, to the extent that it did not, he should be granted an evidentiary hearing given the pro se nature of the petition. Upon review, we affirm the judgment of the coram nobis court.

The plaintiff filed this case against an adult defendant and his parents, after the adult defendant allegedly attacked the plaintiff. The trial court granted parents’ motion to dismiss, concluding that no special relationship existed between the adult defendant and his parents that would confer a duty on parents to control the adult defendant, a guest in parents’ home. Discerning no error, we affirm.

Defendant in detainer action appeals the grant of summary judgment to Plaintiff. In ruling on the motion, the trial court declined to consider testimony from four depositions taken in related federal lawsuits which Defendant argued established disputed issues of material facts and precluded summary judgment. We have determined that three of the four depositions were not admissible and the fourth should have been admitted. Considering the record, we affirm the grant of summary judgment.  

Intervening plaintiffs appeal from the dismissal of their petition to intervene in this wrongful death action. Discerning no error, we affirm.

The Defendant, Christopher Lindsey, appeals from the trial court's revocation of his community corrections sentence and order that he serve the balance of his sentence in confinement. On appeal, the Defendant contends that the trial court erred in admitting a certified copy of his nolo contendere plea to a shoplifting charge in violation of Tennessee Rule of Evidence 410; that the court erred by “tolling” his community corrections sentence; and that the trial court did not properly calculate his pretrial jail credits or credit for time served on community corrections. Following our review, we affirm the judgments of the trial court. However, we remand this case to the trial court for the correction of inaccuracies in the revocation order relating to the calculation of credit for time-served.

After the trial court denied his motion to suppress, the Defendant, Richard Dale Smith, pled guilty to driving under the influence (“DUI”). See Tenn. Code Ann. § 55-10-401. As a condition of his guilty plea, he sought to reserve the right to appeal a certified question of law challenging the trial court's denial of his motion to suppress. Following our review of the record, we dismiss the appeal because the Defendant failed to properly certify his question of law in accordance with Tennessee Rule of Criminal Procedure 37(b)(2).

A Maury County Circuit Court Jury convicted the Appellant, Lemonique Scherod Johnson, of facilitation of aggravated robbery.  The trial court sentenced the Appellant as a Range III, persistent offender to twelve years in the Tennessee Department of Correction.  On appeal, the Appellant challenges the sufficiency of the evidence sustaining his conviction, contending that the alleged victim was a participant in the robbery, that the evidence did not support a conviction of facilitation aggravated robbery because the victim was not “in fear,” and that the Appellant was not involved in the robbery.  Upon review, we affirm the judgment of the trial court.

A Montgomery County jury convicted the Defendant, Bernard Nelson, of two counts of indecent exposure.  On appeal, the Defendant asserts that the State breached its duty to preserve potentially exculpatory evidence.  The Defendant also contends that the convicting evidence is insufficient to sustain his convictions.  We affirm the trial court’s judgments.

I concur completely in the majority’s opinion terminating the parental rights of Myron J. T. based upon the provisions of Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i). I dissent from so much of the majority’s decision as holds that father does not fall within the ambit of Tenn. Code Ann. § 36-1-113(g)(9)(A) and § 36-1-117(c). I would hold that father is within the class of persons covered by these latter two statutes. On this point, I adhere to the majority opinion authored by me in the case of In re F.N.M., No. M2015-00519-COA-R3-PT, 2016 WL 3126077 (Tenn. Ct. App., filed Apr. 11, 2016).

This appeal arises from a negligence case brought after an automobile accident. James Boshears (“Boshears”) was a passenger in a vehicle driven by his girlfriend that was struck by a vehicle driven by Cleave C. Brooks (“Brooks”). Boshears sued Brooks in the Circuit Court for Anderson County (“the Trial Court”). Boshears alleged that Brooks was negligent in operating his vehicle. Brooks asserted that he suffered a stroke immediately prior to the accident, that he lost consciousness, and that, consequently, he could not be found negligent. The case was tried to a jury. The jury found that Brooks was not at fault. Boshears appealed to this Court. On appeal, Boshears argues that the Trial Court erred in charging the jury with sudden emergency when comparative fault was not raised by Brooks. Boshears also asserts that the Trial Court erred in charging the jury on both sudden emergency and loss of consciousness. We affirm the judgment of the Trial Court.

The defendant, Mark Stephen Williams, appeals the trial court’s revocation of his probation after a revocation hearing at which the defendant was not represented by counsel. He argues that he did not knowingly and voluntarily waive his right to counsel. Following our review, we conclude that the defendant did not execute a knowing and voluntary waiver of his right to counsel. We reverse the judgment of the trial court and remand this case for the appointment of counsel.

This appeal arises from the murder of two teenagers, accompanied by the dismemberment of one of them. A jury convicted the defendant, Howard Hawk Willis, of two counts of premeditated first-degree murder and one count of felony murder in the perpetration of a kidnapping. The jury sentenced the defendant to death on each conviction. The defendant appealed, and the Court of Criminal Appeals affirmed his convictions and sentences. On appeal, the defendant contends, inter alia, that certain incriminating statements he made to his ex-wife should have been excluded because she was acting as an agent of the State at the time the statements were made. He asserts that the admission into evidence of the statements violated his right against self-incrimination under the Fifth Amendment to the United States Constitution and article I, section 9 of the Tennessee Constitution. For purposes of the right against self-incrimination, we hold that this is a case of “misplaced trust” in a confidant and there was no violation of the Fifth Amendment. The defendant also argues that the admission of the statements violated his right to counsel under the Sixth Amendment to the United States Constitution and article I, section 9 of the Tennessee Constitution. The incriminating statements to the ex-wife were made during in-person meetings with her at the jail and during recorded telephone calls from jail. As to statements made to the ex-wife prior to indictment, we hold that the defendant’s Sixth Amendment right to counsel had not attached, so there was no violation regardless of whether the ex-wife was acting as an agent of the State. As to statements made in person to the ex-wife after indictment, the evidence shows only that the State willingly accepted information from a cooperating witness. We hold that, for a cooperating witness or informant to be deemed a “government agent” for purposes of the Sixth Amendment right to counsel, the defendant must show that the principal—the State, personified by law enforcement officers—manifested assent, either explicitly or implicitly, to have the cooperating witness act as a government agent, and that the State had some level of control over the witness’s actions with respect to the defendant. Agency cannot be proven based solely on the actions of the alleged agent, so proof that the ex-wife repeatedly contacted law enforcement is not sufficient in and of itself to show that the State assented to have her act as its agent. Therefore, the admission into evidence of the statements made in person to the ex-wife after indictment did not violate the defendant’s Sixth Amendment right to counsel. As to the incriminating statements made by telephone, we hold that, by placing the telephone calls to his ex-wife from jail with full knowledge that all calls were subject to monitoring and recording, the defendant implicitly consented to the monitoring and recording of his conversations and waived his Sixth Amendment rights. After full review, we affirm the judgments of the trial court and the Court of Criminal Appeals upholding the defendant’s two convictions of first degree murder, and we affirm the sentences of death.

The Petitioner, Ronnie Mills, appeals as of right from the Knox County Criminal Court’s denial of his petition for post-conviction relief. On appeal, he contends that his pleas were unknowing and involuntary due to counsel’s misinforming him regarding the specific terms of his plea agreement with the State and counsel’s subsequent failure to get those terms in writing or object when the alleged agreement was not honored. Following our review, we affirm the judgment of the post-conviction court.

I concur fully with the Court’s opinion except for the analysis in Section II(E)(4) regarding the proportionality review. In 1997, this Court narrowed the scope of the proportionality review required by Tennessee Code Annotated section 39 13 206(c)(1)(D) by limiting its consideration to only those cases in which the death penalty had been sought. State v. Bland, 958 S.W.2d 651, 666 (Tenn. 1997). A majority of this Court reaffirmed this truncated approach in State v. Pruitt, 415 S.W.3d 180, 217 (Tenn. 2013). In Pruitt, I joined Justice William C. Koch, Jr. in dissenting from the Court’s decision to continue following the Bland approach, as it improperly narrows the proportionality review required by Tennessee Code Annotated section 39 13 206(c)(1)(D). Pruitt, 415 S.W.3d at 230 (Koch and Lee, JJ., concurring and dissenting). We determined that the Court should return to its pre-Bland proportionality analysis by considering “all first degree murder cases in which life imprisonment or a sentence of death has been imposed” and focusing on whether the case under review more closely resembles cases that have resulted in the imposition of the death penalty than those that have not. Id. at 230-31 (Koch and Lee, JJ., concurring and dissenting).