APPELLATE COURT OPINIONS

Petitioner, Alvin Malone, was convicted by a Shelby County jury of two counts of first degree felony murder, one count of first degree premeditated murder, and two counts of especially aggravated kidnapping. The first degree murder conviction merged with one of the felony murder convictions, and Petitioner was sentenced to two life sentences and two twenty-year sentences, all running consecutively. This Court affirmed Petitioner’s convictions and sentences on direct appeal. State v. Alvin Malone, No. W2007-01119-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 813, at *73-74 (Oct. 2, 2008), perm. app. denied (Tenn. Mar. 23, 2009). Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel both at trial and on direct appeal. After several evidentiary hearings over an extended period of time, the post-conviction court granted relief in part and denied it in part. As it relates to this appeal, the post-conviction court found that Petitioner had not established deficient performance as to trial counsel’s failure to call two proposed alibi witnesses. The post-conviction court held that Petitioner was not entitled to relief from his convictions. However, the post-conviction court found that Petitioner was prejudiced by both trial and appellate counsel’s failure to object to or raise on appeal the trial court’s imposition of consecutive sentences based on the dangerous offender category without making the requisite findings under State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). The post-conviction court granted relief in the form of a new sentencing hearing solely on the issue of consecutive sentences. Both the State and Petitioner appealed. Upon our review of the record and applicable law, we affirm the post-conviction court’s decision on the issue of the alibi witnesses. However, we find that Petitioner has failed to show by clear and convincing evidence that he was prejudiced by trial and appellate counsel’s failure to raise the Wilkerson issue. Therefore, we reverse the post-conviction court’s judgment on that matter and reinstate Petitioner’s sentences as they were originally ordered by the trial court.

Petitioner, Edward Porecca, filed, through counsel, a “Petition for Relief from Conviction and Sentence” attacking his conviction for rape. He specifically alleged that the petition was instituted pursuant to T.C.A. § 40-30-[102] (for post-conviction relief) and pursuant to T.C.A. § 40-35-308 (for modification, removal, or release from a condition of probation). The twenty-four (24) page petition, plus exhibits, generally alleged that he was entitled to relief under T.C.A. § 40-30-308 because an “exile from Tennessee” condition of his probation is unconstitutional and therefore should be removed. As to grounds for postconviction relief, Petitioner asserted that his trial counsel rendered ineffective assistance of counsel and his guilty plea was not knowingly and voluntarily entered. After an evidentiary hearing the trial court denied relief and dismissed the petition. On appeal, Petitioner has abandoned his claim for post-conviction relief by not presenting that as an issue on appeal. As to the claim that Petitioner is entitled to statutory relief pursuant to T.C.A. § 40-35-308, we conclude that Petitioner is not entitled to relief. Petitioner has failed to show in this record that an “exile from Tennessee” condition exists. Accordingly, we affirm the judgment of the trial court.

A jury convicted the defendant, William Darelle Smith, of first degree (premeditated) murder, and he was sentenced to life in prison. On appeal, this court affirmed the denial of the motion for a new trial.  The defendant appealed a single issue to the Tennessee Supreme Court: that his right to an impartial jury was compromised because the trial court did not hold a hearing after the discovery, during jury deliberations, that a juror was not only acquainted with one of the State’s witnesses but had sent the witness a communication through Facebook complimenting her on her testimony.  The Tennessee Supreme Court concluded that the trial court had erred in refusing to hold a hearing and remanded the case.  After a hearing during which the juror and the witness testified regarding the nature of both their relationship and the communication, the trial court again denied the defendant a new trial.  The defendant appeals.  We conclude that the State sufficiently rebutted any presumption of prejudice raised by the juror’s extrajudicial communication or by his concealment of his acquaintance with the witness, and accordingly we affirm the judgment of the trial court.

Defendant, Alvin Upchurch, was indicted by the Shelby County Grand Jury for one count of aggravated robbery. Following a jury trial, Defendant was convicted as charged. Defendant was sentenced by the trial court to serve 12 years in confinement. Defendant’s sole issue on appeal is whether the sentence imposed was excessive. Having reviewed the record before us, we conclude that Defendant’s sentence was proper. Accordingly, the judgment of the trial court is affirmed.

Defendant, William Edward Arnold, Jr., was indicted by the Davidson County Grand Jury for three counts of aggravated sexual battery and three counts of rape of a child for acts that took place while Defendant was a mentor for the victim through Big Brothers Big Sisters.  Prior to trial, Defendant sought to introduce evidence of the victim’s prior sexual knowledge pursuant to Tennessee Rule of Evidence 412.  The trial court granted the motion in part but prohibited the introduction of any extrinsic evidence at trial.  At the conclusion of the proof at trial, the trial court granted a motion for judgment of acquittal on two counts of aggravated sexual battery, finding them “impossible” under the facts as presented to the jury.  The jury convicted Defendant of the remaining charges: one count of aggravated sexual battery and three counts of rape of a child.  The trial court denied the motion for new trial and sentenced Defendant to an effective sentence of twenty-five years.  On appeal, Defendant challenges the trial court’s denial of the motion for judgment of acquittal as to the counts for which he was found guilty, the denial of the motion for new trial, and the trial court’s ruling on the admissibility of evidence under Tennessee Rule of Evidence 412.  After a thorough review of the record, the applicable authorities, and the issues, we determine the evidence is sufficient to support the convictions, and the trial court properly denied the motion for judgment of acquittal.  Further, we determine that the trial court properly determined that specific instances of conduct of prior sexual behavior of the victim were not admissible under Rule 412(c)(4).  Additionally, we agree with the trial court’s determination that due process permitted the victim to be subject to cross-examination, limited by Tennessee Rule of Evidence 608.  Accordingly, the judgments of the trial court are affirmed.

Defendant, William Edward Arnold, Jr., was indicted by the Davidson County Grand Jury for three counts of aggravated sexual battery and three counts of rape of a child for acts that took place while Defendant was a mentor for the victim through Big Brothers Big Sisters.  Prior to trial, Defendant sought to introduce evidence of the victim’s prior sexual knowledge pursuant to Tennessee Rule of Evidence 412.  The trial court granted the motion in part but prohibited the introduction of any extrinsic evidence at trial.  At the conclusion of the proof at trial, the trial court granted a motion for judgment of acquittal on two counts of aggravated sexual battery, finding them “impossible” under the facts as presented to the jury.  The jury convicted Defendant of the remaining charges: one count of aggravated sexual battery and three counts of rape of a child.  The trial court denied the motion for new trial and sentenced Defendant to an effective sentence of twenty-five years.  On appeal, Defendant challenges the trial court’s denial of the motion for judgment of acquittal as to the counts for which he was found guilty, the denial of the motion for new trial, and the trial court’s ruling on the admissibility of evidence under Tennessee Rule of Evidence 412.  After a thorough review of the record, the applicable authorities, and the issues, we determine the evidence is sufficient to support the convictions, and the trial court properly denied the motion for judgment of acquittal.  Further, we determine that the trial court properly determined that specific instances of conduct of prior sexual behavior of the victim were not admissible under Rule 412(c)(4).  Additionally, we agree with the trial court’s determination that due process permitted the victim to be subject to cross-examination, limited by Tennessee Rule of Evidence 608.  Accordingly, the judgments of the trial court are affirmed.

A jury convicted the defendant, William Darelle Smith, of first degree (premeditated) murder, and he was sentenced to life in prison.  On appeal, this court affirmed the denial of the motion for a new trial.  The defendant appealed a single issue to the Tennessee Supreme Court: that his right to an impartial jury was compromised because the trial court did not hold a hearing after the discovery, during jury deliberations, that a juror was not only acquainted with one of the State’s witnesses but had sent the witness a communication through Facebook complimenting her on her testimony.  The Tennessee Supreme Court concluded that the trial court had erred in refusing to hold a hearing and remanded the case.  After a hearing during which the juror and the witness testified regarding the nature of both their relationship and the communication, the trial court again denied the defendant a new trial.  The defendant appeals.  We conclude that the State sufficiently rebutted any presumption of prejudice raised by the juror’s extrajudicial communication or by his concealment of his acquaintance with the witness, and accordingly we affirm the judgment of the trial court.

This is an interlocutory appeal regarding the trial court’s denial of the defendants’ motions for summary judgment. The plaintiffs filed this lawsuit following a shooting that occurred on December 24, 2011, outside Club Fathom in Chattanooga, a youth outreach ministry operated by two of the defendants. The defendants moved for summary judgment. The trial court denied their motions, and the defendants sought and were granted an interlocutory appeal. We determine that the court erred in failing to grant summary judgment to the defendants regarding the plaintiffs’ negligence claims. We therefore reverse the judgment of the trial court. We remand the case for entry of summary judgment regarding the plaintiffs’ negligence claims and for a determination regarding the remaining lease issue.

Father brought suit against Son in general sessions court for repayment of certain alleged debts. After Father’s case was dismissed, he appealed to circuit court, which also dismissed Father’s claims after a trial.  Based on the record on appeal, sufficient facts exist to support the trial court’s determination, and the decision of the trial court is affirmed.

This is an appeal from a three-day divorce trial. The trial court classified and valued the parties’ assets and divided the marital estate. The court awarded the wife $2,000 per month in transitional alimony for a period of 14 months, and it denied the parties’ requests for attorney’s fees. The wife appeals, challenging the trial court’s classification and valuation of certain assets, the alimony award, and the trial court’s decision to deny her request for attorney’s fees. Discerning no error, we affirm.

Plaintiff/Appellee Mark Andrew Miller (“Father”) filed a petition for contempt against Defendant/Appellant Annie Elizabeth Miller(“Mother”). After conducting a hearing, the trial court found Mother guilty of two counts of criminal contempt. Mother appealed asserting that the trial court lacked jurisdiction over the matter or, alternatively, that the evidence did not support a finding that she acted willfully. Although we conclude that the trialcourthad jurisdiction to adjudicate Father’s petition for contempt,we agree with Mother that the contempt convictions should be overturned. We reverse.

This is a termination of parental rights appeal brought by the incarcerated father. The trial court found clear and convincing evidence to support termination of the father’s parental rights on the statutory grounds of abandonment and confinement under a sentence of ten years or more. The court further found that termination of the father’s parental rights was in the best interest of the children. The father appeals. We affirm.

The Petitioner, Grover D. Cowart, appeals the habeas corpus court’s summary dismissal of his petition for writ of habeas corpus, or, in the alternative, motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner contends that (1) the judgments of conviction in Case No. 50934 are void; (2) the judgment of conviction in Count 1 of Case No. 50934 is too “indefinite nd ambiguous” to run consecutively to his conviction in Case No. 49900; (3) the judgments of conviction in Counts 2 and 3 in Case No. 50934 are too “indefinite, uncertain, and ambiguous” to run consecutively to Count 4 in Case No. 49900; and (4) the sentences in Case No. 50934 are expired. Discerning no error, we affirm the summary dismissal of the Petitioner’s petition.

This is an irreconcilable differences divorce case. The trial court entered a final judgment of divorce that incorporated the parties’ mediated marital dissolution agreement. Shortly thereafter, Husband filed a motion to set aside or to alter or amend the final judgment, claiming he was under duress when he entered into the marital dissolution agreement and also claiming that the trial court was required to conduct a hearing before entering the final judgment. The trial court disagreed and denied Husband’s motion. We affirm.

An employee injured her shoulder while working for her employer and failed to make a meaningful return to work. The Claims Commission awarded the employee 55% permanent partial disability. The employer appealed, arguing that the award is excessive 1 because the Commissioner erred in assessing an 11% anatomical impairment rating and in applying a five times multiplier. We modify the Commissioner’s judgment, and affirm as modified.

The Defendant, William Bryan Gatlin, was convicted by a Marshall County Circuit Court jury of possession of marijuana with the intent to sell and possession of marijuana with the intent to deliver, Class E felonies, and possession of drug paraphernalia, a Class A misdemeanor.  See T.C.A. §§ 39-17-417(a)(4) (possession of a controlled substance) (Supp. 2012) (amended 2014), 39-17-425 (possession of drug paraphernalia) (2014).  The trial court merged the possession of marijuana convictions.  The Defendant was sentenced to serve two years for the merged possession of marijuana conviction and eleven months, twenty-nine days for possession of drug paraphernalia.  The sentences were imposed consecutively to each other and to any unexpired sentence.  On appeal, the Defendant contends that the trial court erred in denying his motion to suppress evidence obtained during a knock-and-talk encounter and a warrantless entry into his apartment and that the judgments should be reversed because without the illegally obtained evidence, the remaining evidence is insufficient to support his convictions.  We affirm the judgments of the trial court.

This appeal involves various financial issues relative to a divorce. Husband appeals the trial court’s determination of several factual findings relative to alimony, including Wife’s ability to secure employment, Husband’s ability to earn in the future, the award of attorney’s fees to Wife, and the value of several marital assets divided in the property division, including the value of an LLC jointly owned by the parties. Wife also appeals the trial court’s determination of value and the division of the parties’ joint interest in the LLC, which the trial court awarded to Husband without assigning a value. We vacate the judgment of the trial court and remand for appropriate findings of fact and conclusions of law.

The defendant, Albert Jackson, was convicted by a Shelby County Criminal Court jury of attempted voluntary manslaughter, a Class D felony; aggravated assault, a Class C felony; employing a firearm during the commission of a felony, a Class C felony; reckless endangerment with a deadly weapon, a Class E felony; and felon in possession of a handgun, a Class E felony. He was sentenced to an effective term of twenty-four years in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

The Petitioner, Frederick O. Edwards, appeals the Weakley County Circuit Court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The Petitioner contends that the trial court erred by treating his Rule 36.1 motion as a petition for post-conviction relief and further asserts that he has presented a colorable claim for relief. We agree that the trial court’s treatment of the Petitioner’s motion to correct an illegal sentence as a petition for post-conviction relief was error, but because we conclude that the Petitioner has not presented a colorable claim, the trial court’s order denying relief is affirmed.

Patient brought a health care liability action against his eye surgeon, alleging that the surgeon’s negligence in performing a LASIK procedure resulted in several eye injuries. The trial court granted a directed verdict for the surgeon, finding the patient failed to present evidence establishing the standard of care and causation. Because we find the evidence was sufficient to create an issue for the jury, we reverse and remand to the trial court.

Defendant appeals a judgment holding that he ran a stop sign, contending that the court did not have subjectmatter or in personam jurisdiction over the matter, and that the Metropolitan Government of Nashville and Davidson County lacked standing to bring the action. We affirm the decision of the trial court.

The defendant, Andrew Barry Diebold, entered pleas of guilty to possession of marijuana with the intent to manufacture, deliver, or sell and possession of drug paraphernalia. He was sentenced, respectively, to two years as a standard offender, to serve ninety days, with one year and nine months of unsupervised probation, and to ninety days at 75%. As a condition of his pleas, he reserved as a certified question if the warrantless search of his backpack by a law enforcement officer was illegal. The search was made by the defendant’s father, who was a lieutenant with the Brownsville Police Department, as the backpack was in the passenger side of the father’s truck, which the defendant had been operating. We conclude that the certified question is not dispositive of the case and, therefore, dismiss the appeal.

A hearing panel of the Board of Professional Responsibility determined that an attorney failed to act diligently in his representation of a client and suspended the attorney from the practice of law for forty-five days. The trial court affirmed the suspension. After careful consideration, we affirm the judgment of the trial court.

In this detainer action, the trial court granted summary judgment in favor of the loan servicing company. Discerning no error, we affirm.

In December 2011, Chad Seigmund (“Employee”) was involved in a motor vehicle accident in the course of his employment. His employer, Bellsouth Telecommunications, LLC (“Employer”) provided medical treatment but denied that Employee sustained permanent impairment or disability. Following a trial, the trial court found that Employee had sustained permanent disability and awarded Employee 16.5% permanent partial disability to the body as a whole. Employer has appealed, contending that the evidence preponderates against the permanent disabilityfinding. In accordance with 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. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.