APPELLATE COURT OPINIONS

The Petitioner, Billy Coffelt, appeals the Davidson County Criminal Court’s denial of post-conviction relief from his convictions for aggravated assault, three counts of misdemeanor theft, four counts of false imprisonment, and felony escape. In his appeal, the Petitioner argues that he received ineffective assistance of counsel based upon allegations that Counsel failed to move for an election of offenses; failed to pursue a claim based on the dismissal of one of the Petitioner’s co-defendant’s charges on appeal; and failed to request a jury instruction on the “natural and probable consequences” rule for criminal responsibility or raise it as a ground for relief on direct appeal.   Upon review, we affirm the judgment of the post-conviction court.

The defendant, Michael Lynn Poston, appeals his White County Criminal Court jury conviction of aggravated sexual battery claiming that (1) the trial court erred by denying his motion for recusal; (2) the trial court erred by denying his motion for change of venue; (3) the trial court erred by failing to swear the victim prior to her testimony; (4) the trial court erred by admitting certain hearsay testimony; (5) the evidence was insufficient to support his conviction; and (6) the sentence was excessive.  Discerning no error, we affirm the judgment of the trial court.

In 2011, the defendant, a priest, was found guilty after a trial by jury of one count of first degree criminal sexual conduct and two counts of aggravated rape. The charges stemmed from conduct that occurred in 1979 and 1980, while the victim attended a school associated with the church. The defendant was sentenced to an overall effective sentence of thirty-five years. On appeal, the defendant claims that the trial court erred by refusing to dismiss his indictment because forcing him to stand trial more than thirty years after the crimes were committed violated his due process rights under the federal and state constitutions. However, reviewing these facts in light of the relevant test governing unconstitutional “preaccusatorial” delay set forth in State v. Gray, 917 S.W.2d 668 (Tenn. 1996), we hold that the thirty-two year delay in the defendant’s prosecution did not violate the constitutional rights of the defendant. The defendant also claims that the trial court committed errors with respect to myriad evidentiary and procedural matters relating to his motion to dismiss. Upon review, we conclude that the defendant has failed to establish entitlement to relief on any of these claims. Finally, the defendant claims that the trial court erred by failing to give special jury instructions concerning the need to corroborate the testimony of the victim of a sex crime, as if the victim were the defendant’s criminal accomplice. However, in State v. Collier, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013), our supreme court recently overruled all of the cases on which the defendant relies, and no ex post facto concerns prohibit this court from relying on Collier to deny the defendant’s claim. Consequently, the judgments of the trial court are affirmed.

Appellant, George P. Fusco, pleaded guilty to two counts of sexual battery by an authority figure and received a five-year sentence for each count, to be served concurrently.  He served six months in confinement, and the remainder of his sentence was suspended to probation. A violation of probation warrant was subsequently filed, alleging that appellant drove an unregistered vehicle, owed $420 in “GPS fees,” used or possessed an alcoholic beverage, and violated regulations regarding Halloween trick-or-treaters.  The trial court revoked his probation, and this appeal follows.  Appellant now alleges that the trial court denied him procedural due process by failing to make adequate factual findings regarding the evidence supporting his probation revocation, that the trial court abused its discretion when it revoked his probation, and that the relevant Halloween probation conditions are unduly restrictive. Following our review, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

A Shelby County Criminal Court Jury convicted the appellant, Mateem Hudson, of second degree murder, a Class A felony, and the trial court sentenced him to twenty-three years in confinement to be served at 100%. On appeal, the appellant contends that the trial court erred by allowing the State to introduce evidence about his other bad acts and that the evidence is insufficient to support the conviction. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

Anna Lois Long (“petitioner”) obtained an ex parte order of protection against Sammy Lee Brown (“respondent”), the man with whom she had lived for approximately 27 years. Following a hearing, the trial court entered a mutual order of protection for a period of one year. Petitioner argues on appeal that the trial court erred in making the order of protection mutual and that the order was unlawful because it did not comport with the requirements of the governing statutory scheme, Tenn. Code Ann. § 36-3-601 et seq. (2010). We hold that the trial court erred when it made the order of protection mutual in view of the fact the respondent did not seek an order of protection. The order should be modified so as to be directed only against respondent. We further hold that the trial court’s order should also be modified to include “the statement of the maximum penalty that may be imposed pursuant to § 36-3-610 for violating [the] order” as required by Tenn. Code Ann. § 36-3-606(c). We conclude that the court’s order in all other respects satisfies the statutory requirements governing an order of protection. Accordingly, we affirm the trial court’s judgment as modified.

Appellant, Ashley Aaron Selke, pleaded guilty to two counts of burglary and received a two-year sentence for each count, to be served concurrently.  The record reflects that appellant received pretrial jail credit for time served in confinement, and the remainder of his sentence was suspended to probation.  A violation of probation warrant was subsequently filed, alleging that appellant had committed new offenses while on probation.  The trial court revoked his probation, and this appeal follows.  Appellant now alleges that the trial court abused its discretion by ordering appellant to serve the remainder of his sentence in confinement rather than extending appellant’s probation or placing appellant in the community corrections program.  After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

The plaintiff, a licensed attorney, filed this pro se third party action two weeks before his death on May 17, 2012. The defendants filed a suggestion of death under Tenn. R. Civ. P. 25.01. When no motion for substitution was filed during the prescribed time period, the defendants filed a motion to dismiss. At the hearing on the motion, the decedent’s surviving spouse, who had practiced law with him, appeared by telephone and informed the trial court that she was not a party and was not representing the decedent or his estate with respect to the plaintiff’s third party complaint. Despite these representations, she asserted that the court should hear her argument as to why her late husband’s action should not be dismissed. The trial court dismissed the action for failure to timely seek substitution of party, and also granted defendants’ motion for judgment on the pleadings. The surviving spouse filed a notice of appeal. We hold that the defendants provided proper notice under Rule 25.01 by mailing a copy of the suggestion of death to the law firm address of decedent and his surviving spouse. We further hold that decedent’s surviving spouse did not have standing to file this appeal because (1) she was not a party, (2) did not represent her decedent husband, and (3) did not represent his estate, which had not been opened when the trial court entered its final judgment. We affirm the judgment of the trial court and dismiss this appeal.

Petitioner, Dean Heath, filed a petition for writ of error coram nobis concerning his convictions in the Shelby County Criminal Court for first degree murder with a sentence of life imprisonment and for especially aggravated robbery with a sentence of 25 years to be served concurrently with the life sentence. The petition was dismissed without an evidentiary hearing, and Petitioner appeals. We affirm the judgment of the trial court.

This case results from a county employee’s assertion that the county’s decision to require some employees to contribute to their insurance premiums, while not requiring a contribution from others, violates equal protection. The trial court granted summary judgment to the county, concluding that the legislation was rationally related to a legitimate government interest. After a thorough review of the record, we affirm and remand.

In 1990, the petitioner was convicted of robbery with a deadly weapon, second degree burglary, and aggravated rape. He received an effective sentence of twenty-five years. His convictions were affirmed on direct appeal and in post-conviction litigation. In 2010, the petitioner filed a Motion for Post-Conviction DNA Testing of a knife believed to have been brandished during the crimes, and the post-conviction court denied the motion after a non-evidentiary hearing. This court remanded the case to the post-conviction court for reconsideration in light of Powers v. State, 343 S.W.3d 36, 56 (Tenn. 2011). On remand, the post-conviction court conducted another hearing and again denied the motion. On appeal, the defendant claims that the post-conviction court erred by: (1) finding that the knife at issue was not in adequate condition to permit DNA testing; and (2) holding that exculpatory results would have been insufficient to establish a reasonable probability that the defendant would not have been prosecuted or convicted of the crimes. After review, we agree that the post-conviction court applied incorrect legal standards and reached erroneous results when it made these determinations. Using the correct legal standards as set forth by our supreme court in Powers, the defendant has established his entitlement to DNA testing of the knife handle. The judgment of the post-conviction court is reversed, and the case is remanded to the post-conviction court for entry of an order granting the request for DNA analysis.

Petitioner, Willie Lewis Tolbert, pleaded guilty to two counts of robbery, one count of carjacking, and one count of unlawful possession of a weapon. Pursuant to petitioner’s plea agreement, the trial court imposed a sentence of eight years. Petitioner applied for probation, which the trial court denied, and the trial court ordered petitioner to serve his sentence in confinement. Petitioner filed the instant petition for post-conviction relief, in which he alleged that he received ineffective assistance of counsel and that his guilty plea was not entered knowingly, voluntarily, and intelligently. Following an evidentiary hearing, the post-conviction court denied relief. On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel: (1) failed to properly communicate with petitioner prior to his guilty plea submission hearing; (2) failed to adequately advise petitioner regarding whether he would receive probation; and (3) made an incorrect prediction that petitioner’s case would be dismissed in general sessions court. He further argues that these errors rendered his guilty plea involuntary. After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

I write separately to express my opinion that the result of this case is mandated by the following language in Powers v. State, 343 S.W.3d 36, 55 (Tenn. 2011):

The defendant, Gary S. Holman, stands convicted of aggravated burglary, employing a firearm in the commission of a dangerous felony, false imprisonment, first degree felony murder, and especially aggravated robbery. He is currently serving an effective sentence of life plus eleven years. On appeal, the defendant contends that: (1) the trial court erred by not allowing extrinsic evidence to be used to impeach a witness under Tennessee Rules of Evidence Rule 613(b);(2) that the trial court erred by allowing prejudicial photographs of a victim into evidence; and (3) that the evidence is insufficient to support his convictions. Following review of the record, we conclude that the evidence is sufficient to support the convictions. However, the petitioner’s remaining two issues are waived for failure to prepare an adequate record on appeal. As such, the judgments of conviction are affirmed.

In 2007, a Fayette County jury found petitioner guilty of two counts of rape and one count of sexual battery. The trial court sentenced him to an effective sentence of twenty years in the Tennessee Department of Correction. This court denied petitioner’s direct appeal, and he subsequently filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel. He now appeals from the post-conviction court’s order denying relief. Petitioner contends that he received ineffective assistance of counsel when counsel failed to object to evidence that petitioner had been admitted to a mental health facility and when counsel did not appeal the trial court’s denial of his motion to suppress certain statements. Following our careful review, we affirm the judgment of the post-conviction court.

Although I agree with most of the conclusions set forth in the majority opinion, in my view, the trial court’s failure to instruct the jury properly pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012), constitutes plain error. Therefore, I would reverse the defendant’s conviction for false imprisonment and remand the case to the trial court for a new trial as to that offense.

The Petitioner, Ronald Yates, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his convictions for first degree murder and attempt to commit first degree murder and his sentence of life plus twenty-three years. The Petitioner contends that he received the ineffective assistance of appellate counsel. We affirm the judgment of the trial court.

This is an appeal as of right by the State after dismissal of charges following the trial court’s order which granted the motion to suppress evidence filed by Defendant, Michael A. Talley.  The evidence which was ultimately suppressed had been seized pursuant to a search warrant.  Defendant’s motion asserted that the affidavit filed in support of the issuance of the search warrant lacked probable cause to justify the search.  Following a hearing, the trial court took the matter under advisement.  Ultimately the trial court entered an order granting the motion to suppress and subsequently entered an order which dismissed the cases in Docket No. 21635 in the Circuit Court of Maury County “[d]ue to suppression of the evidence.”  After a thorough review of the law and the entire record, we affirm the judgment of the trial court. 

This boundary line dispute involves a five-acre parcel of real property (“Disputed Property”) in McMinn County to which the petitioner and respondent, who own adjoining parcels, both claim ownership. The petitioner filed a petition to quiet title, requesting that she be declared the owner of the Disputed Property, and for declaratory judgment as to damages she claimed as a result of the respondent’s alleged trespass, encroachment, and harvesting of timber. The respondent filed a counter-petition, alleging that he was the rightful owner of the Disputed Property; raising affirmative defenses of waiver/estoppel, champerty, and adverse possession; and requesting damages for the petitioner’s alleged encroachment and destruction of boundary markers. Following a bench trial, the trial court declared the petitioner the owner of the Disputed Property, dismissed the respondent’s counter-petition, and dismissed all claims for damages. The respondent appeals. We affirm the trial court’s finding that title to the Disputed Property is vested in the petitioner. We determine, however, that the respondent has established the statutory defense of adverse possession, pursuant to Tennessee Code Annotated § 28-2-103 (2000), only to the extent that certain improvements encroach upon the Disputed Property, and we reverse upon this ground. We remand to the trial court for determination as to the extent of the encroachments. We affirm the trial court’s judgment in all other respects.

The defendant, Antonio Marques Peebles, appeals his Davidson County Criminal Court jury conviction of aggravated robbery, claiming that the trial court erred by denying his motion to suppress the statements he made to law enforcement officers and the evidence obtained following his arrest, that the evidence was insufficient to support his convictions, and that the sentence imposed was excessive.  Discerning no error, we affirm.

Pursuant to his guilty-pleaded convictions, appellant, Alex Wayne Gibson, was sentenced to four years, suspended to probation, for aggravated burglary and several misdemeanor charges. A probation violation warrant was issued that alleged several technical violations as well as a failed drug screen. Following a probation revocation hearing, the trial court revoked appellant’s probation and ordered execution of the four-year sentence. It is from this order that he now appeals. Upon our review, we affirm the judgment of the trial court.

We granted Christopher Vance Smalling’s (“Husband”) application for extraordinary appeal pursuant to Tenn. R. App. P. 10 to consider issues related to his suit for divorce from his wife Sarah Rebecca Smalling (“Wife”). This divorce case reached an unexpected impasse when the Chancery Court for Sullivan County (“the Trial Court”) refused to set a hearing in the matter until a Temporary Parenting Plan concerning the parties’ minor child was entered. Husband appeals, arguing both that he had complied with local rules by submitting a suitable Temporary Parenting Plan and that state law does not require the filing of a Temporary Parenting Plan in circumstances like those of this case. We hold that the local rules are in conflict with Tenn. Code Ann. § 36-6-403 because they require the filing of a written Temporary Parenting Plan even though the statute specifically states this is not required if the parties agree, as in this case, to a Temporary Parenting Plan. We also hold that even if we err in our judgment that Tenn. Code Ann. § 36-6-403 conflicts with and overrides the local rules, Husband complied with the local rules by submitting a Temporary Parenting Plan. We reverse the Trial Court.

In August of 2012, Chloe S.K. (“Mother”) and Timothy A.K. (“Step-father”) filed a petition seeking to terminate the parental rights of Joshua A.P. (“Father”) to the minor child Jocilyn M.P. (“the Child”) and to allow Step-father to adopt the Child. After a trial, the Trial Court entered its Final Order Terminating Parental Rights on August 19, 2013 terminating Father’s parental rights to the Child after finding and holding, inter alia, that clear and convincing evidence existed of grounds to terminate Father’s parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102 (1)(A)(iv) for both willful failure to support and for wanton disregard, and that clear and convincing evidence was proven that it was in the Child’s best interest for Father’s parental rights to be terminated. Father appeals the termination of his parental rights. We affirm the termination of Father’s parental rights to the Child.

A Madison County Grand Jury returned an indictment against Defendant, Marty Clark, charging him with possession of cocaine and possession of drug paraphernalia. Following a jury trial, Defendant was convicted of possession of cocaine and attempted possession of drug paraphernalia. The trial court imposed a sentence of eleven months and twenty-nine days for possession of cocaine and six months for attempted possession of drug paraphernalia to be served concurrently with each other and consecutively to an unrelated case. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; and (2) that the trial court erred in refusing to give the absent material witness instruction to the jury. After a thorough review of the record, we affirm the judgments of the trial court.

Defendant, Erica Lawrence, was indicted, along with her co-defendant Charles Bragg, by the Shelby County Grand Jury for first degree felony murder. Defendant filed a motion to suppress a statement she gave to police in which she admitted that she was present during the murder but stated that her co-defendant committed the murder. The trial court granted Defendant’s motion to suppress, and the State filed an application for an interlocutory appeal, which this court granted. After a thorough review of the record, we conclude that the evidence does not preponderate against the trial court’s findings, and therefore, we affirm the decision of the trial court to grant Defendant’s motion to suppress.