APPELLATE COURT OPINIONS

In this appeal from the Final Decree of Divorce, the father of the parties’ four minor children challenges the division of marital property, the permanent parenting plan, an upward deviation in child support of $16,875 per year to help pay for private school for three of the children, and a $50,000 judgment for the mother’s attorney’s fees. We affirm the division of the marital property and the parenting schedule. As for requiring the father to pay up to $16,875 per year toward private school costs of three of the children, we have determined that the trial court failed to apply the correct legal standard for such an upward deviation and find that the father does not have the financial means to pay an upward deviation. As for requiring the father to pay $50,000 of the mother’s attorney’s fees, we have determined that she was given 60 percent of the marital assets and her income is substantially more than that of the father’s, thus, applying the ability to pay and the need standard, we find no basis for requiring the father to pay the mother’s attorney’s fees at trial or on appeal. Thus, we reverse the award for attorney’s fees.

The defendant, Michael J. Fryar, appeals a certified question of law from the Sumner County Criminal Court, where he pleaded guilty to aggravated burglary. Because the prosecution of the aggravated burglary charge began before the expiration of the applicable statute of limitations, we affirm the judgment of the trial court.

The appellant, Charles Clevenger, was convicted in the Knox County Criminal Court of two counts of aggravated robbery, one count of felony evading arrest, three counts of misdemeanor simple possession, three counts of felony simple possession, possession of a legend drug, failure to obey a traffic control device, and violation of the financial responsibility law. After a sentencing hearing, he received an effective forty year sentence. On appeal, the appellant contends that the evidence is insufficient to support the aggravated robbery convictions, that the trial court erred by ruling he could be impeached with prior convictions if he decided to testify, and that some of his convictions violate double jeopardy protections. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the evidence is insufficient to support the appellant’s conviction for aggravated robbery by violence and that the conviction must be reversed. Moreover, we conclude that his convictions for misdemeanor simple possession of oxycodone, felony simple possession of oxycodone, and possession of a legend drug are multiplicitous with his remaining aggravated robbery conviction. Therefore, those three convictions are vacated and the charges are dismissed. The appellant’s remaining convictions and resulting effective forty-year sentence are affirmed.

The Petitioner, Richard C. Taylor, pled guilty to first degree premeditated murder and agreed to a life sentence. The Petitioner filed a pro se petition for post-conviction relief making several contentions regarding his competency. The Petitioner then filed a motion requesting a mental evaluation. The trial court held a hearing wherein it determined that the Petitioner had filed his petition beyond the statute of limitations. The trial court further determined, however, that the statute of limitations should be tolled if the Petitioner was, in fact, incompetent. It ordered the Petitioner to provide an affidavit from a treating physician saying he was incompetent at the time he entered his plea. The Petitioner failed to so do, and the trial court summarily dismissed the Petitioner’s petition. On appeal, the Petitioner contends that the trial court erred when it dismissed his petition because he was mentally incompetent to enter his guilty plea. After a thorough review of the record and applicable authorities, we conclude there exists no error in the judgment of the post-conviction court. Accordingly, the judgment of the trial court is affirmed.

Brenda Faye Brewington, Petitioner, was convicted by a Sumner County jury of two counts of aggravated child abuse of children age eight and under and two counts of child neglect of children under age six. The trial court sentenced Petitioner to an effective sentence of twenty-five years to be served at 100 percent. Petitioner was unsuccessful on direct appeal. State v. Brenda Faye Brewington and Brian Dewayne Brewington, No. M2007-01725-CCA-R3-CD, 2009 WL 142321 (Tenn. Crim. App., at Nashville, Jan. 21, 2009). Petitioner subsequently filed a petition for post-conviction relief arguing that she received ineffective assistance of counsel. The post-conviction court denied the petition after an evidentiary hearing. On appeal, Petitioner argues that the post-conviction court erred in denying her petition and that she received ineffective assistance of counsel because her trial counsel was a Sumner County constable at the time he represented her. She argues that his representation was deficient because there is a statutory prohibition on the practice of law by constables in the county for which they serve and that there is an inherent conflict when an attorney is a constable and represents a client for criminal charges. She also argues that this deficiency resulted in prejudice. We conclude that there is no statutory prohibition on the practice of law by a constable. However, such a situation does constitute a conflict so that representation of a client by a constable would be below the competence required of criminal representation. Nonetheless, the post-conviction court did not err in denying the petition because Petitioner was unable to prove that she was prejudiced by the deficient representation provided by trial counsel. Therefore, we affirm the denial of the petition.

I concur in the majority’s holdings affirming the trial court’s jurisdiction and vacating the mandamus. However, I do not agree with the decision to remand the case for an evidentiary hearing on the declaratory judgment claim.

An attorney disciplined by the Board of Professional Responsibility brought suit against the Board asserting violations of the Open Meetings Act and the Public Records Act. We have concluded that the trial court properly determined that the Open Meetings Act does not apply to the Board. Furthermore, we find no error in the trial court’s determination regarding the attorney’s right to records from certain Board meetings.

This case presents an appeal to this Court after remand by order of the Tennessee Supreme Court. The Defendant, Kenneth D. Hubanks, appeals the trial court’s denial of his motion to suppress evidence obtained during the execution of a search warrant at his residence. The Defendant entered a plea of nolo contendre to his charges, felony cocaine possesion, felony marijuana possession, and possession of drug parahernalia but reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). In this appeal, the Defendant raises the issue of whether the affidavit upon which the search warrant was issued established probable cause to search his residence. After review, we hold no error occurred. Accordingly, the judgment of the trial court is affirmed.

Appellant, Daniel Ray Prince, entered pleas without recommended sentences to one count of burglary of a building other than a habitation and two counts of theft of property valued at $10,000 or more but less than $60,000. The two counts of theft of property merged into one count by operation of law. Following a sentencing hearing, the trial court sentenced appellant as a Range II, multiple offender to two six-year sentences to be served concurrently with each other but consecutively to sentences imposed in other jurisdictions. He appeals the trial court’s sentencing him as a Range II offender and imposing partial consecutive sentences. Discerning no error, we affirm the judgments of the trial court.

Petitioner appeals the dismissal of his complaint, which asserted numerous claims relating, inter alia, to the practice monitor condition of his suspension from the practice of law. The trial court dismissed the complaint finding the defendants in the action were immune under either sovereign immunity, judicial immunity, quasi-judicial quasi-prosecutorial immunity, qualified immunity, or Tennessee Supreme Court Rule 9, Section 27 immunity. The trial court further found that the action was a collateral attack on the ruling by the Tennessee Supreme Court regarding Petitioner’s suspension; thus, it did not have subject matter jurisdiction to rule on matters in the disciplinary proceedings. We affirm the trial court’s ruling on all claims except for the Public Records Act, which we remand to the trial court for a determination of whether the records requested are subject to inspection and whether they have in fact been made available for inspection.

This matter is before the Court upon the State’s motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, John W. Smith, has appealed the Davidson County Circuit Court order dismissing his second petition for writ of habeas corpus in which Petitioner alleged that: (1) his sentence is illegal; and (2) his guilty plea was not knowingly or voluntarily entered. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

Attorney disciplined by the Board of Professional Responsibility filed suit against the Board’s counsel seeking damages for her conduct of the disciplinary proceeding and her removal from the position of Disciplinary Counsel; Attorney appeals the dismissal of his action. Finding no error, we affirm.

Appellant, William Patrick Peebles, and his two co-defendants, were indicted by the Davidson County Grand Jury for three counts of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of use of a firearm during commission of a dangerous felony. After a jury trial, Appellant was convicted of all charges. The trial court sentenced Appellant to an effective sentence of fifty-eight years. On appeal, Appellant argues that the trial court erred in allowing the State to offer in evidence a videotape of an interview conducted by an officer, that the evidence was insufficient to support his convictions, and that the trial court erred in imposing consecutive sentences. After thorough review of the record, we determine that Appellant’s issues have no merit. Therefore, we affirm the judgments of the trial court.

Metropolitan Nashville Board of Education appeals the issuance of a writ of mandamus compelling it to hear an appeal of the termination of a non-teaching employee. The Board contends that the chancery court lacked jurisdiction to issue the writ and that state law preempts the right to a hearing granted to employees of the Board under the Metropolitan Charter. We affirm the holding that the chancery court has jurisdiction under Tenn. Code Ann. §§ 16-11-102(a) and 29-25-101 to issue the writ; we vacate the judgment issuing the writ and remand the case for an evidentiary hearing as to whether the Board has developed a policy with respect to the dismissal of employees as required by Tenn. Code Ann. § 49-2301(b)(1)(FF) and whether such policy preempts the pertinent provisions of the Metropolitan Charter.

The defendant, Terry Fossett, was convicted by a Shelby County Criminal Court jury of rape of a child, a Class A felony, and statutory rape by an authority figure, a Class C felony. He was sentenced to twenty-five years at 100% on the rape of a child conviction and three years as a Range I offender on the statutory rape conviction, to be served concurrently in the Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his convictions and that the State should have obtained a psychological examination of the victim. After review, we affirm the judgments of the trial court.

A Shelby County jury convicted appellant, Andre Harris, of first degree murder in the perpetration of a theft, first degree premeditated murder, and theft of property valued under $500. The trial court merged the murder convictions. Appellant was sentenced to life for first degree murder and to eleven months, twenty-nine days for theft, to be served concurrently in the Tennessee Department of Correction. On appeal, appellant submits the following issues for review: (1) whether the trial court erred by admitting a video taped portion of appellant’s interrogation from “The First 48”; (2) whether the trial court erred by admitting autopsy photographs; and (3) whether the evidence was sufficient to support appellant’s convictions for premeditated murder and murder in the perpetration of theft. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

Defendant, Gregory Bryan Austin, pled guilty to two counts of aggravated statutory rape with an agreed sentence of two years for each count to be served concurrently, with the trial court to determine the manner of service of the effective sentence. The trial court ordered that Defendant serve six months of his effective two-year sentence in confinement with the balance served on supervised probation. On appeal, Defendant argues that the trial court erred in denying him full probation. After a thorough review, we affirm the judgment of the trial court.
 

The defendant, Chad Medford, appeals his Knox County Criminal Court convictions of felony murder, aggravated burglary, especially aggravated kidnapping, especially aggravated robbery, and employing a firearm during commission of a dangerous felony, claiming that the trial court erred by denying his motion to suppress the statements he made to police and by denying admission of his unedited statement at trial, that the evidence was insufficient to support his convictions, and that the trial court erred by admitting certain witness testimony. The defendant also challenges his sentence alignment. Discerning no reversible error, the judgments of the trial court are affirmed.

Conservator filed suit to rescind a pre-conservatorship conveyance of real property by ward to her niece. The jury found in favor of niece and the trial court entered judgment on the jury verdict. Conservator appeals, arguing that the trial court erred in limiting the testimony of her expert witness. Discerning no error, we affirm.

The Defendant, Michael Webster, challenges his bench trial conviction for theft of property, over $500, a Class E felony, contending that there was insufficient evidence presented at trial to prove his knowing commission of the offense and that the value of the property exceeded $500. After a review of the record and the applicable authorities, we conclude that the evidence was insufficient to prove that the property at issue exceeded $500, modify the conviction to theft of property, $500 or less, a Class A misdemeanor, and remand the case to the trial court for resentencing.

The Maury County grand jury indicted appellant, Jonathan Carl Davidson, for driving under the influence, second offense, and violation of the open container law. Following an unsuccessful motion to suppress the evidence, appellant entered a guilty plea to driving under the influence, second offense. Pursuant to the plea agreement, the State dismissed the violation of the open container law charge, and the trial court sentenced appellant to eleven months, twenty-nine days in the county jail, with forty-five days to serve. As a condition of the plea agreement, appellant reserved the right to certify a question of law challenging the legality of the initial traffic stop. Following our review, we affirm the trial court’s judgment.

The petitioner, Timothy Chatman, appeals the dismissal of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that his guilty pleas were knowing and voluntary and that he received effective assistance of trial counsel. Following our review, we affirm the dismissal of the petition.

This case involves an appeal from juvenile court to circuit court. The maternal grandmother of the child at issue filed a petition in juvenile court against her daughter, seeking court-ordered visitation with her grandson. The respondent mother of the child filed an answer denying all of the grandmother’s allegations and also filed a counter-petition for injunctive relief against the grandmother. The juvenile court granted the grandmother’s petition for court-ordered visitation but did not adjudicate the mother’s petition for injunctive relief. The mother then appealed to the circuit court. The circuit court dismissed the appeal for lack of jurisdiction. The mother now appeals. We affirm the decision of the circuit court, vacate the orders of the juvenile court based on subject-matter jurisdiction, and remand to the juvenile court, with specific instructions, for further proceedings consistent with this opinion.

The Defendant, Gwendolyn Hagerman, was found guilty by a Sullivan County Criminal Court jury of five counts of rape of a child. See T.C.A. § 39-13-522 (1997). She was sentenced as a Range I offender to twenty years for each conviction, to be served at 100% as a child rapist. The trial court ordered partial consecutive sentencing, for an effective sixtyyear sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions; (2) there was a material variance between the presentment, the bill of particulars, the election of offenses, and the proof; (3) the trial court erred in denying her motion to dismiss the charges due to pre-accusation delay; (4) the trial court erred in declining to conduct an in camera review of Department of Children’s Services records; and (5) the trial court erred in imposing consecutive sentences. We affirm the judgments of the trial court.

The petitioner, Jasper Lee Vick, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing he was denied the right to a speedy trial and he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.