APPELLATE COURT OPINIONS

The defendant, Jessica M. Myers, was indicted on one count of first degree (premeditated) murder of Jimmy Cutshall, three alternative counts of first degree (felony) murder of Jimmy Cutshall, and one count of attempt to commit first degree murder of Rhonda Cutshall. A jury found her guilty of the first four counts as charged and of the lesser-included offense of reckless endangerment on the fifth count. The trial court merged the felony murder convictions. The defendant was sentenced to life in prison for counts one and two, and she was sentenced to serve eleven months and twenty-nine days on count five, with all sentences to be served concurrently. On appeal, the defendant challenges the sufficiency of the evidence, an alleged defect in the indictment in count one, and the admission of certain post-mortem photographs as cumulative evidence at trial. Having reviewed the record, we affirm the judgments of the trial court.

The Petitioner, Troy Douglas Bartley, appeals the Sullivan County Criminal Court’s denial of post-conviction relief from his convictions of two counts of aggravated assault, Class C felonies, one count of delivery of cocaine within 1,000 feet of a school zone, a Class B felony, one count of possession of cocaine with intent to sell or deliver within 1,000 feet of a school zone, a Class A felony, one count of attempted first degree murder, a Class A felony, one count of retaliation for past action, a Class E felony, and two additional counts of aggravated assault, Class C felonies. Based on the guilty plea hearing transcript, the Petitioner pleaded guilty in case number S57,639, to two counts of aggravated assault, both of which were merged by the trial court, and received a three-year-sentence. In case number S58,333, the Petitioner pleaded guilty to delivery of cocaine within 1,000 feet of a school zone, count one, which merged with count two, possession of less than five-tenths of cocaine with intent to sell or deliver within 1,000 feet of a school zone, and received an eight-year sentence. In case number S58,374, the Petitioner pleaded guilty to attempted first degree murder, count one, retaliation for past action, count two, and two additional counts of aggravated assault, counts three and four, which the trial court merged with count two. In regard to case number S58,374, the Petitioner was sentenced to fifteen and four years, respectively. The trial court ordered “all counts in each case [to be served] concurrent[ly] but each of the cases [were] consecutive[,]”for an effective sentence of twenty-six years’ imprisonment. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that he entered involuntary and unknowing guilty pleas. 1 Upon review, we affirm the judgment of the post-conviction court.

This is a collateral attack on an order entered by a general sessions court. The plaintiff tenant leased residential property from the defendant landowner. The tenant fell behind in his rent, so the landowner filed a forcible entry and detainer action in general sessions court against the tenant and obtained a judgment for the past-due rent. The tenant did not appeal that judgment. Months later, the tenant filed the instant lawsuit in chancery court to set aside the general sessions court judgment. The tenant alleged in the chancery court complaint that the general sessions court did not have subject matter jurisdiction to adjudicate the FED action because the landowner did not give the tenant a statutorily-required notice of termination of the lease. The chancery court below agreed with the tenant and set aside the general sessions judgment as void for lack of subject matter jurisdiction. The landowner now appeals. We reverse the decision of the chancery court and remand with directions to dismiss the tenant’s lawsuit in its entirety.

Petitioner, Corey Finley, was convicted by a Shelby County jury of attempted first degree murder. State v. Corey Finley, No. W2005-02804-CCA-R3-CD, 2007 WL 1651879, at *1 (Tenn. Crim. App., at Jackson, June 7, 2007), perm. app. granted, (Tenn. Oct. 15, 2007), aff’d after remand, No. W2007-2321-CCA-RM-CD, 2008 WL 726567 (Tenn. Crim. App., at Jackson, Mar. 18, 2008), perm. app. denied, (Tenn. Sept. 29, 2008). He was sentenced to twenty-three years. Id. at *8. Petitioner subsequently filed a petition for post-conviction relief arguing that he was afforded ineffective assistance of counsel. The post-conviction court denied the petition after an evidentiary hearing. Petitioner has appealed to this Court. After a thorough review of the record on appeal, we conclude that Petitioner has not proven that he was afforded ineffective assistance of counsel. Therefore, we affirm the post-conviction court’s denial of the petition.

In 2009, Petitioner, Sandra Hendricks Franklin, was convicted by a Tipton County jury of first degree murder. As a result, she received a sentence of life imprisonment. Petitioner’s conviction and sentence were affirmed by this Court on appeal. See State v. Cassandra Hendricks Franklin, No. W2009-01087-CCA-R3-CD, 2010 WL 2265439, at *1 (Tenn. Crim. App., at Jackson, June 3, 2010), perm. app. denied, (Tenn. Nov. 10, 2010). In May of 2012, Petitioner filed a pro se petition for post-conviction relief in which she claimed, among other things, that she received ineffective assistance of counsel. The post-conviction court dismissed the petition for relief as untimely. Petitioner appeals. After a review of the record and authorities, we determine that Petitioner has failed to show that her claims fall within the statutory exceptions to the one-year statute of limitations for post-conviction claims as listed in Tennessee Code Annotated section 40-30-102(b) or that due process requires the tolling of the statute of limitations. Consequently, the judgment of the post-conviction court dismissing the petition is affirmed

Jacqueline Crank (“the Defendant”) was convicted after a bench trial of one count of misdemeanor child abuse or neglect. The trial court sentenced the Defendant to eleven months, twenty-nine days, suspended to probation. In this direct appeal, the defendant challenges the constitutionality of the “spiritual treatment exemption” provision set forth in Tennessee Code Annotated section 39-15-402(c). The Defendant also contends that, if this Court affirms her conviction, this matter must be remanded for a hearing under Tennessee’s ''Preservation of Religious Freedom” statute, codified at Tennessee Code Annotated section 4-1-07. Upon our thorough review of the record and relevant authority, for the reasons stated herein, we conclude that it is not necessary to address the constitutional issue or to remand this matter. We affirm the judgment of the trial court.

I respectfully disagree with the majority’s upholding the trial court’s summary dismissal of the petitioner’s pro se post-conviction petition. I acknowledge that the petition was filed beyond the one-year statute of limitations for filing a post-conviction petition. See Tenn. Code Ann. § 40-30-102(a). However, our supreme court has held that due process may require the statute of limitations to be tolled in cases where its strict application would deny the petitioner “‘a reasonable opportunity to assert a claim in a meaningful time and manner.’” Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001) (quoting Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)). Notably, “a post-conviction petitioner should not be denied a reasonable opportunity to raise a claim due to another’s misconduct.” Sample v. State, 82 S.W.3d 267, 277 (Tenn. 2002); see also Williams, 44 S.W.3d at 468.

Following a jury trial in the Circuit Court of Rutherford County, Defendant, Bobby D. Parker, was convicted of three counts of attempted aggravated robbery and one count of attempted aggravated burglary.  Defendant was sentenced as a career offender for each conviction, with sentences of 15 years imposed for each attempted aggravated robbery and 12 years for the attempted aggravated burglary.  The trial court ordered two of the 15-year sentences to be served concurrently with each other but ordered them to be served consecutively to the third attempted aggravated robbery sentence.  The attempted aggravated burglary sentence was ordered to be served consecutively to the other sentences, for an effective sentence of 42 years.  In this appeal, Defendant raises two issues: (1) the trial court committed reversible error by overruling his objection to a peremptory challenge exercised by the State, and (2) the trial court imposed an excessive sentence by applying improper enhancement factors.  We affirm the judgments of the trial court.

Following a jury trial, the Defendants, Jack Price and Larry Thomas Cochran, were convicted of attempted first degree premeditated murder, a Class A felony; aggravated assault, a Class C felony; and two counts of attempted aggravated robbery, a Class C felony. Defendant Cochran was also convicted of resisting arrest and criminal impersonation, Class B misdemeanors. Both Defendants were sentenced to an effective twenty-five years’ incarceration for their respective convictions. In this appeal as of right, the Defendants raise the following issues: (1) both Defendants argue that the evidence was insufficient to support a finding by the jury of premeditation; (2) Defendant Cochran argues that issuance of a criminal responsibility instruction was in error; (3) Defendant Cochran contends that admission of his co-defendant’s statements against him violated Bruton v. United States, 391 U.S. 123 (1968); and (4) both Defendants contend that the trial court erred by submitting enhancement factors to the jury and by allowing the prosecutor to charge those factors, and that their sentences were excessive. Following our review, we affirm the Defendants’ convictions but, because the trial court utilized an unauthorized sentencing procedure, remand the case to the trial court for resentencing in accordance with this opinion.

A Putnam County Grand Jury returned an indictment against Defendant, Jonathan Andrew Dietz, charging him with rape.  After a jury trial, Defendant was found guilty as charged. The trial court sentenced Defendant to serve ten years at one-hundred percent in the Department of Correction as a violent offender.  On appeal, Defendant argues that (1) the trial court improperly admitted a video of Defendant, according to the State, attempting to rub the victim’s DNA off his genitalia while he was in the police interrogation room and (2) the evidence was insufficient to support his rape conviction.  After a thorough review, we affirm the judgment of the trial court.

Petitioner, Russell Lenox Hamblin, appeals from the trial court’s dismissal of his petition for post-conviction relief following on evidentiary hearing.  Petitioner asserts that his trial counsel and his appellate counsel (separate attorneys) rendered ineffective assistance of counsel.  After a review of the record and the briefs of the parties, we affirm the judgment of the trial court.

During the pendency of this divorce action, the trial court found Husband in criminal contempt for failing to pay pendente lite support on five occasions and sentenced Husband to ten days per count for a total sentence of fifty days. Husband was not booked or jailed for contempt but he was detained for two hours during the court’s lunch recess. During the recess, Husband’s trial counsel filed a notice of appeal. Husband was returned to the courtroom thereafter, and he and his counsel participated in the divorce hearing, which commenced after lunch. Following the conclusion of a short divorce hearing, the court took notice of the appeal from the contempt action and granted a stay of the sentence pending this appeal; Husband was then released. This appeal followed. We have concluded that the evidence upon which the five counts of criminal contempt were based was inadmissible and there is no other evidence to support a finding beyond a reasonable doubt that Husband had the ability to pay the support when it was due. Therefore, we reverse the finding of five counts of criminal contempt.

The trial court terminated the parties’ parental rights based on a finding of severe child abuse and abandonment and determined that the termination of parental rights was in the best interest of the children. We find clear and convincing evidence to support the trial court’s determination that the parties engaged in severe child abuse and that termination of their parental rights is in the children’s best interest. We affirm the trial court.

This is a medical malpractice case. The plaintiff filed a claim with the Division of Claims Administration, as the resident physician alleged to have engaged in negligence was purportedly connected to a University of Tennessee training program at Erlanger Hospital in Chattanooga, Tennessee. The State moved the Commissioner to dismiss the plaintiff’s action for failure to comply with the requirements set out in Tennessee Code Annotated section 29-26-121(a). The Commissioner reluctantly agreed with the State’s position. We hold that the plaintiff complied with section 121(a)’s notice requirement by complying with the claim notice requirements of Tennessee Code Annotated section 9-8-402. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that the plaintiff’s failure to provide all the items denoted in section 121(a) does not warrant dismissal with prejudice under the facts of this case. We vacate the dismissal order and remand for further proceedings.

The Defendant, Shanice L. Dycus, challenges the trial court’s denial of judicial diversion for her multiple convictions for various drug-related offenses, including possession of marijuana in excess of one half of a gram with intent to sell or deliver within 1,000 feet of a school zone.  See Tenn. Code Ann. §§ 39-17-417, -432.  She contends that the trial court erred by failing to consider all of the required factors in deciding her suitability for judicial diversion and by failing to state on the record how it weighed the relevant factors.  The State counters that possession of marijuana in excess of one half of a gram with intent to sell or deliver in a school zone is a non-divertable offense and, regardless, that the trial court properly denied diversion under the standard announced in State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).  Following our review, we conclude that the offense for which the Defendant stands convicted is eligible for diversion but that the trial court failed to consider and weigh all of the factors relevant in its decision denying diversion.  Therefore, we reverse the trial court’s denial of judicial diversion and remand this case for a resentencing hearing.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

This appeal involves the tolling of the statute of limitations for a breach of contract. The plaintiff architect rendered services to the defendant real estate developer, and the developer failed to pay for the architect’s services. Approximately four years later, the architect recorded a lien against the real property to secure the indebtedness. The developer then promised the architect he would pay the indebtedness if the architect released the lien. The architect released the lien but still was not paid. Approximately four years after that, the architect filed this lawsuit against the developer to collect the debt. The developer asserted that the architect’s claim was barred by the six-year statute of limitations. After a trial, the trial court held that the statute of limitations was tolled under the doctrine of equitable estoppel, so the architect’s lawsuit was timely filed. The trial court entered a judgment in favor of the architect. The developer appeals only on the issue of whether the claim was time-barred. Discerning no error, we affirm.

This appeal concerns the denial of a motion to compel arbitration. The sister of the decedent signed several admissions documents on the decedent’s behalf for purposes of admitting her to the defendant health care facility. At that time, the sister also signed an optional arbitration agreement. Several days later, the decedent passed away, and subsequently, the decedent’s beneficiaries brought a wrongful death action against the healthcare facility on her behalf. The healthcare facility moved to compel arbitration, arguing that the sister had authority to bind the decedent to the terms of the arbitration agreement based on several agency theories, as no power of attorney existed. After reviewing the depositions submitted in lieu of live testimony, the trial court determined the arbitration agreement was not enforceable because the sister lacked the legal authority to bind the decedent. Based on a careful review of the evidence, we affirm.

Wife signed a marital dissolution agreement that was incorporated into a final divorce decree. After the final decree was entered, wife sought relief from the decree based on assertions that she was entitled to a greater portion of a settlement received by her husband prior to the divorce and that, contrary to the parties’ agreement, there was equity in the marital home. The trial court denied wife’s motion to alter or amend, and we find no abuse of discretion in the trial court’s decision.

A Knox County jury found appellants Robert Hurst and Destiny Hurst guilty of four counts of felony murder; one count of second degree murder as a lesser-included offense of felony murder; one count of first degree premeditated murder; and two counts of especially aggravated robbery. They were found not guilty of two counts of especially aggravated kidnapping and not guilty of all counts of employing a firearm during a dangerous felony. The trial court imposed life sentences upon both appellants for the murder conviction, a concurrent eighteen-year sentence for appellant Robert Hurst’s especially aggravated robbery conviction, and a consecutive thirty-five-year sentence for appellant Destiny Hurst’s especially aggravated robbery conviction. In this appeal, appellants jointly challenge the sufficiency of the convicting evidence underlying the felony murder convictions and the trial court’s failure to poll the jury as to a witness’s status as an accomplice. Appellant Robert Hurst argues that there was a conflict surrounding the manner in which authorities matched his fingerprint to the bloody fingerprint found at the scene. Appellant Destiny Hurst claims that the State committed a Brady violation; that the trial court erred in permitting the State to present evidence of her other crimes, wrongs, or acts pursuant to Tennessee Rule of Evidence 404(b); and that the trial court erred in characterizing her as a professional criminal, sentencing her at the top of her range, and imposing consecutive sentences. Based on our review of the record as a whole, we affirm both appellants’ convictions and sentences. However, for each appellant, we remand this cause for entry of a single judgment form reflecting merger of all counts of murder and a single judgment form reflecting merger of both counts of especially aggravated robbery. Appellant Destiny Hurst’s judgment for especially aggravated robbery should note consecutive sentence alignment of her thirty-five-year sentence with her life sentence for murder. We also note, with respect to appellant Destiny Hurst, that the record does not contain a judgment form for Count 12, knowingly employing a firearm during the commission of a dangerous felony after having been previously convicted of the same. Thus, we order the criminal court to supplement the record with a judgment form reflecting the jury’s verdict of not guilty on this count of the indictment.

This is a termination of parental rights case in which Mother and Stepfather filed a petition to terminate the parental rights of Father to the Child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of Father’s parental rights on the statutory ground of abandonment and that termination of his rights was in the Child’s best interest. Father appeals. We affirm the decision of the trial court.

In this malicious prosecution action, the jury awarded the plaintiff compensatory damages and punitive damages. The trial court affirmed the punitive damages award; the court suggested a remittitur of the compensatory damages award, which the plaintiff accepted under protest. The defendant appeals the finding of liability, the award of damages, the admission of evidence, and the procedure followed by the court in affirming the punitive damages award; the plaintiff appeals the remittitur of the compensatory damages award. Finding that the court erred when it failed to follow the appropriate procedures in affirming the punitive damages award, we vacate the award and remand the case for further proceedings; in all other respects the judgment of the trial court is affirmed.

This is the second appeal in this post-divorce matter. Wife, Maryam Ghorashi-Bajestani (“Wife”), was granted a divorce from husband, Masoud Bajestani (“Husband”), on April 16, 2009. Following the first appeal to this Court, the case was remanded to the trial court. Various petitions and motions were filed by the parties, seeking modification of the trial court’s valuation of marital property, modification of child support, a lien on husband’s assets to secure his child support and alimony obligations, a finding of contempt, and an award of attorney’s fees. The trial court, inter alia, modified Husband’s child support obligation due to his reduced income, found Husband in contempt for his late payments of child support and alimony, and awarded Wife attorney’s fees. Both parties appeal the trial court’s order. We affirm in part, reverse in part, and remand for further proceedings.

Commissioner of Revenue assessed Company a sales and use tax for its sale of a wide area network (“WAN”) service during the period 1998 through 2003 on the basis that the service was a “telecommunication service” as that term is defined in Tenn. Code Ann. § 67-6102(a)(32) (2003). Company denied its WAN constituted a taxable telecommunication service because users were limited to accessing information on geographically remote computers; the WAN did not allow its users to communicate with one another. Following motions for summary judgment, the trial court concluded the WAN service was a taxable telecommunication service. Company appealed, and we reverse the trial court’s judgment. The primary purpose of the WAN was to enable a company’s authorized users to access information related to the company’s business,not to provide communication between users. The fact that Company itself did not provide information does not alter the result.

Kay F. Fritz (“Plaintiff”) sued CVS Corporation d/b/a CVS Pharmacy, Inc. (“Defendant”) alleging that Defendant had improperly filled a prescription for Plaintiff causing Plaintiff damages. Defendant filed a motion for involuntary dismissal or in the alternative for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment after finding that Plaintiff was unable to prove an essential element of her claim, i.e., causation. Plaintiff appeals to this Court. We affirm.