APPELLATE COURT OPINIONS

The Petitioner, Leonard Jasper Young, appeals from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief as it relates to the guilt phase of his trial. The post-conviction court granted the Petitioner relief as to the sentencing phase, and the State did not appeal this ruling. A Shelby County jury convicted the Petitioner of premeditated first degree murder, especially aggravated kidnapping, and theft over $1,000. He received an effective sentence of death plus seventy-two years. On appeal, the Petitioner asserts that trial counsel were ineffective during the guilt phase of his trial. We affirm the judgment of the post-conviction court denying the Petitioner post-conviction relief.

Following a bench trial, a Montgomery County Circuit Court convicted the Petitioner, Gregory G. Kilgore, of aggravated robbery and possession with the intent to sell or deliver .5 grams or more of cocaine. The trial court sentenced the Petitioner to twelve years for each conviction to be served concurrently, in the Tennessee Department of Correction. The Petitioner appealed, challenging the sufficiency of the evidence, and this Court affirmed the conviction. State v. George C. Kilgore, No. M2009-01539-CCA-R3-CD, 2010 WL 2483546, at *1 (Tenn. Crim. App., at Nashville, June 21, 2010), perm. app. denied (Tenn. October 20, 2010). The Petitioner timely filed a petition seeking post-conviction relief on the basis of ineffective assistance of counsel, which the post-conviction court denied after a hearing. The Petitioner appeals the post-conviction court’s denial, claiming that his attorney’s failure to adequately cross-examine a witness and to procure a surveillance video constitutes ineffective assistance of counsel. After a thorough review of the record, the briefs, and relevant authorities, we affirm the post-conviction court’s judgment.

Petitioner, Jerry Louis Fitzgerald, Jr., was indicted in March of 2008 by the Gibson County Grand Jury for possession of more than .5 grams of cocaine with the intent to sell or deliver, unlawful sale of over .5 grams of cocaine, and unlawful delivery of over .5 grams of cocaine. Petitioner ultimately entered guilty pleas to three counts of selling over .5 grams of cocaine. As a result of the guilty pleas, he was sentenced to twenty years for each count, to be served concurrently, for a total effective sentence of twenty years. Following the entry of judgment, Petitioner filed a pro se motion to withdraw his guilty plea, which the trial court denied without a hearing. Petitioner appealed. See State v. Louis Fitzgerald, Jr., No. W2009-02520-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 703, at *1-2 (Tenn. Crim. App., at Jackson, Aug. 20, 2010). This Court remanded the case for a hearing on the motion to withdraw the guilty plea. On remand, the trial court held a hearing and again denied the motion. There was no direct appeal from this denial. Petitioner filed a petition for post-conviction relief in November of 2011, seeking a delayed appeal from the denial of the motion to withdraw the guilty pleas. In June of 2012, a consent order was entered allowing a delayed appeal from the denial of the motion to withdraw the guilty pleas. On appeal, Petitioner challenges the trial court’s denial of the motion to withdraw his guilty pleas because the trial court failed to determine: (1) whether Petitioner was denied effective counsel; (2) whether the plea was knowingly and involuntarily made; and (3) whether manifest injustice exists as a ground for withdrawal of the pleas. After a review of the record, we determine that the trial court did not abuse its discretion in denying the motion to withdraw the guilty pleas where there was substantial evidence in the record to support the trial court’s conclusion. Consequently, the judgments of the trial court are affirmed.

Convicted of felony murder, three counts of aggravated assault, and setting fire to personal property, petitioner, Edgar Bailey, Jr., filed the instant petition for writ of error coram nobis, alleging that the indictment under which he was tried and convicted for felony murder was defective in that it did not bear a return date from the grand jury and that the State withheld it from him prior to trial. He further claims that the allegedly defective indictment constitutes newly discovered evidence for the purpose of error coram nobis proceedings. The coram nobis court summarily dismissed the petition. Following our review, we affirm the judgment of the coram nobis court.

After a trial by jury the defendant, Curtis Keller, was convicted of two counts of especially aggravated kidnapping (against Tamika Jones and M.B.), Class A felonies; one count of attempted especially aggravated robbery (against Andrew Morrow), a Class B felony; one count of especially aggravated burglary, a Class B felony; three counts of aggravated assault (against Andrew Morrow, Tamika Jones, and M.B.), Class C felonies; and one count of employing a firearm during the commission of a “dangerous felony,” a Class C felony. The trial court sentenced the defendant to a total effective sentence of two hundred and forty years. On appeal, the defendant claims that: (1) the jury instructions concerning the especially aggravated kidnapping charges were inadequate in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous, and (3) his eight separate convictions violate the Double Jeopardy Clause because his crime spree “was one continuous act.” After careful review, we conclude that: (1) the jury instructions were inadequate in light of White, but harmless beyond a reasonable doubt, and (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous because they did not foreclose the possibility that the jury used one of the especially aggravated kidnappings—which, as stated in the indictment, were based on the defendant’s use of a firearm—as predicate felonies. As the State concedes, the statute prohibiting an individual’s use of a firearm during the commission of a “dangerous felony” expressly forbids charging a defendant for a violation of that statute “if possessing or employing a firearm is an essential element of the underlying dangerous felony as charged.” T.C.A. § 39-17-1324(c). Accordingly, the defendant’s conviction for employing a firearm during the commission of a dangerous felony is reversed. In addition, it was plain error for the defendant to be convicted of both especially aggravated burglary and attempted especially aggravated robbery based on the same act of causing serious bodily injury to victim Andrew Morrow. The defendant’s conviction for especially aggravated burglary is reduced to a conviction of aggravated burglary, and a new sentence of fifteen years is imposed on this count. With respect to his other claims, the defendant has failed to establish any entitlement to relief, and his convictions of two counts of especially aggravated kidnapping, one count of attempted especially aggravated robbery, and three counts of aggravated assault are affirmed.

The trial court decreed a resulting trust in a house paid for by the decedent on property owned by her son. We have concluded that the trial court erred.

The defendant, James Scott O’Brien, appeals the Robertson County Circuit Court’s order that he serve in confinement nine months of the 30-month sentence imposed for his conviction of theft of property valued at $1,000 or more but less than $10,000. Because the record supports the sentencing order, we affirm.

The petitioner, Raymond Hayden, appeals the Lake County Circuit Court’s dismissal of his 2012 petition for writ of habeas corpus in which he sought to challenge his 2009 Putnam County, guilty-pleaded conviction of the sale of cocaine. Following our review, we affirm the order of the circuit court.

The defendant, Nathan Daniel Puckett, appeals from the Sullivan County Criminal Court’s denial of his motion to reduce his Range II, 35-year sentence for second degree murder. Because the record shows that the motion was untimely, we affirm the order of the criminal court.

Plaintiffs filed a complaint asserting a constitutional challenge to HB600. The trial court, however, dismissed the complaint because it found Plaintiffs lacked standing because they had failed to allege an injury-in-fact, that their claims were not ripe for review, and that they were merely seeking an advisory opinion. Plaintiffs timely appealed to this court. However, we dismiss the appeal for lack of subject matter jurisdiction, and we remand the case to the trial court for resolution of Plaintiffs’ Motion and Memorandum to Amend Complaint and for further proceedings, as necessary, consistent with this opinion
 

The appellant, Alan Robert Benjamin, pled guilty in the Hamilton County Criminal Court to two counts of robbery and one count of attempted aggravated robbery. The trial court sentenced the appellant as a Range I, standard offender to five years for each offense, with the sentences to be served consecutively for a total effective sentence of fifteen years. The court ordered the appellant to serve eleven months and twenty-nine days confinement for each offense, with the remainder of the sentence to be served on supervised probation. On appeal, the appellant challenges the length of the sentences imposed by the trial court, the imposition of consecutive sentencing, and the denial of full probation. Upon review, we conclude that the trial court erred by allowing the appellant to choose between two proposed sentencing options. Therefore, the judgment of the trial court is reversed and the case is remanded for resentencing in accordance with the purposes and principles of the Sentencing Act.

The defendant, Quanya Revell Prewitt, appeals her Davidson County Criminal Court jury conviction of possession with intent to sell or deliver dihydrocodeinone, a Schedule III substance, in a school zone, claiming that the trial court erred by limiting the scope of cross-examination of two of the State’s witnesses and that the evidence was insufficient to support her convictions. Discerning no error, we affirm.

The Defendants, Lashun Gray and Stanley Williams, were tried jointly before a Shelby County Criminal Court jury. Defendant Gray was convicted of attempt to commit first degree murder, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202, 39-12-101, 39-17-1324 (2010). He was sentenced as a Range I, standard offender to consecutive sentences of twenty-four years for the attempted first degree murder conviction and ten years for the firearm violation, for an effective thirty-four-year sentence. Defendant Williams was convicted of first degree murder, attempt to commit first degree murder, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See id. He was sentenced to life imprisonment for the first degree murder conviction and as a Range I, standard offender to consecutive terms of twenty-four years for the attempted first degree murder conviction and ten years for the firearm violation, for an effective sentence of life plus thirty-four years. On appeal, Defendant Gray contends that (1) the evidence is insufficient to support his conviction for attempted first degree murder, (2) the trial court erred by allowing the medical examiner to testify about the effects of a gunshot wound on a living person, and (3) the court erred during sentencing. Defendant Williams contends that
(4) the evidence is insufficient to support his convictions for attempted first degree murder and the firearm violation, and (5) the court erred in instructing the jury regarding criminal responsibility. We affirm the Defendants’ convictions, but because of inappropriate sentences, we reverse the Defendants’ judgments for employing a firearm during the commission of a dangerous felony and remand the case for entry of judgments reflecting six-year sentences.

Nigel Marlin Reid, Sr. filed a complaint in the trial court. The court, sua sponte, held that the complaint is “frivolous” and that plaintiff’s claims against his brother are barred by res judicata. The court dismissed the action. Because the complaint fails to state a cause of action, we affirm.

The issues in this divorce case focus, for the most part, on the enforceability and interpretation of a prenuptial agreement entered into by Sabra Elaine Ellis O’Daniel (“Wife”) and Rusty Wade O’Daniel (“Husband”). Shortly after their marriage, Wife was diagnosed with a serious illness that resulted in several extensive hospitalizations. We have determined that the enforcement of the provisions limiting and waiving alimony contained in the parties’ prenuptial agreement is likely to render Wife a public charge. Accordingly, we reverse that portion of the trial court’s judgment holding that these “alimony” provisions are valid and enforceable. We affirm the trial court’s award to Wife of 67 months of health insurance, but do so on a ground other than the one articulated by the trial court. We affirm the trial court’s award to Wife of a judgment for $16,000 based upon Husband’s breach of the prenuptial agreement requiring him to fund a retirement account for Wife. This case is remanded to the trial court for further proceedings (1) to consider anew Wife’s request for alimony and (2) to set her attorney’s fees on appeal.

The Defendant, Michael Allen Gibbs, was convicted by a Haywood County jury of first degree felony murder, especially aggravated burglary, and attempted especially aggravated robbery. On appeal, the Defendant argues that the trial court erred by failing to give a jury instruction on accomplice testimony. Following our review of the record and the applicable authorities, we conclude that the trial court should have instructed the jury with respect to the legal status of the State’s witness but that the error was harmless. However, because the Defendant’s conviction for especially aggravated burglary is precluded by statute, that conviction is modified to one for aggravated burglary with imposition of a five-year sentence. We affirm the judgments of the trial court in all other respects.

This appeal involves a dispute over an attorney’s fee in a wrongful foreclosure case filed by Client against Bank of America. Client originally signed a contingency fee contract with Attorney, who later withdrew from the case. Client hired a new law firm to represent him and subsequently prevailed following a jury trial. Attorney filed suit, alleging that he was entitled to recover his original contingency fee because Client’s behavior forced him to withdraw from representation. The trial court limited Attorney’s recovery of fees pursuant to quantum meruit. Attorney appeals. We affirm the decision of the trial court.

The Petitioner, Douglas Killins, appeals the Montgomery County Circuit Court’s summary dismissal of his petition for post-conviction relief from his 2003 conviction for second degree murder and Range II thirty-eight-year sentence. The Petitioner contends that the trial court erred by denying him relief because he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

Mario Green (“the Petitioner”) was convicted by a Shelby County jury of two counts of second degree murder. The trial court merged the convictions and sentenced the Petitioner to twenty years’ incarceration. The Petitioner subsequently filed for post-conviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that he received ineffective assistance of counsel at trial. After reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

The Defendant, Colton D. Whitelow, was indicted for first degree premeditated murder, first degree felony murder, and aggravated assault. Following a jury trial, the Defendant was convicted of the lesser included offenses of voluntary manslaughter and reckless homicide and acquitted of the aggravated assault charge. See Tenn. Code Ann. §§ 39-13-211, -215. The trial court sentenced the Defendant to an effective ten-year sentence. In this appeal as of right, the Defendant contends (1) that the length of his sentences were excessive; and (2) that the trial court erred in imposing consecutive sentences. Following our review, we affirm the judgments of the trial court.

Mother’s parental rights to her child were terminated due to her diminished mental capacity, which caused her to be incompetent to care for her child. Mother appealed, and we affirm the trial court’s judgment. The trial court’s findings are supported by clear and convincing evidence.

The Petitioner, Auqeith Lashawn Byner, pled guilty to driving on a suspended license, and a Davidson County jury convicted him of possession with the intent to sell or deliver over twenty-six grams of cocaine and possession of drug paraphernalia. The trial court sentenced the Petitioner to serve an effective sentence of seventeen years in the Tennessee Department of Correction. The Petitioner appealed his convictions but withdrew his appeal on February 11, 2010. On February 14, 2011, the Petitioner, pro se, timely filed a petition seeking post-conviction relief on the basis of ineffective assistance of counsel and was thereafter appointed an attorney. After a hearing on the petition, the post-conviction court issued an order denying the Petitioner relief. The Petitioner appeals the trial court’s denial of his claim. After a thorough review of the record, the briefs, and relevant authorities, we affirm the post-conviction court’s judgment.

In this medical malpractice action, the jury entered a verdict in favor of the defendant doctor. On appeal, the plaintiff argues that the trial court erred in allowing a medical expert witness to testify. We find no error in the trial court’s decision.

The Petitioner, Kenneth Coleman Benefiel, appeals the Henry County Circuit Court’s denial of post-conviction relief from his guilty plea to soliciting sexual exploitation of a minor by electronic means, a Class B felony. See T.C.A. § 39-13-529(a), (e)(1). On appeal, the Petitioner argues that he received ineffective assistance of counsel and that his guilty plea was entered unknowingly and involuntarily. Upon review, we affirm the judgment of the post-conviction court.

In this appeal, the mother of the child at issue appeals the trial court’s order establishing paternity. The appellant mother filed this parentage petition against the father. At the outset of the hearing on the petition, the mother’s attorney announced that he had developed a conflict of interest regarding his representation of the mother, because he had previously consulted with both the mother and the father when the parties agreed on the issues. By the time of the hearing, the parties no longer agreed and the father had hired his own attorney. Despite the attorney’s disclosure that he had developed a conflict of interest in continuing to represent the mother, the trial court proceeded with the paternity hearing. What ensued was a procedural train wreck; it ultimately resulted in orders that resolved all issues on their merits. The mother appeals. We conclude that this particular train never should have left the station. In light of the disclosure by the mother’s prior attorney that he had developed a conflict of interest, we vacate everything that followed the attorney’s disclosure, except the order allowing the mother’s attorney to withdraw.