APPELLATE COURT OPINIONS

In June 2010, the Petitioner, Omowali Ashanti Shabazz, aka Fred Edmond Dean, filed a petition for writ of error coram nobis challenging his conviction for second degree murder. The Petitioner alleged that he was prejudiced by the State’s failure to disclose a “rent receipt” earlier in the trial proceedings and by the trial court’s failure to include a jury instruction on the term “residence” or, alternatively, that counsel was ineffective by failing to request a jury instruction on the term “residence” or pursue the issue on appeal. The coram nobis court summarily dismissed the petition on the basis that any relief was time-barred and that the Petitioner had failed to state a cognizable claim for relief. Following our review of the record, we affirm the judgment of the Sullivan County Criminal Court summarily denying relief.

A Sullivan County jury convicted the Defendant, Vianey Becerra Ibanez, of facilitation of possession of more than .5 grams of cocaine, maintaining a dwelling where controlled substances are used or sold, facilitation of sale of more than .5 grams of cocaine, and delivery of more than .5 grams of cocaine. The trial court sentenced the Defendant to a total effective sentence of eleven years in the Tennessee Department of Correction. On appeal, the Defendant contends the trial court erred when it set the length of her sentence and when it denied her alternative sentencing. Having reviewed the record and applicable law, we conclude the trial court properly sentenced the Defendant. As such, we affirm the trial court’s judgments.

This workers’ compensation 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. The employee suffered an injury which the employer denied was in the course of employment. The employee filed a request for assistance with the Tennessee Department of Labor and Workforce Development. The Department ordered the employer to pay temporary disability benefits and medical expenses for the employee’s injury pursuant to Tennessee Code Annotated section 50-6-238(a)(2)(3).  Subsequently the employer, its workers’ compensation carrier and the employee entered into a compromise and release agreement in Pennsylvania pursuant to which the employee was paid $130,000. The employer filed this action against the employee and the Department of Labor requesting reimbursement of payments made pursuant to the Department’s order, as permitted by section 50-6-238(b). The trial court granted the Department’s motion for summary judgment and dismissed the action. We affirm the judgment.

Following a jury trial, the Defendant, Ronald Eugene Brewer, Jr., was convicted of first degree premeditated murder, first degree murder in the attempt to perpetrate a first degree murder, and criminal attempt to commit first degree murder. Following a sentencing hearing, the jury sentenced the Defendant to life imprisonment without the possibility of parole for each count of first degree murder. The trial court merged the two counts of first degree murder and imposed a concurrent twenty-five-year sentence for the third count. In this direct appeal, the Defendant raises the following issues for our review: (1) The State presented insufficient evidence to sustain a conviction for first degree murder; (2) The indictment alleging the intent to directly kill the victim was improperly before the jury; (3) The trial court erred when it refused a change of venue; (4) The trial court erred when it allowed the 911 tape to be admitted into evidence; (5) The trial court erred when it allowed the Defendant’s signed statement, and a comment he made to a police officer while being transported, to be admitted into evidence; (6) The trial court erred when it allowed material related to gangs and gang activity to be admitted into evidence; (7) The trial court erred when it allowed purported expert testimony about gangs; (8) The trial court erred when it allowed testimony about a shell casing found in the Defendant’s vehicle; (9) The trial court erred when it allowed the State to use and present two aggravating circumstances to the jury; and (10) The evidence was insufficient to support a sentence of life imprisonment without the possibility of parole. After our review, we affirm the judgments of the trial court.

The purchasers of a lot and newly constructed residence filed this action against the builders, seeking damages and rescission of the construction and sale agreement. The plaintiffs allege the defendants breached the agreement by failing to construct the home in accordance with “good building practices,” and breached the implied warranty of workmanship. They also allege that statements made by the foreman during construction, concerning the condition of the property, amount to a violation of the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-104(b)(7), as well as common law negligent and fraudulent misrepresentation.The trial court granted the defendant’s motion for a directed verdict on all claims. Finding plaintiffs failed to provide evidence of key elements in each of their claims, we affirm.

In October 2009, the Petitioner, Charles E. Shifflett, Sr., filed a petition for post-conviction relief challenging his convictions for first degree murder and robbery. The Petitioner alleged nine grounds of ineffective assistance of trial counsel and three grounds of prosecutorial misconduct at trial. The post-conviction court summarily dismissed the petition, finding that some of the issues had been raised on direct appeal, and that other allegations were conclusory and failed to sufficiently allege prejudice. Following our review of the record, we reverse the judgment of the Sullivan County Criminal Court and remand for further proceedings.

The Petitioner, Ryan Mathis, pleaded guilty to one count of aggravated burglary, one count of employment of a firearm during a dangerous felony, two counts of aggravated robbery, and three counts of aggravated kidnapping. All of his sentences were ordered to be served concurrently, for a total effective sentence of eight years in the Department of Correction.  The Petitioner filed a petition for post-conviction relief, claiming that he received ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the Petitioner contends that the post-conviction court erred when it denied relief and, specifically, he asserts that Trial Counsel failed to fully advise him of the nature and elements of aggravated kidnapping. After our review, we affirm the denial of post-conviction relief.

This workers’ compensation 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. The employee sustained an injury which resulted in a court-approved workers’ compensation settlement. His authorized physician later recommended medical treatment. The employer’s utilization review provider denied approval of the proposed treatment. The employer filed a motion for a medical examination pursuant to Tennessee Code Annotated section 50-6-204(d)(1) which is required if reasonable. The trial court found the employer’s request to be unreasonable and denied the motion. The employer has appealed. We reverse the trial court’s order and remand for entry of an order granting the motion.

A Shelby County Criminal Court jury convicted the appellant, Christopher Mabry, of aggravated assault, a Class C felony, and aggravated criminal trespass, a Class A misdemeanor. After a sentencing hearing, the trial court sentenced him to consecutive sentences of four years and eleven months, twenty-nine days, respectively. On appeal, the appellant contends that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

This is a post-divorce petition to modify a parenting plan. In the divorce decree, the mother was designated as the primary residential parent of the parties’ daughter. Two years later, the father filed this petition to modify the decree to designate him as the primary residential parent, alleging that the mother had inadequate child care arrangements while the mother was at work, and that the mother had not been adequately caring for the child’s basic personal and educational needs. The parenting plan was temporarily modified to designate the father as the temporary primary residential parent. Nevertheless, the father was ordered to continue paying child support to the mother pending the trial, in order to maintain the status quo. After a hearing, the trial court found a material change in circumstances, but found it was not sufficient to change the designation of primary residential parent to the father on a permanent basis. The father was awarded substantially more parenting time. The father now appeals the denial of his petition to change the designation of primary residential parent and the award of child support to the Mother while he was the temporary primary residential parent.  We affirm the award of child support, but reverse the denial of the petition to change the designation of the primary residential parent based on the mother’s consistently poor judgment in decisions related to the care of the child.

The Defendant-Appellant, Elgie Sykes, was convicted by a Shelby County jury of first degree premeditated murder and sentenced to life with the possibility of parole. On appeal, Sykes claims: (1) the jury instruction for premeditation was improper; (2) the insufficiency of the evidence; (3) the trial court erred by excluding the testimony of a psychologist; and (4) the trial court erred by failing to instruct the jury not to consume alcohol while sequestered. Upon review, we reverse the judgment of the trial court and remand for a new trial.

This appeal arises from a petition seeking judicial review of an administrative agency order, which affirmed citations for workplace safety violations. The Chancery Court affirmed the citations. After reviewing the appellate record, we conclude that the administrative agency did not provide the required findings of fact, conclusions of law, and reasons for its decision. Consequently, judicial review is not possible based on the record before this Court. Therefore, we vacate the order of the Chancery Court and remand for further proceedings consistent with this opinion.

Petitioner, Young Bok Song, appeals from the trial court’s dismissal of a petition for writ of error coram nobis. Petitioner is currently serving a 65 year sentence for seven counts of rape of a child and four counts of aggravated sexual battery. See State v. Young Bok Song, No. M2004-02885-CCA-R3-CD, 2005 WL 2978972, at *12 (Tenn. Crim. App., at Nashville, Nov. 4, 2005), perm. app. denied, (Tenn. Mar. 27, 2006). The petition for writ of error coram nobis alleged that Petitioner was: (1) being illegally restrained as a result of actions by the criminal court; (2) that trial counsel was ineffective for challenging various issues at trial and on appeal; and (3) that his case should be considered by “the Presidential Speech,” public concern, and by the judgment of the International Court of Justice. After a review of the record, we determine that the trial court properly denied coram nobis relief. Consequently, the judgment of the trial court is affirmed.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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. The employee and his employer filed separate workers’compensation complaints on the same day at different times,in differentcourts,and in different counties. The employer filed its cause of action in McMinn County Chancery Court on April 29, 2010, at 3:53 p.m. The employee’s action was filed in Polk County Circuit Court on the same day, but the time of filing was not noted by the court clerk. The employee moved to dismiss the employer’s action on the basis of prior suit pending. The employee’s motion was supported by an  affidavitfrom his attorney’s assistant stating that the employee’s suit was filed before 3:03 p.m. on April 29, 2010 and therefore prior to the time the employer filed suit as designated by the court clerk in McMinn County. The trial court granted theemployee’s motion and dismissed the employer’s action. We affirm the judgment of the trial court.

In August 2001, the Petitioner, Matthew Jackson, pled guilty to two counts of aggravated robbery for which he received two concurrent ten-year sentences. In November 2010, the Petitioner filed a petition for a writ of error coram nobis alleging the existence of newly discovered evidence. The coram nobis court denied relief without a hearing. On appeal, the Petitioner contends the coram nobis court abused its discretion when it denied his petition for coram nobis relief. Having reviewed the record and relevant authorities, we affirm the coram nobis court’s judgment.

The Defendant, Michael Desean Breland, pled guilty to two counts of theft of property, and the trial court sentenced him to two concurrent eight-year sentences to be served on probation. Subsequently, the trial court twice found the Defendant was in violation of the terms of his probation, and it revoked the Defendant’s probation and ordered him to serve the remainder of his sentence in confinement. On appeal, the Defendant contends the trial court erred when it placed his original sentence into effect rather than allow him to return to probation with the condition that he complete an alcohol abuse treatment program. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

A Shelby County jury convicted the Defendant, Iroko Phillips, of one count of aggravated kidnapping and two counts of attempted aggravated rape. The trial court merged the two counts of attempted aggravated rape and imposed on the Defendant as a Range III, Persistent Offender an effective sentence of sixty years in the Tennessee Department of Correction. On appeal, the Defendant contends the evidence is insufficient to support his convictions and that his convictions violate due process principles. Having thoroughly reviewed the record and relevant authorities, we conclude the evidence is sufficient to support the Defendant’s convictions and that his convictions do not violate his due process rights. As such, the trial court’s judgments are affirmed.

The defendant, Travis Lurry, appeals the denial of his request for judicial diversion, arguing that the trial court abused its discretion by improperly weighing the factors for and against diversion. Following our review, we affirm the judgment of the trial court.

The Petitioner, Marlon Williams, appeals the Fayette County Circuit Court’s denial of post-conviction relief from his convictions for possession of marijuana, a Class E felony, and possession of a firearm in the commission of a felony, a Class D felony. He is serving one year for possession of marijuana consecutively to three years for possession of a firearm. The Petitioner contends that he did not receive the effective assistance of counsel in connection with his guilty plea to the possession of a firearm charge and that his pleas were not knowingly and voluntarily entered because he did not understand that the firearm conviction required 100 percent service of the sentence. We affirm the judgment of the trial court.

In 1992, the Petitioner, Alonzo Felix Andres Juan, was convicted of first degree murder and theft of property of a value of $600.00. He was sentenced to concurrent terms of life imprisonment and eleven months and twenty-nine days. This Court affirmed his convictions on direct appeal. See State v. Alonzo Felix Andres Juan, No. 03C01-9211-CR-00382, 1993 WL 310702 (Tenn. Crim. App., Knoxville, Aug. 17, 1993), perm. to appeal denied, (Tenn. Dec. 6, 1993). The Petitioner filed a petition for error coram nobis relief in September 2010, however, the error coram nobis court summarily dismissed his petition without conducting an evidentiary hearing. After our review, we affirm the summary dismissal of the petition.

The defendant, Mira Eva Harris, pled guilty, in two different indictments, to two counts of driving under the influence (“DUI”), two counts of DUI as a prior offender, driving on a revoked license, driving on a revoked license as a prior offender, violation of the implied consent law, and violation of the open container law. After merger with the appropriate prior offender charges, the defendant was sentenced to eleven months and twenty-nine days on each of the two DUI convictions and eleven months and twenty-nine days on the driving on a revoked license conviction, all to be served consecutively, as well as eleven months and twenty-nine days for violation of the implied consent law with five days served consecutively to the other sentences. On appeal, the defendant presumably challenges the sentences imposed by the trial court. Following our review, we affirm the judgments below.

The Defendant pled guilty to promoting the manufacturing of methamphetamine, a Class D felony, with the length and manner of service for the sentence left to the discretion of the trial court. The trial court sentenced the Defendant as a Range I, standard offender to a four-year sentence of split confinement, with nine months to be served in the Blount County Jail and the remainder of the sentence on enhanced supervised probation. In this appeal as of right, the Defendant contends that the trial court erred in imposing the maximum sentence and in determining the manner of service for his sentence. Following our review, we affirm the judgment of the trial court. However, we remand the Defendant’s case with direction to the trial court to correct the judgment to reflect that the Defendant is serving his nine-month period of confinement in the Blount County Jail, not the Tennessee Department of Correction.

The defendant, Rhonda Louise Medley, was convicted in the Bedford County Circuit Court of five counts of rape of a child and subsequently sentenced to an effective term of forty years in the Department of Correction. On appeal, the defendant challenges her convictions and sentences, specifically asserting that: (1) the evidence was insufficient to support the convictions; (2) the trial court erred in imposing consecutive sentencing; and (3) the trial court erred in denying the motion to declare Tennessee Code Annotated section 39-13-522(b)(2)(A) unconstitutional. Following review of the record, we conclude that the evidence was sufficient to support the convictions and that the challenged portion of the statute is not unconstitutional. However, while the trial court appears to have appropriately applied consecutive sentencing, it erred in imposing fifteen-year terms for Counts Two through Five because Tennessee Code Annotated Section 39-13-522(b)(2)(A) mandates that these sentences be set at a minimum of twenty-five years each. As such, we vacate those sentences and remand for resentencing with regard to those convictions, as well as for reconsideration of the imposition of consecutive sentencing in light of the ordered changes in the sentence lengths. The decision of the trial court is affirmed in all other respects.

Petitioner, Eunus Alton Howell, appeals from the dismissal of his petition for writ of habeas corpus. Petitioner was convicted in 1983 of armed robbery and sentenced to life imprisonment as a persistent offender. Petitioner’s sentence and conviction were affirmed on appeal. State v. Howell, 672 S.W.2d 442, 443 (Tenn. Crim. App. 1984). In 2010, Petitioner sought habeas corpus relief on the alleged basis that he was indicted on a charge that did not exist. The habeas corpus court dismissed the petition without a hearing. Petitioner appeals. After a review, we determine that the habeas corpus court properly dismissed the petition for relief.

The defendant, Talmadge S. Crowder, challenges the revocation of his diversionary status, maintaining that the trial court abused its discretion in determining that he violated an Order of Protection and using that violation as a basis for the revocation. After a thorough review of the record, we conclude that there was sufficient evidence for the trial court to determine that the defendant violated the terms of his release by violating an Order of Protection, and we affirm the judgment of the trial court.