APPELLATE COURT OPINIONS

Defendant, Christopher Fielder, was indicted along with his co-defendants Korry Hernandez and John Karcher for the class A felonies of especially aggravated robbery and especially aggravated kidnapping of Jason Seitz. Defendant proceeded to be tried by a Shelby County jury. His co-defendants testified against him pursuant to negotiated plea agreements. The jury found Defendant guilty as charged. The trial court sentenced Defendant to serve twenty years for each of the Class A felony convictions, and ordered the sentences to be served concurrently with each other. Defendant appeals, arguing that the evidence was insufficient to support his convictions and that the sentences are excessive because (1) the trial court improperly applied enhancement factors; (2) the trial court erroneously failed to apply appropriate mitigating factors; and (3) his sentences are excessive and disproportionate when compared with the sentences received by his co-defendants. We find no error and affirm the judgments of the trial court.

The Defendant, Joseph A. Patterson, was found guilty at a bench trial before the Williamson County Criminal Court of driving under the influence, second offense, a Class A misdemeanor. See T.C.A. § 55-10-401 (2008) (amended 2010). He was sentenced to eleven months and twenty-nine days, with fifty-five days of the sentence to be served. On appeal, he contends that the trial court erred by denying his motion to suppress. We affirm the judgment of the trial court.

The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother’s risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life. The daughter, as her mother’s representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft’s fall prevention policies and procedures. Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met. We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice. We conclude the court did not err in refusing to charge the jury on the physician’s comparative fault or the daughter’s comparative negligence. We also conclude there was material evidence to support the jury’s award of damages. Consequently, we affirm.
 

The Petitioner, Antonio J. Beasley, Sr., appeals the Hamilton County Criminal Court’s dismissal of his petition for error coram nobis relief from his 1989 conviction for grand larceny and his 1990 convictions for possession of cocaine and attempted arson. He claims his convictions should be vacated because trial counsel and the trial court did not inform him that his convictions could be used to enhance future sentences, thus rendering his guilty pleas involuntary and unintelligent. The State has moved this court to dismiss the Petitioner’s appeal as untimely, or, in the alternative, affirm the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The State’s motion for a memorandum opinion is granted, and the judgment of the trial court is affirmed.

The defendant, Guy Alvin Williamson, was convicted by a Tipton County Circuit Court jury of being a convicted felon in possession of a handgun and possession of a firearm while under the influence of alcohol or a controlled substance. He was sentenced to an effective term of three years, suspended to probation. On appeal, he argues that the trial court erred in denying his motion to suppress the evidence and dismiss the indictment and that the evidence was not sufficient to support his conviction for convicted felon in possession of a handgun. After review, we affirm the judgments of the trial court.

In 2007, 2008, and 2009 in Sullivan County, Appellant, Alfred Gettner, was charged by presentment, indicted, and consented to prosecution by information for various counts consisting of four counts of violating an habitual traffic offender order, one count of driving under the influence (“DUI”), third offense, and one count of failing to yield to an emergency vehicle. On May 1, 2009, Appellant entered a negotiated plea to four counts of violation of a habitual traffic offender order, one count of DUI, first offense, and one count of failing to yield to an emergency vehicle. The agreed to sentence was an effective sentence of six years. Appellant requested an alternative sentence. The trial court held a hearing and denied Appellant’s request. Appellant appealed to this Court and argued that the trial court erred in denying his request for an alternative sentence. Because Appellant failed to include a copy of the transcript from his guilty plea hearing, he has waived the presentation of his issue to this Court. Therefore, we dismiss this appeal.

The defendant, Herschel Van Lillard, was convicted by a Davidson County jury of first degree felony murder and was sentenced by the trial court to life imprisonment in the Department of Correction. The sole issue he raises on appeal is whether the evidence was sufficient to sustain his conviction. Following our review,we affirm the judgmentof the trial court.

Petitioner, James W. Vanover, was convicted following a jury trial, for one count of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony. He was given an effective sentence of 36 years. On appeal, this Court affirmed the convictions but remanded for sentencing. State v. James Vanover, No. E2005- 1192-CCA-R3-CD, 2006 WL 521496 (Tenn. Crim. App. March 2, 2006). Upon resentencing, he was again sentenced to serve 36 years. On appeal, this Court held that the trial court properly ordered consecutive sentencing at the second sentencing hearing. State v. James Vanover, No. E2006-01342- CCA-R3-CD, 2007 WL 2323386 (Tenn. Crim. App. August 15, 2007) perm. app. denied (Tenn. July 7, 2008). Petitioner timely filed a petition for post- onviction relief, alleging that he received ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief, and Petitioner appeals. After review, we affirm the judgment of the post-conviction court.

I concur in results because, respectfully, I disagree that we should per se presume the correctness of the sentencing judgment based upon the absence of the plea submission hearing transcript. I believe that the presentence report contained in the record provides this court with an understanding of the nature and circumstances of the offenses such that we can perform our mandated duty of conducting a de novo review upon the record. On the other hand, I believe that the trial court’s judgment is supported in the record and should be affirmed on that basis.

The petitioner, Emmett Russell McGee, Jr., appeals from the Bedford County Criminal Court’s denial of post-conviction relief from his convictions based upon guilty pleas on two counts of possession with intent to sell three hundred grams or more of cocaine and the resulting sentences of ten and eleven years to be served consecutively. On appeal, the petitioner contends that his guilty plea was not voluntarily entered due to the ineffective assistance provided by trial counsel. Specifically, he contends that trial counsel gave him improper advice concerning the possible sentences he could receive if he proceeded to trial. In addition, for the first time on appeal, the petitioner raises a challenge to the consecutive nature of the sentences, asserting that it is illegal and excessive in light of the fact that the elements of both convictions arose out of the same transaction. Following review, we conclude that the post-conviction court properly determined that trial counsel was not ineffective. Further, we conclude that the petitioner has waived review of his second issue. As such, the denial of his petition for post-conviction relief is affirmed.

This is a termination of parental rights case regarding Baron H.S.M. (“the Child”), the son of Sandra M. (“Mother”). Mother maintained a long-term relationship with Ray C., before and since the Child’s birth. She contends that Ray is the Child’s biological father.1 Mother was incarcerated when the Child was born. She arranged to transfer the Child to the care of Ray’s sister, Peggy V. and her husband, Ronald V. collectively, “the Guardians”). Over two years after they took custody, the Guardians filed a petition to terminate Mother’s parental rights and adopt the Child. After a bench trial, the court terminated Mother’s rights upon finding, by clear and convincing evidence, (1) that Mother had abandoned the Child by willfully failing to visit or support him and (2) that termination is in the Child’s best interest. Mother appeals. We affirm.

The defendant, Deshawn Wentz, was convicted bya Montgomery County jury of possession of .5 grams or more of cocaine with intent to sell, a Class B felony, and tampering with evidence, a Class C felony, and was sentenced bythe trial court to concurrent terms of eleven and seven years, respectively, to be served in the Department of Correction. On appeal, he contends that (1) the trial court erred in denying his motion to suppress and (2) the evidence is insufficient to sustain his convictions. Following our review, we affirm the judgments of the trial court.

Appellant appealed the trial court's order granting Appellee's “Motion of Methodist Healthcare-Memphis Hospitals to Strike, or in the Alternative, Motion in Limine, or In the Alternative, for Partial Judgment and Memorandum.” We dismiss this appeal for lack of
jurisdiction.

Petitioner, Matthew Lee Sweet, was convicted by a Greene County jury of two counts of aggravated child abuse. State v. Matthew Lee Sweet, No. E2007-00202-CCA-R3-PC, 2008 WL 1723431, at *1 (Tenn. Crim. App., at Knoxville, Apr. 15, 2008). He received an effective sentence of twenty-five years. Id.Petitioner’s convictions were affirmed in a delayed appeal. Id. Subsequently, Petitioner sought post-conviction relief on the basis of ineffective assistance of counsel. After a hearing on the petition, the post-conviction court denied post-conviction relief and dismissed the petition. After a thorough review, we determine that Petitioner has failed to show clear and convincing evidence that he is entitled to post-conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.

The defendant, Kristen A. Wilson, presents for our review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The defendant pleaded guilty to driving under the influence, per se. As a condition of her guilty plea, the defendant reserved a certified question of law challenging the admissibility of her blood sample based on the two-hour admissibility limit. Following our review, we reverse the judgment of the trial court.
 

This is a termination of parental rights case. The juvenile court terminated the parental rights of the mother on the grounds of persistence of conditions, substantial noncompliance with the terms of her permanency plans, severe child abuse, and abandonment. The mother appeals, arguing the Department of Children’s Services did not make reasonable efforts to reunite her with her children following their removal and did not clearly and convincingly prove termination of her parental rights was in the best interests of the children. We affirm.

A Shelby County jury convicted the Defendant, Kenneth Hayes, of reckless aggravated assault, two counts of aggravated assault, criminal attempt to commit the intentional killing of an animal worth over $1000, theft of property over $1000, and evading arrest. The trial court ordered the Defendant to serve an effective sentence of forty years, eleven months, and twenty-nine days in the Tennessee Department of Correction. On appeal, the Defendant argues that the trial court imposed an excessive sentence and that it erred when it denied him alternative sentencing. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

The Defendant, Lamont Hogan, pled guilty as indicted by the Dickson County Grand Jury for sale of less than .5 grams of cocaine, a Class C felony, and sale of a counterfeit controlled substance, a Class E felony, with the length and manner of service for the sentences left to the discretion of the trial court. Following a sentencing hearing, the trial court sentenced the Defendant as Range III, persistent offender to ten years for the Class C felony conviction and a concurrent four years for the Class E felony conviction. The trial court ordered the Defendant to serve his total effective sentence of ten years in the Tennessee Department of Correction. In this appeal as of right, the Defendant contends that the trial court erred in denying alternatively sentencing. Following our review, we affirm the judgments of the trial court.

The petitioner, Brandon Mobley, appeals from the Knox County Criminal Court’s denial of his petition for post-conviction relief challenging his 2005 convictions of two counts of premeditated first degree murder, especially aggravated robbery, and setting fire to personal property for which he is now serving two consecutive life sentences plus 19 years in the custody of the Department of Correction. On appeal, the petitioner contends that the postconviction court erred by denying his petition for post-conviction relief based upon allegations that he was denied the effective assistance of counsel and other constitutional deprivations. Because we determine that the petitioner is entitled to relief on the issue of the ineffective assistance of counsel concerning the use of expert testimony, we reverse the judgment of the post-conviction court.

A Dickson County Circuit Court jury convicted the appellant, David Enrique Leon, of first degree felony murder and aggravated robbery, and the trial court sentenced him to consecutive sentences of life and ten years, 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.

I concur in the holding of the majority that the allegations of ineffective assistance of counsel save for the failure to ask the expert witness whether Petitioner could premeditate do not have merit. However, I dissent from the holding that counsel was ineffective in failing to ask the defense’s expert the ultimate question of whether Petitioner could have “premeditated” the murders for which he was convicted.

The petitioner, Jarvis Harris, appeals the denial of his petition for post-conviction relief, which challenged his convictions of first degree premeditated murder and attempted first degree murder. In this appeal, the petitioner challenges the trial court’s denial of his pretrial motion to suppress the evidence, the sufficiency of the convicting evidence, and the performance of his attorneys at trial and on appeal. Because the first two issues are either waived or previously determined, see T.C.A. § 40-30-106(g)-(h) (2006), and because the petitioner failed to establish by clear and convincing evidence that he was denied the effective assistance of counsel, we affirm the denial of post-conviction relief.

The appellant, James Johnson, pled guilty in the Shelby County Criminal Court to vehicular homicide by intoxication, a Class B felony, and received a ten-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered the appellant to serve the sentence in confinement. On appeal, the appellant contends that the trial court erred by denying his request for alternative sentencing. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Petitioner, Montreal Lyons, was convicted by a Shelby County jury of four counts of aggravated robbery and one count of especially aggravated kidnapping. State v. Montreal Lyons, No. W2006-02445-CCA-R3-CD, 2008 WL 2699657, at *3 (Tenn. Crim. App., at Jackson, July 9, 2008), , (Tenn. Jan. 20, 2009). Petitioner received an effective sentence of forty-four years. Petitioner was unsuccessful on appeal to this Court. Id. at *7. Subsequently, Petitioner filed a petition for post-conviction relief. Among other issues, Petitioner argued that he was afforded ineffective assistance of counsel because trial counsel failed to properly cross-examine the victims during the trial. The post-conviction court denied the petition. On appeal, Petitioner argues that the post-conviction court erred because he was prejudiced by the trial counsel’s failure to properly cross-examine the victims. After a thorough review of the record, we conclude that Petitioner has not demonstrated that he was prejudiced by the trial counsel’s cross-examination of the victims. Therefore, we affirm the post-conviction court’s denial of the petition.

Appeal from a judgment confirming an arbitration award. The principle defense is that the appellant, the party against whom the arbitration award was issued, was never a party to the arbitration agreement at issue and did not participate in the arbitration proceedings. The trial court confirmed the arbitration award and enrolled a judgment against the appellant in the amount of $78,956.80 plus costs. We reverse the confirmation of the award against the appellant upon the finding that the trial court lacked subject matter jurisdiction to confirm the award. This is because the statute which confers jurisdiction upon the court to confirm arbitration awards, Tenn. Code Ann. § 29-5-302, requires a written arbitration agreement between the parties, and there is no written agreement between the appellant and appellee to arbitrate. Thus, the trial court was without jurisdiction to confirm an arbitration award against the appellant.