APPELLATE COURT OPINIONS

Inmate brought petition for writ of certiorari challenging his conviction of the prison disciplinary offense of conspiracy to violate state law. The trial court granted judgment on the record to the Tennessee Department of Correction (“TDOC”). We have concluded that TDOC failed to follow the Uniform Disciplinary Procedures, but that this departure did not affect the disposition of the case. We therefore affirm the chancellor’s decision.

A Sullivan County Criminal Court Jury convicted the appellant, Douglas Wayne Young, of aggravated rape and sentenced him to twenty-two years in the Tennessee Department of Correction. On appeal, the appellant claims that the trial court erred in (1) admitting the appellant’s nine millimeter handgun into evidence; (2) admitting scientific evidence from a DNA and serology expert; (3) finding that there was sufficient evidence to support the conviction; (4) giving the jury an instruction concerning flight; and (5) imposing a sentence of twenty-two years. Upon review, we affirm the judgment of the trial court.

A woman who failed to have her paternity determined while her putative father was living filed a complaint seeking to establish her right to inherit a part of his estate. Tennessee Code Annotated §31-2-105 requires paternity to be established by clear and convincing evidence if paternity is sought to be established after the putative father’s death. Prior to the trial, the woman moved the chancery court to order the deceased’s family to provide her with DNA samples in an effort to prove the deceased was her father. The trial court denied this motion, finding the rules of civil procedure do not require nonparties to provide DNA samples. Following a bench trial, the court concluded the woman failed to prove by clear and convincing evidence that the deceased was her father. The woman appealed. We affirm the trial court in all respects because, first, nothing in the Rules of Civil Procedure requires the deceased’s family members to provide DNA samples to assist the woman in proving she was the deceased’s daughter. Second, the positive and negative evidence rule does not apply to the testimony in this case because there was no conflicting testimony by eyewitnesses to the woman’s conception. Third, the missing evidence and missing witness rule applies to jury trials, whereas this trial was a bench trial, and there was no evidence that the purportedly missing evidence or missing witnesses were under the estate’s control.

Former cohabitant brought this partition action with respect to real and personal property. On appeal, the defendant argues that the trial court erred in dividing the real property and a mobile home, in finding the motor vehicles to be jointly-owned property, and in dividing the proceeds of a savings account equally between the parties. We have concluded that the trial court erred in dividing the savings account, which is titled in the defendant’s name alone. In all other respects, we affirm the decision of the trial court.

Louise Helen Hindman (“Wife”) and Tommy K. Hindman (“Husband”) were divorced in August of 1997, at which time the trial court approved a marital dissolution agreement (“the MDA”) submitted by the parties. Relevant to the instant case, the MDA addressed future medical and educational expenses for the parties’ minor child (“Son”). After Wife refused to reimburse Husband in compliance with the pertinent provisions of the MDA, he filed a petition seeking to have her held in contempt. The trial court ultimately ordered Wife to pay $43,678. We affirm.

Mother appeals action of the trial court in adding a “paramour provision” to an order approving parenting plan for minor child. We modify the judgment and affirm in all other respects.

This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection. The action was filed pursuant to the Tennessee Governmental Tort Liability Act (“GTLA”), Tenn. Code Ann. § 29-20-101 et seq., against the City of Clinton (“the City”) by plaintiffs Curtis Robin Russell (“Mr. Russell”) and Dorothy Louise Russell (“Mrs. Russell”) (collectively “the Russells”) as next of kin of the decedent, their son Curtis Tyler Russell (“Curtis”). The Russells settled with the driver of the vehicle, Ladislav Misek (“Mr. Misek”), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City. On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.

The defendant, Deadrick Garrett, was convicted of first degree premeditated murder and sentenced to life with the possibility of parole in the Tennessee Department of Correction. On appeal, he argues that the evidence was insufficient to support his conviction and that the trial court erred in excluding evidence regarding the victim’s prior convictions and parole status. After careful review, we affirm the judgment from the trial court.

The Defendant, Lloyd Andra Webb, pled guilty to possession with intent to sell twenty-six grams or more of cocaine, a Class B felony, and to possession of marijuana, a Class A misdemeanor. See T.C.A. §§ 39-17-417 (2010); 39-17-418 (2010). He was sentenced as a Range I, standard offender to nine years for the possession with intent to sell conviction and to eleven months, twenty-nine days for the misdemeanor possession conviction, to be served concurrently. He was order to serve fifteen weekends in the Blount County Jail with the balance of his sentences on community corrections. The Defendant’s plea agreement reserved a certified question of law regarding the legality of the traffic stop that led to his arrest. We affirm the judgment of the trial court.

This appeal involves an award of sanctions. We reverse because the moving party did not comply with the safe harbor provision of Rule 11.03 of the Tennessee Rules of Civil Procedure.

Defendant, Patrick Rico Edwards, was indicted by the Davidson County Grand Jury for murder in the perpetration of a theft and first-degree premeditated murder, both in violation of Tenn. Code Ann. § 39-13-202. After a jury trial began on August 21, 2008, the trial court granted a mistrial. On March 19, 2009, Defendant pleaded guilty to the lesser-included offense of second degree murder. Following a sentencing hearing on May 12, 2009, Defendant was sentenced to serve 21 years in confinement at 100 percent. In this appeal, Defendant challenges the length of his sentence. After a thorough review of the record, we conclude that Defendant’s sentence is not excessive and affirm the judgment of the trial court.

The Defendant, Tony Chester McNally, pled guilty to introducing contraband into a penal institution, a Class C felony. See T.C.A. § 39-16-201 (2010). He was sentenced as a Range I, standard offender to three years’ confinement, to be served consecutively to sentences he was serving at the time of this offense. The Defendant’s plea agreement reserved a certified question of law regarding the legality of the questioning that led to his conviction. Because we conclude that the certified question is not dispositive of the case, we dismiss the appeal.

Sheriff filed a petition for judicial review regarding a decision of the Peace Officer Standards and Training Commission (POST) denying the sheriff’s request for certification. The sheriff argued that his basic recruit training in 1976, when he was a sheriff’s deputy, was equivalent to the Tennessee Law Enforcement Training Academy recruit training required by POST. The chancellor ordered POST to issue a certificate of compliance to the sheriff. Finding no error in POST’s decision, we reverse the chancellor’s decision.

Following a Montgomery County bench trial, the Defendant, Bennie E. Massey, was convicted of five counts of sexual battery by an authority figure, a Class C felony, and sentenced to six years, to be served on probation. The trial court also ordered the Defendant to serve forty-eight hours in jail every two weeks for the first year of his sentence. On appeal, the Defendant contends that the evidence is insufficient to support his convictions because the evidence presented by the State is based solely upon the victims’ testimony and those victims, he asserts, are accomplices to the sexual battery in that they consented to the unlawful touching. Further, he asserts that the trial  court improperly imposed consecutive sentencing. After a thorough review of the record and applicable law, we conclude that the victims were not accomplices, in that their consent was coerced by the Defendant, and that the evidence, therefore, supports the Defendant’s convictions. We further conclude that the trial court properly sentenced the Defendant. As such, we affirm the trial court’s judgments.

Appellant contends that he is a beneficiary of a trust created by his parents and thus entitled to distributions of principal and income. In a declaratory judgment action, the trial court determined that Appellant was not entitled to mandatory distributions of income or principal until both of his parents were deceased. We affirm this portion of the trial court’s judgment. The trial court also determined that no corporate trustee was required. We reverse this portion of the trial court’s judgment and remand for the appointment of a corporate trustee.

The Defendant, Jamie W. Stanfill, pled guilty to three counts of theft of property between $10,000 and $60,000, Class C felonies; one count of theft of property between $1000 and $10,000, a Class D felony; and five counts of burglary of a motor vehicle, Class E felonies. The Defendant agreed to a ten-year sentence, with the trial court to determine the manner of service of his sentence. After a hearing, the trial court ordered him to serve his sentence in confinement. The Defendant appeals, contending the trial court improperly denied his request for an alternative  sentence. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

The Bureau of TennCare filed a claim against a decedent’s estate to recover the cost of medical assistance provided to the decedent. The Estate filed an exception to the claim. The probate court sustained the claim, and the Estate appealed the probate court’s ruling to the circuit court which heard the matter de novo. The circuit court reversed the probate court and disallowed the claim of TennCare. TennCare appeals; we hold that the circuit court was without subject matter jurisdiction to review the probate court’s order. We vacate the judgment of the circuit court and remand the case.

A Davidson County jury convicted the Petitioner, Levi Battle, III, of possession of twenty-six grams or more of cocaine with intent to sell or deliver, and the trial court sentenced him to thirty years, at 60%, in the Tennessee Department of Correction. The Petitioner filed a petition for habeas corpus relief, in which he alleged that his sentence was illegal because he was sentenced outside of his sentencing range. The habeas corpus court dismissed the petition, and the Petitioner appeals the habeas corpus court’s judgment. After careful review, we affirm the judgment of the habeas corpus court.

Defendant, Robert Conley, filed a pro se notice of appeal which was timely as to the trial court’s order denying Defendant’s motion for reduction of sentence pursuant to Tennessee Rule of Criminal Procedure 35. The trial court subsequently appointed counsel to represent Defendant. In his brief on appeal, Defendant challenges the trial court’s order revoking his community corrections sentence and ordering service of the fourteen-year sentence by incarceration, in addition to arguing that the trial court erred by denying his Rule 35 motion. We conclude that the issue regarding revocation of the community corrections sentence is waived by Defendant’s failure to timely appeal that order. Further, we find that the trial court did not abuse its discretion by denying Defendant’s Rule 35 motion, and, accordingly affirm the judgment of the trial court.

The Petitioner, Shawn Blair, appeals the post-conviction court’s dismissal of his petition for post-conviction relief from his two convictions for simple possession of marijuana and resulting sentences of eleven-months, twenty-nine days for each conviction to be served consecutively. The post-conviction court summarily dismissed the petition without appointing counsel or conducting a hearing on the basis that the Petitioner had filed it while his direct appeal was pending. The Petitioner argues that he is entitled to post-conviction relief because he did not plead guilty knowingly and voluntarily and because he received the ineffective assistance of counsel. The State contends that the post-conviction court improperly dismissed the petition because the  Petitioner did not file it prematurely. Upon review of the record and the parties’ briefs, we reverse the judgment of the post-conviction court and remand the case for further proceedings consistent  with this opinion.

This is a divorce case. One minor child was born of the marriage. After the parties filed for divorce, the wife relocated out of state with the parties’ child without obtaining court permission to do so. The husband filed a petition to hold the wife in contempt for relocating out of state with the child. The trial court declined to hold the wife in contempt, designated the wife as the primary residential parent, and ordered the husband to pay child support. In dividing the marital property, the husband was ordered to pay the statutory penalty for early withdrawal of the monies in his retirement savings account. The wife was awarded rehabilitative alimony and attorney fees as alimony in solido. The husband now appeals the relocation decision, the designation of primary residential parent, the assessment of the retirement account penalty, and the award of attorney fees. We  affirm.

Defendant, Sonny Wayne Smith, was indicted by the Marshall County Grand Jury for harassment, a class E felony, in violation of Tenn. Code Ann. § 39-17-308. Defendant entered a guilty plea to the offense as charged. Following a sentencing hearing, Defendant was sentenced as a Range I standard offender to serve two years in confinement, and his sentence was ordered to be served consecutively to a misdemeanor sentence. In this direct appeal, Defendant challenges the length of his sentence and the consecutive sentencing. After review, we affirm the judgment of the trial court.

The Defendant, Andrew Colin Hicks, appeals as of right from the trial court’s denial of judicial diversion following his guilty plea to facilitation of attempted aggravated arson, a Class C felony. Following a sentencing hearing, the trial court imposed a sentence of three years probation. The Defendant contends that the trial court erred by denying his application for judicial diversion. Following our review, we affirm the judgment of the trial court.

Advanced Photographic Solutions, LLC (“Advanced”) sued National Studios, Inc. a/k/a NSI Closeout, Inc. (“National”) and Harold C. Lewis (“Lewis”) alleging that National owed on an account that was in default. After a jury trial, the trial court entered its Final Judgment on the jury’s verdict finding, inter alia, that Advanced had a contract with National, that National had breached the contract, that Lewis had a contract with Advanced providing his personal guaranty to pay National’s debt, and that Lewis had breached his contract of personal guaranty. The Final Judgment awarded Advanced judgment against National and Lewis jointly and severally in the amount of $400,526.70, and judgment against Lewis solely in the amount of $54,806.00 as attorney’s fees. National and Lewis appeal to this Court. The issues raised on appeal concern whether there was material evidence to support the jury’s verdict. We find that the record contains material evidence to support the jury’s verdict, and we affirm the trial court’s Final Judgment.

A Madison County Circuit Court Jury convicted the appellant, Willie Long, Jr., of two counts of the sale or delivery of a Schedule I drug and one count of simple possession/casual exchange of a Schedule I drug. The trial court imposed a total effective sentence of eleven years in the Tennessee Department of Correction (TDOC) and ordered the appellant to serve eleven months and twenty-nine days of his felony sentences in the county jail “day for day” prior to being released on community corrections. On appeal, the appellant argues that the evidence adduced at trial was insufficient to sustain his convictions, that the trial court erred in enhancing the appellant’s felony sentences to eleven years, and that the trial court erred in ordering the appellant to serve eleven months and twenty-nine days of his felony sentences in the county jail “day for day.” The State concedes that the trial court erred in imposing “day for day” confinement in the county jail but argues the judgments should be affirmed in all other respects. Upon review, we affirm the appellant’s convictions and the length of the sentences imposed but remand for a correction of the judgments to provide that the appellant is entitled to earn good conduct credits while serving eleven months and twenty-nine days of his felony sentences in jail.