APPELLATE COURT OPINIONS

The petitioner, Dwane Washington, appeals the post-conviction court’s ruling that he failed to prove prejudice by clear and convincing evidence after his case was remanded for a determination of prejudice. The proper standard of review was whether the petitioner had shown that there was a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial. After a careful review, we conclude that the post-conviction court used the wrong standard in requiring the petitioner to prove prejudice by clear and convincing evidence and that the record before us clearly establishes that there was a reasonable probability that, but for trial counsel’s inaccurate assurances that the petitioner was eligible for boot camp, he would not have pled guilty and would have insisted on going to trial. We reverse the judgment of the post-conviction court, vacate the petitioner’s judgment of conviction, and remand the case for a trial.

This is a parentage action in which an adult child seeks retroactive child support from his biological father. The juvenile court dismissed the petition. After a thorough review of the record, we vacate the judgment of the juvenile court for failure to join a party pursuant to Tennessee Rule of Civil Procedure 19, and we remand for further proceedings consistent with this opinion.

The petitioner, John W. Foster, Jr., appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his conviction for aggravated robbery and resulting sentence of thirty years to be served at sixty percent before eligible for release. The petitioner contends that he received the ineffective assistance of counsel. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

A Davidson County jury convicted the defendant, Elmi Adulahi Abdi, of attempted aggravated robbery, a Class C felony. The trial court sentenced him as a Range II, multiple offender to ten years in the Tennessee Department of Correction, consecutive to his sentence in Davidson County case number 2006-A-30. On appeal, the defendant argues that (1) the evidence was insufficient to support his conviction; (2) the trial court erred by admitting videotape evidence; and (3) the trial court erred by enhancing the defendant’s sentence and ordering him to serve his sentence consecutive to case number 2006-A-30. Following our review, we affirm the judgment of the trial court.

The plaintiff home buyer and defendant home seller entered into an agreement to repair a drain at some future date because it had been improperly piped out of the buyer’s house. When the time for performance came, the drain was not moved, resulting in damages to the buyer’s home. The buyer sued for breach of contract. The circuit court granted a directed verdict to the defendant on the ground that there was no consideration to support the contract. We find that the mutual promises made by the parties constituted adequate consideration. We accordingly reverse the trial court and remand this case for such further proceedings as necessary.

This post-divorce appeal involves recusal of the trial judge. In the initial divorce proceedings, the trial judge recused himself based in part on friendship with the parties. A special judge was appointed to hear the case. The special judge tried the divorce, divided the parties’ property, and awarded the wife alimony in futuro. Several years later, the husband filed a petition to terminate or modify his alimony obligation. The trial judge who had previously recused himself declined to do so for the post-divorce proceedings. After a hearing, the trial judge terminated the husband’s alimony obligation. The wife appeals, arguing that the trial judge should have recused himself and that he erred in terminating the alimony. We reverse the trial court’s decision on recusal, and therefore vacate the trial court’s ruling on the husband’s petition to modify.

A jury convicted the Petitioner, Nancy L. Blue, of two counts of rape of a child and two counts of incest. On direct appeal, this Court affirmed her convictions but modified her sentences. See State v. Nancy Blue, No. W2008-00187-CCA-R3-CD, 2009 WL 1097450, at *1 (Tenn. Crim. App., Jackson, Apr. 23, 2009), perm. to appeal denied, (Tenn. Sept. 28, 2009). The Petitioner filed a pro se petition for post-conviction relief; however, the postconviction court granted the State’s motion to dismiss, finding that the petition was not timely filed. The Petitioner alleges that both prison notaries were unavailable for several days preceding the date that her petition was due and, because of their absence, she was not able to get her petition to the appropriate prison authorities for mailing until the day after the one-year statute of limitations ran. After our review, we remand to  the post-conviction court for an evidentiary hearing to determine whether sufficient evidence exists to warrant tolling the statute of limitations for due process concerns and whether the Petitioner timely filed her petition for post-conviction relief.

The defendant, Steven Craig Wilcox, pled guilty to conspiracy to promote the manufacture of methamphetamine, a Class E felony, in exchange for a four-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court denied the defendant’s request for an alternative sentence, ordering instead that the defendant serve his term in the Department of Correction. On appeal, the defendant argues that the trial court erred in imposing a sentence of confinement. After review, we affirm the sentencing decision of the trial court.

Sally Jo Witty is a teacher employed by the Blount County School System. She filed this action after her request to draw pay from a pool of donated sick leave was denied. She named as defendants the trustees appointed to administer the pool (collectively “the Trustees”). She also sued the Blount County Board of Education (“the School Board”) and alleged it is vicariously liable. She demanded the full monetary value of the requested sick leave and also asked for damages to compensate her for the mental suffering resulting from the “wrongful” decision to deny her  benefits. The trial court held that the Trustees were an independent body for which the School Board could not be held vicariously liable. It also held that the Trustees were immune from liability in their individual capacities and that the action filed against the Trustees in their official capacity was a petition for writ of certiorari that was not timely filed. Therefore, it dismissed the complaint. Witty appeals. We affirm the trial court’s judgment in part and vacate it in part.

This is an action for negligent infliction of emotional distress. The mother of a middle school student filed suit against Knox County, the Knox County Board of Education, and the City of Knoxville after her daughter viewed graphic photographs of her dead father during a presentation on the dangers of drunk driving. The trial court found the City of Knoxville liable for the student’s emotional injuries because the school resource officer who distributed the photographs intended  to evoke an emotional response. We conclude it was generally foreseeable that providing graphic  accident scene photographs to seventh grade students could cause serious or severe emotional harm in a student related to a victim depicted therein. Thus, the school resource officer owed a duty to exercise reasonable care when displaying the photographs to a class that potentially included students related to the victims. The evidence, however, preponderates against the trial court’s finding that the school resource officer failed to exercise reasonable care. We reverse the decision of the trial court.

A Shelby County jury convicted the defendant, Carlos Walls, of aggravated sexual battery, a Class B felony. The trial court sentenced him as a Range I, violent offender to twelve years in the Tennessee Department of Correction. On appeal, the defendant argues that the evidence was insufficient to support his conviction, that the trial court erred in admitting the defendant’s statement to the Department of Children’s Services as evidence, and that the trial court applied improper enhancement factors. Following our review, we affirm the judgment of the trial court.

In this State appeal, the State contends that the trial court erroneously interfered with its plea negotiations with the defendant. The State has no right to appeal via the Tennessee Rules of Appellate Procedure. Because the State’s claim in case number 33292 regarding the trial court’s acceptance of the defendant’s guilty plea to a community corrections violation is not reviewable via the common law writ of certiorari, a majority has concluded, albeit on different grounds, that the State’s claim in that regard should be dismissed. Because the record establishes that the trial court acted outside its authority in case number 35646, a majority has reviewed the State’s claims in that case via the common law writ of certiorari and has concluded that the trial court was without authority to accept the defendant’s plea of guilty to the lesser included offense of unauthorized use of an automobile without the consent of the State. In consequence, the conviction of the unauthorized use of an automobile is vacated and reversed, and that count of the indictment is remanded to the trial court for further proceedings on the original charge of theft of property valued at more than $1,000 but less than $10,000. With regard to the sentences imposed in both cases, a majority of the court that does not include the author of this opinion has concluded, on differing grounds, that a remand for resentencing is appropriate.

I agree with the majority’s conclusion that the trial court was without authority to reduce the charge of theft of property valued at more than $1,000 but less than $10,000 and that the Defendant’s conviction of unauthorized use of an automobile is void. However, I respectfully disagree with the majority’s conclusion that the common law writ of certiorari does not provide the State with an avenue in which to appeal the entirety of the trial court’s actions. While I agree that the trial court effectively rejected the plea agreement, the trial court merely imposed a sentence of its own choosing without affording the State an opportunity to participate in a sentencing hearing. See State v. Leath, 977 S.W.2d 132, 136 (Tenn. Crim. App. 1998) (concluding that the trial court “exceeded its authority by unilaterally reducing the [defendant’s] sentence”). Moreover, I believe that the trial court violated Rule 11 of the Tennessee Rules of Criminal Procedure by advising the Defendant of the sentence he would receive if he decided to plead guilty in the absence of an agreement with the State. Rule 11 provides, “The district attorney general and the defendant’s attorney, or the defendant when acting pro se, may discuss and reach a plea agreement. The court shall not participate in these discussions.” If the Tennessee Rules of Criminal Procedure effectively prohibit the trial court from participating in the plea negotiation process, these rules most certainly must prohibit the trial court from excluding the State from the negotiation process and crafting its own agreement with the Defendant. Accordingly, I believe that the trial court exceeded its authority in this case and that the case should be remanded for a sentencing hearing.

In this child-support matter, Father appeals the trial court’s determination of his parenting time and income for the purpose of setting his child support obligation. Finding no error, we affirm.

In this State appeal, the State challenges the Madison County Circuit Court’s decision dismissing the charges against the defendant and expunging them from her record, claiming that the trial court was without jurisdiction to take the action because the judgment had become final. Discerning no error, we affirm the judgment of the circuit court.

I agree with my colleagues that the common law writ of certiorari is the proper means to have this court address the trial court’s actions regarding improperly reducing the felony theft charge to unauthorized use of an automobile. I differ, though, in how the issue is addressed. I also agree with Judge Thomas that a new sentencing hearing is in order.

Petitioner, a teenager enrolled in the TennCare program, was denied coverage for orthodontic braces by the Tennessee Department of Finance and Administration (“TDFA”). Petitioner contends he qualifies for orthodontic treatment under Tenn. Comp. R. & Reg. 1200-13-13-.04(1)(b)6 due to a severe misalignment that constitutes a medical necessity. He also contends that Tenn. Comp. R. & Regs. 1200-13-13.04(1)(b)6, which limits orthodontic treatment to persons with “a handicapping malocclusion or another developmental anomaly or injury resulting in severe misalignment or handicapping malocclusion of teeth,” is in conflict with the Early and Periodic Screening, Diagnosis and Treatment program in 42 U.S.C. § 1396d(a)(4)(B) and in violation of the Medicaid Act, 42 U.S.C. § 1396d(r)(5). TDFA contends that TennCare regulations provide orthodontic coverage consistent with federal law, that it correctly interpreted and applied its own regulations regarding Petitioner’s request for orthodontic braces, and that the courts are to defer to the agency’s interpretation of its own rules. The Chancery Court for Davidson County affirmed the administrative decision. We also affirm.

The plaintiff, Deborah Lynn Davis, appeals from a grant of summary judgment to the defendants, Dr. Jack E. Scariano, Jr., and his group, West Knoxville Neurological Associates. Except when the context requires otherwise, we will refer to the defendants collectively as “Dr. Scariano.” Davis sued Dr. Scariano alleging medical malpractice and fraud related to the doctor’s treatment of her and to the billing of her account. Dr. Scariano moved for summary judgment. After granting Davis several continuances, the trial court heard the motion and granted it based on Dr. Scariano’s filings and the plaintiff’s failure to present evidence establishing a disputed issue of material fact. Davis appeals. We affirm.

A Tipton County Circuit Court jury convicted the appellant, Tony Arness Degraffreed, of rape of a child, a Class A felony, and the trial court sentenced him to twenty-five years in confinement to be served at one hundred percent. On appeal, the appellant contends that (1) the evidence is insufficient to support the conviction, (2) the trial court erred by refusing to require the jury to determine whether his penetration of the victim was digital or penile, and (3) the State improperly commented on the appellant’s failure to testify during it closing argument. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

The Defendant, Scott D. Julian, was convicted by a Knox County Criminal Court jury of three counts of sexual battery by an authority figure, a Class C felony, and sexual exploitation of a minor, a Class D felony. See T.C.A. §§ 39-13-527, 39-17-1003 (2010). He was sentenced as a Range I, standard offender to three years’ probation for each of the sexual battery convictions and to two years’ confinement for the sexual exploitation conviction, to be served concurrently. On appeal, he contends that (1) the evidence was insufficient to support his convictions, (2) the State’s failure to provide a more specific bill of particulars deprived him of a fair trial and the ability to prepare a defense, (3) the trial court erred by denying his request to question witnesses about the existence of a sexual relationship between the victim and a witness, (4) the trial court erred by admitting a recorded telephone conversation between the Defendant and the victim, and (5) the State’s election of the offenses in counts three and five were not specific enough to ensure jury unanimity. We affirm the judgments of the trial court.

Plaintiff/Appellant H.J. Heinz Company, LP, is a Delaware limited partnership that manufactures, sells and distributes food products. Plaintiff operates a facility in Nashville, Tennessee. The issue in this case is whether Plaintiff’s income from its investment in HJH One, LLC, is subject to taxation, on an apportionment basis, in Tennessee. The trial court determined that the earnings constituted business earnings as defined by the relevant statutes, and that the Department of Revenue’s assessment of franchise and excise taxes on the earnings was constitutional. The trial court further determined that the apportionment formula used by the Department was correct. The trial court awarded summary judgment to the Commissioner, and Plaintiff appeals. We affirm.

This is a biological father’s appeal from a judgment terminating his parental rights. The trial court found by clear and convincing evidence (1) that he had abandoned the child by willfully failing to visit during the four-month period immediately preceding the filing of the petition to terminate; (2) that he had not substantially complied with his obligations under a court-approved permanency plan despite reasonable efforts to reunite him with the child; and (3) that termination is in the best interest of the child. We affirm.

Property owner seeks review of the trial court’s decision that two citations were properly issued against him because he did not have a permit for hosting historic home events on his property as required by the Metropolitan Government. We affirm.

Keilah Gonzalez-Bonilla (“Mother”) and Eduardo Mendez (“Father”) are the divorced parents of a minor child (“the Child”). At the time of the divorce, Mother was named the primary residential parent of the Child, and Father was granted visitation. After the divorce, Mother relocated and a revised permanent parenting plan was entered on August 3, 2007. In December of 2007, Father filed a petition seeking a change in custody of the Child alleging that a material change in circumstances had occurred. After a trial, the Trial Court entered its order on August 4, 2009 finding and holding, inter alia, that there had been a material change in circumstances since February 5, 2007, that custody would be changed with Father to be the primary residential parent, and that the joint decision making would be changed and Father shall have the decision-making authority. Mother appeals to this Court. We find that the proper date from which to determine whether there had been a material change in circumstances is the date the previous order was entered, i.e., August 3, 2007, and that a material change in circumstances sufficient to justify a change in custody had not been proven. We, therefore, reverse the Trial Court’s order changing custody, and remand this case to the Trial Court for reconsideration of its orders regarding child support in light of this Opinion.

This appeal involves in personam jurisdiction over a foreign defendant. Appellant State of Tennessee brought suit against Appellee tobacco product manufacturer, under the Tobacco Escrow Fund Act, Tennessee Code Annotated Sections 47-31-101 et seq., alleging that Appellee had failed to make escrow deposits, as required under the Act, for cigarettes sold in Tennessee. Based upon the trial court’s finding that it lacked personal jurisdiction over the Appellee, it entered summary judgment in favor of the manufacturer. The State appeals. Upon review, we conclude that: (1) the facts of this case show that the manufacturer intentionally used a distribution system with the desired result of selling its product in all fifty states, including Tennessee, so as to support a finding that the manufacturer had minimum contacts with the State necessary to invoke the exercise of personal jurisdiction; (2) the exercise of personal jurisdiction, under the facts of this case, is reasonable and fair; (3) the manufacturer is subject to regulation under the Act; and (4) the Act is not unconstitutional. Moreover, we conclude that: (1) Appellee is a tobacco products manufacturer, as defined by the Escrow Fund Act; (2) Appellee’s cigarettes were sold in Tennessee; and (3) Appellee is, therefore, liable for escrow payments under the Escrow Fund Act. Consequently, we grant the State’s motion for summary judgment. The order of the trial court is reversed, and the matter is remanded for entry of summary judgment in favor of Appellant State and for calculation of the escrow amount owed by Appellee and entry of judgment thereon.