APPELLATE COURT OPINIONS

Defendant-Appellant, James Todd, was convicted by a Shelby County Jury of one count of attempted first degree murder, a Class A felony, and one count of aggravated assault, a Class C felony. Todd received a twenty-five-year sentence at thirty percent for the attempted first degree murder conviction and a consecutive ten-year sentence at thirty-five percent for the aggravated assault conviction, for an effective sentence of thirty-five years in the Tennessee Department of Correction. On appeal, Todd argues that (1) the trial court erred in denying his motion to suppress his statement; (2) the trial court erred in allowing the victim to testify at trial that she previously identified Todd as the perpetrator at a prior hearing; (3) the trial court erred in admitting unauthenticated and unfairly prejudicial photographs at trial; (4) the trial court erred in adding language to the jury instruction on duress; (5) the evidence was insufficient to support his convictions; and (6) the trial court erred in imposing an excessive sentence. Upon review, we affirm the judgments of the trial court.

The petitioner, Adrian K. Nelson, appeals the denial of his petition for post-conviction relief, arguing that he was deprived of the effective assistance of counsel at trial and on appeal. Following our review, we affirm the post-conviction court’s denial of the petition.

The Defendant-Appellant, Felicia Mae Langford, appeals the revocation of her probation. She pled guilty in the Circuit Court of Macon County to aggravated burglary, a Class C felony. Langford received a probationary sentence of six years. The trial court revoked her probation following an arrest for shoplifting. On appeal, Langford admits that she violated her probation. She claims, however, that the trial court erred by revoking her probation and imposing her original sentence of confinement. Upon review, we affirm the judgment of the trial court.

A Shelby County jury convicted the petitioner of one count of first degree murder and five counts of attempted first degree murder, Class A felonies. He received an effective sentence of life without parole plus 100 years in the Tennessee Department of Correction. A panel of this court affirmed the trial court’s judgments. The petitioner filed a petition for postconviction relief, which the post-conviction court heard and denied. On appeal, the petitioner alleges that he received ineffective assistance of counsel when counsel’s failure to include an issue in the motion for new trial resulted in waiver of that issue for purposes of appellate review. Following our review, we  affirm the denial of post-conviction relief.

In this divorce case, Plaintiff and her counsel failed to appear in court on the scheduled date of trial. The trial court held the hearing ex parte in their absence. Plaintiff hired new counsel and filed a “Motion to Set Aside Judgment,” which we discern to be a motion pursuant to Tenn. R. Civ. P. 59. The trial court held a hearing on the motion; however, Plaintiff failed to offer any evidence  explaining her failure to appear on the scheduled trial date. The trial court denied Plaintiff’s motion. After reviewing the record, we affirm.

The Defendant, Racardo Arnette Spencer, appeals as of right from the Davidson County Criminal Court’s revocation of his community corrections sentence and order of incarceration. The Defendant contends that the trial court erred in revoking his community corrections sentence because there was no substantial evidence to determine that the Defendant had violated the  terms of his sentence. Following our review, we affirm the trial court’s revocation of the  Defendant’s community corrections sentence.

The petitioner, Kimberly Thurman, filed a petition for post-conviction relief from her conviction for second degree murder. The petition was filed outside the one-year statute of limitation for filing a post-conviction petition, but the petitioner alleged that the limitations period should be tolled because she was unable to manage her personal affairs or understand her legal rights and liabilities. The post-conviction court summarily dismissed the petition as time-barred, and the petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

The Defendant, Jamie Lynn Middlebrook, was indicted by the Davidson County Grand Jury for aggravated assault, a Class C felony, and theft of property valued $1,000 or more, a Class D felony. Following a jury trial, the Defendant was convicted of aggravated assault. The jury was unable to fix the property value for the theft charge; therefore, the trial court declared a mistrial as to that count. At the sentencing hearing, the Defendant pled guilty to theft of property valued $500 or more, a Class E felony. The trial court imposed concurrent sentences of 6 years as a career offender for the theft conviction and 13 years as a persistent offender for the aggravated assault conviction. The trial court ordered the sentences to be served consecutively to a sentence imposed in another case. In this appeal as of right, the Defendant contends (1) that the evidence is insufficient to sustain her conviction of aggravated assault; (2) that the trial court erred in granting the State’s motion to admit evidence of prior bad acts; and (3) that the trial court erred in sentencing the Defendant. Following our review, we affirm the judgments of the trial court.

The defendant, Jeffery D. Lemay, pleaded guilty to one count of rape of a child, a Class A felony, and reserved a certified question of law challenging the trial court’s order finding him competent to stand trial. See Tenn. R. Crim. P. 37(b)(2)(a). Following our review, we conclude that the defendant failed to properly certify a question of law that is dispositive of the case. Accordingly, we dismiss the appeal.

Appellant filed this petition for common law writ of certiorari when the Board of Probation and Parole denied him parole. He contends the Board’s decision was illegal, arbitrary, fraudulent, and in excess of its jurisdiction. The trial court dismissed the petition for writ of certiorari. We affirm the trial court.

The Defendant, Orville Losey, was found guilty by a Coffee County Circuit Court jury of three counts of aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2006) (amended 2009, 2010). He pled guilty to resisting arrest with a weapon, a Class A misdemeanor. See T.C.A. § 39-16-602 (2010). He was sentenced as a Range II, multiple offender to eight and one-half years’  confinement for each of the aggravated assault convictions and to eleven months, twenty-nine days’ confinement for the resisting arrest conviction, to be served concurrently. On appeal, he contends that (1) the evidence was insufficient to support his convictions and (2) his sentences are excessive and not consistent with the purposes and principles of the Sentencing Reform Act. We affirm the judgments of the trial court.

Pursuant to a plea agreement that he personally negotiated with the State, the Petitioner, Joshua Dunn, pleaded guilty to violating his probation, one count of especially aggravated robbery, one count of especially aggravated kidnapping, one count of conspiracy to commit aggravated robbery, and one count of arson. Pursuant to the terms of the agreement, all of the Petitioner’s sentences were ordered to run concurrently for a total effective sentence of fifteen years at 100%. The Petitioner filed a timely petition for post-conviction relief and, after a hearing, the post-conviction court denied relief. In this appeal, the sole issue that the Petitioner raises is that his Trial Counsel’s representation, or the Petitioner’s selfrepresentation, constituted ineffective assistance of counsel because the Petitioner pleaded guilty to especially aggravated kidnapping and especially aggravated robbery without seeing discovery regarding the extent of the victim’s injuries. After our review, we affirm the postconviction court’s denial of relief.

The Defendant, Orville Losey, was found guilty by a Coffee County Circuit Court jury of three counts of aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2006) (amended 2009, 2010). He pled guilty to resisting arrest with a weapon, a Class A misdemeanor. See T.C.A. § 39-16-602 (2010). He was sentenced as a Range II, multiple offender to eight and one-half years’ confinement for each of the aggravated assault convictions and to eleven months, twenty-nine days’ confinement for the resisting arrest conviction, to be served concurrently. On appeal, he contends that (1) the evidence was insufficient to support his convictions and (2) his sentences are excessive and not consistent with the purposes and principles of the Sentencing Reform Act. We affirm the judgments of the trial court.

An inmate at the Turney Center Industrial Complex filed this petition for writ of certiorari to challenge the ruling of the Turney Center Disciplinary Board that he failed to report for work, imposed a fine, and placed him on probation. After the Board’s ruling was affirmed by the Warden and Commissioner of Correction, this petition was filed. The chancellor dismissed the writ. We affirm the ruling of the chancellor.

Appellant, Marvin Bobby Parker, was indicted by the Bedford County Grand Jury for two counts of aggravated assault, three counts of reckless endangerment, and one count of assault. After the denial of pretrial diversion, Appellant’s case proceeded to a jury trial. Following a lengthy trial, Appellant was convicted of reckless aggravated assault, two counts of assault, and one count of reckless endangerment for a series of incidents that took place on June 7, 2008, at the Duck River Speedway after a race. Appellant was found not guilty of two counts of reckless endangerment. As a result of the convictions, Appellant was
sentenced as a Range I, standard offender to three years for reckless aggravated assault with all but 59 days of the sentence suspended, the remainder of the sentence to be served on community corrections. Further, Appellant was sentenced to eleven months and twenty-nine
days for each remaining misdemeanor sentence. The misdemeanor sentences were ordered to run concurrently to each other but consecutively to the reckless aggravated assault sentence, for a total effective sentence of four years. After the denial of a motion for new
trial, Appellant sought a review of his convictions and sentence in this Court. The following issues are presented on appeal for our review: (1) whether the district attorney abused his discretion in denying pretrial diversion; (2) whether the trial court properly denied a motion
to sever; (3) whether the trial court properly instructed the jury; (4) whether the evidence was sufficient to support the convictions; (5) whether the trial court properly sentenced Appellant. After a review of the record, we determine that: the trial court properly upheld the denial of pretrial diversion; the trial court properly denied the motion to sever; and the
evidence was sufficient to support the convictions for reckless aggravated assault and assault as challenged by Appellant. Further, we determine that the trial court properly instructed the jury. However, because the trial court imposed consecutive sentencing without making the proper findings and ordered Appellant to community corrections even when Appellant was ineligible for such a sentence, we reverse the matter and remand to the trial court for a new sentencing hearing. Accordingly, the judgments of the trial court are reversed and remanded.

The petitioner, Antonio Maurice Batts, pleaded guilty to aggravated assault in exchange for a six-year, Range II sentence with the manner of service to be determined by the trial court. Following the denial of alternative sentencing and an unsuccessful appeal to this court, the petitioner timely filed a petition for post-conviction relief alleging that his guilty plea was
involuntary based upon allegations of ineffective assistance of counsel and the petitioner’s mental incompetence at the time of the guilty plea. After an evidentiary hearing, the trial court denied relief. The petitioner filed an untimely notice of appeal. Because the interest of justice does not require that we waive the filing requirement, we dismiss the appeal.

William (Bob) Simerly and Lewis Honeycutt (collectively “the Retirees”), along with numerous other former employees of the Elizabethton Electric System (“the EES”) brought this civil action against the City of Elizabethton (“the City”) to recover the value of certain EES benefits claimed to be owed them and wrongfully withheld by the City. After the City agreed to reduce its claims and counterclaims along with all the former employees taking voluntary dismissals, with the exception of Mr. Simerly and Mr. Honeycutt, both parties jointly filed a motion for partial summary judgment whereby the trial court was asked to rule on the legal validity of the underlying contracts upon stipulation by the parties of a number of exhibits and facts. The trial court granted the Retirees partial summary judgment, finding the underlying contracts to be legally valid, and the benefits promised thereunder to still be in force. The trial court’s partial judgment reserved the issue of the amount of the Retirees’ damages for a later hearing. The City then filed a notice of appeal from the trial court’s ruling before the hearing on the damages could be scheduled. The Retirees moved in this court to dismiss the appeal on the basis of lack of finality of the trial court’s partial judgment. We denied the Retirees’ motion without prejudice. We reverse the ruling of the trial court on the partial summary judgment.

Two of the daughters of an eighty-two year old woman filed a petition to be named as their mother’s Conservator. The trial court found that the mother did indeed need a Conservator, but because of family disagreements it appointed a third party to perform that role. Seven months later, the same daughters filed a petition to remove the incumbent Conservator and to be named as Co-Conservators to replace her. The mother died after proceedings on the second petition began, but before the trial court could rule on its merits. The Conservator subsequently moved the court for payment of her fees. The court found that some of those fees were incurred as a direct result of the uncooperative acts of the two daughters. Since the decedent’s estate was indigent, the court entered two money judgments for costs against the daughters. We reverse the judgment that was assessed against one of the daughters for failing to return her mother to the nursing home in a timely way, because although her actions led to additional costs, no legal basis for the judgment appears in the record. We vacate the judgment based on the unsuccessful petition to remove the conservator and we remand the case for further proceedings, because although Tenn. Code Ann. § 34-1-114 does allow an assessment of costs against such petitioners, it is unclear how much of the court’s judgment falls within the parameters of that statute.

A woman who suffered prolonged bleeding, pain and disabling injury after gynecological surgery filed a pro se malpractice suit against the doctor who performed the surgery. The defendant filed a motion for summary judgment, accompanied by an affidavit in which he testified that in his treatment of the plaintiff he complied at all times with the relevant standard of acceptable professional practice. Unfortunately for the plaintiff, she was unable to find an expert witness to controvert that affidavit. The trial court granted the plaintiff several continuances to give her the opportunity to procure representation and expert testimony, but when she was unable to do so, the trial court granted the defendant’s motion. We affirm.

The Hamilton County mayor and members of the county commission filed suit against the Tennessee Department of Human Services seeking judicial review of an administrative decision holding that the county penal farm’s commissary and vending machines and the vending facilities at another county building were subject to DHS’s statutory priority regarding blind vendors. The chancellor affirmed the administrative decision, and we affirm the chancellor’s decision.

The petitioner, a former property manager for the Metropolitan Development and Housing Agency, was fired amid allegations that he had sexually harassed tenants and neglected his official duties by failing to properly prepare monthly reports. He appealed the termination of his employment to the Board of Commissioners of MDHA. The Board appointed a hearing officer who conducted a two-day hearing, following which the hearing officer found that the proof was insufficient to support a finding of sexual harassment and recommended that Petitioner be reinstated but demoted due to his failure to provide the required monthly reports. The Board subsequently rejected the recommendation and affirmed Petitioner’s termination based on the risk of future negligent retention sexual harassment suits and the fact he was an at-will employee who could be fired without cause. Petitioner then filed this petition for a common law writ of certiorari, contending MDHA acted arbitrarily, capriciously and illegally because it did not have just cause to fire him and because the decision to terminate him was due to his refusal to waive his right to appeal. The trial court dismissed the petition, finding the Board did not act arbitrarily, capriciously, or illegally because Petitioner was an employee-at-will who could be fired without just cause. We affirm.

In this child support matter, the mother filed a motion for contempt after the father failed to pay the minor child’s medical bills and insurance expenses as ordered by the trial court. After being found by the trial court to be in contempt, the father requested a new trial or an amendment of the judgment. The trial court denied the request and the father appealed from that order. The State of Tennessee, on behalf of the mother, moved to dismiss the appeal, asserting that it was prematurely filed. Upon our review of the record, we find that the father has appealed from an order that does not resolve all the claims against him. Accordingly, we dismiss the appeal for lack of a final judgment.

The petitioner, William A. Hawkins, aggrieved by his Sullivan County jury conviction of premeditated first degree murder for which he received a sentence of life imprisonment, filed a petition for post-conviction relief alleging that his conviction was the product of ineffective assistance of counsel and other constitutional deprivations. Following the appointment of counsel, amendment of the petition, and an evidentiary hearing, the trial court denied relief. On appeal, the petitioner argues that the trial court erred in denying him relief. Discerning no error, we affirm the order of the trial court.

Appellant, Gary Lynn Harvey, was found guilty by a Knox County Criminal Court jury of assault, a Class A misdemeanor, and disorderly conduct, a Class C misdemeanor. See Tenn. Code Ann. §§ 39-13-101 & 39-17-305. The trial court sentenced Appellant to elevenmonths, twenty-nine days on probation for the assault conviction and to thirty days on probation for the disorderly conduct conviction, with the sentences to run concurrently. On appeal, Appellant contends that the trial court erred by: (1) refusing to dismiss the disorderly conduct charge because the presentment  was insufficient; (2) refusing to dismiss the disorderly conduct charge because section 39-17-305(b) is unconstitutionally vague and overbroad; (3) finding the evidence sufficient to support his conviction for disorderly conduct; (4) finding the evidence sufficient to support his conviction for assault; (5) not declaring a mistrial due to an officer’s conduct during jury deliberations; (6) not finding prosecutorial misconduct after Appellant was charged with assaulting an officer who denied being assaulted; (7) not declaring a mistrial following the discharge of a juror during deliberations and the recall of an alternate juror who had already been discharged; (8) not providing Appellant with a written copy of the jury instructions before his closing argument; (9) incorrectly charging the jury on reasonable doubt; (10) incorrectly charging the jury on self-defense; (11) incorrectly charging the jury on lawful resistance; (12) denying him the right to present a complete defense by erroneously excluding newspaper articles as hearsay evidence; (13) violating his Sixth Amendment right to confront witnesses; (14) improperly conducting voir dire; (15) denying him the right to present a complete defense by erroneously excluding witness testimony and by granting the State’s motion to quash subpoenas against the Knoxville Sheriff and two chief deputy sheriffs; (16) refusing to grant a change of venue; and (17) denying his right to a speedy trial by delaying in ruling on his motion for new trial. Because Appellant was denied his constitutional right to a jury trial when the trial court substituted a discharged alternate juror for a disqualified original juror during deliberations, we reverse the judgments and remand the case for a new trial.

I concur in the results reached in the majority opinion. I respectfully disagree, though, with the opinion’s conclusion that because the Petitioner’s grand larceny and burglary sentences had been served, the Petitioner was not “in custody” on them, thereby barring habeas corpus relief. I believe they were part of consecutive sentences that were to be treated in the aggregate, allowing for habeas corpus relief from any judgment that was void.