APPELLATE COURT OPINIONS

A Davidson County grand jury indicted the Defendant, Kevin M. Frierson, for possession of .5 grams or more of a Schedule II controlled substance with the intent to sell or deliver and one count of possession of drug paraphernalia. The Defendant filed a motion to suppress the evidence against him, which was discovered on the Defendant’s person and seized by a police officer who had stopped a vehicle in which the Defendant was a passenger. The trial court denied the motion to suppress. The Defendant pled guilty to possession of .5 grams or more of a schedule II controlled substance with the intent to sell or deliver, but reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the search of the Defendant was constitutional. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

This is a termination of parental rights case. The trial court terminated the parental rights of the mother on the grounds of persistence of conditions, substantial noncompliance with the terms of the permanency plans, and mental incompetence. The mother appeals, arguing that the Department of Children’s Services did not make reasonable efforts to reunite her with the child, the requirements of her permanency plans were not reasonable and related to the conditions that required her child’s removal, and the alleged failure to appoint her a guardian ad litem in the prior dependency and neglect proceedings precluded termination of her parental rights for persistence of conditions. Finding no error in the decision of the trial court, we affirm.

The defendant, Deandre Marcellus Howard, pleaded guilty to a single count of voluntarymanslaughter and received an agreed term of three years’ probation to be served pursuant to Tennessee Code Annotated section 40-35-313. In this appeal, the defendant contends that the trial court erred by denying him some 18 months of pretrial jail credit. For the procedural reasons explained more fully below, the appeal is dismissed.

Plaintiff/Appellant filed an action alleging breach of contract and retaliatory discharge. Defendant moved for summary judgment on both claims, and asserted the action was barred by a contractual limitations provision in the application for employment. The trial court awarded summary judgment to defendant with respect to the retaliatory discharge claim, and denied summary judgment with respect to defendant’s assertion that the matter was time-barred. Plaintiff appealed. We dismiss this appeal for failure to appeal a final judgment where the trial court has not entered an order adjudicating or otherwise disposing of plaintiff’s breach of contract claim, and plaintiff has failed to show cause why this matter should not be dismissed.

A Davidson County jury convicted the Defendant, Derrick Sloan Taylor, of attempted especially aggravated robbery and attempted first degree murder, and the trial court sentenced him to an effective sentence of thirty-three years in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the trial court erred when it admitted evidence about him firing a gun on another occasion; and (2) the evidence is insufficient to sustain his convictions. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

The Defendant, Montgomery Koons, pled guilty to three counts of aggravated statutory rape, a Class D felony. See T.C.A. § 39-13-506(c) (2010). He was sentenced to four years each for the first count and second count as a Range I standard offender and six years for the third count as a Range II standard offender, with all sentences to be served concurrently. The trial court denied judicial diversion and ordered the defendant to serve one year of incarceration and five years of probation. On appeal, the defendant contends that (1) the trial court denied his due process right of compulsory process when it quashed his subpoena for the minor victim to testify at the sentencing hearing, (2) the trial judge abused his discretion by declining to recuse himself from the sentencing hearing, (3) the trial court erred by denying his application for diversion based on an erroneous application for certification of eligibility, (4) the trial court erred by denying him full probation, and (5) the trial court erred by entering a Probation Order for six years of probation after one year of incarceration. Because the defendant was denied his due process right to compulsory process at the sentencing hearing and because the denial of judicial diversion was based on an inadvertently submitted preliminary draft of the application, we reverse the judgments of the trial court and remand for a new hearing, at which the trial court shall consider judicial diversion and if diversion is denied, the manner of service of the defendant’s sentences.

Pursuant to a plea agreement, the Defendant, Samuel Jacob Webb, pled guilty to one count of sexual exploitation of a minor, and the trial court sentenced him to eight years in the Department of Correction. The Petitioner filed a motion to withdraw his guilty plea, claiming that he understood that he would be placed on parole for his eight-year sentence and returned to federal custody to serve his federal sentence for another charge. The trial court denied relief after a hearing, and the Defendant now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the wrong direction on an exit ramp of I-40/240 and collided head-on with plaintiff’s vehicle. Plaintiff filed a negligence action against Defendant Madden and against the City of Memphis pursuant to the Governmental Tort Liability Act. In his complaint, plaintiff asserted Memphis City police negligently pursued Defendant Madden, and that this negligence proximately caused plaintiff’s injuries. The trial court found plaintiff’s injuries were caused solely by the acts of Defendant Madden and entered judgment in favor of the City of Memphis. We affirm.

The petitioner, Lawrence Earl Wade, pled guilty pursuant to a negotiated plea agreement to first degree murder and especially aggravated robbery. Pursuant to the plea agreement, the petitioner agreed to a sentence of fifteen years for the robbery charge and to a life sentence for the murder charge. On appeal from the post-conviction court’s denial of relief, the petitioner argues that he received ineffective assistance of counsel because his trial counsel failed to investigate his mental history and that he did not knowingly and voluntarily enter his guilty pleas. Following our review, we affirm the judgment of the post-conviction court.

The petitioner, Matthew Jackson, appeals the Lake County Circuit Court’s summary dismissal of his pro se petition for the writ of habeas corpus. The petitioner pled guilty to two counts of aggravated rape, a Class A felony; aggravated kidnapping, a Class B felony; aggravated robbery, a Class B felony; and theft of property over $500, a Class E felony. He was subsequently sentenced to an effective sentence of twenty-five years in the Department of Correction. On appeal, the petitioner asserts that the habeas corpus court erred in summarily denying his petition, specifically contending that his sentence is void and illegal pursuant to Blakely v. Washington, 542 U.S. 296 (2004). The State has filed a motion requesting that this court affirm the lower’s court’s dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner has failed to establish a cognizable claim for habeas corpus relief, we grant the State’s motion and affirm the judgment of the Lake County Circuit Court.

This is the second appeal of this wrongful death action, arising from a fatal shooting of a tenant at a Memphis public housing property. This Court granted Appellant, Memphis Housing Authority’s, Tenn. R. App. P. 9 interlocutory appeal to address the trial court’s denial of summary judgment in favor of the Appellant. Finding that Appellees’ “failure to evict” claim is preempted by 47 U.S.C. §1437, and that Appellant retains its sovereign immunity under the discretionary function exception to the Tennessee Governmental Tort Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant.  Reversed and remanded.

The Petitioner, Darrell Wayne Bumpas, pled guilty to robbery and resisting arrest, and the trial court sentenced him as a Range II offender to six years in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, alleging that his guilty plea was unknowing and involuntary and that he received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition, and the Petitioner now appeals. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s judgment.

In April of 2008, Lowell Shelton and Stella Shelton (“the Sheltons”) filed a petition to terminate the parental rights of Jeffrey T. (“Father”) and Lisa T. (“Mother”) to the minor children, Jeffrey T. and Justin T. (“the Children”), and to adopt the Children. After a trial, the trial court entered an order on May 7, 2010, that, inter alia, terminated the parental rights of Father to the Children, and granted the adoption of the Children by the Sheltons. Father appeals to this Court raising issues regarding res judicata, whether the trial court erred in not requiring a home study, and whether the final order of adoption conformed to the statute, among others. We affirm.

On August 18, 2008, the petitioner, Ricky Lynn Hill, pled guilty to DUI, leaving the scene of an accident, and attempted tampering with evidence; he also pled nolo contendere to vehicular assault. After holding that the petitioner could not be convicted of DUI for double jeopardy reasons, the circuit court sentenced the petitioner to an effective sentence of five years, eleven months, and twenty-nine days. The petitioner subsequently filed a petition for habeas corpus relief. The petitioner now appeals the judgment of the Chester County Circuit Court dismissing his petition for habeas corpus relief. After review, we affirm the judgment denying habeas corpus relief.

The defendant, Charles Cox, stands convicted of aggravated burglary, a Class C felony, and theft of property under $500, a Class A misdemeanor. The trial court sentenced him to 11 months, 29 days in the county jail for the misdemeanor and to eight years as a Range II, multiple offender in the Tennessee Department of Correction for the felony, to be served concurrently. On appeal, the defendant challenges the sufficiency of the convicting evidence. Following our review, we affirm the judgments of the trial court.

The Defendant-Appellant, Paul William Perry, Sr., appeals the revocation of his community corrections sentence. He originally pled guilty in the Circuit Court of Hardeman County to aggravated assault, a Class C felony, and vandalism between $1,000 and $10,000, a Class D felony. Perry was granted an alternative sentence of four and a half years with the Corrections Management Corporation. Perry admits that he violated the terms of his sentence; however, he argues that the trial court erred by revoking the sentence and ordering confinement. Upon review, we affirm the judgment of the trial court.

This is an appeal from the trial court’s grant of the father’s petition to be named the minor child’s primary residential parent. Finding that the father met his burden to show a material change in circumstances sufficient to warrant the requested modification and that the change was in the child’s best interest, we affirm.

The defendant, Terence Alan Carder, appeals the order entered against him by the McNairy  County Circuit Court, ordering that he pay $80,000 in restitution. The defendant pled guilty to theft of property over $1000, a Class D felony, and was sentenced to two years of probation following the service of sixty days in jail. Additionally, the court ordered the defendant to pay $80,000 in
restitution at a rate of $1000 per month. On direct appeal, a panel of this court affirmed the  sentence but remanded the case to the trial court for reconsideration of the amount of restitution in light of the defendant’s ability to pay. On remand, the trial court, while acknowledging that the defendant would not be able to pay the entire $80,000 in restitution during the term of his sentence, nonetheless, entered an order that the amount of restitution ordered would remain at $80,000. However, the court did modify the terms of repayment to $100 per month. On appeal, the defendant again contends that, given his financial resources and ability to pay, the trial court erred in ordering him to pay $80,000 in restitution. We agree. Because it is unclear from the record exactly how many months the defendant has remaining on his sentence in light of his recent incarceration for a separate crime, we must again remand the case to the trial court with instructions to enter an order of restitution reflecting a total amount of $100 times the months remaining on the defendant’s sentence in which he is expected to pay.

Plaintiff foreclosed on defendant's property and filed suit in Sessions Court to obtain possession of the property. Defendant appealed the Judgment for possession to Circuit Court, which granted plaintiff summary judgment. Defendant has appealed to this Court and we affirm the Judgment of the trial court, awarding possession of the property to plaintiff.

The defendant, Charles Hall, was convicted by a Shelby County Criminal Court jury of two counts of alternate theories of aggravated robbery, a Class B felony. The court merged the second count into the first count and sentenced the defendant as a repeat violent offender to life without the possibility of parole. On appeal, the defendant argues that: (1) the pretrial photographic identification by the victim was overly suggestive and the trial court erred in failing to hold an evidentiary hearing or rule on his motion to suppress the identification; (2) the trial court erred in allowing evidence that a small child was present during the commission of the robbery; (3) he was dissuaded from testifying because of the comments of the prosecutor and trial court; (4) the evidence was insufficient to sustain his convictions; (5) the trial court erred in determining that he was a repeat violent offender; and (6) the trial court erred in ordering consecutive sentences. After review, we affirm the judgments of the trial court.

The trial judge ruled against defendant's Motion for Summary Judgment because there were disputed issues of material fact. The trial court authorized an interlocutory appeal, which we granted. Upon consideration of the case, we conclude, as did the trial judge, there are disputed issues of material fact, affirm the Judgment of the trial court and remand.

A Marshall County Circuit Court jury convicted the appellant, Huedel Sparkman, of one count of possession of .5 grams or more of cocaine with the intent to sell and one count of possession of .5 grams or more of cocaine with the intent to deliver, class B felonies. At sentencing, the trial court merged the convictions and imposed a sentence of 25 years’ incarceration to be served as a Range III, persistent offender, consecutively to any unserved sentence. In this appeal as of right, the appellant argues that the evidence is insufficient to support his convictions and that the trial court imposed an excessive sentence. Following our review, we affirm the judgments of the trial court.

A Davidson County Criminal Court jury convicted the defendant, Brian Wesley Lacey, of 12 counts of the rape of a child, two counts of aggravated sexual battery, and one count of sexual battery. The trial court imposed sentences of 20 years for each rape of a child conviction, eight years for both aggravated sexual battery convictions, and one year for the conviction of sexual battery and ordered partially consecutive sentencing for an effective sentence of 60 years’ incarceration to be served at 100 percent. In this appeal, the defendant contends that the trial court erred by admitting an audio recording into evidence without first conducting a hearing outside the presence of the jury as required by Tennessee Rule of Evidence 404(b) and by imposing consecutive sentences. We discern no error in the defendant’s convictions but do find that the trial court erroneously ordered the defendant to serve 100 percent of his convictions of aggravated sexual battery in counts one and nine as a “child rapist.” The case is remanded to the trial court for the entry of a corrected judgment for those counts. The remainder of the defendant’s sentences are affirmed, and the correction of these judgments does not alter the total effective sentence.

The Defendant, Lawrence D. Ralph, was convicted of driving under the  influence (DUI), fourth offense; DUI per se, fourth offense; driving on a revoked driver’s license, fifth offense; violation of the habitual traffic offender status; and two counts of evading arrest. The trial court merged the DUI per se conviction with the first count and merged the driving on a revoked license conviction with the habitual traffic offender conviction. The trial court sentenced the Defendant to four years each for the DUI, fourth offense conviction; the habitual traffic offender status conviction; and the felony evading arrest conviction, to be served consecutively for an effective 12-year sentence. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to convict him of DUI, fourth offense and (2) that the trial court’s sentence was excessive. Following our review, we  affirm the judgments of the trial court.

This appeal arises out of a complaint to dissolve a partnership. The plaintiff alleged that she and the defendant, an unmarried couple, acquired real property through joint efforts. She further alleged that she contributed to the improvement of the property and an increase in its value, giving rise to a partnership for profit and a right to a distribution of the partnership’s assets following dissolution. The defendant denied that a partnership existed and counterclaimed for damages and attorney’s fees arising out of the plaintiff’s refusal to vacate the property following their break-up. At the ensuing bench trial, the defendant moved for a directed verdict on the plaintiff’s claims. The trial court granted the motion and dismissed the plaintiff’s claims, specifically finding that the plaintiff was unable to prove the existence of an express or implied partnership for profit between the parties. We affirm.