Jenna Lauren Heath Milner v. Derrick Brandon Milner
E2010-00802-COA-R3-CV
Jenna Lauren Heath Milner (“Wife”) initiated this action by filing a complaint for divorce against her spouse, Derrick Brandon Milner (“Husband”). The only ground for divorce alleged is “T.C.A. § 36-4-101(5), conviction of a felony.” Husband filed an answer pro se which, in substance, admits that he has been convicted but states that the conviction is “a miscarriage of justice” and that his attorney “botched the trial . . . and botched the direct appeal as badly as the trial.” He alleges that he is continuing to challenge the conviction and “there is a great chance of having the case reversed.” Husband denied that a divorce should be granted and alleged that he still loves Wife and their child. Husband, who was incarcerated, testified at trial by telephone, although there is no transcript or statement of the evidence. The trial court declared the parties “divorced pursuant to T.C.A. § 36-4-101(5).” Husband appeals, arguing, for the first time, that the statute is unconstitutional under the Tennessee Constitution, the United States Constitution, and the Georgia Constitution, the state in which he is incarcerated. The Tennessee Attorney General was served with a copy of Husband’s brief and has appeared in support of the constitutionality of the statute. We hold that any issue as to the constitutionality of Tenn. Code Ann. § 36-4-101(5)(2010) was waived by Husband’s failure to raise the issue in the trial court, and, pursuant to Court of Appeals Rule 10 , we affirm the judgment granting an absolute divorce.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Judge Jacqueline S. Bolton |
Hamilton County | Court of Appeals | 04/29/11 | |
State of Tennessee v. Christopher Terrell Robinson
M2010-01183-CCA-R3-CD
A Bedford County jury convicted the Defendant, Christopher Terrell Robinson, of violating the Habitual Motor Vehicle Offender (“HMVO”) Act, evading arrest, and violating the light law. Subsequently, the Defendant also pled guilty to felony failure to appear for not appearing at his original court date. For all the Defendant’s convictions, the trial court sentenced him to an effective sentence of twelve years, to be served as a Range II offender at 60%. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction for violating the HMVO Act; and (2) his sentence is excessive because the trial court inappropriately ordered his sentences to run consecutively. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Lee Russell |
Bedford County | Court of Criminal Appeals | 04/29/11 | |
Cristina Suzanne Warren v. Timothy Thomas Warren
M2009-02255-COA-R3-CV
Wife filed a complaint seeking a divorce and child support from Husband. Husband filed no answer or counterclaim, but caused to be served upon Wife a summons directing Wife to defend a civil action against her. Husband then filed and served upon Wife a notice of a hearing for default divorce. The trial court entered a Final Decree of Absolute Divorce awarding Husband a divorce based on inappropriate marital conduct and entered Husband’s proposed parenting plan designating Husband as the primary residential parent. Nearly a year later Wife filed a Rule 60.02 motion seeking to have the Final Decree set aside on the grounds of (1) mistake, inadvertence or surprise, (2) fraud, misrepresentation, and misconduct, and (3) the judgment was void. The trial court denied Wife’s Rule 60.02 motion, and Wife appeals. Because the Final Decree of Divorce was not void and because of the circumstances surrounding Wife’s motion, we affirm the trial court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Judge Ross H. Hicks |
Montgomery County | Court of Appeals | 04/29/11 | |
Diandre Goodwin v. Turney Center Disciplinary Board et al.
M2010-02003-COA-R3-CV
An inmate at the Turney Center Industrial Complex filed a petition for writ of certiorari seeking review of the decision of the Turney Center Disciplinary Board convicting him of the disciplinary offense of possession of “security threat group material.” Acting sua sponte, the Hickman County Chancery Court dismissed the petition for failure to exhaust his administrative remedies. We affirm.
Authoring Judge: Judge Frank G. Clement, Jr.
Originating Judge:Judge Jeffrey S. Bivins |
Hickman County | Court of Appeals | 04/29/11 | |
Frankie Kelly McGowan v. State of Tennessee
M2009-02268-CCA-R3-PC
Petitioner, Frankie Kelly McGowan, entered a best interest plea in Bedford County to one count of aggravated burglary and two counts of burglary in exchange for an effective ten-year sentence. The effective sentence was ordered to run consecutively to sentences in two other cases for which Petitioner was on parole at the time of the offenses. Subsequently, Petitioner sought post-conviction relief on the basis of ineffective assistance of counsel and because his guilty plea was unknowingly and involuntarily entered. The post-conviction court dismissed the petition after a hearing. Petitioner has appealed the dismissal of his petition for post-conviction relief to this Court. After a review of the record, we conclude that Petitioner has failed to present clear and convincing evidence that his guilty plea was involuntarily or unknowingly entered or that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.
Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge Lee Russell |
Bedford County | Court of Criminal Appeals | 04/29/11 | |
Norman Lee Robinson v. Mers, Inc. et al.
E2010-01592-COA-R3-CV
This is an appeal by Norman Lee Robinson from a summary judgment granted against him and in favor of his lender, Citizens Bank, and GMAC Mortgage, LLC, the assignee of Robinson’s secured note. Robinson filed this action against Citizens Bank and GMAC, as well as others, to stop what he alleged was a wrongful foreclosure. He also demanded compensatory and punitive damages. The substance of the action is that the defendants should not be permitted to require Robinson to pay into escrow, funds that had been improperly refunded to him. The trial court held that Robinson was in default and that the foreclosure was not wrongful because, despite some dispute as to certain facts, there was no genuine dispute concerning the facts material to the outcome of this case. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Judge Rex Henry Ogle |
Grainger County | Court of Appeals | 04/29/11 | |
Freda Michelle Humbard Miller v. Steven Dwayne Miller
E2010-00225-COA-R3-CV
This case stems from the divorce of Freda Michelle Humbard Miller (“Wife”) and Steven Dwayne Miller (“Husband”). The Trial Court, among other things, granted the parties a divorce, designated Wife the primary residential parent, and awarded Wife child support and alimony. Husband appeals, raising a number of issues. We hold that the Trial Court erred in setting child support without entering supporting worksheets in the record as required. We further hold that the Trial Court did not err as to the other issues. We vacate, in part, and, affirm, in part, and remand for the Trial Court to set child support utilizing the worksheets as required.
Authoring Judge: Judge D. Michael Swiney
Originating Judge:Judge Ben W. Hooper II |
Jefferson County | Court of Appeals | 04/29/11 | |
Alanda D. Hayes v. State of Tennessee
E2010-01720-CCA-R3-HC
The Petitioner, Alanda D. Hayes, brought the present petition for habeas corpus relief in the Johnson County Criminal Court, challenging the legality of the sentences he received in five separate cases. The habeas corpus court dismissed the petition without a hearing. On appeal, the Petitioner contends that the habeas corpus court erred when it dismissed his petition because he was sentenced in contravention of the 1989 Sentencing Act and that, as such, his sentences are void. Having thoroughly reviewed the record and applicable authorities, we conclude the habeas corpus court properly dismissed the petition. We therefore affirm the habeas corpus court’s judgment.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Lynn W. Brown, Jr. |
Johnson County | Court of Criminal Appeals | 04/28/11 | |
Amy C. Blackwell Wiseman v. William S. Wiseman, II
M2010-01642-COA-R3-CV
Father appeals trial court finding of substantial and material change of circumstances and resulting modifications to parenting plan. Finding that the record does not support failure of parties to attempt mediation of parenting plan issues prior to seeking court intervention, the judgment is vacated and petition to modify parenting plan dismissed.
Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Chancellor Tom E. Gray |
Sumner County | Court of Appeals | 04/28/11 | |
Julie Ann Kendle v. Matthew Davis Kendle
M2010-00757-COA-R3-CV
In this post-divorce proceeding, the father of the parties’ child seeks to reduce his child support obligation due to a decrease in his income, and each parent alleges the other is in contempt for various reasons. The trial court denied Father’s petition to reduce child support upon finding that Father was voluntarily underemployed. The trial court granted Mother’s petition to hold Father in contempt for failing to comply with the parenting plan and denied Father’s petition against Mother. Mother was awarded one-half of her attorney fees. Father appealed. We reverse the finding that Father was voluntarily underemployed and remand with instructions for the trial court to determine whether a significant variance exists in Father’s child support obligation based on his actual income without additional imputed income. If a significant variance exists, the trial court is to set Father’s child support obligation pursuant to the Guidelines. We also reverse the court’s finding that Father was in contempt, because the trial court did not specify a provision of the parenting plan Father allegedly violated and the evidence is insufficient to establish that any violation was willful.
Authoring Judge: Judge Frank G. Clement, Jr.
Originating Judge:Judge Clara Byrd |
Wilson County | Court of Appeals | 04/28/11 | |
Whitney W. Webb v. Justin L. Pewitt
W2010-01715-COA-R3-CV
This is a post-divorce modification of child custody case. The trial court modified custody upon its finding that a material change in circumstances had occurred such that primary residential custody with the Appellant Mother was no longer in the child’s best interest. The court granted primary residential custody to the Appellee Father and Mother appeals. Discerning no error, we affirm.
Authoring Judge: Judge J. Steven Stafford
Originating Judge:Chancellor Ron E. Harmon |
Benton County | Court of Appeals | 04/28/11 | |
Bellsouth Advertising & Publishing Corp. v. Sentayehu Abebe, et al.
M2010-01020-COA-R3-CV
This appeal arises out of a suit to recover the balance on a past due account for an advertisement in a telephone directory. Defendant disputed the authenticity and admissibility of the documents submitted by plaintiff to establish an enforceable and valid contract. The trial court permitted the documents to be admitted and entered judgment for plaintiff. Defendant appeals, contending that the trial court erred in admitting the documents and in finding an enforceable contract. Finding no error, we affirm.
Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Judge Joseph P. Binkley, Jr. |
Court of Appeals | 04/28/11 | ||
Johnny Hatcher, Jr. v. Shelby County Election Commission, et al.; the City of Memphis, a Corporation; and A.C. Wharton, Jr.
W2010-01163-COA-R3-CV
This appeal involves an election contest. The appellant was an unsuccessful candidate for mayor in a municipal election. After the election, the appellant filed this lawsuit seeking declaratory and injunctive relief and contesting the election. The trial court granted summary judgment to the defendants. We affirm.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Chancellor Kenny W. Armstrong |
Shelby County | Court of Appeals | 04/28/11 | |
Jason Calvert v. State of Tennessee
M2008-00426-SC-R11-PC
We granted the defendant’s application for permission to appeal in this post-conviction proceeding to determine whether the defendant received ineffective assistance of counsel in conjunction with his guilty pleas to multiple sex offenses, because his counsel did not inform him about the mandatory lifetime community supervision consequence of some of his convictions. After a hearing, the post-conviction court denied relief upon its determination that the defendant’s legal representation was competent; the Court of Criminal Appeals affirmed. We hold that the defendant has demonstrated by clear and convincing proof that (1) his counsel’s performance fell below the objective standard of reasonableness because counsel did not advise him that, in addition to his effective ten-year sentence, a mandatory sentence of community supervision for life was a consequence of his guilty pleas; and (2) there was a reasonable probability that, but for counsel’s failure to properly inform him, the defendant would not have pled guilty and would have insisted on going to trial. We therefore reverse the judgment of the Court of Criminal Appeals and remand this matter to the original trial court for further proceedings consistent with this opinion.
Authoring Judge: Chief Justice Cornelia A. Clark
Originating Judge:Judge J. Randall Wyatt, Jr. |
Davidson County | Supreme Court | 04/28/11 | |
Herbert N. Jackson v. Tony Parker, Warden
W2010-01630-CCA-R3-HC
The petitioner, Herbert N. Jackson, appeals the denial of his petition for writ of habeas corpus, which challenged his 2006 Madison County Circuit Court conviction of theft of property valued at $1,000 or more but less than $10,000. In this appeal, he claims that his sentence is illegal because the trial court failed to award him credit for the time he spent on community corrections and that his sentence has expired. Because the habeas corpus court erroneously concluded that the petitioner failed to state a cognizable claim for habeas corpus relief and because the petitioner has established entitlement to habeas corpus relief, the judgment of the habeas corpus court is reversed, and the case is remanded to the habeas corpus court for the entry of an order directing the trial court to amend the petitioner’s judgment to reflect credit for time actually served on community corrections. Further, because the petitioner has established that, accounting for a correct application of community corrections credit, his sentence has been served and has expired, the petitioner is entitled to immediate release.
Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge R. Lee Moore |
Lake County | Court of Criminal Appeals | 04/27/11 | |
State of Tennessee v. Carlie D. Schoenthal
E2010-01312-CCA-R3-CD
The Defendant, Carlie D. Schoenthal, pled guilty to one count of driving under the influence (DUI), first offense, reserving a certified question of law for appellate review pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The Defendant contends that the trial court erred in denying her motion to suppress the evidence resulting from the traffic stop. Following our review, we affirm the judgment of the trial court.
Authoring Judge: Judge D. Kelly Thomas, Jr.
Originating Judge:Judge Barry A. Steelman |
Hamilton County | Court of Criminal Appeals | 04/27/11 | |
State of Tennessee v. Jessica Lee Clark
M2010-00651-CCA-R3-CD
The Franklin County Grand Jury indicted Appellant, Jessica Lee Clark, for one count of driving under the influence (“DUI”), one count of violation of the implied consent law, and one count of reckless driving. Appellant was convicted of DUI by a jury and the trial court determined she had violated the implied consent law. She was acquitted of the reckless driving charge. The trial court sentenced Appellant to eleven months and twenty-nine days to be served on probation except for seven days to be served in confinement. Appellant appeals her DUI conviction. On appeal, Appellant argues that the evidence presented that she was intoxicated through the ingestion of alcohol is not sufficient evidence to support her conviction because the use of the term “intoxicant” in Tennessee Code Annotated section 55-10-401(a)(1) requires evidence of the use of an intoxicant other than alcohol. We conclude that the term “intoxicant” as used in Tennessee Code Annotated section 55-10-401(a)(1) does include alcohol and that Appellant’s argument is without merit. Therefore, we affirm the judgment of the trial court.
Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge J. Curtis Smith |
Franklin County | Court of Criminal Appeals | 04/27/11 | |
State of Tennessee v. Courtney Partin
E2010-01508-CCA-R3-CD
This case is before the court after remand to the Campbell County Criminal Court for resentencing. The Defendant, Courtney Partin, was convicted by a Campbell County Criminal Court jury of attempted first degree murder, a Class A felony, and two counts of aggravated assault, a Class C felony. See T.C.A. §§ 39-13-202 (Supp. 2001) (amended 2002, 2007), 39-13-102 (Supp. 2001) (amended 2002, 2005, 2009, 2010). The trial court merged one count of aggravated assault with the attempted first degree murder because the offenses involved the same victim and sentenced the Defendant as a Range I, standard offender to twenty-two years’ confinement for attempted first degree murder and to four years’ confinement for aggravated assault, to be served concurrently. On appeal, the Defendant contends that the trial court erred during sentencing by beginning its sentencing consideration at the midpoint in the applicable range. We affirm the judgments of the trial court.
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge E. Shayne Sexton |
Campbell County | Court of Criminal Appeals | 04/27/11 | |
T. Verner Smith v. Jerry F. Gardner
W2009-00972-COA-R3-CV
This appeal involves a suit for dissolution of a real estate partnership. The defendant-appellee also filed several counterclaims against the plaintiff, who is an attorney. After a bench trial, the trial court dissolved the partnership and found that the defendant-appellant was liable for one-half of the partnership’s debts and expenses. The court dismissed the counterclaims. We affirm.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Senior Judge Allen W. Wallace |
Madison County | Court of Appeals | 04/27/11 | |
State of Tennessee v. George D. Oakes
E2010-00636-CCA-R3-CD
The Defendant, George D. Oakes, was charged with one count of second degree murder, a Class A felony. See Tenn. Code Ann. § 39-13-210. Following a jury trial, the Defendant was convicted of the lesser included offense of voluntary manslaughter, a Class C felony. See Tenn. Code Ann. § 39-13-211. The trial court sentenced the Defendant as a Range III, persistent offender to 15 years. In this appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain his conviction for voluntary manslaughter and (2) the trial court abused its discretion in sentencing the Defendant. Following our review, we affirm the judgment of the trial court.
Authoring Judge: Judge D. Kelly Thomas, Jr.
Originating Judge:Judge Richard R. Baumgartner |
Knox County | Court of Criminal Appeals | 04/26/11 | |
Malco Theaters, Inc. v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee
W2010-00464-COA-R3-CV
This appeal concerns the franchise tax liability of a corporation operating motion picture theaters in Tennessee. The Tennessee Department of Revenue assessed deficiencies against the corporation in 2001 and 2004 after audits revealed the corporation did not include the value of rented films within its minimum franchise tax base. The corporation filed separate lawsuits in chancery court disputing the assessments. After consolidating the cases, the chancery court granted summary judgment in favor of the corporation. We reverse the grant of summary judgment, grant partial summary judgment in favor of the Commissioner of Revenue, grant partial summary judgment in favor of the corporation, and remand.
Authoring Judge: Judge David R. Farmer
Originating Judge:Chancellor Walter L. Evans |
Shelby County | Court of Appeals | 04/26/11 | |
Helen S. Rogers vs. Tom E.Watts, Jr. - Dissenting
X2010-0000-XX-X00-XX
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04/26/11 | |||
Gregory L. Sain v. State of Tennessee
M2010-00654-CCA-R3-PC
On January 24, 2006, a jury convicted the petitioner, Gregory L. Sain, of one count of delivery of a Schedule II drug to a minor, one count of possession of a Schedule II drug with the intent to deliver, one count of introduction of contraband into a penal facility, one count of contributing to the delinquency of a minor, and simple possession of marijuana. A panel of this court affirmed the jury’s verdict and modified the petitioner’s sentence on March 6, 2008. The petitioner sought post-conviction relief and the same was denied pursuant to an order dated February 19, 2010. On appeal, the petitioner alleges ineffective assistance of counsel at both the trial and appellate levels. The petitioner claims that counsels’ performance was deficient because: (1) trial counsel failed to request a Batson hearing after the peremptory challenge of an African American female juror; (2) trial counsel failed to conduct a proper investigation into the petitioner’s case; (3) trial counsel and appellate counsel both failed to challenge an improper jury instruction. Upon a thorough review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.
Authoring Judge: Judge J. C. McLin
Originating Judge:Judge Don Ash |
Rutherford County | Court of Criminal Appeals | 04/26/11 | |
In Re: Landon A. F.
M2010-01180-COA-R3-JV
The mother of a nine year old boy filed a Rule 60 motion to vacate an “agreed order” that granted extensive visitation rights to the boy’s father. The order in question was signed by the father’s attorney and was presented to the trial judge without the mother’s signature and without the mother being present. Earlier, the mother had refused to sign the order, claiming that its terms deviated significantly from the agreement the parties actually reached. The trial court signed the document and subsequently denied the mother’s Rule 60 motion. We reverse the trial court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Judge Charles L. Rich |
Bedford County | Court of Appeals | 04/26/11 | |
William G. Allen v. State of Tennessee
M2009-02151-CCA-R3-PC
In 1968, a Davidson County grand jury indicted the Petitioner, William G. Allen, along with his four co-defendants, for the murders of two Davidson County police officers. The two murder cases were tried separately, and the Petitioner was convicted of the first degree murder of Officer Thomasson, after which he received a sentence of ninety-nine years. On direct appeal, this Court affirmed the Petitioner’s conviction and sentence. The Petitioner brought his first petition for post-conviction relief in 1971. The post-conviction court denied this petition, and this Court affirmed its denial on appeal. In 1990, the Petitioner brought his second petition for post-conviction relief, which the post-conviction court dismissed without a hearing. On appeal, our supreme court remanded the case for a hearing, and, in 1994, the Petitioner, pursuant to the supreme court’s instructions, re-filed his second petition for postconviction relief. The Petitioner amended this petition three times and, in 2001, submitted a consolidated petition for post-conviction relief. After a hearing in 2007 and another in 2008, the post-conviction court denied relief. The Petitioner appeals, contending he is entitled to post-conviction relief because: (1) the grand jury that indicted him and his codefendants did not represent a fair cross-section of the population, as required by the equal protection and due process clauses of the United States and Tennessee State Constitutions; (2) the sentencing statute under which he was sentenced was unconstitutional; and (3) the trial court improperly instructed the jury. After a careful review of the record, we affirm the post-conviction court’s judgment.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Monte Watkins |
Davidson County | Court of Criminal Appeals | 04/26/11 |