APPELLATE COURT OPINIONS

The defendant, Calvin Eugene Bryant, Jr., was convicted by a Davidson County Criminal Court jury of two counts of sale of a Schedule I controlled substance in a Drug-Free School Zone and two counts of delivery of a Schedule I controlled substance in a Drug-Free School Zone, all Class A felonies. The delivery counts were merged with the sale counts, and the defendant was sentenced to concurrent terms of seventeen years in the Department of Correction. On appeal, he argues that the evidence was insufficient to sustain his convictions; the trial court erred in declaring one of the State's witnesses unavailable and allowing the witness's prior testimony to be read to the jury; the trial court erred in failing to instruct the jury on the lesser-included offense of facilitation; and the trial court erred in ordering that he serve 100% of his effective seventeen-year sentence. After review, we affirm the defendant's convictions but remand for entry of corrected judgments showing that 100% service only applies to fifteen years of the seventeen-year sentence.

The appellant, Derrick Gates, pled guilty in the Shelby County Criminal Court to aggravated robbery and attempted aggravated robbery. After a sentencing hearing, the trial court ordered him to serve consecutive sentences of thirty and ten years, respectively. On appeal, the appellant argues that the trial court erred by ordering consecutive sentencing. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

The Petitioner, Gene Shelton Rucker, appeals as of right from the Hamilton County Criminal Court's dismissal of his petition for a writ of habeas corpus. The Petitioner contends that his sentence was enhanced in violation of his Sixth Amendment rights. Following our review, we affirm the judgment of the habeas corpus court.

Mother appeals from the termination of her parental rights on the grounds of abandonment, substantial noncompliance with permanency plans, and mental incompetence. We affirm.

The Defendant, Michael Pierre Adams, appeals as of right from the Hamilton County Criminal Court's revocation of his community corrections sentences and order of incarceration. The Defendant contends that (1) the trial court's revocation is erroneous and based upon insufficient proof and (2) the State failed to provide him with adequate discovery before the hearing. Additionally, the judgments of the trial court do not reflect that the Defendant was given credit for time served in community corrections. See Tenn. Code Ann. _ 40-36-106(e)(4). Following our review, we affirm the judgments of the trial court but remand the case for correction of the judgments to reflect credit for time served in community corrections.

The petitioner, Curtis Smith, appeals the denial of his petition for post-conviction relief. On appeal, he argues that the court erred in determining that: his guilty plea was knowingly and voluntarily entered; trial counsel provided effective assistance of counsel; and the trial court did not abuse its discretion in accepting his guilty plea. After careful review, we affirm the denial of post-conviction relief.

Employee alleged that she injured her left arm in the course of her employment.  Employer denied liability, contending employee’s injuries were not causally related to or arising from her employment. The trial court found that employee injured her left wrist, left elbow, and left shoulder in the course and scope of her employment, and it awarded 39% permanent partial disability to the body as a whole. The trial court ordered employer to pay the treating physician the entire cost of surgery and treatment, and it ordered physician to reimburse TennCare. Employer has appealed. We affirm as to the arm injury but conclude that the evidence preponderates against the trial court’s finding that employee’s shoulder injury was related to her employment. We also conclude that the trial court erred regarding the payment of medical expenses to the physician. Accordingly, we remand the case to the trial court for a determination of permanent partial disability to the arm and entry of an order regarding reimbursement of medical expenses.

The defendant, Michael Hilliard, was indicted on March 25, 2003, for first degree premeditated murder, felony murder, attempted first degree murder, and especially aggravated robbery. The defendant was tried on the charges in June 2007, with the State seeking the death penalty. However, a mistrial was declared after the jury was unable to reach verdicts on the charges. In December 2007, the defendant was indicted for especially aggravated robbery, allegedly occurring during the 2002 episode in which the victim was shot and the defendant was charged with attempted first degree murder. The defendant then was tried upon the indictment returned in 2003, as well as that returned in 2007, and found guilty of two counts of criminally negligent homicide which were merged, one count of misdemeanor reckless endangerment, and two counts of aggravated robbery. He was sentenced to an effective sentence of seventeen years, eleven months, twenty-nine days. On appeal, he argues both that the trial court erred in not dismissing the 2007 indictment for especially aggravated robbery because it was not returned with the 2003 indictment and in concluding that he could not present evidence of the guilt of a third party. Following our review, we affirm the judgments of the trial court.

The Defendant, Claude David Merritt, entered an "open" guilty plea to one count of aggravated vehicular homicide, a Class A felony. See Tenn. Code Ann. _ 39-13-218(d). The trial court sentenced him as a Range II, multiple offender to forty years in the Department of Correction. In this appeal, the defendant asserts that his sentence is excessive. After a review of the record, we affirm the judgment of the trial court.

A Davidson County jury convicted the Petitioner, Young Bok Song, of seven counts of rape of a child and four counts of aggravated sexual battery, and the trial court sentenced him to serve sixty-five years at 100%. The petitioner filed a petition for a writ of error coram nobis, which the trial court dismissed. On appeal, the petitioner raises a number of issues related to the trial court's determination that he was not entitled to relief based upon newly discovered evidence. After a thorough review of the record and the applicable authorities, we affirm the trial court's judgment.

Pursuant to a plea agreement, the Petitioner, Timothy Neal James, pled guilty to two counts of rape of a child and one count of incest, and the trial court sentenced him to an effective sentence of twenty-five years in the Tennessee Department of Correction. The petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, the petitioner contends that he received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

A Macon County jury convicted the Defendant, Jackie L. Dozier, of three counts of sexual battery, three counts of incest, and one count of attempted sexual battery. The trial court imposed a total effective sentence of nine years, ordering the defendant to serve two years of his sentence in jail and the rest on probation. In this appeal, the defendant contends the trial court erred when it: (1) denied his Motion for Judgment of Acquittal; (2) imposed consecutive sentencing; and (3) imposed a period of confinement in excess of one year as part of a sentence of split confinement. After a thorough review of the record and relevant authorities, we conclude the evidence supports the defendant's convictions, but the trial court erred when it sentenced the defendant. As such, we affirm the defendant's convictions, but we reverse the trial court's imposition of consecutive sentencing and order the defendant's sentences to be served concurrently.

The Petitioner, James Hall, appeals as of right from the Davidson County Criminal Court's summary dismissal of his petition for a writ of habeas corpus challenging his sentence for his conviction of possession with intent to distribute 0.5 grams of a schedule II controlled substance. Following our review, we affirm the judgment of the habeas corpus court.

The question before this Court is whether the grandfather clause of Tennessee Code Annotated section 13-7-208(b)(1) protects the owner of newly annexed city property from the enforcement of a citywide ordinance prohibiting the sale and storage of fireworks. Interpreting section 13-7-208(b)(1) strictly against the landowner, we hold that the grandfather clause does not apply because the ordinance is not a "zoning" restriction or regulation, i.e., the ordinance does not regulate the use of property within distinct districts or zones pursuant to a comprehensive zoning plan. Accepting the facts alleged in the landowner's amended complaint as true, the landowner is not entitled to an injunction prohibiting enforcement of the ordinance against its preexisting fireworks business. We accordingly affirm the dismissal of the landowner's amended complaint for failure to state a claim upon which relief may be granted.

The Petitioner, Travis R. Morris, appeals the Rhea County Circuit Court's denial of postconviction relief from his conviction for sexual exploitation of a minor, a Class B felony, for which he received a ten-year sentence to be served as fifteen years of probation as a Range I offender. See T.C.A. _ 39-17-1003 (2006). The petitioner contends that the trial court erred in failing to make written findings of fact and conclusions of law, that he did not receive the effective assistance of counsel in connection with his guilty plea, and that his guilty plea was not knowingly and voluntarily entered because he was mentally impaired by the effects of a prescription drug. We affirm the judgment of the trial court.

Prestige Land Company ("Developer") owned land upon which it intended to build a commercial shopping center. An estimate to complete the project was obtained. Thereafter, the project was opened up for bidding. Brian Mullins Excavating Contractors, Inc. ("Contractor") bid on the project. Although contractor's bid was significantly lower than the next lowest bid, it was only 10% lower than the estimated costs of construction. Contractor was unaware that it had made a unilateral mistake in its bid. Contractor was awarded the project. Eventually, contractor was unable to complete the project because it ran out of money due to its unilateral bidding mistake. Developer sued for breach of contract, and contractor filed a counterclaim for fraud and other claims. The trial court awarded contractor a judgment for $101,357.05. Finding no clear and convincing evidence of fraud by developer, we vacate the judgment for contractor and enter a judgment for developer in the amount of $128,326.56.

The defendant, Russell Lenox Hamblin, was convicted of three counts of aggravated robbery and sentenced to ten years for each of the first two convictions and to twelve years for the third conviction. All the sentences were ordered to run consecutively, for a total effective sentence of thirty-two years. On appeal, he argues that: the evidence was insufficient to support his convictions; the trial court erred in admitting evidence of the sale and purchase of automobiles; the trial court abused its discretion in allowing his credibility to be impeached; and he was improperly sentenced. After careful review, we affirm the judgments from the trial court.

This is an appeal from a finding of dependency and neglect. An off-duty employee of the petitioner Tennessee Department of Children's Services witnessed the respondent mother hitting the subject child in the parking lot of a retail store. After an investigation, the State filed a petition for dependency and neglect, alleging abuse based on the parking lot incident. The juvenile court determined that the child had been abused and held that the child was dependent and neglected. The mother appealed to the circuit court, which conducted a two day trial de novo. After hearing the evidence, the circuit court below entered an order finding by clear and convincing evidence that the child had been abused and declaring the child to be dependent and neglected. The mother now appeals. We affirm.

Appellant, Jason E. McLean, was charged with first degree murder after he shot and killed eighteen-year-old Sean Powell. At trial, the jury found appellant not guilty of first degree murder but guilty of reckless homicide, a lesser-included offense. The trial court denied appellant's request for judicial diversion and sentenced him to the four-year maximum sentence. It then suspended all but ninety days and ordered appellant to serve eleven years and two-hundred and seventy-five days on probation. On appeal, appellant contends the trial court erred in: (1) denying judicial diversion; (2) sentencing appellant to the maximum sentence in the applicable range; and (3) ordering a lengthy probationary period. We affirm the judgment of the trial court.

I concur in the decision to vacate the judgment of the Trial Court. I agree that Tenn. R. Civ. P. 4.01(3) controls the outcome of this appeal. I further agree that the issue in this case is whether Plaintiffs intentionally caused the delay in the prompt service of the summons. I further agree that the record before us shows that Plaintiffs did make at least some attempts to serve Defendant. This being so, I agree that Defendant did not meet her burden of showing that Plaintiffs intentionally delayed service of the summons.

This case was precipitated when defendants blocked plaintiffs' use of an existing driveway. Plaintiffs brought this action for a declaratory judgment and following an evidentiary hearing, the trial court ruled that plaintiffs had a prescriptive easement to use the driveway and that defendants would be required to restore the driveway as well as the excavations damaging plaintiffs' lots. On appeal, we affirm.

Plaintiffs sought a declaratory judgment that a gravel drive running through their property is a private easement rather than a public road. The trial court granted summary judgment in favor of the defendants, finding that the drive is a public road. Finding this case inappropriate for summary judgment, we reverse the trial court's grant of summary judgment and remand for a trial on the merits.

Carter County -Robert G. Crabtree, Jr., and Bonnie K. Hakey (collectively "the plaintiffs") filed suit against Jennifer L. Lund ("the defendant") seeking compensation for personal injuries and property damage arising out of a April 22, 2005, multiple-vehicle accident in Carter County. With her answer, the defendant coupled a motion to dismiss under Tenn. R. Civ. P. 12.02 "on the basis of insufficiency of process and insufficiency of service of process." Following a hearing, the trial court dismissed the plaintiffs' suit with prejudice finding "that the plaintiffs have not provided to the Court any valid reason for the delay in obtaining prompt service of process upon the defendant." Plaintiffs appeal. We (1) vacate the trial court's judgment dismissing the plaintiffs' complaint and (2) remand for further proceedings.

Petitioner John Anthony Bailey filed the present petition for post-conviction relief in 2009 seeking relief from convictions entered in 1995 and 1996. Petitioner acknowledged that his petition was not filed within the one year statute of limitations; however, he asserted that due process required tolling of the statute of limitations. The post-conviction court denied relief. We affirm.