APPELLATE COURT OPINIONS

A Shelby County jury convicted the defendant, Lorenzo Myrick, of reckless homicide, a Class D felony, and facilitation of especially aggravated robbery, a Class B felony. The trial court sentenced him as a Range I standard offender to three years for reckless homicide, concurrent with ten years for facilitation of especially aggravated robbery, to be served in the Tennessee Department of Correction. On appeal, the defendant argues that (1) the evidence was insufficient to support his convictions; (2) the trial court committed reversible error by improperly commenting on the evidence; and (3) the trial court improperly denied probation. Following our review, we affirm the judgments of the trial court.

A teacher and the teachers' representative organization appeal the trial court's declaration that the local school board was not required to submit to arbitration as the last step in a grievance procedure set out in a locally negotiated agreement. We affirm the trial court based upon our conclusion that no enforceable agreement to arbitrate exists.

The Defendant, Richard Trehern, was convicted by a jury in the Hawkins County Criminal Court of two counts of aggravated child abuse, a Class A felony. The trial court sentenced him as a Range I, violent offender to concurrent twenty-year sentences. On appeal, the defendant contends that the evidence is insufficient to support his convictions, that the trial court erred by denying his motion to compel the State to produce the victim's and the victim's brother's medical records, and that his sentences are excessive. We affirm the judgments of the trial court.

In this post-conviction case, the issue we review is whether the defendant's plea of guilty to aggravated sexual battery was knowingly, intentionally, and voluntarily made when the trial court did not advise the defendant of the following consequences of his guilty plea: (1) mandatory registration as a sexual offender, and (2) a mandatory sentence of community supervision for life in addition to his incarceration. We hold that the trial court was not required to advise the defendant of the requirement of sex offender registration because it is a remedial and regulatory measure, and therefore a collateral consequence of the guilty plea. We further hold that the trial court was required to advise the defendant of the mandatory sentence of lifetime community supervision because it is a punitive and direct consequence of the guilty plea. Because the trial court failed to ensure that the defendant was informed of the lifetime supervision consequence, we hold that his guilty plea to aggravated sexual battery was not knowingly, intentionally, and voluntarily entered. Accordingly, this case is remanded to the trial court for further proceedings consistent with this opinion.

In this consolidated appeal, the State challenges the trial court's dismissal of the charges of official misconduct, see T.C.A. _ 39-16-402 (2006), and official oppression, see id. _ 39-16- 403, against each defendant. The State contends that the court erroneously concluded that the defendants, as employees of Corrections Corporation of America, were not public servants as that term is used in Tennessee Code Annotated sections 39-16-402 and -403. Because we agree with the State, we reverse the trial court's order dismissing the charges in each case and remand the cases to the Criminal Court of Hamilton County.

The Defendant, Takeita M. Locke, appeals her conviction for criminally negligent homicide and the trial court's denial of her petition for writ of error coram nobis for a related especially aggravated robbery conviction. She had been convicted in an earlier trial of especially aggravated robbery related to the same facts and victim. For the homicide conviction, the Defendant received a sentence of two years as a Range I offender, to be served concurrently with the twenty-year sentence she was serving for the especially aggravated robbery conviction. On appeal, she challenges (1) the trial court's denial of her motion to dismiss for violation of her right to a speedy trial, and (2) the trial court's denial of her petition for writ of error coram nobis related to the especially aggravated robbery conviction. We affirm the judgments of the trial court.

The Defendant, Andrei Ciobanu, was charged with vandalism of property with a value of at least $1,000 but less than $10,000. See T.C.A. _ 39-14-408. The trial court granted his motion to suppress eyewitness identification evidence and dismissed the case. In this appeal filed by the State, we reverse the order of the trial court suppressing the evidence and dismissing the case.

The petitioner, Eric Maxie, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. A jury convicted the petitioner of aggravated sexual battery, a Class B felony. The trial court sentenced him as a Range I violent offender to serve ten years and six months in the Tennessee Department of Correction. On direct appeal, this court affirmed the petitioner’s conviction. The petitioner filed a petition for post-conviction relief alleging the ineffective assistance of counsel, and the post-conviction court denied his petition. On appeal, the petitioner contends that the post-conviction court erred when it denied his petition for post-conviction relief. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgment of the post-conviction court.

In 1977, the appellant was found guilty of armed robbery and the murder of four individuals. He was sentenced in state court to four consecutive ninety-nine year terms for the murders, and was subsequently sentenced in federal court to ninety-nine years for the bank robbery. He served thirty years in federal prison and was turned over to state authorities in 2007 to begin serving his state sentences. He sought a declaratory judgment that the state sentences were to run concurrently with the federal sentence and that, as a consequence of serving his federal sentence, he was immediately eligible for parole consideration on the state court sentences. The trial court found that the state court sentences ran consecutively to the federal sentence and granted the appellee's motion for summary judgment. Finding no error, the trial court's judgment is affirmed.

This appeal arises from a declaratory judgment action. The trial court determined that Defendant teacher's grievance against the Franklin County Board of Education was not subject to arbitration under the collective bargaining agreement between the Board and the Franklin County Education Association. The trial court also dismissed Defendant teacher's counterclaim under Tennessee Code Annotated _ 49-5-510. We affirm.

This is an appeal from a final decree of divorce. The trial court granted the wife a divorce, equitably divided the parties' property, and awarded the wife alimony in solido. We affirm.

The employee sustained gradual injuries to his arms and shoulders as a result of repetitive motion in the course of his employment. His employer denied liability based upon the affirmative defense of misrepresentation of physical condition. Employee had sustained gradual injuries to his left shoulder and arm during a previous job. He was placed under permanent activity restrictions and received a workers’ compensation award as a result of those injuries. In applying for employment with appellant, he did not disclose the prior injuries. The trial court concluded that the employer did not prove the misrepresentation defense. Permanent total disability benefits were awarded. Employer has appealed, contending that the trial court erred by finding that it did not sustain its burden of proof as to the affirmative defense. Upon review, we conclude that the evidence preponderates against the trial court’s findings and that the employee’s misrepresentation was willful, was relied upon by the employer and was causally related to his subsequent injuries. Because we find that the employer sustained its burden of proving its affirmative defense, we reverse the awarding of benefits. Finally, we conclude that the employer is not entitled to recover the cost of retaining a consulting physician to view a surgical procedure that did not take place.

Landowners filed suit to determine ownership of that portion of Ann Wilson Road that crosses their property. Defendants sought and were granted summary judgment based on the running of several statutes of limitations. Landowners appealed. We affirm.

The Defendant-Appellant, Rodney A. Lucas, pled guilty in the Circuit Court of Montgomery County to possession of 0.5 grams or more of cocaine with intent to deliver, a Class B felony. He received a sentence of eight years to be served on probation. The trial court revoked Lucas' probation after his second violation. On appeal, Lucas admits that he violated his probation for a second time; however, he claims the trial court erred by revoking his probation and ordering confinement. Upon review, we affirm the judgment of the trial court.

The Petitioner, Kenneth J. Cradic, appeals the summary dismissal of post-conviction relief by the Sullivan County Criminal Court. The Petitioner was convicted of three counts of rape of a child, a Class A felony, and three counts of incest, a Class C felony. He received a sentence of twenty years for each rape of a child conviction and a sentence of four years for each incest conviction. The trial court ordered that two of the twenty-year sentences for rape of a child be served consecutively to one another but concurrently with the third conviction and ordered that the three counts of incest be served consecutively to one another but concurrently with the rape of a child convictions, for an effective sentence of forty years. On appeal, the Petitioner contends that the post-conviction court erred in summarily dismissing his petition for post-conviction relief without appointing counsel. Upon review, we reverse the judgment summarily denying post-conviction relief and remand this case to the postconviction court for a full evidentiary hearing on the Petitioner's claim of ineffectiveassistance of counsel regarding the misapplication of the sentencing law.

This suit was filed in Circuit Court after first being filed and then voluntarily non-suited in Chancery Court. After multiple discovery abuses, the trial court entered an order pursuant to Tenn. R. Civ. P. 37 dismissing the plaintiffs' suit. Plaintiffs appeal to this Court. We affirm.

Following a jury trial, Defendant, Quidon Clemons, was convicted of assault, a Class A misdemeanor, aggravated stalking, a Class E felony, and violation of an order of protection, a Class A misdemeanor. The trial court sentenced Defendant as a Range I, standard offender, to two years for aggravated stalking. As to the misdemeanors, Defendant was sentenced to eleven months, twenty-nine days for assault, and eleven months, twenty-nine days for violation of an order of protection. The sentences were ordered to be served consecutively. On appeal, Defendant argues that his sentence is excessive. After a thorough review, we affirm the judgments of the trial court.

This is a divorce action. Husband/Appellant appeals from the trial court's division of marital assets, award of attorneys fees to the Wife, and the stay of the proceedings during the pendency of the appeal. Affirmed as modified.

An assistant principal was transferred to a teaching position and grieved the transfer pursuant to a locally negotiated agreement between the local board of education and the organization representing teachers. After pursuing remedies through the school board, the teacher asked the trial court to compel the board to arbitrate resolution of the dispute. The trial court granted summary judgment to the school board, concluding that Tenn. Code Ann. _ 49-2-303 applied since "assistant principals" are statutorily the same as "principals" and, under the holding in Marion County Board of Education v. Marion County Education Association, 86 S.W.3d 202 (Tenn. Ct. App. 2001), the director of schools has the authority to transfer principals unrestrained by locally negotiated agreements. Mr. Johnson and the association appealed, claiming that Tenn. Code Ann. _ 49-2-303 does not apply to assistant principals and that the director of schools must comply with their agreement in making transfer decisions. We agree that the arbitration provision is not enforceable, but for a different reason. We hold that there was no meeting of the minds as to the procedure to be used as the final step in the grievance procedure. Consequently, there was no enforceable agreement to arbitrate.

Petitioner, Ambreco Shaw, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial. Specifically, Petitioner contends that (1) counsel failed to fully investigate all possible defenses; (2) counsel failed to adequately meet with Petitioner and allow him to be involved in his defense; (3) counsel failed to properly convey and explain settlement offers; (4) counsel failed to properly advise Petitioner concerning his right to testify; (5) counsel improperly allowed Petitioner to appear at trial in prison clothing; (6) counsel failed to request a mental evaluation in a timely manner; and (7) counsel failed to cross-examine witnesses and provide proof at the sentencing hearing. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

The defendant, Russel B. Cain, entered a plea of guilty to three counts of aggravated sexual battery of a victim under the age of thirteen, a Class B felony, but reserved a certified question of law to Counts Two and Three of the indictment. Specifically, he requests this
court to review: “If an indictment alleges multiple counts of child sexual abuse, and if the dates of the separate counts are state[d] as ‘the ___ day of _______, 2007,’ does the conviction of Count One of the indictment bar the conviction on Counts Two and Three of
the indictment under the double jeopardy protection of the Constitution.” The defendant also argues that he was improperly sentenced to consecutive sentences. After careful review, we conclude that the conviction on Count One of the indictment does not bar the convictions on subsequent counts of the indictment when the dates of the offenses are stated as “the ___ day of ____, 2007” and that consecutive sentencing was appropriate. Accordingly, we affirm the judgments from the trial court.
 

Petitioner Roy E. Keough appeals as of right the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. On May 9, 1997, a jury found the Petitioner guilty of the premeditated murder of his wife, Betty Keough, and the attempted first degree murder of Kevin Berry. For the murder conviction, the jury found that the Petitioner had previously been convicted of one or more felonies for which the statutory elements involve the use of violence to the person. See T.C.A. _ 39-13-204(i)(2). The jury further found that this aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt. The jury then sentenced the Petitioner to death. The trial court imposed a forty-year sentence for the attempted murder conviction to be served consecutive to his sentence of death. The Petitioner's convictions and sentences were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Keough, 18 S.W.3d 175 (Tenn. 2000). On December 12, 2000, the Petitioner filed a pro se petition for post-conviction relief. An amendment was filed on February 14, 2003, and an addendum to the amended petition was filed on November 6, 2007. The post-conviction court held hearings on various dates in September, October, and November 2007. On July 23, 2008, the post-conviction court entered an order denying relief. On appeal to this Court, the Petitioner presents a number of claims that can be characterized in the following categories: (1) the Petitioner's trial counsel were ineffective, (2) the Petitioner's appellate counsel were ineffective; (3) the Petitioner was denied a fair trial and (4) Tennessee's death penalty statutory scheme is unconstitutional. Following a thorough and exhaustive review of the record and the applicable law, we affirm the judgment of the post-conviction court.

I concur in the result reached in the majority opinion, given existing precedent. I believe though, that once the habeas court concludes that a judgment is void, it should transfer the case to the convicting court—a court of equal jurisdiction—for further proceedings. The habeas court should not be allowed to act further regarding the convicting case by limiting the options available to the Petitioner or to the convicting court upon transfer of the case.

This appeal involves legal insurance. The defendants have sold legal insurance for many years. The plaintiff law firm provided legal services to policyholders pursuant to the defendants' legal insurance policies. After Tennessee began to regulate legal insurance, the defendants were required to obtain State approval of their insurance rates and plans. The defendants submitted plans to the State. The plans included proposed rates and anticipated claims expenses, consisting primarily of the fees paid to the plaintiff law firm. The State informed the defendants that the initial filings did not reflect a sufficient loss ratio, that is, ratio of expenses to premium rates. The defendants revised the State filings to reflect an increase in the compensation paid to the plaintiff law firm. At the same time, the defendants presented the plaintiff law firm with a contract that required the plaintiff to pay the defendants for certain administrative services. The amount to be paid to the defendants essentially equaled the amount by which the defendants increased the plaintiff's compensation rate. Years later, the plaintiff discovered facts that caused it to conclude that the contract was a subterfuge to allow the defendants to recoup the increased compensation to the law firm while appearing to comply with the State's loss ratio requirement. The plaintiff informed the State of these facts and of its suspicion that the purpose of the arrangement was to circumvent the loss ratio requirement. After receiving this information, the State took no adverse action against the defendants. The plaintiff then filed this lawsuit seeking restitution, asserting that the contract with the defendants was fraudulently induced and that it was void and unenforceable as against public policy. The plaintiff also asserted a claim under the filed rate doctrine, seeking to recover the difference between the pay rate that the defendants filed with the State and the rates actually paid to the plaintiff. The trial court granted summary judgment in favor of the defendants on all of the plaintiff's claims. The plaintiff now appeals. We reverse the grant of summary judgment as to the claims of fraudulent inducement and violation of public policy, finding that genuine issues of material fact exist as to those claims. We affirm the trial court's decision on all remaining claims.

Reginald Smith ("the Decedent") died when the exposed metal edge of a device known as a "Guardrail Energy-Absorbing Terminal" ("the crash cushion") penetrated the window of the cab of his moving overturned tractor-trailer and cut him nearly in half. His son, Reginald Denard Usher ("the plaintiff"), filed this action in the trial court against Charles Blaylock & Sons, Inc. The plaintiff also filed a claim against the State with the Tennessee Claims Commission. The essence of the claims is that the crash cushion was negligently placed at the end of a series of concrete barriers that served to separate traffic entering on and exiting from the roadway connecting to the temporary end of Interstate 140 in Blount County. The alleged negligence was the failure to install a "transition panel" between the last concrete barrier and the crash cushion. Such a panel is designed to cover the otherwise exposed edge of the crash cushion thereby preventing vehicles from "snagging" the exposed metal edge. Eventually, the claim against the State was joined with the claim against Blaylock. The case was tried to a jury with the circuit judge sitting as the Claims Commissioner; the jury was utilized by the trial judge in an advisory capacity with regard to the claim against the State. The jury returned a verdict in favor of the plaintiff. The jury found that the plaintiff's total damages were $2,000,000. It apportioned fault 25% to the Decedent, 37.5% to the State, and 37.5% to Blaylock. Acting as the Claims Commissioner, the trial court went against the advice of the jury and dismissed the claim against the State. The court found (1) that the plaintiff failed to carry the burden of proof with respect to the applicable standard of care for installing crash cushions; (2) that the plaintiff failed to prove a breach of duty; and (3) that, in any event, the Decedent was at least 50% at fault for speeding through a construction zone in foggy conditions. Later, the trial court granted Blalock's motion for judgment notwithstanding the verdict and entered judgment in its favor. The court held (1) that Blalock was not responsible, as a matter of law, for leaving off the transition panel because the State's inspector on the scene "directed" Blalock to leave it off; (2) that the plaintiff failed to carry the burden of proving, by expert testimony, what a reasonably prudent contractor would have done under the circumstances; and (3) again, that the Decedent was at least 50% at fault. The court, acting as 13th juror, conditionally granted Blalock a new trial in the event the judgment in its favor was vacated or reversed. The plaintiff appeals. We affirm the judgment in favor of the State. We vacate the judgment in favor of Blalock and remand for a new trial as to that defendant.