APPELLATE COURT OPINIONS

The Defendant-Appellant, Dennis Ray Bailey, was convicted by a jury in the Circuit Court of Dickson County of driving under the influence, second offense, a Class A misdemeanor. He was sentenced to eleven months and twenty-nine days, suspended after serving 45 days in confinement, and ordered to pay a $600 fine. Bailey claims on appeal that he was denied a fair trial due to prosecutorial misconduct. Upon review, we affirm the judgment of the trial court.

Appellant, Jesse B. Gilliland, was arrested at the Cool Springs Mall in Franklin, Tennessee for videotaping underneath women's skirts. Officers obtained a search warrant and while conducting the search, discovered marijuana. The Williamson County Grand Jury indicted Appellant for one count of possession of marijuana weighing less than a half of an ounce. Appellant filed a motion to suppress based on lack of probable cause for the search warrant. The trial court denied the motion. Appellant entered a negotiated plea to the marijuana charge with a sentence of eleven months and twenty-nine days. As part of his plea agreement, Appellant reserved a certified question arguing that there was not probable cause to support the search warrant because the facts as alleged, of Appellant photographing underneath women's skirts in a public place, did not constitute a crime. On appeal, the State concedes that the facts as presented do not actually constitute crime under our State's current statutory scheme. Therefore, we must reverse trial court's judgment, order that the evidence found as a result of the execution of the search warrant be suppressed, and remand for further proceedings consistent with this opinion.

Petitioner, Donald Clark, appeals the trial court's denial of his petition for writ of habeas corpus. The State has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We grant the motion and affirm the judgment of the trial court.

This appeal arises from the dismissal of an ex parte order of protection filed by Wife. After finding that Wife failed to prove the allegations in the petition by a preponderance of the evidence, the trial court dismissed the order of protection and assessed the costs against Wife. Wife appeals. We reverse.

The Dickson County Grand Jury indicted Appellant, Julie Petty, for one count of sexual battery by an authority figure and one count of statutory rape by an authority figure. These charges came about as a result of Appellant's sexual relationship with a fourteen-year-old girl who was a student at the school where Appellant was a substitute teacher and softball coach. Appellant entered an open plea to one count of sexual battery by an authority figure. Following a sentencing hearing, the trial court sentenced Appellant to four years with one year to be served in confinement and the remaining three years to be served on probation. Appellant appeals from the trial court's imposition of this sentence. On appeal, Appellant argues that the trial court should have imposed a three-year sentence with the entire sentence to be served on probation. After a review of the record on appeal, we conclude that there is no basis for reversal of the trial court's judgment. Therefore, we affirm the judgment of the trial court.

This appeal involves the Tennessee Public Protection Act. The plaintiff professor was a department head at the defendant university. As the department head, the plaintiff evaluated a subordinate professor. The dean of the university instructed the plaintiff to remove negative information from the evaluation; the plaintiff refused. The plaintiff was then removed from his position as department head. He continued at the university as a tenured professor. The plaintiff sued the university asserting a claim under the Public Protection Act, alleging that he was discharged or terminated for refusing to participate in or remain silent about illegal activities. The trial court granted the university's motion for judgment on the pleadings on the basis, inter alia, that the plaintiff was neither terminated nor discharged. The plaintiff now appeals. We affirm, concluding that the removal of the plaintiff from his position as department head, when he remained employed as a professor, is not a termination or discharge under the Public Protection Act.

The Petitioner, Bruce Huffines, appeals pro se the trial court's summary dismissal of his petition for habeas corpus relief from his conviction for forgery, a Class E felony. The State has filed a motion requesting that this court affirm the trial court's summary dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We conclude the petition fails to state a cognizable claim for habeas corpus relief. The State's motion is granted, and the judgment of the trial court is affirmed.

In 1981 a Shelby County jury convicted the Petitioner, Larry McKay, and his co-defendant, Michael Sample, of two counts of felony murder and imposed upon both men a sentence of death. On direct appeal, the Petitioner's convictions and sentence were affirmed. State v. McKay, 680 S.W.2d 447 (Tenn. 1984), cert. denied, 470 U.S. 1034 (1985). The Petitioner filed multiple post-conviction petitions, one of which was filed in 1995 and is the subject of this appeal. In that petition, the Petitioner contended that the prosecution violated his right to due process and a fair trial by suppressing exculpatory evidence against him. The post-conviction court dismissed the petition, and, after a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

In 1981 a Shelby County jury convicted the Petitioner, Michael Eugene Sample, and his co-defendant, Larry McKay, of two counts of felony murder and imposed upon both men a sentence of death. On direct appeal, the Petitioner's convictions and sentence were affirmed. State v. McKay and Sample, 680 S.W.2d 447 (Tenn. 1984), cert. denied, 470 U.S. 1034 (1985). The Petitioner filed multiple post-conviction petitions, one of which was filed in 1995 and is the subject of this appeal. In that petition, the Petitioner contended that: (1) the State violated his right to due process and a fair trial by suppressing exculpatory evidence against him; (2) the State knowingly presented false testimony; and (3) his sentence of death violates Apprendi because the jury imposed the sentence based upon aggravating circumstances that were not contained in the indictment, presented to the grand jury, or proved to the jury beyond a reasonable doubt. The post-conviction court dismissed the petition, and, after a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

The Defendant, Ernest Hurd, appeals as of right from the Anderson County Criminal Court's denial of his motion to set aside the judgment declaring him to be a motor vehicle habitual offender (MVHO). See Tenn. Code Ann. __ 55-10-601, et seq. In this appeal as of right, the Defendant argues that the default judgment declaring him to be a MVHO is void because it was not properly certified under Tenn. R. Civ. P. 58. Therefore, he argues that he cannot be convicted of violating the MVHO statute. See Tenn. Code Ann. _ 55-10-616. Following our review, we hold that the default judgment met the requirements of Rule 58 and that, even if the judgment had not met these requirements, a delay of over sixteen years in challenging the judgment precludes any relief under Tenn. R. Civ. P. 60.02. Accordingly, we affirm the judgment of the trial court.

The appellant, Israel Dean Bolinger, was indicted by the Greene County Grand Jury on one count of aggravated robbery. He was convicted of the lesser-included offense of facilitation of aggravated robbery and was sentenced to five years in prison. On appeal, he contends the trial court erred in denying his motion for acquittal, failing to apply the physical facts rule, denying certain redactions in a statement, and in determining his sentence. We affirm.

This appeal involves dismissal for failure to prosecute. After receiving an adverse judgment in general sessions court, the defendant appealed to the circuit court. At the circuit court hearing on his appeal, the defendant failed to appear because he mistakenly went to the wrong court. The circuit court dismissed the appeal for failure to prosecute and remanded the case to general sessions for entry of a final judgment. The defendant now appeals. We affirm.

In January 2007, the Davidson County Grand Jury indicted Petitioner, Timothy Webber, for one count of second degree murder and one count of aggravated assault in connection with the death of a homeless woman and the beating of a man. On October 22, 2007, Petitioner pled guilty to second degree murder. As part of his plea agreement, Petitioner was sentenced to seventeen years to be served at 100%. Petitioner subsequently filed a petition for postconviction relief alleging that he was afforded ineffective assistance of counsel because counsel did not explain to Petitioner that he was pleading guilty to a "knowing killing." In addition, Petitioner alleged that because he was afforded ineffective assistance of counsel, his plea was not entered knowingly, voluntarily, and intelligently. The post-conviction court held an evidentiary hearing on the issues. In a written order, the post-conviction court denied the petition. Petitioner appealed to this Court. After a thorough review of the record, we conclude that trial counsel and the trial court explained to Petitioner that he was pleading guilty to a knowing killing and that Petitioner understood that fact. Therefore, he was not afforded ineffective assistance of counsel and his plea was entered knowingly, voluntarily, and intelligently. We affirm the post-conviction court's denial of the petition.

This is a conservatorship case. Appellee filed a petition to appoint a conservator for her father, the Appellant herein. The trial court granted the petition, appointing co-conservators for Appellant, and charging fees and expenses to the Appellant's funds, pursuant to Tenn. Code Ann. _ 34-1-114. Appellant appeals. Finding that the record is incomplete and, as such, does not support, by clear and convincing evidence, a finding that Appellant was in need of the court's assistance, and that the trial court failed to properly follow the statutory mandates required for appointment of a conservator, we vacate and remand.

On March 13, 2007, Appellant, Catherin Vaughn, pled guilty in Rutherford County Circuit Court to child abuse of a child under the age of six. The trial court ordered her to serve three years on probation. On December 18, 2008, Appellant made several threatening comments about a juvenile court judge in front of the worker who was teaching Appellant parenting skills and anger management. These threats were reported to the police. As a result, on January 1, 2009, Appellant was arrested for retaliation for past actions against a judge. A probation violation warrant was filed against Appellant. The trial court held a probation violation hearing. At the conclusion of the hearing, the trial court determined that Appellant had violated her probation. The trial court revoked her probation and sentenced her to serve twenty-one days in incarceration and serve two more years on probation. Appellant appeals from the revocation of her probation. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in revoking Appellant's probation. Therefore, we affirm the judgment of the trial court.

The petitioner, Frederick Carey, pled guilty pursuant to a negotiated plea agreement to three counts of the sale of cocaine, Class B felonies, two counts of assault, Class A misdemeanors, and one count of resisting official detention, a Class B misdemeanor. The petitioner agreed to a sentence of ten years in the Tennessee Department of Correction for each Class B felony, to be served concurrently, and to time served for the misdemeanor convictions. 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 presented an unenforceable plea agreement upon which he relied in choosing to plead guilty. Following our review, we affirm the judgment of the post-conviction court.

The Defendant, James David Allen, III, pled guilty to vandalism, a Class E felony, and received a sentence of two years of probation under the judicial diversion program. See Tenn. Code Ann. _ 40-35-313(a)(1)(A). Following the filing of a violation of probation warrant and an amended violation of probation warrant, the Defendant was sentenced to serve seven consecutive weekends in the Blount County Jail. Following the service of the seven weekends in jail, the Defendant was directed to return to supervised probation for the balance of his sentence. On April 7, 2009, a second violation of probation warrant was filed. Following a revocation hearing, the trial court revoked the Defendant's sentence of probation and ordered the Defendant to serve the remainder of the two-year sentence. In this appeal as of right, the Defendant contends that the trial court erred in denying alternative sentencing. Following our review, we affirm the judgment of the trial court.

This is an appeal of a jury verdict. The plaintiff was hunting with his son. The defendant was also hunting in the general area, and accidentally shot the plaintiff. The plaintiff filed a lawsuit against the defendant for negligence, and included a claim for negligent infliction of emotional distress on behalf of his son. The parties stipulated as to the defendant's liability, and a jury trial was held on the issue of damages. The jury instructions included instructions on the plaintiff father's mental pain and suffering and the son's emotional injury, but did not separately address the plaintiff father's emotional injury. After deliberating, the jury returned a verdict awarding damages to the plaintiff father as well as an award for the son's emotional injury. The trial court denied the defendant's motion for a new trial and approved the verdict. The defendant now appeals. On appeal, the defendant challenges the sufficiency of the evidence supporting the verdict on several elements of damages, and argues that the inconsistency in the jury instructions on emotional injury necessitates a new trial. We affirm in part, vacate in part, suggest remittitur as to the awards for future medical expenses and for emotional injury, and remand for further proceedings.

The plaintiff had filed suit for divorce against defendant and defendant moved for summary judgment on the ground that plaintiff had a prior marriage and theirs was a bigamous relationship. The Trial Judge held that defendant had a prior marriage and voided the parties' marriage ab initio and dismissed the action. Plaintiff has appealed. We hold that under Texas law where they married, and California law where they resided prior to coming to Tennessee, they could, under the statute, enter into a common-law marriage after the spouse was divorced in the prior marriage. The disputed issue of fact in the summary judgment is whether the parties entered into a common-law marriage after the plaintiff's prior marriage ended. We remand for a determination of this factual issue.

The petitioner, Demario Tabb, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. Following a jury trial, the petitioner was convicted of two counts of first degree felony murder and one count of attempted aggravated robbery. He was subsequently sentenced to an effective life sentence without the possibility of parole. On appeal, the petitioner argues that he was denied his Sixth Amendment right to the effective assistance of counsel. Specifically, he contends that counsel was ineffective by failing to remain with the petitioner after a failed proffer session to ensure that he was escorted back to his cell in light of the fact that the petitioner gave an incriminating statement to police after counsel left. Following review of the record, we affirm the judgment of the post-conviction court.

The Defendant-Appellant, Phillip G. Harris, pled guilty to aggravated sexual battery, a Class B felony, in the Circuit Court for Coffee County. Pursuant to the plea agreement, he was sentenced as a violent offender to eight years in the Tennessee Department of Correction. The judgment order did not impose lifetime community supervision following the expiration of Harris' sentence as required by Tennessee Code Annotated section 39-13-524. Consequently, the State filed a motion to amend the judgment order. The trial court entered a corrected judgment order that imposed lifetime community supervision. On appeal, Harris challenges the validity of his guilty plea and the constitutionality of the lifetime supervision statute. The State contends this court lacks jurisdiction to hear this appeal because Rule 3 of the Tennessee Rules of Appellate Procedure does not provide for an appeal as of right. Upon review, we agree with the State and dismiss Harris' appeal.

The defendant, Kevin McDougle, was convicted by a Shelby County jury of aggravated robbery, a Class B felony, and two counts of aggravated assault, a Class C felony. He was subsequently sentenced to consecutive sentences of twelve years for the robbery and six years for each assault, resulting in an effective sentence of twenty-four years in the Department of Correction. On appeal, the defendant challenges only the imposition of consecutive sentences, specifically contending that the court erred in relying upon his juvenile record to establish that he was an offender whose record of criminal activity was extensive. Following review of the record, we find no error and affirm the sentences as imposed.