APPELLATE COURT OPINIONS

Wife appeals the entry of an order of protection against her. Because the order of protection has expired, the appeal is moot, and therefore, is dismissed.

The pro se petitioner, Tony Scott Walker, appeals the dismissal of his petition for writ of error coram nobis, arguing that due process considerations should toll the statute of limitations and that he is entitled to error coram nobis relief on the basis of his discovery that one of the State's witnesses may have fabricated or falsified evidence at his trial. Following our review, we affirm the dismissal of the petition.

The defendant, James Carlos Ward, appeals from his Davidson County Criminal Court jury convictions of two counts of especially aggravated kidnapping, see T.C.A. _ 39-13-305, and two counts of aggravated robbery, see id. _ 39-13-402. The defendant received an effective sentence of 45 years to serve in the Department of Correction as a Range II offender. On appeal, the defendant claims:(1) the trial court erred in denying the defendant's pretrial motion to suppress a victim's identification of the defendant; (2) the evidence was insufficient to support two verdicts of guilty of aggravated robbery and two verdicts of guilty of especially aggravated kidnapping; (3) the especially aggravated kidnapping convictions violate principles of due process; (4) the trial court erred on principles of double jeopardy in imposing two convictions of aggravated robbery; and(5) the trial court erred in finding the defendant to be a Range II offender, in imposing excessive sentences, and in consecutively aligning some of the sentences. Following our review, we modify one conviction of aggravated robbery to aggravated assault, affirm the remainder of the convictions, and remand for resentencing.

This is the second appeal in a divorce action. Husband appeals the division of marital property and the award of alimony in solido to Wife. In the 2005 Final Decree of Divorce, the trial court determined that the husband's shares of stock in the family business, which his parents gifted to him, were his separate property; however, the appreciation of that stock during the marriage, $1.7 million, was held to be marital property. The court awarded the wife 37.5 percent of the marital estate and alimony in futuro of $1,500 per month for the first year and $2,500 per month thereafter. This court affirmed the division of marital property but modified the award of alimony, holding that she was entitled to eight years of rehabilitative alimony but not alimony in futuro. The Supreme Court held that the appreciation of the husband's stock was his separate property, not marital property, and remanded the case to the trial court to reconsider the division of the marital estate and to reconsider the award of alimony due to the substantial reduction of the marital estate. On remand, the trial court awarded the wife 64 percent of the substantially reduced marital estate and granted her alimony in solido in the amount of $478,000. In this second appeal by the husband, we affirm the division of marital property, finding it is not inequitable under the circumstances, and we affirm the award of alimony in solido to Wife, finding that the award was based on the relevant factors in Tenn. Code Ann. _ 36-5-121(i).

The Petitioner, Phedreck T. Davis, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief challenging his convictions for first degree murder, attempted second degree murder, and assault, for which he received an effective sentence of life imprisonment plus fifteen years. See State v. Phedrek T. Davis, No. M2006-00198-CCA-R3-CD, Davidson County, slip op. (Tenn. Crim. App. July 19, 2007), aff'd, 266S.W.3d 896 (Tenn. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2790 (2009). He claims that newly discovered evidence proves that the State solicited damaging perjury during his initial trial, thereby violating his constitutional rights. The trial court dismissed his claim as having been previously determined. See T.C.A. _ 40-30-106(f). We affirm the judgment of the post-conviction court.

The Defendant, Andre Alexander Smith, was tried before a jury on an indictment charging one count of first degree felony murder. He was found guilty of one count of the lesser-included offense of voluntary manslaughter. In this appeal, the Defendant contends that (1) the trial court erred in upholding the State's use of peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986); (2) the State presented evidence insufficient to convict him of voluntary manslaughter; and (3) the trial court erred in overruling his objection to certain portions of the State's closing argument. After our review, we affirm the judgment of the trial court.

The Defendant-Appellant, Darius L. Brown, entered eleven guilty pleas in five different cases in the Sullivan County Criminal Court. He received an effective nine-year sentence at thirty percent pursuant to his plea agreement, with the manner of service of his sentence to be determined by the trial court. On appeal, Brown argues that the trial court abused its discretion by denying an alternative sentence. Upon review, we affirm the trial court's judgments.

The petitioner, Author Ray Turner, claims that the habeas corpus court erred in summarily dismissing his petition for writ for habeas corpus relief. The petition claims that his sentence is illegal because his release eligibility of 30 percent violates statutory law requiring that he served 100 percent of his sentence as a "multiple rapist." See T.C.A. _ 39-13-523 (Supp.1994). We agree that the defendant's aggravated rape sentences are illegal and that the habeas corpus court erred in summarily dismissing his claim. We remand to the Morgan County Circuit Court for appointment of counsel and a hearing to determine the proper remedy.

This case in on appeal for the second time after remand for determination of the defendant's request for attorney's fees, costs, and expenses. The defendant challenges the sufficiency of the trial court's award. After reviewing the record, we reverse in part and affirm in part the trial court's judgment.

This appeal concerns a primary lien holder's security interest in certain real property following a foreclosure sale and the obligation of a third-party purchaser of the foreclosed property to remit to the lien holder rents collected after notice of mortgage acceleration. The plaintiff contended that the defendant bank was not entitled to claim priority for any additional indebtedness above the original principal amount stipulated in the Deed of Trust, plus interest and attorney's fees. The plaintiff further alleged that the bank's payment in full of the first mortgage holder's loan constituted a release of this loan and not an assignment. The defendant bank claimed that the plaintiff was liable to it for rent collected by the plaintiff on the property after notice of the mortgage acceleration. The trial court ordered that the defendant bank was not required to release its lien on the property until all of the funds due were paid and that the plaintiff must pay the defendant bank $6,300 in rent payments. We affirm.

This is a condemnation case in which the City of Brentwood acquired 0.72 acres of land by eminent domain for the purpose of constructing a 2.5 million gallon water tank. Following a trial, the jury awarded $43,200 for the value of the land taken and $194,850 for the incidental damages to the remainder of the property. The City's ability to take the land and the amount awarded for the value of the land taken is not in question; rather, the City appeals the amount of incidental damages awarded. Finding no error, we affirm.

The petitioner, Ronald Dotson, appeals the denial of post-conviction relief by the Shelby County Criminal Court. The petitioner was convicted of two counts of aggravated robbery, a Class B felony. As a repeat violent offender, the petitioner received consecutive sentences of life without parole. These sentences were ordered to be served consecutively to another unrelated set of aggravated robberies for which the petitioner was sentenced to life without parole. In this appeal, the petitioner claims that his due process rights were violated by the trial court’s failure to grant a continuance and failure to grant a mistrial. Upon review, we affirm the judgment of the trial court.

The Defendant, Steve Fredrick Rickett, appeals his conviction by a jury in the Knox County Criminal Court for second degree murder for which he was sentenced as a Range I, violent offender to sixteen years in the Department of Correction. The Defendant contends the following: (1) the evidence was insufficient to support his conviction, (2) the trial court erred in allowing expert witness testimony because the Defendant received inadequate notice of the scope of the expert's testimony and in not granting a continuance, (3) the trial court erred in allowing the county medical examiner to testify to the effects of alcohol and narcotics on the victim, (4) the trial court erred in failing to grant the Defendant's motion for a continuance to allow a defense expert additional time to test the shirt the victim was wearing when she was shot, (5) the trial court erred in allowing into evidence the Defendant's statements to police, (6) the trial court erred in allowing the State to amend the toxicology report during the trial, and (7) the trial court erred in failing to respond properly to the jury's questions requesting a definition of heat of passion and whether "voluntary intoxication" constituted "heat of passion." We affirm the judgment of the trial court.

The Defendant, Charles Williams, was convicted by a Shelby County Criminal Court jury of first degree felony murder and especially aggravated robbery, a Class A felony. Following a sentencing hearing, the trial court sentenced the Defendant as a Range I standard offender to consecutive sentences of life and fifteen years for the felony murder and especially aggravated robbery convictions, respectively. In this appeal as of right, the Defendant contends that (1) the trial court erred in denying his motion to suppress evidence; (2) the trial court erred in denying his motion for judgment of acquittal based on the constructive amendment of the indictment in his case; and (3) the evidence was insufficient to support his convictions. Following our review, we affirm the judgments of the trial court.

The Davidson County Grand Jury indicted Appellant, Gary Vincent Elmore, for one count of statutory rape. Appellant entered a best interest plea to the offense as charged with the provision that he would serve a sentence of one year on probation and that the trial court would hold a hearing to consider his eligibility for judicial diversion. At the hearing, Appellant testified that he had previously been convicted of driving under the influence ("DUI") in Kentucky. His testimony was the only evidence regarding this conviction. Appellant argued that the DUI conviction would be considered a Class C misdemeanor, while the State argued that it should be considered a Class A misdemeanor. A previous Class A misdemeanor would disqualify Appellant from being eligible for judicial diversion. At the conclusion of the hearing, the trial court determined that he was not eligible for judicial diversion because the prior DUI conviction from Kentucky would be considered a Class A misdemeanor in Tennessee. Appellant now appeals the trial court's denial of judicial diversion. We conclude that Appellant's testimony regarding the prior DUI conviction was sufficient proof and that the trial court correctly based its determination of the classification of the Kentucky offense on the elements of the offense as opposed to the accompanying sentence. Therefore, we affirm the trial court's denial of judicial diversion.

The defendant, Kenneth Ross Jackson, appeals the denial of judicial diversion from the Hamilton County Criminal Court. He entered pleas of guilty to theft of property in excess of $1000, a Class D felony; filing a false report to a law enforcement officer, a Class D felony; and theft of property under $500, a Class A misdemeanor. He was sentenced as a Range I offender to concurrent terms of two years, suspended to supervised probation for both Class D felony convictions. He was sentenced to a concurrent term of eleven months and twenty-nine days on unsupervised probation for the Class A misdemeanor. On appeal, the defendant contends that he was improperly denied judicial diversion. After careful review, we affirm the judgments of the trial court.

The Defendant, Ket T. Voun, a Cambodian native, was convicted, upon his guilty pleas, of aggravated robbery and facilitation of second degree murder. Following a sentencing hearing, the Davidson County Criminal Court ordered him to serve his eight-year sentence for facilitation of second degree murder in total confinement. He now appeals, arguing that, due to his likely deportation for these crimes, a probationary sentence was warranted. After a review of the record, we affirm the sentencing decision of the trial court.

Anne Dowd and Ferrell Ervin filed a motion to intervene and to stay the distribution of the estate of Cleo M. Snapp, claiming they were heirs of the estate. Ms. Dowd asserted that she was the non-marital child of Thomas Ervin, a brother of Ms. Snapp, and Mr. Ervin asserted that his father, Ben Ervin, was the non-marital child of Thomas Ervin. The executrix of the estate responded by filing a motion to deny their claims. After a hearing, the trial court granted the executrix's motion to deny the claims because they were untimely. We affirm.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of  findings of fact and conclusions of law. The employee fell from a platform at work. The injury was accepted by his employer as compensable. After a period of medical treatment, the authorized physicians released the employee to return to work with no permanent impairment or restrictions. The employee sought medical treatment on his own. Ultimately, he had surgery on his back and neck. He filed suit against his employer. Employee had two previous workers’ compensation awards. Several months later, he amended his complaint to add the Second Injury Fund as a defendant. After a trial on the merits, the trial court found that the employee had sustained a compensable injury which resulted in an 85% permanent partial disability to the body as a whole. The court apportioned the award according to Tennessee Code Annotated section 50-6-208(b). It then dismissed all claims against the Second Injury Fund, based upon the statute of limitations. It awarded some medical expenses claimed by the employee, but denied others. On appeal, the employee asserts that the trial court erred by dismissing the claim against the Fund, by incorrectly determining the percentage of disability represented by his earlier settlements, and by declining to award all requested medical expenses. Finding no error, we affirm the judgment.

A Davidson County jury convicted the Petitioner, Levi Battle, III, of possession of twenty-six grams or more of cocaine with intent to sell or deliver, and the trial court sentenced him as a career offender to thirty years in the Tennessee Department of Correction. On direct appeal, the Petitioner challenged the denial of his motion to suppress, and we affirmed the trial court's judgment. State v. Levi Battle, III, No. M2006-00288-CCA-R3-CD, 2007 WL 957207, at *1 (Tenn. Crim. App., at Nashville, Mar. 29, 2007), perm. app. denied (Tenn. Aug. 13, 2007). The Petitioner then filed a petition for post-conviction relief in which he alleged that he received the ineffective assistance of counsel, and, after a hearing, the post-conviction court dismissed the petition. After a thorough review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

The Defendant, Jonathan Jasper Smith, entered guilty pleas in the Sullivan County Circuit Court to one count of attempting to obtain narcotics by fraud, a Class D felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. Pursuant to the plea agreement, the Defendant received concurrent sentences of two years as a Range I, standard offender, and eleven months twenty-nine days, respectively. In a separate case, the Defendant pled guilty to violation of a habitual traffic offender order, a Class E felony; speeding, a Class C misdemeanor; and failure to show proof of financial responsibility, a Class C misdemeanor. He received an effective sentence of two years for these offenses to be served consecutively to the drug-related cases. The manner of service was left to the trial court's determination. Following an alternative sentencing hearing, the trial court denied probation and all other forms of alternative sentencing. In this appeal as of right, the Defendant contends that the trial court erred in denying him alternative sentencing. Following our review, we affirm the judgments of the trial court.

A Knox County Criminal Court jury convicted the defendant, Marvin J. Hill, of first degree premeditated murder, see T.C.A. _ 39-13-202 (2003), and abuse of a corpse, see id. _ 39-17-312. The trial court imposed sentences of life imprisonment and six years, respectively, and ordered the sentences to be served concurrently for an effective sentence of life in prison. In this appeal, the defendant argues that the trial court should have suppressed bodily fluids obtained from the victim's body as fruit of the defendant's unconstitutionally procured statement, contends that the trial court erred by admitting into evidence telephone calls the defendant placed while in jail and a videotape recording of the victim's body being recovered by authorities, asserts that the trial court should not have ruled that he could be impeached by convictions greater than 10 years old, claims that the trial court erred by permitting the State to argue that the victim had been raped prior to her death, and challenges the sufficiency of the convicting evidence. Discerning no error, we affirm the judgments of the trial court.

The Petitioner, Thomas T. Nicholson, appeals the denial of post-conviction relief in the Criminal Court for Loudon County from his conviction upon a plea of nolo contendere to sexual battery by an authority figure, a Class C felony, for which he received a six-year sentence in the Department of Correction. On appeal, the Petitioner contends that he received the ineffective assistance of counsel and that as a result, his plea was not voluntarily, knowingly, or intelligently entered. We hold that the Petitioner received the ineffective assistance of counsel because he was given erroneous advice about release eligibility. We reverse the judgment of the trial court denying post-conviction relief, we vacate the Petitioner's conviction, and we remand the case for further proceedings consistent with this opinion.

Father appeals the trial court's termination of his parental rights. Finding that Father was in substantial non-compliance with the permanency plan and that termination was in the child's best interest, the court's decision is affirmed.