APPELLATE COURT OPINIONS

The petitioner, Philander Butler, appeals the Shelby County Criminal Court's dismissal of his petition for habeas corpus relief. The State has moved to have this court summarily affirm the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. We grant the motion and affirm the order of dismissal pursuant to Rule 20.

The Defendant, April Jennifer Warren, was convicted upon her guilty plea in the Blount County Circuit Court of voluntary manslaughter, a Class C felony. Pursuant to a plea agreement, the Defendant received a Range II, ten-year sentence with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court ordered the Defendant to serve the sentence in confinement. The Defendant appeals, contending that the trial court erred in denying alternative sentencing. Based upon conduct by the trial judge, we reverse the judgment of the trial court and remand the case for resentencing.

The Defendant, Annette Hamby, appeals as of right from her Bradley County jury conviction for first degree premeditated murder. She contends that the evidence, which included proof of her intoxication, was insufficient for the jury to find beyond a reasonable doubt that she premeditated the crime. We affirm the judgment of the trial court

The Petitioner, Michael Joseph Grant, appeals the dismissal of his petition for post-conviction relief from his aggravated burglary and theft convictions for which he received an effective four-year suspended sentence and from the revocation of his probation. He entered pleas of guilty to aggravated burglary and theft and was sentenced to four years, which was suspended. His petition for post-conviction relief asserted that his pleas of guilty were involuntary and unknowing, that his confession was coerced, that the State failed to provide immunity to him, that law enforcement personnel conspired to violate his right to due process, and that the trial court erred  n revoking his probation. The post-conviction court dismissed the petition, and the Petitioner filed an untimely appeal. On appeal, the Petitioner contends, and the State agrees, that the post-conviction court erred in dismissing the petition without a hearing. Following our review, we agree and remand for the appointment of counsel and an evidentiary hearing.

This opinion addresses an appeal from a judgment affirming the disbarment of an attorney by a hearing panel designated by the Board of Professional Responsibility. The first issue presented is whether the panel was divested of jurisdiction when the Board approved a proposed offer of a conditional guilty plea that the attorney later accepted with modifications. A second issue is whether the attorney was entitled to a voluntary nonsuit in the trial court after filing a petition for writ of certiorari seeking review of the adverse decision by the panel. Initially, the panel retained jurisdiction to enter the order of disbarment. Further, because the Tennessee Rules of Civil Procedure apply to our rules of disciplinary enforcement, an attorney who files a petition for writ of certiorari is entitled to a voluntary nonsuit; however, principles of sovereign immunity preclude the application of the one-year savings statute, Tennessee Code Annotated section 28-1-105(a). A petition for certiorari must, therefore, be filed within sixty days of the panel judgment in order to preserve an appeal. In summary, the voluntary nonsuit is granted; however, the appeal is dismissed because a second petition for writ of certiorari was not timely filed. We, therefore, reverse the judgment of the trial court as to the denial of a voluntary nonsuit; we affirm the judgment of disbarment by the panel.

The defendant, Martino Kelley, was convicted of the first degree (premeditated) murder of his wife and sentenced to life without the possibility of parole. On appeal, he argues that: (1) the evidence was insufficient to support his conviction; (2) the State’s attorney committed reversible error in referencing the jury’s responsibility to the community; and (3) the trial court abused its discretion in denying the defendant’s motion to continue the trial. After careful review, we affirm the judgment from the trial court.

The Defendant, Sonny Dean Farrow, pled guilty in the Jefferson County Circuit Court to aggravated burglary and theft, receiving a sentence of six years on supervised probation. Following the filing of several probation violation warrants and finding that the Defendant violated the terms of his probationary sentence, the trial court revoked his probation and ordered the Defendant to serve the balance of his sentence in custody. In this appeal as of right, the Defendant contends that the trial court abused its discretion by ordering the Defendant to serve his sentence. Discerning no error, we affirm the judgment of the trial court.

I concur with most of the decisions and reasoning in the majority opinion, including the reversal of the aggravated child abuse conviction for insufficient evidence. I respectfully dissent, however, from the opinion’s affirming the felony murder conviction. I would reverse and vacate the felony murder conviction, as well.

Defendant-Appellant, Genaro Edgar Espinosa Dorantes (“Dorantes”) was convicted by a Davidson County jury of first degree felony murder during the perpetration of aggravated child abuse and aggravated child abuse by infliction of injury. For the felony murder conviction, Dorantes received a mandatory sentence of life imprisonment. The trial court later sentenced him as Range I, standard offender to a consecutive term of twenty-two years’ incarceration for the aggravated child abuse conviction. Dorantes argues: (1) the record is insufficient to support both his conviction for first degree felony murder based on aggravated child abuse and his conviction for aggravated child abuse; (2) the trial court erred in admitting certain photographs of the victim’s body; (3) the trial court erred when it refused to provide a special jury instruction that ensured that the verdicts were based on acts of abuse rather than a continuing course of neglect; (4) the trial court erred in denying his motion to require the State to make an election of offenses; and (5) his sentence of twenty-two years for the aggravated child abuse conviction was excessive. After a careful review of the record and the issues presented, we conclude the evidence is insufficient to support the aggravated child abuse conviction; therefore, we reverse and vacate the conviction for the aggravated child abuse and modify Dorantes’ sentence to life imprisonment. The judgment of the trial court for the felony murder conviction is affirmed.

Bureau of TennCare filed a petition pursuant to Tenn. Code Ann. § 30-1-301 seeking the appointment of an administrator of the estate of a deceased TennCare recipient in order to recover the amount of medical assistance and services provided decedent. Trial court declined to appoint an administrator, finding that the statute of limitations at Tenn. Code Ann. § 30-2-310(b) barred the claim of TennCare. We reverse the trial court decision in light of In Re: Estate of Martha M. Tanner and remand the case for further proceedings.

In Cause C07-176, the Defendant-Appellant, Merl Wayne Medley, was convicted by an Obion County jury of two counts of attempted first degree murder, Class A felonies, and two counts of aggravated assault, Class C felonies. In the same cause, Medley was also found guilty through a bench trial of one count of retaliation for past action, a Class E felony, and one count of violation of an order of protection, a Class A misdemeanor. In Cause C07-177, Medley was convicted by a jury of one count of aggravated assault, a Class C felony, and one count of simple assault, a Class A misdemeanor. In Cause CC-07-CR-233, Medley was convicted by a jury of one count of solicitation to commit first degree murder, a Class B felony. In Cause C07-176, one of the convictions for attempted first degree murder and both of the convictions for aggravated assault were merged into the remaining conviction for attempted first degree murder, for which Medley received a twenty-five-year sentence at 30%. He also received a sentence of two years at 30% for the retaliation for past action conviction and a sentence of eleven months and twenty-nine days for the violation of an order of protection conviction, which were to be served concurrently with the attempted first degree murder conviction. In Cause C07-177, the assault conviction was merged into the aggravated assault conviction, for which Medley received a six-year sentence at 30%. In Cause CC-07-CR-233, Medley received a twelve-year sentence at 30% for the solicitation to commit first degree murder conviction. The trial court ordered that the twenty-five-year sentence for the attempted first degree murder conviction, the twelve-year sentence for the solicitation to commit first degree murder conviction, and the six-year sentence for the aggravated assault conviction be served consecutively for an effective sentence of forty-three years. In this appeal, Medley challenges the trial court’s (1) refusal to suppress his statement, (2) joinder of the offense of solicitation to commit first degree murder to the offenses of attempted first degree murder and aggravated assault; and (3) imposition of consecutive sentences. Upon review, we affirm the judgments of the trial court.

This appeal stems from a paternity action in which K.A.G (“Mother”) filed a petition against B.L.I. (“Father”) seeking legitimation of Z.R.G. (“the Child”), her then 14-year-old son, and an award of child support. The parties stipulated that Father was the biological father of the Child based on the results of DNA testing. An agreed order was entered setting Father’s current child support obligation under the Child Support Guidelines (“the Guidelines”). Following a hearing on the remaining issues, Father was ordered to pay child support retroactive to the filing of the petition plus 36 months. Father was also ordered to pay a portion of the Child’s orthodontic and dental expenses. Mother appeals, contending that the trial court erred in declining to award her child support back to the date of the child’s birth. We conclude that the court abused its discretion in deviating from the presumption that child support should be awarded retroactively to the date of the child’s birth. We vacate that portion of the trial court’s judgment pertaining to retroactive child support and remand for a hearing at which the trial court will calculate, in a manner consistent with the Guidelines, the child support due Mother from the date of the Child’s birth to the date of filing of the petition.

Petitioner Jeremy Hardison filed, by and through counsel, a Petition for Writ of Habeas Corpus, attacking his conviction in Knox County Criminal Court for possession with intent to sell more than 26 grams of cocaine in a school zone. Upon motion of the Respondent, the Circuit Court of Wayne County summarily dismissed the petition. Petitioner has appealed, and following the filing of Petitioner’s brief, the state filed a motion for this Court to affirm by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee. Finding merit in the motion, we affirm.

This appeal arises out of a termination of parental rights. The juvenile court terminated the parental rights of Rebecca Cornelius (“Mother”) on April 7, 2009, after finding grounds of severe child abuse and persistence of conditions.1 We affirm.

This is a negligence action resulting from a slip and fall by a customer at a Kroger grocery store. The plaintiff slipped on a pool of water created by one of several leaks in the roof of the grocery store. The plaintiff filed suit against three defendants, The Kroger Company, Roof Management, Inc., a roofing consultant responsible for facilitating necessary repairs to the roof of the grocery store, and Village Roofing Company, Inc., the roofing contractor which made repairs to the roof when called upon to do so. Village Roofing and Roof Management each filed motions for summary judgment. The trial court granted summary judgment to both Village Roofing and Roof Management finding they did not owe a duty of care to the plaintiff and if they did owe a duty that their acts and omissions were not the proximate cause of the plaintiff’s injuries. We have determined there are genuine issues of material fact that preclude a determination of whether Village Roofing or Roof Management owed a duty of care to the plaintiff or whether their actions were or were not the legal cause of Ms. Burks’ injuries. Therefore, we reverse the grant of summary judgment to Village Roofing and Roof Management and remand for further proceedings.

This is a condemnation case. The appellee county for many years had possession of a small strip of land owned by the appellant family. The county filed a petition for condemnation of the strip of land. A consent order was entered granting the county ownership and possession of the subject parcel, and a hearing was scheduled to determine the amount of compensation due. A week before the hearing, the county gave notice of voluntary dismissal. The family objected to voluntary dismissal, citing Anderson v. Smith, 521 S.W.2d 787 (Tenn. 1975). The trial court permitted the county to voluntarily dismiss its petition. The family appeals. We reverse, finding that voluntary dismissal is precluded where the trial court grants the condemnor right of possession and only the issue of compensation is left to be resolved.

The Petitioner, Sherman Clark, appeals the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief. The state has filed a motion requesting that this court affirm the court’s judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. We conclude that the state’s motion is meritorious. Accordingly, we grant the state’s motion and affirm the judgment.

This is a child support case. The mother filed a petition to increase the father’s child support obligation, alleging that he had misrepresented his gross income. After an evidentiary hearing, the juvenile court judge entered an order finding that the father’s testimony was not credible and that he earned significantly more income than he previously represented. The order increased the father’s monthly child support obligation, retroactive to the date of the filing of the mother’s petition. It also required the father to pay for the child’s private school tuition, and awarded the mother her attorney’s fees. The father appeals, arguing inter alia that the trial court erred in not using evidence such as his tax returns to determine his income, in not finding the mother voluntarily underemployed because she worked part-time, and in requiring him to pay private school tuition. We affirm.

The pro se defendant, Randy White, appeals the trial court’s denial of his Rule 35 motion for a reduction in sentence. Following our review, we affirm the judgment of the trial court.

Father in Nebraska allowed his child’s caregiver to take the child to Tennessee. A strange series of events led to DCS’s being given custody of the child by the Dickson County Juvenile Court and the placement of the child in a foster home. Meanwhile, Father ran afoul of the law (again) and became an involuntary guest of the federal penal system under a fifteen-year sentence. The foster parents petitioned for termination of Father’s and Mother’s parental rights based on abandonment and sought adoption of the child. Father’s mother intervened. Mother did not defend and her rights were terminated. Father defended. The trial court found Father had not abandoned the child, but that the parties had tried by consent the issue of Father’s being sentenced to prison for a term of ten years or more when the child is younger than eight years of age, circumstances which present a ground for termination of Father’s parental rights pursuant t Tenn. Code Ann. § 36-1-113(g)(6). The trial court then granted the adoption. Father filed a motion to alter or amend, presenting to the trial court a document showing that Father’s sentence had been reduced to seven and one-half years. The motion was denied. Father appealed. We reverse the trial court’s determination that the issue was tried by consent of the parties. Our decision necessitates that the adoption order be vacated and the child be returned to the legal custody of DCS.

The appellant, George R. Arnold, pled guilty in the Marshall County Circuit Court to one count of attempting to obtain a controlled substance by forgery, and he received a sentence of three years. On appeal, the appellant challenges the sentence imposed by the trial court. Upon review, we affirm the judgment of the trial court.

This case arises from a post-divorce motion to modify child support to include payment of the minor children’s private school tuition. Because Appellant/Father’s brief fails to comport with Tenn. R. App. P. 27 and Rule 6 of the Court of Appeals, and because Appellant/Father has failed to comply with this Court’s order to supplement the appellate record with necessary documents, we dismiss the appeal. Mother/Appellee has requested attorney’s fees accrued in defense of this appeal. Pursuant to Tenn. Code Ann. § 27-1-122, we exercise our discretion and award Ms. Chiozza her fees, and remand for the determination of the amount of those fees. Dismissed and remanded.

The Weakley County Grand Jury indicted Petitioner, Howard Keith Sallee, for one count of fraudulently obtaining a controlled substance. Petitioner pled guilty to the offense as charged. The trial court sentenced Petitioner to ten years as a Range III, persistent offender. Petitioner filed a petition for post-conviction relief in which he alleged that his guilty plea was not entered voluntarily, knowingly, and intelligently because he attempted to commit suicide a few days before entering his guilty plea. He also alleged that his trial counsel was ineffective for failing to order a mental evaluation. The post-conviction court held an evidentiary hearing. Following the hearing, the postconviction court concluded that Petitioner had been unable to prove his assertions. After a thorough review of the record, we conclude that the evidence does not preponderate against the findings of the post-conviction court. Therefore, we affirm the denial of Petitioner’s petition for post-conviction relief.