APPELLATE COURT OPINIONS

A Gibson County Circuit Court jury convicted the appellant, Christopher Stephen Hayes, ofattempted second degree murder, two counts of reckless endangerment, and one count of possession of a deadly weapon with intent to use it in the commission of an offense, and he received an effective ten-year sentence to be served in confinement. On appeal, he contends that (1) the evidence is insufficient to support the attempted murder conviction, (2) his sentences are excessive and the trial court erred by granting his request for alternative sentencing, and (3) the trial court made a clerical mistake on the judgment form for the attempted murder conviction. Based upon the record and the parties’ briefs, we affirm the appellant’s convictions but modify the appellant’s attempted murder conviction from ten to eight years. We also remand the case to the trial court in order for the court to sentence the appellant for the possession of a deadly weapon conviction, to address alternative sentencing, and to correct clerical mistakes on several judgment of conviction forms.

The appellant, John Shields, was indicted in January 2007 for possession of cocaine with intent to sell, possession of cocaine with intent to deliver, and driving on a suspended license. In this interlocutory appeal, he argues that the instant criminal prosecution violates double jeopardy protections under both the state and federal constitutions because the State has previously assessed and levied a tax under the Tennessee Taxation of Unauthorized Substances Act for the same cocaine. He asserts that because the tax is punitive in nature, the present prosecution would impose a second punishment for the same offense. Based upon the record and the parties’ briefs, we affirm the trial court’s order denying the appellant’s motion to dismiss the indictment.

The petitioner, Cornell Poe, appeals as of right the Madison County Circuit Court’s denial of his petition for post-conviction relief. The petitioner alleges that his guilty pleas to two counts of aggravated burglary, one count of theft valued at over one thousand dollars, and three counts of aggravated assault were not voluntarily, knowingly and understandingly made due to the ineffective assistance of counsel and the alleged effects of the petitioner’s medication. After the appointment of counsel and a full evidentiary hearing, the post-conviction court found that the petitioner failed to prove his allegations by clear and convincing evidence and denied the petition. Following our review, we affirm the judgment of the post-conviction court.

he defendant, Charles Hopson Stewart, was convicted on his guilty pleas of four counts of possession of cocaine with intent to deliver, a Class B felony. He was sentenced to nine years for each offense, to be served on split confinement of thirty days of jail on the weekends and probation, with the sentences imposed concurrently. His probation was revoked, and the court also denied a motion to modify his sentence. On appeal, the defendant contends: (1) that the trial court erred in allowing the drug court team to determine whether his probation should be revoked and what consequence should follow the revocation, (2) alternatively, that the decision of the drug court team that the defendant should serve his sentence in confinement was too harsh given the facts and circumstances of the case, and (3) that the trial judge should be disqualified from presiding on remand. We reverse the judgment of the trial court and remand for a new revocation hearing, at which another judge shall preside.

Executrix appeals the trial court’s interpretation of language from decedent’s Last Will and Testament. Decedent was a well-known author of science fiction literature and the rights to that literature comprise a significant portion of her estate. Beneficiary under Will sought construction specifically of his bequest granting “the royalties from all posthumous publication of any of my works[.]” The trial court held there was a patent ambiguity in the Will precluding extrinsic evidence of intent. Executrix objected and made an offer of proof of decedent’s intended use and meaning of the terms “copyright,” “royalties,” and “posthumous publication.” The court found decedent used “copyright” and “royalties” interchangeably and intended Beneficiary to have both the copyrights and posthumous royalties from all of her works.

Based on the language in the four corners of the Will, we agree there was an ambiguity in the Will but have determined it was latent, rather than patent, and we reverse the trial court on itsambiguity finding. Accordingly, the consideration of extrinsic evidence of the decedent’s intent and the circumstances surrounding the execution of the Will is permitted and is necessary for the proper administration of the estate. After careful review of the record including Executrix’s proffered evidence of decedent’s intent, we have determined that the decedent intended different meanings of the terms “copyrights” and “royalties” and we reverse the court’s determination that those terms were used interchangeably. In doing so, we award the copyrights not previously bequeathed in the Will to Executrix and the royalties, as defined in this opinion, to Beneficiary. In view of the circumstances of this case, we affirm the decision of the trial court that Executrix should be removed as executrix of the estate and an administrator ad litem appointed. Judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee, John W. Krantz, III, sustained a compensable back injury. His authorized physician placed restrictions upon his activities. The employer, Nissan North America, Inc., had a pre-existing written policy requiring adherence to medical restrictions at all times, including while away from the workplace. Mr. Krantz violated the restrictions in question by engaging in competitive horsemanship, and was terminated as a result. The trial court found that he did not have a meaningful return to work and awarded permanent disability benefits in excess of 1.5 times the anatomical impairment. Nissan has appealed, contending that the trial court erred by finding that Mr. Krantz did not have a meaningful return to work. We agree, and modify the judgment accordingly.

The Defendant pled guilty to four counts of selling .5 grams or more of a Schedule II drug and one count of possession of .5 grams or more of a Schedule II drug for resale. The trial court sentenced her as a Range II, multiple offender to an effective twenty-seven year sentence. On appeal, the Defendant argues that the trial court erred by sentencing her as a Range II offender. We affirm the judgment of the trial court.

This appeal involves the payment of child support in a Title IV-D proceeding. The parents of the minor child were divorced, and the father was ordered to pay child support. In a contempt hearing, the father was found to have a substantial arrearage on his support obligation. Two years later, the State filed a petition on behalf of the mother for contempt and for modification of the child support order. The petition alleged that the father’s arrearage was unchanged. A child support worksheet submitted at the hearing showed the father’s child support obligation. The mother testified, however, that the father had been paying money directly to her for the benefit of the child. Based on the mother’s testimony, the trial court reduced the father’s monthly child support obligation to zero. Both of the parents testified that the father had paid a significant portion of the arrearage directly to the mother. The trial court credited the father for the amount that he had purportedly paid directly to the mother and reduced the remaining arrearage to a judgment. The State appeals, arguing that the trial court was required by statute to have the father pay his current support obligation through the Department of Human Services, rather than directly to the mother, and that the trial court was prohibited from crediting the father for payments on the arrearage made directly to the mother, rather than through DHS. We agree, and reverse the trial court’s order in part and remand the case for further proceedings.

The petitioner, Thomas Earl Bradshaw, appeals from the denial of his petition for post-conviction relief, wherein he challenged his 2005 Davidson County Criminal Court conviction of especially aggravated robbery. In this appeal, the petitioner contends that his guilty plea was not knowingly and voluntarily entered because it was the result of the ineffective assistance of his trial counsel. Discerning no error, we affirm the judgment of the post-conviction court.

Upon his pleas of guilty, the Defendant, Jessie Edward West, was convicted of conspiracy (to commit arson), burglary, arson, vandalism (with damages of $60,000 or more), introduction of contraband into a penal institution, and escape from a penal institution (while being held for a felony).¹ In exchange for his pleas of guilty, the State dismissed three misdemeanor counts of contributing to the delinquency of a minor and two misdemeanor counts of vandalism. Following a sentencing hearing, the Defendant was sentenced as a Range I, standard offender to two years for conspiracy, a Class D felony, two years for burglary, a Class D felony, five years for arson, a Class C felony, three years for introducing contraband into a penal institution, a Class C felony, and ten years for vandalism causing damage of $60,000 or more, a Class B felony. These sentences were ordered to be served concurrently. He also was sentenced to two years for escape while being held for a felony, a Class E felony. This sentence was ordered to be served consecutively to the other sentences. The sentences are to be served in the Department of Correction. In this appeal, the Defendant argues that his sentences are excessive. We affirm the judgment of the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee alleged that he sustained an aggravation of pre-existing pulmonary disease as a result of exposure to a chemical in the workplace. The trial court awarded benefits. On appeal the employer contends that the evidence preponderates against the trial court’s decision. We affirm the judgment.

This is an appeal from a Final Judgment issued by the Chancellor in respect to a Petition for Registration and Modification of Foreign Decree in the Chancery Court of Blount County, Tennessee. The Trial Court ordered the registration of the foreign Judgment, but denied the request for modification. On appeal, we affirm.

The defendant, Antonio Maurice Batts, pleaded guilty in the Davidson County Criminal Court to one count of aggravated assault in exchange for a six-year sentence, with the manner of service of the sentence to be determined by the trial court. The trial court ordered a fully incarcerative sentence, and the defendant now appeals. Because the record supports the denial of probation, the judgment of the trial court is affirmed.

I respectfully dissent from the result reached by the majority and do so because of my concerns that the defendant’s guilty pleas were entered absent any waiver of the conflicts of interest that are apparent from a review of the record in this case. Although not raised by either party, I conclude that plain error exists with respect to the District Attorney General and Circuit Court Clerk’s failure to recuse themselves from these proceedings. I do so pursuant to Rule 13(b)(2) and (3) of the Tennessee Rules of Appellate Procedure which grants this court the discretion to review any issue not presented for review in order “(2) to prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial process” and Rule 52(b) of the Tennessee Rules of Criminal Procedure which provides “[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of an accused at any time, even though the error was not . . . assigned as error on appeal.”

This is a contract action wherein the parties dispute which of two versions of a professional services agreement is controlling. The trial court determined that the contract/counter-offer proffered by Defendant buyer was the contract between the parties, and that there had been accord and satisfaction when Plaintiff deposited Defendant’s check for the payment amount asserted by Defendant. We reverse the trial court’s finding of accord and satisfaction. We further hold that the contract found by the trial court to be the applicable contract is unenforceable where the contract price is indefinite and where there was a lack of mutual assent to essential terms. We hold Plaintiff is entitled to recover in quantum meruit for services rendered and remand for further proceedings to determine that amount.

This case requires us to inquire whether the Town of Halls was immune under the Tennessee Governmental Tort Liability Act (“GTLA”) for maintaining a baseball field that the plaintiff alleges is a nuisance because one of many balls that flew over the field’s fence into a residential neighborhood injured him. The trial court held that the Town of Halls was immune from liability because it had engaged in a discretionary function and that the baseball field did not constitute a nuisance. On appeal, we find that plaintiff failed to demonstrate that the Town of Halls had notice of any dangerous condition of the baseball field in Kevan Ward Park, and, thus, we affirm the trial court on the basis that the Town of Halls was immune from liability pursuant to the Tennessee Governmental Tort Liability Act.

This appeal involves a disciplinary proceeding against a lawyer that arises from a fee dispute. A hearing panel of the Board of Professional Responsibility suspended the lawyer for six months after determining (1) that he engaged in unprofessional conduct by placing an unauthorized endorsement on a settlement check and (2) that he had converted funds he had withdrawn from his trust account to pay his fee because he failed to return the funds after his client disputed his fee. The lawyer appealed to the Chancery Court for Shelby County. Based on the record of the proceeding before the hearing panel and additional evidence, the reviewing court reduced the six-month suspension to a public censure after determining that the hearing panel erred by concluding that the lawyer had converted his client’s funds and that he was obligated to return the funds after his client disputed his fee. Disciplinary Counsel appealed to this Court. We hold that a public censure is an appropriate remedy in this case.

This appeal involves alleged discrimination based on religion and national origin. The plaintiff is a native of India and a practitioner of Hinduism, and is employed as an associate professor at the defendant university. The plaintiff applied for a promotion to full professor. His application for promotion was denied, based on his lack of achievement in either academic research or public service activities. The plaintiff professor filed a lawsuit alleging that the university discriminated against him on the basis of national origin and religion. The defendants filed a motion for summary judgment, proffering the professor’s lack of research and public service as a legitimate, nondiscriminatory reason for denying his application for promotion. The plaintiff conceded his lack of research and public service, but asserted that he was denied release time from his teaching responsibilities to engage in such activities. The trial court granted the university’s motion for summary judgment, and the plaintiff professor appeals. We affirm, finding that the plaintiff professor cannot show the denial of his application for promotion was discriminatory because he cannot show that he was qualified for such a promotion. We also find the record insufficient to establish a genuine issue of material fact as to whether the denial of release time from the plaintiff’s teaching responsibilities was discriminatory.

The defendant, Julie Ann Taylor Buchanan, entered an open plea to one count of theft of property over $60,000 (Class B felony), one count of theft of property between $1000 and $10,000 (Class D felony), one count of forgery over $60,000 (Class B felony), two counts of forgery between $1000 and $10,000 (Class B felony), and four counts of money laundering (Class B felony), with all the crimes occurring between December 2000 and April 2003. Following a sentencing hearing, she was sentenced to eleven years on each Class B felony and four years on each Class D felony. The sentences were ordered to be served concurrently to each other except for the four-year sentence for the Class D felony theft, which was to be served consecutive to the other eight sentences, for a total effective sentence of fifteen years in the Tennessee Department of Correction. On appeal, the defendant argues that the trial court erred in three areas: (1) enhancing her sentence based on facts neither admitted nor proven to a jury; (2) imposing consecutive sentences; and (3) application of mitigating factors. After careful review, the case is remanded for re-sentencing based upon the erroneous application of application factors in violation of Blakely.

This is an appeal of the trial court’s dismissal of a petition for writ of certiorari filed by an inmate
challenging the result of a prison disciplinary proceeding against him. The trial court dismissed the petition because it was not verified and failed to state that it was the first application for the writ as required by Tenn. Code Ann. § 27-8-106. After careful review, we affirm the decision of the trial court.

The defendant, John David McDaniel, was convicted of three counts of fraudulently obtaining a Schedule II controlled substance, one count of felony evading arrest, one count of misdemeanor evading arrest, and one count of theft of property with a value of less than $500. The defendant  was sentenced to four years for his convictions for fraudulently obtaining a Schedule II controlled substance and felony evading arrest. He received a sentence of 11 months and 29 days for his convictions for misdemeanor evading arrest and theft of property with a value of less than $500. The defendant filed a motion for new trial which was denied after a hearing before the trial court. The defendant filed a timely notice of appeal. The defendant argues on appeal that the trial court erred by sentencing the defendant to the maximum sentence within the range for his convictions. In response, the state argues that the appellate court does not have jurisdiction to consider the defendant’s appeal. The state further argues that the sentencing determination made by the trial court was not in error. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgments of the trial court.

Petitioner, Jeffery Michael Mabery, pled guilty to one count of attempted especially aggravated robbery in exchange for a ten-year sentence. Subsequently, he filed a petition for post-conviction relief in which he argued that his guilty plea was unlawfully and involuntarily entered into and that he received ineffective assistance of counsel. The post-conviction court dismissed the petition, finding that it had no merit. Petitioner appeals. Although the notice of appeal in this case is untimely, we waive the timely filing of that document and reverse and remand for an evidentiary hearing on the petition for post-conviction relief.

The defendant, John David McDaniel, was convicted of three counts of fraudulently obtaining a Schedule II controlled substance, one count of felony evading arrest, one count of misdemeanor evading arrest, and one count of theft of property with a value of less than $500. The defendant  was sentenced to four years for his convictions for fraudulently obtaining a Schedule II controlled substance and felony evading arrest. He received a sentence of 11 months and 29 days for his convictions for misdemeanor evading arrest and theft of property with a value of less than $500. The defendant filed a motion for new trial which was denied after a hearing before the trial court. The defendant filed a timely notice of appeal. The defendant argues on appeal that the trial court  erred by sentencing the defendant to the maximum sentence within the range for his convictions.  In response, the state argues that the appellate court does not have jurisdiction to consider the defendant’s appeal. The state further argues that the sentencing determination made by the trial court was not in error. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgments of the trial court.

The defendant, Alvin Malone, was convicted by a Shelby County jury of two counts of first degree felony murder, one count of first degree premeditated murder, and two counts of especially aggravated kidnapping. The defendant’s first degree premeditated murder conviction merged into one of the felony murder convictions by operation of law, and he was sentenced to two life sentences and two twenty-year sentences, to be served consecutively in the Department of Correction. On appeal, the defendant argues that: (1) the trial court erred in excluding statements of two unavailable witnesses; (2) the trial court erred in not granting a continuance; (3) the trial court erred in allowing the State to amend two counts of the indictment; (4) the trial court erred in allowing the State to impeach its own witness without giving a contemporaneous limiting instruction; (5) the trial court erred in allowing testimony concerning cartels and drug activity; (6) the trial court erred in not giving a jury charge on self-defense; (7) the evidence was insufficient to support his convictions; and (8) the trial court improperly applied an enhancement factor in sentencing. Following our review, we affirm the judgments of the trial court.

Appellee Bank filed suit against Appellant to collect for charges made to Appellant’s account. The general sessions court entered judgment in favor of Appellee Bank; Appellant, proceeding pro se, appealed that decision to the Circuit Court at Carroll County. The circuit court affirmed the judgment of the general sessions court and Appellant appeals. In the absence of a transcript or statement of the evidence, the trial court’s factual findings are conclusive on appeal, and we affirm.