December 28, 1999 Volume 5 -- Number 175 What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts. This Issue (IN THIS ORDER):   00 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 04 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion. *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document. Lucian T. Pera Editor-in-Chief, TBALink MICHAEL GLEN BRICE VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TERRY L. JORDAN PAUL G. SUMMERS 2nd Judicial District Attorney General & Reporter P. O. Box 839 Blountville, TN 37617 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 GREELEY WELLS District Attorney General GREG NEWMAN Assistant District Attorney Blountville, TN 37617 Judge: SMITH First Paragraph: The petitioner, Michael Glen Brice, appeals the Sullivan County Criminal Court's order denying his petition for post-conviction relief. In 1993, the petitioner was convicted of one (1) count of aggravated robbery, one (1) count of burglary and five (5) counts of aggravated assault. He received an effective sentence of twenty (20) years as a Range II offender. He filed the present petition in 1996, claiming that he received ineffective assistance of counsel at trial. After an evidentiary hearing, the trial court denied post- conviction relief. On appeal, the petitioner contends that he received ineffective assistance of counsel at trial due to (1) counsel's failure to file a motion to suppress a photographic lineup, and (2) counsel's failure to effectively cross-examine the state's eyewitnesses. After a thorough review of the record before this Court, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/BRICEMICH.wpd STATE OF TENNESSEE VS. LONNIE STEPHEN DUNN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: THOMAS V. TESTERMAN PAUL G. SUMMERS 301 East Broadway Attorney General & Reporter Newport, TN 37821 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 AL C. SCHMUTZER, JR. District Attorney General 125 Court Avenue, Room 301-E Sevierville, TN 37862 WILLIAM (BROWNLOW) MARSH, II Assistant District Attorney General 339-A East Main Street Newport, TN 37821 Judge: GLENN First Paragraph: The Cocke County grand jury indicted the defendant, Lonnie Stephen Dunn, on three counts of statutory rape pursuant to Tenn. Code Ann. S 39-13-506 (1997). On September 12, 1997, the defendant pleaded guilty to all three counts. After a sentencing hearing, the trial court sentenced the defendant to two years on each of the three counts with the sentences on counts one and two to be served concurrently and that on count three to be served consecutively. The trial court ordered the defendant to serve one year in the county jail, followed by three years of probation. The defendant timely appealed, arguing the trial court's sentence was excessive. Based on our review of this matter, we affirm the sentence of two years in each count, but modify the judgment of the trial court to reflect that all sentences will be served concurrently. Additionally, we modify the term of split confinement to six months. http://www.tba.org/tba_files/TCCA/DUNNLS.wpd STATE OF TENNESSEE VS. RONNIE GARDNER Court:TCCA Attorneys: For the Appellant: For the Appellee: Richard L. Gann, II Paul G. Summers P. O. Box 6888 Attorney General and Reporter Maryville, TN 37802-6888 Michael J. Fahey, II Assistant Attorney General Raymond Mack Garner Criminal Justice Division District Public Defender 425 Fifth Avenue North 419 High Street 2d Floor, Cordell Hull Building Maryville, TN 37804 Nashville, TN 37243-0493 Michael L. Flynn District Attorney General Tammy Harrington Asst. District Attorney General 363 Court Street Maryville, TN 37804 Judge: HAYES First Paragraph: The appellant, Ronnie Gardner, appeals the sentencing decision of the Blount County Circuit Court following his guilty pleas to the offenses of theft of property, two counts of forgery, and two violations of the Habitual Motor Vehicle Offender's Act, all Class E felonies. In accordance with the plea agreement, the appellant received an effective three year sentence with the manner of service of the sentences to be submitted to the trial court. At the sentencing hearing, the court imposed split confinement sentences requiring the appellant to serve six months in jail with the balance of the sentence to be served on supervised probation. The sole issue on appeal is whether the trial court erred by denying the appellant total probation. http://www.tba.org/tba_files/TCCA/GARDNERR.wpd STATE OF TENNESSEE VS. KAI NIELSEN BETTY NIELSEN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TIMOTHY S. BELISLE PAUL G. SUMMERS Attorney at Law Attorney General & Reporter 114 East Market Street Johnson City, Tennessee 37604 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243-0493 KENT GARLAND Assistant District Attorney General Jonesborough, Tennessee Judge: WALKER First Paragraph: The defendants appeal of right the jury verdict finding them each guilty of theft of property. Each defendant was sentenced to five years suspended, with supervised probation, after Mr. Nielsen served ninety days in jail, and Mrs. Nielsen served thirty days in jail. Both were fined $10,000.00. They were ordered to make restitution to the victims in the amount of $25,000.00. http://www.tba.org/tba_files/TCCA/KNIELSEN.wpd PLEASE FORWARD THIS EMAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion-Flash free each day by e-mail? Anyone -- whether a TBA member or not is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 1999 Tennessee Bar Association