August 7, 2001 Volume 7 — Number 144 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. This Issue (IN THIS ORDER):   00 New Opinion(s) from the Tennessee Supreme Court 03 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 08 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 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. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink VADALENE BREWER v. MICHAEL DUNN CENTER et al. Court:TSC - Workers Comp Panel Attorneys: Chad Rickman, Knoxville, Tennessee, for the Appellant, Michael Dunn Center. Roger Ridenour, Clinton, Tennessee, for the Appellee, Vadalene Brewer. Judge: BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff had sustained an injury to her left shoulder in the course and scope of her employment that resulted in 54 percent permanent partial disability. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/brewervadalene.wpd CHRISTOPHER ALAN McNEW v. KNOX COUNTY, ex rel: SHERIFF'S DEPARTMENT Court:TSC - Workers Comp Panel Attorneys: C. Edward Daniel, Knoxville, Tennessee, for the appellant, Christopher Alan McNew. Wendell K. Hall, Knoxville, Tennessee, for the appellee, Knox County Sheriff's Department. Judge: INMAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The complaint alleged that the plaintiff sustained job-related injuries on or about July 4, 1998 within the scope of his employment. The answer denied occurrence or notice of an accidental injury. The plaintiff had an unusual history of injuries to his right knee. The trial judge ruled that the medical evidence was lacking as to the July 1998 injury and dismissed the case. http://www.tba.org/tba_files/TSC_WCP/mcnewca.wpd JANICE MOORE v. YALE SECURITY, INC., et al. Court:TSC - Workers Comp Panel Attorneys: J. Anthony Farmer, Knoxville, Tennessee, for the appellant, Janice Sue Moore. David M. Sander, Knoxville, Tennessee, for the appellees, Yale Security, Inc., and Travelers Insurance Company. Judge: INMAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that this action was barred by the statute of limitations. http://www.tba.org/tba_files/TSC_WCP/moorejs.wpd STATE OF TENNESSEE v. EDWIN BEARD Court:TCCA Attorneys: Rick C. Osborn, Columbia, Tennessee, for the appellant, Edwin Beard. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: After a jury trial, Defendant was found guilty of the included offense of simple assault in two counts and the jury assessed fines of $5,000 for each count. Defendant was subsequently sentenced to 11 months and 29 days on each count to run concurrently. The sentence was suspended except for 12 days to be served consecutively or six consecutive weekends. The fines were remitted to $500 for each count. In this direct appeal as of right, Defendant asserts that the jury and court erred in finding Defendant guilty, beyond a reasonable doubt, in two counts of simple assault based upon the sufficiency of evidence. We conclude that the evidence was sufficient to support Defendant's two convictions for simple assault. Thus, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/bearde.wpd STATE OF TENNESSEE v. QUINTON A. CAGE Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Quinton A. Cage. Michael E. Moore, Solicitor General; Jennifer L. Smith, Assistant Attorney General; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: At the conclusion of a post-conviction evidentiary hearing, the trial court denied the Petitioner, Quinton Cage's, petition for post-conviction relief. The Petitioner presents one appellate issue: Whether the trial court erred in finding that the Petitioner received effective assistance of counsel at trial? After a review of the entire record, briefs of the parties, and applicable law, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/cageqa.wpd STATE OF TENNESSEE v. RANDY TYRONE CRAWFORD Court:TCCA Attorneys: David R. Howard, Gallatin, Tennessee, for the appellant, Randy Tyrone Crawford. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; and Dee Gay, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: At the conclusion of a probation revocation hearing, the trial court ordered Defendant to serve six (6) years at thirty percent (30%) in the Department of Correction for the sale of cocaine. In this appeal as of right, Defendant asserts that the trial court failed to sentence him in accordance with the Criminal Sentencing Reform Act of 1989. We conclude that the evidence was sufficient to support the revocation of Defendant's probation and the trial court did not abuse its discretion by ordering Defendant confined per his original sentence. Thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/crawfordrt.wpd HERSHELL LEE KINNAIRD v. STATE OF TENNESSEE Court:TCCA Attorneys: Henry D. Fincher, Cookeville, Tennessee, for the appellant, Herschell Kinnaird. Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General; Bill Gibson, District Attorney General; and David Patterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Hershell Lee Kinnaird, was convicted by a jury in 1989 of accessory before the fact to first degree murder and conspiracy to commit first degree murder. He was sentenced to life imprisonment for the former conviction and to a concurrent ten year term for the latter conviction. The Defendant's convictions were affirmed on direct appeal. See State v. Kinnaird, 823 S.W.2d 571, 572 (Tenn. Crim. App. 1991). In this post-conviction proceeding the Defendant contends that the State violated his constitutional rights by withholding exculpatory evidence; that the post-conviction court erred by not granting his motion for state-funded experts; that he received ineffective assistance of counsel at trial; and that the trial court committed several instances of plain error violating his right to a fair trial and/or due process. Finding the Defendant's allegations to be without merit, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/kinnairdhl.wpd MARIO LAMBERT v. JACK MORGAN, WARDEN Court:TCCA Attorneys: Mario Lambert, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General, and Ron Davis, District Attorney General. Judge: WELLES First Paragraph: The Defendant, Mario Lambert, appeals as of right from the trial court's dismissal of his petition for writ of habeas corpus. He asserts that his sentence is illegal because the trial court was without authority to sentence him as a Range I, standard offender with a release eligibility of thirty percent for the offense of second degree murder. We hold that the trial court was without authority to sentence the Defendant as a Range I, standard offender with a thirty percent release eligibility for the offense of second degree murder. Therefore, based on our review of the record on appeal, it appears that the sentence imposed is an illegal sentence. Accordingly, we remand this case to the criminal court of Shelby County for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/lambertm.wpd STATE OF TENNESSEE v. DONALD J. MOORE Court:TCCA Attorneys: Timothy S. Priest, Winchester, Tennessee, for the appellant, Donald J. Moore. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; and Kenneth J. Shelton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: At the conclusion of a sentencing hearing, the trial court imposed a sentence of 11 months and 29 days in the Coffee County jail with Defendant to serve 90 days before being released to probation for the offense of simple possession of a controlled substance, to wit: methamphetamine, plus a fine of $1,000. In this appeal as of right, Defendant asserts: (1) That the trial court abused its discretion in failing to sentence the Defendant to judicial diversion provided by Tenn. Code Ann. S 40-35-313; (2) Whether the trial court properly weighed the mitigating factors presented by Defendant in the sentencing hearing?; and (3) Whether the trial court imposed an excessive sentence? After a review of the entire record, briefs of parties, oral arguments and applicable law, we find the trial court abused its discretion in denying judicial diversion and remand for a judgment of judicial diversion. Thus, the trial court's judgment is reversed and remanded. http://www.tba.org/tba_files/TCCA/mooredj_opn.wpd WOODALL DISSENTING http://www.tba.org/tba_files/TCCA/mooredj_dis.wpd STATE OF TENNESSEE v. CLAUDE RONNIE MORRISON Court:TCCA Attorneys: Raymond C. Conkin, Jr., Kingsport, Tennessee, for the appellant, Claude Ronnie Morrison. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant, Claude Ronnie Morrison, was indicted by the Sullivan County Grand Jury for solicitation to commit especially aggravated kidnapping, Tenn. Code Ann. S 39-13-305, a Class C felony. He subsequently entered a "best interest" plea to the charge. The terms of the plea agreement provided that Defendant would receive a sentence of three years and, following a sentencing hearing, the trial court sentenced Defendant as a Range I standard offender to a term of three years in the Tennessee Department of Correction. On appeal, Defendant challenges the trial court's denial of probation. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/morrisoncr.wpd STATE OF TENNESSEE v. STEPHEN MICHAEL WARE Court:TCCA Attorneys: Julie A. Rice, Knoxville, Tennessee (on appeal), and Jeff Kelly, Assistant Public Defender, Johnson City, Tennessee (at trial), for the appellant, Stephen Michael Ware. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; and Victor Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Stephen Michael Ware, pled guilty to driving under the influence (third offense), driving on a revoked license (second offense), felony evading arrest, resisting arrest and felony failure to appear. The plea agreement provided for consecutive sentences of one year each for felony evading arrest and felony failure to appear. All other sentences were to be served concurrently, for an effective sentence of two years. The trial court imposed terms on each offense as follows: driving under the influence - 11 months and 29 days with all but 150 days suspended; driving on a revoked license - 11 months and 29 days with all but 60 days suspended; felony evading arrest - one year; resisting arrest - six months with all but five days suspended; and felony failure to appear - one year. The trial court ordered a sentence of split confinement, consisting of 270 days in jail, two years of house arrest, on one felony and a consecutive sentence of two years' house arrest for the second felony. In this appeal of right, the defendant argues that the trial court imposed sentences in contravention of the plea agreement and contends that the jail sentence of 270 days, day-for-day, is excessive. The felony evading arrest sentence is vacated and the cause is remanded to the trial court for resentencing in conformance with the plea agreement. http://www.tba.org/tba_files/TCCA/warestephenm.wpd PLEASE FORWARD THIS E-MAIL! 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! 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