October 19, 2001 Volume 7 — Number 194 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 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 09 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 STATE OF TENNESSEE v. MARION LEE CHAPMAN Court:TCCA Attorneys: Gregory D. Clayton, Nashville Tennessee, attorney for the appellant, Marion Lee Chapman. Paul G. Summers, Attorney General and Reporter and Kim R. Helper, Assistant Attorney General, Robert Radford, District Attorney General and Eleanor Cahill, Assistant District Attorney, attorneys for the appellee, State of Tennessee. Judge: SMITH First Paragraph: A Carroll County jury convicted the appellant, Marion Lee Chapman, of one (1) count of driving under the influence of an intoxicant. The trial court sentenced the appellant to eleven (11) months and twenty-nine (29) days, suspended after serving ten (10) days in confinement. On appeal, the appellant argues that the trial court erred in denying his motion for a continuance on the day of trial. We hold that the appellant has waived this issue for failing to prepare an adequate record for this Court's review. In addition, we conclude that, based on the limited record before us, the trial court did not abuse its discretion in denying the motion for a continuance. Therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/chapmanmarion.wpd JAMAL COOPER v. STATE OF TENNESSEE Court:TCCA Attorneys: Mike Anderson, Nashville, Tennessee, for the appellant, Jamal Cooper. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner filed a petition for post-conviction relief from his conviction for voluntary manslaughter, alleging that his guilty plea was involuntary and that he was denied the effective assistance of trial counsel. Following an evidentiary hearing, the post-conviction court dismissed the petition. In a timely appeal to this court, the petitioner raises the issue of whether the post- conviction court erred in finding that he received the effective assistance of trial counsel. After a careful review, we affirm the dismissal of the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/cooperjamal.wpd STATE OF TENNESSEE v. MICHAEL J. MCCANN Court:TCCA Attorneys: Joel Kachinsky, Summertown, Tennessee, for the appellant, Michael J. McCann. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Ron Davis, District Attorney General; and Jeffrey L. Long, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: First Paragraph: The Defendant, Michael J. McCann, was convicted by a jury of one count of aggravated criminal trespass on a habitation; two counts of assault; two counts of aggravated assault; one count of aggravated sexual battery; and two counts of especially aggravated kidnapping. After a hearing he was sentenced as a Range II multiple offender on the aggravated assaults, and as a Range I offender on the remaining convictions, to an effective sentence of thirty years. In this appeal as of right, the Defendant contends that his kidnapping convictions must be reversed and dismissed as violative of his due process rights under State v. Anthony; that the trial court erred in not requiring the State to elect between the proof presented in support of two sexual offenses charged; that the Defendant's two assault convictions should have been merged into one of the aggravated assault convictions; that the prosecutor made improper and prejudicial remarks during closing argument; that his sentence is excessive; and that he received ineffective assistance of counsel. We reverse and dismiss one of the Defendant's assault convictions. In all other respects, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/mccannmj.wpd STATE OF TENNESSEE v. RANDALL RAY MILLS Court:TCCA Attorneys: Andrew Jackson Dearing, III, Lewisburg, Tennessee, and Gregory D. Smith, Clarksville, Tennessee, for the appellant/cross-appellee, Randall Ray Mills. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee/cross-appellant, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The defendant, Randall Ray Mills, was convicted in the Marshall County Circuit Court of one count of rape of a child, three counts of aggravated sexual battery, and one count of casual exchange. At the sentencing hearing, the trial court merged all of the defendant's convictions of aggravated sexual battery into the conviction of rape of a child and sentenced the defendant to a total effective sentence of twenty years incarceration in the Tennessee Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions. Additionally, the State challenges the trial court's merger of the aggravated sexual battery convictions into the rape of a child conviction and further contends that the trial court erred in sentencing the defendant. Upon review of the record and the parties' briefs, we affirm in part and reverse in part the judgment of the trial court and remand for resentencing. http://www.tba.org/tba_files/TCCA/millsrr.wpd STATE OF TENNESSEE v. ARHONDA RICE Court:TCCA Attorneys: Tony N. Brayton, Assistant Public Defender (on appeal), Memphis, Tennessee; and Phyllis Aluko, Assistant Public Defender (at trial), Memphis, Tennessee, for the Appellant, Arhonda Rice. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kevin Rardin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to theft over $1,000.00, a Class D felony, and the trial court sentenced her to two years incarceration as a Range I standard offender. The trial court suspended the Defendant's sentence and placed her on seven years probation. The trial court also ordered the Defendant to serve one hundred weekends at the Shelby County Correctional Center, perform five hundred hours of community service, and pay $8,400.00 in restitution. The Defendant now appeals, arguing (1) the trial court erred in denying her judicial diversion, and (2) that the trial court erred in denying her full probation. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/ricea.wpd STATE OF TENNESSEE v. SIGIFREDO RUIZ Court:TCCA Attorneys: Mario Ramos, Nashville, Tennessee, for appellant, Sigifredo Ruiz. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; Ron Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Williamson County grand jury indicted the defendant on one count of possession of not less than ten pounds, one gram of marijuana nor more than seventy pounds of marijuana with intent to sell or deliver. Through counsel the defendant filed a motion to suppress any evidence or statements resulting from the allegedly unconstitutional search of the defendant's vehicle. When the motion to suppress was denied, the defendant waived his right to a trial by jury and pled guilty as charged. For this offense the trial court sentenced the defendant as a Range I, standard offender to two years, which would be suspended after the service of one hundred days, day for day; placed him on supervised probation for a period of four years; and fined him five thousand dollars. According to the Negotiated Plea Agreement form, there was also an agreement with the State that the defendant would later submit a certified question of law to this Court. Through this appeal the defendant asks us to consider two search related issues. However, the State asserts that the defendant did not properly reserve the certified questions, and, thus, this Court lacks jurisdiction to consider them. Finding the State's position has merit, we, therefore, dismiss this appeal. http://www.tba.org/tba_files/TCCA/ruizsigifredo.wpd BARRY N. WADDELL v. STATE OF TENNESSEE Court:TCCA Attorneys: Barry N. Waddell, Pro Se, Tiptonville, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Barry N. Waddell, proceeding pro se, appeals the Davidson County Criminal Court's summary dismissal of his petition for post-conviction relief. The post-conviction court found Waddell's petition was time-barred. On appeal, Waddell argues that: (1) his petition was timely filed, and (2) alternatively, if the petition was untimely filed, the statute of limitations was tolled under the holding of Dexter Williams v. State, 44 S.W.3d 464 (Tenn. 2001). After review, we affirm the judgment of the post-conviction court dismissing the petition. http://www.tba.org/tba_files/TCCA/waddellbarryn.wpd STATE OF TENNESSEE v. ERNEST EDWARD WILSON Court:TCCA Attorneys: W. Casey Reed (on appeal) and Monte D. Watkins (at trial), Nashville, Tennessee, for the appellant, Ernest Edward Wilson. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Dan Hamm and Philip H. Wehby, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Davidson County Grand Jury indicted the defendant for premeditated first degree murder. The defendant was convicted of the lesser-included offense of second degree murder and sentenced to 24 years as a violent offender. In this appeal, the defendant contends: (1) the evidence was insufficient to sustain his conviction; (2) the trial court erroneously neglected to charge the jury on the lesser-included offenses of reckless homicide and criminally negligent homicide; and (3) the defendant's sentence is excessive. After a thorough review of the record, we conclude the failure to charge the lesser-included offenses of reckless homicide and criminally negligent homicide was, at most, harmless error. The defendant's remaining allegations of error are without merit; thus, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/wilsonee_opn.wpd WITT CONCURRING AND DISSENTING http://www.tba.org/tba_files/TCCA/wilsonee_con.wpd WELLES DISSENTING http://www.tba.org/tba_files/TCCA/wilsonee_dis.wpd STATE OF TENNESSEE v. RICKY FRANKLIN YORK Court:TCCA Attorneys: David Allen Doyle, District Public Defender, for the appellant, Ricky Franklin York. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Ricky Franklin York, appeals from his sentence of six years as a Range I, standard offender that he received upon his guilty plea to aggravated assault, a Class C felony. He contends that the trial court erred by enhancing his sentence based upon enhancement factors contained in Tenn. Code Ann. S 40-35-114(10) and (16), which he claims are inapplicable. Although we conclude that the facts do not justify application of factors (10) and (16), we affirm the sentence. http://www.tba.org/tba_files/TCCA/yorkrf.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! 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 2001 Tennessee Bar Association