November 8, 2001 Volume 7 — Number 208 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):   03 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 14 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 RICHARD THOMAS BOGAN v. DORIS MAE BOGAN Court:TSC Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Richard Thomas Bogan. William Stephenson Todd, Jr., Kingsport, Tennessee, for the appellee, Doris Mae Bogan. Judge: BARKER First Paragraph: The sole question in this appeal is whether an obligor's retirement constitutes a substantial and material change in circumstances so as to permit modification of a spousal support obligation. The trial court held that the obligor's retirement did constitute a substantial and material change in circumstances, but the Court of Appeals reversed, finding that because the retirement was voluntary and foreseeable, the obligor could not seek modification of the original alimony award. We granted permission to appeal and hold that a bona fide retirement need only be objectively reasonable under the totality of the circumstances to constitute a substantial and material change in circumstances. In so holding, we reject, in the retirement context, the traditional test requiring an involuntary and unforeseeable change in circumstances to modify a support award. We further hold that the retirement in this case was objectively reasonable and that the trial court did not abuse its discretion in modifying the support award. We reverse the judgment of the Court of Appeals and reinstate the trial court's modification of the support award. http://www.tba.org/tba_files/TSC/boganrichard_opn.wpd BIRCH CONCURRING AND DISSENTING http://www.tba.org/tba_files/TSC/boganr_dis.wpd HOLDER DISSENTING http://www.tba.org/tba_files/TSC/boganrt_dis.wpd CORRECTED OPINION JACKIE W. MCLANEY v. RICKY BELL, Warden, et al. Court:TSC Attorneys: Jeffrey T. Loy, Jamestown, Kentucky, for the appellant, Jackie W. McLaney. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, and Victor S. Johnson, III, District Attorney, for the appellees, Ricky Bell, Warden, and the State of Tennessee. Judge: BIRCH First Paragraph: This case is before the Court by way of a petition for writ of habeas corpus filed by Jackie W. McLaney, challenging a plea agreement which encompassed a sentence alleged to be illegal. McLaney presents three issues for review: (1) whether the record shows that his arrest occurred while he was on bail for a felony offense (thus requiring consecutive sentences pursuant to Tenn. Code Ann. S 40-20-111 (2000) and Tenn. R. Crim. P. 32(c)(3)(C)); (2) whether such an arrest while on bail affects the concurrent sentence imposed; and (3) whether habeas corpus provides a remedy for the review and correction of such a sentence imposed pursuant to a plea agreement. We hold that if the face of the judgment or the record of the underlying proceedings shows that the concurrent sentence is illegal, such sentence creates a void judgment for which habeas corpus relief is available. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand the cause to the trial court for appointment of counsel and a determination whether the face of the judgment or the record of the proceedings indicates that McLaney committed the offenses for which he received the concurrent sentence while on bail for a felony offense. http://www.tba.org/tba_files/TSC/mclaneyj.wpd OLIVER PATTERSON v. TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT Court:TSC Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Oliver Patterson. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, E. Blaine Sprouse, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development. Judge: BIRCH First Paragraph: After being discharged by his Tennessee employer, Oliver Patterson filed a claim for unemployment compensation benefits with the Tennessee Employment Security Division. His claim was denied; the Appeals Tribunal and the Board of Review affirmed the decision. Patterson filed a petition for judicial review and a petition to proceed in forma pauperis with the Chancery Court for Davidson County. In the petitions, Patterson described himself as an Arkansas resident. The chancellor denied his petitions based upon Tenn. Code Ann. S 20-12-127 (Supp. 2000), which permits only Tennessee residents to commence civil actions in forma pauperis. Patterson filed a motion for interlocutory appeal and a motion to proceed in forma pauperis on appeal. The chancellor denied the motions on the same grounds, i.e., that Patterson was not a Tennessee resident. The Court of Appeals affirmed the decision. On appeal to this Court, Patterson contends that he has a right to seek judicial review of the administrative decision in forma pauperis. After thorough review and consideration, we hold that Tenn. Code Ann. S 20-12-127 is inapplicable to judicial review of an administrative denial of unemployment compensation benefits. We further hold that the pertinent provision of the unemployment compensation statute, Tenn. Code Ann. S 50-7-304(i) (1999), does not limit judicial review to Tennessee residents, and therefore nonresidents may proceed in forma pauperis in seeking judicial review of an administrative denial of unemployment compensation benefits. Accordingly, the judgment of the Court of Appeals is reversed, and this cause is remanded to the Chancery Court for Davidson County. http://www.tba.org/tba_files/TSC/pattersono.wpd ARTHUR W. ANDERSON, SR., et al. v. EDWIN S. ROBERSON, et al. Court:TCA Attorneys: Warner Hodges, III, Germantown, For Appellants, Arthur W. Anderson, Sr. and Jerry Hollingsworth David J. Cocke, Memphis, and C. William Denton, Memphis, For Appellees, Edwin S. Roberson, John S. Wilson, Deceased, James W. Rayner, and Grand Oaks, Inc., a Mississippi Corporation Judge: CRAWFORD First Paragraph: This appeal presents the sole issue of in personam jurisdiction of a nonresident corporation and the nonresident individual owning a majority interest in the corporation by virtue of their activities, as described in the Tennessee Long Arm statute, or alternatively, as co-conspirators with defendants, subject to the jurisdiction of the court. http://www.tba.org/tba_files/TCA/andersonart.wpd BILL CAMPBELL, as Executor of the Estate of Dorothy Campbell, v. BLOUNT MEMORIAL HOSPITAL Court:TCA Attorneys: Kevin W. Shepherd, Maryville, Tennessee, for Appellant, Bill Campbell. Carl P. McDonald, Maryville, Tennessee, for Appellee, Blount Memorial Hospital, Inc. Judge: FRANKS First Paragraph: Patient sustained injuries in defendant's emergency room. The Trial Court granted a Tenn. R. Civ. P. Rule 41.02(2) Motion to defendant. Plaintiff appealed. We affirm. http://www.tba.org/tba_files/TCA/campbellb.wpd JACK COLEMAN, et al. v. CITY OF MEMPHIS, et al. Court:TCA Attorneys: Richard L. Winchester, Jr., Memphis, TN, for Appellants Allan J. Wade, Lori Hackleman Patterson, Memphis, TN, for Appellee City of Memphis Gordon B. Olswing, Memphis, TN, for Appellee Town of Arlington, TN Judge: HIGHERS First Paragraph: This appeal arises out of a dispute over an annexation ordinance passed by the City of Memphis. The trial court granted summary judgment to Defendants due to its finding that Plaintiffs did not properly file a complaint contesting the annexation ordinance. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/colemanjackw.wpd WILLIAM ISAAC EATON, by next friend CALLIE LOUISE JOHNSON v. ELNORA EATON, et al. Court:TCA Attorneys: J. Thomas Caldwell, Ripley, Tennessee, for the appellant, William Isaac Eaton. T. D. Forrester, Covington, Tennessee, for the appellee, Kelcot Warehouses, L.L.C. Judge: FARMER First Paragraph: This case involves the sale of the plaintiff's land to the defendant. The plaintiff's attorney in fact, pursuant to a valid durable power of attorney, sold the land to the defendant. The trial court held that the transaction between the attorney in fact and the defendant was fair, valid and binding as to the plaintiff. The plaintiff, by next friend, appeals the ruling of the trial court. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/eatonwilliamIsaac.wpd CEDRIC FRANKLIN v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Cedric Franklin, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: A prison disciplinary board found a minimum security prisoner to be guilty of violation of state law. The prisoner filed a Petition for Writ of Certiorari, claiming that the board had denied him due process. The trial court dismissed the petition. We affirm. http://www.tba.org/tba_files/TCA/franklinc_opn.wpd KOCH CONCURRING http://www.tba.org/tba_files/TCA/franklinc_con.wpd LISA HEATH v. MEMPHIS RADIOLOGICAL PROFESSIONAL CORPORATION, et al. Court:TCA Attorneys: Joel Porter and Nathan A. Bicks, Memphis; Todd A. Rose, Paris, For Appellant, Lisa Heath Jerry E. Mitchell, John H. Dotson, and Andrea N. Malkin, Memphis, For Appellees, Dale E. Hansen, M.D. and Memphis Radiological Professional Corporation Judge: CRAWFORD First Paragraph: This is a medical malpractice case. Plaintiff sued physician, radiological group and hospital, alleging failure to discover and diagnose her malady resulting in permanent physical impairment. The trial court entered judgment for the defendants on a jury verdict, and plaintiff appealed asserting evidentiary errors and the failure of the trial judge to perform his duty as the thirteenth juror. We affirm http://www.tba.org/tba_files/TCA/heathlis.wpd CHARLES HOLCOMB v. SVERDRUP TECHNOLOGY, INC. Court:TCA Attorneys: James C. Thomas, Winchester, Tennessee, for the appellant, Charles Holcomb. Karen L. C. Ellis, Michael S. Moschel, Nashville, Tennessee, for the appellee, Sverdrup Technology, Inc. Judge: COTTRELL First Paragraph: This case involves an age discrimination claim under the Tennessee Human Rights Act, Tenn. Code Ann. S 4-21-101 et seq. Plaintiff received oral and written notice of his termination on August 29, 1995, and a certified letter regarding benefits and confirming the termination on September 5, 1995. The termination was to be effective as of September 29, 1995. Two new employees were hired on October 1, 1995, and their hirings caused Plaintiff to believe he had been terminated because of his age. Plaintiff did not file suit until September 23, 1996, and the case was dismissed based on failure to file within the one year statute of limitations. We affirm on the ground that Plaintiff was given unequivocal notice on August 29 and, therefore, failed to meet the statute of limitations. http://www.tba.org/tba_files/TCA/holcombc.wpd EDDIE MCPEAK v. MUFFLERS, INC. Court:TCA Attorneys: David A. Riddick, Jackson, Tennessee, for the appellant, Eddie McPeak. Garry R. Wilkinson and Russell C. Rutledge, Memphis, Tennessee, for the appellee, Mufflers, Inc. Judge: FARMER First Paragraph: This appeal concerns the proper amount of damages due to the Plaintiff after the Defendant damaged the engine in the Plaintiff's 1970 Dodge Challenger. Three witnesses provided testimony on the proper amount of damages that should be awarded to the Plaintiff. The trial court utilized the testimony of the Defendant's expert witness in assessing damages. The Plaintiff appeals the trial court's judgment, asserting that the Defendant's witness relied on untrustworthy information in forming his expert opinion. For the reasons set forth below, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/mcpeakeddie.wpd JAMES E. MOODY, et al. v. WILLIAM LEA, JR. Court:TCA Attorneys: J. Thomas Caldwell, Ripley, Tennessee, for the appellant, William Lea, Jr. Douglas W. Wilkerson and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellees, James E. Moody and Cold Creek Ag Pro, LP d/b/a Cold Creek Farms. Judge: FARMER First Paragraph: This appeal involves a dispute over an oral contract to lease farming equipment. The agreement provided that the defendant could use the plaintiff's farming equipment for an amount to be determined by a formula. The defendant began farming his land, intending to plant cotton, when the Mississippi River rose and the backwater covered his property. Because the backwater remained on the land for such a long period of time, the defendant could no longer grow cotton; he had to grow soybeans instead. Subsequently, the defendant refused to pay the plaintiff the amount the plaintiff claimed under the contract, and the plaintiff sued. The trial court held that the contract was enforceable and that the defendant's performance was not excused by the doctrine of frustration of commercial purpose. The defendant appeals the ruling of the trial court. For the reasons below, we affirm in part, reverse in part, and remand the case to the trial court to modify the judgment. http://www.tba.org/tba_files/TCA/moodyjamese.wpd DAVID PALMER v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: David Palmer, Pro Se Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General, Dawn Jordan, Assistant Attorney General, Nashville, For Appellee Judge: CRAWFORD First Paragraph: Appellant, prison inmate, filed a "Petition for Judicial Review and/or Petition for a Declaratory Judgment and/or Petition for Common Law Writ of Certiorari," in the chancery court contesting the denial of relief in his petition for a declaratory order with the Tennessee Department of Correction. The petition for declaratory order challenged his imposed sentence by virtue of subsequent legislation. The trial court dismissed the petition for failure to state a claim upon which relief can be granted and assessed costs against the appellant. This Court affirmed on appeal and assessed the costs of appeal to appellant. Appellant then filed in the trial court a "Motion to Waive Court Costs, Motion to Assert Exemption Rights Under Appellate Precedent," pursuant to T.C.A. S 26-2-101 et seq. The trial court dismissed the petition and appellant has appealed. We affirm. http://www.tba.org/tba_files/TCA/palmerdav.wpd BILLY R. SADLER v. TENNESSEE BOARD OF PROBATION AND PAROLE Court:TCA Attorneys: Billy Sadler, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kimberly J. Dean, Deputy Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: A prisoner who was denied parole filed a Petition for Writ of Certiorari, challenging, on constitutional grounds, the procedures followed by the Parole Board. The trial court dismissed the petition. We affirm. http://www.tba.org/tba_files/TCA/sadlerbr.wpd KELLY SEIBERS v. DOUGLAS KEITH CLOUSE Court:TCA Attorneys: J. Steve Daniels, Livingston, Tennessee, for appellant, Kelly Seibers Henry D. Fincher, Cookeville, Tennessee, for appellee, Douglas Keith Clouse Judge: WALTER First Paragraph: This appeal challenges a custody decision. The juvenile court awarded the parents joint custody with the father to have primary physical custody of the child. Appellant/mother challenges the juvenile court's comparative fitness analysis and the award of primary physical custody of the child to the father. As discussed below, we affirm the judgment of the juvenile court granting the father primary physical custody. The juvenile court was correct that it is in the best interest of the child to remain primarily with the father as he provides the better living environment. http://www.tba.org/tba_files/TCA/seibers.wpd LINDSAY TAYLOR, RACHEL TAYLOR AND BRADFORD TAYLOR v. AL BEARD AND SOUTHEASTERN MOTOR FREIGHT COMPANY Court:TCA Attorneys: Larry E. Parrish, Memphis, TN, for Appellants Tim Wade Hellen, Memphis, TN, for Appellees Judge: HIGHERS First Paragraph: This appeal involves a grant of summary judgment, which dismissed loss of parental consortium claims brought by the children of a parent injured in an automobile accident. The children seek review of existing Tennessee precedent that fails to recognize loss of parental consortium causes of action resulting from the personal injury of a parent. For the following reasons, we affirm the decision of the trial court and decline to create a new cause of action. http://www.tba.org/tba_files/TCA/taylorlindsay.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. JENNIFER LEE NETHERTON WHITED, ET AL. Court:TCA Attorneys: Jim Sowell, Dickson, Tennessee, for appellant, Jennifer Lee Netherton Whited. Paul G. Summers, Attorney General and Reporter, Dianne Stamey Dycus, Assistant Attorney General, Nashville, Tennessee, for appellee, Department of Children's Services. Judge: KURTZ First Paragraph: This appeal involves the termination of parental rights. The juvenile court terminated the parental rights of both parents. Appellant/mother challenges the juvenile court's termination of her rights contending the juvenile court erred by allowing in certain documentary evidence, that the evidence did not clearly and convincingly establish that termination was in the child's best interest, the court failed to state affirmatively that termination was in the best interest of the child, and the petition for termination was defective as it did not explicitly state the statutorily mandated language of Tenn. Code Ann. S 36-1-113(d)(3)(C) (Supp. 2000). As discussed below, we affirm the judgment of the juvenile court. http://www.tba.org/tba_files/TCA/whited.wpd LUCIOUS ALLEN v. STATE OF TENNESSEE Court:TCCA Attorneys: Lucious Allen, Whiteville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; John W. Campbell and Daniel S. Byer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Lucious Allen, pled guilty in the Shelby County Criminal Court to four felony offenses and was sentenced to a total effective sentence of eight years with the sentence running concurrently to a previously imposed federal sentence. Subsequently, the petitioner filed for post- conviction relief, alleging involuntary guilty pleas and that the trial court was without jurisdiction to impose concurrent sentencing. On appeal, the petitioner disputes the summary dismissal of his petition for post-conviction relief without the appointment of counsel and without an evidentiary hearing. Upon review of the record and the parties' briefs, we reverse the judgment of the post- conviction court and remand this case to the post-conviction court for appointment of counsel and further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/allenl.wpd STATE OF TENNESSEE v. JAMES M. BRENT Court:TCCA Attorneys: V. Michael Fox, Nashville, Tennessee, for appellant, James M. Brent. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; Bill Whitesell, District Attorney General; and Bill Osborne, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: A Rutherford County jury convicted the defendant of driving under the influence of an intoxicant. The trial court sentenced the defendant to eleven months and twenty-nine days to be served in a local workhouse. The court required the defendant to serve forty-eight hours and allowed the defendant to serve the remainder of his sentence on probation. The defendant subsequently moved for a new trial and then amended his motion. The trial court denied his amended motion, and the defendant appeals this denial, alleging that the evidence presented at trial was insufficient to support his conviction, that the trial court erred by allowing testimony regarding the defendant's refusal to submit to a blood alcohol test, and that the trial court erred by instructing the jury that they could consider this refusal as evidence of the defendant's consciousness of guilt. After reviewing the record and applicable case law, we find that these issues lack merit and therefore affirm the trial court's denial of the defendant's motion for new trial. http://www.tba.org/tba_files/TCCA/brentjames.wpd STATE OF TENNESSEE v. MICHAEL HILL Court:TCCA Attorneys: William W. Heaton, Memphis, Tennessee, for the appellant, Michael Hill. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District Attorney General; and Jim Powell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, Michael Hill, pled guilty to driving under the influence of an intoxicant, and submitted sentencing for determination by the trial court. Included within the sentencing was a determination by the trial court as to whether or not Defendant's prior convictions for DUI could be used to sentence him as a multiple DUI offender pursuant to Tennessee Code Annotated section 55- 10-403. The trial court determined that at least two of the prior DUI convictions could be used to sentence Defendant as a multiple third DUI offender. Defendant was sentenced to 11 months and 29 days, with all but 180 days suspended, and he was fined $3,500.00. On appeal, Defendant argues that all of the prior convictions for DUI were imposed more than ten years prior to his conviction for DUI in this case, and that he should be sentenced as a first offender. We agree, and reverse the judgment of the trial court and remand this case for a sentencing hearing as a DUI first offender. http://www.tba.org/tba_files/TCCA/hillmichael.wpd ERIC BERNARD HOWARD v. STATE OF TENNESSEE Court:TCCA Attorneys: Radford H. Dimmick, Nashville, Tennessee, for the appellant, Eric Bernard Howard. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Shelli Neal, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Eric Bernard Howard, was convicted of two counts of aggravated robbery in the Criminal Court of Davidson County and sentenced to consecutive terms of seventeen years for each conviction. The Defendant now seeks post-conviction relief alleging that he was denied effective assistance of counsel. The trial court denied relief. We affirm. http://www.tba.org/tba_files/TCCA/howardeb.wpd TERRELL E. JACKSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Juni S. Ganguli, Memphis, Tennessee, for the appellant, Terrell E. Jackson. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and Lee V. Coffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Terrell E. Jackson, appeals the trial court's denial of post-conviction relief. The issues presented for review are whether the petitioner was denied the effective assistance of counsel and whether he entered a knowing and voluntary guilty plea. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/jacksonterrelle.wpd STATE OF TENNESSEE v. CHARLES E. JONES Court:TCCA Attorneys: A.C. Wharton, Jr., Garland Ergueden, Trent Hall, and Robert Parris, Memphis Tennessee, for the appellant, Charles E. Jones. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Paul Goodman and Paula Wulff, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Charles E. Jones, was convicted by a jury in the Shelby County Criminal Court of first degree murder and was sentenced to life imprisonment in the Tennessee Department of Correction. On appeal, the appellant contends that the evidence is not sufficient for a jury to find him guilty of first degree murder. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jonesc.wpd DONALD RAY PANNELL v. STATE OF TENNESSEE Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the Appellant, Donald Ray Pannell. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Donald Ray Pannell, appeals from the dismissal of his petition for post-conviction relief. Pannell was convicted by a Marshall County jury of burglary, burglary of an automobile, and theft. He was sentenced as a Career Offender to eighteen years in the Department of Correction. On appeal, Pannell argues: (1) that the trial judge erred in not recusing himself from presiding over the case, and (2) that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court dismissing the petition. http://www.tba.org/tba_files/TCCA/pannelldonaldr.wpd STATE OF TENNESSEE v. COLICO WALLS Court:TCCA Attorneys: W. Mark Ward (on appeal) and Brent Walker (at trial) Assistant Public Defenders, for the appellant, Colico Walls. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; and Steven Jones and Amy Weirich, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Colico Walls, was convicted of attempted aggravated robbery. The trial court imposed a Range III sentence of 15 years. In this appeal of right, the defendant challenges the sufficiency of the evidence as to identity. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/wallscolico.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. 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