Opinion FlashSeptember 02, 2003Volume 9 — Number 159 Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion. This Issue (IN THIS ORDER):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel STATE OF TENNESSEE v. TOMMY G. BENHAM Court:TSC Attorneys: Jeffrey A. DeVasher (on appeal) and Jodie A. Bell (at trial), Assistant Public Defenders, Nashville, Tennessee, for the appellant, Tommy G. Benham. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Bledsoe, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: Tennessee Code Annotated section 40-35-202(a) requires that the State notify the defendant of its intent to seek enhanced punishment. We accepted this cause in order to decide whether the State complied with this statutory mandate. The trial court ruled that the State's response to the defendant's discovery request met the statutory requirement and therefore, permitted the State to seek enhanced punishment outside of Range I. The Court of Criminal Appeals affirmed. On consideration, we conclude that the State did not meet the notice requirement. Accordingly, we reverse the Court of Criminal Appeals and remand this case to the trial court for re-sentencing. http://www.tba.org/tba_files/TSC/benhamtommy.wpd CAROLYN STOVALL, ET AL. v. LOIS E. CLARKE, M.D., ET AL. Court:TSC Attorneys: Rose P. Cantrell, R. Blake Menzel, and George A. Dean, Nashville, Tennessee, for the appellant, Lois E. Clarke, M.D. Joe Bednarz, Sr., and Joe Bednarz, Jr., Nashville, Tennessee, for the appellee, Carolyn Stovall. Phillip North, Michael F. Jameson, and M. Todd Sandahl, Nashville, Tennessee, for the appellee, Robert W. McCain, M.D. Judge: ANDERSON First Paragraph: We granted review in this medical malpractice case to address whether the plaintiff, Carolyn Stovall, established a genuine issue of material fact as to the recognized standard of professional practice in the community in which the defendants, Dr. Lois E. Clarke and Dr. Robert McCain, practiced or in a similar community. The trial court granted summary judgment to the defendants and later denied the plaintiff's motion to alter or amend the summary judgments. On appeal, the Court of Appeals reversed the grant of summary judgment to Dr. Clarke but affirmed the grant of summary judgment to Dr. McCain. After reviewing the record and the applicable authority, we hold that the Court of Appeals correctly determined that the trial court erred in granting summary judgment to Dr. Clarke. We further conclude that the trial court erred in denying the plaintiff's motion to alter or amend the grant of summary judgment to Dr. McCain. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings. http://www.tba.org/tba_files/TSC/stovallc.wpd TONY WILLIS Et Al. v. TENNESSEE DEPARTMENT OF CORRECTION CORRECTED OPINION Court:TSC Attorneys: Brian Dunigan, Goodlettsville, Tennessee, for the appellant, Edward Tharpe. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael W. Catalano, Associate Solicitor General, for the appellee, Tennessee Department of Correction. Judge: BARKER First Paragraph: The issue in this case is the proper standard to be applied to motions to dismiss petitions for common-law writ of certiorari in prison disciplinary proceedings. This appeal involves a prisoner who was charged with and convicted of the disciplinary violation of attempted escape. The prisoner filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County challenging the action of the disciplinary board arguing that it was illegal, arbitrary, and excessively punitive. The chancery court granted the Department of Correction's motion to dismiss for failure to state a claim because the process provided to the petitioner was commensurate with the sanctions imposed upon him, and therefore, there was no violation or deprivation of due process. The majority of the Court of Appeals affirmed the trial court's judgment, with Judge Koch dissenting. We granted Petitioner's request for permission to appeal, and after conducting our own de novo review of the record, we hold that the petitioner did state a claim for relief under the common-law writ of certiorari because his petition alleged that the disciplinary board failed to follow its own disciplinary guidelines and that the petitioner was substantially prejudiced thereby. At the same time, we agree with the Department of Correction that the petitioner did not state a claim for relief under the due process clause of the United States Constitution or the Tennessee Constitution. Accordingly, the decision of the Court of Appeals is reversed in part, affirmed in part, and the case is remanded to the trial court for further proceedings. CORRECTED OPINION http://www.tba.org/tba_files/TSC/willist.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0902.wpd THOMAS A. BRONSON, JR., ET AL. v. HORACE RICKY UMPHRIES, ET AL. HORACE RICKY UMPHRIES, ET AL, v. NORFOLK SOUTHERN RAILWAY COMPANY PAUL S. SCHRIER, ET AL v. NORFOLK SOUTHERN RAILWAY COMPANY, ET AL Court:TCA Attorneys: John D. Richardson, Teresa A. Boyd, For Appellants, Horace Ricky Umphries, As Administrator of the Estate of Nicholas L. Umphries, Deceased, Horace Ricky Umphries, Individually, and Julia Ann Umphries, Individually James H. Wettermark, Birmingham, Alabama; Stephen R. Leffler, Memphis, For Appellants, Thomas M. Bronson, Jr., Deborah J. Bronson,and Matthew M. Bronson S. Russell Headrick, Jennifer Ziegenhorn, Memphis, For Appellants, Paul A. Schrier, Individually, and David Schrier's Appeal Everett B. Gibson, Ralph T. Gibson, Scott B. Peatross, Memphis, For Appellee, Norfolk Southern Railway Company Judge: CRAWFORD First Paragraph: This appeal is from judgments on jury verdicts in a wrongful death case and personal injury cases resulting from a collision of a freight train with a vehicle. Suits were filed for the wrongful death and personal injury claims against the railroad, and the passengers in the vehicle also sued the owner and driver of the vehicle. The cases were consolidated for trial, and the jury returned a verdict for defendant railroad in all cases. The jury also returned a verdict awarding damages for plaintiffs' in their suit against the driver and owner of the vehicle. Judgments were entered on the jury verdicts, and all plaintiffs appealed. We affirm. http://www.tba.org/tba_files/TCA/bronsont.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. PORTIA ANN LETNEY BUTLER, ET AL. Court:TCA Attorneys: Roger Stanfield, Jackson, For Appellant, William Butler Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver, Assistant Attorney General, Nashville, For Appellee, State of Tennessee Department of Children's Services Judge: CRAWFORD First Paragraph: Department of Children's Services filed petition to terminate parental rights of biological mother and father to dependent and neglected minor child based on several grounds, including abandonment. Department later amended its petition to include an additional ground for termination of father's parental rights, citing T.C.A. S 36-1-113(g)(6). Juvenile court held two separate hearings on Department's petition. As part of the second hearing, mother consented to termination of her parental rights as to minor child. Upon conclusion of hearings, juvenile court entered order terminating mother and father's parental rights, finding grounds for termination of father's rights, and that termination was in the child's best interests. Father appeals. We affirm. http://www.tba.org/tba_files/TCA/butler.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. CHESTER F. COLE, ET AL. Court:TCA Attorneys: Michael E. Rasnake, Jackson, Tennessee, for the Appellant, Chester F. Cole Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee Department of Children's Services Judge: GODDARD First Paragraph: This is a termination of parental rights case. The father appeals from the order of the juvenile court terminating parental rights to his three children. Specifically, the father asserts that the Trial Court failed to find, by clear and convincing evidence, that termination of his parental rights was in the best interest of the children. Because we find clear and convincing evidence in the record to support the Trial Court's findings, we affirm. http://www.tba.org/tba_files/TCA/colech.wpd KATHLEEN ANNE EARLEY v. ROBERT KEITH EARLEY Court:TCA Attorneys: David E. Caywood, Laurie W. Hall, Memphis, For Appellant, Kathleen Anne Earley Earley Michael L. Robb, Dawn Davis Carson, Susan T. Hunt, Memphis, For Appellee, Robert Keith Earley Judge: CRAWFORD First Paragraph: In this divorce case, the final decree granting wife a divorce made a division of marital property but failed to include as part of the marital estate several expenditures made by the husband. Wife asserts that such expenditures constitute a dissipation of assets by the husband and should have been included as part of the marital property. Wife appeals. We affirm. http://www.tba.org/tba_files/TCA/earleyk.wpd JOANNE HUNTER, ET AL. v. RICKY JACKSON Court:TCA Attorneys: Jeffrey L. Stimpson, Munford, Tennessee, for the Appellants, Joanne Hunter and husband, Robert Hunter. William C. Cole, Millington, Tennessee, for the Appellee, Ricky Jackson. Judge: FARMER First Paragraph: The Plaintiffs appeal the judgment of the trial court contending that the award of compensatory damages was inadequate and that the trial court erred in failing to award punitive damages. Plaintiffs further contend the trial court erred in failing to award the full amount of their discretionary costs. We affirm the award of damages and modify the order of the trial court to the extent that Plaintiffs are awarded the full amount of their discretionary costs. http://www.tba.org/tba_files/TCA/hunterj.wpd ROBERT D. PELTS V. INTERNATIONAL MEDICAL SERVICES CORP., HUGH A. HINES, JR., CARLTON SMITH, AND BERNARD TIBBETTS Court:TCA Attorneys: Carlton Smith, appellant, Memphis, Tennessee, pro se (Notice of Appeal filed by Carlton Smith on behalf of Carlton Smith, International Medical Services Corp. and Bernard Tibbetts) James H. Kee, Memphis, Tennessee, for the appellee, Robert D. Pelts. Judge: KIRBY First Paragraph: This case involves specific performance of a contract to sell real property. A medical services corporation was formed by three individuals. One founder received a majority of the stock of the corporation and became the chairman of the corporation's board of directors. The other two founders were minority shareholders. The corporation purchased a certain piece of real property. The corporation then filed bankruptcy. After the bankruptcy was discharged, the majority shareholder, the chairman of the board of directors of the corporation, convened a shareholders' meeting that was not attended by the other two founders of the corporation. The chairman elected himself president of the corporation and authorized himself to sell the realty. The now-president then entered into a contract to sell the property to a purchaser. He subsequently convened a meeting of the board of directors of the corporation and installed two new board members. The new board ratified the contract for the sale of the land to the purchaser. The two remaining original owners of the company asserted that the president of the corporation had no legal ability to contract to sell the land because he fraudulently obtained his majority ownership of the company. The purchaser filed a lawsuit against the corporation and the shareholders for specific performance of the contract for sale of the land, and then moved for summary judgment. The trial court granted summary judgment to the purchaser and ordered the sale of the land. On appeal, the minority stockholder argues that the trial court erred for a number of reasons. We affirm, holding that the minority shareholder, proceeding pro se, cannot represent the corporation, and finding no error in the trial court's decision as it relates to the minority shareholder. http://www.tba.org/tba_files/TCA/peltsrd.wpd CHRISTOPHER G. RYAN V. JAMES W. SURPRISE AND JOHNSON, GRUSIN, KEE & SURPRISE Court:TCA Attorneys: Richard Glassman and Douglas Hanson, Memphis, Tennessee, for the appellant, James W. Surprise and Johnson, Grusin, Kee & Surprise. R. Sadler Bailey and Christopher M. Robinson, Memphis, Tennessee, for the appellee, Christopher G. Ryan. Judge: KIRBY First Paragraph: This case involves discovery sanctions. The plaintiff sued the defendants, a lawyer and his law firm, for legal malpractice. The plaintiff requested certain documents from the defendants at least three times, which were not produced. The trial court ordered production of the documents at a deposition. The documents were not produced at the deposition. Twenty-eight days after the deposition, on the eve of a hearing on the defendants' alleged discovery abuses, the documents were produced. In response to the plaintiff's request for sanctions, the trial court ordered that the defendants pay the plaintiff's attorney a monetary sanction. The defendants appeal, arguing that the imposition of the sanction was an abuse of discretion, because there was no evidence indicating the amount of attorney time spent on the alleged discovery abuse and, therefore, no evidentiary basis for the amount of the sanction. We vacate the order of the trial court and remand for further proceedings, because the record does not support the trial court's award. http://www.tba.org/tba_files/TCA/ryancg.wpd SHELBY COUNTY HEALTH CARE CORPORATION, d/b/a REGIONAL MEDICAL CENTER v. ALLSTATE INSURANCE COMPANY v. WILLIAM GARY HOLT, GARY EUBANKS AND ASSOCIATES LAW FIRM, and TERESA STIVERS Court:TCA Attorneys: John S. Golwen, John W. Campbell, Memphis, TN, for Appellants John D. Richardson, Teresa A. Boyd, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This is an interlocutory appeal by the third party defendants challenging the trial court's decision that the state of Tennessee has personal jurisdiction over them. For the following reasons, we affirm the portion of the trial court's ruling with respect to Teresa Stivers and reverse with respect to William Holt and the Gary Eubanks and Associates Law Firm. http://www.tba.org/tba_files/TCA/shelbyhc.wpd TROY ALLEN THOMPSON v. ELISA CONNELL HULBERT Court:TCA Attorneys: David A. McLaughlin and Gail R. Sevier, Memphis, Tennessee, for the appellant, Troy Allen Thompson. Paul G. Summers, Attorney General and Reporter, and Kim Beals, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: KIRBY First Paragraph: This case involves a constitutional challenge to the Tennessee Child Support Guidelines, Tenn. Comp. R. & Regs. 1240-2-4. In our initial Opinion in this case, we held that the challenged guidelines were unconstitutional because that they were violative of the equal protection guarantees of the federal and state constitutions. The Supreme Court of Tennessee granted certiorari and remanded the case to this Court for reconsideration in light of the Supreme Court's recent decision in Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003). In light of Gallaher, we must conclude that there is no constitutional defect in the challenged child support guideline provisions. Consequently, we affirm the child support award ordered by the trial court. http://www.tba.org/tba_files/TCA/thompsnt.wpd SUSAN JOHNSON WHITEHURST, M.D., A/K/A DR. SUSAN JOHNSON, AND WILLIAM WHITEHURST, JR. v. MARTIN MEDICAL CENTER, P.C., SUSAN LOWRY, M.D., ANNA HOPLA, M.D., WAL-MART STORES, INC., CHRISTY THOMPSON, CASEY VERNON, JOYCE HAYES, JOHN DOES A, B, AND C, AND JANE DOES A, B, AND C Court:TCA Attorneys: J. Houston Gordon, Covington, Tennessee, for the appellant, Susan Johnson Whitehurst, M.D., a/k/a Dr. Susan Johnson. W. O. Luckett, Jr., and Lorrie K. Ridder, Memphis, Tennessee, for the appellees, Wal-Mart Stores, Inc., Christy Thompson, Casey Vernon, and Joyce Hayes. Judge: KIRBY First Paragraph: This is a defamation case. The plaintiff is an obstetrician/gynecologist who practices in a largely rural area. The individual defendants are pharmacists who work at Wal-Mart stores in that area. In October 1997, one of the pharmacists received a phone call from her sister, another physician in the area. The sister told the pharmacist that the plaintiff obstetrician/gynecologist had contracted the HIV virus and was sending letters to her patients to inform them of that fact. The pharmacist, a former patient of the plaintiff, repeated the information to her co-workers. Several Wal-Mart employees, including the defendants, repeated the information about the plaintiff to others. The information was false. When the plaintiff learned of the spread of the false rumors, she sued the defendants for defamation. After a lengthy trial, the jury found in favor of the defendants. The plaintiff now appeals, asserting, inter alia, that the trial court erred in admitting evidence that was irrelevant or otherwise improper, and in approving the jury verdict. We affirm, finding that the trial court did not err in the admission of evidence, and that material evidence supports the jury's verdict. http://www.tba.org/tba_files/TCA/whitehu.wpd STATE OF TENNESSEE v. DEWAYNE CHAMBERS Court:TCCA Attorneys: Roger Eric Nell, District Public Defender; and Russel A. Church, Assistant District Public Defender, for the appellant, Dewayne Chambers. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and B. Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: A Robertson County jury convicted the defendant, Dewayne Chambers, of kidnapping and rape. The trial court imposed concurrent sentences of three years for the kidnapping conviction and eight years for the rape conviction to be served in the Department of Correction. On appeal, the defendant contends the trial court erred in denying alternative sentencing. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/chambers.wpd STEVEN RAY CHANCE v. STATE OF TENNESSEE Court:TCCA Attorneys: Eric K. Lockert, Ashland City, Tennessee, for the appellant, Steven Ray Chance. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of his post-conviction relief petition following his nolo contendere pleas to aggravated burglary, aggravated assault, and evading arrest. He contends his trial counsel did not provide him with effective assistance when he entered into the plea agreement. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/chance.wpd ANDREW COLE v. STATE OF TENNESSEE Court:TCCA Attorneys: Richard W. Vaughn, Jr., Milan, Tennessee, for the Appellant, Andrew Cole. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; Garry G. Brown, District Attorney General; and Larry Hardister, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Andrew Cole, appeals the dismissal of his petition for post-conviction relief by the Gibson County Circuit Court. Cole is currently incarcerated as a result of his jury convictions for attempted first degree murder, attempted second degree murder, aggravated assault, and felon in possession of a firearm. On appeal, Cole raises the issues of: (1) whether he received ineffective assistance of counsel; (2) whether the trial court erred in refusing to appoint "new counsel" for him at trial; and (3) whether he was improperly sentenced as a multiple offender. After review of the issues, we affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/colea.wpd DAVID FRANKLIN FORRESTER v. STATE OF TENNESSEE Court:TCCA Attorneys: William B. Lockert, III, District Public Defender; and Richard D. Taylor, Jr., Assistant District Public Defender, for the appellant, David Franklin Forrester. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief from his conviction for aggravated sexual battery. He argues that he was denied the effective assistance of counsel because his divorce attorney, who thereafter became his initial trial attorney, failed to attend a polygraph examination and advise petitioner of the protocol, limitations, and requirements necessary to complete the examination. The petitioner further asserts that he was denied effective assistance of counsel by his second trial attorney because this attorney was unprepared to argue a motion to suppress and failed to adequately investigate factual allegations, review juvenile court records, call critical witnesses, pursue leads that would have established a conspiracy by the petitioner's wife to wrongfully prosecute him, and let the petitioner review the brief filed on direct appeal. Based upon our review, we affirm the post-conviction court's denial of the petition. http://www.tba.org/tba_files/TCCA/forresterdavidf.wpd STATE OF TENNESSEE v. CHARLES RUFUS FOSTER, SR. Court:TCCA Attorneys: Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Charles Rufus Foster, Sr. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his conviction of rape and his ten-year sentence. The defendant contends that the evidence is insufficient to support the conviction, that the trial court erroneously allowed the victim to testify, and that expert testimony should not have been admitted into evidence. The defendant also contends that the trial court erred in sentencing. After careful review, we conclude the evidence is sufficient to support the conviction and the trial court did not err. We affirm the conviction and the judgment of the trial court. http://www.tba.org/tba_files/TCCA/foster.wpd STATE OF TENNESSEE v. EDWARD D. HANEY Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the appellant, State of Tennessee. Edward C. Miller, District Public Defender, for the appellee, Edward D. Haney. Judge: WILLIAMS First Paragraph: The State appeals the trial court's suppression of twenty-five rocks of cocaine seized from the defendant. Because the trial court "did not feel comfortable" in elaborating the reason why the evidence should be suppressed, we remand for the trial court to make findings of fact and conclusions of law. http://www.tba.org/tba_files/TCCA/haneyed.wpd REDONNA HANNA v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert C. Brooks, Memphis, Tennessee, for the appellant, Redonna Hanna. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The petitioner, Redonna Hanna, was convicted of three counts of aggravated robbery, one count of especially aggravated robbery, one count of aggravated burglary, and one count of first degree murder. His convictions were affirmed on direct appeal. He filed a petition for post-conviction relief, alleging that his trial counsel was ineffective by not objecting to the trial court's instructions as to criminal responsibility. Following an evidentiary hearing, the post-conviction court dismissed the petition, and the petitioner appealed. We affirm the dismissal. http://www.tba.org/tba_files/TCCA/hannar.wpd STATE OF TENNESSEE v. EVELYN HOLLY Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender; Tony N. Brayton, Assistant Public Defender; Donna Armstard, Assistant Public Defender; and James Rayford, Assistant Public Defender, for the appellant, Evelyn Holly. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kevin Rardin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Evelyn Holly was convicted of second degree murder following a jury trial. Defendant now challenges her conviction arguing that the trial court erred in not suppressing her statement to the police. Defendant also contends that the evidence is insufficient to sustain her conviction of second degree murder. Specifically, Defendant argues that the evidence showed that she and the victim, Ronald Kyles, were engaged in mutual combat at the time of the killing and requests this court to reduce her conviction to voluntary manslaughter. After a thorough review of the record, we affirm Defendant's conviction for second degree murder. http://www.tba.org/tba_files/TCCA/holly.wpd STATE OF TENNESSEE v. VOSS JOHNSON Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Voss Johnson. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, Defendant, Voss Johnson, was convicted of two counts of especially aggravated robbery, one count of attempted voluntary manslaughter, and one count of second degree murder. Defendant now appeals his convictions arguing that the trial court erred in denying his motion to suppress and that the evidence is insufficient to sustain his conviction for second degree murder based on a theory of criminal responsibility. After a careful review of the record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/johnsnv.wpd RODRICK JOHNSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Rodrick Johnson, Only, Tennessee, Pro Se (on appeal), and Ellsworth D. Ware, III, Nashville, Tennessee (at trial), for the appellant, Rodrick Johnson. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Rodrick Johnson, appeals the denial of his petition for post-conviction relief, asserting that: (1) the post-conviction court erred by failing to make findings and conclusions as to each issue; (2) the jury instructions provided by the trial court lowered the State's burden of proof; (3) the trial court erred in not instructing as to the lesser-included offense of facilitation; and (4) he was denied the effective assistance of counsel on appeal. We affirm the order of the post-conviction court dismissing the petition. http://www.tba.org/tba_files/TCCA/johnsonr.wpd STEVE MASON v. STATE OF TENNESSEE Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the appellant, Steve Mason. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Steve Mason, brings the instant appeal of the post-conviction court's denial of his petition for relief. The petitioner stands convicted of first degree murder and attempted first degree murder. In this appeal, he alleges that he is entitled to post-conviction relief on the basis that the facts introduced at trial are insufficient to support his convictions and because he received ineffective assistance of trial counsel. http://www.tba.org/tba_files/TCCA/masonst.wpd STATE OF TENNESSEE v. TIM MATTINGLY Court:TCCA Attorneys: William B. (Jake) Lockert, III, District Public Defender (on appeal); Steve Stack, Assistant District Public Defender (at hearing); and L. Broner McCoy, Ashland City, Tennessee (at hearing), for the appellant, Tim Mattingly. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The trial court found the defendant, Tim Mattingly, violated the terms of his ten-year community corrections sentence. It ordered him to serve three years "day for day" in the county jail before serving the remainder of his ten-year sentence on community corrections. In this appeal, the defendant argues the trial court acted without authority in imposing this sentence. We conclude the trial court imposed an illegal sentence and remand for further proceedings. http://www.tba.org/tba_files/TCCA/mattingly.wpd STATE OF TENNESSEE v. GARY W. YOUNG Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for appellant, Gary W. Young. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General; and John Zimmermann, Assistant District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: On May 21, 2001, the appellant, Gary W. Young, pleaded guilty to sale of a controlled substance and possession of a controlled substance within a thousand feet of a school. He received concurrent twenty-one year sentences for each count. As part of the plea agreement the appellant attempted to reserve a certified question of law to be presented on appeal. See Tenn. R. App. P. 37(b)(2)(i). This question concerns the propriety of a search. On June 19, 2001, the appellant also attempted to withdraw his guilty plea pursuant to Tennessee Rule of Criminal Procedure 32(f). The trial court denied the motion to withdraw the guilty plea based on this Court's holding in State v. Hall, 983 S.W.2d 710 (Tenn. Crim. App. 1998 overruled by State v. Green, 106 S.W.3d 646 2003)). This appeal followed. After a review of the record and the applicable authorities we are of the opinion that the appellant has failed to properly certify an appeal to this Court pursuant to Tennessee Rule of Appellate Procedure 37(b)(2)(i), and this Court therefore lacks jurisdiction to consider the trial court's denial of the appellant's motion to suppress. However, the appeal of the denied motion to withdraw a guilty plea is properly before this court, and this case must be remanded for consideration of the motion in view of the Tennessee Supreme Court decision in State v. Greene, 106 S.W.3d 646 (Tenn. 2003), which overruled State v. Hall. Finally, the allegation concerning the legality of the appellant's sentences, which has been raised for the first time on appeal, may be presented to the trial court on remand for consideration as a ground to allow withdrawal of the plea http://www.tba.org/tba_files/TCCA/youngg.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! 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