Opinion FlashFebruary 18, 2004Volume 10 — Number 032 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 STEVEN SCOTT MEANS, ET AL. v. DAVID VINCENT ASHBY, ET AL. Court:TCA Attorneys: Michael W. Binkley, Nashville, Tennessee, for the appellants, Steven Scott Means and Cheryl Lynn Means. Phillip R. Robinson and James C. Bradshaw, III, Nashville, Tennessee, for the appellee, David Vincent Ashby. Judge: CAIN First Paragraph: Current custodian of Minor Child petitioned the court for termination of parental rights of both parents. Petitioners are the brother and sister-in-law of Minor Child's mother. The parents of the Minor Child are divorced. Mother had no contact with Minor Child for over a year prior to the Petition, and Father has had no contact for approximately five years. We find that any failure to visit by the parents and failure to support by the Mother was not willful and affirm the trial court in dismissing the Petition to Terminate their parental rights. However, the trial court's custody determination is vacated, and that issue is remanded for further consideration. http://www.tba.org/tba_files/TCA/meanssteven.wpd WILLIAM W. YORK v. TENNESSEE BOARD OF PROBATION AND PAROLE Court:TCA Attorneys: William W. York, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; J. Brad Scarbrough, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Parole. Judge: CAIN First Paragraph: Appellant is an inmate of the Department of Corrections serving two life sentences for two first degree murder convictions with sentences imposed in 1978. He became eligible for parole, and on July 3, 2001, a hearing was held before the Tennessee Board of Probation and Parole. His application for parole was denied on July 3, 2001 and review of parole was set for July of 2011. Final disposition denying parole was entered October 2, 2001. On October 29, 2001, Appellant petitioned for a writ of certiorari in the Chancery Court of Davidson County, Tennessee, which petition was dismissed by the trial court on January 10, 2003. We affirm the trial court Order of Dismissal relative to the merits of the denial of parole but hold that postponement of parole review until July of 2011 was an arbitrary exercise of power by the parole board and, therefore, reverse the Order of the trial court. http://www.tba.org/tba_files/TCA/yorkwmw.wpd ALLEN DALE CUTSHAW v. STATE OF TENNESSEE Court:TCCA Attorneys: Allen Dale Cutshaw, pro se. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Senior Counsel; Eric D. Christiansen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The Petitioner, Allen Dale Cutshaw, appeals the trial court's dismissal of his petition for writ of error coram nobis. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition presents no cognizable ground for coram nobis relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/cutshawad.wpd KENNETH PAUL DYKAS v. STATE OF TENNESSEE Court:TCCA Attorneys: Terry A. Fann, Murfreesboro, Tennessee, for the appellant, Kenneth Paul Dykas. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner contends on appeal that he was denied the effective assistance of counsel during the trial of his case. In making his claim, the petitioner alleges ineffective assistance in three areas: (1) failure of counsel to effectively conduct voir dire, (2) inadequate preparation for and examination of witness Riggan, and (3) failure to prepare the petitioner to testify. We affirm the post-conviction court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/dykaskp.wpd STATE OF TENNESSEE v. EDWIN GOMEZ and JONATHAN S. LONDONO Court:TCCA Attorneys: Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee, attorneys for Appellant, Edwin Gomez; David A. Collins, Nashville, Tennessee, and James Stafford, Houston, Texas, Attorneys for Appellant, Jonathan S. Londono. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Bret Gunn and Roger Moore, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellants, Edwin Gomez and Jonathan S. Londono, were convicted by a Davidson County jury of conspiracy to commit aggravated robbery, facilitation of first degree felony murder, facilitation of especially aggravated robbery, and facilitation of aggravated robbery. Gomez and Londono were ordered to serve forty-nine years in the Department of Correction as Range I standard offenders. On appeal, Gomez presents the following issues for our review: (1) whether the trial court erred in not suppressing the photographic line-up and subsequent in-court identification and (2) whether it was error to permit testimony concerning $19,600 found in Gomez's apartment. Londono argues that: (1) the trial court erred by admitting the statements of Co-defendant Bryant Guartos; (2) the trial court erred by admitting the statements of the victim as either an excited utterance or a dying declaration; and (3) the evidence was insufficient to support the verdicts. Both Gomez and Londono argue that the length of their respective sentences was excessive and that consecutive sentencing was improper. After a review of the record, the judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/gomeze_londonoj.wpd DARRYL D. JACKSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Richard D. Dumas, Jr., Nashville, Tennessee, for the appellant, Daryl D. Jackson. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: On November 2, 2001, the Davidson County Grand Jury returned a three count indictment against the Petitioner, Darryl D. Jackson. He was charged with possession of a schedule VI controlled substance with intent to sell or deliver, possession of a schedule II controlled substance, and driving on a suspended license. On January 22, 2002, he pled guilty to possession of a schedule VI controlled substance with intent to sell or deliver. The other two charges were dismissed. The appellant received a two year and one month sentence and was given a recommendation for the Department of Correction's Boot Camp program. On October 4. 2002, the petitioner filed a petition for post-conviction relief and an amended petition on November 14, 2002. A hearing was held on February 18, 2003 and on March 3, 2003, the trial court entered an order denying the petitioner's request for post-conviction relief. In this appeal, the appellant argues that the post-conviction court erred in finding that his guilty plea was entered knowingly and voluntarily and was not the result of trial counsel's ineffective assistance. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jacksondarryl.wpd TIMOTHY L. JEFFERSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Mark A. Kovach, Nashville, Tennessee, for the appellant, Timothy L. Jefferson. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner was indicted on charges of first degree murder and especially aggravated robbery. He pled guilty to a reduced charge of second degree murder, and the other charge was dismissed. As part of the plea agreement, he received a sentence of forty years, to be served at one hundred percent. The petitioner contends that he received ineffective assistance of counsel, and his guilty plea was involuntary and unknowing. We conclude that the petitioner has failed to show that he was denied the effective assistance of counsel. We also conclude that the petitioner's guilty plea was knowing and voluntary. We affirm the denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/jeffersontl.wpd DONALD F. LONG v. TENNESSEE BOARD OF PROBATION AND PAROLE Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; and Elizabeth T. Ryan, Assistant Attorney General, for the appellant, State of Tennessee. Claudia S. Jack, District Public Defender (on appeal); and John S. Colley, III, Columbia, Tennessee (at trial), for the appellee, Donald F. Long. Judge: GLENN First Paragraph: The State appeals the trial court's grant of a petition for habeas corpus relief, arguing that the court acted without jurisdiction because the petitioner's sentence has not expired. Because the record reveals a parole violation warrant was issued and the petitioner declared delinquent before the expiration of his six-year sentence, we conclude that the trial court erred in granting the petition for habeas corpus. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/longdonaldf.wpd ANDREW MOORE v. STATE OF TENNESSEE Court:TCCA Attorneys: N. Andy Myrick, Jr., Fayetteville, Tennessee for the appellant, Andrew Moore. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Mike McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Andrew Eakin Moore, entered an open plea of guilty to three counts of attempted aggravated robbery, two counts of aggravated assault, and one count of resisting arrest. As a result of the guilty pleas, the petitioner received an effective sentence of ten years on all six counts, but the petitioner was ordered to serve 365 days in jail and then be placed on community corrections for the balance of the sentence. Following his release from the jail sentence, the petitioner violated his community corrections sentence and was ordered to serve the balance of the sentence. In this post-conviction proceeding, the petitioner attacks his conviction on the basis of ineffective assistance of counsel. We affirm the post-conviction court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/mooreandrew.wpd MARCIE A. MURRAY v. STATE OF TENNESSEE Court:TCCA Attorneys: Kathleen G. Morris, Nashville, Tennessee, for the appellant, Marcie A. Murray. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Tom Thurman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner contends that the post-conviction court erred in denying relief from her convictions for first degree murder and conspiracy to commit first degree murder. The petitioner has failed to show prejudice from any alleged ineffective assistance, and the issue concerning Leonard Rowe's testimony has been previously determined and is not cognizable for relief on post-conviction. The judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/murrayma.wpd STATE OF TENNESSEE v. GREG SMITH WITH CONCURRING OPINION Court:TCCA Attorneys: Greg Smith, Petros, Tennessee, pro se. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and Michael C. Ripley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Greg Smith, appeals the trial court's denial of his motion to increase the number of pretrial jail credits applied to his sentence. Because the defendant has no appeal as of right under Tennessee Rule of Appellate Procedure 3(b), the appeal is dismissed. http://www.tba.org/tba_files/TCCA/smithgreg_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/smithgreg_con.wpd JOSEPH M. STONE v. STATE OF TENNESSEE Court:TCCA Attorneys: Kimberly S. Hodde, Madison, Tennessee, for the appellant, Joseph M. Stone. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner contends that he received ineffective assistance of counsel and that his guilty pleas were unknowing and involuntary. We conclude that the petitioner has failed to meet his burden of demonstrating by clear and convincing evidence that he was denied the effective assistance of trial counsel. We also conclude that the petitioner's guilty pleas were knowing and voluntary. Based on the foregoing conclusions and the record as a whole, we affirm the denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/stonejm.wpd ANTHONY VEASLEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Jake Erwin, Memphis, Tennessee, for the appellant, Anthony Veasley. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilluly, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Anthony Veasley, was convicted by a Shelby County jury of aggravated robbery, a Class B felony. The trial court sentenced the petitioner as a Range II multiple offender to nineteen years in the Tennessee Department of Correction. Following an unsuccessful appeal of his conviction, the petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel at trial. The petitioner now brings this appeal challenging the post-conviction court's denial of his petition. After reviewing the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/veasleya.wpd CHARLES WILLIAM YOUNG v. STATE OF TENNESSEE Court:TCCA Attorneys: John H. Dickey, Fayetteville, Tennessee, for the Appellant, Charles William Young. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin Dixon, Jr., 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, Charles William Young, appeals the Marshall County Circuit Court's dismissal of his petition for post-conviction relief. Young is currently incarcerated as a result of a jury conviction for aggravated assault. On appeal, Young presents two issues for our review: (1) whether he received the effective assistance of counsel at trial and (2) whether the court erred in refusing to appoint "advisory counsel" at the post-conviction hearing. After review of the issues, we affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/youngcharlesw.wpd Allocation of Portion of Business Tax Revenues to the State Date: February 9, 2004 Opinion Number: 04-017 http://www.tba.org/tba_files/AG/2004/op17.pdf Subdivision Regulations Date: February 9, 2004 Opinion Number: 04-018 http://www.tba.org/tba_files/AG/2004/op18.pdf Drug and Alcohol Testing of Department of Correction Employees Date: February 9, 2004 Opinion Number: 04-019 http://www.tba.org/tba_files/AG/2004/op19.pdf Possession of Firearms on Publicly Owned Property Date: February 9, 2004 Opinion Number: 04-020 http://www.tba.org/tba_files/AG/2004/op20.pdf Authority of the Alcoholic Beverage Commission to Promulgate Rules Providing for Limited Denials of Alcohol Server Permits Date: February 9, 2004 Opinion Number: 04-021 http://www.tba.org/tba_files/AG/2004/op21.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! 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