Opinion Flash

February 18, 2004
Volume 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):
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
02 New Opinion(s) from the Tennessee Court of Appeals
12 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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

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