Opinion Flash

March 16, 2004
Volume 10 — Number 051

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
10	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

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

JUDITH LYNN SILVEY v. DARRELL C. SILVEY

Court:TCA

Attorneys:                          

Roger E. Jenne, Cleveland, Tennessee, for the Appellant, Darrell C.
Silvey

John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee,
for the Appellee, Judith Lynn Silvey

Judge: GODDARD

First Paragraph:

In this divorce case the Appellant, Darrell C. Silvey, contends that
the Trial Court erred in its allocation of property between himself
and the Appellee, Judith Lynn Silvey.  We modify the judgment of the
Trial Court, affirm as modified and remand.  Costs of this appeal are
adjudged equally against Mr. and Ms. Silvey

http://www.tba.org/tba_files/TCA/silvey.wpd

ERNEST TARPLEY, ET AL. v. BERT M. HORNYAK, ET AL.

Court:TCA

Attorneys:                          

Justin D. Pitt, Lebanon, Tennessee, for the appellants, Bert M.
Hornyak and wife, Dorothy E. Hornyak.

Henry Clay Barry, Lebanon, Tennessee, for the appellees, Ernest
Tarpley and wife, Mary Nell Tarpley.

Judge: COTTRELL

First Paragraph:

Landowners sued to abate a nuisance claiming that a concrete causeway,
built over a creek by an adjoining landowner, caused water to flood
their property.  After hearing from one witness, the trial judge
discouraged further proof and instead chose to visit the plaintiffs'
land at the next flooding.  He subsequently found the causeway to be a
nuisance and ordered it removed.  We reverse because trial court based
its decision solely on the basis of the judge's personal observations.

http://www.tba.org/tba_files/TCA/tarpleye.wpd

YOURL LEE BASS, JR., PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Yourl Lee Bass, pro se.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Yourl Lee Bass, Jr., appeals the trial court's denial
of his petition for post-conviction relief.  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 Petitioner fails to assert a colorable claim for post-conviction
relief.  Accordingly, the State's motion is granted and the judgment
of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/bassyourl.wpd

STATE OF TENNESSEE v. AMY JO BLANKENSHIP

Court:TCCA

Attorneys:                          

Michael E. Giffin, Tullahoma, Tennessee, for the appellant, Amy Jo
Blankenship.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; and  Mickey Layne, District Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Amy Jo Blankenship, entered pleas of guilty to counts
of burglary, theft, and failure to appear.  After the trial court
imposed sentences on each guilty plea, the appellant filed a motion to
set aside the judgments claiming that she was coerced into pleading
guilty.  She later filed a motion to withdraw the guilty pleas under
Tennessee Rule of Criminal Procedure 32(f).  The trial court denied
both motions.  This appeal follows.  We affirm the decision of the
trial court.

http://www.tba.org/tba_files/TCCA/blankenshipamy.wpd

ARNOLD CARTER v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Arnold Carter, Pikeville, Tennessee, pro se. 

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; James W. Pope, III, Assistant District
Attorney General for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Arnold Carter, appeals the trial court's dismissal of
his petition for writ of habeas corpus. The State has filed a motion
requesting that this Court dismiss the appeal or, in the alternative,
affirm the trial court's denial of relief pursuant to Rule 20, Rules
of the Court of Criminal Appeals. The petitioner has not established a
valid claim for habeas corpus relief.  Accordingly, the State's motion
is granted and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/cartera.wpd

STATE OF TENNESSEE v. ROBERT DENNIS HEISINGER

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Robert
Dennis Heisinger.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; John Carney, District Attorney General;
and C. Daniel Brollier, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Robert Dennis Heisinger, was convicted by a jury of one
count of theft of property valued at $10,000 or more but less than
$60,000.  He was sentenced as a Range II offender to an eight-year
sentence in the Tennessee Department of Correction.  On appeal, he
challenges the length of his sentence and the failure of the trial
court to grant him alternative sentencing.  We affirm the judgment of
the trial court

http://www.tba.org/tba_files/TCCA/heisingerrobert.wpd

GREGORY LYNN HOLLINGSWORTH, PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gregory L. Hollingsworth, pro se.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Gregory Lynn Hollingsworth, appeals the trial court's
denial of his petition for habeas corpus relief.  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 Petitioner fails to assert a cognizable claim for which habeas
corpus relief may be granted.  Accordingly, the State's motion is
granted and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/hollingsworthgregory.wpd

COREY A. KENNERLY, PRO SE v. KEVIN MYERS, WARDEN & STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Corey A. Kennerly, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: WELLES

First Paragraph:

The Petitioner, Corey A. Kennerly, appeals the trial court's denial of
his petition for habeas corpus relief.  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
Petitioner fails to assert a cognizable claim for which habeas corpus
relief may be granted.  Accordingly, the State's motion is granted and
the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/kennercorey.wpd

SAMUEL DAVID LAND  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Timothy Street, Franklin, Tennessee, for the appellant, Samuel
David Land.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; Mary Katharine White, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Samuel David Land, appeals from the trial court's
dismissal of his petition for post- conviction relief.  Petitioner was
convicted by a jury for felony evading arrest and driving on a revoked
license, second offense, a misdemeanor.  For his felony conviction,
Petitioner was sentenced as a career offender to twelve years in
confinement.  Petitioner was sentenced to 11 months and 29 days for
the misdemeanor conviction.  The sentences were ordered to be served
concurrently with each other, but consecutive to a six-year sentence
that Petitioner was already serving as a result of a probation
violation in a prior case.  This Court affirmed Petitioner's
convictions on direct appeal.  State v. Land, 34 S.W.3d 516 (Tenn.
Crim. App. 2000).  Following an evidentiary hearing, the trial court
denied post-conviction relief.  Having reviewed the record on appeal,
the applicable law, and the briefs of the parties, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/landsamueldavid.wpd

STEVEN T. LOACH, PRO SE v. KEVIN MYERS, WARDEN

Court:TCCA

Attorneys:                          

Steven T. Loach, pro se.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General, for the appellee, State of  Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Steven T. Loach, appeals the trial court's denial of
his petition for habeas corpus relief.  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
Petitioner fails to assert a cognizable claim for which habeas corpus
relief may be granted.  Accordingly, the State's motion is granted and
the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/loachsteven.wpd

STATE OF TENNESSEE v. WILLIAM BURT SMITH

Court:TCCA

Attorneys:                          

John H. Norton, III (on appeal), Shelbyville, Tennessee, for the
appellant, William Burt Smith.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General;  James Michael Taylor, District Attorney
General; and Steven M. Blount, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was found guilty of one count of selling a Schedule II
controlled substance, a Class C felony, and sentenced to eight years
in the Tennessee Department of Correction.  The defendant contends on
appeal that the trial court erred in not appointing another attorney
and requiring the defendant to proceed pro se at the motion hearing
and trial after several attorneys were allowed to withdraw.  We
conclude that the defendant has failed to provide this Court with a
record of all relevant court dealings.  Therefore, we presume that the
whole record justifies the trial court's decisions.  The judgment of
the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/smithwb.wpd

STATE OF TENNESSEE v. WILLIAM JAMES WHEELER

Court:TCCA

Attorneys:                          

David Brady, Public Defender; Joe Finley and John B. Nisbet, III,
Assistant Public Defenders, Cookeville, Tennessee, for the Appellant,
William James Wheeler.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Helena Walton Yarbrough, Assistant Attorney
General; William Edward Gibson, District Attorney General; and John A.
Moore, Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, William James Wheeler, appeals the sentencing decision
of the White County Circuit Court.  Under the terms of the plea
agreement, Wheeler pled guilty to reckless homicide, a class D felony,
and arson, a class C felony, and received an agreed six-year sentence.
 Following a sentencing hearing, the trial court ordered that the
six-year sentence be served in the Department of Correction.  On
appeal, Wheeler argues that he should have received a
non-incarcerative sentence.  After review, the judgments of the trial
court are affirmed.

http://www.tba.org/tba_files/TCCA/wheelerwilliamj.wpd

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