Opinion Flash

September 29, 2004
Volume 10 — Number 188

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
01 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
05 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


CHARLENE JONES v. EAGLE BEND MANUFACTURING, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

Arthur G. Seymour, Jr., and Robert L. Kahn, Knoxville, Tennessee, for
the appellant, Eagle Bend Manufacturing, Inc.

April Carroll Meldrum, Clinton, Tennessee, for the appellee, Charlene
Jones.

Judge: CATE

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court its findings of fact and conclusions of law.  The
employer asserts that the trial court's judgment of 55 percent
disability to the employee's right arm was excessive, and the trial
court's conclusion of permanency and 20 percent disability to the
employee's left arm was error based upon the preponderance of the
evidence.  The employee contends this is a frivolous appeal.  We
conclude the preponderance of the evidence supports the trial court's
judgment and that it was not a frivolous appeal.

http://www.tba.org/tba_files/TSC_WCP/jonescharlene.wpd

IN THE MATTER OF: C.E.P. (DOB: March 19, 1994)

Court:TCA

Attorneys:                          

David S. Clark, Oak Ridge, Tennessee, for the appellant, D.L.K.

N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, M.P.P.
and A.E.P.

Judge: SUSANO

First Paragraph:

This is an adoption case in which the petitioners seek to terminate
the parental rights of the biological father of C.E.P. ("the child"). 
A.E.P. ("Mother"), the biological mother and custodian of the child,
joined her husband, M.P.P. ("Stepfather"), in petitioning the trial
court to terminate the parental rights of D.L.K. ("Father"), as an
adjunct to Stepfather's petition to adopt the child.  The trial court
granted the petitioners' motion for summary judgment and terminated
Father's parental rights on the basis of his incarceration.  On
Father's initial appeal, we affirmed the finding of grounds for
termination, but vacated the trial court's best interest finding.  On
remand, the trial court conducted a hearing and found that termination
of Father's parental rights was in the best interest of the child. 
Father appeals.  We reverse and dismiss.

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

IN RE: ESTATE OF BARSHA ELLA ROYSTON, DECEASED

Court:TCA

Attorneys:                          

William Harold Royston, Appellee, pro se.

Johnny Royston, Appellant, pro se.

Judge: FRANKS

First Paragraph:

Appellant has appealed before final judgment was entered.  We dismiss
the appeal.

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

ANTHONY D. CUTTLE v. STATE OF TENNESSEE
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Marty B. McAfee, Memphis, Tennessee, for the appellant, Anthony D.
Cuttle.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Vanessa King, 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, arguing that the post- conviction court erred in finding he
received effective assistance of counsel and in denying his request to
represent himself at the post-conviction proceeding.  Following our
review, we affirm the denial of the petition.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/cuttleanthonyd_con.wpd

VINCENT HATCH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kamilah E. Turner, Memphis, Tennessee, for the appellant, Vincent
Hatch.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant,
Assistant Attorney General; and Paul Hagerman, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Vincent Hatch, appeals the trial court's denial of his
petition for post-conviction relief alleging that he was denied the
effective assistance of counsel.  The judgment of the post-conviction
court is affirmed.

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

STATE OF TENNESSEE v. WORLEY K. HENRY

Court:TCCA

Attorneys:                          

Mark A. Skelton, Rogersville, Tennessee, for the appellant, Worley K.
Henry.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Greeley Wells, District Attorney General;
and J. Lewis Combs, Assistant District Attorney General,  for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On May 1, 2003, the defendant, Worley K. Henry, was convicted by a
Sullivan County jury of theft of property valued at less than $500,
possession of a Schedule IV controlled substance, and tampering with
evidence.  The trial court sentenced him to eleven months and
twenty-nine days each for the theft and possession convictions and six
years for the tampering with evidence conviction.  The theft and
evidence tampering sentences were to run concurrently to each other,
but consecutively to the possession sentence.  The defendant appealed
his convictions for theft of property valued at less than $500 and
tampering with evidence.  He has alleged that the evidence is
insufficient to support verdicts of guilty for these offenses.  We
affirm the judgments of the trial court.

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

RAYMOND ROGER JONES  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Janie L. Lindamood, Johnson City, Tennessee, for the appellant,
Raymond Roger Jones.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Steve Finney, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Raymond Roger Jones, appeals the Washington County
Criminal Court's dismissal of his pro se combined motion to reopen his
post-conviction petition, petition for writ of error coram nobis, and
petition for DNA analysis. Petitioner was convicted by a jury in the
Knox County Criminal Court of two counts of first degree murder.  He
received consecutive life sentences.  This Court affirmed Defendant's
convictions and sentences on direct appeal.  See State v. Jones, 735
S.W.2d 803 (Tenn. Crim. App. 1987).  Petitioner filed a petition for
post-conviction relief in the Washington County Criminal Court.  The
trial court dismissed the petition, and this Court affirmed.  See
Raymond Roger Jones v. State, No. 03C01-9102-CR-00068, 1991 Tenn.
Crim. App. LEXIS 584, (Tenn. Crim. App. at Knoxville, July 26, 1991),
perm. to app. denied (Tenn. 1992).  On June 22, 2001, Petitioner filed
a pro se motion to reopen his post-conviction petition, alleging that
the United States Supreme Court's decision in Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), established a
new rule of constitutional law requiring retroactive application to
his case.  Petitioner subsequently filed a supplemental request for
DNA analysis.  The trial court dismissed the motion and denied
Petitioner's request for DNA Analysis.  Petitioner appeals.  After
reviewing the record, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. AMBRECO SHAW

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward,
Assistant Public Defender (on appeal); and Trent Hall, Assistant
Public Defender (at trial), for the appellant, Ambreco Shaw.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paul Hagerman and Nicole Duffin, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Ambreco Shaw, was convicted by a Shelby County Criminal
Court jury of second degree murder, a Class A felony, for shooting a
man to death at a Memphis public housing development.  The trial court
sentenced him as a standard, violent offender to twenty-four years in
the Department of Correction, applying four enhancement factors to
increase his sentence from the presumptive twenty-year midpoint in the
range.  In a timely filed appeal to this court, the defendant raised
as his sole issue whether the evidence was sufficient to sustain his
conviction.  However, following the United States Supreme Court's
opinion in Blakely v. Washington, 542 U.S. ___ , 124 S. Ct. 2531
(2004), which was released during the pendency of this appeal, the
defendant sought and received permission from this court to raise as
an additional issue the impact of the Blakely decision on the
sentencing imposed in his case.  Based on our review of the record,
the parties' briefs, and applicable law, we conclude that the evidence
was sufficient to sustain the defendant's conviction and that two of
the four enhancement factors were appropriately applied under Blakely.
 We further conclude that the applicable factors justify the enhanced
sentence in the case.  Accordingly, we affirm the judgment of the
trial court.

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

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