TBA YLD Presents: Who's Your Client (And Other Ethical Dilemmas)
March 29 - Memphis
March 30 - Nashville
March 21 - Knoxville

This fast-paced, three-hour ethics CLE includes presentations on
conflicts of interest and other issues relating to the representation
of elderly clients and conflicts of interest and other issues relating
to the representation of both large corporations and small businesses,
including family-owned and other closely-held corporations and their
principals.
It will also include a one-hour segment dealing with ethics in
mediation, covering topics relating to both the mediator and the
parties in mediation. Finally, it will include a short segment on the
proposed changes to the disciplinary reporting requirements and the
fee dispute rules.

Today's Opinions: March 8, 2005
Volume 11 — Number 044
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.
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
01 New Opinion(s) from the Tennessee Court of Appeals
13 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

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


IN RE A.Y.M., AND A.N.W, JR. 

Court:TCA

Attorneys:                          

Debra L. Dishmon, Lebanon, Tennessee, for the appellant, A.N.W., Sr.

Anita M. Holden, Lebanon, Tennessee, for the appellee, State of
Tennessee Department of Children's Services.

David Kennedy, Lebanon, Tennessee, guardian ad litem for A.Y.S. and
A.N.W., Jr.

Judge: CAIN

First Paragraph:

A.N.W., Sr., father, alone appeals the termination of his parental
rights as to two children, A.Y.M. and A.N.W., Jr., the youngest of
which had been removed from parental custody at birth due to the
child's addiction to cocaine.  A.N.W., Sr., challenges the trial
court's findings that DCS exercised reasonable efforts to provide
family services, that A.N.W., Sr., failed to substantially comply with
permanency plan goals, that A.N.W., Sr., had abandoned these two
children, and that the best interest of the children required
termination of parental rights.  We affirm the trial court's findings
in all respects and remand the case for such other proceedings as may
be necessary.

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

STANLEY ADAMS v. WARDEN, DAVID MILLS

Court:TCCA

Attorneys:                          

Stanley Adams, pro se.

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

Judge: GLENN

First Paragraph:

The Petitioner, Stanley Adams, 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.  
Petitioner has failed to allege any ground that would render the
judgment of conviction void.  Accordingly, we grant the State's motion
and affirm the judgment of the lower court.

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

STATE OF TENNESSEE v. PERRY BARNUM

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender, and Robert Hayes Gowen,
Assistant Public Defender, for the appellant, Perry Barnum.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General;  William L. Gibbons, District Attorney
General; and Nicole Duffin, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals his conviction for robbery, (1) contesting the
sufficiency of the identification evidence, and (2) contending that
his enhanced sentence of fourteen years was imposed errantly in light
of Blakely v. Washington.  Upon review, we conclude that the evidence
was indeed sufficient to support the jury's verdict and that the
defendant's prior convictions warrant the enhanced sentence of
fourteen years.  We affirm the judgment of the trial court.

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

JOHN HAWS BURRELL v. HOWARD CARLTON, WARDEN

Court:TCCA

Attorneys:                          

John Haws Burrell, Pro Se, Mountain City, Tennessee.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, John Haws Burrell, proceeding pro se, appeals the
summary dismissal of his petition for writ of habeas corpus.  Because
the petition fails to raise a cognizable claim for habeas relief, the
judgment of the trial court is affirmed.

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

BOBBY L. INGRAM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Bobby L. Ingram, Pro Se.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Eric D. Christiansen, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Bobby L. Ingram, appeals the Greene County Criminal
Court's summary dismissal of his petition for post-conviction relief. 
Because the criminal court correctly ruled that the statute of
limitation barred the petition, that court's order is affirmed.

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

EARL JEFFERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

C. Anne Tipton, Memphis, Tennessee, for the appellant, Earl Jefferson.

Paul G. Summers, Attorney General & Reporter; David E. Coenen,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Jones, Assistant District Attorneys General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Earl Jefferson, was convicted by a jury of
premeditated first degree murder and sentenced to life imprisonment
without the possibility of parole.  His conviction was affirmed by
this Court on appeal.  See State v. Earl T. Jefferson, No.
W2000-00608-CCA-R3-CD, 2001 WL 687061, at *5 (Tenn. Crim. App. at
Jackson, June 12, 2001) perm. app. denied (Tenn. Oct. 29, 2001).  The
petitioner's Rule 11 application for permission to appeal to the
Tennessee Supreme Court was denied on October 29, 2001.  Id.  The
petitioner then filed a pro se petition for post-conviction relief. 
After counsel was appointed, an amended petition was filed, alleging
that the petitioner received ineffective assistance of counsel at
trial and that his right to a speedy trial was denied.  The
post-conviction court denied the petition after a hearing.  Because we
determine that the petitioner did receive the effective assistance of
counsel and the speedy trial claim has been waived, we affirm the
judgment of the post-conviction court.

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

ALBERT FRANK KELLY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender, and W. Mark Ward and
Karen Massey, Assistant Public Defenders, for the appellant, Albert
Frank Kelly.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Emily Campbell, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the trial court's dismissal of his petition for
post-conviction relief.  On appeal he alleges that:  (1) the
post-conviction court erred in finding that he received effective
assistance of counsel; (2) the post-conviction court erred in finding
that his guilty plea was knowing and voluntary; and (3) the trial
court violated the dictates of Tennessee Rule of Criminal Procedure
11.  Therefore, his guilty plea should be set aside.  Following our
review, we affirm denial of post-conviction relief.  Further, we
conclude that the Rule 11 issue is waived and is not cognizable in a
petition for post-conviction relief.

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

STATE OF TENNESSEE v. DAVID LONG

Court:TCCA

Attorneys:                          

Jim L. Fields, Paris, Tennessee, Attorney for the Appellant, David
Long.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Michael Markham, Assistant Attorney General; Robert
"Gus" Radford, District Attorney General; and Steven L. Garrett,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, David Long, was convicted by a Henry County jury of one
count of manufacturing methamphetamine and one count of possession of
drug paraphernalia.  On appeal, Long raises three issues for our
review: (1) whether the search of his vehicle was proper; (2) whether
the chain of custody was properly established for the introduction of
three cans of starter fluid; and (3) whether the evidence is
sufficient to support his conviction for manufacturing
methamphetamine.  After review of the record, we find issues 1 and 2
without merit.  However, we find merit with regard to issue 3 in that
the evidence presented is not sufficient to support the manufacturing
conviction.  The judgment of conviction of manufacturing
methamphetamine is, therefore, reversed and dismissed, and the case is
remanded for a new trial for the attempted manufacturing of
methamphetamine.

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

STATE OF TENNESSEE  v. SHELBORNE MASON

Court:TCCA

Attorneys:                          

Keith A. Hopson, Kingsport, Tennessee, for the appellant, Shelborne
Mason.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; and Joseph Eugene Perrin,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Shelborne Mason, was convicted for the sale and/or
delivery of .5 grams or more of cocaine, a Class B felony.  The trial
court imposed a sentence of thirty years.  In this appeal, the
defendant asserts that the evidence is insufficient to support his
conviction.  The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. BRANDON PATRICK

Court:TCCA

Attorneys:                          

Steve McEwen, Mountain City, Tennessee, (on appeal); and Mack Garner,
District Public Defender, Maryville, Tennessee, (at trial), for the
appellant, Brandon Patrick.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; Mike Flynn, District Attorney General, and
Rocky Young, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant, Brandon Patrick, was convicted of one count of
violation of the Habitual Motor Vehicle Offenders Act, one count of
felony evading arrest with risk of death, and two counts of felony
reckless endangerment.  The trial court later merged the two counts of
reckless endangerment into one count.  The trial court held a
sentencing hearing on November 7, 2002.  The defendant received the
maximum sentences as a career offender of six (6) years for violation
of the Habitual Motor Vehicle Offender Act, twelve (12) years for
Class D felony evading arrest with the risk of death, and six (6)
years for reckless endangerment with a deadly weapon.  The trial court
ordered the defendant to serve the six-year sentences for violation of
the Habitual Motor Vehicle Offender Act and the reckless endangerment
sentence concurrently.  The trial court then ordered that the six (6)
year sentences be served consecutively to the twelve (12) year
sentence for Class D felony evading arrest for an effective sentence
of eighteen (18) years as a career offender to be served in the
Department of Correction.  On appeal, the defendant argues: (1) that
the evidence was legally insufficient to support a verdict of guilty;
(2) his dual convictions for Class D felony evading arrest and felony
reckless endangerment violated the principles of double jeopardy; (3)
the trial court erred by failing to instruct the jury on applicable
lesser-included offenses; and (4) the trial court erred in imposing
consecutive sentences.  We conclude: (1) that the evidence was
sufficient to support his convictions; (2) the dual convictions for
Class D felony evading arrest and felony reckless endangerment violate
principles of double jeopardy and must be merged; (3) it was harmless
error beyond a reasonable doubt when the trial court failed to
instruct on the lesser-included offenses; and (4) consecutive
sentencing was proper in the defendant's case.  We reverse and remand
the judgments of the trial court.

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

WILBERT ROGERS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Deborah A. Brandon, Tennessee, for the appellant, Wilbert Rogers.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WALKER

First Paragraph:

The petitioner, Wilbert Rogers, appeals the denial of post conviction
relief, alleging ineffective assistance of counsel by his trial
attorney. The petitioner was originally convicted by jury of second
degree murder.  After careful review, we affirm the denial of
post-conviction relief.

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

STATE OF TENNESSEE v. JACK SHERRILL, ALIAS

Court:TCCA

Attorneys:                          

A. Philip Lomonaco, Knoxville, Tennessee, for the appellee, State of
Tennessee.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Kevin Allen,  Assistant District Attorney General, for
the appellant, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of rape of a child, a Class A felony, and
aggravated sexual battery, a Class B felony, and was sentenced to an
effective sentence of thirty years.  The defendant now appeals his
conviction contending that:  (1) the evidence was insufficient to
support the conviction; (2) the trial court erred in failing to grant
a new trial based on newly discovered evidence; and (3) the trial
court erred in denying the defendant's motion for continuance.  The
defendant also seeks review of sentencing issues in light of Blakely. 
After review, we conclude there is no reversible error and affirm the
judgments of the trial court as to convictions and sentencing.

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

STATE OF TENNESSEE v. JAMES VANDERGRIFF

Court:TCCA

Attorneys:                          

Daniel G. Boyd, Rogersville, Tennessee, for the appellant, James
Vandergriff.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; C. Berkeley Bell, District Attorney
General; and Douglas Godbee, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

Following the trial court's denial of the defendant's motion to
suppress, the defendant pled guilty to possession with the intent to
deliver a Schedule II controlled substance, cocaine, in an amount
greater than .5 grams, a Class B felony, in exchange for a sentence of
eight years as a standard Range I offender in the Department of
Correction.  The defendant sought to reserve a certified question of
law regarding the trial court's denial of his motion to suppress.  The
issue before us is whether the trial court erred in its determination
that probable cause existed for the defendant to be stopped.  After a
careful review, we affirm the judgment of the trial court.

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

DALE EUGENE WALKER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dale Eugene Walker, pro se.

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

Judge: WILLIAMS

First Paragraph:

The Petitioner Dale Eugene Walker 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.  
Petitioner has failed to allege any ground that would render the
judgment of conviction void.  Accordingly, we grant the State's motion
and affirm the judgment of the lower court.

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

Austin Peay State University Nursing Loan-Scholarship Pilot Program
for Nontraditional Students

Date: March 4, 2005

Opinion Number: 05-019

http://www.tba.org/tba_files/AG/2005/op19.pdf

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