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Today's Opinions: July 20, 2005
Volume 11 — Number 137
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
05 New Opinion(s) from the Tennessee Court of Appeals
13 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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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


SUZAN DARVARMANESH v. MAHYAR GHARACHOLOU

Court:TCA

Attorneys:                          

Thomas F. Bloom, Nashville, TN, for Appellant

Cynthia J. Bohn, Paul W. Moser, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

In 2002, Wife filed a complaint for divorce in the circuit court.
Following a bench trial, the trial court entered a final decree of
divorce and incorporated the court's permanent parenting plan. The
trial court ordered the husband to pay the wife transitional alimony
for three years, awarded the parents joint custody of their minor son,
and ordered both parents to pay child support. The wife filed an
appeal to this Court contesting the trial court's decision regarding
joint custody. The husband filed an appeal to this Court contesting
the trial court's decisions regarding alimony and child support. We
reverse the trial court's decisions regarding alimony, child custody,
and child support, and we remand this case tot he trial court for
further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TCA/2005/darvarmaneshs72005.pdf

LAW OFFICES OF HUGO HARMATZ v. STEVE DORROUGH, ET AL.
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Michael W. Fortune, Knoxville, Tennessee, for the Appellant, Law
Offices of Hugo Harmatz.

John O. Threadgill, Knoxville, Tennessee, for the Appellee, Steve
Dorrough, Jayme Dorrough, and Nomad Investment Group, Inc.

Judge: LEE

First Paragraph:

This is an action to enforce a foreign judgment. The trial court
granted the Defendants' motion to dismiss due to lack of personal
jurisdiction, subject matter jurisdiction and improper venue. Because
the Plaintiff failed to establish a prima facie case that personal
jurisdiction over any of the Defendants was proper, we affirm the
judgment of the trial court as modified to clarify that the dismissal
is without prejudice.

http://www.tba.org/tba_files/TCA/2005/harmatz72005.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/2005/harmatz_dis72005.pdf

PENNY CAROL FLETCHER MORGAN v. BENJAMIN LOYAL MORGAN

Court:TCA

Attorneys:                          

Stuart M. Breakstone, Zachary M. Moore and Kathy D. Baker, Memphis,
Tennessee, for the appellant, Benjamin Loyal Morgan.

Jeffrey Jones, Bartlett, Tennessee, for the appellee, Penny Carol
Fletcher Morgan.

Judge: FARMER

First Paragraph:

This appeal arises from the trial court's order designating Mother the
primary residential parent of the parties' minor child and awarding
Father less than equal parenting time. We affirm.

http://www.tba.org/tba_files/TCA/2005/morganp72005.pdf

LINDA SMALLWOOD, ET AL. v. JESSICA MANN

Court:TCA

Attorneys:                          

William D. Bowen, Milan, Tennessee, for the appellant, Jessica Mann.

Mark L. Agee and Jason C. Scott, Trenton, Tennessee for the appellees,
Linda Smallwood and William Smallwood on behalf of John Smallwood.

Judge: FARMER

First Paragraph:

This appeal arises from a petition to establish visitation filed by
the paternal grandparents on behalf of themselves and the father of
the minor child. Following a hearing, the juvenile court entered an
order wherein it found that the grandparents had failed to establish
the statutory requirements for grandparent visitation. The juvenile
court granted the father shared parenting time. However, the order
provided that, if the father was unable to exercise his visitation for
one full month due to his service in the military, the grandparents
were granted the power to exercise the father's visitation for the
last full weekend of any such calendar month. From this order, the
mother appeals. For reasons stated herein, we reverse in part, affirm
in part, and remand the judgment of the juvenile court.

http://www.tba.org/tba_files/TCA/2005/smallwoodl72005.pdf

ALMA EDNA SMITH v. DON EDWARD SMITH

Court:TCA

Attorneys:                          

John D. Lockridge, Knoxville, Tennessee, for the Appellant, Don Edward
Smith.

David H. Stanifer, Tazewell, Tennessee, for the Appellee, Alma Edna
Smith.

Judge: SWINEY

First Paragraph:

Alma Edna Smith ("Wife") sued Don Edward Smith ("Husband") for
divorce. The Trial Court entered its Final Decree on July 20, 2004,
finding and holding, in part, that both parties were entitled to a
divorce and that Wife was to be awarded various items of personal
property and the marital home with Husband to assume the indebtedness
on this property. Husband received two other parcels of real property
and certain items of personal property. Husband appeals the division
of property. We modify the Trial Court's property division in this
short duration marriage as it concerns the marital home, and we affirm
as so modified.

http://www.tba.org/tba_files/TCA/2005/smitha72005.pdf

ANDRE D. BANKS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gary F. Antrican, District Public Defender, and Kari I. Weber,
Assistant Public Defender, for the appellant, Andre D. Banks.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Colin A. Campbell, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner challenges the denial of post-conviction relief,
specifically contending that trial counsel was ineffective in
guaranteeing that he would be sentenced to a boot camp program when he
was statutorily ineligible for it. Upon review, we agree with the
post-conviction court that counsel did not guarantee boot camp but
stated that it was a possibility, based upon the judge's
recommendation that the petitioner be admitted to the program.
Moreover, the petitioner's responses during the plea colloquy
indicated that the petitioner understood the charges he pled to and
the nature and consequences of his pleas. Therefore, we affirm the
denial of post-conviction relief.

http://www.tba.org/tba_files/TCCA/2005/banksa72005.pdf

STATE OF TENNESSEE v. JAMES T. BRACKINS

Court:TCCA

Attorneys:                          

G. Kenneth Gilleland, Sevierville, Tennessee, for the appellant, James
T. Brackins.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant
Attorney General; Al Schmutzer, Jr., District Attorney General; Kevin
Hawkins, Assistant District Attorneys General, for the appellee, State
of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, James T. Brackins, pled guilty to robbery. As part of
the plea agreement, the appellant received a six (6) year sentence.
After a sentencing hearing, the trial court ordered the appellant to
serve the sentence in incarceration. On appeal, the appellant argues
that the trial court erred in denying alternative sentencing. We
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/brackinsj72005.pdf

MICHAEL BRAXTON v. STATE OF TENNESSEE
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

The petitioner, Michael Braxton, has filed a petition for rehearing
pursuant to Rule 39(a), Tennessee Rules of Appellate Procedure, and a
motion for consideration of post-judgment facts. Having carefully
reviewed the matters set out in the petition, we conclude that our
opinion filed on May 31, 2005, shall stand as written. Accordingly,
the petition to rehear and the motion to consider post-judgment facts
are respectfully DENIED.

ORDER
http://www.tba.org/tba_files/TCCA/2005/braxtonm_ord72005.pdf

STATE OF TENNESSEE v. LINDA NELL CULVER

Court:TCCA

Attorneys:                          

Victoria L. DiBonaventura, Paris, Tennessee (at trial); H. Reid
Poland, III and Gregory D. Smith, Clarksville, Tennessee (on appeal),
for the appellant, Linda Nell Culver.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Robert Radford, District Attorney General;
and Steve L. Garrett, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is a direct appeal from convictions on a jury verdict of sale of
a Schedule II controlled substance, a Class C felony, and sale of a
Schedule III controlled substance, a Class D felony. See Tenn. Code
Ann. B 39-17-417(c)(2) and (d)(1). The trial court determined the
Defendant to be a Range II, multiple offender and imposed nine- and
seven-year sentences to be served concurrently in the Tennessee
Department of Correction (TDOC). The Defendant argues three issues on
appeal: 1) the chain of custody was not sufficiently established to
admit into evidence the drugs involved in the sales; 2) the two
separate drug sale charges should have been merged into a single
conviction; and 3) the sentences imposed were excessive due to the
trial court's failure to consider a mitigating factor. We affirm the
judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/culverl72005.pdf

STATE OF TENNESSEE v. PETER ALEXANDER GRAVES

Court:TCCA

Attorneys:                          

Joseph P. Atnip, District Public Defender, Dresden, Tennessee, for the
appellant, Peter Alexander Graves.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and Kevin McAlpin, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is a direct appeal as of right from a conviction on a jury
verdict of possession of .5 grams or more of cocaine with intent to
sell or deliver, and possession of not less than one-half ounce nor
more than ten pounds of marijuana with intent to sell or deliver. The
trial court sentenced the Defendant as a Range II, multiple offender
to fifteen years for the cocaine conviction and three years for the
marijuana conviction, to be served concurrently in the Tennessee
Department of Correction (TDOC). The Defendant argues two issues on
appeal: 1) the evidence was insufficient to find him guilty on both
charges, and 2) the trial court erred in imposing an excessive
sentence. We affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/gravesp72005.pdf

STATE OF TENNESSEE v. DONALD WAYNE JOINER

Court:TCCA

Attorneys:                          

Gene Scott, Jr., Johnson City, Tennessee, for the Appellant, Donald
Wayne Joiner.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and B. Todd Martin, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Donald Wayne Joiner,1 appeals the sentencing decision
of the Sullivan County Criminal Court following revocation of
probation. In July 2001 and July 2002, Joiner was convicted of
multiple felony and misdemeanor offenses, resulting in an effective
thirteen-year sentence in confinement with the Department of
Correction. On October 28, 2003, while still an inmate in the Sullivan
County Jail, Joiner escaped from confinement. At the time of Joiner's
escape, in addition to the thirteen-year sentence, he was also under
an effective eighteen-year suspended sentence, which was imposed
consecutively to the thirteen-year sentence of confinement. Based upon
Joiner's escape, his eighteen-year suspended sentence was revoked. On
appeal, Joiner argues that the trial court abused its discretion by
ordering confinement of the eighteen-year sentence instead of
reinstating his probation. After review, we find no error and affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/joinerd72005.pdf

LABRYANT KING v. STATE OF TENNESSEE
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

In this case, the Appellant, LaBryant King, has filed a Petition to
Rehear. After thorough review of the petition, it is hereby ordered
that the petition is denied.

ORDER
http://www.tba.org/tba_files/TCCA/2005/kingl_ord72005.pdf

ANDRE LAMONT MAYFIELD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Andre Mayfield, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Dan Hamm, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the denial of his habeas corpus petition,
contending that: the trial court did not have jurisdiction to allow
him to withdraw his guilty pleas; and (2) the judgments and sentences
violated his right to due process. Upon review, we conclude that the
petitioner's classification as a multiple rapist is an operation of
law and does not require any notice to the petitioner or any further
proceedings post-trial. As such, the convictions and sentences are not
void, and we affirm the denial of habeas relief.

http://www.tba.org/tba_files/TCCA/2005/mayfielda72005.pdf

STATE OF TENNESSEE v. JULIO CESAR HERNANDEZ SALINAS

Court:TCCA

Attorneys:                          

Theodora A. Pappas, Nashville, Tennessee, for the appellant, Julio
Cesar Hernandez Salinas.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and John C. Zimmerman and Katy Hagan, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Julio Cesar Hernandez Salinas, was convicted of
conspiracy to deliver more than 70 but less than 300 pounds of a
Schedule VI controlled substance, marijuana, and sentenced as a Range
I, standard offender to eleven years in the Department of Correction.
On appeal, he argues the trial court erred by: (1) denying his motion
to suppress on the basis that he lacked standing; (2) not allowing
defense counsel, during voir dire, to ask prospective jurors about
their involvement in religious and social organizations; (3)
permitting the State to question a trial witness as to the defendant's
prior bad acts; and (4) imposing a sentence of eleven years. Finding
no reversible error, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/salinasj72005.pdf

STATE OF TENNESSEE v. STEPHEN ANTHONY SCOTT
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

The appellant, Stephen Anthony Scott, has filed a petition for
rehearing, pursuant to Rule 39 of the Tennessee Rules of Appellate
Procedure to have this Court reconsider its opinion previously filed
in this case on June 7, 2005. Specifically, the appellant urges this
Court to revisit its ruling that the trial court properly applied
sentence enhancement to count seven of his convictions. In his
petition, the appellant contends that this Court misconstrued or
"overlooked" his argument, though he admits that his argument was
inartfully drawn in his appellate brief, stating, "the issue is not as
precisely stated as it should have been."

ORDER
http://www.tba.org/tba_files/TCCA/2005/scotts_ord72005.pdf

STATE OF TENNESSEE v. CHRISTOPHER LANCE SHOCKLEY

Court:TCCA

Attorneys:                          

Edward S. Ryan, Nashville, Tennessee, for the appellant, Christopher
Lance Shockley.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Brian Holmgren, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Christopher Lance Shockley, pled guilty in the Davidson
County Criminal Court to four counts of aggravated sexual battery, a
Class B felony. The trial court sentenced him as a Range I offender to
eight years at 100% on each count and ordered that two of the
sentences be served consecutively, for an effective sentence of
sixteen years in the Department of Correction. The sole issue the
defendant raises on appeal is whether the trial court erred by
ordering consecutive sentences. Following our review, we conclude that
the record supports the imposition of consecutive sentencing.
Accordingly, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/shockleyc72005.pdf

STATE OF TENNESSEE v. CHRISTOPHER T. STARNES

Court:TCCA

Attorneys:                          

David M. Hopkins, Nashville, Tennessee, for the appellant, Christopher
T. Starnes.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Rob McGuire, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, Christopher T. Starnes, pled guilty to one count of
sexual battery and two counts of attempted aggravated robbery. He was
sentenced to an aggregate sentence of ten years with one year to be
served in confinement and the balance to be served on intensive
probation. Thereafter, the trial court revoked the defendant's
probation and ordered him to serve the remainder of his sentence in
confinement. On appeal, the defendant challenges the trial court's
revocation of his probation. Upon review, we affirm the judgments of
the trial court.

http://www.tba.org/tba_files/TCCA/2005/starnesc72005.pdf

STATE OF TENNESSEE v. MITCHELL D. STRONG

Court:TCCA

Attorneys:                          

Haylee Bradley, Assistant District Public Defender, Ashland City,
Tennessee, for the appellant, Mitchell D. Strong.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Lisa Donegan, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

Appellant, Mitchell D. Strong, appeals the sentencing decision of the
Humphreys County Circuit Court following the revocation of his
community corrections sentence. We affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/2005/strongm72005.pdf

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