Be Wary of Scam Emails

A number of TBA members and others received emails today that appear to be from the Tennessee Bar Association asking for password and other information. These emails did not come from the TBA, so please do not click on any links or enter the information requested. The scam email have “Important Update” in the subject line and say that you can add additional security measures to your account by clicking on a link. Do not do this. The scam appears similar to one reported earlier this week at the New Hampshire Bar Association.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
05 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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.


TN Court of Appeals

IN RE ESTATE OF MITTIE T. ALEXANDER

Court: TN Court of Appeals

Attorneys:

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Teresa Alexander.

Dan R. Alexander and Susan Bratton Evans, Nashville, Tennessee, for the appellee, Starlene Anderson.

Judge: BENNETT

Conservator filed suit to rescind a pre-conservatorship conveyance of real property by ward to her niece. The jury found in favor of niece and the trial court entered judgment on the jury verdict. Conservator appeals, arguing that the trial court erred in limiting the testimony of her expert witness. Discerning no error, we affirm.


TN Court of Criminal Appeals

BRENDA FAYE BREWINGTON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Vickie Sutton Trull, Gallatin, Tennessee, for the appellant, Brenda Faye Brewington.

Robert E. Cooper, Jr., Attorney General and Reporter, Meredith DeVault, Assistant Attorney General; Lawrence R. Whitley, District Attorney General, and Sallie Wade Brown, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: SMITH

Brenda Faye Brewington, Petitioner, was convicted by a Sumner County jury of two counts of aggravated child abuse of children age eight and under and two counts of child neglect of children under age six. The trial court sentenced Petitioner to an effective sentence of twenty-five years to be served at 100 percent. Petitioner was unsuccessful on direct appeal. State v. Brenda Faye Brewington and Brian Dewayne Brewington, No. M2007-01725-CCAR3- CD, 2009 WL 142321 (Tenn. Crim. App., at Nashville, Jan. 21, 2009). Petitioner subsequently filed a petition for post-conviction relief arguing that she received ineffective assistance of counsel. The post-conviction court denied the petition after an evidentiary hearing. On appeal, Petitioner argues that the post-conviction court erred in denying her petition and that she received ineffective assistance of counsel because her trial counsel was a Sumner County constable at the time he represented her. She argues that his representation was deficient because there is a statutory prohibition on the practice of law by constables in the county for which they serve and that there is an inherent conflict when an attorney is a constable and represents a client for criminal charges. She also argues that this deficiency resulted in prejudice. We conclude that there is no statutory prohibition on the practice of law by a constable. However, such a situation does constitute a conflict so that representation of a client by a constable would be below the competence required of criminal representation. Nonetheless, the post-conviction court did not err in denying the petition because Petitioner was unable to prove that she was prejudiced by the deficient representation provided by trial counsel. Therefore, we affirm the denial of the petition.


STATE OF TENNESSEE v. KENNETH D. HUBANKS

Court: TN Court of Criminal Appeals

Attorneys:

Lance R. Chism, Memphis, Tennessee (on appeal) and Daniel J. Mickiewicz, Memphis, Tennessee (on appeal and at plea hearing), for the Appellant, Kenneth D. Hubanks.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Hansel McCadams, District Attorney General; Eddie N. McDaniel, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

This case presents an appeal to this Court after remand by order of the Tennessee Supreme Court. The Defendant, Kenneth D. Hubanks, appeals the trial court’s denial of his motion to suppress evidence obtained during the execution of a search warrant at his residence. The Defendant entered a plea of nolo contendre to his charges, felony cocaine possesion, felony marijuana possession, and possession of drug parahernalia but reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). In this appeal, the Defendant raises the issue of whether the affidavit upon which the search warrant was issued established probable cause to search his residence. After review, we hold no error occurred. Accordingly, the judgment of the trial court is affirmed.


STATE OF TENNESSEE v. WILLIAM PATRICK PEEBLES

Court: TN Court of Criminal Appeals

Attorneys:

Misty D. Parks, Spring Hill, Tennessee, for the appellant, William Patrick Peebles.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, William Patrick Peebles, and his two co-defendants, were indicted by the Davidson County Grand Jury for three counts of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of use of a firearm during commission of a dangerous felony. After a jury trial, Appellant was convicted of all charges. The trial court sentenced Appellant to an effective sentence of fifty-eight years. On appeal, Appellant argues that the trial court erred in allowing the State to offer in evidence a videotape of an interview conducted by an officer, that the evidence was insufficient to support his convictions, and that the trial court erred in imposing consecutive sentences. After thorough review of the record, we determine that Appellant’s issues have no merit. Therefore, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. DANIEL RAY PRINCE

Court: TN Court of Criminal Appeals

Attorneys:

Melissa L. Thomas, Fayetteville, Tennessee, for the appellant, Daniel Ray Prince.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle Consiglio-Young, Assistant Attorney General; Robert J. Carter, District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Daniel Ray Prince, entered pleas without recommended sentences to one count of burglary of a building other than a habitation and two counts of theft of property valued at $10,000 or more but less than $60,000. The two counts of theft of property merged into one count by operation of law. Following a sentencing hearing, the trial court sentenced appellant as a Range II, multiple offender to two six-year sentences to be served concurrently with each other but consecutively to sentences imposed in other jurisdictions. He appeals the trial court’s sentencing him as a Range II offender and imposing partial consecutive sentences. Discerning no error, we affirm the judgments of the trial court.


JOHN W. SMITH v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

John W. Smith, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter, and Benjamin A. Ball, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State’s motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, John W. Smith, has appealed the Davidson County Circuit Court order dismissing his second petition for writ of habeas corpus in which Petitioner alleged that: (1) his sentence is illegal; and (2) his guilty plea was not knowingly or voluntarily entered. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.


TBJ Details History of Workers' Comp

To understand workers' comp law and all its changes, it helps to have some background. Russell Fowler does just that in the June Tennessee Bar Journal, tracing the concept's roots back to pirates and Prussians.


Group Petitions for TennCare Expansion

A coalition that includes the Tennessee Nurses Association, Tennessee League of Women Voters, Tennessee Health Care Campaign and the Tennessee Justice Center delivered to Gov. Bill Haslam an online petition with more 4,500 signatures urging the governor to offer TennCare services to everyone making 138 percent of the federal poverty level or less, the Tennessean reports. “I don’t care whether the governor calls it Haslamcare or tweaks some changes,” said Mary Headrick, the Tennessee physician who delivered the petition. “We really want these folks to be covered and our services to be preserved.”


Survey Finds Weight Gain a Job Hazard for Lawyers

Lawyers, judges and other legal professionals work in one of the top professions for weight gain, the ABA Journal reports. According to a Career Builder survey of nearly 3700 full time workers, 48 percent of legal professionals reported weight gain in their current jobs.


Educators Push for Immigration Reform

Twenty-one leaders of Tennessee’s colleges and universities have sent letters to U.S. Senators Lamar Alexander and Bob Corker, urging their support for a bipartisan plan that would ensure foreign-born students educated in the U.S. have a clear path to work in this country after graduation. The educators say current immigration policy threatens “America’s pre-eminence as a global center of innovation and prosperity” because of its inability to retain skilled foreign-born graduates. The Chattanooga Times Free Press has the story.


Some Cite Conflicting Laws to Blame in IRS Scandal

The numerous conflicting laws covering the kinds of activities tax-exempt organizations may conduct may be partly to blame for the IRS’ heavy-handed treatment of conservative groups seeking tax-exempt status, the Memphis Daily News reports. The IRS' attempt to enforce those contradictory laws with vague regulations has sown even more confusion, tax lawyers, former agency officials and others agree. "It's hard for groups to understand what the standards are, and different lawyers have different definitions of where to draw the line," said Abby Levine, who dispenses advice on nonprofit status to scores of groups as legal director of the liberal Alliance for Justice.


NALS to Host Silent Auction

The National Association of Legal Professions Nashville Chapter will host its first annual NALS After Hours Silent Auction on July 18 at 6 p.m. The event will be held at Baker Donelson law firm in Nashville. One hundred percent of the proceeds generated at the auction will be donated to the Legal Aid Society of Middle Tennessee and the Cumberlands. For more information, download the event brochure or visit the NALS website.


Road Race Benefits CASA

The 7th Annual CASA Road Race will be held June 22 at Crockett Spring Park in downtown Rogersville. The event will include 8K and mile-long races. All proceeds from the event will benefit CASA for Kids, which serves abused and neglected children in Hawkins County. The event is part of the 2013 Skelton Law Racing Series and is directed by Rogersville attorney Mark Albert Skelton. For information, contact Skelton at (423) 272-4812 or markskelton@markskelton.com. Learn more online at www.RunTriCities.org.


Ruling Extends Ineffective Assistance of Counsel Claims

A recent 5-4 decision by the U.S. Supreme Court extends a ruling it made last year that allowed prisoners to challenge their state convictions in federal court based on the claim that their attorneys were ineffective. The court considered the case Trevina v. Thaler challenging Arizona state law saying that claims of ineffective assistance of counsel had to be raised in a separate post-conviction motion and not in a direct appeal of the original conviction. According to attorney Lee Davis writing in the Chattanoogan, the problem with this approach is that there is no right to an attorney in the post-conviction motion phase, though there is in the direct appeal phase.


Last Chance to Register Online for TBA Convention

Online register for the 2013 TBA Annual Convention closes tomorrow at 5 p.m. Along with 12 hours of premium CLE programming, this year's convention features sessions to help you thrive as a lawyer, as well as an evening out at the Country Music Hall of Fame where you will experience great food and live music to go along with your tour of this internationally renowned center.


 
 

Questions, comments: Email us at TBAToday@tnbar.org

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.


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