Court Rules Completed Diversion Not a ‘Conviction’

In a unanimous opinion, the Tennessee Supreme Court today ruled that a guilty plea expunged after successful completion of judicial diversion is not considered a conviction, and should not be subject to review in post-conviction proceedings. The ruling came in the case of Jose Rodriguez, a Mexican citizen, who entered a guilty plea in 2007 for patronizing a prostitute in the Nashville area. He was then placed on judicial diversion. Rodriguez successfully completed his diversion and his criminal record was expunged in January 2010. The Tennessee Supreme Court found that since Rodriguez was not “convicted,” he was not eligible for post-conviction relief, which he had sought to avoid any negative immigration consequences of his guilty plea. The Chattanoogan has more.

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.

01 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
04 - 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









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TN Supreme Court

JOSE RODRIGUEZ A.K.A. ALEX LOPEZ v. STATE OF TENNESSEE

Court: TN Supreme Court

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Solicitor General; James E. Gaylord, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the State of Tennessee.

Sean Lewis, Nashville, Tennessee, for the petitioner, Jose Rodriguez.

Elliott Ozment, Tricia R. Herzfeld, and R. Andrew Free, Nashville, Tennessee, for the amici curiae, Tennessee Law Professors and the National Immigration Project of the National Lawyers Guild.

Judge: HOLDER

The petitioner, a Mexican citizen, entered a guilty plea to the misdemeanor charge of patronizing prostitution and was granted judicial diversion. After successfully completing his diversion, the petitioner’s criminal record was expunged. More than three years after the entry of his plea, the petitioner filed a petition for post-conviction relief alleging that trial counsel failed to advise him of the potential immigration consequences of his guilty plea as required by Padilla v. Kentucky, 559 U.S. 356 (2010). The trial court dismissed the petition as time-barred. The Court of Criminal Appeals held that a petitioner whose record has been expunged may not obtain post-conviction relief and affirmed the trial court’s summary dismissal of the petition. We granted the petitioner permission to appeal. Following our review, we conclude that a guilty plea expunged after successful completion of judicial diversion is not a conviction subject to collateral review under the Post-Conviction Procedure Act. We therefore affirm the judgment of the Court of Criminal Appeals.


TN Court of Appeals

IN RE GABRIEL B. ET AL.

Court: TN Court of Appeals

Attorneys:

Steven B. Ward, Madisonville, Tennessee, for the appellant, Donna B.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary Byrd Ferrara, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Judge: FRIERSON

This is a termination of parental rights case, focusing on Gabriel B., Gracie B., and Zachary B., the minor children (“Children”) of Donna B. (“Mother”) and Richard B. (“Father”). The Children were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on June 9, 2011, after they had been found in the care of an inappropriate caregiver while Mother was out of state. On April 19, 2012, DCS filed a petition to terminate the parental rights of Mother and Father. Father subsequently surrendered his parental rights to the Children and is not a party to this action. Following a bench trial held on November 9, 2012, and January 4, 2013, the trial court granted the petition upon its finding, by clear and convincing evidence, that (1) Mother had abandoned the Children by failing to provide a suitable home, (2) Mother had failed to substantially comply with the permanency plans, (3) the conditions causing the removal of the Children into protective custody persisted, and (4) Mother’s mental condition was impaired to the point of being unable to provide for the further care and supervision of the Children. The court further found, by clear and convincing evidence, that termination of Mother’s parental rights was in the Children’s best interest. Mother has appealed. Discerning no error, we affirm.


IN RE: TY-SHAWN H.

Court: TN Court of Appeals

Attorneys:

James J. Lonon, Johnson City, Tennessee, for the appellant, Frank G.

Robert E. Cooper, Jr., Attorney General and Reporter; and, Mary Byrd Ferrara, Assistant Attorney General, for the appellee, Tennessee Department of Children’s Services.

Judge: SWINEY

The Juvenile Court for Johnson City (“the Juvenile Court”) terminated the parental rights of Frank G. (“Father”) to the minor child Ty-Shawn H. (“the Child”) pursuant to Tenn. Code Ann. § 36-1-113(g)(6). Father appeals the termination of his parental rights to this Court. We find and hold that clear and convincing evidence existed to terminate Father’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(6), and that clear and convincing evidence existed that the termination was in the Child’s best interest. We, therefore, affirm the Juvenile Court’s order terminating Father’s parental rights to the Child.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. VERNICA SHABREE CALLOWAY

Court: TN Court of Criminal Appeals

Attorneys:

C. Dawn Deaner, District Public Defender (on appeal and at trial); and James P. McNamara, Assistant Public Defender (at trial), for the appellant, Vernica Shabree Calloway.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren and Katrin Miller, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Vernica Shabree Calloway, was convicted of aggravated child neglect, a Class A felony, and reckless aggravated assault, a Class D felony. The trial court merged the assault conviction with the neglect conviction and sentenced the defendant as a violent offender to twenty-five years in the Department of Correction. On appeal, the defendant argues that: (1) the evidence is insufficient to support her convictions; (2) the trial court erred by not requiring the State to make an election of offenses; (3) the trial court erred in not instructing the jury that it could convict her of either Count 1 or Count 2 of the indictment, but not both; (4) her convictions violate double jeopardy; (5) the trial court erred in admitting expert opinion testimony after the State violated the trial court’s order with respect to the information that could be provided to the expert; (6) the trial court erred in admitting as an exhibit a “learned treatise”; (7) the trial court erred in admitting unfairly prejudicial and irrelevant evidence; (8) the trial court erred by denying her motion to redact portions of her interviews with the police and the Department of Children’s Services (“DCS”); (9) the trial court erred in admitting testimony from the victim’s foster mother; and (10) the trial court imposed an excessive sentence. Following our review, we remand for entry of a single judgment setting the defendant’s release eligibility at 30%. We conclude that all of the defendant’s other issues are without merit and affirm the judgment of the trial court.


STATE OF TENNESSEE v. GERALD ANTHONY HUMPHREY

Court: TN Court of Criminal Appeals

Attorneys:

Olin J. Baker, Charlotte, Tennessee, for the appellant, Gerald Anthony Humphrey.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; Dan M. Alsobrooks, District Attorney General; and Brooke M. Orgain and Margaret F. Sagi, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Gerald Anthony Humphrey, pled guilty in the Dickson County Circuit Court to DUI, first offense, and was sentenced to eleven months, twenty-nine days in the county jail, with seven days to serve prior to release on supervised probation. As a condition of his guilty plea, he attempted to reserve certified questions of law regarding the constitutionality of the “loud muffler” statute, Tennessee Code Annotated section 55-9-202, under which the arresting officer initiated the traffic stop of his vehicle. Based on our review, we conclude that the defendant failed to meet his burden to properly certify his questions of law. Accordingly, we dismiss the appeal for lack of jurisdiction.


STATE OF TENNESSEE v. EDWARD SHANNON POLEN

Court: TN Court of Criminal Appeals

Attorneys:

Patrick G. Frogge, Nashville, Tennessee, for the appellant, Edward Shannon Polen.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and James Milam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Edward Shannon Polen (“the Defendant”) pleaded guilty to two counts of theft over $60,000 and two counts of securities fraud. After a sentencing hearing, the trial court ordered the Defendant to serve an effective sentence of twelve years in prison. In this appeal, the Defendant challenges the length and manner of service of his sentence. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.


STATE OF TENNESSEE v. DALE SAMUEL WAGGONER

Court: TN Court of Criminal Appeals

Attorneys:

Jason Chaffin, Nashville, Tennessee (on appeal) and Harry Christensen, Lebanon, Tennessee (at trial), for the appellant, Dale Samuel Waggoner.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Megan M. King and Jeff P. Burks, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

Following a jury trial, the defendant, Dale Samuel Waggoner, was convicted of aggravated robbery, a Class B felony, and being a felon in possession of a handgun, a Class E felony. He was sentenced to concurrent terms of eighteen years, to be served at eighty-five percent, for the aggravated robbery conviction and three years, to be served at thirty-five percent, for the felon in possession of a handgun conviction. On appeal, he argues that the evidence is insufficient to support his convictions. Based upon our review, we affirm the judgments of the trial court.


Nashville AG, PD Plead for More Staff

Public Defender Dawn Deaner said her office is suffering from crushing caseloads and losing too many attorneys to higher-paying jobs during a budget pitch to Mayor Karl Dean Wednesday. Deaner asked for an additional $423,000 mostly to help bring salaries in line with state lawyers. Deaner’s counterpart, District Attorney Torry Johnson, asked for some $240,000 to increase attorney salaries, in addition to hiring a new social worker to help reach domestic violence victims within 48 hours of a crime. The Tennessean has more.


Special Judge Assigned to Joe Brown Case

Senior Judge Paul Summers has been assigned to preside over former judge Joe Brown’s contempt-of-court hearing, according to a spokesperson with the Tennessee Administrative Office of the Courts. The hearing, which was originally scheduled for Friday, was canceled when all 10 criminal court judges in the 30th Judicial District recused themselves, citing Brown’s former role as a Shelby County judge. The Memphis Commercial Appeal has the story.


Knox Criminal Courts Seek Comments on Rules Changes

The Knox County Criminal Court is seeking written comments on proposed changes to its rules, which have not been amended since 1989. Judges, lawyers, bar associations, members of the public and any other interested parties are invited to submit comments by April 11 to Knoxville Bar Association (KBA) Executive Director Marsha S. Wilson, P.O. Box 2027, Knoxville, TN 37901, or by email to mwilson@knoxbar.org or by fax to (865) 523-5662.  All comments received will be posted on the KBA’s Criminal Justice Section's webpage.


Davidson County Sheriff Considers Moving Jails

Davidson County Sheriff Daron Hall says a big move could save taxpayers big money, and according to WSMV News Channel 4, he is considering a plan to move the city's two jails from downtown Nashville to a less expensive location, possibly in the Antioch or Harding Place area. The Hill Detention Center, which holds about 500 inmates, is located on Second Ave. North beneath the sheriff's administrative offices. The Criminal Justice Center, which holds another 800 inmates, is located across the street from the criminal courts building. Hall is asking county commissioners for $5 million to study the idea.


CBA to Produce 2 Newspaper Columns

The Chattanooga Bar Association (CBA) will begin publishing two new columns in the Hamilton County Herald starting this month. Each piece will appear monthly, and cover a different aspect of the bar. CBA President Tim Mickel, an attorney at Evans Harrison Hackett, will profile some of the association’s notable past members as well as the historical milestones of local judges and lawyers. His column is titled “Mirable dictu,” a Latin phrase Virgil used when telling a story about a hero that means “wonderful to relate.” In addition, CBA Executive Director Lynda Minks Hood will be contributing a new column with information about current bar events, new member benefits and other topics of interest.


Former PD Opens New Practice in Tazewell

Former Eighth Judicial District Assistant Public Defender Carla Fortner Brewer has opened a law practice in downtown Tazewell after taking eight months off to spend with her two-year old daughter. Brewer spent nearly five years in the public defender’s office, first as a law clerk and then as assistant public defender. Her new law office is located on Main Street, between the Rome Cardwell Park and the Sports Center. Business hours are Monday through Friday, from 8:30 a.m. to 4:30 p.m. The office can be reached at (423) 526-5640. The Claiborne Progress has more on her story.


Article Poses 3 Questions for Judicial Elections

A feature in this week's Nashville Scene about local judicial elections asks three questions: can a voter really be informed when it comes to judicial elections; why do judicial races involve a party affiliation; and is there an inherent conflict in judges running campaigns?


Memphis Candidates Line Up for Yesterday's Deadline

Following yesterday's noon deadline to submit qualifying papers, the Memphis Daily News has a roundup of uncertified political candidates for Shelby County races. Memphis City Council member Lee Harris is challenging Democratic state Sen. Ophelia Ford in the August primary for Disrtict 29 -- a seat that has held by a member of the Ford family since 1975. Statewide, Gov. Bill Haslam drew three challengers for the August Republican primary for governor, while the Democratic gubernatorial primary has seven candidates. In a separate article, the paper looks at the "filing frenzy" yesterday for several positions.


Incumbents Running Unopposed in 9th District

Criminal Court Judge E. Eugene Eblen, Chancellor Frank V. Williams III and District Attorney General Russell Johnson have their 9th Judicial District jobs for another eight years, as no opponents qualified for their seats in the Aug. 7 general elections before yesterday’s noon deadline. Public Defender Joe M. Walker is being challenged by current Roane County Circuit Court Clerk Kim R. Nelson. William T. "Tom" McFarland, now the Roane County attorney, and Mike S. Pemberton are running for the Circuit Court post now held by Russell Simmons, who is retiring effective Aug. 30. Visit Knoxnews for more election coverage.


Cleveland CAC Benefit Set for April 12

The Cleveland Child Advocacy Center will hold a benefit April 12 at the Cleveland Family YMCA from 7 to 9 p.m. There will be food, music and tables where local political candidates can meet voters and hand out campaign literature. The Cleveland Daily Banner has the details.


LAET’s Autocross Event Happens May 3

Legal Aid of East Tennessee will host a fundraiser at Bristol Motor Speedway on May 3. The event, SOLO Autocross, allows drivers to tackle a precision course and compete against times posted by other participants, the Times News reports. The event is open to the public. A $35 fee will be charged for those who want to race. Other fees include $10 to ride along with drivers and $5 to get the whole family in to watch the races. Competitor check-in begins at 8 a.m. A drivers' meeting is at 10:30 a.m., with the first car to start at 11 a.m. The competitive portion of the event will conclude by 4 p.m., at which time others may take laps on the track. Proceeds from the event will be split between Legal Aid and Speedway Children's Charities.


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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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