Tennessee to be Pilot Site for Juvenile Tracking Plans

The Tennessee’s Department of Children’s Services (DCS) is partnering with two national groups to improve the collection and analysis of recidivism data.The Council for State Governments Justice Center and the National Reentry Resource Center will join the DCS Juvenile Justice Division on the project, with the goal of improving outcomes for youth who come into contact with the juvenile justice system. State Senate Majority Leader Mark Norris on Monday applauded the move, saying the “project is a significant opportunity … to improve the way we are tracking these youth.” Chattanoogan.com has more on the story.

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
01 - 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









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TN Workers Comp Appeals

TEDDY WAYNE WILCUTT V. CAM ELECTRIC SYSTEMS ET AL.

Court: TN Workers Comp Appeals

Attorneys:

P. Allen Phillips, Jackson, Tennessee, for the appellant, CAM Electric Service.

Jeffrey A. Garrety, and Charles L. Holliday, Jackson, Tennessee, for the appellee, Teddy Wayne Wilcutt.

Judge: HARRIS

An employee sustained work-related injuries to his head, neck, and shoulders after being struck by a falling ladder. The trial court awarded the employee 60% permanent partial disability to the body as a whole. The employer appealed, arguing that the employee failed to prove causation. After carefully reviewing the record, we affirm the trial court’s judgment.


TN Court of Appeals

IN RE ADOPTION OF JOSHUA M. M. AND ZACHARY M.
With concurring opinion.

Court: TN Court of Appeals

Attorneys:

Katie B. Klinghard, Clarksville, Tennessee, for the Respondent/Appellants, Kelly M. and Matthew M.

Sharon T. Massey, Clarksville, Tennessee, for the Petitioner/Appellees, Tracy K. and Karen K.

Judge: KIRBY

The appeal involves a petition for termination of parental rights and adoption. The children at issue were removed from their parents’ Wisconsin home in 2005 based on abuse and neglect. Since 2006, the children have been living with the petitioners, the paternal aunt and her husband. The petitioners filed the instant petition in Tennessee to terminate the parental rights of both the mother and the father and to adopt the children. After a trial, the trial court held that the petitioners had established three grounds for termination: (1) abandonment for failure to visit, (2) abandonment for failure to support, and (3) persistent conditions. It also found that termination of parental rights would be in the children’s best interest, and so terminated the parental rights of both biological parents. The parents now appeal. Discerning no error, we affirm.


TN Court of Criminal Appeals

SCOTT CLEVENGER V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Pepper Bowser, Rutledge, Tennessee, for the appellant, Scott Clevenger.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; James B. Dunn, District Attorney General; and Tonya D. Thornton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In this appeal, the Petitioner, Scott Clevenger, contends that he received ineffective assistance of counsel at trial. Specifically, he alleges that trial counsel failed to meet with him an adequate amount of times and failed to give him a copy of the discovery materials so that he could make an informed decision about his case. After considering the record and the applicable authorities, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. PEDRO IGNACIO HERNANDEZ

Court: TN Court of Criminal Appeals

Attorneys:

Jeffrey A. DeVasher (on appeal); and Aimee Solway and Randi Hess (at trial), Assistant District Public Defenders, for the appellant, Pedro Ignacio Hernandez.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kristen Menke and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Pedro Ignacio Hernandez, appeals from his Davidson County Criminal Court jury convictions of three counts of rape of a child, one count of attempted rape of a child, and five counts of aggravated sexual battery, claiming that the trial court erred by deeming him competent to stand trial; that the trial court erred by denying a motion to suppress his pretrial statement to police; that the trial court erred by denying a motion to suppress the results of DNA testing conducted using DNA that was unconstitutionally obtained; that the trial court erred by allowing the State to present evidence that the defendant displayed a photograph of his genitalia to the victim; that the evidence was insufficient to support two of the defendant’s convictions of rape of a child; that dual convictions of rape of a child in count one and aggravated sexual battery in count twelve were prohibited by principles of due process; and that the trial court erred by imposing consecutive sentences and by sentencing the defendant as a Range II offender. Because the trial court erroneously imposed a Range II sentence for the defendant’s convictions of rape of a child in violation of constitutional ex post facto protections, the sentence for each conviction of rape of a child is modified from a sentence of 28 years to a sentence of 25 years. The judgments of the trial court are affirmed in all other respects.


STATE OF TENNESSEE v. JANET LYNN JARED

Court: TN Court of Criminal Appeals

Attorneys:

John Phillip Parsons, Cookeville, Tennessee, for the appellant, Janet Lynn Jared.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Randy York, District Attorney General; and Beth Willis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Janet Lynn Jared, was convicted of theft over $10,000. She was sentenced to six years, with the sentence to be served on probation if she paid restitution of over $82,000 to her victims. To satisfy the judgment, she sold the family farm, but the sale resulted in net proceeds of only about $48,000. The State subsequently filed a motion to order that the remaining amount of restitution be paid. After several hearings, the Criminal Court ordered that Appellant pay the remainder of her obligation at the rate of $500 a month. Appellant does not challenge the amount of restitution ordered by the Criminal Court, but she contends on appeal that the Court erred by ordering a payment schedule without considering her means and ability to pay, in violation of Tennessee Code Annotated section 40-35-304(d). The State asks us to dismiss this appeal because under Tennessee Rule of Appellate Procedure 3(b) there is no appeal as of right from a decision to modify the conditions of probation. We agree with the State. This appeal is dismissed.


STATE OF TENNESSEE v. BURTON W. WEBB

Court: TN Court of Criminal Appeals

Attorneys:

Jerry H. Summers (on appeal) and Benjamin McGowan (at the guilty plea and sentencing hearings and on appeal), Chattanooga, Tennessee, for the appellant, Burton W. Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William H. Cox, III, District Attorney General; and Kate Lavery, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION

Judge: TIPTON

The Defendant, Burton W. Webb, pleaded guilty to three counts of reckless aggravated assault, Class D felonies, two counts of vehicular assault, Class D felonies, and driving under the influence (DUI) second offense, a Class A misdemeanor. See T.C.A. §§ 39-13-102, 39- 13-106, 55-10-401 (2010). The trial court merged the DUI conviction with the vehicular assault convictions and sentenced the Defendant as a Range I, standard offender to two years for each reckless aggravated assault conviction and to three years for each vehicular assault conviction. The court ordered consecutive service of the vehicular assault convictions, for an effective six-year sentence. On appeal, the Defendant contends that the trial court erred (1) by applying certain enhancement factors to the vehicular assault convictions, (2) by denying alternative sentencing, and (3) by ordering consecutive sentences. Although we conclude that the trial court erroneously applied two enhancement factors, the lengths and the manner of service of the sentences are proper. We also conclude that the trial court erred by failing to state its factual findings underlying its conclusion that consecutive sentences were warranted pursuant to State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). We remand the case in order for the court to state its factual findings on the record.


STATE OF TENNESSEE v. TERRY SCOTT YARBROUGH

Court: TN Court of Criminal Appeals

Attorneys:

Nicholas W. Utter (on appeal); and Thomas Overton (at hearing), Nashville, Tennessee, for the appellant, Terry Scott Yarbrough.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Elizabeth Foy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Terry Scott Yarbrough, pleaded guilty to driving under the influence (“DUI”), first offense, and received a sentence of eleven months, twenty-nine days, with all but fortyeight hours suspended to supervised probation. As a condition of the plea agreement, appellant reserved the right to certify a question of law challenging the trial court’s denial of a motion to suppress. Following our review, we conclude that we do not have jurisdiction to address the certified question of law because it does not comply with the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2) and State v. Preston, 759 S.W.2d 647 (Tenn. 1988). Accordingly, the appeal is dismissed.


Immigrant Advocates ‘Baffled’ by Haslam Letter

Immigrant advocates say they are baffled by a letter that Gov. Bill Haslam sent to President Barack Obama saying his administration should have been informed about the placement of 760 unaccompanied immigrant children in Tennessee. According to the Tennessee Immigrant and Refugee Rights Coalition, unaccompanied minors have been placed in households with approved “sponsors” — typically their own families and relatives — for years. “They’re not getting dropped off. They’re getting placed with their mom, dad, aunt or uncle,” says a spokesperson for the group. The Tennessean has more on the story.


National Entertainment Firm Acquires Nashville Boutique

The entertainment law firm of Ritholz Levy Sanders Chidekel & Fields, which has offices in New York and Los Angeles, has acquired the Nashville boutique firm of Petree Law. Current Petree lawyers Chip Petree and Matt Cottingham will run the Nashville office for Ritholz Levy, which represents artists such as CeeLo Green and Snoop Dogg as well as companies such as Pepsi and Tommy Hilfiger. The local firm will remain at 1221 Sixth Ave. North. The Nashville Business Journal has more.


New Approach Suggested as LegalZoom Expands

After earning a legal victory in South Carolina and fending off all but one of eight other lawsuits, LegalZoom “is poised to significantly broaden the range of services it offers consumers and small businesses,” the ABA Journal reports. Expect to see a continuum of products and services, from simple forms to full-fledged legal advice, the Journal says. The developments are leading some to argue that the profession should stop trying to shut down these services and instead focus on how best to regulate them.


Justices Release New Ad, Promise ‘Major’ Announcement for Thursday

Three Tennessee Supreme Court justices standing for retention continue to travel the state making the case for their election. Justice Cornelia Clark met with the members of the Fayetteville Bar Association at an event sponsored by the Lincoln County Chancery Court, while Justice Sharon Lee visited Bradley County and thanked 10th District Circuit Court Judge Mike Sharp for his support. Lee also gave an interview to WTNB TV in Cleveland. The justices' campaign today announced a new TV ad that will begin running tomorrow. “Whopper” addresses claims that they are soft on crime and support Obamacare. Finally, all three will be in Knoxville on Thursday at the Bistro at the Bijou from 5 to 7 p.m. for a “major campaign announcement."


Paper: Obamacare Issue is ‘Manufactured Bogeyman’

An editorial from the Mountain Press this past Sunday encourages voters to “see through the ploy” by some to link Tennessee’s Supreme Court justices to the national health care law. The editors argue that by tapping into the public’s disdain for Obamacare, opponents of the justices have created a “manufactured bogeyman” that distracts voters from any real issues that might be considered in the retention election.


House to Vote on Scaled Down Border Response

House Republicans unveiled a scaled down bill Tuesday to address the immigration crisis on the U.S.-Mexico border by sending in National Guard troops and speeding migrant youths back home, the Associated Press reports. The bill would cost $659 million through the final two months of this fiscal year, less than the $3.7 billion requested by President Barack Obama. The measure also includes policy changes that would allow unaccompanied youths who have been arriving at the U.S. border to be sent back home without judicial hearings. House leaders predicted the bill would be on the floor on Thursday. If it does pass the House, the bill is certain to be rejected by the Democratic-run Senate, which was set to take a procedural vote on its own border package Wednesday. WRCB TV has the AP story.


TBA Co-Hosting Reception for 3 Jackson Judges

The TBA is joining with the Jackson Madison County Bar Association, the Anne Schneider Chapter of the Lawyers’ Association for Women and Memphis Association of Women Attorneys to host a reception for three appellate judges on Aug. 21 in Jackson. The event will honor Court of Appeals Judge Holly M. Kirby, who will step down from the court to take a seat on the Tennessee Supreme Court, as well as Judges Judge David R. Farmer and Alan E. Highers, who are retiring from the court at the end of August. The event will run from 4:30 to 6:30 p.m. at the Jackson Country Club, 31 Jackson Country Club Dr. For more information or questions contact Brandon Gibson with Pentecost & Glenn at (731) 668-5995.


Sheriff’s Office Responsible for ICE Checks

A story in yesterday’s issue of TBA Today indicated that metro Nashville officers are responsible for checking arrestees’ immigration records under the Secure Communities program. Instead, it is the Davidson County Sheriff’s Department that is participating in the federal program and is responsible for conducting the checks.


Services Announced for Peter Halverstadt

A memorial service to celebrate the life of Nashville lawyer Peter Halverstadt will be held Aug. 9 from 10 to 11:30 a.m. at the Second Presbyterian Church, 3511 Belmont Blvd., Nashville 37215. A wake will follow from noon to 2 p.m. at Maggiano's, 3106 West End Ave., Nashville, 37203. In lieu of flowers, the family requests contributions be made to Guardianship and Trust Corp., a non-profit organization that provides financial management services for those unable to make informed decisions on their own behalf. The organization is located at 95 White Bridge Pike, Nashville 37205. Halverstadt died July 24 at the age of 46.


Wife of Former TBA President Dies at 90

Janet Graf Tate, the wife of former TBA President S. Shepherd "Shep" Tate, died Sunday (July 27) at 90. A native of Cincinnati, Janet met and married Tate while he was clerking for Judge John D. Martin in Cincinnati. The couple later moved to Memphis, where she was involved in a number of civic organizations and founded the Mental Health Society of Memphis and Shelby County. Visitation will be from 5 to 7 p.m. on Wednesday in the parish hall at Grace-St. Luke’s Episcopal Church, 1720 Peabody Ave., Memphis 38104. Funeral services will be at 11 a.m. on Thursday at Grace-St. Luke’s. Burial at Elmwood Cemetery will be private. In lieu of flowers, the family requests that memorials be made to The Church Health Center, to Grace-St. Luke’s Episcopal Church or to a charity of the donor’s choice. The Commercial Appeal has more.


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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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