Court rules sentencing violated 6th Amendment

The Tennessee Supreme Court today found that a trial court's enhancement of two criminal sentences on the basis of judicially determined facts other than the defendants' prior convictions violated those defendants' constitutional rights under the Sixth Amendment to the U.S. Constitution. The ruling, which came in State of Tennessee v Edwin Gomez et al., also held that the two defendants are entitled to new sentencing hearings and that the government can not use prohibited, judge-determined enhancement factors to increase their sentences beyond the statutory minimum. Read Nashville criminal defense lawyer David Raybin's analysis of the ruling or download the opinion:

http://www.tba2.org/tba_files/TSC/2007/gomeze_100907.pdf

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STATE OF TENNESSEE V. EDWIN GOMEZ ET AL.

Court: TSC

Attorneys:

Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee, for the appellant, Edwin Gomez.

David A. Collins, Nashville, Tennessee, and James Stafford, Houston, Texas, for the appellant, Jonathan S. Londono.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; Victor S. Johnson III, District Attorney General; and Bret Gunn and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

David L. Raybin, Nashville, Tennessee, and Wade V. Davies, Knoxville, Tennessee, for the Amicus Curiae, Tennessee Association of Criminal Defense Lawyers.

Judge: CLARK

This matter is before us upon remand by the United States Supreme Court for reconsideration in light of that Court's decision in Cunningham v. California, 549 U.S.__, 127 S. Ct. 856 (2007). In our initial disposition of this matter, State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), we concluded that the Defendants were not entitled under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny to relief as to their sentences. Upon further review following Cunningham, we now conclude that the trial court's enhancement of the Defendants' sentences on the basis of judicially determined facts other than the Defendants' prior convictions violated the Defendants' constitutional rights under the Sixth Amendment to the United States Constitution. In order to redress the unconstitutional enhancement of the Defendants' sentences, we vacate their sentences and remand this matter to the trial court for resentencing.

http://www.tba2.org/tba_files/TSC/2007/gomeze_100907.pdf


ROBIN DIANNE DENTON HAMPTON v. CAROLE HAMPTON BRADDY, ET AL.

Court: TCA

Attorneys:

Wm. Kennerly Burger, Murfreesboro, Tennessee for the Appellants, Carole Hampton Braddy and Casey Kenyon Hampton.

Michael W. Binkley, Nashville, Tennessee for the Appellee, Robin Dianne Denton Hampton.

Judge: SWINEY

Robin Dianne Denton Hampton ("Wife") sued Casey Kenyon Hampton ("Husband") for divorce. In a separate suit, wife sued Carole Hampton Braddy, her mother-in-law, seeking a determination regarding Wife's rights to the house that Husband and Wife resided in prior to the filing of the divorce ("the House"). Wife's two lawsuits were consolidated. The Trial Court entered a Final Decree of Divorce that inter alia, granted Wife a divorce and approved the Marital Dissolution Agreement ("MDA") executed by Husband and Wife. Wife"s suit against Ms. Braddy was tried before a jury and the Trial Court entered judgment on the jury"s verdict awarding Wife a judgment against Ms. Braddy of $99,200. Husband and Ms. Braddy filed motions to alter or amend or for a new trial, which the Trial Court denied. Husband and Ms. Braddy appeal raising issues regarding the exclusion of evidence at trial, whether the Trial Court erred in awarding an in personam judgment against Ms. Braddy, whether the Trial Court erred in granting the divorce when the MDA failed to describe the real estate issues involved in the companion lawsuit regarding the House, and whether the Trial Court erred in refusing to allow Husband to assert an interest in the House at trial. We affirm.

http://www.tba2.org/tba_files/TCA/2007/hamptonr_100907.pdf


ISLAND BROOK HOMEOWNERS ASSOCIATION, INC. v. JANICE AUGHENBAUGH

Court: TCA

Attorneys:

John M. Cannon, Goodlettsville, Tennessee, for the appellant, Janice Aughenbaugh.

John Wesley Jones, Gallatin, Tennessee, for the appellees, Floyd Wilkson, Lori Atchley, and the appellant, Danflor Development, LLC.

Ronald B. Buchanan, Hendersonville, Tennessee, for the appellee, Island Brook Homeowners Association, Inc.

Judge: LEE

The defendant had her house built in a restricted subdivision and began using it for operation of her fitness training business. The owners of the corporation that developed the neighborhood and constructed the defendant's house were also controlling members of the subdivision homeowners association's board of directors. The homeowners association filed suit to permanently enjoin the defendant from conducting her business out of her home upon grounds that such activity violated subdivision restrictions. In her answer and countersuit, the defendant argued that the homeowners association's controlling board members had waived the restrictions by certain actions during construction of her house. The defendant also filed a third party complaint against the development corporation and against the individual owners of the corporation for misrepresentation. Upon motions for directed verdict, the trial court granted the homeowners association's request for a permanent injunction and dismissed the defendant's countercomplaint against that entity. The trial court also dismissed the defendant's complaint against the individual owners by directed verdict, but denied the development corporation's motion for directed verdict. A jury then found the development corporation liable for misrepresentation. On appeal, we conclude that the trial court did not err in granting the homeowners association's motion for directed verdict or in failing to grant the development corporation's motion for directed verdict. However, we conclude that the trial court did err in granting the individual owners' motion for directed verdict. Accordingly, the judgment of the trial court is affirmed in part, reversed in part and the case is remanded.

http://www.tba2.org/tba_files/TCA/2007/islandbrook_100907.pdf


DONNA ARNOLD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Donna Arnold.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Joe Crumley, District Attorney General; and Tony Clark, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Donna Arnold, appeals from the post-conviction court's denial of post-conviction relief. On appeal, she contends that she entered into an unknowing and involuntary guilty plea. Following our review of the record and the parties' briefs, we affirm the judgment of the post-conviction court denying post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2007/arnoldd_100907.pdf


STATE OF TENNESSEE v. JOSEPH HALL

Court: TCCA

Attorneys:

Charles Richard Hughes, Jr., District Public Defender; and William C. Donaldson, Assistant Public Defender, Madisonville, Tennessee, for the appellant, Joseph Hall.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Wylie Richardson, Assistant District Attorney General for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Joseph Hall was convicted of two counts of aggravated sexual battery. Defendant was sentenced to ten years for each count to run concurrently. On appeal, Defendant argues (1) the trial court erred by failing to require that the state provide defense counsel with taped forensic interviews of the victims; (2) the evidence was legally insufficient to convict Defendant of aggravated sexual battery; and (3) the trial court erred by failing to instruct the jury on the lesser included offense of attempted aggravated sexual battery. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/hallj_100907.pdf


STATE OF TENNESSEE v. KEVIN HALL

Court: TCCA

Attorneys:

Caroline E. Knight (on appeal), Pikeville, Tennessee, and Howard L. Upchurch (at trial), Pikeville, Tennessee, for the appellant, Kevin Hall.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; J. Michael Taylor, District Attorney General; and J. William Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Kevin Hall, presents for review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The defendant pled guilty to driving under the influence (DUI) and the unlawful possession of a weapon while under the influence of alcohol in exchange for concurrent sentences of eleven months, twenty-nine days. As a condition of his guilty plea, the defendant properly reserved a certified question of law as to whether he was subjected to an unconstitutional traffic stop. Following our review of the record and the parties' briefs, we conclude that the defendant was lawfully stopped. Accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/hallk_100907.pdf


STATE OF TENNESSEE Ex Rel VICTOR E. MCCONNELL v. HOWARD CARLTON, WARDEN, and the STATE OF TENNESSEE

Court: TCCA

Attorneys:

Victor E. McConnell, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The pro se petitioner, Victor E. McConnell, appeals from the denial of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/mcconnellv_100907.pdf


EARL VANTREASE, JR. v. WAYNE BRANDON, Warden

Court: TCCA

Attorneys:

Earl Vantrease, Jr., Only, Tennessee, pro se.

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

Judge: WELLES

The Petitioner, Earl Vantrease, Jr., appeals the summary dismissal of his petition for habeas corpus relief. The Petitioner contends that his aggravated robbery conviction is void because he has previously been granted post-conviction relief. The habeas corpus court dismissed the petition, finding that the Petitioner failed to state a cognizable claim for relief. We affirm summary dismissal of the petition but do so on a different ground - the Petitioner failed to include pertinent documents in support of his factual assertions. The order dismissing the petition is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/vantreasee_100907.pdf


STATE OF TENNESSEE v. MARVIN WILKERSON

Court: TCCA

Attorneys:

Ashley L. Ownby, Cleveland, Tennessee, for the appellant, Marvin Wilkerson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Steve Bebb, District Attorney General; and Wylie Richardson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Marvin Wilkerson, was convicted by a jury in the McMinn County Criminal Court of possessing .5 grams or more of cocaine with the intent to sell or deliver. The trial court sentenced the appellant, as a career offender, to sixty years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and the sentence imposed by the trial court. Upon our review of the record and the parties’ briefs, we affirm the appellant's conviction for possession of .5 grams or more of cocaine with intent to sell or deliver. However, because the appellant was improperly sentenced as a habitual drug offender, we reverse the judgment of the lower court as to the sentence and fine imposed. Accordingly, we remand for an entry of a judgment reflecting that the appellant was convicted of a Class B felony with an accompanying sentence of thirty years to be served at sixty percent and a fine of $10,000.

http://www.tba2.org/tba_files/TCCA/2007/wilkersonm_100907.pdf


TODAY'S NEWS

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Knox Term Limits
State official nixes special election
Despite plans by Knox County officials to hold a special election to replace 12 county officeholders who were removed from office last week, state Election Coordinator Brook Thompson said today he has no authority to approve a special election.
The News Sentinel has this update
Legal News
Two attorneys file for Court of Appeals seat
The Judicial Selection Commission is currently accepting applications for the Court of Appeals vacancy created by the death of Judge William Bryan Cain. To date, two individuals have filed. They are: Donald Capparella with Dodson, Parker & Behm in Nashville and Amy V. Hollars of Livingston. The deadline for applying is Oct. 23.
Visit the AOC's web site for details
Bredesen: Keep politics out of execution debate
Gov. Phil Bredesen says politics should be kept out of ongoing legal battles over the state's lethal injection protocol. Calling the death penalty a "sensitive, tough issue," the governor asked all parties to refrain from politicizing the debate. His comments came in response to a letter from Republican legislative leaders who urged him to (1) appeal a recent ruling declaring the state's lethal injection process unconstitutional and (2) call on the attorney general to file a brief in support of a similar case pending before the U.S. Supreme Court.
Read more in the News Sentinel
Democrats may extend federal wiretap powers
Two months after insisting that they would roll back eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency. But in an acknowledgment of civil liberties concerns, Democrats may try to require a more active role by the special foreign intelligence court that oversees NSA's interception of foreign-based communications.
The New York Times reports
TV judges settle for big salaries, popularity
While Judge Judy and Judge Joe Brown may not enjoy the prestige of their real-life counterparts, they make a lot more money and millions see them work every weekday. As the salaries of television judges continue to grow, it is not surprising that the number of shows on the air continue to multiply. The Tennessean carries a story from The Courier-Journal that looks at the rising popularity and success of these video jurists.
Read about it here
Magistrate selection begins today in Chattanooga
The Hamilton County Commission today will start the process of selecting four judicial commissioners, including one chief magistrate, from among 20 attorneys who applied for the positions last week. The commission must select the new magistrates by Oct. 31.
The Chattanooga Times Free Press has the list of applicants
Legislative News
Governor undecided about judicial selection challenge
Gov. Phil Bredesen said yesterday that he has not yet decided whether to try to make changes to the way appellate judges are selected in Tennessee. He said, however, that he would make that decision this fall.
The News Sentinel carried his remarks
Group calls on legislature to update sunshine laws
Frank Gibson, executive director of the Tennessee Coalition for Open Government, writes in a recent opinion piece that the legislature needs to address two sunshine issues when it returns. First, he says it needs to codify Gov. Phil Bredesen's proposal to create and fund an ombudsman to assist citizens with records requests. Second, he says it needs to update the underlying open meetings and public records laws, which have been neglected for decades.
Read his comments
Paper editorializes in support of sunshine reform
The Tennessean recently picked up the theme of open government, arguing that the legislature should bolster the laws and create penalties for violations.
Read the editorial
Federal shield law faces uncertainty
The House of Representatives will vote by year's end on legislation that would shield reporters from having to reveal their sources in federal court, but the bill's future in the Senate is less certain. The White House and several Republican senators oppose the measure on grounds that it would limit law enforcement's ability to trace national security leaks.
The News Sentinel has this AP story
Supreme Court Report
High court hears securities fraud case
The court today heard arguments in a case that will decide whether banks, lawyers, accountants and suppliers can be held liable for scheming with publicly held companies that deceive stockholders. The outcome will impact not just this case, but also a separate suit by Enron shareholders who are seeking over $30 billion from banks that allegedly colluded with the energy company to hide its debts.
The Daily News Journal has this AP report
Court grants no new case reviews today
The Supreme Court granted no new cases Tuesday and, in a major action, refused to reopen the question of the government's power to limit or scuttle lawsuits by claiming that state secrets have to be protected. The move came as the court refused to grant review in a case that challenges the CIA's "extraordinary renditions" program, which sends detainees abroad for harsh questioning.
Read more from SCOTUSblog
Upcoming
ABA to honor Judge Donald
U.S. District Court Judge Bernice B. Donald will be honored at a luncheon hosted by the American Bar Association's Section of Family Law on Friday, Oct. 12. The section will meet in Memphis for its annual fall conference Oct. 10-13. The luncheon, which will recognize Donald as the first black woman to hold the seat of district judge in Tennessee, will take place at the National Civil Rights Museum.
For more information visit the conference website
Scalia to address Benjamin L. Hooks luncheon
Last year U.S. Supreme Court Justice Ruth Bader Ginsburg spoke to the Memphis Bar Foundation's annual Benjamin L. Hooks luncheon. This year, her colleague Justice Antonin Scalia will do the honors. About 1,000 people are expected to pack The Peabody Hotel's Grand Ballroom to hear the justice on Dec. 17.
The Memphis Daily News has more
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