Field now at 7 for Supreme Court opening

Three additional attorneys applied to be considered for the opening on the Tennessee Supreme Court in advance of today's 4:30 p.m. deadline. Joining the field of candidates were Vance W. Cheek Jr., special counsel to MLT Management in Johnson City; D. Bruce Shine, an attorney with Shine & Mason in Kingsport; and Paul Campbell III of Campbell and Campbell in Chattanooga. Four additional lawyers had earlier applied: Tennessee Claims Commissioner Nancy Miller-Herron of Dresden, Court of Appeals Judge Sharon G. Lee of Knoxville, John Westley McClarty of Chattanooga and R. Culver Schmid of Knoxville. The Selection Commission will meet in Nashville on Aug. 18 at 8:30 a.m. to consider these applicants. Any member of the bar or the public may attend the hearing and address the commission. The session will be held in Room 12 of the Legislative Plaza.
TODAY'S OPINIONS
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STATE OF TENNESSEE EX REL. FLOWERS/NEWMAN V. TENNESSEE TRUCKING ASSOCIATION SELF INSURANCE GROUP TRUST ET AL.

Court: TWCA

Attorneys:

Ricky L. Boren, Jackson, Tennessee, for the appellant, T.L. Green.

Renard A. Hirsch, Sr., Nashville, Tennessee for the appellee, State of Tennessee.

Judge: BARKER

This action for workers' compensation benefits has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) (Supp. 2007) for a hearing and report of findings of fact and conclusions of law. The claimant seeks workers' compensation benefits for the death of his wife, a long distance truck driver, who died after leaping from the cabin of her tractor trailer on a mountainous stretch of highway. Her employer's workers' compensation insurance carrier is in liquidation. As part of the liquidation process, the chancery court assigned the claim to a referee for a report of findings of fact and conclusions of law. The referee concluded that the wife's death did not arise out of her employment. The chancery court affirmed the denial of benefits, but on the grounds that the Liquidator had established that the wife's death was due to willful misconduct. The claimant appeals. This appeal presents two issues: 1) whether the claimant's tardiness in filing objections to the referee's findings of fact and conclusions of law was due to excusable neglect, and 2) whether the chancery court erred in holding that the Liquidator met its burden of proof for establishing the willful misconduct defense. Upon review, we hold that the claimant's late filing was due to excusable neglect. In addition, we hold that the Liquidator failed to establish that the wife's death was due to willful misconduct. Accordingly, we reverse the chancery court's holding on both issues and remand for a new hearing.

http://www.tba2.org/tba_files/TSC_WCP/2008/flowersvtntrucking_062008.pdf


STATE OF TENNESSEE v. QUINCY D'SHAWN DOUGLASS

Court: TCCA

Attorneys:

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Quincy D'Shawn Douglass.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Quincy D'Shawn Douglass, appeals from the judgment of the Madison County Circuit Court, revoking his probation and imposing service of the remainder of his sentence in confinement. In this appeal, the defendant argues that the court erred in revoking his probation. Following our review of the record, the parties' briefs, and the applicable law, we determine no errors exist in the court's revocation of probation, and thus affirm the court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/douglassq_062008.pdf


YASIN HAWKINS v. JOE EASTERLING, WARDEN

Court: TCCA

Attorneys:

Yasin Hawkins, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clarence E. Lutz, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Yasin Hawkins, appeals from the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition is defective because it does not include a copy of the judgment which is the basis for the petitioner's being restrained, and it fails to present a claim which is cognizable in a habeas corpus proceeding. Accordingly, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCCA/2008/hawkinsy_062008.pdf


STATE OF TENNESSEE v. GERRY LYNN HENSLEY

Court: TCCA

Attorneys:

Barbara Hobock and Cynthia Chandler-Snell, Humboldt, Tennessee, for the Appellant, Gerry Lynn Hensley.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel, Attorney General's Office; and Garry Brown, District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Gerry Lynn Hensley, appeals the sentencing decision of the Humboldt Law Court of Gibson County. Hensley pled guilty to two counts of Class B vehicular homicide by reason of intoxication and was subsequently sentenced by the trial court to concurrent eight-year sentences as a Range I standard offender. On appeal, Hensley raises the following challenges to the imposed sentences: (1) whether the trial court erred in considering an enhancement factor when no notice was provided by the State of its intent to rely upon such factor as required by local rules; (2) whether the court erred in considering dismissed charges in applying the enhancement factor of a prior criminal history; (3) whether the court erred in failing to specifically identify the mitigating and enhancing factors found and in failing to apply other certain mitigating factors which Hensley argues are applicable; (4) whether the court erred in not sentencing Hensley as an especially mitigated offender; and (5) whether the court erred in denying an alternative sentence. Following review of the record, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/hensleyg_062008.pdf


STATE OF TENNESSEE v. MICHAEL DEWAYNE MANN

Court: TCCA

Attorneys:

James E. Lanier, District Public Defender and Patrick McGill, Assistant District Public Defender, for the appellant, Michael Dewayne Mann.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General, and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Michael Dewayne Mann, was found guilty by a Dyer County Jury of driving under the influence and for violation of the implied consent law. In a bifurcated hearing, the trial court found Appellant guilty of third offense driving under the influence. As a result, Appellant received a sentence of eleven months and twenty-nine days, which was to be suspended after the service of 150 days of incarceration. The trial court denied a motion for new trial. On appeal, the following issues are raised for our review: (1) whether the evidence is sufficient to support the convictions; and (2) whether the trial court improperly allowed a police officer and the prosecutor to refer to Appellant's prior record. We determine that the evidence was sufficient to support the conviction. Furthermore, we decline to address the evidentiary issues as plain error. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/mannm_062008.pdf


DALLAS R. MYERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dallas R. Myers, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; John Bledsoe, Assistant Attorney General; Robert Radford, District Attorney General, and Beth Boswell Hall, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

This matter is before the Court upon the state's motion to affirm the judgment of the post-conviction court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner, Dallas R. Myers, appeals the post-conviction court's dismissal of his petition for post-conviction relief and argues that he received the ineffective assistance of counsel. Upon review of the record, we are persuaded that the post-conviction court did not err in dismissing the petitioner's post-conviction petition. This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Therefore, we grant the state's motion, and the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/myersd_062008.pdf


ANTHONY E. PERRY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert Brooks, Memphis, Tennessee, for the Appellant, Anthony E. Perry.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Anthony E. Perry, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. Perry was convicted of first-degree felony murder in the perpetration of kidnapping and especially aggravated kidnapping and is currently serving an effective sentence of life imprisonment in the Department of Correction. The convictions were affirmed on direct appeal to this court. In July, 2002, Perry filed a pro se petition for post-conviction relief alleging, among other issues, multiple grounds for ineffective assistance of counsel, and, following the appointment of counsel, an amended petition was filed seeking a delayed appeal of his convictions upon the ground that Perry had been deprived of his right to seek second-tier appellate review. At the post- conviction level, the State conceded Perry's entitlement to a delayed appeal. Nonetheless, on September 17, 2002, the post-conviction court denied Perry's post-conviction petition based upon its perceived lack of jurisdiction to grant a delayed appeal, without addressing the merits of Perry's remaining post-conviction issues or reserving them for a later determination. The Appellant then appealed the dismissal of his petition to this court. While the appeal was pending in this court, the post-conviction court entered a second order, on January 2, 2003, reversing its prior dismissal of the petition and granting Perry a delayed appeal. No action was ever taken by Perry in furtherance of the delayed appeal. Perry later moved to voluntarily dismiss his appeal, which was still pending before this court. Within one year from the voluntary dismissal of the appeal, the post-conviction court appointed substitute counsel to represent Perry for the purpose of pursuing the ineffective assistance claims alleged in the petition. Following the filing of three amended post-conviction petitions, a post-conviction hearing was held on December 21, 2005, at which Perry asserted ineffective assistance of counsel based upon trial counsel's (1) failure to seek suppression of his warrantless arrest within his home, in violation of Payton v. New York, and (2) failure to request lesser-included instructions at trial. After hearing the evidence presented, the post-conviction court denied the petition upon the merits. Perry now appeals that denial. On appeal, the State initially argues that the post-conviction court was without jurisdiction to review Perry's alleged claims of ineffective assistance of counsel. In support of this argument, the State asserts that the post- conviction court lost jurisdiction of the case when Perry filed a timely notice of appeal to this court from the post-conviction court's order entered on September 17, 2002, denying post-conviction relief. We agree. As the September 2002 order specifically denied the post-conviction petition, without reservation of any issues, Perry's only relief was through the appeal to this court. By voluntarily dismissing that appeal, the Appellant has defaulted those issues which collaterally challenged his conviction. The subsequent order entered by the post-conviction court granting the delayed appeal had no force and effect, and any actions, including the filing of amended post- conviction petitions, were not validly before the post-conviction court. Thus, the post-conviction court's order of September 5, 2006, denying relief must be reversed and vacated.

http://www.tba2.org/tba_files/TCCA/2008/perrya_062008.pdf


TODAY'S NEWS

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Legal News
Judge speaks out about fellow judge
Judicial squabbling in Blount County continues, with Circuit Court Judge W. Dale Young telling the The Daily Times that his recent statements about fellow Circuit Court Judge Mike Meares have been dictated by ethical and moral obligations -- not by politics.
Read more from the interview
The politics of dress codes
Dress codes are not just a hot topic in Memphis, where attorneys and judges have been meeting to decide on proper attire in the courtroom. A Wall Street Journal column this week points out that the issue is sometimes more about who is making the rules than what the actual rules state. Chattanooga attorney John B. Phillips Jr. told the Journal that our ability to discuss these topics across gender lines is "worse today than it's ever been."
Read more from the Wall Street Journal
Vandy law professor runner-up for writing award
Vanderbilt Law professor Lisa Schultz Bressman, who co-directs the school's regulatory program, was one of two runners-up for the American Constitution Society's Richard D. Cudahy Writing Competition. Professor Bressman's article, "Procedures as Politics in Administrative Law," was published in the Columbia Law Review.
Read the article
TennBarU CLE
Learn techniques for effective appellate advocacy
Learn the time-honored techniques of effective appellate advocacy in an upcoming CLE webcast from Mark Fulks, the appellate team leader in the Criminal Justice Division of the Tennessee AG’s office. You’ll learn how to present an effective oral argument in the appellate courts, the importance of preparation as a general matter, as well as techniques for preparing a particular case. The seminar will also teach how to prepare for questions from an appellate court. Sign up now to watch the webcast live on June 25 or as an archive program.
Register or learn more
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Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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