Monday, July 07, 2008
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Tennessee Plan gets support from Barker, newspaper

Retiring Chief Justice William M. Barker tells the Nashville City Paper that the state's way to pick Supreme Court and intermediate appellate judges -- called the Tennessee Plan -- is the "best of all methods" that states have found. During the interview, Barker also flatly rejects arguments that the plan is unconstitutional. Also coming out in support of the Tennessee Plan today was the Jackson Sun, which carried an editorial calling efforts to change the plan "short-sighted" and saying the way the state selects judges should stay as it is.
TODAY'S OPINIONS
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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. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.
STATE OF TENNESSEE v. SUNNI ADKINS

Court: TCCA

Attorneys:

Larry Joe Hinson, Hohenwald, Tennessee, for the appellant, Sunni Adkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Stacey Edmonson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Sunni Adkins, pled guilty to three counts of child abuse, Class A misdemeanors, and one count of aggravated assault, a Class C felony. She was sentenced to eleven months and twentynine days for each misdemeanor and to four years for the felony to be served as a Range I standard offender. The misdemeanor sentences were ordered to be served concurrently with one another but consecutively to the felony sentence. Additionally, six months of each misdemeanor sentence was ordered to be served in confinement. On appeal, the Defendant argues that the trial court erred in sentencing her by improperly applying certain statutory enhancement factors and by denying full probation or another alternative sentence. Following our review of the record and the parties’ briefs, we uphold the sentences ordered by the trial court.

http://www.tba2.org/tba_files/TCCA/2008/adkinss_070708.pdf

JOSEPH M. TIPTON, P.J., concurring.
http://www.tba2.org/tba_files/TCCA/2008/adkinssunni_con_070708.pdf
JACKIE GLENN ALLEN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

S. Craig Moore, Fayetteville, Tennessee, for the Appellant, Jackie Glenn Allen.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Preston Shipp, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; Hollyn Hewgley, Assistant District Attorney General, for the Appellee, the State of Tennessee.

Judge: WEDEMEYER

The Petitioner pled guilty to rape and incest and agreed to allow the trial court to sentence him. After a sentencing hearing, the court imposed an effective sentence of ten and one-half years to be served in the Tennessee Department of Correction. The Petitioner appealed the sentence, and this Court affirmed. The Petitioner then filed his petition for post-conviction relief claiming that he did not receive the effective assistance of counsel and that his guilty plea was not entered knowingly or voluntarily. The post-conviction court denied the petition for post-conviction relief, and, after a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/allenj_070708.pdf
SHELVY BAKER, aka KWAME ALI v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Shelvy Baker, aka Kwame Ali, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Shelvy Baker, aka Kwame Ali, appeals the Davidson County Criminal Court's summary dismissal of his petition for post-conviction relief. The post-conviction court determined that the petition was filed outside the statute of limitations. On appeal, the Petitioner contends that due process considerations require tolling of the limitations period under the holding of Williams v. State, 44 S.W.3d 464 (Tenn. 2001). Upon our review of the record, we reverse the judgment of the post-conviction court and remand for a hearing on the timeliness of the Petitioner’s petition.

http://www.tba2.org/tba_files/TCCA/2008/bakers_070708.pdf
STATE OF TENNESSEE v. LAVIDO BUTLER

Court: TCCA

Attorneys:

William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Lavido Butler.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Lavido Butler, pled guilty to possession of less than .5 grams of cocaine with the intent to sell and to tampering with evidence, Class C felonies, but reserved the right to appeal a dispositive certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A): whether the trial court properly determined that the State was not required to release the name of the confidential informant mentioned in the affidavit accompanying the search warrant for the Defendant's residence which was executed prior to his arrest. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/butlerl_070708.pdf
STATE OF TENNESSEE v. MICHAEL CASPER

Court: TCCA

Attorneys:

Ernest W. Williams, Nashville, Tennessee, for appellant, Michael Casper.

Robert E. Cooper, Jr., Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General, and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Michael Casper, was indicted by a Rutherford County Grand Jury for nineteen counts of sale of securities by an unregistered broker-dealer or agent in violation of Tennessee Code Annotated section 48-2-109. Prior to trial, the State dismissed counts twelve, thirteen and seventeen of the indictment. At the conclusion of the State’s proof at trial, the trial court dismissed count fourteen of the indictment for lack of evidence. At the conclusion of the proof, the jury found Appellant guilty of the remaining fifteen counts of the indictment. The trial court sentenced Appellant to four years as a Range I, standard offender on each count, with three sentences to run consecutively to each other. The trial court suspended the sentences after the service of eleven months in incarceration and ordered Appellant to spend twelve years on probation. Appellant received a $500 fine for each conviction. In addition, he was ordered to complete 1,000 hours of community service and pay restitution to the victims in the amount of $136,000. The trial court denied a motion for new trial, and Appellant appealed. On appeal, Appellant contends that: (1) the trial court improperly permitted the State to introduce an Agreed Order from an administrative proceeding between Appellant and the Department of Commerce and Insurance in which Appellant agreed to cease and desist the sales of securities; (2) the State failed to properly establish venue in Rutherford County in thirteen of the fifteen counts; (3) the evidence is insufficient to support the convictions; (4) the trial court erred by sentencing Appellant to incarceration because he did not willfully violate Tennessee Code Annotated section 48-2-109; and (5) the trial court should have corrected the judgment to reflect that Appellant was to serve eleven months of the sentence in the Rutherford County Jail as a Range I, standard offender with a thirty percent release eligibility date. We affirm the trial court’s decision to admit the Agreed Order into evidence and conclude that the State properly proved venue at trial. However, because the evidence is insufficient to prove that Appellant willfully violated Tennessee Code Annotated section 48-2-109, we reverse and dismiss Appellant’s convictions.

http://www.tba2.org/tba_files/TCCA/2008/casperm_070708.pdf
LARRY GLENN CAULEY v. STATE OF TENNESSEE

Including memo: Mispelling of name

Court: TCCA

Attorneys:

James Kevin Cartwright, Clarksville, Tennessee, for the appellant, Larry Glenn Cauley.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; John W. Carney, District Attorney General; and Dent Morrisss, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Larry Glenn Cauley, appeals from the post-conviction court’s order denying his petition for post-conviction relief. On appeal, he asserts that the dismissal was error because he did not receive the effective assistance of counsel at trial, and because the credibility of one of the State’s witnesses was called into doubt after his trial. Following our review, we conclude that the Petitioner has not shown that he is entitled to relief. We affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/cauleyl_070708.pdf

Memo from Judge David H. Welles
http://www.tba2.org/tba_files/TCCA/2008/cauleyl_memo_070708.pdf
STATE OF TENNESSEE v. VICTOR L. DOBBINS

Court: TCCA

Attorneys:

Nathan Moore, Nashville, Tennessee, for the Appellant, Victor Dobbins.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Matthew Pietsch, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Victor L. Dobbins, appeals his conviction and the sentencing decision of the Davidson County Criminal Court. After a bench trial, Dobbins was found guilty of being a convicted drug felon in possession of a handgun, a Class E felony. The trial court sentenced Dobbins, as a Range Two, Multiple offender, to four years in the Tennessee Department of Correction, and ordered that the sentence be served consecutively to community correction sentences being served by Dobbins for two prior felony drug convictions. On appeal, Dobbins argues (1) that the evidence was legally insufficient to support his conviction for unlawful possession of a handgun; (2) that the trial court erred in enhancing his sentence to the statutory maximum within the applicable range based largely on Dobbins’ previous history of criminal convictions; and (3) that the trial court erred in running the sentence consecutively to sentences being served for previous drug convictions based upon Dobbins’ extensive record of criminal activity. After review of the record and the briefs of the parties, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/dobbinsv_070708.pdf
TIMOTHY E. HIGGS v. JAMES WORTHINGTON, Warden

Court: TCCA

Attorneys:

Timothy E. Higgs, Petros, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany and John Bledsoe, Assistant Attorneys General, for the Appellee, the State of Tennessee.

Judge: WEDEMEYER

The Petitioner was convicted of possession of contraband in a penal institution, a Class C felony, and was sentenced to ten years as a Range III offender. He filed a petition for habeas corpus relief claiming that he did not knowingly and intelligently waive his right to counsel when he represented himself at trial and that the indictment was defective. The habeas corpus court dismissed the petition without a hearing. After a thorough review of the record and applicable law, we affirm the judgment of the habeas court.

http://www.tba2.org/tba_files/TCCA/2008/higgst_070708.pdf
STATE OF TENNESSEE v. GEORGE LUCAS JERNIGAN

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, for the appellant, George Lucas Jernigan.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, George Lucas Jernigan, pleaded guilty to one count of aggravated sexual assault, one count of driving on a suspended license, and one count of reckless driving. The Bedford County Circuit Court imposed an effective six-year term to be served in the Department of Correction. The defendant now appeals, alleging that community corrections placement was a more appropriate sentence and that the trial court erroneously applied statutory enhancement factors to increase the sentence that were not found by a jury. Upon review, we affirm the judgments below.

http://www.tba2.org/tba_files/TCCA/2008/jernigang_070708.pdf
STATE OF TENNESSEE v. TORY W. MARSHALL
Opinion repeated from 07-03-08 with full link

Court: TCCA

Attorneys:

Mark Toohey (at trial), Kingsport, Tennessee, and James J. Lonan (on appeal), Johnson City, Tennessee, for the Appellant, Tory W. Marshall.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; H. Greeley Wells, District Attorney General; Lewis Combs, Assistant District Attorney General, for the Appellee, the State of Tennessee.

A Sullivan County jury found the Defendant, Tory W. Marshall, guilty of aggravated robbery and aggravated burglary. The trial court sentenced him to an effective thirty year sentence. On appeal, the Defendant claims: (1) the trial court erred by unfairly limiting the scope of his cross-examination of a State witness; (2) the trial court failed to provide complete jury instructions; and (3) the trial court erroneously sentenced the Defendant. After a thorough review of the record and the applicable law, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2008/marshallt_070308.pdf
DERRICK QUINTERO and WILLIAM EUGENE HALL, JR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, and Kathleen G. Morris, Nashville, Tennessee (on appeal); Shipp Weems, District Public Defender, Steve Stack, Assistant Public Defender, John E. Herbison and Paul Buchanan, Nashville, Tennessee (at trial), for the appellant, Derrick Quintero.

Patrick T. McNally, Nashville, Tennessee (at trial and on appeal); Paul J. Bruno, Nashville, Tennessee (on appeal); Jennifer Davis Roberts, Dickson, Tennessee (at trial); and N. Reese Bagwell, Clarksville, Tennessee (at trial), for the appellant, William Eugene Hall, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson and James W. Kirby, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The appellants, Derrick Quintero and William Eugene Hall, Jr., were each convicted on two counts of murder during the perpetration of first degree burglary, three counts of grand larceny, one count of petit larceny and three counts of first degree burglary. They both received the death penalty for the murder of one of the victims, a life sentence for the other murder conviction, and an effective eighty year sentence for the remaining convictions. The appellants were unsuccessful in their direct appeals. See State v. Hall and Quintero, 976 S.W. 2d 121 (Tenn. 1998). Appellants filed individual pro se post-conviction petitions and simultaneously joint petitions for writ of error coram nobis. Appellants alleged various constitutional violations, including the ineffective assistance of counsel and the existence of newly discovered evidence. Following a joint hearing on the petitions the trial court denied relief. We affirm the judgments.

http://www.tba2.org/tba_files/TCCA/2008/quinterod_and_hallw_070708.pdf
STATE OF TENNESSEE v. KENNETH W. SNELL

Court: TCCA

Attorneys:

John G. Mitchell, Jr. and Darwin K. Colston, Murfreesboro, Tennessee (at trial); David L. Raybin and Sarah S. Richter, Nashville, Tennessee (on appeal), for the Appellant, Kenneth W. Snell.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William C. Whitesell, Jr, District Attorney General; Trevor H. Lynch and Thomas S. Santel, Jr., Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Kenneth W. Snell, appeals the sentencing decision of the Rutherford County Circuit Court denying his request for judicial diversion. Snell was convicted by a jury of the crimes of reckless aggravated assault, a Class D felony, and domestic assault, a misdemeanor. The trial court originally denied Snell’s request for judicial diversion, instead imposing concurrent suspended sentences in conjunction with three years of supervised probation. A panel of this court vacated the sentencing decision and remanded the case in order for the trial court to explain adequately on the record why Snell was denied judicial diversion. State v. Kenneth W. Snell, No. M2006-1088-CCAR3- CD (Tenn. Crim. App. at Nashville, Dec. 19, 2006). On remand, the trial court entered an order articulating its reasoning for denying Snell’s request for judicial diversion, specifically finding that the circumstances of the offense and deterrence value outweighed the positive factors presented for consideration. Snell again argues that the trial court abused its discretion in weighing the required factors. After a thorough review of the arguments of the parties and the record, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/snellk_070708.pdf
JOHN R. THOMPSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hershel D. Koger, Pulaski, Tennessee, for the Appellant, John. R. Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General; Chuck Crawford, District Attorney General; Michael D. Randles and Ann L. Filer, Assistant District Attorneys General, for the Appellee, the State of Tennessee.

Judge: WEDEMEYER

A Bedford County jury convicted the Petitioner of seventeen crimes involving his sexual contact with three minor girls, and this Court affirmed those judgments on appeal. The Petitioner filed a petition for post-conviction relief alleging that he failed to receive the effective assistance of counsel. The post-conviction court denied the petition, and, after a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/thompsonj_070708.pdf
STATE OF TENNESSEE v. TONYA MICHELLE TROUTT

Court: TCCA

Attorneys:

Thomas J. Martin, Jr., Gallatin, Tennessee, and Paul J. Walwyn, Madison, Tennessee (at trial); and James O. Martin, III, Nashville, Tennessee (at trial and on appeal), for the appellant, Tonya Michelle Troutt.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; Charles Ronald Blanton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Tonya Michelle Troutt, pled guilty in the Sumner County Criminal Court to theft of property in an amount over $1000 and theft of property in an amount more than $500. She received a total effective sentence of six years. On appeal, the appellant challenges the trial court’s denial of alternative sentencing. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/trouttt_070708.pdf
JOSEPH VERMEAL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lynn Brooks (at hearing), McMinnville, Tennessee, and Michael Meise (on appeal), Dickson, Tennessee, for the Appellant, Joseph Vermeal.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Andrew Hamilton Smith, Assistant Attorney General; David Puckett, District Attorney General Pro Tem, for the Appellee, the State of Tennessee.

Judge: WEDEMEYER

A Warren County jury convicted the Petitioner of aggravated sexual battery and attempted aggravated sexual battery in separate cases, and this Court affirmed the judgments on appeal. The Petitioner filed two post-conviction petitions asserting various grounds for relief. The postconviction court denied the petitions for post-conviction relief after a consolidated hearing. On appeal, the Petitioner alleges: (1) he was denied the right to a fair trial because a case relied upon by the trial court and on direct appeal to exclude expert testimony proffered by the Petitioner has since been overturned; and (2) he was denied the effective assistance of counsel. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/vermealj_070708.pdf
TODAY'S NEWS
Legal News
Politics
TennBarU CLE
Legal News
Immigration law, a sign of globalization, is booming
A subject that three decades ago was a secondary, technical field delegated to adjunct professors is booming at law schools nationwide, the Washington Post reports. "Immigration is just one part of a much broader story about globalization, of movement of goods and movement of people and movement of ideas, and what used to be a backwater of the law has become mainstream," said T. Alexander Aleinikoff, dean of Georgetown University Law School.
Read the story
Free speech vs fair trial at issue in Ford case
A television reporter who is also a witness in the Ford trial is under an order not to discuss the case. So does a reporter's right to free speech trump a right to a fair trial, or vice versa? That question has come up after U.S. District Judge Todd Campbell last week ordered witnesses who will testify in the trial to say nothing about the case in public. One of those scheduled witnesses is Nashville's NewsChannel 5 investigative reporter Phil Williams.
NashvillePost.com reports
Disbarred lawyer plays role of disbarred lawyer
An Oklahoma City lawyer who was recently disbarred has a role as I. Lewis "Scooter" Libby in an upcoming movie and is seeking other work as an actor. The disbarred lawyer, Mike Gassaway, plays the role in an upcoming Oliver Stone movie, W, about the Bush administration.
ABAJournal.com connects you to the story
Politics
3 running for new family court judge in Wilson County
Voters in Wilson County will fill a newly created general sessions judgeship in the August election, installing the county's first full-time family court judge who will deal only with domestic cases like divorces and probate disputes. Three are running: Haywood Barry, John T. Gwin and E. Marie Farley.
Find out more about the candidates from the Tennessean
UT Law grads race for Briley's former seat
Two Nashville lawyers -- both graduates of the University of Tennessee College of Law -- are going head-to-head to secure the statehouse seat vacated recently by Rep. Rob Briley. Eric Stansell, 35, and Mike Stewart, 43, are in a race that promises to heat up before it's over.
Read about the lawyer-candidates in the Tennessean
TennBarU CLE
Getting paid a problem? TennBarU online ethics course can help
Collecting fees is not directly addressed in the Rules of Professional Conduct, however both the rules and malpractice carriers have something to say on the issue. This online course from TennBarU explores practice management strategies to help reduce the number of non-paying clients and discusses ethical obligations for collecting fees from such clients.
Register or learn 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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