Nominations open for Access to Justice awards

The Tennessee Bar Association's Access to Justice Committee is soliciting nominations for the 2008-2009 Access to Justice Public Services Awards, including the Ashley T. Wiltshire Public Service Attorney of the Year Award, the Harris Gilbert Pro Bono Award and the Law Student Volunteer Award. These awards will be presented at the TBA Public Service Awards Luncheon, Jan. 17, 2009. The deadline for nominations is Aug. 22. Find out more and submit your nomination here:

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Court: TCA


John P. Konvalinka and Katherine Higgason Lentz, Chattanooga, Tennessee, for the Appellants, Donald H. Chamberlain, M.D., and Chattanooga Gyn-Oncology, LLC.

James T. Williams and Neil A. Brunetz, Chattanooga, Tennessee, for the Appellee, Stephen E. DePasquale, M.D.


Stephen E. DePasquale, M.D. ("Plaintiff") was employed by Chattanooga Gyn-Oncology, LLC. Plaintiff's employment was terminated in August 2006. The parties entered into a negotiated settlement agreement (the "Agreement"), whereby Plaintiff was to receive $49,500 in severance pay, conditioned upon his abiding by the terms of the Agreement. The Agreement also provided that if either party defaulted, the non-defaulting party was entitled to attorney fees if suit was filed to enforce the terms of the Agreement. When Plaintiff did not receive payment, he filed this suit to enforce the terms of the Agreement and sought damages in the amount of $49,500, plus interest and attorney fees. Donald H. Chamberlain, M.D. and Chattanooga Gyn-Oncology, LLC ("Defendants") claimed Plaintiff had breached the terms of the Agreement and was not entitled to any severance pay. Defendants also sought an award of attorney fees. Following a trial, the Trial Court determined that Plaintiff had breached the Agreement and was not entitled to any severance pay. The Trial Court further determined that Defendants were not entitled to an award of attorney fees. Defendants appeal claiming the Trial Court erred when it refused to award them attorney fees. Plaintiff raises a separate issue, claiming that the Trial Court erred when it determined that he had breached the Agreement. We reverse the Trial Court's judgment against Plaintiff, and remand for the entry of judgment in favor of Plaintiff for $49,500, plus attorney fees to be determined by the Trial Court.


Court: TCCA


Jheri Beth Rich, Lewisburg, Tennessee, for the appellant, Heath Brent Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Mike McCowen, District Attorney General and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Heath Brent Clark, was indicted by the Marshall County Grand Jury for multiple offenses including burglaries, thefts, vandalism and evading arrest. He pled guilty to all the charges. At a sentencing hearing, Appellant was sentenced as a Range II multiple offender to an effective sentence of eighteen years. Appellant asserts on appeal that the trial court improperly denied an alternative sentence and that consecutive sentencing was excessive given the fact that the offenses all occurred during a twenty-four hour period of time. We conclude that the trial court properly denied alternative sentencing and that despite Appellant's waiver of the issue regarding consecutive sentencing, the trial court properly ordered consecutive sentencing. Therefore, the judgments of the trial court are affirmed.


Court: TCCA


Anthony L. Harris, pro se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State's motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, Anthony Harris, has appealed the trial court's order dismissing his petition for writ of habeas corpus in which Petitioner alleged that he was ineffectively represented and that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for habeas corpus relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.


Court: TCCA


Patrick T. McNally, Nashville, Tennessee, for appellant, Jeffrey Mark Klocko. It is the policy of this Court to refer to minor victims by their initials. For privacy reasons, we will also refer to the victim's mother and brother by their initials.

Robert E. Cooper, Jr., Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant was convicted by a Davidson County jury of three counts of aggravated sexual battery, six counts of sexual battery by an authority figure and one count of assault by offensive or provocative contact in connection with allegations made by his step-daughter, A.R., and her friend, B.M. Following a sentencing hearing, the trial court sentenced Appellant to eight years for each aggravated sexual battery conviction, to be served concurrently, three years for each sexual battery by an authority figure conviction, two of those terms to be served consecutively to each other and consecutively to the concurrent eight-year sentences. The remaining sentences were all ordered to be served concurrently. Appellant's effective sentence was fourteen years. On appeal, Appellant argues that the trial court erred in: (1) denying his motion pursuant to Rule 412 of the Tennessee Rules of Evidence concerning A.R.ís prior sexual conduct; (2) denying his motion for judgment of acquittal upon the close of the State's proof; (3) overruling his objections to certain questions asked by the State and allowing the State to make inflammatory statements during closing and rebuttal arguments; and (4) sentencing Appellant to consecutive sentences. We affirm the trial court's denial of Appellant's motion under Rule 412 and motion for judgment of acquittal. We likewise find no prosecutorial misconduct that warrants the reversal of Appellant's convictions. We have, however, determined that Appellant's case must be remanded for resentencing because the trial court failed to make findings with regard to the imposition of consecutive sentencing. We affirm the Appellant's convictions in all other respects. Therefore, we affirm in part, vacate Appellant's sentence, and remand for resentencing.


Court: TCCA


Johnny L. McGowan, Jr., Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Elaine Wilber, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.


The Petitioner, Johnny L. McGowan, Jr., appeals from the trial court's dismissal of his petition for a writ of error coram nobis. The State has filed a motion requesting that this Court affirm the trial courtís denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.


Court: TCCA


John B. Nisbet, III, (on appeal) and Joe L. Finley (at trial), Cookeville, Tennessee, for the Appellant, Robert Bradley Spivey.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany, Assistant Attorney General; William E. Gibson, District Attorney General; Mark E. Gore, Assistant District Attorney General, for the Appellee, State of Tennessee.


After a bench trial, the Defendant was convicted of: Driving Under the Influence ("DUI"), third offense; possession of a prohibited weapon; and driving on a revoked license. The trial court sentenced the Defendant to an effective sentence of eleven months and twenty-nine days to be served in jail. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his DUI conviction; and (2) the trial court erred when sentencing him. Finding no error, we affirm the judgments of the trial court.


Court: TCCA


Mark C. Scruggs, Nashville, Tennessee, for the appellant, Franklin Doug Sweeney, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Sharon Reddick, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Franklin Doug Sweeney, Jr., was indicted by the Davidson County Grand Jury for one count of arson and one count of vandalism of property valued at over $60,000. Appellant was found guilty by a jury of both charges. The trial court sentenced Appellant to three years for arson and eight years for vandalism as a Range I standard offender. After the denial of a motion for new trial, Appellant sought an appeal. On appeal, Appellant contends that: (1) the trial court erred by failing to allow Appellant to cross-examine witnesses on various issues; (2) Appellant cannot be convicted of vandalizing property in which he has a possessory interest; (3) the trial court should have instructed the jury to reduce the value of the property vandalized by the amount of Appellant's interest in the property; and (4) the trial court erred by denying alternative sentencing. Following a review of the record and the parties briefs, we conclude that the trial court properly ruled on evidentiary issues, that the evidence supported the convictions, and that the trial court properly denied alternative sentencing. Further, we conclude that the trial court's failure to instruct the jury as to the effect of Appellant's interest in the value of the property vandalized was harmless error. Accordingly, the judgments of the trial court are affirmed.


Court: TCCA


Isaac T. Conner, Nashville, Tennessee, for the appellant, Fredrick Tucker.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Fredrick Tucker, appeals the Davidson County Criminal Courtís denial of his petition for post-conviction relief from his jury conviction for child rape and resulting twenty-one-year sentence. He contends that he received the ineffective assistance of counsel because his trial attorney (1) failed to attack the victimís credibility aggressively during cross-examination and (2) failed to call any favorable witnesses on his behalf. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

Applicability of Section 6 of Chapter 170 of Public Acts of 2007

TN Attorney General Opinions

Date: 2008-07-15

Opinion Number: 08-123


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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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