Thursday, April 02, 2009
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Supreme Court to adopt TBA-proposed pro bono rules

The Tennessee Supreme Court tomorrow will adopt three amendments to its rules that will encourage more lawyers to provide pro bono legal services to needy Tennesseans. The amendments were requested by the Tennessee Bar Association in 2008 as part of its 4ALL campaign. The amended rules will:

-- Encourage, but not require, lawyers to perform 50 hours of pro bono work each year. This provision amends Rule 6.1 of the Rules of Professional Conduct (Supreme Court Rule 8) to urge lawyers to "aspire to" do pro bono work. It also explicitly acknowledges for the first time that low-fee criminal appointed work should be credited as pro bono service. The amendment takes effect Jan. 1, 2010.
-- Allow lawyers to provide limited scope legal assistance to individuals without formally becoming the attorney-of-record or facing complicated conflict of interest tests. This provision creates a new Rule 6.5 of the Rules of Professional Conduct (Supreme Court Rule 8) and takes effect as of the filing of the order.
-- Provide lawyers with one hour of continuing legal education credit for every five hours of pro bono service performed -- reduced from the current eight-hour requirement. This provision amends Supreme Court Rule 21, Section 4.07(c) and takes effect as of the filing of the order.

In addition to these rules, the court has amended, and the state legislature has approved a TBA-requested provision allowing unclaimed class action funds to be paid to the Tennessee Voluntary Fund for Indigent Civil Representation, which will provide additional funding for legal service providers across the state. That amendment takes effect July 1.

Finally, the court will defer action on TBA's request to amend Rule 5.5 of the Rules of Professional Conduct to allow corporate counsel to provide pro bono service until such time as the court acts on a separate petition from the TBA covering multijurisdictional practice. The court also referred to its new Access to Justice Commission TBA's request that lawyers report annually on the pro bono service they perform.

Download the court's press release and orders
TODAY'S OPINIONS
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GERRY GALLIMORE, ET AL. v. REBA GALLIMORE

Court: TCA

Attorneys:

Jeffery T. Washburn, Dresden, TN, for Appellant.

James H. Bradberry, Dresden, TN, for Appellee.

Judge: HIGHERS

This case involves a dispute between a decedent's ex-wife and the decedent's heirs. When the decedent and the ex-wife divorced, their marital dissolution agreement provided that the decedent would receive certain real property. When the decedent died four years later, the ex-wife had not executed a quitclaim deed conveying her interest in the property to the decedent. Therefore, the heirs filed this action to quiet title. The ex-wife claimed that the decedent wanted her to retain her interest in the property, and she claimed that the heirs were barred from seeking relief under the doctrines of laches and waiver. The trial court found in favor of the heirs, and the ex-wife appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/gallimoreg_040209.pdf
KEVIN SERAMUR v. LIFE CARE CENTERS OF AMERICA, INC.

Court: TCA

Attorneys:

Christina L. Mack and D. Aaron Love, Chattanooga, Tennessee, for appellant, Kevin Seramur.

Sam D. Elliott, Chattanooga, Tennessee, for appellee, Life Care Centers of America, Inc.

Judge: FRANKS

Plaintiff, a former employee of defendant, brought this action to enforce an employment contract for benefits allegedly due under the contract. The Trial Court granted defendant summary judgment on the grounds that a provision in the employment contract to which the parties originally agreed to, was an unenforceable contract, as the provision amounted to an agreement to agree and dismissed the action. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2009/seramurk_040209.pdf
STATE OF TENNESSEE v. LORA ASHLEY
With Concurring Opinion

Court: TCCA

Attorneys:

Andrew Jackson Dearing and Dorothy Buck, Assistant Public Defenders, for the appellant, Lora Ashley.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; Mike McCown, District Attorney General, and Hollynn L. Hewgley, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Lora Ashley, appeals the Moore County Circuit Court's denial of alternative sentencing. Appellant pled guilty to one count of facilitation of a violation of the sex offender registry and agreed to an open plea, where the trial court was to determine the length and manner of service of the sentence. After a sentencing hearing, the trial court denied alternative sentencing on the basis that Appellant's criminal history supported a denial of alternative sentencing and that measures less restrictive than confinement had been unsuccessfully applied to Appellant. As a result, the trial court ordered her to serve eleven months and twenty-nine days in jail. Appellant appeals this decision. We determine that the record supports the trial court's denial of alternative sentencing and, therefore, affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/ashleyl_040209.pdf

THOMAS concurring
http://www.tba2.org/tba_files/TCCA/2009/ashleyl_CON_040209.pdf
STATE OF TENNESSEE v. ANTHONY BUFFORD

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant Public Defender, for the appellant, Anthony Bufford.

Robert E. Cooper, Jr. Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; James G. Woodall, District Attorney General; and Anna B. Cash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Anthony Bufford, pled guilty in October 2005 to driving after being declared a habitual motor vehicle offender, a Class E felony; simple possession of marijuana, a Class A misdemeanor; and violating the seat belt law, a Class C misdemeanor. For the Class E felony, he was sentenced as a Range II, multiple offender to four years in community corrections with sixty days to be served in jail. For the Class A misdemeanor, he received eleven months, twenty-nine days to be served on probation in the community corrections program. For the Class C misdemeanor, the defendant received thirty days' incarceration at seventy-five percent. All sentences were to be served concurrently. The trial court revoked the defendant's community corrections sentence in April 2008 after finding that the defendant failed to remain drug-free. On appeal, the defendant contends the trial court erred in removing him from community corrections and ordering him to serve his sentence in the Department of Correction. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/bufforda_040209.pdf
STATE OF TENNESSEE v. MARLIN DALE BUTTON

Court: TCCA

Attorneys:

James O. Martin, III (on appeal), Lebanon, Tennessee, and Thompson G. Kirkpartick (at trial), Manchester, Tennessee, for the appellant, Marlin Dale Button.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jason Lawson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Marlin Dale Button, pled guilty in the Wilson County Criminal Court to attempted aggravated sexual battery and received a six-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered the appellant to serve the sentence in confinement. On appeal, the appellant contends that the trial court erred by denying his request for an alternative sentence. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/buttonm_040209.pdf
JASON CALVERT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dumaka Shabazz, Nashville, Tennessee, for the appellant, Jason Calvert.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Jason Calvert, appeals from the denial of his petition for post-conviction relief. In this appeal, he claims that he received the ineffective assistance of counsel, which rendered his guilty plea unknowing and involuntary. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2009/calvertj_040209.pdf
STATE OF TENNESSEE v. DAMIEN CLARK

Court: TCCA

Attorneys:

Leslie I. Ballin, Memphis, Tennessee, for the appellant, Damien Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; William L. Gibbons, District Attorney General; and Dennis Ray Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Damien Clark, appeals from his conviction by a jury in the Criminal Court for Shelby County for second degree murder, a Class A felony. He was sentenced to twenty years' confinement as a violent offender. He contends that (1) the evidence was insufficient to support a conviction for second degree murder, (2) the trial court erred in admitting the defendant's prior robbery conviction as character evidence, (3) the trial court erred in admitting the defendant's prior robbery conviction when the probative value was outweighed by its prejudicial effect and notice of impeachment was "inadequate and inaccurate," and (4) the jury instructions requiring the jury to acquit the defendant of second degree murder before examining voluntary manslaughter as a conviction offense deprived the defendant of his constitutional rights to due process and to trial by jury. Although the required procedure was not used to admit the defendant's prior conviction, we conclude the errors were harmless, and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/clarkd_040209.pdf
JOSEPH MILES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

William Kroeger, Springfield, Tennessee, for the appellant, Joseph Miles.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; John Carney, District Attorney General, and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Joseph Miles, was convicted of second degree murder and sentenced to forty years as a Range II violent offender. His subsequent direct appeal, petition for post-conviction relief, and post- conviction appeal were unsuccessful. On February 27, 2007, Petitioner filed a motion to reopen his petition for post-conviction relief based upon the United States Supreme Court rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2005), and Cunningham v. California, 594 U.S. 270 (2007). The post-conviction court denied Petitioner's motion. Petitioner filed a notice of appeal with the trial court. Because Petitioner did not follow the requirements as set out in Tennessee Code Annotated section 40-30-117(c), which requires an application for permission to appeal to this Court for appeal from a denial of a motion to reopen, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2009/milesj_040209.pdf
CASEY L. MYLES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John H. Richardson, Jr., Fayetteville, Tennessee, for the appellant, Casey L. Myles.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Casey L. Myles, appeals the Marshall County Circuit Court's denial of his petition for post-conviction relief from his guilty pleas to five counts of selling one-half gram or more of cocaine, one count of possessing one-half gram or more of cocaine with intent to sell, one count of resisting arrest, and resulting effective twenty-year, three-month sentence. The petitioner contends that he received the ineffective assistance of trial counsel because he thought he was going to receive a sentence of ten years, three months. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/mylesc_040209.pdf
STATE OF TENNESSEE v. FRED RAMOS

Court: TCCA

Attorneys:

Geoffrey Coston, Nashville, Tennessee, for the appellant, Fred Ramos.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Douglas T. Bates, III (pro tem for contempt); Ronald L. Davis, District Attorney General; and Braden H. Boucek, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Fred Ramos ("Ramos"), an attorney, was convicted by the Williamson County Circuit Court of criminal contempt and sentenced to ten days in the county jail. On appeal, Ramos argues: (1) the trial court erred by ordering him to act as surety for costs for his client; (2) the trial court erred when it enforced the order before it became final; (3) the evidence was insufficient to support his conviction; (4) the trial court improperly sentenced him to ten days in jail; (5) he was entitled to a jury trial. Finding no reversible error, the conviction of the trial court is affirmed. However, we modify Ramos' sentence and partially reinstate his ability to practice law.

http://www.tba2.org/tba_files/TCCA/2009/ramosf_040209.pdf
STATE OF TENNESSEE v. BYRON LEBRON ROSHELL
With Dissenting Opinion

Court: TCCA

Attorneys:

James P. McNamara and Jeffrey A. DeVasher (on appeal), and Kevin McGee (at trial), Nashville, Tennessee, for the appellant, Byron Lebron Roshell.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Matthew Pietsch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, Byron Lebron Roshell, appeals his conviction by a Davidson County jury of the sale of less than .5 grams of cocaine, a Class C felony. See T.C.A. section 39-17-417 (2006). He argues that (1) the trial court erred in admitting a former co-defendant's testimony that he had bought drugs from Roshell in the past and (2) the evidence was insufficient to support his conviction. We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/roshellb_040209.pdf

TIPTON dissenting
http://www.tba2.org/tba_files/TCCA/2009/roshellb_Diss_040209.pdf
WADE P. TUCKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Wade P. Tucker, Clifton, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Wade Tucker, pled guilty to the attempted first degree murder of his estranged wife. As a result of the same incident, he was also convicted of especially aggravated robbery and aggravated burglary in a subsequent bench trial. On appeal to this Court, the aggravated burglary conviction was reversed and ordered dismissed. Appellant filed a petition for post-conviction relief which the post- conviction court denied. This Court affirmed the post-conviction court's decision. Appellant subsequently filed a "Motion to Correct an Illegal Sentence." The trial court denied the motion, and Appellant appeals from the denial. We conclude that, pursuant to Rule 3(b) of the Tennessee Rules of Appellate Procedure, Appellant does not have an appeal as of right from the trial court's denial of his motion. Therefore, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2009/tuckerw_040209.pdf
TODAY'S NEWS
Judicial Selection, Retention
Legal News
Supreme Court Report
Legislative News
Justice 4ALL
TBA Member Services
Judicial Selection, Retention
Mountain Press backs judicial selection process
The Mountain Press in Sevier County today strongly encouraged the General Assembly to keep Tennessee's method of selecting and retaining judges in place. Abandoning the current process to have appellate court judges chosen through expensive elections would degenerate the system "into a wholly political process instead of a process that emphasizes judicial temperament and legal experience," writes the paper.
Read the full editorial
Legal News
Juvenile court seeks $1.7 million in new funding
The Shelby County Juvenile Court plans to hear fewer cases after losing a longstanding state contract to collect and enforce child support payments. However, it is actively seeking additional funds from the county to fill that gap. If new funds are not provided, the court says it will redistribute cases to the circuit and chancery courts.
The Memphis Commercial Appeal has more
Afghan prisoners given access to U.S. courts
U.S. District Judge John Bates ruled today that prisoners in the war on terror being held in Afghanistan have the right to challenge their detention in U.S. court. Government officials were seeking to deny that access to detainees at Bagram Airfield. The Associated Press reported the story.
Eason appointed to Tennessee Judicial Council
Former TBA President and Chattanooga lawyer Marcy Eason has been appointed as a member of the Tennessee Judicial Council -- an advisory body that considers changes in rules, procedure or matters concerning the judicial system. The term is for four years. Eason is a member of Miller & Martin PLLC. Chattanoogan.com reported the news.
Judges hiring of family questioned
A News Channel 5 investigation reports that some Nashville judges have hired relatives as court officers despite judicial rules that prohibit nepotism. The judges say they have now reported their actions to the Court of the Judiciary.
Read more from the station
Supreme Court Report
Tennessee death row inmate wins clemency lawyer appeal
Poor death row inmates seeking clemency from state officials have a right to lawyers paid by the federal government, the U.S. Supreme Court ruled on Wednesday. The high court's 7-2 vote handed a victory to Edward Jerome Harbison, a Tennessee death row inmate convicted in the 1983 beating death of an elderly woman.
Read more on the case from the Reuters news service
Legislative News
Panel approves child testimony in abuse cases
The state Senate Judiciary Committee this week cleared a bill permitting the introduction of forensic interviews of young children as evidence in child sex abuse cases. The committee action came despite convincing testimony by David Raybin -- representing TACDL, public defenders and others -- that the bill posed practical, Confrontation Clause and Separation of Powers issues that were not, and could not be, resolved under the proposal. The bill has yet to be scheduled in the House Judiciary Committee. The measure -- SB 312 by Sen. Diane Black, R-Gallatin, and HB 619 by Rep. Debra Young Maggart, R-Hendersonville -- and an amendment can be found on the legislature's web site.
Read them here
New process for tax challenges considered
This week, the state Senate Finance Committee's Tax Subcommittee recommended for passage a measure to change the way challenges to local taxes and taxes administered by agencies other than the Department of Revenue are handled. The measure, drafted by the Tennessee Attorney General's office, is sponsored by Sen. Dwayne Bunch, R-Cleveland, and Rep. Glen Casada, R-Franklin. Read the bill
Download the proposed amendment
Bill says chat rooms OK for local officials
A measure to allow local government officials to communicate in online chat rooms without violating Tennessee's open meetings laws won full House support today. Its companion bill is awaiting action in the Senate.
Read more in the News Sentinel
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
LSC requests budget increase
The Legal Services Corporation testified before Congress yesterday and asked for a $95.8 million increase in its FY 2010 budget. Current funding is set at $390 million with $365.8 million available to local legal aid organizations. The group's budget request for next year is $485.8 million, which would make $460 million available to local agencies.
Read more from the LSC
Justice 4ALL
East Tennessee lawyers step up to meet 4-4 challenge
Forty-four lawyers from Knox, Blount and Sevier counties have already stepped forward to take on 55 unclaimed pro bono cases at Legal Aid of East Tennessee. Their efforts are part of the Meet the Need Challenge, in which attorneys are volunteering to clear all open pro bono cases in Knoxville, Maryville, Sevierville and surrounding areas. Only eight open cases remain at the agency, and volunteers working on the campaign there are optimistic that all will be assigned by April 4, the climax of the statewide Pro Bono Public Service campaign. To volunteer to take on one of the remaining cases, contact Terry Woods at Legal Aid of East Tennessee at (865) 525-3425.
Lewis to host 4ALL web cast
On Saturday, TBA President Buck Lewis will be in Nashville visiting several legal clinics and later in the day will be in Knoxville to observe pro bono efforts there. At 11:30 a.m. central time Lewis will participate in a live web cast from the Tennessee Bar Center. Tune in to watch as he talks about the 4ALL Campaign and the work being done around the state on 4-4.
Watch it here
TBA Member Services
Secure, compliant data backup service now available
The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.
Learn why lawyers trust i365 for online data backup solutions

 
 
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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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