Merit selection bills on hold for one week

A technical issue regarding the referral of one of the proposals to continue merit selection and retention elections led the House Judiciary Committee today to defer action on all three proposals for one week. The three proposals -- HB1892 by Kent Coleman/SB1715 by Doug Overbey, HB2141 by Jon Lundberg/SB2114 by Mark Norris, and HB1448 by Joe McCord and Kent Coleman/SB1573 by Jamie Woodson and Joe Haynes -- all contain provisions to continue a merit selection process before the governor can appoint a judge to fill a vacancy and continue retention elections for appellate judges. There are minor differences among the bills on the role the selection panel will play, the number of nominees and the degree to which the commission process would be required to be conducted under the gaze of the applicants, their supporters and the public.

The committee seemed poised to recommend all three bills for consideration by the House Government Operations Committee, which must comment on the creation or continuation of any state entity but which can not defeat a bill. Because the original bill by Rep. Joe McCord did not reset the selection commission, as it now does with the amendment adopted by the committee, the technical issue was whether it needed to be referred to the Government Operations Committee. That question has now been resolved in the affirmative.
TODAY'S OPINIONS
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DEBORAH M. GENTILE v. MICHAEL C. GENTILE

Court: TCA

Attorneys:

Connie Reguli and Deana Hood, Brentwood, Tennessee, for the Appellant, Michael C. Gentile.

Dana C. McLendon, III, Franklin, Tennessee, for the Appellee, Deborah M. Gentile.

Judge: FARMER

The trial court found Husband to be in criminal contempt during the pendency of a contested divorce action and imposed a sentence of ten days in jail, suspending eight days conditioned upon Husband's completion of a parenting class. The trial court did not find Wife in contempt for failure to comply with its discovery order. Husband appeals. We reverse in part and affirm in part.

http://www.tba2.org/tba_files/TCA/2009/gentiled_041509.pdf


IN THE MATTER OF K.F.

Court: TCA

Attorneys:

G. Avery Mott, Nashville, Tennessee, for the appellant, W.P.F.

Robert E. Cooper, Jr., Attorney General and Reporter, Rebekah A. Baker, Assistant Attorney General; for the appellee; Susan H. Hubbard, Guardian Ad Litem, in support of appellee, State of Tennessee, Department of Children's Services.

Judge: COTTRELL

The trial court terminated the parental rights of the father of a sixteen year old girl on multiple grounds, finding that those grounds had been established by clear and convincing evidence and that termination was in the best interest of the child. The father challenges the court's findings on appeal, arguing among other things that the Department of Children's Services did not make reasonable efforts to unify his family. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2009/kf_041509.pdf


TIMOTHY DISMUKES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Isaac T. Conner, Nashville,Tennessee, for the appellant, Timothy Dismukes.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Victor S. Johnson, III, District Attorney General, and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Timothy Dismukes, pled guilty to aggravated assault and felon in possession of a weapon stemming from incidents on November 22, 2002. Pursuant to the plea agreement, Petitioner was sentenced to an effective sentence of six years and one month as a Range II offender. Subsequently, on March 9, 2006, Petitioner filed a Petition for post-conviction relief. After conducting an evidentiary hearing, the post-conviction court denied and dismissed the petition. On appeal to this Court, Petitioner argues that the post-conviction court erred in denying and dismissing his petition because his plea was involuntary and unknowing due to the ineffective assistance of counsel. After a thorough review of the record, we conclude that Petitioner has not shown that his counsel was ineffective in plea bargaining. Therefore, he has not proven that his plea was entered involuntarily or unknowingly. We affirm the post-conviction court's decision.

http://www.tba2.org/tba_files/TCCA/2009/dismukest_041509.pdf


LORENZO HERRON v. CHERRY LINDAMOOD, WARDEN and STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lorezo Herron, Pro Se, Henning, Tennessee.

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

Judge: SMITH

Petitioner, Lorenzo Herron, was convicted of murder and sentenced to life in prison. Petitioner unsuccessfully sought relief on direct appeal and via a post-conviction petition. See State v. Lorenzo Herron, No. 72, 1991 WL 99541 (Tenn. Crim. App., at Jackson, Jun. 12, 1991), perm. app. denied, (Tenn., Jan. 27, 1992); Lorenzo Herron v. State, No. 02-C-9605-CR- 00141 (Tenn. Crim. App., at Jackson, July 28, 1997), perm. app. denied, (Tenn., Apr. 20, 1998). Petitioner subsequently sought habeas corpus relief on the basis that the indictment was fatally defective. The dismissal of his petition for habeas corpus relief was affirmed by this Court on appeal. Lorenzo Herron v. State, No. M2007-00696-CCA-R3-HC, 2007 WL 4232792 (Tenn. Crim. App., at Nashville, Dec. 3, 2007). Petitioner now seeks habeas corpus relief on the basis that the trial court lacked subject matter jurisdiction because the affidavit of complaint in the warrant for Petitioner's arrest is "void on its face." After the trial court summarily dismissed the petition, Petitioner filed a timely notice of appeal. Because we determine that the petition does not comply with the procedural requirements for habeas corpus relief and the petition fails to state a cognizable claim, we affirm the dismissal of the habeas corpus petition.

http://www.tba2.org/tba_files/TCCA/2009/herronl_041509.pdf


KEITH JACKSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Keith Jackson, pro se.

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

Judge: SMITH

The Appellant, Keith Jackson, appeals the trial court's dismissal of his petition for habeas corpus relief. The Appellant's sentence has not expired and the trial court acted within its jurisdiction when it imposed the Appellant's sentence. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/jacksonk_041509.pdf


STATE OF TENNESSEE v. DANYEL D. MARTIN

Court: TCCA

Attorneys:

Trudy L. Bloodworth, Franklin, Tennessee (on appeal); and Paul J. Bruno, Nashville, Tennessee (at guilty plea and sentencing hearing), for the appellant, Danyel D. Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Kim R. Helper, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant, Danyel D. Martin, pled guilty to one count of driving on a revoked license, third offense, a Class A misdemeanor, and was sentenced to eleven months, twenty-nine days, with the sentence to be suspended after serving 120 days in jail. The defendant appeals, claiming that the trial court's sentence was excessive. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/martind_041509.pdf


STATE OF TENNESSEE v. EMMETT RUSSELL MCGEE, JR.

Court: TCCA

Attorneys:

Fannie J. Harris, Nashville, Tennessee, for the appellant, Emmett Russell McGee, Jr.

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

Judge: SMITH

After the trial court denied a motion to suppress the evidence seized as a result of a warrantless search of Appellant's residence, Appellant, Emmett Russell McGee, Jr., pled guilty to two counts of possession of more than .5 grams of cocaine with the intent to sell. In exchange for the guilty pleas, Appellant received an effective sentence of twenty-one years. Appellant reserved the following certified questions of law for appeal: (1) Did the trial court err in denying the Defendant's Motion to Suppress on the grounds that the police officers had no warrant, consent or exigent circumstances to enter the defendant's residence? (2) Did the trial court err in denying the Defendant's Motion to Suppress the Search Warrant on the grounds that probable cause, stated in the affidavit in support of the search warrant, was insufficient in that it was based on information obtained from an uncorroborated criminal informant and from the officers' plain view observations during a warrantless entry into the residence? We determine that the trial court properly denied the motion to suppress where the initial seizure occurred after police officers entered the residence without a warrant based on exigent circumstances. We further determine that the validity of the search warrant is not dispositive of the case on the basis that the motion to suppress was properly denied. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/mcgeee_041509.pdf


STATE OF TENNESSEE v. LARRY CARNELL PITTMAN

Court: TCCA

Attorneys:

Ryan B. Feeney, Selmer, Tennessee (on appeal); and Benjamin C. Mayo, Jackson, Tennessee (at trial), for the appellant, Larry Carnell Pittman.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In February 2006, the Madison County Grand Jury indicted the defendant, Larry Carnell Pittman, on one count of especially aggravated kidnapping, a Class A felony, one count of aggravated robbery, a Class B felony, and one count of conspiracy to commit aggravated robbery, a Class C felony. Following a jury trial, the defendant was convicted of all three counts of the indictment. The trial court sentenced the defendant to thirty-eight years as a Range II, violent offender for his especially aggravated kidnapping conviction, nineteen years as a Range II, multiple offender for the aggravated robbery conviction, and nine years as a Range II, multiple offender for the conspiracy to commit aggravated robbery conviction. The trial court ordered that all sentences be served consecutively. On appeal, the defendant argues that: (1) the trial court erred by failing to grant his motion to suppress evidence; (2) the trial court erred by failing to grant his motion for a continuance; (3) the evidence produced at trial was insufficient to support his convictions; and (4) the trial court imposed excessive sentences. After reviewing the record, we discern no error and affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/pittmanl_041509.pdf


STATE OF TENNESSEE v. ANTHONY POOLE

Court: TCCA

Attorneys:

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Anthony Poole.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and James Wax and David Pritchard, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Shelby County jury convicted the appellant, Anthony Poole, of second degree murder, and the trial court sentenced the appellant to twenty-four years in the Tennessee Department of Correction. This appeal followed, with the appellant arguing that the trial court erred by (1) failing to instruct the jury to disregard a hearsay statement by the victim; (2) excluding the testimony of a mental health expert; (3) giving a sequential, "acquittal-first" instruction to the jury; and (4) imposing a twenty-four-year sentence in contravention of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Upon review, we modify the appellant's sentence to nineteen years. In all other respects, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/poolea_041509.pdf


JOHNNY JUSTIN POSTLES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul E. Meyers, Jackson, Tennessee, for the appellant, Johnny Justin Postles.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Johnny Justin Postles, appeals from the post-conviction court's denial of post- conviction relief as it relates to the petitioner's convictions for aggravated criminal trespass and assault in case assignment 04-720, and aggravated assault, aggravated burglary, and theft under $500 in case assignment 04-721. On appeal, he contends that the post-conviction court erred in denying relief based on his claim of ineffective assistance of counsel. 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/2009/postlesj_041509.pdf


WILLIAM T. SANDERS V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

William T. Sanders, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, William T. Sanders, appeals the trial court's denial of his petition for writ of habeas corpus. The State has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We grant the motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/sandersw_041509.pdf


STATE OF TENNESSEE v. DERRICK SORRELL

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender, and Phyllis Aluko and Jim Hale, Assistant Public Defenders, for the appellant, Derrick Sorrell.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dennis Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Derrick Sorrell, was convicted of one count of first degree premeditated murder and one count of first degree felony murder. The trial court merged the convictions, and this appeal followed. On appeal, the defendant argues that the evidence was insufficient to support his convictions, that the indictment was improper, that the trial court improperly admitted evidence, and that the trial court did not adequately instruct the jury. After careful review, we conclude no reversible error exists and affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2009/sorrelld_041509.pdf


STATE OF TENNESSEE v. TONY WOLFE

Court: TCCA

Attorneys:

Charles R. Curbo and Michael McCullar, Memphis, Tennessee, for the appellant, Tony Wolfe.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Tony Wolfe, was convicted of first degree premeditated murder. On appeal, he argues that: 1) the trial court was prejudiced against defense counsel during the course of the trial; 2) the trial court abused its discretion by conducting trial during the evening; 3) the assistant district attorney general intentionally distracted trial counsel during the course of the trial; 4) the jury did not see all the exhibits presented during trial; 5) the assistant district attorney general manipulated the slide projector during trial; 6) the trial court erred by not allowing the defendant to remove his clothing and show his scars from injuries sustained in a 1997 shooting; and 7) the trial court abused its discretion in denying his motion for the jury to visit the crime scene. After careful review, we conclude that no reversible error exists and affirm the judgment from the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wolfet_041509.pdf


TODAY'S NEWS

Legal News
Legislative News
Supreme Court Report
Passages
Upcoming
TBA Member Services

Legal News
Lawyers needed for Murfreesboro disaster clinics
The Rutherford/Cannon County Bar Association will host free legal clinics for the next four Saturdays to provide legal assistance to tornado victims in Murfreesboro. The first clinic is scheduled for this Saturday, April 18. Issues to be addressed include insurance claims, contract reviews, probate and drafting of basic documents such as wills, powers of attorney and living wills. The clinics will be held at the offices of Blankenship & Blankenship PLLC located at 307 Hickerson Drive, Murfreesboro, 37129. To volunteer please contact the law office at (615) 893-4160 or lori@blankenshiplawoffice.com

Tennessee delegation to join ABA summit
A delegation of Tennessee lawyers, led by state Supreme Court Chief Justice Janice M. Holder, will participate in an upcoming American Bar Association summit designed to foster cooperation and communication among state government agencies with justice system responsibilities. More than 30 states will participate in the event, which will be held May 7-9 in Charlotte. Other members of the Tennessee delegation will be Steven Elkins, legal counsel to the governor; state Sen. Jamie Woodson; state Sen. Doug Overbey; state Rep. Kent Coleman; Elizabeth Sykes, AOC director; Buck Lewis, president of the Tennessee Bar Association; and Allan F. Ramsaur, executive director of the TBA.
Learn more on the ABA Web site
Kagan won't appear before high court this term
The nation's new solicitor general, Elena Kagan, will wait until the U.S. Supreme Court's next term, which begins in October, before arguing a case before the justices. Justice Department watchers had suggested she might participate in an important voting rights case set for argument April 29, but a spokesman for the department said she will focus on setting up her office for now.
The Blog of LegalTimes reports
ACLU demands schools stop blocking gay Web sites
The American Civil Liberties Union is demanding that 107 of Tennessee's public school systems stop "illegally preventing students from accessing online information about lesbian, gay, bisexual and transgender issues." In letters to the school systems, the group says it will file lawsuits if its demands are not met by April 29.
Learn more in the News Sentinel
New venture to charge for online news
Steven Brill -- the founder of Court TV and American Lawyer magazine -- is now joining an effort to bundle online newspaper and magazine content into a subscription package. The new venture, called Journalism Online, appears ready to handle antitrust, copyright or other legal concerns triggered by its plans. The company's board of advisers includes prominent antitrust lawyer David Boies and Theodore Olson, former U.S. solicitor general.
The Associated Press reports
Are justices serving too long?
Writing in a New York Times op-ed, Duke University law professor Paul Carrington says U.S. Supreme Court justices don't know when it's time to retire and that some, even those seriously unfit, have held on to power and status long beyond what was reasonable. To address the issue, he calls on Congress to establish a discipline committee that would hear complaints against justices and request their retirement when necessary.
Read the editorial
Vote for your favorite legal Web site
The 13th annual Webby Awards competition is underway with five Web sites vying for the "favorite legal Web site" honor. They are Get Legal, Immigration Advocates, JURIST, WomensLaw and Workplace Fairness
Cast your vote here
Legislative News
Senate panel kills bill to elect constitutional officers
A proposal to amend the Tennessee Constitution to popularly elect the lieutenant governor and secretary of state failed yesterday in the Senate Judiciary Committee. Chairwoman Mae Beavers, R-Mt. Juliet, said she voted against the measure because it did not include direct election of the attorney general.
The Memphis Daily News has this AP story
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
Supreme Court Report
Ginsburg laments status as court's only woman
Speaking at a law student symposium at Ohio State University recently, Justice Ruth Bader Ginsburg said it's lonely being the only female on the U.S. Supreme Court and that women bring a life experience to the bench that men cannot. Ginsburg also said she wants to match the tenure of Justice Louis Brandeis, who served for more than two decades until the age 82. The Associated Press reported on her remarks.

Passages
Carroll County bar honorary pallbearers for former judge
Retired attorney Raymond Lynn Ivey, 65, of Huntingdon died April 9. A native of Carroll County, Ivey earned his law degree in 1974 from the University of Tennessee College of Law and served with the law firm of Ivey, Parish & Johns. He also served as Huntingdon municipal judge. Funeral services were held April 12 in the Chapel of Chase Funeral Home. Interment followed in the Palmer Shelter Cemetery with members of the Carroll County Bar Association serving as honorary pallbearers. The Carroll County News-Leader reported the news.

Upcoming
Northeast Tenn. CASA launches fundraiser
Court Appointed Special Advocates of Northeast Tennessee has kicked-off a 15-month-long campaign intended to raise $75,000 for the organization. The group plans to use the money to fund a third volunteer coordinator for two years, which will allow CASA to take on 100 or more additional cases per year. Fundraising events in the works include a barbeque sale and motorcycle ride. For information on these and other opportunities to give call the agency at (423) 461-3500. The Valley Beautiful Beacon reported the news.

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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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