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Tuesday, April 06, 2010

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AG: Federal law preempts challenge to health reform

In an opinion issued today, Tennessee Attorney General Robert E. Cooper disagrees with nearly two dozen other state attorneys general who have filed suit challenging the federal health insurance reform act in the courts. He says that attempts to nullify the act are likely unconstitutional themselves, and furthermore, if the state legislature wants to challenge the reforms, the legislature will have to hire its own lawyer and appropriate the money to pay for it.

The Commercial Appeal reports

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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MARK WAYMAN d/b/a ABLE TOWING v. TRANSPORTATION LICENSING COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Mark Wayman d/b/a Able Towing.

Sue B. Cain, Director of Law, Lora Barkenbus Fox and Paul Jefferson Campbell, Assistant Metropolitan Attorneys, Nashville, Tennessee, for the appellees, Transportation and Licensing Commission of the Metropolitan Government of Nashville and Davidson County, Tennessee.

Judge: FARMER

The Transportation Licensing Commission revoked Petitioner's license to operate a wrecker service. The chancery court upheld the revocation. We affirm.

http://www.tba2.org/tba_files/TCA/2010/waymanm_040610.pdf

STATE OF TENNESSEE v. SIDNEY TERRELL CASON

Court: TCCA

Attorneys:

Manuel B. Russ, Nashville, Tennessee, for the appellant, Sidney Terrell Cason.

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

Judge: WELLES

The Defendant, Sidney Terrell Cason, was charged with one count of first degree felony murder, one count of especially aggravated robbery, a Class A felony, two counts of aggravated robbery, a Class B felony, and one count of aggravated kidnapping, a Class B felony. See Tenn. Code Ann. sections 39-13-403(b), -402(b), -304(b)(1). On August 11, 2008, he pleaded guilty to one count of especially aggravated robbery and one count of second degree murder, a Class A felony. See Tenn. Code Ann. section 39-13-210(c). He was sentenced on that day as a violent offender to concurrent sentences of forty years as a Range II, multiple offender for second degree murder and fifteen years as a Range I, standard offender for especially aggravated robbery, for a total effective sentence of forty years in the Department of Correction. On September 9, 2008, he filed a motion to withdraw his guilty plea. The Criminal Court of Davidson County denied the motion. The Defendant now appeals, contending that this denial was error. After our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/casons_040610.pdf

STATE OF TENNESSEE v. QUORTEZ DESHAWN DUNCAN

Court: TCCA

Attorneys:

Michael D. Cox, Columbia, Tennessee, for the appellant, Quortez Deshawn Duncan.

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

Judge: WELLES

The Defendant, Quortez Deshawn Duncan, was convicted by a Maury County jury of possession of .5 grams or more of cocaine with the intent to sell, a Class B felony. The trial court sentenced the Defendant to nine years in the Department of Correction, to be suspended after service of one year. In this direct appeal, the Defendant argues that the evidence is insufficient to support his conviction and that his sentence is excessive. Concluding that the evidence is sufficient and that the Defendant's sentence is consistent with our 1989 Criminal Sentencing Reform Act and its amendments, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/duncanq_040610.pdf

HENRY ZILLON FELTS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert E. Cooper, Attorney General and Reporter; David H. Findley, Senior Counsel; Lawrence R. Whitley, District Attorney General; and C. Ronald Blanton, Assistant District Attorney General, for the appellant, State of Tennessee.

Gregory D. Smith, Clarksville, Tennessee, for the appellee, Henry Zillon Felts.

Judge: WELLES

Following a jury trial, the Petitioner, Henry Zillon Felts, was convicted of attempted first degree murder and aggravated burglary. He was sentenced to twenty-one years in the Department of Correction. This Court affirmed his convictions and sentences. See State v. Henry Zillon Felts, No. M2005-01215-CCA-R3-CD, 2006 WL 2563374 (Tenn. Crim. App., Nashville, Aug. 25, 2006). He subsequently petitioned for post-conviction relief. The Criminal Court of Sumner County found that the Petitioner received the ineffective assistance of counsel at trial because: (1) trial counsel failed to fulfill his promise to the jury that the Petitioner would testify; and (2) trial counsel failed to argue attempted voluntary manslaughter as a defense. The post-conviction court thus set aside the Petitioner's convictions and granted him a new trial. In this appeal, the State contends that the post- conviction court erred in granting the Petitioner relief. After our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/feltsh_040610.pdf

STATE OF TENNESSEE v. FLINT GREEN

Court: TCCA

Attorneys:

Randall D. Flemming, Kingsport, Tennessee, for the appellant, Flint Green.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kent Chitwood, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Flint Green, was convicted by a jury in the Sullivan County Criminal Court of possession of 26 grams or more of cocaine with the intent to sell, a Class B felony, and possession of marijuana, a Class A misdemeanor. The trial court imposed a total effective sentence of twenty years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his convictions and the trial court's refusal to grant his motion for a new trial based upon two jurors observing him "in custody" during trial. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/greenf_040610.pdf

STATE OF TENNESSEE v. ANDREW HUNTER HEFFEL

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellant, State of Tennessee.

John Russell Parkes, Columbia, Tennessee, for the appellee, Andrew Hunter Heffel.

Judge: WELLES

The Defendant, Andrew Hunter Heffel, was charged with one count of driving under the influence of an intoxicant. Before trial, he moved to suppress certain incriminating statements he made. The trial court granted his motion to suppress. The State was granted an interlocutory appeal from the order of the trial court suppressing the Defendant's statements. We reverse the order of the trial court and remand for further proceedings.

http://www.tba2.org/tba_files/TCCA/2010/heffela_040610.pdf

STATE OF TENNESSEE v. MYRTLE B. LAMBERT

Court: TCCA

Attorneys:

Clifton Corker, Johnson City, Tennessee (on appeal); and Frank L. Slaughter, Jr., Bristol, Tennessee (at trial), for the appellant, Myrtle B. Lambert.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Myrtle B. Lambert, appeals from her guilty-pleaded convictions of several counts of identity theft, forgery, and theft. On appeal, she argues that the trial court erroneously concluded that it was without jurisdiction to consider a pro se letter filed with the court on March 4, 2008, which, she claims, should have been treated as a motion to withdraw her guilty plea. Although we find the defendant's argument misplaced, we conclude that the court had jurisdiction to consider the defendant's March 4, 2008 letter as a notice that the defendant would proceed pro se until having counsel appointed and her March 25, 2008 letter as a filing challenging jurisdiction. Because the defendant, though technically represented by retained counsel, had expressed that her relationship with counsel had ended, we hold that the trial court should have considered the letter as a pro se motion for an arrest of judgment. Because the record before this court is insufficient to determine whether Sullivan County possessed territorial jurisdiction to convict the defendant, we remand to the trial court for further fact finding.

http://www.tba2.org/tba_files/TCCA/2010/lambertm_040610.pdf

STATE OF TENNESSEE v. ROY ROWE, JR.

Court: TCCA

Attorneys:

Michael J. Collins, Lebanon, Tennessee, for the Appellant, Roy Rowe, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lindsy Paduch Stempel, Assistant Attorney General; Charles Crawford, District Attorney General; Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Roy Rowe, Jr., pled guilty to seventeen counts of sale of a controlled substance, and, after merging several of the counts, the trial court sentenced him as a Range I offender to an effective sentence of six years. The trial court imposed a split sentence, ordering that the Defendant serve 365 days in the county jail, with the remainder of his sentence to be served on probation. On appeal, the Defendant contends that the trial court erred when it enhanced his sentence to the maximum within the range. After reviewing the record and applicable authorities, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2010/rower_040610.pdf

STATE OF TENNESSEE v. JOHN LEE SHIELDS

Court: TCCA

Attorneys:

Kenneth Lee Miller, Cleveland, Tennessee, attorney for appellant, John Lee Shields.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; R. Steven Bebb, District Attorney General; and Stephen Hatchett, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, John Lee Shields, pled guilty to one count of reckless aggravated assault, a Class D felony, with sentencing left to the determination of the trial court. Following a sentencing hearing, the trial court sentenced the Defendant to two years suspended to probation after the service of ten months incarceration in the county jail. In this appeal as of right, the Defendant contends that the trial court erred in sentencing him to split confinement. Following our review, we affirm the judgment of the trial court as modified by this opinion.

http://www.tba2.org/tba_files/TCCA/2010/shieldsj_040610.pdf

JAMES P. STOUT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James Stout, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Petitioner, James Stout, of one count of especially aggravated robbery, and the trial court sentenced the Petitioner, a Range II offender, to forty years in the Tennessee Department of Correction ("TDOC"). The Petitioner filed a petition for habeas corpus relief, his second such petition, alleging that his conviction is void because: (1) his indictment was void because the grand jury foreperson issuing the indictment was appointed by a Shelby County trial judge; (2) his sentence is unconstitutional because, on the judgment of conviction, the trial judge checked both boxes indicating that his sentence should run at 35% and 100%. The habeas corpus court denied the petition, and the Petitioner appeals that judgment. Finding no error, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2010/stoutj_040610.pdf

WILLIAM HUNTER WILLIAMS v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

William Hunter Williams, Jr., Mountain City, Tennessee, Pro Se.

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

Judge: TIPTON

The pro se Petitioner, William Hunter Williams, appeals from the trial court's order denying his petition for the writ of habeas corpus. The State has filed a motion requesting that this court affirm the order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petition fails to state a cognizable claim for habeas corpus relief. The State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/williamsw_040610.pdf

Funding Unemployment Benefit Claims

TN Attorney General Opinions

Date: 2010-04-06

Opinion Number: 10-41

http://www.tba2.org/tba_files/AG/2010/ag_10_41.pdf

Constitutionality of Constitutional Amendment Endorsing Free Enterprise

TN Attorney General Opinions

Date: 2010-04-06

Opinion Number: 10-42

http://www.tba2.org/tba_files/AG/2010/ag_10_42.pdf

Validity of SB 3498/HB 3433 and HJR 745 relative to health care

TN Attorney General Opinions

Date: 2010-04-06

Opinion Number: 10-43

http://www.tba2.org/tba_files/AG/2010/ag_10_43.pdf

TODAY'S NEWS

Legislative News
Legal News
Politics
Passages
Your Practice
TBA Member Services

Legislative News

'Split the Baby' bill withdrawn by sponsor

The so-called "split the baby" bill is likely dead this session after its sponsor Rep. Mike Bell withdrew it from the House Children and Family Affairs Committee today. Bell said he decided to withdraw the proposal after an amendment was added that sought to give divorcees the "maximum time" possible with a child, instead of dividing the time equally. "This amendment ... doesn't do anything to change the current law," Bell said. "And in fact, it might even give some people false hope that we've done something productive with this amendment."

The Tennessean has this story

Legal News

Court gives FCC 'serious setback' in Net-neutrality

The U.S. Circuit Court of Appeals for the District of Columbia ruled today that the Federal Communications Commission lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks. That was a big victory for Comcast Corp., the largest U.S. cable company, which had challenged the FCC's authority to impose such "Net neutrality" obligations on broadband providers.

The First Amendment Center carried this AP story

It's good the writing gig worked out for him

"I only practiced law for 10 years, and after doing it for five years in a small town with a lot of competition and ambulance-chasing," John Grisham told students at Yale Law School yesterday, "I didn't like it at all." Fortunately, his legal thrillers became best-sellers, making it possible for him to stop working as an attorney.

The Yale Daily News has more

Politics

Former state rep considers running against House speaker again

Former state Rep. Jerome Cochran has filed papers to challenge House Speaker Kent Williams in this fall's election, but he told the Johnson City Press for Friday's editions that he's not sure if he will follow through with another bid for office. Williams beat Cochran in the past two Republican primaries. Candidates have until Thursday to remove their names from the ballot. In the race to fill the seat being vacated by House Majority Leader Jason Mumpower -- who was the Republican nominee for speaker beaten by Williams last year -- there are now seven Republican candidates seeking the party's nomination.

Learn more from the Johnson City Press

Ford: Travel reimbursement bill 'insulting'

Sen. Ophelia Ford of Memphis expressed outrage at the proposal that was approved 29-2 by the Senate today, which would limit lawmakers' reimbursement for air travel inside Tennessee. Ford said that the measure passed Monday by the Senate is unfair and "insulting." Ford said the measure is unfair to individuals who may be unable to drive because of a medical condition or illness.

The Commercial Appeal has the story

Who do lawyers think would be best clerk?

A majority of Nashville Bar Association members said in a poll that they recommend Davidson County Circuit Court Clerk Richard Rooker and Criminal Court Clerk David Torrence in next month's elections for those posts. General Sessions Court officer David Smith got higher marks than anyone else in the crowded Juvenile Court clerk race. Most of the 711 NBA members who responded said they do not recommend incumbent Juvenile Court Clerk Vic Lineweaver or Councilman Eric Crafton for the job. The Tennessean's blog InSession reported the findings.

Download the poll results

Passages

Services set for 'Manny' Scarmoutsos

Memphis lawyer Emanuel "Manny" Peter Scarmoutsos died April 4. He was 80. A 1957 graduate of Southern Law Universitym he practiced law in Memphis for 49 years until he retired in 2009. Visitation will be from 5 to 7 p.m. April 8 at Memorial Park Funeral Home. Services will be April 9 at Annunciation Greek Orthodox Church at 11 a.m. Burial will be at West Tennessee Veterans Cemetery, with military honors. The family requests that memorials be sent to the Andrew Scarmoutsos Scholarship fund, in care of Charles Patton, Attorney at Law, 5100 Poplar Ave., Suite 2723, Memphis TN 38137.

Read his obituary

Your Practice

Virtual offices violate ethics rules in NJ

Lawyers who rent offices under time-sharing arrangements may violate New Jersey ethics rules if they hold out these workplaces as their principal place of business, according to a recent ethics opinion in that state. Such virtual offices violate the state requirement for a "bona fide" office, The purpose of which is, according to the opinion, to make sure lawyers are available and can be found by clients.