Friday, January 07, 2011
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Need for judicial appointments creates 'dire' situation

When President Obama renominated 42 judicial candidates recently because they were not voted on before 2010 ended, experts warned again that the lack of an adequate number of judges is dire. About 10 percent of seats on the federal bench are now vacant. Chief Justice John Roberts recently called on the Senate to move urgently, and leaders at the American Bar Association are speaking out, too. "Quite a few nominees came out of committee with no recorded opposition. None," ABA President Stephen Zack says. "That means that neither side said there was any reason for them not to be confirmed. So this is not a philosophical Republican/Democrat issue. You know, these are issues that are much deeper as far as how government is being operated."

Ninth Circuit Appeals Court Judge Alex Kozinski points out that since criminal cases take precedence, civil cases are dragging on for years and people are losing faith in the system. "Once people realize that you go to court and nothing happens, I think they are going to be looking for other ways to resolve disputes."

Hear more about it from NPR
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.
ANTONIO MAURICE BATTS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan Caldwell, Nashville, Tennessee, for the appellant, Antonio Maurice Batts.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Antonio Maurice Batts, pleaded guilty to aggravated assault in exchange for a six-year, Range II sentence with the manner of service to be determined by the trial court. Following the denial of alternative sentencing and an unsuccessful appeal to this court, the petitioner timely filed a petition for post-conviction relief alleging that his guilty plea was involuntary based upon allegations of ineffective assistance of counsel and the petitioner's mental incompetence at the time of the guilty plea. After an evidentiary hearing, the trial court denied relief. The petitioner filed an untimely notice of appeal. Because the interest of justice does not require that we waive the filing requirement, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2011/battsa_010711.pdf
JOSHUA DUNN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jerry Hoffer, Cleveland, Tennessee, for the appellant, Joshua Dunn.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Steven Bebb, Ditrict Attorney General; and A. Wayne Carter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Pursuant to a plea agreement that he personally negotiated with the State, the Petitioner, Joshua Dunn, pleaded guilty to violating his probation, one count of especially aggravated robbery, one count of especially aggravated kidnapping, one count of conspiracy to commit aggravated robbery, and one count of arson. Pursuant to the terms of the agreement, all of the Petitioner's sentences were ordered to run concurrently for a total effective sentence of fifteen years at 100%. The Petitioner filed a timely petition for post-conviction relief and, after a hearing, the post-conviction court denied relief. In this appeal, the sole issue that the Petitioner raises is that his Trial Counsel's representation, or the Petitioner's self- representation, constituted ineffective assistance of counsel because the Petitioner pleaded guilty to especially aggravated kidnapping and especially aggravated robbery without seeing discovery regarding the extent of the victim's injuries. After our review, we affirm the post- conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2011/dunnj_010711.pdf
STATE OF TENNESSEE v. ORVILLE LOSEY

Court: TCCA

Attorneys:

Robert T. Carter, Tullahoma, Tennessee, for the appellant, Orville Losey.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Mickey Layne, District Attorney General; and Wesley Hunter Southerland, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Orville Losey, was found guilty by a Coffee County Circuit Court jury of three counts of aggravated assault, a Class C felony. See T.C.A. Section 39-13-102 (2006) (amended 2009, 2010). He pled guilty to resisting arrest with a weapon, a Class A misdemeanor. See T.C.A. Section 39-16-602 (2010). He was sentenced as a Range II, multiple offender to eight and one-half years' confinement for each of the aggravated assault convictions and to eleven months, twenty-nine days' confinement for the resisting arrest conviction, to be served concurrently. On appeal, he contends that (1) the evidence was insufficient to support his convictions and (2) his sentences are excessive and not consistent with the purposes and principles of the Sentencing Reform

http://www.tba2.org/tba_files/TCCA/2011/loseyo_010711.pdf
STATE OF TENNESSEE v. MARVIN BOBBY PARKER

Court: TCCA

Attorneys:

Neil Campbell, Franklin, Tennessee, for the appellent, Marvin Bobby Parker.

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

Judge: SMITH

Appellant, Marvin Bobby Parker, was indicted by the Bedford County Grand Jury for two counts of aggravated assault, three counts of reckless endangerment, and one count of assault. After the denial of pretrial diversion, Appellant's case proceeded to a jury trial. Following a lengthy trial, Appellant was convicted of reckless aggravated assault, two counts of assault, and one count of reckless endangerment for a series of incidents that took place on June 7, 2008, at the Duck River Speedway after a race. Appellant was found not guilty of two counts of reckless endangerment. As a result of the convictions, Appellant was sentenced as a Range I, standard offender to three years for reckless aggravated assault with all but 59 days of the sentence suspended, the remainder of the sentence to be served on community corrections. Further, Appellant was sentenced to eleven months and twenty-nine days for each remaining misdemeanor sentence. The misdemeanor sentences were ordered to run concurrently to each other but consecutively to the reckless aggravated assault sentence, for a total effective sentence of four years. After the denial of a motion for new trial, Appellant sought a review of his convictions and sentence in this Court. The following issues are presented on appeal for our review: (1) whether the district attorney abused his discretion in denying pretrial diversion; (2) whether the trial court properly denied a motion to sever; (3) whether the trial court properly instructed the jury; (4) whether the evidence was sufficient to support the convictions; (5) whether the trial court properly sentenced Appellant. After a review of the record, we determine that: the trial court properly upheld the denial of pretrial diversion; the trial court properly denied the motion to sever; and the evidence was sufficient to support the convictions for reckless aggravated assault and assault as challenged by Appellant. Further, we determine that the trial court properly instructed the jury. However, because the trial court imposed consecutive sentencing without making the proper findings and ordered Appellant to community corrections even when Appellant was ineligible for such a sentence, we reverse the matter and remand to the trial court for a new sentencing hearing. Accordingly, the judgments of the trial court are reversed and remanded.

http://www.tba2.org/tba_files/TCCA/2011/parkerm_010711.pdf
TODAY'S NEWS
Legal News
General Assembly News
Disciplinary Actions
Career Opportunities
TBA Member Services
Legal News
Suit filed challenging sheriff's immigration authority
A lawsuit filed today in Davidson County Chancery Court challenges the authority of Davidson County's sheriff to exercise law enforcement functions belonging to federal immigration officers. The lawsuit, filed by by attorney Elliott Ozment, contends a charter formed nearly 40 years ago stripped the sheriff of all law enforcement authority and transferred it to the Nashville Police Department. According to the lawsuit, the charter was later upheld in a Tennessee Supreme Court case.
NewsChannel 5 reports
Harmon named PD for 12th District
Gov. Phil Bredesen has named Assistant Public Defender Jeff Harmon, 48, to the 12th Judicial District's Office of Public Defender post. Harmon will fill a vacancy created by the retirement of Phil Condra in November. Harmon has worked as assistant public defender for the 12th Judicial District, which includes six counties, since 1992. Prior to that he worked as an associate with Greer and Smith in Dunlap, where his practice included trials in civil and criminal courts, and appellate law. He will serve as public defender until August 2012, when he can run to retain the seat.
Read more about him from Tennessee Anytime
Campbell named deputy DA in Shelby County
Veteran prosecutor John Campbell was named deputy district attorney for Shelby County. The appointment was made by Amy Weirich, who holds the same position and will be sworn in Jan. 18 as district attorney general. Campbell will take over as second in command on that date. Campbell, a prosecutor for 25 years, has been a division leader, director of the Major Crimes Prosecution Unit and the office's training director. The Commercial Appeal reported the news.
Memphis AWA names officers
The Memphis Chapter of the Association for Women Attorneys has elected officers for 2011. They are: President Lucie K. Brackin with The Landers Firm, President-Elect Emily Taube with Adams and Reese LLP, Secretary Jennifer Himes with The Hale Law Group PLLC, Treasurer Brittan Webb Robinson with Stone, Higgs & Drexler; and Immediate Past President Michele Howard-Flynn with the HF Law Group PLLC.
Reading room named for Knoxville lawyer Gordon Ball
The fourth-floor reading room at the Cecil C. Humphreys School of Law will soon bear a new name: the Gordon Ball Scenic Reading Room. The room is a glass-fronted area used for quiet study, special events and receptions. Flooded with natural light, it offers a sweeping view of the Mississippi River from north to south. The new name for the room comes in recognition of a $1 million gift from Ball, a 1974 U of M law graduate who is now a prominent Knoxville attorney with a practice focused on consumer rights and antitrust class actions.
Learn more from the U of M.
Judge: Dismembered corpse not proof of homicide
A medical examiner can show autopsy photos and testify that the body of a 28-year-old Memphis woman was cut up, but the doctor cannot share her opinion that the manner of death was homicide, a judge ruled Thursday. "The head, feet and hands have been traumatically removed from the body," Shelby County Medical Examiner Dr. Karen Chancellor said. But because the dismemberment appeared to have come after death, Judge Chris Craft ruled that the doctor cannot call the death a homicide because it would be speculation rather than an opinion based on science.
The Commercial Appeal reports
Editorial: New DUI law may help
In an editorial, Murfreesboro's Daily News Journal commends the new DUI law as being a step in the right direction. The new law requires convicted DUI offenders with a blood-alcohol content of 0.15 -- nearly twice the minimum 0.08 level for DUI status -- or higher to install and pay for an in-car breathalyzer, if they want to continue to drive. "Thanks to these new laws," the paper writes, "it will be more difficult for somebody to get behind the wheel of an automobile and drive while under the influence."
Read the editorial
New program at Hazelden geared to legal community
A one-time corporate lawyer who overcame addictions to alcohol and cocaine will be helping counsel attorneys with addictions in a new program at Hazelden Treatment Center that targets the legal community. The lawyer-focused program lasts 28 days and costs $28,300. "Attorneys have high-stress jobs. They have unreasonable expectations on how much they can hoist on their shoulders," Chuck Rice said in an interview. "Some of the qualities that attorneys have that make them good attorneys, make them really bad at self care."
The ABAJournal tells you more
General Assembly News
Carr may propose 'birthright citizenship'
Tennessee lawmakers are saying it might be time to go after what's called "birthright citizenship" and the 14th Amendment of the United States Constitution. Several states are introducing legislation that would allow them to bestow state citizenship where a person would have to be the child of at least one American citizen or legal permanent resident. The apparent goal is to get into a legal battle that would end up with a Supreme Court decision on the 14th Amendment. Tennessee's Rep. Joe Carr, R-Lascassas, said he's looking into the possibility of bringing that proposal to Tennessee.
WSMV has this story
Disciplinary Actions
Nashville lawyer censured
On Jan.6, Nashville attorney William Caldwell Hancock received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court for violating Rules of Professional Conduct 1.3 (diligence), 1.4 (communication), 1.5 (fees) and 1.16 (terminating representation).
Download the BPR release
Career Opportunities
Regional firm seeks lawyer in Nashville office
The Nashville office of Wilkins Tipton PA is seeking a contract attorney to handle insurance defense, with the potential for full-time employment. Candidates should have two to three years' experience as an associate attorney, second- or third-chair trial experience, and a background in extra-contractual and insurance defense litigation. Interested individuals should contact G. W. Flinn or Judy Thorpe at (601) 366-4343 or jthorpe@wilkinstipton.com.
See the posting on JobLink for more details
TBA Member Services
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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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