Thursday, January 13, 2011
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ABA studies funding impact on court access

The American Bar Association has convened a blue-ribbon task force to explore if underfunding of the judiciary has impacted access to justice efforts, and, if so, to determine the extent of that impact. The Task Force on Preservation of the Justice System is chaired by David Boies, managing partner of Boies, Schiller & Flexner LLP and Ted Olson, a partner at Gibson, Dunn & Crutcher LLP and former U.S. Solicitor General. The task force is conducting a survey to better understand the economic climate in courts across the country.

Take a few minutes to participate in the survey
TODAY'S OPINIONS
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CAO HOLDINGS, INC. v. CHARLES A. TROST, COMMISSIONER OF REVENUE
CORRECTION on page 5, line 25 adds the word "no" between the words "conferred" and "real"

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Brad H. Buchanan, Assistant Attorney General, Nashville, Tennessee, for the appellant, Charles A. Trost, Commissioner of Revenue, State of Tennessee.

Brett R. Carter, Christopher A. Wilson, and G. Michael Yopp, Nashville, Tennessee, for the appellee, CAO Holdings, Inc.

Judge: KOCH

This appeal involves a corporation's liability for the payment of use tax following its purchase of a business jet. After it received an assessment from the Tennessee Department of Revenue for over $700,000, the corporation paid the tax and filed suit in the Chancery Court for Davidson County seeking a refund on the ground that it qualified for the sale for resale exemption under Tenn. Code Ann. section 67-6-102(a) (28)(A) (Supp. 2004) because it had leased the aircraft to another corporation. Both the corporation and the Department filed motions for summary judgment. The trial court granted the corporation's motion for summary judgment, and the Department appealed. A divided Court of Appeals panel affirmed the trial court. CAO Holdings, Inc. v. Chumley, No. M2008-01679-COA-R3-CV, 2009 WL 1492230 (Tenn. Ct. App. May 27, 2009). We granted the Department's application for permission to appeal. We have now determined that neither party is entitled to a summary judgment because material disputes exist regarding the factual inferences or conclusions that can be drawn from the facts.

http://www.tba2.org/tba_files/TSC/2011/caoholdings_COR_011311.pdf
IN RE: DESTINY S.

Court: TCA

Attorneys:

Andrew N. Hall, Wartburg, Tennessee, for the Appellant, Hank P.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Rebekah A. Baker, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: SWINEY

Hank P. ("Father") is the biological father of Destiny S. (the "Child"). After the Child was removed from Father's home in 2006, the Department of Children's Services ("DCS")eventually filed a petition to terminate his parental rights to the Child. Following a trial, the Juvenile Court found that clear and convincing evidence existed to terminate Father's parental rights pursuant to Tenn. Code Ann. sections 36-1-113(g)(2) and (g)(3). The Juvenile Court also found that the evidence established clearly and convincingly that it was in the best interest of the Child for Father's parental rights to be terminated. Father appeals challenging these findings as well as an evidentiary ruling and the Juvenile Court Judge's refusal to recuse himself. We affirm the Juvenile Court's judgment.

http://www.tba2.org/tba_files/TCA/2011/destinys_011311.pdf
OPEN LAKE SPORTING CLUB v. LAUDERDALE HAYWOOD ANGLING CLUB

Court: TCA

Attorneys:

William C. Sessions, III, Memphis, Tennessee, for the appellant, Lauderdale Haywood Angling Club.

J. Brandon McWherter, Jessica F. Salonus, Jackson, Tennessee, for the appellee, Open Lake Sporting Club.

Judge: HIGHERS

This appeal involves a dispute over the location of a boundary line between tracts of land owned by two hunting clubs. After many years of litigation, the parties agreed that a new survey would be conducted by a new surveyor and that they would be bound by his decision. After the new surveyor filed a report and survey, one of the clubs filed a motion to set aside the survey, contending that the new surveyor did not make an independent determination regarding the location of the boundary line, but rather, copied a previous survey that was completed in the past. The trial judge refused to hold a hearing regarding the validity of the survey because the parties had agreed to be bound by the surveyor's decision. We reverse and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2011/openlake_011311.pdf
STATE OF TENNESSEE v. CRYSTAL G. BARNES

Court: TCCA

Attorneys:

J. Liddell Kirk (on appeal), Knoxville, Tennessee, and Mack Garner (at trial), Maryville, Tennessee, for the appellant, Crystal G. Barnes.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Andrew Watts, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Crystal G. Barnes, was convicted of the promotion of methamphetamine manufacturing, possessing drug paraphernalia, and introducing drugs into a penal institution. The trial court imposed a total effective sentence of three years to be served on probation. Subsequently, the trial court revoked the appellant's probation and ordered her to serve six months in confinement before being released again on probation. On appeal, the appellant challenges the length of confinement ordered by the trial court. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/barnesc_011311.pdf
STATE OF TENNESSEE v. STEVEN W. BLACK

Court: TCCA

Attorneys:

Martha J. Yoakum, District Public Defender; Tina Sloan and Benjamin Pressnell, Assistant Public Defenders, LaFollette, Tennessee, for the appellant, Steven W. Black.

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

Judge: WELLES

The Defendant, Steven W. Black, pleaded guilty to two counts of Class E felony forgery and one count of theft under $500, a Class A misdemeanor. See Tenn.Code Ann sections 39-14-103, -105, -114. The trial court sentenced the Defendant as a Range I, standard offender to two years for each felony conviction and eleven months and twenty-nine days for the misdemeanor conviction. The trial court ordered that the two felony sentences be served consecutively for a total effective sentence of four years. In this appeal, the Defendant contends that: (1) the trial court erred in imposing consecutive sentences; (2) the trial court imposed an excessive sentence and erred by weighing one enhancement factor heavily and minimizing one mitigating factor; and (3) the trial court erred in not recusing itself due to the conflict created when the judge presided over both the Drug Court and the Defendant's sentencing hearing. After our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/blacks_011311.pdf
STATE OF TENNESSEE v. JOHN EDWARD DAWSON

Court: TCCA

Attorneys:

Jeanne L. Wiggins, Assistant District Public Defender, for the appellant, John Edward Dawson.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; R. Steven Bebb, District Attorney General; and James H. Stutts, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

As part of a global plea agreement disposing of charges in four cases from two separate counties, the defendant, John Edward Dawson, entered pleas of guilty to three counts of theft of property valued at $1,000 or more but less than $10,000; one count of burglary; one count of vandalism of property valued at $1,000 or more but less than $10,000; two counts of the sale of less than .5 grams of cocaine; and two counts of the sale of a Schedule III controlled substance in exchange for a total effective sentence of eight years' incarceration to be served concurrently with a previously imposed federal sentence. The defendant also reserved for our review the following certified question of law: "Whether there was sufficient proof of an interference by State authorities of the defendant's right to counsel and a showing of prejudice as a matter of law from the allegations presented at the hearing on the Motion to Dismiss that letters allegedly drafted by a detective from the Monroe County Sheriff's Department and contact directly with a Monroe County detective convinced defendant he was represented by other counsel and should not communicate with appointed counsel and thus interfered with defendant's constitutionally protected right to counsel and due process under both the United States and Tennessee Constitutions." Because the egregious actions of the law enforcement officers in this case substantially and profoundly interfered with the defendant's right to counsel under the state and federal constitutions, we reverse the judgment of the trial court denying the motion to dismiss, vacate the defendant's guilty pleas, and dismiss the indictment in each of the four cases.

http://www.tba2.org/tba_files/TCCA/2011/dawsonj_111311.pdf
QUINTELL DESHON HARDY v. JOE EASTERLING, WARDEN

Court: TCCA

Attorneys:

Quintell Deshon Hardy, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The petitioner, Quintell Deshon Hardy, appeals the dismissal of his petition for writ of habeas corpus by the Circuit Court of Hardeman County. He pled guilty to second degree murder, a Class A felony, and was sentenced as a multiple offender to thirty years in the Tennessee Department of Correction. In the habeas corpus petition, the petitioner claimed his sentence should be vacated because the State gave no notice of its intent to seek an enhanced sentence, as required under Tennessee Code Annotated section 40-35-202(a). Upon review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2011/hardyq_011311.pdf
STATE OF TENNESSEE v. GARY LYNN POOLE

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Gary Lynn Poole.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Mike Flynn, District Attorney General; and Andrew Watts, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Gary Lynn Poole, appeals the revocation of his probation in case number C-16760, arguing that the sentence imposed in that case had expired before the filing of the probation revocation warrant. The State concedes that the trial court lacked jurisdiction to revoke the defendant's probation in case number C-16760 as well as case numbers C-16756 and C-16706. We agree that the trial court was without jurisdiction to revoke the defendant's probation in case numbers C-16706, C-16756, and C-16760. In consequence, we reverse the judgment of the trial court revoking the defendant's probation in those cases and dismiss the revocation warrants. We affirm the revocation and order of incarceration in case number C-17292.

http://www.tba2.org/tba_files/TCCA/2011/pooleg_011311.pdf
REGINALD ROME v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Neil Umsted, Memphis, Tennessee, for the appellant, Reginald Rome.

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

Judge: MCLIN

A Shelby County jury convicted the petitioner of one count of first degree murder and five counts of attempted first degree murder, Class A felonies. He received an effective sentence of life without parole plus 100 years in the Tennessee Department of Correction. A panel of this court affirmed the trial court's judgments. The petitioner filed a petition for post-conviction relief, which the post-conviction court heard and denied. On appeal, the petitioner alleges that he received ineffective assistance of counsel when counsel's failure to include an issue in the motion for new trial resulted in waiver of that issue for purposes of appellate review. Following our review, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2011/romer_011311.pdf
STATE OF TENNESSEE v. DAVID SCHROEDER

Court: TCCA

Attorneys:

Philip A. Condra, District Public Defender; and Jeffery Harmon and Mechelle Story, Assistant District Public Defenders, for the appellant, David Schroeder.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, David Schroeder, pleaded guilty to one count of criminally exposing the victim to the human immunodeficiency virus ("HIV") in exchange for a three-year sentence with the manner of service of the sentence to be determined by the trial court. Finding the circumstances of the offense particularly reprehensible and the defendant's criminal record extensive, the trial court ordered a fully-incarcerative sentence. On appeal, the defendant challenges the denial of alternative sentencing. Discerning no error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/schroederd_011311.pdf
STATE OF TENNESSEE v. HERMAN SHURN

Court: TCCA

Attorneys:

Vicki M. Carriker (on appeal), and Gregg Carman (at trial), Memphis, Tennessee, for the appellant, Herman Shurn.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tom Hoover and Abby Wallace, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

A Shelby County jury convicted the defendant, Herman Shurn, of aggravated robbery, a Class B felony, and criminally negligent homicide, a Class E felony. The trial court sentenced him as a Range I, standard offender to twelve years for aggravated robbery and two years for criminally negligent homicide, to be served consecutively in the Tennessee Department of Correction. On appeal, the defendant challenges (1) the trial court's amendment of the indictment over his objection; (2) the trial court's denial of his request to include facilitation of the charged offenses; (3) the sufficiency of the evidence to support his convictions; (4) the trial court's finding of enhancement factors in violation of Blakely v. Washington, 542 U.S. 296 (2004); and (5) the trial court's imposition of consecutive sentences. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/shurnh_011311.pdf
KIMBERLY THURMAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Thomas Marshall, Clinton, Tennessee, for the appellant, Kimberly Thurman.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; David S. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Kimberly Thurman, filed a petition for post-conviction relief from her conviction for second degree murder. The petition was filed outside the one-year statute of limitation for filing a post-conviction petition, but the petitioner alleged that the limitations period should be tolled because she was unable to manage her personal affairs or understand her legal rights and liabilities. The post- conviction court summarily dismissed the petition as time-barred, and the petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/thurmank_011311.pdf
TODAY'S NEWS
Legal News
General Assembly News
Disciplinary Actions
Career Opportunities
TBA Member Services
Legal News
FDA helped states get execution drug
The Food and Drug Administration, which long has maintained it has nothing to do with drugs used in executions, quietly helped Arizona and California obtain a scarce type of anesthetic so the states could continue putting inmates to death. Previous news reports have documented the shortage of sodium thiopental and the resulting disruption of executions around the country. Newly released documents now show that the FDA helped import the drug from Britain. The Daily Caller has an overview of how states are dealing with the issue.
Read more here
Palin email hacker reports to prison
A former Tennessee college student convicted of hacking Sarah Palin's e-mail account reported to a Kentucky federal prison camp on Monday. He begins a yearlong sentence that could end Nov. 23 with "good conduct time." A Knoxville jury convicted David Kernell of unauthorized access to a protected computer and destroying records to impede a federal investigation last year.
The News Sentinel reports
Special judge named in county mayor's case
Senior Judge Jon Kerry Blackwood has been designated by the Tennessee Supreme Court to preside over the criminal case against former Anderson County Mayor Rex Lynch. Blackwood takes over for Criminal Court Judge Don Elledge, who recused himself saying he and Lynch served on several advisory boards together. Leading the state's case against Lynch is Al Schmutzer, a retired district attorney from Sevierville. He stepped in when the county district attorney recused himself on grounds that Lynch was partly responsible for funding his office.
The News Sentinel has more
Editorial: AG should not be political
An editorial today in the Johnson City Press argues that amending the Tennessee Constitution to elect the state attorney general is a bad idea. It suggests those who support the move should examine how the approach has worked in states that elect an attorney general. The paper argues that in Virginia and Massachusetts, for example, the position has been used as a stepping stone for higher office.
Read the editorial here
Bradley Co. DA speaks about challenges
Stephen Hatchett, 10th Judicial District assistant district attorney, recently sat down for an interview with the Cleveland Banner. He spoke about the crimes that have become major issues for his office and what he thinks needs to be fixed with the judicial system. He also highlighted the national phenomenon of sexting, which is a growing problem locally too.
Read more on this story
County bar elects new officers
The Coffee County Bar Association has elected the following new officers: President C. Brent Keaton with Keaton & Perry; Vice President David Clarke with Burch & Clarke; and Secretary Bradley Eldridge-Smith with Henry, McCord, Bean, Miller, Gabriel & LaBar PLLC in Tullahoma. Keaton and Clarke are from Manchester.
Memphis lawyer balances paid, pro bono work
Laurie Thornton says it was her own experience with paralyzing fear and a sense of helplessness that led her to make pro bono service an important part of her life as an attorney. A lawyer with Glankler Brown PLLC, Thornton has been an active volunteer with Memphis Area Legal Services and has been the recipient of her firm's pro bono award three years in a row. In an interview with the Memphis Daily News, Thorton talks about how she balances her many interests.
Learn more about Thorton
General Assembly News
House GOP names committee chairs
Tennessee's House Republicans today revealed who will chair committees, as well as those who will serve on the panels. Rep. Eric Watson will chair the Judiciary Committee, while Rep. Jim Coley will serve as vice chair and Rep. Vance Dennis will be secretary.
See the full list in the Nashville Business Journal
Ramsey names Senate committee members
Senate Speaker Ron Ramsey, R-Blountville, has named freshman senators Mike Bell of Riceville and Stacey Campfield of Knoxville to the chamber's Judiciary Committee. In other appointments, Ramsey named Sen. Ken Yager of Harriman as chair of the State and Local Government Committee, reappointed Sen. Bo Watson of Hixson as chair of the Government Operations Committee and reappointed Democrat Andy Berke of Chattanooga as chair of the Senate Education Committee.
The Times Free Press has more on the story
Disciplinary Actions
Williamson County lawyer censured
On Jan. 12, the Board of Professional Responsibility publicly censured Williamson County lawyer Shawn Sirgo for violations of conflict of interest, confidentiality and prohibited transactions rules. Sirgo was paid by a company to defend an employee facing a criminal DUI charge and later participated in the termination of that employee. He also disclosed the amount of fees charged in the case, which resulted in the company withholding the same amount from the employee's paycheck.
Download the BPR's notice
Career Opportunities
Knoxville associate sought
The Knoxville personal injury firm of Ogle Elrod & Baril PLLC is seeking an associate attorney to handle personal injury litigation involving motor vehicle accidents and workers' compensation. Applicants should have experience in personal injury law and be able to handle a case from start to finish. Inquiries should be directed to MarLetta McCleary at (865) 546-1111 or mmccleary@EastTennLaw.com.
Learn more about the position on JobLink
TBA Member Services
Secure, compliant data backup 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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