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| Monday, June 06, 2011 |
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Should Fair Sentencing Act be retroactive?
Two area cases are part of a nationwide debate on fairness in sentencing and whether recent changes should be applied retroactively to "pipeline cases" -- people already in prison or those facing sentencing after the act passed. The judges -- Chief U.S. District Judge Curtis Collier and U.S. District Judge Harry S. "Sandy" Mattice -- cited the Fair Sentencing Act of 2010 in each of the cases. Collier ruled that the Fair Sentencing Act applied retroactively and the defendant got six years in prison. Mattice ruled the opposite and the defendant was sentenced to 20 years. Both cases have been appealed to the 6th U.S. Circuit Court of Appeals. In an editorial, the Commercial Appeal weighs in, saying the new rules should apply retroactively.
The Times Free Press reports on the issues
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TODAY'S OPINIONS
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_060611.pdf
LESLIE NEWMAN, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF COMMERCE AND INSURANCE v. SMART DATA SOLUTIONS, LLC, ET AL.
Court: TCA
Attorneys:
Stephen C. Knight and Nader Baydoun, Nashville, Tennessee, for the appellants, Smart Data Solutions, LLC and American Trade Association, Inc.
John L. Norris, Nashville, Tennessee, for the appellant, William M. Worthy, II.
Robert E. Cooper, Jr., Attorney General and Reporter, Sarah A. Hiestand, Senior Counsel,
Lyndsay F. Sanders, Assistant Attorney General, and Laura T. Kidwell, Senior Counsel, for the appellee, Leslie Newman, Commissioner of the Tennessee Department of Commerce and
Insurance.
Judge: DINKINS
This is an appeal of the grant of an application by the Commissioner of Insurance for the State of Tennessee to place an allegedly illegal insurance enterprise into receivership for
purposes of liquidation pursuant to the Insurers Rehabilitation and Liquidation Act, Tenn. Code Ann. section 56-9-101, et. seq. Respondents contend they are not insurers subject to the
Rehabilitation and Liquidation Act and that, because the court found that the insurance was nonexistent, the appointment of a receiver of the businesses was not authorized. Finding that the activities of the various respondents constitute "insurance business" as defined by the
applicable statute and that placing the businesses into receivership was proper, we affirm the order of the trial court.
http://www.tba2.org/tba_files/TCA/2011/smartdata_060611.pdf
STATE OF TENNESSEE v. JERRY W. ALLEY, JR.
Court: TCCA
Attorneys:
Richard W. DeBerry, Assistant District Public Defender, for the appellant, Jerry W. Alley, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Hansel J. McCadams, District Attorney General; and Ed McDaniel, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The defendant, Jerry W. Alley, Jr., entered pleas of guilty in the Hardin County Circuit Court to one count of the initiation of a process intended to result in the manufacture of
methamphetamine, see T.C.A. section 39-17-435 (2006); one count of simple possession of methamphetamine, see id. section 39-17-418(a); one count of possession of drug paraphernalia, see id. section 39-17-425(a)(1); and one count of child neglect, see id. section 39-15-401(a). The trial court imposed a total effective sentence of eight years to be served in confinement. On appeal, the defendant challenges the imposition of a fully incarcerative sentence. Finding no error, we affirm.
http://www.tba2.org/tba_files/TCCA/2011/alleyj_060611.pdf
STATE OF TENNESSEE v. ANTONIO F. BAKER
Court: TCCA
Attorneys:
William E. Griffith (on appeal), and Lonnie Maze (at trial), Nashville, Tennessee, for the appellant, Antonio F. Baker.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Wesley King,
Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The defendant, Antonio F. Baker, appeals from the trial court's denial of his request to modify his sentence via Rule 35 of the Tennessee Rules of Criminal Procedure. Discerning no error, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/bakera_060611.pdf
STATE OF TENNESSEE v. JESSE GRANT CRAVEN, TOMMY DAVENPORT & GREG POPE
Court: TCCA
Attorneys:
John G. Mitchell, III, Woodbury, Tennessee, for the Appellant Jesse Grant Craven.
James Bryan Lewis and James Robin McKinney, Nashville, Tennessee, for the Appellant Greg Pope.
Edward H. North, Manchester, Tennessee, for the Appellant Tommy Davenport.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Lisa Zavogiannis, District Attorney General, Tomas J. Miner, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: WEDEMEYER
In this interlocutory appeal, the Appellants, Jesse Grant Craven, Tommy Davenport, and Greg Pope, appeal the Warren County Circuit Court's order denying them relief from the
prosecutor's denial of each of their respective applications for pretrial diversion. After a thorough review of the record and relevant authorities, we conclude that the trial court
properly affirmed the prosecutor's denial of pretrial diversion. Accordingly, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/cravenj_060611.pdf
STATE OF TENNESSEE v. DEMETRUIS NACOYEA DUNN a.k.a. NICK DUNN
Court: TCCA
Attorneys:
Clifford K. McGown, Jr. (on appeal), Waverly, Tennessee; Gary Antrican, District Public Defender; and Park Dickson, Assistant Public Defender (at trial), Somerville, Tennessee, for the Defendant-Appellant, Demetrius Nacoyea Dunn (a.k.a. Nick Dunn).
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; and D. Michael Dunavant, District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Defendant-Appellant, Demetrius Nacoyea Dunn, was convicted by a Tipton County jury of aggravated robbery, a Class B felony, and burglary, a Class E felony. He was sentenced as a Range I, standard offender to eight years for aggravated robbery and one year for burglary. On appeal, Dunn claims: (1) his convictions were not supported 1 by sufficient evidence; and (2) the trial court erred by failing to issue a curative instruction following hearsay testimony. Upon review, we affirm the judgments of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/dunnd_060611.pdf
SCOTT W. GRAMMER v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Donna Miller, Chattanooga, Tennessee, for the appellant, Scott W. Grammer.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; William H. Cox, III, District Attorney General; and Mary Sullivan Moore
and Rachael Winfrey, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: OGLE
The petitioner, Scott W. Grammer, appeals the Hamilton County Criminal Court's denial of his petition for post-
conviction relief from his convictions for three counts of aggravated sexual battery and resulting effective twenty-two-year sentence. On appeal, the petitioner contends that he received the ineffective assistance of counsel. In addition, he argues that the State engaged in egregious, improper, and deceptive practices during the trial; that the post-conviction court should have amended his improperly enhanced sentences; and that the evidence is insufficient to support one of his convictions. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/grammers_060611.pdf
DUSTY B. HAYNES v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); James E. Lanier, District Public Defender; and H. Tod Taylor, Assistant Public Defender (at hearing and on appeal), for the appellant, Dusty B. Haynes.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of
Tennessee.
Judge: GLENN
The petitioner, Dusty Haynes, appeals the order of the post-conviction that denied him post-conviction relief from his guilty plea conviction for burglary but nonetheless granted him a delayed appeal of his sentence. The petitioner argues that the post-conviction court instead should have reversed his conviction and granted him a new trial. Following our review, we affirm the denial of post-conviction relief and reverse the granting of a delayed appeal.
http://www.tba2.org/tba_files/TCCA/2011/haynesd_060611.pdf
STATE OF TENNESSEE v. DANNY D. HOLMES
Court: TCCA
Attorneys:
Brian Jackson, Nashville, Tennessee, for the Defendant-Appellant, Danny D. Holmes.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; William C. Whitesell, Jr., District Attorney General; and Trevor Lynch, Assistant District Attorney General, for the Appellee, State of Tennessee.
Judge: MCMULLEN
The Defendant-Appellant, Danny D. Holmes, appeals the revocation of his probation. He pled guilty in the Circuit Court of Rutherford County to robbery and aggravated assault, both Class C felonies. Holmes received an effective sentence of six years in the Tennessee Department of Correction. Pursuant to the plea agreement, he was granted an alternative sentence of six years on probation. Holmes claims on appeal that the trial court abused its discretion by revoking his probation and imposing the original term of confinement. Upon review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/holmesd_060611.pdf
STATE OF TENNESSEE v. EARNEST ULYESSEE McEWEN
Court: TCCA
Attorneys:
Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender; and Kevin Kelly, Assistant Public Defender, for the appellant, Earnest Ulyessee McEwen.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and J. W. Hupp, Assistant District Attorney General, for the appellee, the State of Tennessee.
Judge: WOODALL
Defendant, Earnest Ulyessee McEwen, appeals the trial court's revocation of his community corrections sentence. In 2006, Defendant was indicted for burglary and theft of property over
$1,000. Pursuant to a negotiated plea agreement, Defendant pled guilty to burglary and was sentenced to twelve years as a career offender with one year to serve in confinement and
eleven years on community corrections, and the theft charge was dismissed. A warrant was issued charging Defendant with a violation of his community corrections sentence. Following a hearing, the trial court revoked Defendant's sentence and imposed his original twelve-year sentence, to be served in confinement. Finding no error, we affirm the judgment
of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/mcewene_060611.pdf
STATE OF TENNESSEE v. LEONARD EUGENE MYERS
Court: TCCA
Attorneys:
Ardena J. Garth, District Public Defender, and Richard Kenneth Mabee, Assistant District Public Defender, for the appellant, Leonard Eugene Myers.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; R. Steve Bebb, District Attorney General Pro Tempore; and Brooklyn Martin and Paul Moyle,
Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Leonard Eugene Myers, was convicted following a jury trial in the Hamilton County Criminal Court of reckless aggravated assault, a Class D felony; vehicular assault, a Class D felony; and driving under the influence (DUI), a Class A misdemeanor. See T.C.A. sections 39-13-102(2)(A) (2006) (amended 2009, 2010), 39-13-106(a) (2010), 55-10-401 (2008) (amended 2010). The trial court merged the reckless aggravated assault and DUI convictions with the vehicular assault conviction and sentenced the Defendant to four years as a Range I offender. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions; (2) the trial court erred in admitting blood analysis evidence because the chain of custody was not properly established; (3) the trial court erred in excluding evidence of the victim's civil judgment against the Defendant; and (4) the trial court erred in sentencing the Defendant based upon enhancement factors that were not found
beyond a reasonable doubt by the jury. We affirm the convictions, but we vacate the judgments and remand the case to the trial court for entry of one judgment reflecting that the reckless aggravated assault and DUI convictions are merged with the vehicular assault conviction.
http://www.tba2.org/tba_files/TCCA/2011/myersl_060611.pdf
STATE OF TENNESSEE v. CHRIS L. ROBINSON
Court: TCCA
Attorneys:
James O. Martin, III (at trial and on appeal) and Glenn Funk (at trial), Nashville, Tennessee, for the appellant, Chris L. Robinson.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Victor S. Johnson III, District Attorney General; Stacey Smith, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: MCLIN
The defendant, Chris L. Robinson, pleaded guilty to possession of more than 0.5 grams of cocaine with intent to sell, a Class B felony, in exchange for an eight-year sentence, leaving the trial court to determine whether he would serve the sentence concurrently with or consecutively to his six-year sentence in Davidson County Criminal Court case number 2009-I-508. The trial court ordered that the defendant serve the eight-year sentence consecutively to the six-year sentence. On appeal, the defendant argues that the imposition of consecutive sentences was inconsistent with the purposes and principles of the sentencing statutes. Following our review, we affirm the sentence of the trial court and remand solely for entry of an amended judgment reflecting that the defendant's sentence in this case is to run consecutively to his sentence in case number 2009-I-508.
http://www.tba2.org/tba_files/TCCA/2011/robinsonc_060611.pdf
STATE OF TENNESSEE v. JOHN MICHAEL WHITLOCK
Court: TCCA
Attorneys:
John M. Boucher, Jr., Knoxville, Tennessee, for the appellant, John Michael Whitlock.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General; and Kevin J. Allen, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WELLES
Following a jury trial, the Defendant, John Michael Whitlock, was convicted of two counts of sexual exploitation of a minor, a Class D felony. See Tenn. Code Ann. section 39-17-1003(d).
In this direct appeal, the Defendant raises the following issues for our review: (1) The State presented insufficient evidence to sustain his convictions for sexual exploitation of a minor; (2) The trial court erred when it allowed the State to give a rebuttal closing argument when the Defendant waived opening statements and offered no proof; and (3) The trial court erred when it instructed the jury regarding the factors contained in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986). Following our review, we conclude that the State did not present sufficient evidence to support the Defendant's convictions for sexual exploitation of a minor and, therefore, we reverse the judgments of the trial court and dismiss the charges against the Defendant.
http://www.tba2.org/tba_files/TCCA/2011/whitlockj_060611.pdf
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| TODAY'S NEWS |
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Legal News
Tenn. Supreme Court
General Assembly News
Court of the Judiciary
TBA Member Services
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| Legal News |
| New allegations for Baumgartner, Castleman, in Gibson sentencing |
| When former Knox County Criminal Court Judge Richard Baumgartner agreed in March to resign and confess buying pills from Christopher Lee Gibson, the inquiry into the judge's relationship with confessed pill addict Deena Castleman ended.
But on Friday, Gibson's lawyers, James A.H. Bell and Ed Holt, sought to bring Baumgartner and Castleman into court for Gibson's sentencing hearing.
Baumgartner and Castleman's attorneys were able to keep their respective clients out of the courtroom, but The News Sentinel reports that Gibson is alleging in court records so far kept under seal that Castleman, a graduate of the drug court program that Baumgartner helped found and oversee, was Baumgartner's mistress. |
Reat the story in the News Sentinel
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| Probe in Shelby Chancery embezzlement case widens |
| The plot thickens in a Shelby County Chancery Court embezzlement scheme, which appears to have topped $800,000 and may go higher. An investigation by The Commercial Appeal has identified 32 checks used to funnel as much as $865,000 to two companies -- payments made without judicial orders or documentation.
And an FBI probe affects not just county government but the law offices of Linebarger, Goggan, Blair & Sampson, which contracts to collect delinquent taxes for the city of Memphis. |
Follow the investigation
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| Blount's first woman judge sworn in |
| Tammy Harrington, Blount County's first female judge, was sworn in by Gov. Bill Haslam in front of an overflow crowd Friday morning at the Blount County Justice Center.
Harrington, 41, is the new 5th Judicial District Circuit Court Division I judge, filling the seat vacated by the late Judge W. Dale Young, who retired Jan. 16 after 26 years. |
See a picture in The Daily Times
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| Uncivil incident for one colors legal profession for many |
| In an opinion piece, guest columnist David Moon praises longtime lawyer and former Knoxville mayor Robert Crossley, writing: "Men like Bob represented the best of the legal profession and courtly business decorum. He taught hundreds, or maybe even thousands, of young people the proper role of an advocate in the courtroom, business negotiations and in general life interaction." Unfortunately, Moon writes, there are other lawyers unlike Crossley. Relating a personal run-in with one such lawyer, Moon says that such behavior partly explains why
a Gallup poll found that only 13 percent of Americans rate the honesty and ethics of lawyers as high or very high. |
Read the guest column in the News Sentinel
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| Tenn. Supreme Court |
| All eyes on Catholic Diocese of Memphis case |
| The Tennessee Supreme Court is weighing a civil case against the Catholic Diocese of Memphis concerning allegations of child sexual abuse by a now-deceased priest during the 1970s, and the decision could influence the way similar disputes are judged in the future. |
Read the details in the Chattanoogan
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| General Assembly News |
| Opinion pieces put faces on budget cuts |
| State lawmakers approved dozens of cost-saving measures in the $30.8 billion budget that awaits Republican Gov. Bill Haslam's signature. Among the cuts are home-based nursing for people with intellectual disabilities, probation and parole officers and school-based health programs. The budget abolishes 236 positions in the Department of Children's Services. It will close seven government-run group homes for juvenile delinquents and outsource their operations to the private sector.
In an
opinion piece and an open letter to Gov. Haslam, advocates for those with disabilities speak out against the cuts, including one of the Tennessee Justice Center's Mothers of the Year, Nancy Hollis. |
The Times Free Press outlines the cuts
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| Editorial: Legislators made 'money-grabbing' act |
| In an editorial, The Times Free Press
says that the general assembly this year "set a legislative landmark for campaign gifts to themselves by giving corporations and businesses the right to make direct campaign contributions to individual legislators.
It's hard to overstate the politically hazardous consequences of this money-grabbing act by the legislature." |
Read the editorial
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| Changes to criminal laws will impact cases |
| The Leaf-Chronicle overviews the bills passed into law this year that will directly affect the way criminal cases are prosecuted, including laws about bond revocation, gang activity, drunk driving, drive-by shootings, child rape and manufacturing methamphetamine. |
Read the story
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| Court of the Judiciary |
| Judge Taylor to receive public reprimand |
| The Court of the Judiciary today filed an agreed order in the matter of Hawkins County Juvenile Court Judge James Taylor, as a result of formal charges that were filed against the judge on March 29.
As part of the agreed order, a public reprimand is to be issued for count one of the complaint. Count two is retired, and counts three and four are dismissed. |
The AOC has the order
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| TBA Member Services |
| CompuPay offers deals for TBA members |
| CompuPay is proud to serve as the official payroll services provider for the Tennessee Bar Association. To serve Tennessee attorneys the company is offering two months of free payroll processing for all TBA members and waiving set up fees for members with up to 99 employees. |
Learn more about CompuPay's benefits
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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.
© Copyright 2011 Tennessee Bar Association
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