Wednesday, August 17, 2011
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Ramsey names lawyer, senator to judicial panels

Lt. Governor Ron Ramsey, R-Blountville, today appointed Memphis attorney J. Gregory Grisham to the Judicial Performance Evaluation Commission. Grisham, a partner at Leitner, Williams, Dooley & Napolitan, has been active in the judicial selection debate, having organized and participated in several public programs on the subject. Active in his local Federalist Society chapter, Grisham has served as a leader of the Tennessee State Court Project and as a member of the organization's executive committee on labor and employment practices. He is a graduate of the University of Memphis School of Law.

On Tuesday, Ramsey announced the appointment of Sen. Mike Bell, R-Riceville, to the General Assembly's ad-hoc Joint Committee on the Court of the Judiciary, which will be making recommendations for changes to the panel that recommends removal, suspension and discipline of judges. The ad-hoc committee will be comprised of three senators and three state representatives. The panel will be chaired by Sen. Mae Beavers, R-Mt. Juliet.

Read Bell's thoughts about the court in the Cleveland Daily Banner
TODAY'S OPINIONS
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STATE OF TENNESSEE v. L.W. AND K.F. v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; Mark A. Fulks, Senior Counsel, and Lacy Elaine Wilber, Assistant Attorney General, for the appellant, State of Tennessee.

Emma Rae Tennent, Assistant Public Defender (on appeal) and Tyler Yarbro (at trial), Nashville, Tennessee, for the appellee, L.W.

Doug Thurman, Nashville, Tennessee, for the appellee, K.F.

Judge: HOLDER

In these two cases, consolidated for oral argument, defendants entered guilty pleas to one count in their respective indictments in exchange for dismissal of other counts. In both cases, the trial court denied their subsequent requests for expungement of the dismissed charges. Both defendants filed petitions for writ of certiorari. The Court of Criminal Appeals reversed both cases and remanded for entry of orders requiring the requested partial expungement. We granted the State's applications for permission to appeal and ordered supplemental briefing on the issue of whether the Court of Criminal Appeals lacked subject matter jurisdiction. We hold that the procedural requirements for petitions for writ of certiorari set forth in Tennessee Code Annotated section 27-8-106 (2000) do not apply in criminal cases. We further hold that a conviction for one count in an indictment does not preclude expungement of the records relating to a dismissed charge in a separate count. Accordingly, we affirm the judgment of the Court of Criminal Appeals in both cases.

http://www.tba2.org/tba_files/TSC/2011/lwkf_081711.pdf
IN RE NOEL B.F.
THE DEPARTMENT OF CHILDREN'S SERVICES v. VEDA L.M.

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter and Joshua Davis Baker, Assistant Attorney General, for the Petitioner/Appellee, State of Tennessee, Department of Children's Services.

Sheryl Guinn, Nashville, Tennessee, for Respondent/Appellant, Veda L.M.

Stephen Mills, Nashville, Tennessee, Guardian Ad Litem.

Judge: KIRBY

This is a parental termination case. The appellant mother has a history of serious mental illness and persistent difficulties in managing her mental illness, resulting in multiple hospitalizations and incarcerations. The Tennessee Department of Children's Services took custody of the child immediately following her birth. After the guardian ad litem and the Department of Children's Services filed petitions to terminate the mother's parental rights, the child's aunt filed an intervening petition for termination of the mother's parental rights and for custody. The trial court terminated the mother's parental rights and did not grant the aunt's intervening petition for custody. The aunt did not appeal. The mother appeals, arguing that the trial court's decision to allow the child to remain with the foster parents, instead of placing the child with the aunt was not in the child's best interest. We affirm.

http://www.tba2.org/tba_files/TCA/2011/noelbf_081711.pdf
STATE OF TENNESSEE v. QUINCY BRYAN BANKS

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Quincy Bryan Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Quincy Bryan Banks, was convicted by a Davidson County Criminal Court jury of two counts of aggravated rape and one count of especially aggravated kidnapping, class A felonies. He was sentenced as a violent offender to twenty years' confinement for each conviction. The kidnapping conviction was ordered to be served consecutively to the rape convictions, for an effective forty-year sentence. On appeal, the Defendant contends that the trial court erred by ordering consecutive sentences. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/banksq_081711.pdf
MICHAEL D. O'GUIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael D. O'Guin, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and David H. Findley, Senior Counsel, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Michael D. O'Guin, appeals as of right from the Wayne County Circuit Court's summary dismissal of his petition for a writ of habeas corpus. The Petitioner contends (1) that his sentence is illegal because it is in violation of Tennessee Code Annotated section 39-13-523(b) and (2) that his sentence has expired because he has served 85 percent of it. Following our review, we affirm the judgment of the habeas corpus court.

http://www.tba2.org/tba_files/TCCA/2011/oguinm_081711.pdf
JAMES C. OSBORNE, IV v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

William Cather, G. Jeff Cherry and David H. Veile, Lebanon, Tennessee, for the appellant, James C. Osborne, IV.

Robert E. Cooper, Jr., Attorney General and Reporter; and Benjamin A. Ball, Assistant Attorney General; Tom P. Thompson, Jr.; District Attorney General; and Robert Hibbett, Assistant District Attorney General, for the appellee.

Judge: OGLE

The petitioner, James C. Osborne IV, appeals the Wilson County Criminal Court's denial of post-conviction relief from his conviction of rape. He claims on appeal that the trial court erroneously instructed the jury as to the State's burden of proof and that his trial counsel rendered ineffective assistance in failing to object to the erroneous instruction. The record supports the post-conviction court's denial of relief, and we therefore affirm.

http://www.tba2.org/tba_files/TCCA/2011/osbornej_081711.pdf
STEPHEN ANTHONY SCOTT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stephen Anthony Scott, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Stephen Anthony Scott, appeals the sentencing decision of the Montgomery County Circuit Court. The defendant was convicted of aggravated robbery, a Class B felony; attempted aggravated robbery, a Class C felony; especially aggravated kidnapping, a Class A felony; aggravated kidnapping, a Class B felony; and attempted robbery, a Class D felony. The defendant was originally sentenced to an effective term of thirty-seven years in the Department of Correction. After multiple appeals and new filings in both state and federal courts, the defendant's case was eventually sent back to the trial court for re-sentencing in accordance with Blakely v. Washington, 542 U.S. 296 (2004). A re-sentencing hearing was held, and the trial court determined that one enhancement factor was applicable, that being that the defendant had juvenile adjudications which would have been felony convictions if they had occurred when the defendant was an adult. As such, the trial court, applying partial consecutive sentencing, re-sentenced the defendant to an effective sentence of thirty-four years and six months. On appeal, the defendant raises multiple sentencing issues for our review: (1) whether the imposed sentences are still in violation of Blakely, based upon the application of the single enhancement; (2) whether the imposed sentences are illegal as the State failed to file notice of intent to seek enhancement factors; (3) whether the court erred in imposing consecutive sentencing; (4) whether the court erred in treating a juvenile adjudication as a felony conviction for enhancement purposes; and (5) whether the court erred in failing to offer the defendant the right to waive his ex post facto rights and be sentenced pursuant to the 2005 amendments to the Sentencing Act. Following review of the record, we conclude that the trial court erred in applying the enhancement factor to the defendant's sentences. Accordingly, we conclude that the presumptive minimum sentences for each conviction must be imposed in this case, and we remand to the trial court for entry of corrected judgments to so reflect. Additionally, we conclude that the defendant's others issues are not meritorious and that no relief is warranted.

http://www.tba2.org/tba_files/TCCA/2011/scotts_081711.pdf
TODAY'S NEWS
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DA accused of misusing seized assets
The Tennessee Comptroller released a report this morning accusing 24th Judicial District Attorney General Hansel McCadams of misusing drugs, cash, vehicles, weapons and other items confiscated during drug raids, and allowing others to do the same. The report also found that McCadams traveled on drug task force aircraft for non-official purposes, and that he failed to provide adequate oversight of the assets -- leading to a staff member taking items and jail trustees gaining access to case files, crack cocaine, marijuana, cash and other equipment.
Download the report
Read more from WSMV-TV
Gentry named criminal court clerk
Nashville's Metro Council chose former Vice Mayor Howard Gentry as the new Davidson County Criminal Court clerk last night. Gentry, who beat out four others for the job, becomes the first African-American to occupy one of Metro's constitutional seats. He replaces former clerk David Torrence, who resigned following questions about his job performance. Gentry will face the voters in August 2012 to finish out Torrence's term, which runs through 2014.
The Nashville City Paper reports
Official reports bribe to change vote on judge
A Hawkins County commissioner said this week that he was offered a bribe to change his vote prior to the county commission's meeting to appoint a new general sessions judge. The commission deadlocked on a vote to appoint a judge in June, but in late July approved Jay Taylor to the position with a one-vote margin. The commissioner in question voted both times for Taylor's opponent Buddy Baird. He would not reveal who offered the bribe or the amount of money involved.
Learn more in the Times News
State complies with sex offender registry rules
Tennessee avoided the loss of millions of dollars in crime aid by proving it meets the requirements of the federal Adam Walsh Act. Part of those requirements include scanning all sex offender records into computers and a requirement that juvenile sex offenders age 14 to 17 be included in the state's sex offender registry. Youth advocates opposed putting juveniles on the registry, but the state was able to work out a compromise: juvenile sex offenders will be added to a special private registry available only to law enforcement agencies.
Read more in the Tennessean
Judge proposes court administrator post
Cheatham County General Sessions and Juvenile Court Judge Phillip Maxey is proposing to increase adult probation fees to fund a new court administrator position and part-time administrative assistant. He said the additional staff is necessary as he is spending more time on the bench due to an increased caseload. If the county commission approves the plan, the current Juvenile Court probation officer's position likely would be eliminated.
The Tennessean summarizes the proposal
Suspicious package not a bomb
A suspicious package that led to evacuation of the U.S. Bankruptcy Court, City Hall and City Hall Annex in Chattanooga on Friday was not a bomb, authorities say. The package was found about 1:30 p.m. behind the bankruptcy court. The police bomb squad blew it up about 2:45 p.m. with a small detonation device. A man, described as a black male in a New York Yankees ball cap, red jersey and shorts, was captured on surveillance video dropping off the package, police said. They are not calling him a suspect, but want to question him.
The Times Free Press has more
Nashville lawyer publishes book
Robert Nadler, an attorney with the Legal Aid Society of Middle Tennessee and the Cumberlands, has published "A Practitioner's Guide to Innocent Spouse Relief: Proven Strategies for Winning Section 6015 Tax Cases." The book provides a start-to-finish review of innocent spouse cases, including issues related to dealing with the IRS and handling judicial proceedings. The American Bar Association Tax Section published the book.
Learn more here
Sumner's longest-serving prosecutor retires
Sumner County's longest-serving prosecutor, Wayne Hyatt, has retired after serving for 32 years. Hyatt, 66, worked in corporate banking and then ran a private law practice before deciding to get some experience as a prosecutor. "I liked it and I stayed," Hyatt said. Being a prosecutor "always requires you to do the right thing. You always look for the truth, and you always take the high road." Hyatt said he now plans to devote time to his family and horses, woodworking, traveling and playing the guitar, according to the The Tennessean.

Sidney Preston was sworn in on Aug. 1 to replace Hyatt. A native of Jackson, Miss., Preston earned his law degree from the University of Mississippi School of Law. He was a solo practioner in Hendersonville before joining the DA's office.
Read more about him in paper
Patent office hits 8 million mark
The U.S. Patent and Trademark Office issued patent number 8 million on Tuesday. It went to Second Sight Medical Products for an invention the company says enhances visual perception for a certain kind of blindness. The first patent, for a cog mechanism in locomotives, was issued in 1836 to Sen. John Ruggles, who was known as the father of the U.S. Patent office.
National Public Radio reports
Google invests in Rocket Lawyer
The online legal document service Rocket Lawyer, which bills itself as the "fastest growing online legal service," recently announced it has raised $18.5 million from a group of investors that includes Google Ventures. Rocket Lawyer allows consumers to pay for a lawyer to review legal documents and boasts 70,000 users a day. The interest of venture capitalists has some wondering how long the legal industry, one of the last to resist commoditization on the Web, can fend off such services.
Forbes has more
Politics
Herron sues FEC over Fincher decision
The Federal Election Commission (FEC) may have dismissed its investigation into Rep. Stephen Fincher's campaign loan, but the case isn't closed. State Sen. Roy Herron, Fincher's opponent in the last election, has sued the FEC arguing that its decision to dismiss the case was "arbitrary, capricious, an abuse of discretion and contrary to the law." Herron had filed the original complaint against Fincher alleging that he broke campaign laws when he failed to report that a $250,000 loan came from Gates Banking and Trust Co., not from personal funds.
The Jackson Sun has more
Upcoming
Minority law student event planned
The Minority Opportunities Committee of the Knoxville Bar Association will host a minority law student reception on Sept. 22 from 5:30 to 7 p.m. at the Sunsphere at World's Fair Park. Students at the University of Tennessee College of Law and the Lincoln Memorial University Duncan School of Law are invited to attend, as are local attorneys. Knoxville Mayor Daniel T. Brown will be the guest speaker. RSVP by Sep. 19 on the KBA website.
Register here
Career Opportunities
Insurance group seeks trial attorney
The Hanover Insurance Group is seeking a trial attorney to join its Nashville office. The position will be responsible for investigating and managing cases and working with adjusters and clients to resolve claims as expeditiously as possible. Candidates should have three to five years of experience in civil litigation.
Visit the company's website for details
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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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