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Friday, August 19, 2011

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Court of Judiciary ad hoc committee named

Appointments to the Ad Hoc Joint Committee on the Court of the Judiciary were announced today by Lt. Gov. Ron Ramsey, R-Blountville, and House Speaker Beth Harwell, R-Nashville. The joint committee will be led by Senate Judiciary Chairman Mae Beavers, R-Mt. Juliet, and House Judiciary Chairman Eric Watson, R-Cleveland. "Having observed the Court of the Judiciary for many years, I am more convinced than ever of the need for serious and extensive reform," Beavers said. Committee members are Sen. Mike Bell, R-Riceville; Sen. Ophelia Ford, D-Memphis; Sen. Brian Kelsey, R-Germantown; Rep. Jim Cole, R-Bartlett; Rep. Eddie Bass, D-Prospect; and Rep. Rick Womick, R-Rockvale. The group's first meeting is set for Sept. 20.

The TN Report carried the press release

TODAY'S OPINIONS
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STATE OF TENNESSEE v. L.W. AND K.F. v. STATE OF TENNESSEE
CORRECTION On page two (2) of the opinion, Deshea Dulany Faughn has been added as counsel for appellant, 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 Deshea Dulany Faughn and Lacy Elaine Wilber, Assistant Attorneys 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_COR_081911.pdf

IN THE MATTER OF: JADA T.L.P. (d/o/b 10/11/2003) AND JOSEPH D.P. (d/o/b 5/25/2009), Children Under Eighteen (18) Years of Age

Court: TCA

Attorneys:

Robert L. Huddleston, Maryville, Tennessee, for the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter, Alexander S. Rieger, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

Judge: FARMER

This is a termination of parental rights case. The juvenile court terminated the parental rights of the mother on the grounds of persistence of conditions, substantial noncompliance with the terms of her permanency plans, severe child abuse, and abandonment. The mother appeals, arguing the Department of Children's Services did not make reasonable efforts to reunite her with her children following their removal and did not clearly and convincingly prove termination of her parental rights was in the best interests of the children. We affirm.

http://www.tba2.org/tba_files/TCA/2011/jadatlp_081911.pdf

STATE OF TENNESSEE v. CHRISTOPHER BANKSTON

Court: TCCA

Attorneys:

Stephen C. Bush, District Public Defender; Tony N. Brayton, Assistant Public Defender, for the Defendant-Appellant, Christopher Bankston.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Rachel Newton, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

A Shelby County jury convicted the Defendant-Appellant, Christopher Bankston, of aggravated robbery, a Class B felony. He was sentenced to a twelve year term of imprisonment in the Tennessee Department of Correction. The sole issue 1 presented for our review is whether the evidence is sufficient to support his conviction. Upon our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/bankstonc_081911.pdf

ANTONIO J. BEASLEY, SR. v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Antonio J. Beasley, Sr., Bruceton Mills, West Virginia, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Antonio J. Beasley, Sr., appeals the Hamilton County Criminal Court's dismissal of his petition for error coram nobis relief from his 1989 conviction for grand larceny and his 1990 convictions for possession of cocaine and attempted arson. He claims his convictions should be vacated because trial counsel and the trial court did not inform him that his convictions could be used to enhance future sentences, thus rendering his guilty pleas involuntary and unintelligent. The State has moved this court to dismiss the Petitioner's appeal as untimely, or, in the alternative, affirm the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The State's motion for a memorandum opinion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/beasleya_081911.pdf

STATE OF TENNESSEE v. ALFRED GETTNER
With Concurring Opinion

Court: TCCA

Attorneys:

Raymond C. Conkin, Jr. Kingsport, Tennessee, for the appellant, Alfred Gettner.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Greeley Wells, District Attorney General, and Brandon H. Haren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

In 2007, 2008, and 2009 in Sullivan County, Appellant, Alfred Gettner, was charged by presentment, indicted, and consented to prosecution by information for various counts consisting of four counts of violating an habitual traffic offender order, one count of driving under the influence ("DUI"), third offense, and one count of failing to yield to an emergency vehicle. On May 1, 2009, Appellant entered a negotiated plea to four counts of violation of a habitual traffic offender order, one count of DUI, first offense, and one count of failing to yield to an emergency vehicle. The agreed to sentence was an effective sentence of six years. Appellant requested an alternative sentence. The trial court held a hearing and denied Appellant's request. Appellant appealed to this Court and argued that the trial court erred in denying his request for an alternative sentence. Because Appellant failed to include a copy of the transcript from his guilty plea hearing, he has waived the presentation of his issue to this Court. Therefore, we dismiss this appeal.

http://www.tba2.org/tba_files/TCCA/2011/gettnera_081911.pdf

WITT concurring
http://www.tba2.org/tba_files/TCCA/2011/gettnera_CON_081911.pdf

JARVIS HARRIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Vicki Carriker, Memphis, Tennessee (at evidentiary hearing), for the appellant, Jarvis Harris, pro se (on appeal).

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Jarvis Harris, appeals the denial of his petition for post-conviction relief, which challenged his convictions of first degree premeditated murder and attempted first degree murder. In this appeal, the petitioner challenges the trial court's denial of his pretrial motion to suppress the evidence, the sufficiency of the convicting evidence, and the performance of his attorneys at trial and on appeal. Because the first two issues are either waived or previously determined, see T.C.A. section 40-30-106(g)-(h) (2006), and because the petitioner failed to establish by clear and convincing evidence that he was denied the effective assistance of counsel, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2011/harrisj_081911.pdf

STATE OF TENNESSEE v. JAMES JOHNSON

Court: TCCA

Attorneys:

Joseph S. Ozment (at trial and on appeal) and Larry Copeland (at trial), Memphis, Tennessee, for the appellant, James Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Edith Sellers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, James Johnson, pled guilty in the Shelby County Criminal Court to vehicular homicide by intoxication, a Class B felony, and received a ten-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered the appellant to serve the sentence in confinement. On appeal, the appellant contends that the trial court erred by denying his request for alternative sentencing. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/johnsonj_081911.pdf

MONTREAL LYONS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Montreal Lyons.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Montreal Lyons, was convicted by a Shelby County jury of four counts of aggravated robbery and one count of especially aggravated kidnapping. State v. Montreal Lyons, No. W2006-02445-CCA-R3-CD, 2008 WL 2699657, at *3 (Tenn. Crim. App., at Jackson, July 9, 2008), perm. app. denied, (Tenn. Jan. 20, 2009). Petitioner received an effective sentence of forty-four years. Petitioner was unsuccessful on appeal to this Court. Id. at *7. Subsequently, Petitioner filed a petition for post-conviction relief. Among other issues, Petitioner argued that he was afforded ineffective assistance of counsel because trial counsel failed to properly cross-examine the victims during the trial. The post-conviction court denied the petition. On appeal, Petitioner argues that the post-conviction court erred because he was prejudiced by the trial counsel's failure to properly cross-examine the victims. After a thorough review of the record, we conclude that Petitioner has not demonstrated that he was prejudiced by the trial counsel's cross-examination of the victims. Therefore, we affirm the post-conviction court's denial of the petition.

http://www.tba2.org/tba_files/TCCA/2011/lyonsm_081911.pdf

STATE OF TENNESSEE v. RODERICK MOORE

Court: TCCA

Attorneys:

Michael R. Working, Memphis, Tennessee for the appellant, Roderick Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Goodman and Brooks Yelverton, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WELLES

A Davidson County jury convicted the Defendant, Roderick Moore, of first-degree murder in the perpetration of a robbery, reckless homicide, and especially aggravated robbery. He was sentenced to concurrent sentences of life imprisonment for the first-degree murder, two years for the reckless homicide, and eighteen years for the especially aggravated robbery. On appeal, the Defendant argues that the trial court erred by limiting the cross-examination of the investigating police officer and that the evidence was insufficient to sustain his conviction for first-degree murder in the perpetration of a robbery. Following our review, we affirm the Defendant's convictions for first degree murder and especially aggravated robbery. We remand for entry of a judgment reflecting that the reckless homicide conviction merged into the first-degree murder conviction.

http://www.tba2.org/tba_files/TCCA/2011/moorer_081911.pdf

MATTHEW SWEET v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Troy L. Bowlin, II, Morristown, Tennessee, for the appellant, Matthew Sweet.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Tara B. Trent, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Matthew Lee Sweet, was convicted by a Greene County jury of two counts of aggravated child abuse. State v. Matthew Lee Sweet, No. E2007-00202-CCA-R3-PC, 2008 WL 1723431, at *1 (Tenn. Crim. App., at Knoxville, Apr. 15, 2008). He received an effective sentence of twenty-five years. Id. Petitioner's convictions were affirmed in a delayed appeal. Id. Subsequently, Petitioner sought post-conviction relief on the basis of ineffective assistance of counsel. After a hearing on the petition, the post-conviction court denied post-conviction relief and dismissed the petition. After a thorough review, we determine that Petitioner has failed to show clear and convincing evidence that he is entitled to post-conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/sweetm_081911.pdf

STATE OF TENNESSEE v. GEORGE TUCKER

Court: TCCA

Attorneys:

Barry W. Kuhn and Stephen C. Bush (on appeal) and Mary Kathryn Kent and Nick Cloud (at trial), Memphis, Tennessee, for the appellant, George Tucker.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kate Edmands, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Shelby County Criminal Court jury convicted the appellant, George Tucker, of theft of property valued one thousand dollars or more but less than ten thousand dollars, a Class D felony, and the trial court sentenced him as a Range III, career offender to twelve years in confinement. On appeal, the appellant claims that the evidence is insufficient to support the conviction. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/tuckerg_081911.pdf

JAMES W. VANOVER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, James W. Vanover.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Randall E. Nichols, District Attorney General, and Kevin Allen, Assistant District Attorney General or the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, James W. Vanover, was convicted following a jury trial, for one count of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony. He was given an effective sentence of 36 years. On appeal, this Court affirmed the convictions but remanded for resentencing. State v. James Vanover, No. E2005-01192-CCA-R3-CD, 2006 WL 521496 (Tenn. Crim. App. March 2, 2006). Upon resentencing, he was again sentenced to serve 36 years. On appeal, this Court held that the trial court properly ordered consecutive sentencing at the second sentencing hearing. State v. James Vanover, No. E2006-01342-CCA-R3-CD, 2007 WL 2323386 (Tenn. Crim. App. August 15, 2007) perm. app. denied (Tenn. July 7, 2008). Petitioner timely filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief, and Petitioner appeals. After review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/vanoverj_081911.pdf

STATE OF TENNESSEE v. DARREL WATSON

Court: TCCA

Attorneys:

Samuel L. Perkins, and David J. Kreher (at trial), Memphis, Tennessee; Robert W. Jones, District Public Defender, and Tony N. Brayton (on appeal), Assistant Public Defender, Memphis, Tennessee, for the Defendant-Appellant, Darrel Watson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glen C. Baity and Rachel Newton, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, Darrel Watson, was convicted by a Shelby County jury of first degree premeditated murder and was subsequently sentenced to life imprisonment. The sole issue presented for our review is whether the evidence was sufficient to support his conviction. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/watsond_081911.pdf

IN RE: MICHAEL E. LATIMORE, BPR 020170

Court: TSC-Disciplinary_Order

Judge: CLARK

Suspension

http://www.tba2.org/tba_files/TSC/2011/latimorem_081911.pdf

ROBERT L. MCREYNOLDS, BPR 024151

Court: TSC-Disciplinary_Order

Judge: CLARK

Disbarment

http://www.tba2.org/tba_files/TSC/2011/mcreynoldsr_081911.pdf

IN RE: JEFFREY A. STINNETT, BPR 012814

Court: TSC-Disciplinary_Order

Judge: CLARK

Suspension

http://www.tba2.org/tba_files/TSC/2011/stinnettj_081911.pdf

TODAY'S NEWS

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Legal News

Justices speak out on judicial elections

Tennessee Supreme Court justices Gary Wade and Sharon Lee comment on Tennessee's judicial selection process and the alternative, which Wade says in an interview would be "a partisan political election with inevitable high-stakes fund-raising. Those interested in the election outcome will be the ones involved. It could turn out to be a spending contest." In addressing the Cleveland Kiwanis Club, Lee agreed, saying the way appellate judges get their jobs give no room for favoritism. "We go into cases with no preconceived judgment," Lee said Thursday. "I think we have a good system."

'West Memphis 3' freed

Three men who served 18 years in prison following their convictions in a 1993 triple-slaying in West Memphis, Ark., walked free today after entering rarely used pleas in which they maintained their innocence but acknowledged that prosecutors have evidence to convict them. CNN will air a special, "Presumed Guilty: Murder in West Memphis," at 10 p.m., Central Time, about the 'West Memphis Three' and the evidence that set them free.

CNN reports

Rimmer: Disqualify entire Shelby AGs office

Death Row inmate Michael Rimmer's lawyers want a Tennessee appeals court to find that misconduct by prosecutors and police in Memphis was so pervasive that the entire Shelby County District Attorney General's Office should be disqualified from the case, and that a new prosecutor should be brought in to review the evidence. The county's prosecutors have sent three times as many people to death row as prosecutors in any other county in the state, the story says. And the judge in charge of Rimmer's case has found that the lead detective "provided false testimony" that may have misled jurors.

Read the story in USA Today

KBA presidents urge legal aid support

The current and past presidents of the Knoxville Bar Association have joined together to voice support for Legal Aid of East Tennessee and ask area lawyers to increase their contributions to the agency, which is suffering from significant budget cuts while facing increased demands for services. David Eldridge, chair of the annual campaign, and Culver Schmid, the campaign co-chair, recently asked colleagues to dig deeper and make a "stretch gift" to help LAET stretch its limited resources. The past presidents signed a letter to colleagues in the August issue of the association's newsletter, Dicta.

Classes start Monday in Memphis with new faculty

The University of Memphis Cecil C. Humphreys School of Law will welcome 145 first-year students and 280 upperclassmen when classes start on Monday. In the new class, the average age is 25; age range is 21 to 46. The school has added two new full-time and three visiting faculty members.

Davidson family law docket shake up starts Sept. 1

Beginning next month in Davidson County, new divorce cases that go to trial could end up in one of 12 courts -- and the decision won't be made until the day of trial. The arrangement is one component of a larger plan devised to divide the domestic relations docket, which have been handled by Judge Carol Solomon for eight years.