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Today's Opinions: March 11, 2005
Volume 11 — Number 047
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
08 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • 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. • 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. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


IN RE E.J.M., d.o.b. 10/31/1994
LEE T. MYERS v. SANDRA BROWN

Court:TCA

Attorneys:                          

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the
appellant, Lee T. Myers.

Melanie E. Taylor, Memphis, Tennessee, for the appellee, Sandra Brown.

Judge: KIRBY

First Paragraph:

This is petition to modify custody.  The mother and father of the
minor child were never married.  In April 2002, when the child was
seven years old, the trial court entered a consent order designating
the mother as the primary residential parent of the child and giving
the father residential time.  During the summer of 2002, the parties
became embroiled in a dispute over which school and in what grade the
minor child should be enrolled for the upcoming school year.  Against
the father's wishes, the mother took the child out of the third grade
at a public school and enrolled her in the second grade at a private
school.  The father filed a petition for contempt, and the trial court
ordered the mother to return the child to her class at the public
school pending a final resolution of the father's petition.  The
mother did not do so.  The father then sought a change in custody. 
The trial court granted the father temporary custody pending a final
resolution.  The father retained temporary primary custody for the
remainder of the school year.  The trial court then held a hearing on
the father's request to be permanently designated primary residential
parent.  After a hearing, the trial court restored the mother as
primary residential parent, determining that the circumstances did not
warrant a change in designation as primary residential parent.  The
father now appeals.  We affirm the trial court's finding that the
father did not show sufficient change in circumstances to remove
mother as primary residential parent

http://www.tba.org/tba_files/TCA/ejm.wpd

STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES, ex rel., TRACY ELLIS
v. MALCOLM HUMES

Court:TCA

Attorneys:                          

Edwin C. Lenow of Memphis for Appellant, Malcolm Humes

Paul G. Summers, Attorney General and Reporter; Stuart F.
Wilson-Patton, Senior Counsel for Appellee, State of Tennessee, ex
rel., Tracy Ellis

Judge: CRAWFORD

First Paragraph:

Appellant seeks relief, ostensibly under Tenn. R. Civ. P. 60.02, from
final orders establishing paternity and setting child support
obligations. Because Appellant failed to timely file his petition to
establish fraud and/or misrepresentation and because the equities in
this matter do not support the disestablishment of paternity, we
affirm.

http://www.tba.org/tba_files/TCA/ellistracy.wpd

STATE OF TENNESSEE v. DANNY RAY APPLEGATE

Court:TCCA

Attorneys:                          

Jeffrey A. DeVasher (on appeal) and Rebecca Warfield (at hearing),
Nashville, Tennessee, for the appellant, Danny Ray Applegate.

Paul G. Summers, Attorney General and Reporter; Jennifer Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; John Zimmerman, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Danny Ray Applegate, pled guilty to three counts of the
sale of methamphetamine and one count of possession of more than 100
grams of methamphetamine with the intent to sell.  The trial court
sentenced the Defendant to an effective sentence of eleven years in
prison.  The Defendant appeals, contending: (1) that the trial court
imposed an excessive sentence upon him; and (2) the trial court erred
when it failed to sentence him to a community corrections sentence. 
After thoroughly reviewing the record and the applicable authorities,
we affirm the Defendant's sentence.

http://www.tba.org/tba_files/TCCA/applegatedanr.wpd

DARREN RAY CASE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Darren Ray Case, pro se, Clifton, Tennessee.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Darren Ray Case, appeals from the dismissal of his
petition for the writ of habeas corpus.  The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  We find
the State's motion has merit.  Accordingly, the motion is granted and
the appeal is affirmed pursuant to Rule 20, Rules of the Court of
Criminal Appeals.

http://www.tba.org/tba_files/TCCA/casedarrenr.wpd

ROBERT SHAWN CLARK v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward,
Assistant Shelby County Public Defender (on appeal) and Karen Massey,
Assistant Shelby County Public Defender (at trial),  for the
appellant, Robert Shawn Clark.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Jim Lammey, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, Robert Shawn Clark, appeals the trial court's denial
of his petition for post-conviction relief.  The single issue
presented for review is whether the petitioner was denied the
effective assistance of counsel at trial.  After a review of the
record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/clarkrobsh.wpd

ROBERT SHAWN CLARK v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Joseph L. Coleman, pro se.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General, for the appellee, the State of Tennessee.

Judge: MCLIN

First Paragraph:

The Petitioner, Joseph L. Coleman, appeals the trial court's denial of
his petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  Because
Petitioner has failed to show either that his sentence has expired or
that the trial court was without jurisdiction, we grant the State's
motion and affirm the judgment of the lower court.

http://www.tba.org/tba_files/TCCA/colemanjosel.wpd

HERMAN HOLSTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James Edward Thomas, Memphis, Tennessee, for the appellant, Herman
Holston.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Vanessa King, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Herman Holston, was convicted by a jury of selling less
than .5 grams of cocaine.  He was sentenced to eight-and-one-half
years for this offense.  The Defendant's conviction and sentence were
affirmed by this Court on direct appeal.  State v. Holston, 94 S.W.3d
507 (Tenn. Crim. App. 2002).  The Defendant subsequently filed for
post-conviction relief, alleging ineffective assistance of counsel. 
After an evidentiary hearing, the trial court denied relief.  This
appeal followed.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/holstonherm.wpd

STATE OF TENNESSEE v. JASON ALLEN NEEDEL

Court:TCCA

Attorneys:                          

Russell E. Edwards, Hendersonville, Tennessee, for the appellant,
Jason Allen Needel.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Ronald Blanton, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Jason Allen Needel, pled guilty in the Sumner County
Criminal Court to aggravated burglary, theft over $1000, and theft
under $500.  He received a total effective sentence of fourteen years
incarceration in the Tennessee Department of Correction.  On appeal,
the appellant challenges the imposition of consecutive sentencing. 
Upon review of the record and the parties' briefs, we affirm the
judgments of the trial court.

http://www.tba.org/tba_files/TCCA/needeljasona.wpd

RICO RAYBON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Rico Raybon, pro se.

Paul G. Summers, Attorney General & Reporter; David E. Coenen,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: MCLIN

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court pursuant to Rule 20, Rules of the Court of
Criminal Appeals. The Petitioner, Rico Raybon, appeals the trial
court's denial of post-conviction relief.   The petition was filed
outside the applicable statute of limitation and is, therefore,
time-barred.  Accordingly, we affirm the dismissal of the trial court.

http://www.tba.org/tba_files/TCCA/raybonrico.wpd

STATE OF TENNESSEE v. STEVEN TOTTY

Court:TCCA

Attorneys:                          

C. Timothy Crocker, Milan, Tennessee (on appeal), and M. Scott Smith,
Jackson, Tennessee (at trial), for the appellant, Steven Totty.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Edward L. Hardister, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals his conviction for sexual battery, contesting
the sufficiency of the evidence and asserting ineffective assistance
of trial counsel.  Following our review, we conclude that the evidence
was sufficient to support the conviction.  The issue of ineffective
assistance is waived for failure to perfect the record, cite to
relevant authority, or reference the record.  Accordingly, we affirm
the judgment of the trial court

http://www.tba.org/tba_files/TCCA/tottysteven.wpd

Chiropractors' Practice

Date: March 8, 2005

Opinion Number: 05-020

http://www.tba.org/tba_files/AG/2005/op20.pdf

Consequences of the City of Memphis Reducing or Eliminating Funding
for K-12 Education

Date: March 10, 2005

Opinion Number: 05-021

http://www.tba.org/tba_files/AG/2005/op21.pdf

Sworn Complaints Filed with the Registry of Election Finance

Date: March 10, 2005

Opinion Number: 05-022

http://www.tba.org/tba_files/AG/2005/op22.pdf

Complaints Before the Registry of Election Finance

Date: March 10, 2005

Opinion Number: 05-023

http://www.tba.org/tba_files/AG/2005/op23.pdf

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