Court Opinions

Format: 08/17/2018
Format: 08/17/2018
State of Tennessee v. Kenneth Mark Jones
W2017-01607-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Russell Lee Moore, Jr.

On May 25, 2017, the Defendant, Kenneth Mark Jones, was convicted by a jury for the sale of less than 0.5 grams of cocaine, a Class C felony. See Tenn. Code Ann. § 39-17-417(a)(3). The trial court subsequently sentenced the Defendant to three years confinement as a Range I, standard offender. On appeal, the Defendant contends that the evidence was insufficient to sustain his conviction because he was merely guilty of facilitation. Following our review, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 08/17/18
Nicholas Watkins v. State of Tennessee
W2017-01633-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Kyle C. Atkins

The Petitioner, Nicholas Watkins, appeals from the Madison County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that his guilty pleas were not knowingly and voluntarily entered because of his trial counsel’s ineffective assistance. Discerning no error, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 08/17/18
Daramis Sharkey v. State of Tennessee
W2017-01961-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Chris Craft

The Petitioner, Daramis Sharkey, appeals as of right from the denial of his petition for post-conviction relief, wherein he challenged the validity of his guilty pleas to three counts of aggravated rape and four counts of aggravated burglary. On appeal, the Petitioner contends that he did not enter into his original guilty plea knowingly and voluntarily because his attorney provided ineffective assistance of counsel by inappropriately pressuring the Petitioner to enter into a plea deal rather than proceed with the jury trial. Following our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/17/18
Tony Thomas v. State of Tennessee
W2017-02221-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee V. Coffee

The petitioner, Tony Thomas, appeals the summary dismissal of his petition for postconviction relief, which petition challenged his 2010 conviction of aggravated sexual battery. In this appeal, the petitioner contends that the post-conviction court erred by summarily dismissing his petition on grounds that he had filed more than one petition for post-conviction relief and that the grounds in his petition had been previously determined. The post-conviction court correctly determined that the petitioner’s claim that he was deprived of the effective assistance of counsel at trial was previously determined; that portion of the court’s order so holding is affirmed. Because the postconviction court erred by concluding that (1) the petitioner had filed more than one petition for post-conviction relief and (2) the remainder of the petitioner’s claims for post-conviction relief had been previously determined, that portion of the court’s order is reversed. The case is remanded for an evidentiary hearing on those claims not previously determined.

Shelby County Court of Criminal Appeals 08/17/18
In Re Piper B., Et Al.
M2017-00930-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Stella L. Hargrove

A mother’s parental rights to her two daughters were terminated on the grounds of abandonment by failure to support; substantial noncompliance with permanency plans; failure to manifest an ability and willingness personally to assume legal and physical custody or financial responsibility for the children; and persistence of conditions. The court also found that termination was in the children’s best interest. The mother appeals. Upon our review, we hold that the evidence in the record does not support a finding that Mother willfully failed to abandon the children by her failure to pay support; in all other respects, we affirm the termination.

Lawrence County Court of Appeals 08/17/18
State of Tennessee v. Kendall Southall
M2017-01975-CCA-R3-CO
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James G. Martin, III

The Petitioner, Kendall Southall, appeals from the Williamson County Circuit Court’s denial of his motion to terminate costs from his drug-related convictions between 1992 and 2002. The Petitioner contends that the trial court erred by denying relief because multiple pending civil actions existed to collect unpaid costs relative to the convictions and that the ten-year statute of limitations period prohibits the State from attempting to collect the costs. We dismiss the appeal because this court lacks jurisdiction to consider it.

Williamson County Court of Criminal Appeals 08/17/18
State of Tennessee v. Dewayne Cross
E2018-00047-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge David R. Duggan

The pro se Defendant, Dewayne Cross, appeals the Blount County Circuit Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. We affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Blount County Court of Criminal Appeals 08/17/18
In Re P.G.
M2017-02291-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

Both parties appeal from the trial court’s order finding two grounds to terminate Mother’s parental rights, but ultimately concluding that termination was not in the child’s best interests. Discerning no reversible error, we affirm.

Robertson County Court of Appeals 08/17/18
Marsha Ann Null v. Kenneth Andrew Cummins
M2017-00191-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

This appeal arises from post-divorce efforts to modify a permanent parenting plan. In her petition to modify, Mother set forth distinct material changes in circumstances she claimed warranted either a change in custody or a change in the residential parenting schedule. Specifically, the petition alleged, among other things, that Father interfered with Mother’s visitation and her ability to be more involved in the children’s lives. The court found Mother did not prove any of the factual allegations in her petition by a preponderance of the evidence and thus found no material change in circumstances. From this ruling, Mother appealed. Discerning no error, we affirm.

White County Court of Appeals 08/17/18
Willis Holloway v. State of Tennessee
W2017-01573-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Willis Holloway, was convicted of two counts of aggravated robbery, two counts of aggravated kidnapping, and one count of aggravated burglary, and the trial court imposed an effective forty-four year sentence in the Tennessee Department of Correction. On appeal, this court affirmed the Petitioner’s conviction and sentence. See State v. Charles Jackson and Willis Holloway, No. W2010-01133-CCA-R3-CD, 2012 WL 543047, at *1 (Tenn. Crim. App., at Jackson, Feb. 17, 2012), perm. app. denied (Tenn. June 22, 2012). Subsequently, the Petitioner filed a petition for post-conviction relief, and the post-conviction court denied relief. Willis Holloway v. State, No. W2014-02444-CCA-R3-PC, 2015 WL 6122155, at *1 (Tenn. Crim. App., at Jackson, Oct. 16, 2015), perm. app. denied (Tenn. March 23, 2016). The Petitioner then filed a “Petition for Extraordinary Relief,” the subject of this appeal, asserting: (1) his sentences were void for duplicity; (2) his indictments were void because the charges were vague; (3) two of the indictments were defective; (4) the trial court constructively amended the indictments; and (5) trial and post-conviction counsel were ineffective. The postconviction court, treating the petition as one for post-conviction relief, found that the Petitioner’s claims had either been previously determined or waived because the Petitioner failed to raise them in his earlier appeals and denied relief. After review, we affirm.

Shelby County Court of Criminal Appeals 08/16/18
Timothy A. Baxter v. State of Tennessee
W2017-01073-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Roy Morgan, Jr.

The petitioner, Timothy A. Baxter, appeals the summary dismissal of his petition for writ of habeas corpus. Because the notice of appeal was untimely and because the interests of justice do not warrant waiver of the timely filing in this case, the appeal is dismissed.

Madison County Court of Criminal Appeals 08/16/18
State of Tennessee v. Christopher Lee Smith
E2016-01612-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Elizabeth C. Asbury

A Campbell County Criminal Court Jury convicted the Appellant, Christopher Lee Smith, of driving under the influence (DUI), 5th offense; DUI, per se; driving on a revoked license; and violating the financial responsibility law. The trial court merged the DUI convictions and sentenced the Appellant as a Range II, multiple offender to a total effective sentence of three years, to be suspended after service of 150 days in confinement. On appeal, the Appellant contends that (1) he should have been tried on the original indictment, not the amended indictment; (2) the trial court should have granted a mistrial after the State informed the jury that the Appellant acted “feloniously,” thereby informing the jury that the Appellant had prior DUI convictions; and (3) the proof was insufficient to sustain his DUI convictions, arguing that the State failed to prove that he acted “feloniously” as alleged in the indictment. Upon review, we note that the judgment of conviction in count one incorrectly reflects that the charged offense was DUI, 3rd offense; accordingly, the case is remanded to the trial court for entry of a corrected judgment reflecting that the charged offense in count one was DUI, 5th offense. The trial court’s judgments are affirmed in all other respects.

Campbell County Court of Criminal Appeals 08/16/18
State of Tennessee v. Nicholas Zamarron
M2017-02123-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve Dozier

The Defendant, Nicholas Zamarron, pleaded guilty to conspiracy to deliver 0.5 gram or more of cocaine and to three counts of possession with the intent to deliver 0.5 gram or more of cocaine. See T.C.A. § 39-17-417 (2014). He received a total effective sentence of ten years’ incarceration. On appeal, he contends that the trial court erred by denying alternative sentencing. We affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/16/18
State of Tennessee v. Timothy A. Crowell
M2016-01980-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Criminal Court Jury found the Appellant guilty of aggravated robbery. The trial court sentenced the Appellant as a Range II, multiple offender to eighteen years in the Tennessee Department of Correction. On appeal, the Appellant contends that (1) the trial court erred by allowing the State to introduce proof from a portion of a surveillance video that was not preserved for trial; (2) the trial court erred by allowing a State’s witness to testify regarding hearsay evidence; (3) the trial court erred by allowing a photograph lineup that had not been introduced as evidence to be taken into the jury deliberations room; (4) the evidence is not sufficient to sustain his conviction of aggravated robbery; and (5) the length of his sentence is excessive. On appeal, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 08/16/18
Sandra Jo Robbins v. Robert Scholze Robbins
E2017-01427-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge L. Marie Williams

This appeal arises from a divorce. Sandra Jo Robbins (“Wife”) sued her husband Robert Scholze Robbins (“Husband”) for divorce in the Circuit Court for Hamilton County (“the Trial Court”) after approximately 20 years of marriage. Following trial, the Trial Court divided the marital estate, entered a permanent parenting plan regarding the parties’ minor children Ava and Theodore (“the Children”), and awarded Wife alimony in futuro. Husband appeals to this Court, raising a host of issues. We hold, inter alia, that the Trial Court erred in excluding Husband, pro se, and Wife’s attorney from in-chambers questioning of the Children. However, we hold further that, considering the whole record, this error by the Trial Court was not reversible error. We, therefore, affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 08/16/18
Kathy Fowlkes v. Flora Fowlkes
W2018-00050-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Tony Childress

In this action, the petitioner sought a declaratory judgment establishing that the marriage between her deceased father and stepmother was void ab initio. The petitioner claimed that her father was not legally divorced from her mother when the marriage occurred. The trial court denied the petition, finding that the petitioner failed to rebut the validity of the second marriage. The petitioner appeals. We affirm.

Dyer County Court of Appeals 08/16/18
American Recycling & Manufacturing Co., Inc. v. Recycle Solutions, Inc.
W2014-01907-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Arnold B. Goldin

This action involves a former employee’s alleged misappropriation of confidential business information and improper interference with contractual and business relationships for the benefit of a competitor company. The employer filed suit against the employee and the competitor company, seeking damages for lost profits. The defendants moved for summary judgment, alleging, inter alia, that the employer could not prove causation or damages in support of any of its claims. The trial court granted summary judgment, finding that the proof submitted was insufficient to support a claim for lost profits. We affirm.

Shelby County Court of Appeals 08/16/18
State of Tennessee v. Christopher Osteen
W2018-00380-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

The Defendant, Christopher Osteen, appeals as of right from the Madison County Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Defendant complains that the trial court improperly enhanced his sentences based upon judicially determined facts in violation of Blakely v. Washington, 542 U.S. 296 (2004). Additionally, he asserts that he received the ineffective assistance of counsel because his trial counsel failed to object to the aforementioned Blakely violation. Following our review, we affirm.

Madison County Court of Criminal Appeals 08/15/18
Clinton Austin v. State of Tennessee
W2017-02374-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Glenn Wright

The petitioner, Clinton Austin, appeals the denial of his petition for post-conviction relief, which petition challenged his 2014 conviction of aggravated sexual battery, alleging that he was deprived of the effective assistance of counsel at trial. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 08/15/18
Marlon McKay v. State of Tennessee
W2017-00202-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey, Jr.

A Shelby County jury convicted the Petitioner, Marlon McKay, of felony murder and attempted aggravated robbery. The trial court sentenced the Petitioner to an effective sentence of life plus six years. This Court affirmed the trial court’s judgments on appeal. State v. Marlon McKay, No. W2010-01785-CCA-MR3C, 2011 WL 5335285 (Tenn. Crim. App., at Jackson, Nov. 4, 2011), perm. app. denied (Tenn. Apr. 12, 2012). The Petitioner filed a petition for post-conviction relief in which he alleged, as relevant on appeal, that his trial counsel was ineffective for: (1) not challenging his forty-eight hour hold when his arrest was not supported by probable cause; and (2) not timely filing a motion for new trial or a notice of appeal. The post-conviction court denied relief, and the Petitioner appeals. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 08/15/18
Kellye And Reid v. Mitchell Sherman Reid
M2017-00119-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

In this post-divorce proceeding the self-employed father of the parties’ two children sought a reduction in his child support obligation on the ground that his income had substantially decreased. The mother of the children opposed the petition, asserting that Father was attempting to hide income by referring income-producing business to his brother, who was also self- employed in the same trade; Mother also sought an increase in support due to Father’s increase in income and modification of the parenting plan. The trial court held that Father was voluntarily underemployed and that the proof of his income was not credible; concluding that neither party had carried their burden of proof the court denied both petitions insofar as each sought modification of the child support obligation. The court denied Mother’s proposed modification of the parenting plan and both parties’ request for an award of counsel fees for services rendered in the proceeding. Both parties appeal. Upon a thorough review of the record, we affirm the denial of Father’s petition to modify his support obligation and the order denying his counsel fees; we reverse the trial court’s holding that Father was underemployed and remand the case for a determination of whether income should be imputed to Father and, if so, whether there has been a significant variance such as to justify an increase in his support obligation; we vacate the order denying Mother’s petition to modify the parenting plan and remand the case for the court to make findings of fact and conclusions of law in compliance with Rule 52.01 and, in its discretion, for further consideration; we vacate the order denying Mother attorney’s fees.  

Putnam County Court of Appeals 08/15/18
Headwaters Of The Harpeth, LLC v. Tina Majors
M2017-02331-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Walter C. Kurtz

This appeal arises from a detainer action. After the general sessions court awarded the owner a writ of possession and a monetary judgment for rent, the defendant appealed to circuit court. The defendant also filed a separate action in chancery court seeking an equitable interest in the property under a resulting trust to compensate her for improvements she made to the property. The owner filed an answer and counter-complaint in the chancery court to recover the same damages it sought in the circuit court. While the chancery action was pending, the parties entered into an agreed order in the circuit court requiring the defendant to pay rent for her occupancy of the premises, but that execution would be stayed pending resolution of the chancery court action. After the chancery court dismissed all claims with prejudice, the owner filed a motion in the circuit court to lift the stay of the agreed order and for entry of a final judgment to recover rent owed by the defendant. The defendant filed an objection, maintaining that the counterclaim for rent in chancery court consolidated the two cases; therefore, the owner’s claim for rent had been dismissed by the chancery court. The defendant also contended the claim for rent in the circuit court action was barred under the doctrine of res judicata. The circuit court overruled the objection holding that the two actions were never consolidated, and res judicata did not apply because the circuit court action was filed before and pending when the chancery court case was commenced. This appeal followed. We affirm.

Rutherford County Court of Appeals 08/15/18
Teal Properties, Inc. v. Dog House Investments, LLC, Et Al.
M2018-00257-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kelvin D. Jones, III

The dispositive issue on appeal is whether co-owners of a limited liability company who signed a commercial lease agreement on behalf of the entity are personally liable for the lessee’s obligations when they signed the agreement twice: once on a line preceded by the text “By:” and followed on the next line by the text “Title:” and a second time on a line below which the signatory’s name was typed, followed by the word “Individually.” After the lessor filed suit against the lessee company and the co-owners individually to collect utilities and tax payments allegedly owed under the lease agreement, the co-owners filed a motion to dismiss for failure to state a claim on which relief could be granted, arguing that the lease contains no provisions that make them personally liable for the lessee’s obligations. The trial court granted the co-owners’ motion, and lessor appealed. We affirm.

Davidson County Court of Appeals 08/15/18
State of Tennessee v. Gdongalay P. Berry
M2017-00867-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County Criminal Court Jury convicted the Appellant, Gdongalay P. Berry, of two counts of first degree premeditated murder, two counts of first degree felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery. The jury imposed sentences of death for the murder convictions, and the trial court ordered an effective fifty-year sentence for the remaining convictions, which was to be served consecutively to the death sentences. Subsequently, the post-conviction court vacated the Appellant’s death sentences and ordered a new sentencing hearing for the murder convictions. After the new hearing, the trial court resentenced the Appellant to consecutive life sentences. On appeal, the Appellant contends that the trial court erred by ordering consecutive sentencing for the murder convictions because the trial court failed to give “meaningful” consideration to his rehabilitation during his twenty-one years in prison. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/15/18
Darrell Tate v. State of Tennessee
E2017-02104-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John F. Dugger

The Petitioner, Darrell Tate, appeals from the Hawkins County Criminal Court’s dismissal of his petition for post-conviction relief from his 2015 guilty pleas to initiating the manufacture of methamphetamine, possession of drug paraphernalia, and failure to appear, for which he is serving a sixteen-year sentence. The Petitioner contends that his guilty pleas were involuntary. We affirm the judgment of the post-conviction court.

Hawkins County Court of Criminal Appeals 08/15/18