Court Opinions

Format: 12/13/2019
Format: 12/13/2019
Danny Santarone v. State of Tennessee
E2018-01312-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James F. Goodwin, Jr.

Petitioner, Danny Santarone, appeals the denial of his petition for post-conviction relief. Petitioner argues (1) that he was wrongfully convicted based on the fruits of an unconstitutional search and (2) that he was denied effective assistance of counsel. Following a review of the briefs and the record, we affirm the judgment of the postconviction court.

Sullivan County Court of Criminal Appeals 12/02/19
In Re Bryson B. Et Al.
E2019-00729-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Wylie Richardson

This is a termination of parental rights case involving four minor children. In October 2017, temporary custody of the children was granted to the Tennessee Department of Children’s Services (“DCS”), and the children were placed in foster care. The McMinn County Juvenile Court (“trial court”) subsequently adjudicated the children dependent and neglected in December 2017. DCS filed a petition to terminate the parental rights of the mother and father on December 7, 2018, alleging, as statutory grounds for termination, abandonment by failure to provide a suitable home, abandonment by failure to support, substantial noncompliance with the permanency plans, persistence of the conditions leading to the children’s removal from the parents’ home, and failure to assume custody or financial responsibility for the children.1 Following a bench trial, the trial court granted the petition as to the mother upon finding that DCS had proven by clear and convincing evidence the grounds of (1) persistence of the conditions leading to removal, (2) substantial noncompliance with the permanency plans, and (3) failure to assume custody or financial responsibility for the children.2 The trial court also found clear and convincing evidence that termination of the mother’s parental rights was in the children’s best interest. The mother has appealed. Discerning no reversible error, we affirm.

McMinn County Court of Appeals 12/02/19
Nathaniel P. Carson v. State of Tennessee
M2019-00042-CCA-R3-ECN
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Mark J. Fishburn

The Petitioner, Nathaniel P. Carson, appeals the trial court’s dismissal of his petition for writ of error coram nobis in which he challenged his 2010 convictions of two counts of first degree felony murder and two counts of especially aggravated robbery. After a review of the record and applicable law, we affirm the judgment of the coram nobis court.

Davidson County Court of Criminal Appeals 12/02/19
Petr Pompa v. State of Tennessee
M2019-00075-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Monte Watkins

The Petitioner, Petr Pompa, appeals the Davidson County Criminal Court’s denial of post-conviction relief from his convictions of two counts of sexual battery by an authority figure and two counts of statutory rape by an authority figure. On appeal, the Petitioner contends that he was denied the effective assistance of counsel based on trial counsel’s failure to: 1) raise in the motion for new trial the admissibility of opinion testimony from a school resource officer; 2) raise in the motion for new trial the admissibility of character testimony provided by a school counselor; and 3) object to the prosecutor’s statements during closing argument. Following a review of the record and applicable law, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 12/02/19
James Holmes v. State of Tennessee
W2018-01709-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Mark Ward

Petitioner, James Holmes, appeals the denial of his petition for post-conviction relief. Petitioner argues that he was denied effective assistance of counsel because his attorneys failed to adequately prepare for Petitioner’s trial and because there was a breakdown in communication between Petitioner and his attorneys. Following a review of the briefs and record, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/27/19
State of Tennessee v. Dana Ray Davison
W2018-00968-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Weber McCraw

A McNairy County Circuit Court Jury convicted the Appellant, Dana Ray Davison, of attempted voluntary manslaughter; employing a firearm during the attempt to commit a dangerous felony; employing a firearm during the attempt to commit a dangerous felony while having a prior felony conviction; aggravated assault with a deadly weapon; felony reckless endangerment; possession of a firearm after having been convicted of a felony drug offense; criminal trespass of a habitation; and the intentional killing of an animal. After a sentencing hearing, the trial court merged the two convictions of employing a firearm during the attempt to commit a dangerous felony and ordered that the Appellant serve a total effective twenty-year sentence for all of the convictions. Pursuant to Tennessee Code Annotated section 39-17-1324(h)(2), the twenty-year sentence included a mandatory ten-year sentence to be served at one hundred percent for employing a firearm during the attempt to commit a dangerous felony while having a prior felony conviction. On appeal, the Appellant contends that the sentencing provisions of Tennessee Code Annotated section 39-17-1324 violate the principles of due process because they lack definiteness and specificity. The State contends that the trial court erred by not sentencing the Appellant for both convictions of employing a firearm during the attempt to commit a dangerous felony before merging the convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

McNairy County Court of Criminal Appeals 11/27/19
State of Tennessee v. Charles Keese
E2016-02020-SC-R11-CD
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge G. Scott Green

This is the second in a succession of three cases concerning Section 5 of the Public Safety Act of 2016, which took effect on January 1, 2017, and amended Tennessee Code Annotated section 39-14-105, the statute providing for grading of theft offenses.  In 2016, before the amended version of the statute took effect, Charles Keese, the defendant, was convicted of theft of property in the amount of $1,000 or more but less than $10,000, a Class D felony at the time of the offense.  In sentencing the defendant before the amendment’s effective date, the trial court applied the amended version of the statute, which graded theft of more than $1,000 but less than $2,500 as a Class E felony, and sentenced the defendant accordingly.  Both the State and the defendant filed notices of appeal.  The Court of Criminal Appeals, after determining that appellate jurisdiction over the sentencing issue raised by the State was proper, vacated the sentence and remanded for entry of a sentence reflecting a conviction of a Class D felony.  We granted the defendant’s application for permission to appeal in this case in order to consider (1) whether the State had the right to appeal the trial court’s sentencing decision, and (2) whether the Criminal Savings Statute, Tennessee Code Annotated section 39-11-112, should apply to the amendments of the theft grading statute where, as here, the offense occurred and the defendant was sentenced before the statute’s effective date.  We conclude that the State had a statutory right to appeal the sentence pursuant to Tennessee Code Annotated section 40-35-402(b)(1).  In addition, we agree with the Court of Criminal Appeals’ determination that the Criminal Savings Statute applies to the amendments to Tennessee Code Annotated section 39-14-105.  We also agree with its ultimate conclusion that the trial court erred in sentencing the defendant under the amended version of the statute prior to its effective date.  We, therefore, affirm the judgment of the Court of Criminal Appeals and remand to the trial court for the entry of a modified judgment consistent with this opinion.

Knox County Supreme Court 11/27/19
State of Tennessee v. Ashley N. Menke
M2017-00597-SC-R11-CD
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge Joe H. Thompson

This appeal concerns Section 5 of the Public Safety Act of 2016, which took effect on January 1, 2017, and amended Tennessee Code Annotated section 39-14-105, the statute providing for grading of theft offenses.  In 2016, before the amended statute took effect, Ashley N. Menke, the defendant, entered a guilty plea without a recommended sentence for, among other things, theft of property in the amount of $1,000 or more but less than $10,000, a Class D felony at the time of the offense.  In sentencing the defendant after the amendment’s effective date, the trial court applied the amended version of the statute, which graded theft in the amount of $1,000 or less as a Class A misdemeanor, and sentenced the defendant accordingly for her theft of exactly $1,000.  The State appealed, and the Court of Criminal Appeals vacated the sentence and remanded to the trial court for resentencing within the applicable range for a Class D felony and consecutive alignment with the sentences for some of the defendant’s other charges.  We granted the defendant’s application for permission to appeal in this case with direction to the parties to particularly address the following issues: (1) whether the State was entitled to pursue an appeal as of right from the trial court’s decision, and (2) whether the Criminal Savings Statute, Tennessee Code Annotated section 39-11-112, should apply to the amendments of the theft grading statute.  We conclude that the State had a statutory right to appeal the sentence pursuant to Tennessee Code Annotated section 40-35-402(b)(1).  We further conclude, unlike the Court of Criminal Appeals, that the Criminal Savings Statute applies to the amendments to Tennessee Code Annotated section 39-14-105.  Thus, the amended theft grading statute was appropriately applied by the trial court even though the offense occurred before the amendment’s effective date.  Therefore, the judgment of the Court of Criminal Appeals is affirmed in part and reversed in part, and the judgment of the trial court is affirmed.

Sumner County Supreme Court 11/27/19
State of Tennessee v. Michael Eugene Tolle
E2017-00571-SC-R11-CD
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge Bobby R. McGee

This is the third in a succession of three cases concerning Section 5 of the Public Safety Act of 2016, which took effect on January 1, 2017, and amended Tennessee Code Annotated section 39-14-105, the statute providing for grading of theft offenses.  In 2012, before the amended version of the statute took effect, Michael Eugene Tolle, the defendant, pleaded guilty to theft of property in the amount of more than $500 but less than $1,000, a Class E felony at the time of the offense, and he was sentenced accordingly.  In 2017, following the revocation of his probation, the trial court applied the amended version of the statute, which graded theft in the amount of $1,000 or less as a Class A misdemeanor, and imposed a Class A misdemeanor sentence.  The State appealed.  The Court of Criminal Appeals, after determining that it had authority to consider the issue raised by the State, vacated the sentence and remanded for entry of a sentence reflecting his conviction for a Class E felony.  We granted the defendant’s application for permission to appeal in this case in order to consider (1) whether the State had the right to appeal the trial court’s revocation order, and (2) whether the defendant, who was originally sentenced under the prior version of the statute, may benefit from the lesser punishment under the amended version of the theft grading statute following the revocation of his probation.  We conclude that, pursuant to Tennessee Rule of Criminal Procedure 35, the intermediate appellate court acquired jurisdiction of the State’s claim when the defendant, in effect, filed a Rule 35 motion for reduction of sentence.  In addition, while we agree with the Court of Criminal Appeals’ determination that the Criminal Savings Statute applies to the amendments to Tennessee Code Annotated section 39-14-105, we also agree with its ultimate conclusion that the trial court exceeded its authority in modifying the offense class and sentence pursuant to the amended version of the statute following the revocation of his probation.  We, therefore, affirm the judgment of the Court of Criminal Appeals and remand to the trial court for the entry of a modified judgment consistent with this opinion.

Knox County Supreme Court 11/27/19
ELIZABETH JANE KNIZLEY v. ANDREW CARLTON KNIZLEY
M2018-00490-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph A. Woodruff

Finding agreement in the midst of a divorce can be difficult, but leading up to and during the trial in their divorce, husband and wife entered into certain stipulations.  Among those, according to wife, was a stipulation that she would receive alimony in futuro of some amount.  Following the trial, the trial court awarded wife transitional alimony.  On appeal, wife argues that the court improperly created a dispute when none existed by ignoring the parties’ stipulation.  For his part, husband argues that parties cannot stipulate to a type of alimony and, in any event, there was no such stipulation.  After a review of the record, we affirm.

Williamson County Court of Appeals 11/27/19
State of Tennessee v. Tommie Taylor
W2018-02269-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Lee V. Coffee

The defendant, Tommie Taylor, was convicted by a Shelby County Criminal Court jury for possession of a firearm by a convicted felon. On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction, arguing the State failed to prove beyond a reasonable doubt the defendant was the person who shot the victim. After our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/26/19
Barry Leon Ferguson v. State of Tennessee
W2019-00134-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge R. Lee Moore, Jr.

The petitioner, Barry Leon Ferguson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective the assistance of counsel prior to and during his guilty plea hearing. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Dyer County Court of Criminal Appeals 11/26/19
State of Tennessee v. Jamal Bowens
W2019-00253-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge John Wheeler Campbell

The defendant, Jamal Bowens, appeals from the entry of an order denying his motion to suspend the remainder of his sentence pursuant to Tennessee Code Annotated § 40-35-306(c). The defendant pleaded guilty to robbery and aggravated assault, both Class C felonies, for which he received a total effective sentence of six years in the Tennessee Department of Correction. In denying the defendant’s motion, the trial court found the defendant was not a suitable candidate for probation. Following our review of the record, we conclude the trial court did not abuse its discretion.

Shelby County Court of Criminal Appeals 11/26/19
Antonio Richardson v. State of Tennessee
W2019-00368-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James M. Lammey

The petitioner, Antonio Richardson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. The petitioner also challenges the constitutionality of Rule 13 of the Tennessee Supreme Court Rules, claiming the post-conviction court erred in its adherence to the same. Following our review, we affirm the denial of the petition and the post-conviction court’s application of Rule 13.

Shelby County Court of Criminal Appeals 11/26/19
Cheryle Luane Levoy v. Jason Hunter Levoy
M2018-01276-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ronald Thurman

In this post-divorce dispute, the mother filed a criminal contempt petition against her ex-husband, alleging multiple violations of a permanent parenting plan.  The husband responded with a petition for temporary emergency custody.  The trial court granted temporary custody to the father and scheduled a hearing on both petitions.  After the hearing, the court found the father guilty of 12 counts of criminal contempt beyond a reasonable doubt and sentenced him to 120 days in jail.  Finding no credible evidence to support the father’s custody petition, the court dissolved the temporary custody order.  On appeal, the father argues that the trial court erred in finding him guilty of criminal contempt.  Because the evidence is sufficient to support a finding of criminal contempt, we affirm.

Overton County Court of Appeals 11/26/19
Floyd Rodney Burns v. State of Tennessee
E2018-02174-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Commissioner William A. Young

This appeal arose from a claim filed with the Tennessee Claims Commission (“the Commission”) against the State of Tennessee (“the State”), seeking an award of damages for defamation allegedly committed by a district attorney general through statements made to the media concerning the claimant. The State filed, inter alia, a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim upon which relief could be granted, and the claimant filed, inter alia, a response objecting to the motion. Following a hearing, the Commission denied the State’s motion to dismiss upon finding, in pertinent part, that the Commission did not have the authority to extend absolute immunity to district attorneys general. Upon the State’s application, the Commission and this Court each granted permission for interlocutory review. Having considered the certified question of whether the absolute privilege afforded to state officials for statements made in the course of their official duties, as recognized in Jones v. State, 426 S.W.3d 50 (Tenn. 2013), extends to district attorneys general, we determine that the privilege does not apply and accordingly affirm the Commission’s judgment.

Davidson County Court of Appeals 11/26/19
Carl J. Wagner v. State of Tennessee
M2018-02000-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The pro se Petitioner, Carl J. Wagner, appeals the denial of his petition for post-conviction DNA analysis and the dismissal of his Tennessee Rule of Civil Procedure 60.02 motion to correct/relieve him of his judgments of conviction. Following our review, we affirm the judgments of the post-conviction court.

Davidson County Court of Criminal Appeals 11/26/19
Tennessee Funding, LLC v. William H. Worley
M2018-01099-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jeffrey F. Stewart

Two parties claim the authority to exercise the declarant’s rights under a declaration of restrictive covenants for a residential subdivision.  The original declarant, the developer of the subdivision, granted a security interest in all personal property associated with the subdivision, including “contract rights” and general intangibles, to the bank that financed the subdivision.  After the developer defaulted, the bank conducted a public sale of the personalty securing its debt and was the highest bidder at the sale.  A few months later, the developer fell into receivership, and the receiver sold the declarant’s rights under the declaration to a lot owner “free and clear of all liens and liabilities.”  The bank filed this action seeking a declaratory judgment regarding entitlement to the declarant’s rights and damages.  The lot owner moved for judgment on the pleadings.  The lot owner argued that the bank could not prove a superior claim because it had consented to and subordinated its security interest to the declaration.  The bank moved for partial summary judgment on its request for a declaratory judgment.  The trial court denied the motion for judgment on the pleadings and granted partial summary judgment to the bank.  We affirm. 

Marion County Court of Appeals 11/26/19
Donald Peden v. State of Tennessee
M2018-01670-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Mark J. Fishburn

The petitioner, Donald Peden, appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of attempted first degree murder and theft of property valued at $500 or less, alleging that he was deprived of the effective assistance of counsel. Because the petitioner’s post-conviction counsel also represented the petitioner on direct appeal, we remand to the post-conviction court to determine whether the petitioner knowingly and voluntarily agrees to waive post-conviction counsel’s conflict of interest.

Davidson County Court of Criminal Appeals 11/26/19
In Re Kolton C.
E2019-00736-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerri Bryant

This is a termination of parental rights case. Mother/Appellant appeals the trial court’s termination of her parental rights to the minor child on the grounds of: (1) severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); and (2) abandonment by willful failure to visit and to support, Tenn. Code Ann. §§ 36-1-113(g)(1), § 36-1-102(1)(A)(i). Mother also appeals the trial court’s determination that termination of her parental rights is in the child’s best interest. Because Appellee did not meet her burden to show that Mother failed to support the child, we reverse the trial court’s termination of parental rights as to this ground. We affirm the trial court’s termination of Mother’s parental rights on the grounds of severe child abuse and failure to visit, and on its finding that termination of Appellant’s parental rights is in the child’s best interest.

Bradley County Court of Appeals 11/26/19
State of Tennessee v. Ketorrence Eugene Rollins
M2018-02150-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Angelita Blackshear Dalton

The defendant, Ketorrence Eugene Rollins, appeals his Davidson County Criminal Court jury convictions of two counts of aggravated robbery, arguing that the evidence adduced at trial was insufficient to sustain his convictions. Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 11/26/19
William Cooper v. Board of Parole
M2018-01392-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Russell T. Perkins

This is an appeal from the judgment of the chancery court denying an inmate the relief requested in his petition for writ of certiorari.  The inmate is serving two concurrent life sentences, with the possibility of parole, for offenses of first degree murder.  The Tennessee Board of Parole declined to grant parole to the inmate, citing seriousness of the offense.  The chancery court concluded that the Board did not act arbitrarily, fraudulently, illegally, or in excess of its jurisdiction, in denying the inmate parole.  For the following reasons, we affirm the trial court’s order of dismissal. 

Davidson County Court of Appeals 11/26/19
Christopher James Terrazzano v. Alecia Ann Terrazzano
M2019-00400-COA-r3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Amy V. Hollars

This action concerns the trial court’s designation of the primary residential parent, allocation of co-parenting time, and the division of marital debt following the parties’ divorce. We affirm the rulings on these issues made by the trial court.

Putnam County Court of Appeals 11/26/19
Hubert Glenn Sexton, Jr. v. State of Tennessee
E2018-01864-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge E. Shayne Sexton

The petitioner, Hubert Glenn Sexton, Jr., appeals the denial of his post-conviction petition, in which the petitioner challenged his conviction for two counts of first degree murder, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial and on appeal. After our review of the record, briefs, and applicable law, we conclude the petitioner was denied his constitutional right to a fair and impartial jury and received the ineffective assistance of counsel. Accordingly, we reverse the judgment of the post-conviction court, vacate the petitioner’s convictions, and remand the case to the trial court for a new trial.

Scott County Court of Criminal Appeals 11/25/19
In Re Antonio J. Et Al.
M2019-00255-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Clara W. Byrd

Mother appeals the termination of her parental rights on grounds of persistence of conditions and failure to manifest a willingness and ability to assume custody. The trial court’s order is affirmed in all respects.

Trousdale County Court of Appeals 11/25/19