Court Opinions

Format: 06/23/2017
Format: 06/23/2017
Raina Fisher v. State of Tennessee
M2016-00594-CCA-R3-PC
Authoring Judge: Judge John Everett Williams, Jr.
Trial Court Judge: Judge Russell Parkes

The Petitioner, Raina Fisher, was convicted of three counts of theft of property valued over $1,000, one count of theft of property valued over $500, and one count of attempted theft of property valued over $1,000. The Petitioner filed a timely post-conviction petition, alleging that her trial counsel had provided ineffective assistance by failing to suppress evidence obtained through a judicial subpoena, failing to exclude evidence of her prior convictions, and failing to call certain witnesses who could have discredited the victim. She also alleged that appellate counsel was ineffective and that she was entitled to relief under a theory of cumulative error. The post-conviction court held a hearing and denied relief. After a thorough review of the evidence, we conclude that the Petitioner has not demonstrated prejudice resulting from any of her claims, and we affirm the judgment of the post-conviction court.

Maury County Court of Criminal Appeals 06/06/17
In Re E.C.
E2016-02582-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Sharon M. Green

In this termination of parental rights action, Father’s parental rights were terminated based on the following grounds: (1) failure to manifest an ability and willingness to assume legal and physical custody of the child; (2) that placing the child in Father’s legal and physical custody would pose a risk of substantial harm to the child’s physical and psychological welfare; (3) failure to establish or exercise paternity; and (4) abandonment by wanton disregard for the welfare of the child. We affirm the grounds of failure to manifest an ability and willingness to assume legal and physical custody of the child and failure to establish or exercise paternity. However, we reverse with respect to the remaining grounds. We also affirm the trial court’s determination that termination of Father’s parental rights is in the best interest of the child. Affirmed in part, reversed in part, and remanded

Washington County Court of Appeals 06/06/17
David Hearing v. Cherry Lindamood, Warden
M2016-02114-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

The Petitioner, David Hearing, filed a petition for a writ of habeas corpus, alleging that his concurrent sentences of life for his two convictions of felony murder were illegal and void. The habeas corpus court dismissed the petition upon finding that the issue had been raised and addressed in prior pleadings. On appeal, the Petitioner challenges the habeas corpus court’s ruling. Upon review, we affirm the judgment of the habeas corpus court.

Wayne County Court of Criminal Appeals 06/06/17
In Re Gunner F.
M2016-01650-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge George L. Lovell

The trial court determined that the primary residential parent should be changed from mother to father without any change in the equal division of parenting time.  Because the trial court failed to address the best interest of the child in its order, we vacate and remand for the entry of findings of fact and conclusions of law.

Maury County Court of Appeals 06/06/17
State of Tennessee v. Jeffery Dwight Ray
E2016-01533-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Jeffery H. Wicks

Following the Defendant’s, Jeffery Dwight Ray’s, guilty-pleaded conviction for aggravated statutory rape, the trial court imposed a sentence of three years’ incarceration. The Defendant appeals, arguing that he is a suitable candidate for alternative sentencing pursuant to the statutory considerations outlined in Tennessee Code Annotated section 40-35-103. Following our review, we affirm the trial court’s alternative sentencing decision.

Morgan County Court of Criminal Appeals 06/06/17
John Willie Stone v. State of Tennessee
M2016-01269-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge F. Lee Russell

A Bedford County Circuit Court jury convicted the defendant, John Willie Stone, of burglary of an automobile, theft of property valued at $500 or less, and aggravated assault, and the trial court imposed a total effective sentence of 21 years’ incarceration. Shortly after the conclusion of his trial and prior to the entry of his judgments or his sentencing hearing, the defendant filed a pro se motion seeking new counsel, which the trial court interpreted as a petition for post-conviction relief on the basis of ineffective assistance of counsel. Following a combined hearing on the defendant’s motion for new trial and his purported petition for post-conviction relief, the trial court denied all claims. In this appeal, the defendant challenges both the sufficiency of the convicting evidence and the length of his sentence in addition to the ineffectiveness of his trial counsel. Because the trial court erroneously treated the defendant’s motion for new counsel as a petition for post-conviction relief, we vacate the portion of the trial court’s judgment which denied post-conviction relief to the defendant. In all other respects, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 06/06/17
State of Tennessee v. George Joseph Raudenbush, III
E2015-00674-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jon Kerry Blackwood

In his first trial, Defendant, George Joseph Raudenbush, III, was convicted of driving on a suspended license, violating the financial responsibility law, speeding, felony evading arrest, misdemeanor evading arrest, assault, and reckless endangerment. The trial court merged the misdemeanor evading arrest conviction into the felony evading arrest conviction and imposed an effective four-year sentence. On appeal, this court reversed and remanded the case for a new trial because the trial court denied Defendant his Sixth Amendment right to counsel by requiring him to proceed pro se at trial. State v. George Joseph Raudenbush, III, No. E2012-02287-CCA-R3-CD, 2013 WL 62372011 (Tenn. Crim. App. Dec. 3, 2013). In his second trial, the subject of this appeal, Defendant was convicted of driving on a suspended license, violating the financial responsibility law, speeding, felony evading arrest, misdemeanor evading arrest, assault, and reckless endangerment. The trial court again imposed an effective four-year sentence to be served on supervised probation. On appeal, Defendant raises the following issues: (1) whether the trial court erred in overruling Defendant’s motion for judgment of acquittal; (2) whether the evidence was insufficient to support his convictions for felony evading arrest and assault; (3) whether the trial court erred by denying his motion for a change of venue; and (4) whether there was juror misconduct. Defendant is not entitled to relief on the issues presented. However, the trial court failed to merge the conviction for misdemeanor evading arrest with the conviction for felony evading arrest. We therefore remand the convictions for merger. In all other respects the judgments are affirmed.

Monroe County Court of Criminal Appeals 06/06/17
State of Tennessee v. Terry Trammell
E2016-01725-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

The Defendant, Terry Trammell, was convicted by a Knox County Criminal Court jury of two counts of burglary, a Class D felony, and two counts of theft of property, a Class E felony. See T.C.A. §§ 39-14-402 (2014) (burglary), 39-14-103 (2014) (theft). The trial court merged the burglary and theft convictions and sentenced the Defendant to concurrent terms of twelve years for the burglary conviction and six years for the theft conviction, which were ordered to be served consecutively to a previously imposed sentence. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 06/05/17
State of Tennessee v. Martin E. Hughes
E2016-01415-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Alex E. Pearson

The Petitioner, Martin E. Hughes, pled guilty to two counts of aggravated assault; introducing contraband into a penal institution; facilitation of possession of a schedule II controlled substance; possession of marijuana with the intent to sell or deliver; possession of drug paraphernalia; a second offense of driving under the influence of an intoxicant; possession of a firearm while intoxicated; and vandalism of property valued under $500. The Petitioner received an aggregate five-year sentence, with credit for time he had served in prison and the remainder of the sentence to be served through the community corrections program. The Petitioner violated the terms of his alternative sentence, and he was sentenced to serve the remainder of the five years in prison. The Petitioner then filed a petition for post-conviction relief. At the hearing on the petition, the Petitioner sought to establish that he had received the ineffective assistance of counsel and that he was entitled to withdraw his guilty pleas as not knowingly and voluntarily entered based on newly discovered evidence in the form of a victim recanting an earlier statement. The post-conviction court found that the Petitioner was not entitled to relief because he received the effective assistance of counsel and because the victim’s testimony at the hearing established that the material elements of her statement to police were accurate. On appeal, the Petitioner argues that a delay in the post-conviction proceedings attributable to the State resulted in the loss of a witness’s testimony and that his due process right to present his post-conviction claims was violated. After a thorough review of the record, we conclude there is no basis to disturb the Petitioner’s guilty pleas, and we affirm the judgment of the post-conviction court.

Hamblen County Court of Criminal Appeals 06/05/17
Rathal Y. Perkins v. State of Tennessee
M2016-02047-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Rathal Y. Perkins, appeals the summary dismissal of his petition for writ of habeas corpus, which challenged his 1995 Haywood County Circuit Court jury conviction of first degree murder. Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 06/05/17
State of Tennessee v. Robert Guerrero
M2016-00481-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Robert Guerrero, appeals from the trial court’s summary denial of his Motion for Correction of Illegal Sentence filed pursuant to Tennessee Rule of Criminal Procedure (Tenn. R. Crim. P.) 36.1.  In his motion and on appeal, Defendant asserts that his nine consecutive fifteen-year sentences for nine convictions of attempted first degree murder are illegal.  He asserts that by imposing consecutive sentencing, the trial court failed to base its ruling on at least one of seven criteria found in Tennessee Code Annotated (T.C.A.) section 40-35-115.  After a thorough review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 06/05/17
Samuel L. Graham, Jr., et al. v. The Family Cancer Center, PLLC, et al.
W2016-00859-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donna M. Fields

This is a medical malpractice action. The plaintiffs timely filed suit against the defendants concerning the failure to timely diagnose the husband’s prostate cancer. After voluntarily dismissing the initial suit, the plaintiffs provided pre-suit notice before filing a second suit pursuant to the saving statute. The defendants moved for summary judgment, arguing that the plaintiffs lacked sufficient expert testimony to establish their claim. The court agreed and granted summary judgment. We affirm.

Shelby County Court of Appeals 06/05/17
Larry Peoples v. State of Tennessee
E2016-02315-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Bobby R. McGee

The Petitioner, Larry Peoples, appeals the denial of his petition for post-conviction relief, challenging his conviction of violation of sex offender registration and sentence of one year. On appeal, the Petitioner argues that he is entitled to post-conviction relief because the underlying sex offense was vacated and he is no longer required to register as a sex offender. After a review of the record and applicable law, we affirm the post-conviction court’s denial of relief.

Knox County Court of Criminal Appeals 06/02/17
Mitch Goree, et al. v. United Parcel Service, Inc.
W2016-01197-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This is the second appeal of this employment discrimination case involving two plaintiffs. In the first appeal, Goree v. United Parcel Service, 490 S.W.3d 413 (Tenn. Ct. App. 2015), perm. app. denied (Tenn. March 23, 2016), this Court reversed the judgment as to one plaintiff and affirmed the judgment as to the other plaintiff, the Appellant in the instant case. On remand, the trial court determined that the specific attorney’s fees chargeable to each plaintiff could not be determined and reduced the previous award of attorney’s fees and costs by 50%. Appellant appeals. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 06/02/17
Travarious White v. State of Tennessee
W2016-01773-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Kyle Atkins

The petitioner, Travarious D. White, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Madison County Court of Criminal Appeals 06/02/17
Paul Richardson v. State of Tennessee
W2016-02189-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Glenn Ivy Wright

The petitioner, Paul Richardson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 06/02/17
State of Tennessee v. Perry Mitchell Kirkman
M2016-02248-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Perry Mitchell Kirkman, pleaded guilty to two counts aggravated sexual battery in 2010 and received a fifteen-year sentence as a Range II offender. Six years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence because his sentence exceeds the sentencing range for a Range I offender convicted of a Class B felony. The trial court summarily dismissed the motion after determining that the Defendant knowingly and voluntarily pleaded guilty and agreed to a sentence outside the appropriate sentencing range pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997).1 On appeal, the Defendant contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 06/02/17
State of Tennessee v. Ray Rowland
W2014-02311-SC-R11-CD
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge James M. Lammey, Jr.

The issue we address is whether a defendant has an appeal as of right from the denial of a Tennessee Rule of Criminal Procedure 41(g) motion for return of property when the defendant did not file a pretrial motion to suppress and pleaded guilty. The defendant was indicted on charges of aggravated assault by use or display of a deadly weapon. Law enforcement officers seized guns and other related items from the defendant’s home. The defendant did not challenge the seizure of his property and pleaded guilty to reduced charges of reckless endangerment. Three years later, he filed a Rule 41(g) motion for the return of property. The trial court dismissed the motion, and the defendant appealed. The Court of Criminal Appeals reversed and remanded, finding that the defendant may be entitled to relief under Rule 41(g) based on the court’s determination that an illegal seizure occurs when, after a conviction, the State retains possession of property that is not stolen and not connected to the commission of a crime. See State v. Rowland, No. W2014-02311-CCA-R3-CD, 2015 WL 6601315, at *3 (Tenn. Crim. App. Oct. 30, 2015), perm. app. granted (Mar. 23, 2016). We hold that the defendant had no appeal as of right under Tennessee Rule of Appellate Procedure 3(b) from the trial court’s order denying the Rule 41(g) motion. The Court of Criminal Appeals erred by hearing the defendant’s appeal when it lacked jurisdiction under Rule 3(b) and by determining that the defendant could be entitled to relief under Rule 41(g).   

Shelby County Supreme Court 06/02/17
State of Tennessee v. Rafael Antonio Bush
M2016-01537-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David M. Bragg

The Appellant, Rafael Antonio Bush, appeals as of right from the Rutherford County Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The gravamen of the Appellant’s complaint is that the trial court improperly enhanced his sentences based upon judicially determined facts in violation of Blakely v. Washington, 542 U.S. 296 (2004). Following our review, we affirm.

Rutherford County Court of Criminal Appeals 06/01/17
Dale J. Montpelier, et al. v. Herbert S. Moncier, et al. - DISSENT
E2016-00246-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens

I respectfully dissent from the majority’s opinion in this case. I disagree with the majority’s conclusion that “the complaint fails to state a cause of action for abuse of process.” Applying the appropriate standard of review as correctly articulated by the majority, I believe the complaint does state a claim upon which relief can be granted as to the abuse of process claim.

Knox County Court of Appeals 06/01/17
Dale J. Montpelier, et al. v. Herbert S. Moncier, et al.
E2016-00246-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Deborah C. Stevens

This is a common law abuse of process case. The plaintiffs contend that the defendant attorney abused otherwise lawful process without authorization and for an improper purpose. The trial court dismissed this case as a matter of law for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(6). We affirm.

Knox County Court of Appeals 06/01/17
Walnut Run Homeowner's Association, Inc. v. Jerry Wayne Wilkerson
E2016-01084-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jeffrey M. Atherton

The owner of property in a residential subdivision appeals the order of the trial court prohibiting construction of an eight-foot wooden fence. We affirm.

Hamilton County Court of Appeals 06/01/17
State of Tennessee v. Jerome Antonio McElrath
W2015-01794-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jeff Parham

The State appeals the suppression of evidence by the Obion County Circuit Court. The defendant, Jerome Antonio McElrath, was arrested on two separate occasions for criminal trespass. The searches of the defendant’s person incident to those arrests produced marijuana in the amounts of 10.1 grams and 4.0 grams, respectively. After an evidentiary hearing, the trial court granted the defendant’s motion to suppress the evidence seized incident to his arrests and dismissed the charges. The State argues that the arresting officer had probable cause to arrest the defendant and, therefore, the search incident to each arrest was lawful. Furthermore, the State contends that the evidence was legally obtained because the officer acted in good-faith reliance on information provided by dispatch. After review, we affirm the decision of the trial court.

Obion County Court of Criminal Appeals 05/31/17
Town of Collierville, et al. v. Town of Collierville Board of Zoning, et al.
W2016-02032-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This is the third appeal in an ongoing dispute between the Town of Collierville and the owner of property on which two billboards are situated. On February 12, 2013, the Town filed a petition for writ of certorari, challenging a decision of the Board of Zoning Appeals. Because the petition for writ of certorari does not comply with Tennessee Code Annotated section 27-8-106, the trial court and, therefore, this Court lack subject matter jurisdiction. We vacate the judgment of the chancery court and dismiss the petition.

Shelby County Court of Appeals 05/31/17
Daniel Paschedag v. Patricia L. Paschedag
M2016-00864-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Ross H. Hicks

This is an appeal from the trial court’s designation of a child’s primary residential parent. After an analysis of the best interest factors set forth in Tennessee Code Annotated section 36-6-106(a), the court concluded that it would be in the child’s best interest to designate Mother as the child’s primary residential parent. Father appealed. Mother has requested attorney’s fees incurred in defending this appeal. We affirm the judgment of the trial court, grant Mother’s attorney’s fees incurred on appeal, and remand to the trial court to determine the proper amount of Mother’s award of attorney’s fees.

Montgomery County Court of Appeals 05/31/17