The petitioner appeals the denial of his petition for post-conviction relief. The petitioner contends his trial counsel failed to investigate his case and meet with him regularly. He further contends his trial counsel never held a hearing on his motion to suppress his identification, thus rendering his plea involuntary. We conclude that the evidence does not preponderate against the findings of the post-conviction court. We affirm the post-conviction court's denial of post-conviction relief.
The Defendant, Ronald W. Jenkins, II, pled guilty to reckless homicide, felony reckless endangerment, and DUI, second offense. The Defendant was thereafter sentenced to two years for the homicide, one year for the reckless endangerment, to be served concurrently, and eleven months, twenty-nine days for the DUI, to be served consecutively. The Defendant's driver's license was also suspended for a period of two years. The Defendant's sentences were suspended after service of 150 days, and he was placed on three years of probation. Within a few months of beginning his probationary period, the Defendant was arrested and convicted of driving on a revoked license. A probation violation warrant was filed, a hearing conducted, and the trial court revoked the Defendant's probation. The Defendant now appeals, complaining that the trial court erred in revoking his probation. We affirm the judgment of the trial court.
The defendant, Michael Allen Conrad, appeals as of right the Knox County Criminal Court's denial of his motion to withdraw his guilty pleas to three counts of attempted statutory rape, a Class A misdemeanor. He received the agreed sentences of two consecutive and one concurrent eleven-month-twenty-nine-day terms on probation. The defendant contends that his guilty pleas were involuntary because his attorney erroneously advised him that he would not have to register with Tennessee's sexual offender registry. He argues that had he known that he was subject to the registry, he would not have pled guilty but would have gone to trial. We conclude that the defendant should be allowed to withdraw his guilty pleas to prevent manifest injustice.
Knox
Court of Criminal Appeals
Randy Selby v. Highways, Inc. M2002-00340-WC-R3-CV
Authoring Judge: Byers, Sr.J.
Trial Court Judge: John A. Turnbull, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant appeals the trial court's decision on the grounds that it argues that the medical testimony preponderates against the trial court's finding that the August 22, 1998, incident was the cause of the plaintiff's psychological injury, that the trial court erroneously allowed Dr. John Averitt, a clinical psychologist, to testify on the issue of permanency and causation, that the trial court erroneously relied upon the testimony of Dr. Averitt in weighing the medical expert evidence, and that the trial court erroneously allowed Dr. Averitt to testify on the issue of maximum medical improvement. We affirm the decision of the trial court but modify the judgment as to the date of the plaintiff's maximum medical improvement. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Putnam County Circuit Court is Affirmed as Modified BYERS, SR.J., in which DROWOTA, C.J., and LOSER, SP.J., joined. John W. Barringer, Jr., of Nashville, Tennessee, for the Appellant, Highways, Inc. James P. Smith, of Crossville, Tennessee, for the Appellee, Randy Selby. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The plaintiff (employee) was thirty-eight years of age at the time of trial. He testified that he left high school in the ninth grade and began working on a tobacco farm where he worked for approximately two years. He then worked on another farm, in a garment factory, and in a foam rubber factory. He then got married, obtained his graduate equivalency degree, and attended a communications vocational school in the state of Washington. He did not obtain a degree from this school, despite his having thought he did. His final job before working for the defendant was at a paving company where he ran machinery. The plaintiff testified that he began working for the defendant company in approximately 1993. He alleges that he received psychological injuries from an incident that occurred on August 22, 1998, in the course and scope of his employment with Townsend Tree Service. Specifically, the plaintiff alleges that while he was working on a sand crusher at a sand plant, he was "hit on the side of the head with a coke can which caused him to become psychologically unstable." The plaintiff testified that over the course of the years he worked for the defendant there were several "incidents that made him feel bad," and he felt he was abused, harassed, teased, and outright tortured by his co- workers. The testimony at trial showed that this harassment included the plaintiff being shot with a BB gun, being pushed into a lake, getting caught in flume box and drenched with thousands of gallons of water, having lit cigarettes placed in his pockets, having starter fluid sprayed down his pants, and having a rope tied around his neck and pulled by a loader. The plaintiff testified that following the can-throwing incident of August 22, 1998, he went to the emergency room after his eye began to swell and his mother could tell that something was wrong with him. In the emergency room, medical personnel determined that the plaintiff indeed had an injury to the right side of his face. Following his visit to the emergency room, the plaintiff was treated for symptoms of anxiety and panic. He testified that these symptoms manifested themselves in anxiety, hypersensitivity, difficulty focusing, difficulty sleeping, and delusions, including the delusion that his co-workers are trying to kill him. He was treated by Dr. Kirby Pate and examined by several doctors and psychiatrists who testified at trial. Pursuant to the testimony of these doctors, the trial court held that the plaintiff was permanently and totally disabled as a result of the injury of August 22, 1998, to his mental faculties. Medical Evidence The medical evidence for the purposes of the issues raised in this trial was presented by the depositions of Dr. Kirby Pate, Dr. James W. Varner, Dr. Ben Bursten, and Dr. Susan K. Vaught, and by the live testimony of Dr. John Averitt. Dr. Pate, a licensed psychiatrist in Nashville, Tennessee, testified by deposition that he first -2-
Putnam
Workers Compensation Panel
Wayne Bailiff v. State M2001-01936-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Thomas W. Brothers
In these consolidated appeals a wife appeals the order of the Tennessee Claims Commission dismissing her claim for loss of consortium because it was not brought as a part of her husband's claim, and the husband and wife appeal the Davidson County Circuit Court's denial of their motion to amend to add the wife's claim to the husband's action against the State of Tennessee and other defendants. We reverse the action of the Claims Commission and remand the wife's claim to the Circuit Court for trial.
Davidson
Court of Appeals
City of Knoxville vs. Lumari Harshaw E2002-02519-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
While on patrol, Officer Gerald Thomas George ("the Officer") heard a "thumping bass noise" coming from a vehicle "at least 100 yards" away. The Officer stopped the vehicle and issued a citation for violation of section 18-5 of the City of Knoxville noise ordinance ("Ordinance") to the driver, Lumari Harshaw ("Defendant"). The Trial Court found Defendant violated the Ordinance. Defendant appeals claiming the City of Knoxville ("City") failed to prove an element of the charge, specifically that the noise was "audible to a person of normal hearing sensitivity more than fifty (50) feet from [the] vehicle." We affirm.
Michael Todd Drinnon appeals the dismissal of his second petition for post-conviction relief and attacks his convictions for a variety of reasons, mostly related to the claimed ineffectiveness of his trial counsel. The post-conviction court dismissed the petition as raising issues that had been previously determined and for failure to allege or establish grounds for reopening his previous petition. We affirm.
Hamblen
Court of Criminal Appeals
Victoria Henry v. Timothy Goins M2000-02663-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Hamilton V. Gayden, Jr.
The trial court entered an Order of Dismissal for failure to prosecute. The order was entered with prejudice and without notice to the parties. After the trial court reinstated Plaintiffs' claims pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure ("Rule 60.02"), Plaintiffs prevailed on the merits. The Court of Appeals held that the trial court erred in setting aside the Order of Dismissal and vacated the judgment in Plaintiffs' favor. We granted permission to appeal. Because Plaintiffs presented adequate grounds for relief under Rule 60.02, we hold that the trial court did not abuse its discretion in reinstating their claims. Therefore, we reverse that portion of the judgment of the Court of Appeals holding that the trial court erred in setting aside the Order of Dismissal. Accordingly, we reinstate the jury verdict, and we remand this cause to the trial court for proceedings consistent with this opinion.
Davidson
Supreme Court
Jeffrey Edmisten v. Kathy Edmisten M2001-00081-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Wife sought separate maintenance and support. After a two year separation during the pendency of Wife's petition, Husband sought a divorce on the statutory ground of the separation. Wife opposed the divorce. The trial court dismissed Husband's counter-complaint, awarded Wife a legal separation, divided the marital property, and awarded alimony in futuro to Wife. Husband appeals, challenging not only the trial court's decision not to award a divorce, but also the division of marital property and award of alimony to Wife. We affirm in part, reverse in part, and modify the trial court's order.
The Defendants, Billy J. Coffelt and Lyle T. Van Ulzen, were each convicted of one count of felony escape, two counts of aggravated assault, and three counts of especially aggravated kidnapping. The trial court subsequently sentenced both Defendants to life imprisonment without the possibility of parole on each of their especially aggravated kidnapping convictions. The Defendants were each sentenced to two years for their escape convictions, and to six years for each of their aggravated assault convictions. In this direct appeal, both Defendants contend that their convictions for aggravated assault and especially aggravated kidnapping violate due process, relying on State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). Both Defendants also allege error with respect to the trial court's admission of the identification of the felonies for which they were serving time when they escaped, and with respect to their sentences on the kidnapping convictions. Individually, Coffelt challenges the sufficiency of the evidence and the admission of proof concerning two weapons. Coffelt also alleges that the prosecutor's closing argument constituted reversible misconduct. We affirm the Defendants' convictions. We reverse the trial court's finding that the Defendants are repeat violent offenders subject to mandatory sentences of life imprisonment without the possibility of parole, and remand this matter for resentencing on the Defendants' convictions of especially aggravated kidnapping.
The petitioner, William G. Barnett, appeals the denial of his petition for post-conviction relief. On appeal, the petitioner contends he received ineffective assistance of counsel when he pled guilty to two drug-related offenses. We affirm the judgment of the post-conviction court.
Tony Alan Garretson, along with Harold Garretson and Tonya Garretson, sought return of numerous guns alleged to have been unlawfully seized by law enforcement when Tony Garretson was arrested for aggravated assault. The trial court found: (1) Harold Garretson and Tonya Garretson failed to establish they were the lawful owners of the guns; and (2) the guns could not be returned to Tony Garretson because he was convicted of aggravated assault and cannot lawfully possess a weapon. On appeal, the state concedes the guns were unlawfully seized and Harold Garretson and Tonya Garretson established proper ownership. We reverse the judgment of the trial court and remand for another hearing.
The defendant was convicted of first degree premeditated murder and sentenced to life imprisonment. In addition to challenging the sufficiency of the evidence, he argues the trial court erred in excluding testimony as to the victim's prior aggressive conduct, as well as his access and familiarity with firearms, and in not instructing as to aggravated assault as a lesser-included offense and that the cumulative effect of these errors warrants a new trial. Following our review, we affirm the judgment of the trial court.
The defendant, Lynn L. Davis, pled guilty to robbery, a Class C felony, and was sentenced as a Range II, multiple offender to eight years in the Department of Correction. In his appeal, he argues that the trial court erred in failing to apply mitigating factors and in denying alternative sentencing. Following our review, we affirm the judgment of the trial court.
Hickman
Court of Criminal Appeals
Robert Davidson v. Charles Lindsey W2000-02891-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Julian P. Guinn
In this personal injury case, we address whether the trial judge properly performed his duties as thirteenth juror in denying the appellees' motion for new trial. The Court of Appeals found that based on statements made by the trial judge during the trial, at the hearing for the motion for new trial, and at the hearing to set bond and stay execution of the judgment, there was "an appearance of bias" against two of the defendants due to their failure to reach a settlement with the plaintiffs. As a result, the Court of Appeals found that the trial judge could not have properly discharged his duty as thirteenth juror. We reverse. There is no indication that the trial judge was biased against the defendants; instead, it is clear that the trial judge believed that the ultimate outcome was obvious from the outset, and that the bad facts and poor testimony of one of the defendants should have prompted a substantial settlement offer from the defendants. The record indicates that the trial judge considered the issues in the case and explicitly approved the jury's apportionment of fault and the amount of damages awarded. Additionally, acting in our discretion under Tennessee Rule of Appellate Procedure 13(b), we address the other issues raised on appeal by the appellees, and find that they are without merit. As such, we reinstate the judgment of the trial judge approving the jury's verdict.
Henry
Supreme Court
Vickie Nash vs. Thomas Nash E2002-01597-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William K. Swann
This appeal of a judgment for divorce entered by the Knox County Circuit Court questions whether the Trial Court erred in its classification and division of a 401(k) retirement account and in its award of rehabilitative alimony. We affirm in part, modify in part and remand.
Knox
Court of Appeals
Sam Weaver vs. Knox County Board of Zoning Appeals E2002-02000-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John F. Weaver
Sam C. Weaver filed a petition for writ of certiorari, seeking an order of the trial court setting aside the decision of the Knox County Board of Zoning Appeals ("the BZA") granting Crown Communications, Inc., and BellSouth Personal Communications, Inc., dba Cingular Wireless, (collectively "the cellular companies") permission to construct a 195-foot cellular tower on property owned by one of Weaver's neighbors. The trial court dismissed the petition. We affirm.
Knox
Court of Appeals
Lisa Kay Rogers vs. Richard Barrett Rogers E2002-02300-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Howell N. Peoples
In this divorce action, the trial court divided marital property and awarded child support and rehabilitative alimony. Both parties raise issues on appeal. We affirm, as modified.
Hamilton
Court of Appeals
Mitch Stooksbury vs. American National Property E2002-02385-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: James B. Scott, Jr.
Mitch and Gina Stooksbury ("Plaintiffs") purchased homeowners insurance from American National Property and Casualty Company ("Defendant"). After Plaintiffs' home was destroyed by fire, they were informed by Defendant that their insurance policy had been cancelled prior to the date of loss because of an underwriting risk arising from missing railing on a deck. Defendant claimed to have mailed a cancellation notice and refund check to Plaintiffs in accordance with the terms of the policy. Plaintiffs denied receiving the cancellation notice or refund check. A jury concluded Defendant failed to prove by a preponderance of the evidence that it mailed the cancellation notice to Plaintiffs. The jury also concluded Defendant acted unfairly and in bad faith, and that Defendant's failure to pay the loss was through fraudulent and deceptive practices. The Trial Court entered a judgment for Plaintiffs in the amount of $92,750, for damages pursuant to the insurance contract, plus prejudgment interest on that $92,750. The Trial Court also assessed a 25% bad faith penalty and an additional 5% for punitive damages. Both parties appeal. We affirm the judgment for Plaintiffs in the amount of $92,750 and the prejudgment interest awarded on that $92,750. The bad faith penalty and award of punitive damages is reversed.
2002-02685-COA-R3-CV 2002-02685-COA-R3-CV
Trial Court Judge: Telford E. Forgerty, Jr.
Cocke
Court of Appeals
Emma Johnson vs. Knox County Board of Education E2003-00248-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
Plaintiff Johnson slipped and fell where water was in school's hallway. Defendants were granted Judgment on ground they had no notice of condition of hallway. We reverse and remand.
