APPELLATE COURT OPINIONS

The petitioner, Carl Ed Leming, pled guilty in the Hamilton County Circuit Court to two counts of aggravated rape. He received consecutive sentences of forty years incarceration in the Tennessee Department of Correction, with release eligibility after serving thirty percent of his sentence. Subsequently, the petitioner filed in the Bledsoe County Circuit Court a petition for a writ of habeas corpus, alleging that his sentence was illegal because he received statutorily impermissible release eligibility. The court dismissed the petitioner's petition for a writ of habeas corpus, and the petitioner now appeals. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

This is a breach of contract case in which the controlling issue involves the commencement and conclusion of the term of an employment contract and, more specifically, when Plaintiff's guaranteed term of employment ended. The trial court determined that Defendant had breached the contract by terminating Plaintiff prior to the end of his employment term and awarded damages, together with contract authorized attorney fees and expenses. We affirm the judgment of the Chancellor.

The petitioner, Joseph B. Thompson, appeals from the Sullivan County Criminal Court's dismissal of his petition for post-conviction relief, in which he challenged his 2001 jury conviction of misdemeanor theft on the grounds that he received ineffective assistance of trial counsel and that the trial court committed certain errors. The state has moved this court to affirm the order of dismissal pursuant to Tennessee Court of Criminal Appeals Rule 20. We sustain the motion and affirm the order.

This is a child support case. The appellant is the father of eight children who are the subject of this dispute. The State filed a petition in the Juvenile Court alleging that the children were dependent and neglected due to the drug use of the mother and father. The mother and father stipulated to these charges and the children were placed in the care of relatives. The State later filed a petition to establish paternity and set support, seeking adjudication of numerous issues, including child support. The trial court ruled on the issue of child support, but did not rule on the other issues. Without seeking permission for interlocutory appeal, the father appealed the ruling on child support. We dismiss the appeal, finding that the order from which the father appeals is not a final order and is thus not properly before this Court.

This is a Title IV child support case. Father/Appellee was subject to a court order requiring him to make monthly child support payments. Mother allegedly requested to end Father’s child support obligation and Title IV-D services due to a private agreement between the parties whereby Father paid some child support directly to Mother. The State/Appellant, on behalf of Mother, filed a contempt petition against Father seeking payment of child support and arrears. Following a hearing, the trial court dismissed the support orders and forgave any arrears. The trial court also denied the State’s Motion to Alter or Amend the Judgment. The State appeals based upon T.C.A. § 36-5-101(a)(5) because no petition or motion to modify child support was filed and based upon T.C.A. § 71-3-124 because the State asserts it is entitled to reimbursement from the arrears for public benefits paid to Mother. We reverse and remand.

The Defendant, Ricky Lynn Earls, was convicted by a jury of four counts of forgery, Class E felonies, and one count of theft under $500, a Class A misdemeanor. The trial court subsequently merged two of the forgery counts into the remaining two counts. After a hearing, the trial court sentenced the Defendant as a career offender to an effective sentence of twelve years. The Defendant’s sentence was affirmed on direct appeal. See State v. Ricky Lynn Earls, No. M2001-00112-CCA-R3-CD, 2002 WL 1586286 (Tenn. Crim. App., Nashville, July 18, 2002). The Defendant subsequently filed for post-conviction relief alleging ineffective assistance of counsel.  After a hearing, the trial court denied relief. This appeal followed. The sole issue before us is whether the Defendant suffered from the ineffective assistance of counsel due to defense counsel’s failure to file timely a motion for new trial. We find that the Defendant is entitled to relief on the grounds of ineffective assistance of counsel. Accordingly, we reverse the trial court’s ruling and remand this cause with instructions that the trial court grant the Defendant a delayed appeal.

The majority concludes that application of enhancing factor (21), adjudication of a delinquent act by a juvenile which would constitute a felony if committed by an adult, is inapplicable in this case under the holding of Blakely. I respectfully disagree. The decision in Blakely v. Washington, 124 S. Ct. 2531, 2536-37 (2004), applied Apprendi, which recognized the Almendarez-Torres holding permitting sentencing enhancement based upon a prior guilty plea, as opposed to the necessity of a jury conviction, because guilty pleas are “entered pursuant to proceedings with substantial procedural safeguards of their own.”   Apprendi v. New Jersey, 120 S. Ct. 2348, 2361 (2000). Similarly, I find that juvenile adjudications in this state are entered pursuant to proceedings with substantial procedural safeguards and constitutional protections of their own. A panel of this court recently concluded that enhancement factor (21) is not implicated under Blakely. The panel reasoned:

The constitutional protections of due process and a finding that the delinquent charge has been proven beyond a reasonable doubt, as required by United States v. Almendarez-Torres, 512 U.S. 224, 243, 118 S. Ct 1219, 1230 (1998), are integral to an adjudication of delinquency in this state. State v. Strickland, 532 S.W.2d 912, 921 (Tenn. 1975); Tenn. Code Ann. § 37-1-129(b) (2003); Tenn. R. Juv. P. 28(d)(2).

On appeal, the defendant challenges: (1) the sufficiency of the evidence; (2) the sentence imposed, in light of Blakely v. Washington; and (3) the denial of alternative sentencing. Following our review, we conclude that there was sufficient evidence presented, such that a reasonable jury could reject the theory of diminished capacity and find the defendant guilty of the convicted offenses.  Further, it appears that the enhancement factors were applied errantly in light of Blakely. Therefore, we reduce the sentence to the presumptive minimum and remand the matter for a determination of the defendant’s suitability for alternative sentencing.

A Shelby County jury convicted the defendant, Larry Holmes, of four counts of especially aggravated kidnapping, a Class A felony, two counts of aggravated robbery, a Class B felony, and one count of aggravated burglary, a Class C felony. The trial court merged the two aggravated robbery convictions into the especially aggravated kidnapping convictions and sentenced the defendant as a repeat violent offender to concurrent sentences of fifty-five years at one hundred percent for the especially aggravated kidnapping convictions and as a career offender to fifteen years for the aggravated burglary conviction to be served consecutively to the especially aggravated kidnapping sentences for an effective sentence of seventy years. On appeal, the defendant contends that (1) the evidence was not sufficient to support his convictions for especially aggravated kidnapping and aggravated robbery, (2) the trial court erred by denying his request for a mistrial based upon a misstatement by an officer testifying for the state, and (3) the trial court erred in imposing his sentences. ¹ We affirm the judgments of the trial court.

The petitioner appeals the summary dismissal of his petition for post-conviction relief, arguing that he should have been appointed post-conviction counsel to assist him with his petition. We conclude that the petitioner alleges a colorable claim for relief under the less stringent standards afforded to a pro se petitioner and that the petitioner’s request for counsel should have been granted.  Accordingly, we reverse the dismissal of the petition and remand the case to the post-conviction court for the appointment of counsel.

I respectfully disagree with the majority’s conclusion that the defendant did not open the door to cross-examination concerning other felonies involving dishonesty. This defendant’s record is extensive, and all but one of his thirteen convictions involve acts of dishonesty. The defendant’s credibility was an issue when he chose to testify. For me, it is a close question of whether the questions asked by the defendant’s attorney opened the door for further examination. By this I mean it appears that defense counsel was clearly trying to convey the defendant’s record consisted only of misdemeanor offenses. I trust the trial court heard the inflections in defense counsel’s voice that he used to emphasize “misdemeanor” in his questioning. Although his questions contained true statements, the inflections used in asking the questions by defense counsel could surely place an undue emphasis on “misdemeanor,” creating a misimpression on a jury. I believe the cavalier answers given by the defendant further opened the door when he answered, “I guess, yeah,” and “O.K.” The defendant had an extensive criminal record. His first arrest was at age nineteen, and he is now thirty-two. The record reveals that the defendant had never accumulated more than three years of good conduct without being arrested. His answers to the specific questions by defense counsel were answered in such a way that a jury could mistakenly believe that his brushes with the law were so infrequent or minor that he had difficulty remembering them. I believe this line of questions was designed to convey a false impression to the jury. Tennessee Rule of Evidence 609 envisions impeachment by the State of a criminal defendant if he or she chooses to testify. Here, defense counsel sought to lessen the sting of the state’s impeachment or to steal the state’s thunder, a permissible tactic. However, this permissible trial tactic must be employed with the utmost caution or the door will be opened for the State to cross-examine on his entire record. Under the facts of this case, I conclude the trial court was correct in ruling that the defendant opened the door to further impeachment.

The trial court dismissed Plaintiff’s causes of action for lack of subject matter jurisdiction. We affirm.

The petitioner, Christopher Duwan Robertson, appeals the dismissal by the Davidson County Criminal Court of his petition for post-conviction relief. After review of the record, we affirm.

This case is about a construction lien. A real estate developer hired a contractor to perform paving work on new roads in a subdivision. After the work was completed, the contractor sent the developer an invoice for the work done, but the developer did not pay. Eventually, the developer paid a portion of the invoice. When no further payments were made, the contractor filed a lien on the developer's roadway. The contractor then sued the developer to enforce the lien. After the suit was filed, the developer asserted that the contractor's workmanship was poor and that, as a result, the pavement on the roadway was defective. The trial court found that the contractor had a valid lien and awarded a judgment against the developer and the developer's surety. The trial court also awarded the contractor prejudgment interest. The developer appeals, asserting that the road was public and not subject to lien, that the trial court made erroneous evidentiary rulings, that the trial court erred in finding that a variance from the listed measurements was permissible under the contract, that it should have been awarded a setoff against the contractor's judgment, and that the contractor should not have been awarded prejudgment interest. We affirm, finding that the contractor's lien was valid and enforceable, that the trial court did not err in its evidentiary rulings, that the developer failed to prove damages to setoff, and that the trial court did not abuse his discretion in the award of prejudgment interest.

The petitioner, Jeffery Lee Miller, was convicted by a jury in the Montgomery County Circuit Court of premeditated first degree murder. The petitioner received a sentence of life imprisonment in the Tennessee Department of Correction without the possibility of parole. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition. The petitioner now appeals.  Upon our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The defendant appeals his burglary conviction and argues that the trial court erred in finding that he “opened the door” to cross-examination regarding his prior burglary convictions. Upon thorough review, we conclude that defense counsel’s pattern of questioning did not open the door to cross-examination on prior burglary convictions initially ruled inadmissible. We hold that the trial court erred in reversing itself and allowing cross-examination as to the convictions; therefore, we reverse the judgment of the trial court and remand for a new trial.

Defendant,Ronald Lynn Chatman, was indicted for the offense of especially aggravated kidnapping, a Class A felony. Following a jury trial, Defendant was convicted of the lesser included offense of facilitation of especially aggravated kidnapping, a Class B felony. The trial court sentenced Defendant to nine years imprisonment as a Range I, standard offender. In his appeal, Defendant challenges the sufficiency of the convicting evidence, and argues that the trial court erred in not granting Defendant’s request for a probated sentence. After a thorough review of the record, we affirm the judgment of the trial court.

The majority concludes that modification of the defendant’s sentence is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

The petitioner, Roy C. Smith, filed a petition for writ of habeas corpus challenging his 1996 guilty plea for rape of a child. After a hearing, the trial court granted the petition, determining that the judgment was not void, but that the petitioner’s sentence was illegal. The State appeals. For the following reasons, we affirm the judgment of the trial court granting the writ of habeas corpus.

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court's order summarily dismissing the petition for the writ of habeas corpus. In that petition, the petitioner challenges the constitutionality of the Criminal Sentencing Reform Act of 1989 in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Upon a review of the record in this case, despite the untimely notice of appeal filed by the petitioner, we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

In this legal malpractice action against attorneys, the trial court granted all defendants summary judgment. On appeal, we affirm on grounds that the statute of limitations ran before the suit was filed.

The defendant, Anthony Dwayne Brown, was convicted by jury of one count of first degree premeditated murder, two counts of felony murder, one count of especially aggravated robbery, two counts of especially aggravated burglary, and theft of property valued at less than $500. The trial court merged the two felony murder counts into the first degree premeditated murder count and merged the theft offense into the count of especially aggravated robbery. The trial court also merged the two counts of especially aggravated burglary. The defendant was sentenced to life without the possibility of parole for the first degree premeditated murder. The defendant was sentenced to sixty years for especially aggravated robbery and to thirty years for especially aggravated burglary. The trial court ordered all sentences to run concurrent with the sentence of life without the possibility of parole. The defendant raises two issues on appeal: (1) whether the evidence was sufficient to support his convictions; and (2) whether the trial court erred in excluding the testimony of a defense witness.  Following our review, we affirm the judgment of the trial court.

A Henderson County jury convicted the defendant, John Fitzgerald Belew, of possession of cocaine, a Class A misdemeanor; and possession of .5 grams or more of cocaine with the intent to deliver, a Class B felony. The trial court merged the two convictions and sentenced the defendant to twelve years as a Range I standard offender. On appeal, the defendant contends that the evidence is insufficient to support his conviction. Upon our close review of the evidence, we are constrained to hold that the evidence was insufficient to prove the defendant’s intent to deliver beyond a reasonable doubt. However, we determine that the evidence was sufficient to prove simple possession of cocaine. Therefore, we reverse the defendant’s conviction of possession of .5 grams or more of cocaine with the intent to deliver, and reduce it to simple possession of cocaine. We remand the case to the trial court for sentencing consistent with this opinion.

This appeal involves a claim for medical malpractice. The plaintiff’s cardiologist initially diagnosed her as having a heart condition which required surgery to repair. The plaintiff’s cardiologist referred the plaintiff to a cardiothoracic surgeon for surgical repair of the condition. The plaintiff subsequently sought a second opinion, and the second cardiologist determined that the plaintiff did not need surgery. Thereafter, the plaintiff’s original cardiologist apparently changed his diagnosis of the plaintiff’s condition. After some time passed, the cardiothoracic surgeon performed surgery on the plaintiff, which was ultimately determined to be unnecessary. The plaintiff sued her original cardiologist and the cardiothoracic surgeon for medical malpractice. Through discovery, it was determined that the cardiothoracic surgeon did not review the plaintiff’s entire medical records prior to performing the surgery. The cardiologist filed a motion for summary judgment arguing the cardiothoracic surgeon was the sole proximate cause of the plaintiff’s injuries. In response, the plaintiff submitted an affidavit from her expert witness stating that the cardiologist had a duty under the applicable standard of care to directly communicate his changed diagnosis to the cardiothoracic surgeon, and his actions were a “significant contributing factor” to the plaintiff’s injuries. The cardiologist filed a motion to strike the affidavit of the plaintiff’s expert as contradictory to his deposition testimony. The trial court partially granted the cardiologist’s motion. After doing so, the trial court granted the cardiologist’s motion for summary judgment. The plaintiff appealed to this Court, and we reverse.

The petitioner, Unte Henderson, appeals from the Rutherford County Circuit Court’s denial of his petition for post-conviction relief from his guilty pleas to second degree murder and conspiracy to commit aggravated robbery and effective nineteen-year sentence. He contends that he received the ineffective assistance of counsel because his attorney coerced him into pleading guilty. We affirm the trial court.