APPELLATE COURT OPINIONS

The petitioner, Charles Lane, filed a petition for habeas corpus relief challenging his Sevier County convictions of first degree murder and aggravated sexual battery. Petitioner seeks relief alleging he was not warned of his Miranda rights before giving a statement, and that he was suffering from mental deficiencies at the time of his guilty plea. Because the petition fails to present a cognizable claim for habeas corpus relief, we affirm the habeas corpus court’s summary dismissal of the petition.

The petitioner, Frank Taylor, was convicted of one count of first degree felony murder, a Class A felony, and criminal attempt: especially aggravated robbery, a Class B felony. He appeals the denial of his petition for post-conviction relief. On appeal, the petitioner contends that he received ineffective assistance of counsel when: (1) trial counsel failed to investigate and pursue as a defense the petitioner’s absence from his juvenile detention hearing, his lack of representation at the hearing, and the fact that he did not receive advice regarding the ability to appeal the detention order; (2) trial counsel failed to pursue the denial of a meaningful transfer hearing; and (3) trial counsel failed to challenge the probable cause of the petitioner’s arrest warrant. After a review of the record and the applicable law, we affirm the judgment of the post-conviction court.

This is an appeal by Joseph C. from an order terminating his parental rights to his two minor children, Shainna S. C. and Jason L. C. Because the record does not support the trial court’s finding that the Department of Children’s Services (DCS) proved by clear and convincing evidence the only ground relied upon in support of the termination of the appellant’s parental rights to his children, we vacate the order and remand for further proceedings.

In this divorce action, Mother asserts that the trial court erred in designating Father as primary residential parent and in allocating sole decision-making authority to him, in the distribution of marital property, and in failing to seal her medical records at trial. We modify the distribution of marital property in part; in all other respects we affirm the judgment of the trial court.

Unmarried parents of two children sought to modify a Permanent Parenting Plan. Mother also sought to collect a child support arrearage owed by Father. The trial court modified the residential parenting plan without conducting a best interest analysis. The trial court also declined to add statutory interest, as requested by Mother, to the child support arrearage owed by Father. Mother appealed certain aspects of the trial court’s judgment and sought attorney’s fees incurred on appeal. We affirm in part, reverse in part, vacate in part, and remand.

A Union County schoolteacher was twice interviewed by school administrators in an investigation of charges regarding the teacher’s alleged improper conduct. Both times, the teacher’s request to have a representative from the Union County Education Association (“the Association”) present with him for the investigatory interview was denied. After the investigation was complete, the teacher was not disciplined and no adverse action was taken against him. The Association brought this action alleging that the Union County Board of Education (“the Board”), acting through its agents, violated the Professional Educators Collaborative Conferencing Act of 2011 (“the Collaborative Conferencing Act”), Tenn. Code Ann. § 49-5-603 (2013), which provides that “[p]rofessional employees have the right to selforganization, to form, join or be assisted by organizations, to participate in collaborative conferencing . . . and to engage in other concerted activities for the purpose of other mutual aid and benefit. . . .” The Association sought a declaratory judgment that the Board’s refusal to allow the teacher to have a representative present was an unlawful act under Tenn. Code Ann. § 49-5-606. The trial court granted the Board summary judgment on the ground that the Association “had no injury in fact and therefore lacked standing to proceed with this action.” We hold that the rights provided to professional employees under section 603 of the Collaborative Conferencing Act include the right to have a representative of his/her organization present, upon the employee’s request, at an investigative interview where the employee reasonably believes the investigation may result in disciplinary action against him or her. We further hold that the Association has standing to pursue this action. Consequently, we vacate the trial court’s judgment.

The petitioner, Travis Davison, appeals the trial court’s summary dismissal of his motion to correct an illegal sentence, asserting that his sentence was illegal in that he received a shorter term than that mandated by statute. The State agrees that the petitioner has made a colorable claim that his sentence is illegal and that the matter should be remanded. After review, we remand the case for the appointment of counsel and an evidentiary hearing pursuant to Tennessee Rule of Criminal Procedure 36.1.

The Petitioner, Stacy Lee Fleming, appeals the Tipton County Circuit Court’s denial of postconviction relief from his conviction for delivery of .5 grams or more of cocaine. On appeal, the Petitioner argues that he received ineffective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.

Appellant, Willie Duncan, was convicted by a Shelby County jury of especially aggravated kidnapping, especially aggravated robbery, aggravated robbery, aggravated burglary, and employing a firearm during the commission of a dangerous felony. On appeal, Appellant raises several issues: 1) the indictment for the charge of employing a firearm during the commission of a dangerous felony is defective for failing to name the underlying felony; 2) the jury instructions on the charge of employing a firearm during the commission of a dangerous felony were improper; 3) the evidence presented at trial was insufficient to support the convictions; 4) a statement about Appellant’s juvenile record requires a new trial under plain error review; 5) the trial court abused its discretion by imposing excessive sentences; and 6) the trial court abused its discretion by imposing partially consecutive sentences. Upon review of the record, we find that the evidence is sufficient to support Appellant’s convictions, that the statement about Appellant’s juvenile record does not constitute plain error, and that the trial court did not abuse its discretion in sentencing Appellant. However, we find that the indictment for employing a firearm during the commission of a dangerous felony is fatally flawed for failing to name the predicate felony. We also note a clerical error on the judgment form for the charge of aggravated robbery which requires remand for the entry of a corrected judgment. Therefore, we affirm the trial court’s judgments in part, reverse and dismiss in part, and affirm and remand in part.

Appellant, Richard Cleophus Smith, was indicted by presentment by the Knox County Grand Jury for felony murder, first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, evading arrest by motor vehicle, evading arrest, aggravated assault, reckless endangerment, leaving the scene of an accident involving injury, driving while privilege suspended, and failure to provide proof of financial responsibility. At the conclusion of a jury trial, the jury found Appellant guilty of all charges except aggravated assault for which he was found guilty of the lesser included offense of reckless endangerment. The trial court sentenced Appellant to an effective sentence of life plus twenty-six years. On appeal, Appellant argues that: (1) the evidence was insufficient; (2) that the trial court constructively amended the presentment charging driving while license suspended, after jeopardy attached by instructing the jury on the offense of driving without a license in possession; (3) that the trial court erred in denying Appellant’s request for a special jury instruction; (4) that the trial court erred in allowing the testimony of two officers; (5) the trial court erred in denying his request for notes and memoranda generated by State witnesses when generating their reports; and (5) the trial court erred in imposing consecutive sentences. We have thoroughly reviewed the record on appeal. We affirm all judgments except the judgment for driving without a license in possession which must be dismissed because the trial court constructively amended the presentment by giving the contested jury instruction.

The Defendant-Appellant, Richard Griffis, was convicted by a Madison County jury of theft of property valued at $1,000 or more but less than $10,000, a Class D felony. See T.C.A. §§ 39-14-103, -105 (2012). The trial court sentenced him as a Range I, standard offender to four years’ incarceration, suspended to supervised probation. The sole issue presented for our review is whether the evidence is sufficient to support the conviction. Upon review, we affirm the judgment of the trial court.

Appellant, Kenneth Kirkwood, was convicted by a Shelby County jury of especially aggravated robbery, especially aggravated kidnapping, use of a firearm in the commission of a dangerous felony, and aggravated burglary. Following a sentencing hearing, the court imposed a total effective sentence of forty-five years, to be served at 100%. Appellant filed a motion for new trial, which was denied. He argues on appeal that the jury verdict was against the weight of the evidence, that counsel was ineffective, and that the trial court erred by not granting him a continuance on his motion for new trial. After thoroughly reviewing the evidence, we affirm the trial court.

This is a termination of parental rights case, focusing on Anya G. (“the Child”), the minor child of Melisa G. (“Mother”). In October 2011, temporary custody of the Child was granted to the Tennessee Department of Children’s Services (“DCS”), and the Child was placed in foster care. DCS subsequently filed a petition to terminate the parental rights of Mother and the Child’s father, Michael G., on December 27, 2012. The petition alleged 1 as statutory grounds for termination abandonment by failure to visit, abandonment by an incarcerated parent who exhibited wanton disregard for the welfare of the child prior to incarceration, and substantial noncompliance with the permanency plans. Following a bench trial, the trial court granted the petition as to Mother upon finding that DCS had proven by clear and convincing evidence the grounds of (1) abandonment by engaging in conduct prior to her incarceration that exhibited a wanton disregard for the welfare of the child and (2) substantial noncompliance with the permanency plans. The court also found clear and convincing evidence that termination of Mother’s parental rights was in the Child’s best interest. Mother has appealed. Discerning no error, we affirm.

The Petitioner, Lakeith Humphrey, appeals the Shelby County Criminal Court’s denial of post-conviction relief from his conviction for first degree premeditated murder and his sentence of life imprisonment. On appeal, he argues that trial counsel was ineffective in failing to challenge the legal accuracy of the special jury instruction regarding premeditation given at trial. Upon review, we affirm the judgment of the post-conviction court.

Appellant, Tonya Michelle Stoltz, was indicted by the Madison County Grand Jury for initiation of a process to manufacture methamphetamine and possession of methamphetamine. At the close of the State’s proof, the trial court granted Appellant’s motion for acquittal as to initiation of a process to manufacture methamphetamine but denied it as to the possession charge. The jury found Appellant guilty of possession of methamphetamine. After a sentencing hearing, the trial court sentenced Appellant to eleven months and twenty-nine days at 75% service in incarceration. After Appellant’s motion for a new trial was denied, she appealed, arguing that the evidence presented at trial was insufficient to sustain the conviction for possession of methamphetamine. After a review of the record and applicable authorities, we determine that the evidence is sufficient and that the conviction for possession of methamphetamine should be affirmed.

This is an appeal from a Restraining Order entered on May 20, 2014. The Notice of Appeal was not filed until June 20, 2014, thirty-one (31) days after the date of entry of the Restraining Order. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

The Defendant, Brenda Judy Moss, pled guilty to theft over $60,000, a Class B felony, with the trial court to determine the length and manner of the sentence.  The trial court subsequently ordered a ten-year split confinement sentence, with the Defendant to serve one year in jail followed by nine years of supervised probation.  The Defendant asserts that the sentence is excessive and that split confinement was improper based upon the facts of the case.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

The Defendant, Daniel Mosby, appeals from the Shelby County Criminal Court’s order revoking his community corrections sentence. The Defendant previously entered a guilty plea to aggravated burglary and, pursuant to the plea agreement, was sentenced to 10 years to be served in the community corrections program with credit for time served. On appeal, the Defendant argues that the trial court abused its discretion in revoking his community corrections sentence and ordering him to serve his original sentence in confinement. Upon review, we affirm the judgment of the trial court.

Appellant, Curtis Taylor, was indicted by the Shelby County Grand Jury in a multi-count indictment for first degree murder (Count 1), attempted first degree murder (Count 2), possession of a firearm after having been convicted of a felony (Count 3), and use of a firearm during the commission of a dangerous felony (Count 4). After a jury trial, Appellant was convicted of voluntary manslaughter in Count 1, and was convicted of the offenses as charged in Counts 2 through 4. According to the judgment forms, Appellant was sentenced to ten years in Count 1, fifteen years in Count 2, four years in Count 3, and ten years in Count 4, for a total effective sentence of thirty-five years. However, the transcript of the sentencing hearing reflects a sentence of two years in Count 3, but the same total effective sentence. After the denial of a motion for new trial, Appellant presents the following issues for our review on appeal: (1) whether the evidence is sufficient to sustain the conviction for voluntary manslaughter; and (2) whether the trial court properly sentenced Appellant. After a review of the record and applicable authorities, we affirm the judgments and sentences. However, because the judgment forms do not accurately reflect the sentence as imposed by the trial court during the sentencing hearing, the matter is remanded for entry of corrected judgments to reflect that Appellant was sentenced to two years in Count 3, possession of a firearm after having been convicted of a felony, and that the sentences in Counts 1, 2, and 4 are to run consecutively to each other but concurrently to the sentence in Count 3, for a total effective sentence of thirty-five years. Accordingly, the matter is affirmed and remanded for further proceedings consistent with this opinion.

This appeal involves water service by one utility district to a neighboring utility district. The plaintiff utility district provided water service to the defendant neighboring utility district for many years pursuant to a series of contracts. The last contract included a date certain on which the contract expired. Before the expiration date, the defendant neighboring utility district agreed to begin purchasing its water from a different provider upon expiration of the water service contract with the plaintiff. The plaintiff filed this lawsuit seeking, inter alia, to enjoin the defendant provider and the neighboring utility district from entering into a contract for water services. The trial court granted summary judgment in favor of the defendant neighboring utility district and denied the plaintiff’s motion for summary judgment, holding that the defendants were permitted to contract for water services. It then dismissed all remaining claims against the defendants. The plaintiff now appeals. We affirm the decision of the trial court in all respects.

In this divorce action, Wife appeals the trial court’s valuation of Husband’s ownership interest in three businesses, determination of Husband’s income, division of marital assets, duration of rehabilitative alimony awarded to her, amount of child support Husband was ordered to pay, and the amount of attorney’s fees awarded to her. We determine that the trial court accepted the calculation of a $134,085.00 promissory note as a liability for one business co-owned by Husband but failed to require value of the same amount as a note receivable for the business collecting payment on the debt, owned 50% by Husband. We therefore increase the trial court’s valuation of the business collecting payment on the debt by one-half the amount of the applicable note receivable, or $67,042.50. We also determine that the trial court erred by attributing to Husband the full liability for the third business, a limited liability company in which Husband owns a one-half interest. We accordingly reduce the allocation for that liability by one-half, or $45,689.50, increasing the total modification of the value of Husband’s net assets awarded by the trial court by the amount of $112,732.00. We award to Wife 48% of this increase, or $54,111.36, commensurate with what we determine to be the trial court’s equitable distribution of marital property, and we remand for a determination regarding the proper method of distribution for this additional award to Wife. We affirm the trial court’s judgment in all other respects.

The Petitioner, Joseph Pollard, appeals the Shelby County Criminal Court’s denial of postconviction relief. He was convicted of first degree murder, attempted voluntary manslaughter, and aggravated assault and received an effective sentence of life with the possibility of parole. In this appeal, the Petitioner contends that he received ineffective assistance of trial counsel due to trial counsel’s failure to qualify an expert witness or anticipate the trial court’s rejection of the witness’s qualifications. The Petitioner further claims that appellate counsel was ineffective due to his failure to include the same issue on direct appeal. Upon our review, we affirm the judgment of the post-conviction court.

Mother appeals the termination of her parental rights contending the evidence is insufficient for this court to appropriately review the testimony in the trial court because a portion of the evidentiary record is set forth in a statement of the evidence. We have determined the record is sufficient for proper appellate review because the entirety of Mother’s testimony is set forth in a verbatim transcript of the evidence, in which Mother admits knowing she had a duty to support her child, that she had the capacity to provide support during the relevant period, and she failed to do so. Thus, the record contains sufficient evidence to establish the ground of abandonment by failing to support the child. The evidence also supports the trial court’s finding that termination of Mother’s parental rights is in the child’s best interest. We, therefore, affirm the termination of Mother’s parental rights.

Pursuant to the terms of a negotiated plea agreement, Petitioner, Robert Lewis Webb, pled guilty to first-degree murder, aggravated rape, aggravated burglary, and aggravated robbery, and was sentenced to an effective life sentence without the possibility of parole. Petitioner subsequently filed an untimely pro se petition for post-conviction relief. He asserted, among other things, that the guilty plea was involuntary. Appointed counsel filed an amended petition, alleging that the statute of limitations should be tolled due to a new constitutional ruling, Petitioner’s mental incompetence, and misconduct on the part of Petitioner’s trial attorney. The post-conviction court dismissed the petition without an evidentiary hearing. Petitioner appealed. The State concedes that Petitioner is entitled to a hearing on whether the statute of limitations should be tolled. We determine that the post-conviction court erred by summarily dismissing the petition without an evidentiary hearing to determine whether due process requires that the statute of limitations be tolled. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

In this divorce action, Wife appeals the trial court’s valuation of Husband’s ownership interest in three businesses, determination of Husband’s income, division of marital assets, duration of rehabilitative alimony awarded to her, amount of child support Husband was ordered to pay, and the amount of attorney’s fees awarded to her. We determine that the trial court accepted the calculation of a $134,085.00 promissory note as a liability for one business co-owned by Husband but failed to require value of the same amount as a note receivable for the business collecting payment on the debt, owned 50% by Husband. We therefore increase the trial court’s valuation of the business collecting payment on the debt by one-half the amount of the applicable note receivable, or $67,042.50. We also determine that the trial court erred by attributing to Husband the full liability for the third business, a limited liability company in which Husband owns a one-half interest. We accordingly reduce the allocation for that liability by one-half, or $45,689.50, increasing the total modification of the value of Husband’s net assets awarded by the trial court by the amount of $112,732.00. We award to Wife 48% of this increase, or $54,111.36, commensurate with what we determine to be the trial court’s equitable distribution of marital property, and we remand for a determination regarding the proper method of distribution for this additional award to Wife. We affirm the trial court’s judgment in all other respects.