APPELLATE COURT OPINIONS

Petitioner, George Arthur Lee Smith, appeals from the Hamblen County Criminal Court’s denial of his petition for post-conviction relief, in which he alleged that he received the ineffective assistance of counsel at trial. Specifically, Petitioner argues that trial counsel was ineffective for the following reasons: 1) for failing to move to suppress a recorded conversation between Petitioner and a co-defendant; 2) for failing to argue at trial the forfeiture by wrongdoing exception to hearsay as rebuttal to the State’s theory of motive; 3) for failing to call Petitioner’s mother and stepfather as witnesses at trial; 4) for failing to move to strike the testimony of Petitioner’s sister at trial; 5) for failing to request a jury instruction regarding corroboration of accomplice testimony; 6) for failing to request a limiting instruction concerning evidence of Petitioner’s prior bad acts; 7) for failing to assert intoxication as a defense; and 8) for failing to object to improper comments by the prosecutor during voir dire and closing argument. Petitioner also contends that the post-conviction court erred by not allowing hearsay testimony from Petitioner’s mother at the post-conviction hearing. After a careful review of the record, we affirm the judgment of the post-conviction court.

The trial court determined that the Commissioner of Revenue’s assessment of sales and use taxes against out-of-state Plaintiff for sales to customers in Tennessee was not permitted under the Commerce Clause of the United States Constitution, and entered judgment in favor of Plaintiff. The Commissioner of Revenue appeals. We reverse and remand.
 

The Defendant, Joshua David McBurnett, pled guilty to five counts of statutory rape by an authority figure and three counts of incest, Class C felonies. See T.C.A. §§ 39-13-532, 39-15-302 (2010). The trial court sentenced the Defendant to four concurrent terms of four years’ confinement for two counts of statutory rape and two counts of incest, two concurrent terms of five years’ confinement for one count of statutory rape and one count of incest, and two concurrent terms of six years’ confinement for the remaining two counts of statutory rape. The trial court imposed partial consecutive sentencing yielding an effective fifteen year sentence. On appeal, the Defendant contends that his fifteen-year sentence is excessive.
 

A minor was injured in June 2008 when a sink, installed in November 2004, shattered. Suit was initially filed in June 2009, and Defendants were added in September 2009 and April 2010. The trial court granted summary judgment to Defendants based upon the construction statute of repose, Tennessee Code Annotated section 28-3-202, et seq., and we affirm.

The trial court denied Husband’s petition to modify alimony upon finding he was voluntarily underemployed, and found him to be in civil contempt. We vacate the finding of voluntary underemployment, affirm the finding of contempt, and remand for further proceedings.

Todd Marsh and Kari Marsh (“Plaintiffs”) sued Larry A. Storie (“Storie”) and First Tennessee Bank National Association (“First TN Bank”) with regard to, among other things, ownership of real property which had been the subject of both a tax sale and a foreclosure sale. After a hearing, the Trial Court entered an order on January 4, 2011 granting partial summary judgment dismissing First TN Bank from the case, and certifying the judgment as final as to First TN Bank pursuant to Tenn. R. Civ. P. 54.02. Plaintiffs appeal the dismissal of their claims against First TN Bank. We affirm.

Artis Reese (“the Petitioner”) filed for post-conviction relief from his convictions of two counts of aggravated robbery and one count of aggravated criminal trespass, alleging that he received ineffective assistance of counsel at his jury trial and that one of his convictions offends due process. After a hearing, the post-conviction court denied relief, and this appeal followed. Upon our review of the record, we affirm the post-conviction court.

The Petitioner, Eric Thomas, appeals the Shelby County Criminal Court’s dismissal of his petition for habeas corpus relief from his four 1999 convictions for robbery. He claims that he is illegally incarcerated because his sentences expired before his resentencing. We affirm the judgment of the trial court.

This is a termination of parental rights case in which the Tennessee Department of Children’s Services (the “Department”) removed Ronald L. D. (the “Child”) from the custody of Ronald B. (“Father”). The Child was adjudicated dependent and neglected, and after Father failed to comply with the permanency plan, the Department petitioned to terminate Father’s parental rights. Following a hearing, the court terminated Father’s parental rights, finding that Father failed to substantially comply with two permanency plans, that the conditions which led to removal persisted, and that termination of Father’s parental rights was in the best interest of the Child. Father appeals. We affirm the decision of the trial court.

The State of Tennessee Department of Children’s Services (“DCS”) filed 1 a petition seeking to terminate the parental rights of Susan M.M. (“Mother”) and Mark M. (“Father”)2 to the minor children Sierra D.M. (“Sierra”) and Hunter Z.M. (“Hunter”) (or collectively “the Children”) pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(3). After a trial, the Juvenile Court3 entered its order on August 17, 2011 finding and holding, inter alia, that clear and convincing evidence existed to terminate Mother’s parental rights to the Children under Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(3), and that clear and convincing evidence existed that the termination of Mother’s parental rights was in the Children’s best interest. Mother appeals to this Court. We affirm.

The plaintiff, Robert F. Meredith (“the Owner”), appeals a judgment rendered against him in favor of his home builder, Kenneth L. Weller (“the Builder”), on the Builder’s counterclaim for breach of contract and for attorney’s fees incurred in defending the Owner’s claims for, among other things, defective construction, misrepresentation, breach of contract, and violations of the Tennessee Consumer Protection Act, Tenn. Code Ann. §§ 47-18-101 et seq. (2001)(“the TCPA”). The Builder asks us to award him his attorney’s fees incurred in defending the Owner’s appeal. We affirm the judgment of the trial court in all respects. We also award the Builder his reasonable attorney’s fees incurred on appeal and remand to the trial court for a hearing to determine those fees.

Casey Renea Jeans (“Mother”) and Jonathan Paul Gray (“Father”) are the parents of two minor children, Tyler and Alexia (“the Children”, collectively). Mother and Father never were married. As part of the Permanent Parenting Plan (“the PPP”), Mother and Father shared custody of the Children, with Father designated as the primary residential parent.

The defendant, Doyle Everette Haney, appeals his Cocke County Circuit Court jury convictions of sale of .5 grams or more of cocaine and delivery of .5 grams or more of cocaine for which he received concurrent sentences of 30 years’ incarceration as a career offender. In addition to contesting the sufficiency of the evidence to support his convictions, the defendant argues that the State failed to comply with discovery requirements, that juror misconduct infected his trial, and that the trial court erred at sentencing. Although not raised by the defendant, we determine that the trial court erred by failing to merge the jury verdicts into one judgment of conviction. On remand, the trial court shall enter a single judgment of conviction indicating the merger of the jury’s verdicts, and the judgment in count two shall be vacated.

Appellant, a civil service employee with the State of Tennessee, appeals the trial court’s judgment affirming the decision of the Civil Service Commission terminating her employment. The Commission had affirmed the initial order by the Administrative Law Judge, who upheld the decision of the Department of Finance and Administration to terminate Appellant’s employment for the good of the service pursuant to Tennessee Code Annotated Section 8-30-326. Discerning no error, we affirm.
 

This is a delayed appeal from a jury conviction for driving under the influence of an intoxicant (DUI), ninth offense. Following a sentencing hearing, the Defendant, Horace Oscar Wakefield, received a sentence of four years in the Department of Correction. On appeal, the Defendant challenges the sufficiency of the evidence supporting his conviction. After a review of the record, we conclude that the evidence is sufficient to support the Defendant's conviction for DUI. Accordingly, we affirm the judgment of the trial court.
 

The defendant, Andrew Bryan Mann, was convicted of two counts of first degree premeditated murder after he shot and killed his girlfriend’s father and stepmother. He was sentenced to two consecutive life terms in the Department of Correction. The primary issue at the defendant’s trial was whether or not the defendant’s killing of the victims was premeditated. On appeal, the defendant claims that the trial court erred by: (1) denying his motion to suppress; (2) refusing to allow his expert witnesses to testify concerning the defendant’s ability to premeditate; (3) admitting photographs of the crime scene; (4) excluding a report made in 2003 by his girlfriend to the Department of Child Services claiming that she had been abused by one of the victims, and (5) imposing consecutive life sentences on the grounds that he was a dangerous offender. After carefully reviewing the record and the arguments of the parties, we reject each of these claims and affirm the judgments of the trial court.

On April 25, 2001, Petitioner, Roger Joseph, pled guilty to first degree murder. The Bradley County Criminal Court sentenced him to life in prison with possibility of parole. Petitioner filed a pro se petition for post-conviction relief on February 17, 2010. On February 28, 2010, the post-conviction court summarily dismissed the petition for being untimely and because Petitioner had filed a previous petition. On appeal, Petitioner argues that he was taking various psychiatric medications at the time he entered his guilty plea and, therefore, his plea was not entered voluntarily. He also argues that trial counsel was ineffective because he knew Petitioner was taking medication. Because Petitioner has shown no due process violation or other reason for tolling the statute of limitations, we conclude that the post-conviction court properly dismissed the petition.

Petitioner who sought judicial review of the Tennessee Bureau of Investigation’s denial of his request for disclosure of investigative records pursuant to the Tennessee Public Records Act appeals the trial court’s dismissal of the petition. Finding that the records requested are excepted from disclosure, we affirm the judgment.
 

The defendant, Alma Cisneros Childers, appeals the sentence of incarceration she received following the revocation of her probation by the Lincoln County Circuit Court. She pled guilty to violating the terms and conditions of her probation but now contends that she should have been given a community corrections sentence rather than one of incarceration. After review, we conclude that the defendant has not shown that the trial court abused its discretion in ordering the revocation or in imposing a sentence of incarceration. Therefore, the judgments of the trial court are affirmed.

The Defendant, Christopher March, was convicted by a Madison County Circuit Court jury of two counts of burglary, Class D felonies; five counts of forgery of $1000 or more but less than $10,000, Class D felonies; forgery of less than $1000, a Class E felony; theft of property under $500, a Class A misdemeanor; and attempted theft under $500, a Class B misdemeanor. The trial court imposed a seven-year sentence for each of the burglary and Class D felony forgery convictions, four years for Class E felony forgery, eleven months and twenty-nine days for theft, and six months for attempted theft. The trial court imposed partial consecutive sentencing yielding an effective twenty-one-year sentence. On appeal, the Defendant contends that (1) the evidence was insufficient to support the burglary convictions and (2) the trial court erred by imposing excessive sentences. We affirm the judgments of the trial court.

The Defendant, Darren Allan Vincent, was convicted upon pleading nolo contendere to misdemeanor assault, sentenced to eleven months and twenty-nine days’ confinement, and order to pay a $2500 fine. On appeal, the Defendant argues that the trial court erred by denying probation and requiring him to serve seventy-five percent of the sentence before becoming eligible for release. We affirm the judgment of the trial court.

This divorce case covered a span of years in the Trial Court, and the Trial Court ultimately granted the parties a divorce, awarded primary custody of the children to the father, denied alimony to the mother and divided the marital estate between the parties. The mother appealed and has raised numerous issues. Many of the issues raised pertain to matters occurring after the appeal was filed, and we decline to consider these issues. The record establishes the mother did not attend the final hearing wherein the divorce was granted. We vacate that part of the final decree, dividing the marital assets and liabilities, on the ground that the mother established grounds of excusable neglect for failing to attend the trial, and remand to the Trial Court to grant a new trial on this issue. We otherwise affirm the rulings in the Judgment by the Trial Court.

We granted the State’s applications for permission to appeal in these two cases to clarify the remedy that should be applied when there is an abuse of prosecutorial discretion in the denial of an application for pretrial diversion. In each case, the prosecutor denied the defendant’s petition for pretrial diversion and the trial court ruled there was no abuse of discretion. The Court of Criminal Appeals decided in each case that there was an abuse of discretion because the prosecutor failed to weigh all the relevant factors in reaching his decision to deny pretrial diversion to the defendant and remanded the case to the trial court to order the prosecutor to approve the defendant’s pretrial diversion application. We hold that when a prosecutor has abused his or her discretion byfailing to consider and weigh all the relevant pretrial diversion factors or by considering and relying upon an irrelevant factor, the appropriate remedy is to vacate the prosecutor’s ruling and remand to the prosecutor to consider and weigh all of the relevant factors. Accordingly, the judgments of the Court of Criminal Appeals are reversed, and the cases are remanded to the trial courts with directions to remand the case to the district attorney general to consider and weigh all of the relevant pretrial diversion factors.

I concur in the results reached in the majority opinion. I, however, would affirm the trial court on the merits of its sentencing decision.

We granted the State’s applications for permission to appeal in these two cases to clarify the remedy that should be applied when there is an abuse of prosecutorial discretion in the denial of an application for pretrial diversion. In each case, the prosecutor denied the defendant’s petition for pretrial diversion and the trial court ruled there was no abuse of discretion. The Court of Criminal Appeals decided in each case that there was an abuse of discretion because the prosecutor failed to weigh all the relevant factors in reaching his decision to deny pretrial diversion to the defendant and remanded the case to the trial court to order the prosecutor to approve the defendant’s pretrial diversion application. We hold that when a prosecutor has abused his or her discretion byfailing to consider and weigh all the relevant pretrial diversion factors or by considering and relying upon an irrelevant factor, the appropriate remedy is to vacate the prosecutor’s ruling and remand to the prosecutor to consider and weigh all of the relevant factors. Accordingly, the judgments of the Court of Criminal Appeals are reversed, and the cases are remanded to the trial courts with directions to remand the case to the district attorney general to consider and weigh all of the relevant pretrial diversion factors.