APPELLATE COURT OPINIONS

The petitioner, A.T. Pruitt, appeals the denial of his petition for post-conviction relief, arguing his trial counsel was ineffective in communicating to him or preparing him for trial, which resulted in him entering guilty pleas that were neither knowing or voluntary. Following our review, we affirm the denial of the petition.

This is a direct appeal from the order of the trial court revoking the Defendant's probation and ordering him to serve his five-year sentence in the Department of Correction. The Defendant, Anthony Howard Skelton, raises two issues on appeal: 1) there was insufficient evidence to establish that he violated his probation, and 2) the trial court abused its discretion in ordering the Defendant to serve his entire sentence in the Department of Correction. We affirm the judgment of the trial court.

We granted the State’s application for permission to review this case pursuant to Tennessee Rule of Appellate Procedure 11 in order to determine the constitutionality of Tennessee Code Annotated section 40-18-110(c), which provides that failure to request a lesser-included offense instruction in writing waives the right to assign it as an issue in a motion for a new trial or on appeal. We conclude that section 40-18-110(c) renders the omission of instruction on lesserincluded offenses subject to the general rule that issues concerning instructions are considered waived in the absence of objection or a written request, unless they contain plain error. Under section 40-18-110(c), even absent a written request, the trial judge may still charge the jury on applicable lesser-included offenses and an appellate court may still review a lesser-included offense issue under the doctrine of plain error. We conclude, however, that the failure to instruct on lesser-included offenses in the present case does not constitute plain error. Accordingly, we reverse the judgment of the Court of Criminal Appeals.

I agree with the majority that this case is not properly before this court for an appeal as of right pursuant to Tennessee Rule of Appellate Procedure 3 and that it does not qualify as an extraordinary appeal under Tennessee Rule of Appellate Procedure 10. I write separately because it is my view that the dismissal of the state appeal might imply that evidence obtained from a vehicle's event data recorder (the air bag sensor module) is generally inadmissible.

An Anderson County grand jury indicted the defendant, Shannon A. Holladay, for one count of vehicular homicide by intoxication, a Class B felony, and one count of vehicular homicide by recklessness, a Class C felony. Before trial, the defendant filed a motion to suppress the evidence obtained from the air bag sensor module in the defendant’s car, which the Anderson County Criminal Court granted. The state appeals, contending that the trial court erred in granting the defendant’s motion to suppress. We dismiss this case for lack of jurisdiction.

The Petitioner, Lorenzo Porter, appeals the trial court's denial of his motion to reopen his postconviction or, in the alternative, requesting habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has not established that he is entitled to habeas corpus relief. Moreover, this Court is not vested with jurisdiction to entertain a request for an appeal of a denial of a motion to reopen a post-conviction petition. Accordingly, we grant the state's motion and affirm the judgment of the lower court.

In this appeal, T.M.B.K. ("Mother") contends that the trial court erred in terminating her parental rights and that the trial court lacked jurisdiction to adjudicate the initial child custody proceeding. After careful review of the evidence and applicable authorities, we hold that the trial court had subject matter jurisdiction and the evidence does not preponderate against the trial court's finding by clear and convincing evidence of abandonment and substantial noncompliance with the permanency plan. We futher hold that the evidence preponderates against the trial court's finding by clear and convincing evidence of a failure to remedy persistent conditions. Therefore, we affirm in part and reverse in part.

This appeal stems from a custody dispute between a mother and father over their minor daughter.  In this appeal, we are asked to determine whether the circuit court erred when it dismissed the appeal of two juvenile court orders denying the mother’s petition for permanent custody and the mother’s amended petition to reconsider. The mother argues that both orders were related to an original dependency and neglect proceeding that transferred custody of her minor daughter from her to the daughter’s father. The circuit court found that both orders were not related to the dependency and neglect proceedings and dismissed the mother’s appeal. Also on appeal, the mother asserts that the circuit court erred when it dismissed her appeal of the order regarding the original dependency and neglect proceedings as not being timely filed. The mother has also requested that this Court vacate the original order regarding the dependency and neglect proceedings because of several due process violations that occurred during the hearing. We dismiss the appeal of the issue requesting that we vacate the original order from the dependency and neglect proceedings and affirm the portion of the circuit court’s order dismissing the appeal of the order stemming from the original dependency and neglect proceedings. We vacate portion of the order dismissing the appeal of the two juvenile court orders filed September 24, 2004 and remand to the trial court for the entry of an order transferring the appeal of the two orders to the Court of Appeals for processing and disposition.

Following a bench trial, the Defendant, Robert Fluellen, was convicted of one count of burglary of a building, a Class D felony. The Defendant was sentenced as a multiple offender to six years in the workhouse. On appeal, the Defendant contends that the evidence presented at his bench trial is not sufficient to sustain his conviction. Finding no reversible error, we affirm the trial court’s judgment.

The petitioner, Jeremy D. Shivers, appeals the denial of his petition for post-conviction relief. In this appeal, he asserts that his trial counsel was ineffective and that, as a result of counsel's deficient performance, his guilty pleas were not knowingly and voluntarily entered. The judgment of the post-conviction court is affirmed

The petitioner appeals the summary dismissal of his petition for writ of habeas corpus. In this appeal, he asserts that the judgments are void because the indictment was defective. The judgment of the trial court is affirmed.

Connie J. Ottinger ("Plaintiff") sued Patricia E. Stooksbury ("Defendant") seeking, among other things, to quiet title to a thirty foot easement. Defendant answered the complaint and filed a counter-claim asserting, in part, that her right to use the easement is exclusive and that Plaintiff has no right to use the easement. The case was tried without a jury and the Trial Court entered a final order holding, inter alia, that Defendant is permanently enjoined from interfering with Plaintiff's right to use the easement located on Plaintiff's property. Defendant appeals claiming that the Trial Court erred by considering parol evidence and by requiring Defendant to prove her case by clear evidence. Defendant also argues that the evidence preponderates against the Trial Court's finding that the original grantors did not intend to create an exclusive easement in favor of Defendant. We affirm.

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 argues that his indictments were void because the applicable statute under which he was indicted did not "define the use of a deadly weapon as an element of first degree murder." Upon a review of the record in this case 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.

The defendant, Ryan Sandson, was found guilty by a Shelby County jury of aggravated robbery, a Class B felony, and was sentenced as a standard offender to eleven years, six months in the Department of Correction. On appeal, he raises two issues: (1) whether the evidence was sufficient to support his conviction; and (2) whether his sentence was excessive. Following our review, we affirm the judgment of the trial court.

Charlene Sinor ("Petitioner") filed a petition for contempt seeking, in part, to have Timothy Barr ("Respondent") found in criminal contempt for his failure to pay child support as ordered. After a trial, the Trial Court held Respondent in criminal contempt finding six violations of the Trial Court's orders. Respondent appeals to this Court claiming that his conviction of criminal contempt was based upon an improper evidentiary presumption and insufficient evidence. We reverse.

The Appellant, Travis Ray Wilkins, was convicted by a Cocke County jury of aggravated burglary and theft of property over $500. As a result of these convictions, Wilkins received an effective sentence of five years. On appeal, Wilkins argues that the evidence is insufficient to support either of his convictions. After review of the record, we conclude that the evidence supports the convictions.

This appeal involves a legal malpractice action. When the client discovered that her attorney had failed to file a personal injury complaint before the statute of limitations ran, she filed identical legal malpractice complaints in both the Circuit Court of Dickson County and the Circuit Court for Montgomery County. After the Montgomery County complaint was dismissed for failure to prosecute, the client's former attorney moved to dismiss the Dickson County complaint on the ground of res judicata. The trial court denied the motion, and the attorney filed an application for an extraordinary appeal in accordance with Tenn. R. App. P. 10. We granted the application and have now determined that the trial court properly denied the attorney's motion to dismiss.

The Appellant, Terry L. Tabor, was convicted by a Sullivan County jury of driving under the influence ("DUI"), speeding, and failure to use headlights. As a result of Tabor's conviction for DUI, he received a sentence of eleven months and twenty-nine days, with six months service in confinement. On appeal, Tabor raises two issues for our review: (1) whether the evidence is sufficient to support the conviction for DUI; and (2) whether the court erred in ordering him to serve six months in jail. After review, the judgment of conviction and resulting sentence are affirmed.

This is an appeal from the denial of post-conviction relief. The Petitioner, Shawn Donzell Anglin, pled guilty to and was convicted of facilitation of possession for resale of more than 0.5 grams of cocaine. Pursuant to a plea agreement, the Petitioner was sentenced to ten years to be served in Community Corrections and was fined $2,000. The Petitioner filed for and was denied post-conviction relief. The Petitioner now appeals the trial court's order denying post-conviction relief, claiming his trial counsel provided ineffective assistance of counsel which resulted in an involuntary guilty plea. We affirm the judgment of the trial court.

This case is before us after remand by the Tennessee Supreme Court. The defendant, who was indicted on three counts of rape of a child, a Class A felony, pled guilty to one count of incest, a Class C felony, in exchange for a negotiated eight-year sentence as a Range II, multiple offender.  On direct appeal, this court originally vacated the judgment of conviction on the grounds that incest is not a lesser-included offense of rape, without reaching the merits of the defendant’s sentencing issues.  Thomas Poston Studdard v. State, No. W2003-01210-CCA-R3-PC, 2004 WL 370259 (Tenn. Crim. App. Feb. 27, 2004), perm. to appeal granted (Tenn. Sept. 7, 2004). Our supreme court, however, concluded that the trial court had jurisdiction to accept the defendant’s guilty plea and remanded the case to this court for consideration of the defendant’s sentencing issues. Studdard v. State, __ S.W.3d __, 2005 WL 3192279 (Tenn. 2005). Following our review, we affirm the judgment of the trial court.

This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the Department’s confirmation of the prisoner as a member of a Security Threat Group.  The prisoner filed a petition pursuant to Tenn. Code Ann. § 4-5-225 (2005) in the Chancery Court for Davidson County seeking a declaratory judgment that the Department’s Security Threat Group policies and their application to him were invalid. The trial court granted the Department’s Tenn.  R. Civ. P. 12.02(6) motion to dismiss, and the prisoner has appealed. We have determined that the prisoner failed to state a claim upon which relief can be granted because Tenn. Code Ann. § 4-5-225 petitions cannot be used to challenge the Department’s internal management policies.

A Rutherford County Circuit Court jury convicted the appellant, Letonio Swader, of first degree felony murder, second degree murder, attempted especially aggravated robbery, and possession of a deadly weapon during the commission of an offense. The trial court merged the murder convictions and sentenced the appellant to life. The trial court also sentenced the appellant to ten years for the attempted especially aggravated robbery conviction and two years for the possession of a weapon conviction. The trial court ordered the appellant to serve the life and ten-year sentences concurrently and ordered that the two-year sentence be served consecutively to the other two sentences. On appeal, the appellant claims (1) that the State committed reversible error by telling potential jurors during voir dire that the punishment for first degree murder in this case was life with the possibility of parole, (2) that the trial court erred by failing to suppress his statement to police, and (3) that the evidence is insufficient to support the convictions because there is no evidence to corroborate his statement to police that he intended to rob someone. Upon review of the record and the parties' briefs, we conclude that the State's comments during voir dire were improper but harmless error and affirm the judgments of the trial court.

Vernon Frye, a defendant, appeals the grant of a post-trial motion to alter or amend the judgment for the defendant, resulting in a judgment against him of $65,000. Plaintiffs, Tom and Hazel Albert, sued Vernon Frye on a check he signed and delivered to them but stopped payment on before it was presented to the bank. Following a bench trial, the trial court dismissed Plaintiffs’ claim against Vernon Frye upon the finding Plaintiffs had not proven fraud. In a post-trial motion to alter or amend, Plaintiffs contended they were entitled to relief pursuant to Tenn. Code Ann. § 47-3-414(b) because Frye, the drawer, was obliged to pay the draft according to its terms without proof of fraud. The trial court agreed and entered a new judgment awarding damages in the amount of the check against Vernon Frye. Finding the trial court did not abuse its discretion by granting the Tenn. R. Civ. P. 59.04 motion to amend the judgment, we affirm.

This is a claim filed against the State by a minor-decedent’s father for the wrongful death of the minor-decedent based on T.C.A. 9-8-307 (a)(1)(E) (Negligent Care, Custody and Control of Person). Claims Commissioner found that the State did not have care, custody and control of the minor child and, therefore, the Claims Commission is without jurisdiction to consider the claim.  Father appeals. We affirm.

A repairer sold equipment at auction to enforce its lien and collect its charges for repairs. It also attempted to collect storage charges that had not been agreed to. The trial court found the repairer was not entitled to storage charges, and we agree under the facts of this case. The trial court also awarded the owner of the equipment damages for the difference in the fair market value of the equipment and the amount received at auction. We modify that award to the measure authorized by statute in the absence of a challenge to the auction procedures. The trial court found the repairer violated the Tennessee Consumer Protection Act, and we reverse that holding.