APPELLATE COURT OPINIONS

Petitioner, Dustin Lucio, appeals from the denial of his petition for post-conviction relief. Petitioner was convicted by a jury of aggravated rape and sentenced by the trial court to 23 years in confinement to be served at 100 percent release eligibility. Petitioner’s conviction and sentence were affirmed on direct appeal. State v. Dustin Matthew Lucio, No. E2014-00642-CCA-R3-CD, 2015 WL 1510830 (Tenn. Crim. App. Mar. 31, 2015), perm. app. denied (Tenn. Aug. 13, 2015). Petitioner contends that his appellate counsel was ineffective for failing to include in the record on appeal a transcript of the hearing on the State’s motion in limine. In that motion, the State sought to exclude from evidence the victim’s medical records showing that she received treatment for drug abuse after the offense occurred. Following a hearing, the post-conviction court denied relief. Finding no error, we affirm the judgment of the post-conviction court.

The Petitioner, Nathan Chaleunsak, appeals the denial of post-conviction relief from his 2015 guilty-pleaded conviction of second degree murder, for which he received an agreed, out-of-range sentence of thirty years to be served at 100%. The Petitioner sought post-conviction relief, asserting that he received ineffective assistance of counsel and that his guilty plea was not voluntarily and knowingly entered. Following a hearing, the postconviction court denied relief. After review of the record and applicable law, we affirm the denial of post-conviction relief.

This appeal arose from a child support proceeding wherein the father sought modification of his child support obligation. After concluding that an incorrect arrearage amount had been established in a prior order, the trial court determined that the correct arrearage amount, including statutory interest, was $48,574.88. The trial court relied on an affidavit executed by the mother, which reflected the father’s child support payments. The mother’s affidavit, however, is not contained within the record on appeal. Furthermore, the trial court’s order contained no findings of fact demonstrating how the trial court calculated the arrearage or the statutory interest. Because the trial court failed to make adequate findings of fact, we vacate the trial court’s judgment and remand for entry of sufficient findings of fact regarding the method of calculation of the arrearage and interest.

The petitioner, Frederick Wendell Thomas, appeals the denial of post-conviction relief from his 2013 Shelby County Criminal Court jury conviction of first degree murder, for which he received a life sentence. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel. Discerning no error, we affirm.

On July 14, 2016, Ashley N. Menke, the Defendant, entered an open guilty plea in Case No. 925-CR-2015 to five felonies and three misdemeanors, including one count of theft in the amount of $1,000 or more but less than $10,000 (Count 9), and to a violation of probation in Case No. 268-CR-2014. The value of the property taken in Count 9 was exactly $1,000, and the Defendant was released on bail for felony offenses in Counts 3, 4, 5, and 6 at the time she committed the theft in Count 9. Following the December 2, 2016 sentencing hearing, the trial court took the matter under advisement without sentencing the Defendant. On January 1, 2017, the Public Safety Act of 2016 became effective. Section 5 of the Public Safety Act “deleted and replaced” Tennessee Code Annotated section 39-14-105(a), the “grading of theft” statute. Theft in the amount of $1,000 or less committed after January 1, 2017, is now graded as a Class A misdemeanor. In its March 10, 2017 sentencing order, the trial court imposed an eleven month and twenty-nine day sentence in Count 9 based on the criminal savings statute, Tennessee Code Annotated section 39-11-112, and ordered the sentence to be served concurrently with the effective three-year sentence for the other seven counts. The judgment states that the conviction offense is a Class D felony. We hold that the criminal savings statute does not apply and that the trial court erred in sentencing the Defendant in Count 9 to a concurrent sentence of eleven months and twenty-nine days because of the following: (1) the General Assembly did not specifically indicate that Section 5 of the Public Safety Act operated retrospectively so the statute is presumed to operate prospectively; (2) “the value of the property or services obtained” is an essential element of the offense of theft; and (3) the legislature changed an essential element of, not the sentence for, Class A misdemeanor theft, Class E felony theft, and Class D felony theft. We affirm the judgment of conviction for the Class D felony theft in Count 9, vacate the sentence in Count 9, and remand the case to the trial court for resentencing within the applicable range for Class D felony theft and for consecutive alignment of the sentence pursuant to Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C).

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court after the trial court denied a motion for recusal. Because the petition for recusal appeal was not timely filed in accordance with Tennessee Supreme Court Rule 10B, we dismiss the appeal.

Defendant, Pamela Moses, was placed on intensive probation following the entry of guilty pleas to several offenses. The State filed two petitions to revoke her probation. After a lengthy hearing, the trial court revoked Defendant’s probation and ordered the “original judgment of conviction” into execution with additional jail credit for time served in confinement. Defendant argues on appeal that the trial court improperly revoked probation. For the following reasons, we affirm the judgment of the trial court.

This is a probate case. The chancery court entered an order purporting to close a probate estate. Several months later, the Appellant filed a Tennessee Rule of Civil Procedure 60.02(2) motion to set aside the order closing the estate on the basis of fraud and/or misconduct. The Appellant averred that her “verbal contract” claim which she had timely filed as a claim against the estate remained outstanding. After a hearing, the court denied the motion, having concluded that the Appellant failed to offer sufficient proof to substantiate her allegations and to justify re-opening the decedent’s estate. Because the order closing the estate was not final, we dismiss the appeal for lack of subject matter jurisdiction, and remand to the trial court to enter a final judgment addressing Appellant’s claim

A Shelby County jury convicted the defendant, Curtis Morris, of first-degree murder, aggravated child abuse, aggravated child neglect, and felony murder of his seventeen-month-old son. On appeal the defendant argues: the trial court erred when excluding a daycare record; the trial court erred when permitting the jury to view autopsy photos of the victim; the trial court erred when allowing certain expert testimony; the State failed to properly elect offenses; the trial court erred when failing to define “knowing” in its aggravated child abuse instructions; the State presented insufficient evidence to support the jury’s verdict; and the cumulative effect of these errors resulted in the denial of a fair trial. Based on our thorough review of the record, pertinent authorities, and arguments of the parties, we affirm the judgments of the trial court.

The Petitioner, Nasir Hakeem, appeals the Montgomery County Circuit Court’s denial of post-conviction relief, arguing that his attorneys were ineffective for failing to inform him of the deportation and other immigration consequences of a conviction at trial pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). The State contends that the petition is time-barred and that the post-conviction court erred in tolling the one-year statute of limitations based on the Petitioner’s ignorance of Padilla. Because the postconviction court erred in tolling the limitations period, this court is deprived of jurisdiction to hear this appeal. Accordingly, the appeal is dismissed.

The defendant, Dequevion Lamar Lee, was convicted by a Madison County jury for attempted first-degree murder and aggravated assault. On appeal, he argues the evidence is insufficient to sustain his convictions. Upon review, we affirm the judgments of the trial court but remand the case for entry of a corrected judgment form as to count two reflecting the defendant’s aggravated assault conviction was merged with count one.

A Coffee County jury convicted the Defendant, Nathaniel Morton Champion, of possession of contraband in a penal institution, a Class C felony, for which the trial court imposed an eight-year sentence to run consecutively to the Defendant’s prior sentences. On appeal, the Defendant contends that: (1) the trial court erred by denying his motion to dismiss the indictment based on the State’s failure to preserve evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999); (2) the evidence introduced at trial was insufficient to support his conviction; (3) the trial court abused its discretion by denying the Defendant’s request for a continuance based on the failure of a defense witness to appear to testify at trial; (4) the Defendant’s waiver of the right to counsel was not knowing and intelligent; and (5) the trial court abused its discretion by enhancing the Defendant’s sentence to eight years and ordering consecutive sentencing. Following a thorough review, we affirm the Defendant’s judgment of conviction.

In April 2005, Donald Scott Kimbrough (“the Petitioner”) pled guilty to second degree murder and attempted second degree murder. Pursuant to a plea agreement, the Defendant received an effective sentence of twenty-five years’ incarceration. Almost twelve years after his guilty plea, in March 2017, the Petitioner filed an untimely petition for post-conviction relief. The Petitioner acknowledged that his petition was untimely filed but asserted that the statute of limitations should be tolled because he was a minor at the time of the offenses. The post-conviction court summarily dismissed the petition as time-barred after finding that no statutory exception existed to toll the limitations period and that the Petitioner failed to establish a basis for due process tolling. The Petitioner now appeals the post-conviction court’s order. However, because the Petitioner filed an untimely notice of appeal with this court and the interest of justice does not favor a waiver of the timely filing requirement in this case, the Petitioner’s appeal is dismissed.

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights on the ground of: abandonment by willful failure to visit. Appellant also appeals the trial court’s finding that termination of her parental rights is in the children’s best interests. Because Appellee/Father thwarted Appellant’s attempts to visit the children, we conclude that Appellees failed to meet their burden to show, by clear and convincing evidence, that Appellant abandoned the children. Accordingly, we reverse the order terminating Appellant’s parental rights.

In this appeal, we address the constitutionality of police officers’ search of trash located within the curtilage of the home of the Defendant, Williams Zachary Weatherly. The police officers utilized evidence obtained from the Defendant’s trash to secure a search warrant for the Defendant’s home and vehicle. As a result of evidence seized from the Defendant’s trash and during the execution of the search warrant, the Defendant was charged with possession with the intent to sell or deliver more than one-half ounce of marijuana and possession of a firearm during the commission of a dangerous felony. The Defendant filed a motion to suppress. Following a hearing, the trial court granted the motion, finding that the warrantless search of the Defendant’s trash was unconstitutional and that the search warrant failed to establish probable cause. The State appealed. Upon reviewing the record and the applicable law, we affirm the trial court’s granting of the motion to suppress.

A mother obtained a default judgment against her former spouse for child support arrearages and other amounts. At the mother’s request, the trial court entered orders of income assignment to the former spouse’s employers, each directing them to deduct a set amount from the former spouse’s salary to satisfy the default judgment. Nearly fourteen and one-half years later, the former spouse asked the court to terminate the wage assignment, claiming the culmulative amount deducted from his income exceeded the amount of judgment plus interest. The former spouse also sought a judgment against the mother to the extent she had received more than she was entitled to under the default judgment. The mother argued that the voluntary payment doctrine barred recovery. The trial court found that the former spouse’s “overpayments were made with full knowledge of the facts chargeable to him” but that they “were not voluntary payments.” Accordingly, the court entered judgment against mother plus statutory post-judgment interest.

A jury convicted the Petitioner, Tina Nelson, of first degree felony murder committed during the perpetration of aggravated child abuse and of the underlying felony of aggravated child abuse. She petitioned for post-conviction relief, asserting ineffective assistance of counsel, and her petition was denied. On appeal, the Petitioner alleges that she is entitled to post-conviction relief because her trial counsel failed to properly investigate her case or present witnesses, failed to move for a severance, failed to properly challenge testimony that she showed no emotion, and failed to establish that her mental impairment prevented her from assisting in her own defense. After a thorough review of the record, we affirm the denial of post-conviction relief.

Originally, I was assigned the task of drafting an opinion in this case. I circulated my draft to the other panel judges, the Honorable W. Neal McBrayer and the Honorable Arnold B. Goldin. Judges McBrayer and Goldin do not agree with me “that the voluntary payment doctrine barred recovery.” I have read the majority opinion drafted by Judge McBrayer and concurred in by Judge Goldin. I now formally dissent from that majority opinion.

The State of Tennessee appeals from the Houston County Circuit Court’s order granting the Defendant, Trevor Wallace’s, motion to dismiss the indictment charging him with driving under the influence. See T.C.A. § 55-10-401(a) (Supp. 2014) (amended 2015). The trial court granted the motion on the basis that the indictment failed to state an offense. The State contends that the trial court erred in granting the motion to dismiss. We reverse the judgment of the trial court and remand the case for further proceedings.

This action involves a will contest in which the decedent’s daughter alleged that the current will was void due to either undue influence or lack of mental capacity. The case proceeded to a jury trial, after which the jury invalidated the will. We affirm.

This appeal arises from a declaratory judgment action seeking to determine whether the decedent died intestate. The decedent executed a will in 2005 and executed another will in 2011, which expressly revoked all prior wills and codicils. Following the decedent’s death in 2016, the original of the 2011 will could not be located; however, the original of the 2005 will was found in the decedent’s personal filing cabinet. The decedent’s children then filed a Petition to Open Estate and [for] Declaratory Relief, seeking a declaration that the decedent died intestate. The decedent’s live-in companion of approximately 30 years, and a beneficiary under both wills, filed an answer, contending that the decedent died testate under either the 2005 or the 2011 will. At the trial, the decedent’s companion conceded that she did not have evidence to overcome the presumption that the decedent revoked the 2011 will; thus, the trial focused on whether the decedent intended to revive his 2005 will upon revoking the 2011 will. The trial court found “there is no proof Decedent revoked the 2011 Will with the intent to execute a later will,” and “[g]iven the preservation and nearby-safekeeping of the 2005 Will following revocation of the 2011 Will and the lack of evidence indicating a contrary intent, the Court concludes Decedent intended to revive his 2005 Will.” We affirm.

Father unilaterally modified his child support obligation without submitting a petition to modify to the trial court because his oldest child emancipated. The trial court found that Father had impermissibly modified his child support obligation based, inter alia, on the fact that Father failed to follow the Child Support Guidelines. Discerning no error, we affirm the trial court’s judgment.

The defendant, Kenneth Michael McIntosh, pled guilty to sixteen counts of aggravated child abuse and a single count of child abuse. The trial court sentenced the defendant to eight years for each aggravated child abuse conviction and eleven months and twentynine days for the single child abuse conviction and ordered two of the sentences for aggravated child abuse to be served consecutively for an effective sentence of sixteen years. On appeal, the defendant argues the trial court erred in ordering two of his eightyear sentences to be served consecutively. Upon review, we affirm the findings of the trial court.

This case was originally filed in general sessions court. The general sessions court entered a default judgment against Appellant in the amount of $8,066.04 on January 27, 2012. In September of 2015, Appellant filed a motion for relief from the general sessions judgment, alleging that the judgment was void because she was not properly served with the civil warrant. The general sessions court denied the motion, and Appellant appealed to the circuit court. The circuit court vacated the general sessions’ default judgment finding that Appellant was not properly served but remanded the case to general sessions for a trial on the merits. Because the general sessions court lacked personal jurisdiction over Appellant, we conclude that the default judgment entered in the general sessions court is void. Accordingly, we affirm the circuit court’s order vacating the default judgment, but reverse the circuit court’s remand of the case to general sessions court, and instead we remand to the circuit court with instructions to dismiss the case.

This appeal arises out of protracted litigation following a foreclosure sale. The plaintiff asserted claims against the mortgage holder and the purchaser at the foreclosure sale for breach of contract, breach of the implied duty of good faith and fair dealing, improper foreclosure, and fraud. The trial court dismissed each of the claims, and the plaintiff appeals. Due to the deficiencies in the plaintiff’s brief on appeal, we conclude that she has waived consideration of any issues and hereby dismiss the appeal.