APPELLATE COURT OPINIONS

In this consolidated appeal as of right, Defendants Alex Goodwin and Joey Lee challenge their convictions of aggravated robbery, a Class B felony, see T.C.A. § 39-13-402, for which they received eleven and ten years’ imprisonment, respectively. Both Defendants challenge the sufficiency of the evidence supporting their convictions. Defendant Goodwin argues that the trial court erred in (1) denying his motion to suppress text messages obtained from Defendant Goodwin’s cell phone and (2) refusing to instruct the jury on facilitation as a lesser included offense of aggravated robbery. Defendant Lee argues that the trial court erred in (1) admitting into evidence a BB gun located remotely in time and place to the offense without any testimony to connect the weapon to the offense; (2) allowing an expert witness to interpret the meaning of slang terminology used by the co-defendant in the text messages; and (3) the cumulative effect of the errors committed during trial denied him a fair trial. Upon our review, we affirm the judgments of the trial court.

This is an appeal from a divorce. The trial court granted the parties an absolute divorce and named the mother the primary residential parent of the parties’ minor child. The father filed this appeal challenging the designation of the mother as the primary residential parent and questioning the number of days of parenting time he received in the parenting plan. We find that the evidence does not preponderate against the trial court’s designation of the mother as the primary residential parent; however, the evidence does preponderate against the parenting plan that greatly limits the parenting time awarded to the father. Because we have concluded that the evidence preponderates against the parenting plan, we remand this issue to the trial court to adopt a plan that affords the father additional parenting time and to modify the child support award to comport with the new parenting plan. We also conclude that the tax exemption should be awarded to the father until such time as the mother becomes employed, at which time the issue can be revisited.

The petitioner, Edward Hood, Jr., appeals the denial of his petition for post-conviction relief as untimely. The petitioner asserts the applicable statute of limitations for his claim should be tolled as he was incompetent during the filing period. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

A Bedford County Circuit Court jury convicted the defendant, John Willie Stone, of burglary of an automobile, theft of property valued at $500 or less, and aggravated assault, and the trial court imposed a total effective sentence of 21 years’ incarceration. Shortly after the conclusion of his trial and prior to the entry of his judgments or his sentencing hearing, the defendant filed a pro se motion seeking new counsel, which the trial court interpreted as a petition for post-conviction relief on the basis of ineffective assistance of counsel. Following a combined hearing on the defendant’s motion for new trial and his purported petition for post-conviction relief, the trial court denied all claims. In this appeal, the defendant challenges both the sufficiency of the convicting evidence and the length of his sentence in addition to the ineffectiveness of his trial counsel. Because the trial court erroneously treated the defendant’s motion for new counsel as a petition for post-conviction relief, we vacate the portion of the trial court’s judgment which denied post-conviction relief to the defendant. In all other respects, we affirm the judgment of the trial court.

Following the Defendant’s, Jeffery Dwight Ray’s, guilty-pleaded conviction for aggravated statutory rape, the trial court imposed a sentence of three years’ incarceration. The Defendant appeals, arguing that he is a suitable candidate for alternative sentencing pursuant to the statutory considerations outlined in Tennessee Code Annotated section 40-35-103. Following our review, we affirm the trial court’s alternative sentencing decision.

The trial court determined that the primary residential parent should be changed from mother to father without any change in the equal division of parenting time.  Because the trial court failed to address the best interest of the child in its order, we vacate and remand for the entry of findings of fact and conclusions of law.

The Petitioner, David Hearing, filed a petition for a writ of habeas corpus, alleging that his concurrent sentences of life for his two convictions of felony murder were illegal and void. The habeas corpus court dismissed the petition upon finding that the issue had been raised and addressed in prior pleadings. On appeal, the Petitioner challenges the habeas corpus court’s ruling. Upon review, we affirm the judgment of the habeas corpus court.

In this termination of parental rights action, Father’s parental rights were terminated based on the following grounds: (1) failure to manifest an ability and willingness to assume legal and physical custody of the child; (2) that placing the child in Father’s legal and physical custody would pose a risk of substantial harm to the child’s physical and psychological welfare; (3) failure to establish or exercise paternity; and (4) abandonment by wanton disregard for the welfare of the child. We affirm the grounds of failure to manifest an ability and willingness to assume legal and physical custody of the child and failure to establish or exercise paternity. However, we reverse with respect to the remaining grounds. We also affirm the trial court’s determination that termination of Father’s parental rights is in the best interest of the child. Affirmed in part, reversed in part, and remanded

In his first trial, Defendant, George Joseph Raudenbush, III, was convicted of driving on a suspended license, violating the financial responsibility law, speeding, felony evading arrest, misdemeanor evading arrest, assault, and reckless endangerment. The trial court merged the misdemeanor evading arrest conviction into the felony evading arrest conviction and imposed an effective four-year sentence. On appeal, this court reversed and remanded the case for a new trial because the trial court denied Defendant his Sixth Amendment right to counsel by requiring him to proceed pro se at trial. State v. George Joseph Raudenbush, III, No. E2012-02287-CCA-R3-CD, 2013 WL 62372011 (Tenn. Crim. App. Dec. 3, 2013). In his second trial, the subject of this appeal, Defendant was convicted of driving on a suspended license, violating the financial responsibility law, speeding, felony evading arrest, misdemeanor evading arrest, assault, and reckless endangerment. The trial court again imposed an effective four-year sentence to be served on supervised probation. On appeal, Defendant raises the following issues: (1) whether the trial court erred in overruling Defendant’s motion for judgment of acquittal; (2) whether the evidence was insufficient to support his convictions for felony evading arrest and assault; (3) whether the trial court erred by denying his motion for a change of venue; and (4) whether there was juror misconduct. Defendant is not entitled to relief on the issues presented. However, the trial court failed to merge the conviction for misdemeanor evading arrest with the conviction for felony evading arrest. We therefore remand the convictions for merger. In all other respects the judgments are affirmed.

The Petitioner, Raina Fisher, was convicted of three counts of theft of property valued over $1,000, one count of theft of property valued over $500, and one count of attempted theft of property valued over $1,000. The Petitioner filed a timely post-conviction petition, alleging that her trial counsel had provided ineffective assistance by failing to suppress evidence obtained through a judicial subpoena, failing to exclude evidence of her prior convictions, and failing to call certain witnesses who could have discredited the victim. She also alleged that appellate counsel was ineffective and that she was entitled to relief under a theory of cumulative error. The post-conviction court held a hearing and denied relief. After a thorough review of the evidence, we conclude that the Petitioner has not demonstrated prejudice resulting from any of her claims, and we affirm the judgment of the post-conviction court.

Defendant, Robert Guerrero, appeals from the trial court’s summary denial of his Motion for Correction of Illegal Sentence filed pursuant to Tennessee Rule of Criminal Procedure (Tenn. R. Crim. P.) 36.1.  In his motion and on appeal, Defendant asserts that his nine consecutive fifteen-year sentences for nine convictions of attempted first degree murder are illegal.  He asserts that by imposing consecutive sentencing, the trial court failed to base its ruling on at least one of seven criteria found in Tennessee Code Annotated (T.C.A.) section 40-35-115.  After a thorough review, we affirm the judgment of the trial court.

The petitioner, Rathal Y. Perkins, appeals the summary dismissal of his petition for writ of habeas corpus, which challenged his 1995 Haywood County Circuit Court jury conviction of first degree murder. Discerning no error, we affirm.

The Petitioner, Martin E. Hughes, pled guilty to two counts of aggravated assault; introducing contraband into a penal institution; facilitation of possession of a schedule II controlled substance; possession of marijuana with the intent to sell or deliver; possession of drug paraphernalia; a second offense of driving under the influence of an intoxicant; possession of a firearm while intoxicated; and vandalism of property valued under $500. The Petitioner received an aggregate five-year sentence, with credit for time he had served in prison and the remainder of the sentence to be served through the community corrections program. The Petitioner violated the terms of his alternative sentence, and he was sentenced to serve the remainder of the five years in prison. The Petitioner then filed a petition for post-conviction relief. At the hearing on the petition, the Petitioner sought to establish that he had received the ineffective assistance of counsel and that he was entitled to withdraw his guilty pleas as not knowingly and voluntarily entered based on newly discovered evidence in the form of a victim recanting an earlier statement. The post-conviction court found that the Petitioner was not entitled to relief because he received the effective assistance of counsel and because the victim’s testimony at the hearing established that the material elements of her statement to police were accurate. On appeal, the Petitioner argues that a delay in the post-conviction proceedings attributable to the State resulted in the loss of a witness’s testimony and that his due process right to present his post-conviction claims was violated. After a thorough review of the record, we conclude there is no basis to disturb the Petitioner’s guilty pleas, and we affirm the judgment of the post-conviction court.

The Defendant, Terry Trammell, was convicted by a Knox County Criminal Court jury of two counts of burglary, a Class D felony, and two counts of theft of property, a Class E felony. See T.C.A. §§ 39-14-402 (2014) (burglary), 39-14-103 (2014) (theft). The trial court merged the burglary and theft convictions and sentenced the Defendant to concurrent terms of twelve years for the burglary conviction and six years for the theft conviction, which were ordered to be served consecutively to a previously imposed sentence. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

This is a medical malpractice action. The plaintiffs timely filed suit against the defendants concerning the failure to timely diagnose the husband’s prostate cancer. After voluntarily dismissing the initial suit, the plaintiffs provided pre-suit notice before filing a second suit pursuant to the saving statute. The defendants moved for summary judgment, arguing that the plaintiffs lacked sufficient expert testimony to establish their claim. The court agreed and granted summary judgment. We affirm.

The issue we address is whether a defendant has an appeal as of right from the denial of a Tennessee Rule of Criminal Procedure 41(g) motion for return of property when the defendant did not file a pretrial motion to suppress and pleaded guilty. The defendant was indicted on charges of aggravated assault by use or display of a deadly weapon. Law enforcement officers seized guns and other related items from the defendant’s home. The defendant did not challenge the seizure of his property and pleaded guilty to reduced charges of reckless endangerment. Three years later, he filed a Rule 41(g) motion for the return of property. The trial court dismissed the motion, and the defendant appealed. The Court of Criminal Appeals reversed and remanded, finding that the defendant may be entitled to relief under Rule 41(g) based on the court’s determination that an illegal seizure occurs when, after a conviction, the State retains possession of property that is not stolen and not connected to the commission of a crime. See State v. Rowland, No. W2014-02311-CCA-R3-CD, 2015 WL 6601315, at *3 (Tenn. Crim. App. Oct. 30, 2015), perm. app. granted (Mar. 23, 2016). We hold that the defendant had no appeal as of right under Tennessee Rule of Appellate Procedure 3(b) from the trial court’s order denying the Rule 41(g) motion. The Court of Criminal Appeals erred by hearing the defendant’s appeal when it lacked jurisdiction under Rule 3(b) and by determining that the defendant could be entitled to relief under Rule 41(g).   

The Defendant, Perry Mitchell Kirkman, pleaded guilty to two counts aggravated sexual battery in 2010 and received a fifteen-year sentence as a Range II offender. Six years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence because his sentence exceeds the sentencing range for a Range I offender convicted of a Class B felony. The trial court summarily dismissed the motion after determining that the Defendant knowingly and voluntarily pleaded guilty and agreed to a sentence outside the appropriate sentencing range pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997).1 On appeal, the Defendant contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

The petitioner, Paul Richardson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

The petitioner, Travarious D. White, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

This is the second appeal of this employment discrimination case involving two plaintiffs. In the first appeal, Goree v. United Parcel Service, 490 S.W.3d 413 (Tenn. Ct. App. 2015), perm. app. denied (Tenn. March 23, 2016), this Court reversed the judgment as to one plaintiff and affirmed the judgment as to the other plaintiff, the Appellant in the instant case. On remand, the trial court determined that the specific attorney’s fees chargeable to each plaintiff could not be determined and reduced the previous award of attorney’s fees and costs by 50%. Appellant appeals. Discerning no error, we affirm and remand.

The Petitioner, Larry Peoples, appeals the denial of his petition for post-conviction relief, challenging his conviction of violation of sex offender registration and sentence of one year. On appeal, the Petitioner argues that he is entitled to post-conviction relief because the underlying sex offense was vacated and he is no longer required to register as a sex offender. After a review of the record and applicable law, we affirm the post-conviction court’s denial of relief.

The owner of property in a residential subdivision appeals the order of the trial court prohibiting construction of an eight-foot wooden fence. We affirm.

This is a common law abuse of process case. The plaintiffs contend that the defendant attorney abused otherwise lawful process without authorization and for an improper purpose. The trial court dismissed this case as a matter of law for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(6). We affirm.

I respectfully dissent from the majority’s opinion in this case. I disagree with the majority’s conclusion that “the complaint fails to state a cause of action for abuse of process.” Applying the appropriate standard of review as correctly articulated by the majority, I believe the complaint does state a claim upon which relief can be granted as to the abuse of process claim.

The Appellant, Rafael Antonio Bush, appeals as of right from the Rutherford County Circuit Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The gravamen of the Appellant’s complaint is that the trial court improperly enhanced his sentences based upon judicially determined facts in violation of Blakely v. Washington, 542 U.S. 296 (2004). Following our review, we affirm.