Appellate Court Opinions

Format: 04/17/2021
Format: 04/17/2021
Terry Lynn King v. State of Tennessee
E2019-00349-CCA-R3-PD

The Petitioner, Terry Lynn King, through counsel, appeals from the post-conviction court’s order summarily denying relief on his amended post-conviction petition challenging his 1985 death sentence for the first degree murder perpetrated in the simple kidnapping by confinement of Diana K. Smith. The Petitioner argues that (1) the prior violent felony aggravating circumstance applied in his case is unconstitutionally vague under Johnson v, United States, 576 U.S. 591 (2015); (2) the harmless error analysis utilized by the original post-conviction court and this court concerning the erroneous application of the felony murder aggravating circumstance is unconstitutional under Hurst v. Florida, 577 U.S. 92(2016); (3) the Petitioner is entitled to post-conviction relief on amended claims alleging that the State committed Brady violations at his original trial, that the use of his Grainger County conviction to establish the prior violent felony aggravating circumstance violated his constitutional rights, and that counsel committed ineffective assistance of counsel; (4) the post-conviction court’s summary denial of the amended postconviction petition violated the Petitioner’s right to due process; and (5) the cumulative effect of the errors resulted in a deprivation of constitutional rights.

Knox County Court of Criminal Appeals 03/16/21
State of Tennessee v. Tony Lynn Clabough
E2020-00738-CCA-R3-CD

Tony Lynn Clabough, Defendant, appeals from the trial court’s denial of an alternative sentence and imposition of a six-year sentence to be served in the Tennessee Department of Correction. Finding no abuse of discretion, we affirm the judgment of the trial court.

Sevier County Court of Criminal Appeals 03/16/21
State of Tennessee v. Ronda G. Fletcher
M2020-00361-CCA-R3-CD

The Defendant, Ronda Fletcher, pleaded guilty to possession of methamphetamine with intent to sell and to possession of a Schedule II controlled substance, and she agreed to serve an effective eight-year sentence with six months in confinement and the remainder on probation. A revocation warrant was issued, and following a hearing, the trial court found that the Defendant violated the terms of her probation, revoked her probation, and ordered her to serve her sentence in confinement. On appeal, the Defendant contends that the trial court abused its discretion by ordering her to serve her sentence in confinement. Following our review, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Giles County Court of Criminal Appeals 03/15/21
State of Tennessee v. Colton Daniel Perryman
M2020-00357-CCA-R3-CD

The Defendant, Colton Daniel Perryman, entered a no contest plea to two counts of voluntary manslaughter and one count of tampering with evidence. He agreed to serve a split-confinement sentence of two years in confinement and twelve years on supervised probation. A revocation warrant was issued, and following a hearing, the trial court found that the Defendant violated the terms of his probation, revoked his probation, and ordered him to serve his sentence in confinement. On appeal, the Defendant contends that the trial court abused its discretion by ordering him to serve his sentence in confinement. We affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Giles County Court of Criminal Appeals 03/15/21
In Re Abigail J.J.
E2019-01832-COA-R3-PT

This action involves the termination of a mother’s parental rights by default judgment. The trial court found that clear and convincing evidence existed to establish four statutory grounds of termination and that termination was in the best interest of the child. We vacate the order of the trial court and remand for proceedings consistent with this opinion.

Anderson County Court of Appeals 03/15/21
State of Tennessee v. Tanner Brady Burgess
M2020-00050-CCA-R3-CD

Defendant, Tanner Brady Burgess, was indicted by the Montgomery County Grand Jury in a three-count indictment for premeditated first degree murder, possession of a firearm during the commission of a dangerous felony, and aggravated assault resulting in the victim’s death. Following a bench trial, the trial court found that the State had not proven beyond a reasonable doubt that Defendant’s shooting of the victim was the cause of the victim’s death. Accordingly, the trial court found Defendant guilty of the lesser-included offense of attempted voluntary manslaughter in Count 1, possession of a firearm during the commission of a dangerous felony in Count 2 and aggravated assault in Count 3. The court did not identify the element forming the basis for Defendant’s aggravated assault conviction in Count 3. Following a sentencing hearing, the trial court imposed an effective sentence of nine years’ incarceration. In this appeal as of right, Defendant contends that: 1) the evidence at trial was insufficient to sustain his conviction for attempted voluntary manslaughter because the proof did not establish beyond a reasonable doubt that Defendant intended to cause the victim’s death; and 2) the judgment of conviction in Count 3 incorrectly reflects a conviction for aggravated assault resulting in death, which carries a mandatory release eligibility of 75 percent, rather than aggravated assault resulting in serious bodily injury, which carries a standard release eligibility of 30 percent. Following our review, we affirm the judgments of the trial court in Counts 1 and 2; however, because of inconsistencies between the verdict as announced by the trial court, the sentence as announced at the sentencing hearing, and the sentence as recorded on the judgment form, we remand for clarification and entry of a corrected judgment form in Count 3.

Montgomery County Court of Criminal Appeals 03/12/21
Metrpolitan Government of Nashville & Davidson County v. Kallie Kay Dreher
M2020-00635-COA-R3-CV

This case began in the environmental court division of the general sessions court for Davidson County. The Metropolitan Government of Nashville and Davidson County (“Metro”) alleged that the defendant had violated a section of the Metro Code by operating a short term rental property with the wrong type of permit. The matter was originally heard by a referee, who found that the defendant violated the Metro Code as alleged, fined the defendant fifty dollars, and declared that the property was ineligible for a short term rental permit for three years. The defendant timely requested a rehearing before the general sessions court judge. Upon rehearing, the judge ruled in favor of the defendant and dismissed the case. Metro then sought a de novo appeal before the circuit court. The circuit court concluded that the appeal must be dismissed because the general sessions court had dismissed the charge after a trial on the merits, and therefore, a trial de novo would violate principles of double jeopardy. Metro appeals. We affirm and remand for further proceedings.

Davidson County Court of Appeals 03/12/21
State of Tennessee v. Conner Waid Holcomb
E2020-00332-CCA-R3-CD

The Defendant, Conner Waid Holcomb, pleaded guilty in the Knox County Criminal Court to statutory rape, a Class E felony. See T.C.A. § 39-13-506 (2018). Pursuant to a negotiated plea agreement, the Defendant received a two-year sentence, and the trial court granted the Defendant’s request for judicial diversion. On appeal, the Defendant contends that the court abused its discretion by placing him on the sexual offender registry during the diversionary period. We dismiss the appeal.

Knox County Court of Criminal Appeals 03/12/21
State of Tennessee v. Weylin Trent Strode
M2019-00764-CCA-R3-CD

The Defendant, Weylin Trent Strode, appeals the denial of his motion to withdraw his guilty plea, asserting that his plea should not be allowed to stand due to uncertainties regarding his mental competency at the time of the plea. Following our review, we affirm the judgment of the trial court denying the motion.

Putnam County Court of Criminal Appeals 03/11/21
State of Tennessee v. Jennifer Murray Jewell
M2019-02160-CCA-R3-CD

The Defendant, Jennifer Murray Jewell, appeals the trial court’s order revoking her ten-year probationary sentence for theft of property valued at more than $60,000 but less than $100,000 after determining that she violated the conditions of her probation by committing a new theft. On appeal, the Defendant argues that the trial court abused its discretion when it found that the evidence was sufficient to support her probation revocation and when it ordered her to serve her original sentence in confinement without making “explicit findings about the efficacy of a probationary term with modified conditions.” After review, we affirm the trial court’s judgment.

Williamson County Court of Criminal Appeals 03/11/21
Phillip Burgess v. State of Tennessee
M2020-00028-CCA-R3-PC

The Petitioner, Phillip Matthew Burgess, appeals as of right from the Marshall County Circuit Court’s denial of his petition for
post-conviction relief, wherein he challenged his convictions for premeditated first degree murder, attempted first degree murder, and aggravated assault. On appeal, the Petitioner asserts that he received the ineffective assistance of trial counsel3 because counsel (1) failed to file a motion or object at trial to the destruction of exculpatory evidence; (2) “coerced” the Petitioner into choosing not to testify; (3) failed to pursue a defense theory of diminished capacity; (4) failed to interview or call several witnesses and subpoena the Petitioner’s telephone records; and (5) failed to promptly file a motion to withdraw after a conflict of interest arose. The Petitioner also contends that he received the ineffective assistance of appellate counsel because counsel failed to call a witness at the sentencing hearing and failed to timely file an application for permission to appeal to the Tennessee Supreme Court after this court filed its opinion in the direct appeal. Following our review, we affirm.

Marshall County Court of Criminal Appeals 03/11/21
State of Tennessee v. Donnie Bridges
E2019-01003-CCA-R3-CD

The Appellant, Donnie Bridges, was convicted in the Knox County Criminal Court of driving under the influence (DUI) per se, third offense, a Class A misdemeanor; simple possession of cocaine, a Class A misdemeanor; and driving on a revoked license, a Class B misdemeanor. After a sentencing hearing, the trial court sentenced him to eleven months, twenty-nine days for DUI to be served as 120 days in jail followed by supervised probation; eleven months, twenty-nine days for simple possession to be served on supervised probation consecutive to the DUI sentence; and six months for violating the driver’s license law to be served on supervised probation concurrently with the DUI sentence. On appeal, the Appellant contends that the trial court erred by refusing to dismiss the presentment or suppress his blood test results because the State failed to preserve his blood sample, that the trial court committed plain error by admitting the results of his blood test into evidence because the State failed to establish a chain of custody for his blood sample, and that the evidence is insufficient to support his convictions of DUI per se, third offense, and driving on a revoked license. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 03/11/21
Pryority Partnership v. AMT Properties, LLC, Et Al.
E2020-00511-COA-R3-CV

In this action involving a commercial lease, the trial court granted judgment in favor of the lessee, determining that the lessor had materially breached the lease. The court further determined that the lessor was liable for negligent misrepresentation, due to its misrepresentations concerning the condition of the roof on the leased building and its intent to repair the roof, and constructive eviction, due to its failure to timely repair the building and render it tenantable. The court awarded compensatory damages to the lessee in the amount of $193,006.35 as well as attorney’s fees in the amount of $69,002.68. The lessor has appealed. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 03/10/21
In re Isabella S., et al.
M2020-00535-COA-R3-JV

This appeal concerns a disposition in a dependency and neglect case. Leslie S. (“Mother”) is the mother of the subject minor children Isabella S., Macie S., and Gabriel S. (“the Children,” collectively). The Children’s maternal grandparents Sheila W. and Richard W. (“Grandparents”) filed a petition for dependency and neglect in the Juvenile Court for Williamson County (“the Juvenile Court”). The Juvenile Court adjudicated the Children dependent and neglected. In the disposition phase, the Juvenile Court awarded Grandparents permanent guardianship of the Children, with Mother to exercise only supervised visitation. Mother appealed to the Circuit Court for Williamson County (“the Circuit Court”), which reached the same result. Mother now appeals to this Court, arguing that the Children should be returned to her custody or, alternatively, that her visits be unsupervised. The Circuit Court found, among other things, that Mother’s fiancé Allen M. (“Fiancé”) had engaged in sexually predatory behavior, and that Mother was in denial about the threat Fiancé posed to the Children. The evidence does not preponderate against that or the Circuit Court’s other factual findings. We affirm.

Williamson County Court of Appeals 03/10/21
Vera Elaine Clark v. City of Mount Juliet
M2020-00293-COA-R3-CV

The plaintiff commenced this action by alleging that the City of Mount Juliet failed to adequately light a public park and neglected to make the park safe for walking at night, conditions which caused her to fall and sustain severe personal injuries. The City responded by filing a Tenn. R. Civ. P. 12.02(6) motion to dismiss, claiming it was immune from suit under the Governmental Tort Liability Act. Following numerous filings by the plaintiff in opposition to the motion and after a hearing, the court granted the motion on the basis that the complaint did not plead facts sufficient to remove immunity from the City. Therefore, the court dismissed all claims. This appeal followed. We affirm.

Wilson County Court of Appeals 03/10/21
Kelly L. Phelps v. State of Tennessee
M2020-00570-COA-R3-CV

Plaintiff Kelly Phelps brought this action for sexual harassment, discrimination, and retaliation under the Tennessee Human Rights Act (“THRA”) against her employer, the State of Tennessee. Plaintiff worked as a server at the restaurant at Paris Landing State Park (“the park”). She alleged that Josh Walsh, the assistant park manager who was described as “second in command” at the park, sexually assaulted her at an “after-party” on State property that immediately followed a Halloween party hosted by the park at the restaurant and inn. She further alleged that after she reported the incident, Defendant, among other retaliatory actions, allowed Walsh to continue working around her at the park as usual, and to continue harassing and threatening her. Following extensive discovery, Defendant moved for summary judgment. The trial court found that there were genuine issues of material fact as to whether Walsh was Plaintiff’s supervisor; whether he “sexually harassed women at Paris Landing State Park prior to the Halloween party” and Defendant was aware of it; and whether “a reasonable fact-finder could conclude that Mr. Walsh’s action in grabbing [Plaintiff] by the neck and thrusting his body against her in a sexual manner was ‘extremely serious’ and sufficient to impose liability on the Defendant.” However, the trial court granted summary judgment to Defendant because it found that the sexual assault did not occur “in the workplace.” Regarding the retaliation claim, the trial court held that Plaintiff did not establish that Defendant took a “materially adverse action” against her after she reported the assault. We hold that there are genuine issues of material fact regarding whether the alleged harassment and discrimination affected a term, condition, or privilege of Plaintiff’s employment, and whether Defendant unlawfully retaliated against her. We vacate the judgment of the trial court.

Davidson County Court of Appeals 03/10/21
Sheila Renee Grissette v. Don Edwin Grissette
E2020-00923-COA-R3-CV

Upon a review of the record, we have determined that the notice of appeal was not timely filed in accordance with Rule 4(a) of the Tennessee Rules of Appellate Procedure. The Circuit Court for Hamilton County (“the Trial Court”) entered its judgment on November 15, 2019. Both parties timely filed motions to alter or amend pursuant to Tenn. R. Civ. P. 59.01. The Trial Court entered its order addressing the motions to alter or amend on February 21, 2020.

Hamilton County Court of Appeals 03/09/21
State of Tennessee v. John Christopher Schubert
E2019-01257-CCA-R3-CD

A jury convicted the Defendant, John Christopher Schubert, of aggravated robbery, robbery, theft, tampering with evidence, resisting arrest, and disorderly conduct. The Defendant received an effective eighteen-year sentence. On appeal, the Defendant contends that the State presented insufficient proof regarding his identity, that his convictions for resisting arrest and disorderly conduct violate the prohibition against double jeopardy, that the trial court improperly admitted hearsay evidence, and that the trial court erroneously gave an instruction on flight. After a thorough review of the record, we discern no error and affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 03/09/21
Kim Renae Nelson v. Loring E. Justice
E2020-00287-COA-R3-CV

This appeal concerns the trial court’s entry of judgment on an appeal bond for attorney fees. We affirm the trial court in all respects.

Roane County Court of Appeals 03/09/21
State, ex rel., Tynesha April Dior Moody v. Damond Julian Roker
W2019-01464-COA-R3-JV

Mother filed a petition under the Uniform Interstate Family Support Act, seeking establishment of paternity and a child support order against Father, who is incarcerated. The State of Tennessee is acting on Mother’s behalf, and Father is acting pro se. Father filed multiple pretrial motions in the trial court, which the trial court did not rule on before the trial on Mother’s petition. Additionally, the trial court’s order fails to comply with Rule 52.01 of the Tennessee Rules of Civil Procedure and is apparently not based on any properly admitted evidence. Therefore, we vacate the trial court’s order and remand for a new trial.

Shelby County Court of Appeals 03/09/21
State of Tennessee v. Morris L. Long, II
M2019-01085-CCA-R3-CD

Defendant-Appellant, Morris Long, was convicted by a Dickson County jury of first-degree premeditated murder, Tenn. Code Ann.
§ 39-13-202, and sentenced to life imprisonment. The sole issue presented for our review is whether the evidence was sufficient to support his conviction. Upon our review, we affirm the judgment of the trial court.

Dickson County Court of Criminal Appeals 03/08/21
Zachary J. Pence v. State of Tennessee
E2019-01942-CCA-R3-PC

The Petitioner, Zachary Pence, was convicted of aggravated rape of a child, aggravated child abuse, and child abuse. See Tenn. Code Ann. §§ 39-13-531, -15-401, -15-402. He was subsequently sentenced to sixty years. Following denial of his direct appeal, the Petitioner filed a petition seeking post-conviction relief, alleging that trial counsel was ineffective based on the following grounds: (1) failing to prepare for trial and to prepare the Petitioner to testify at trial; (2) failing to investigate; and (3) failing to provide the Petitioner with audio recordings until the day prior to trial. Following our review, we affirm the judgment of the post-conviction court.

Anderson County Court of Criminal Appeals 03/08/21
In Re Larry E. Parrish
W2020-00907-SC-R3-BP


This Court suspended an attorney from practicing law for six months, with one month on active suspension. The discipline resulted from a report of misconduct received by the Tennessee Board of Professional Responsibility in 2013. In 2018, we reinstated the attorney to the practice of law based on his eligibility for reinstatement and his compliance with the order of discipline. Before being reinstated, the attorney agreed to a monthly payment plan to satisfy the Board’s assessed costs from the disciplinary case. Soon after he was reinstated, the attorney petitioned the Board to revoke the agreed costs. The attorney argued he did not owe the costs because the Board improperly assessed costs under Tennessee Supreme Court Rule 9 in effect when the 2013 disciplinary proceeding was initiated instead of Rule 9 in effect when he was reinstated. A hearing panel found the Board had properly assessed costs based on Rule 9 in effect when the disciplinary proceeding began. The attorney appealed. We affirm. Based on this Court’s Order promulgating revised Rule 9 and our subsequent decisions, the version of Rule 9 that was in effect when the disciplinary case was initiated in 2013 governs the assessment of costs regardless of when this Court reinstated the attorney to the practice of law. Thus, we hold the Board followed the correct procedure in assessing costs. We order the attorney to pay the costs assessed against him within forty-five days of the filing of this opinion. Failure to timely pay the costs may serve as a ground for revocation of the attorney’s reinstatement to practice law.

Supreme Court 03/08/21
Rochelle Yvonne Lillard v. Robert Walter Lillard
M2019-02305-COA-R3-CV

This appeal arises from a post-divorce Petition to Modify Child Support and Declare Child to be Severely Disabled. After an evidentiary hearing, the court determined the parties’ daughter had a severe disability and ordered the father to continue paying child support beyond the age of 21. The father raises three issues on appeal: (1) Did the trial court err in determining that the parties’ daughter had a severe disability; (2) Did the trial court err in awarding child support beyond the age of 21 without making specific factual findings that the daughter was living under the care and supervision of the mother and it was in the daughter’s best interest to remain in the mother’s care; and (3) Did the trial court err in determining the amount of child support the father owed? We find the preponderance of the evidence supports the trial court’s determination that the daughter has a severe disability, and it is in the daughter’s best interest to remain in her mother’s care. As for the amount of the child support award, the father primarily argues the daughter is underemployed; therefore, the court should have imputed additional income to her. We have determined that the trial court correctly identified and applied the relevant legal principles, the evidence supports the trial court’s determination regarding the daughter’s ability to earn income, and the award of child support is within the range of acceptable alternatives. Therefore, we affirm the trial court’s decision in all respects

Davidson County Court of Appeals 03/08/21
Jessica Meeks Conine, Et Al. v. Medtronic Sofamor Danek USA, Inc.
M2020-00614-COA-R3-CV

This appeal arises from the summary dismissal of an inmate’s petition for declaratory judgment pertaining to the calculation of his release eligibility date. The inmate was convicted of two felonies and ordered to serve a life sentence for the first felony and a 15- year sentence for the second, with the sentences to be served consecutively. When calculating his release eligibility date, the Tennessee Department of Correction (“TDOC”) applied the inmate’s pretrial jail credits to the life sentence but not to the 15-year sentence.  The inmate claimed that TDOC erred by failing to apply the credit to both sentences because the criminal court included the credit on both sentencing orders. While the inmate’s petition was pending, the criminal court issued a corrected sentencing order for the 15-year sentence, in accordance with Rule 36 of the Tennessee Rules of Criminal Procedure, removing the pretrial jail credits. Thereafter, TDOC filed a motion for summary judgment, and the trial court granted the motion, determining that TDOC complied with the criminal court’s judgment and the applicable law. We affirm.

Davidson County Court of Appeals 03/08/21