APPELLATE COURT OPINIONS

Defendant, Andrew Cross, pled guilty in the Polk County Criminal Court, to one count of aggravated burglary, a Class C felony, and one count of Class E felony theft. At the sentencing hearing, the trial court imposed the minimum allowable sentences of three years for aggravated burglary and one year for theft, and ordered the sentences to be served concurrently. The trial court also ordered the effective sentence of three years suspended, to be served on probation, but the trial court denied Defendant’s request to be granted judicial diversion. In this appeal, Defendant argues that he should have been granted judicial diversion. We disagree, and affirm the judgments of the trial court.

I respectfully disagree with the majority’s conclusion that trial counsel’s actions regarding the Petitioner’s acceptance of the plea agreement did not amount to ineffective assistance of counsel. With respect to the Petitioner’s remaining issue, I concur with the majority’s decision.

In this post-divorce appeal regarding child support, we have concluded that the trial court erred in requiring mother to establish a trust account for gifts to the parties’ minor child. In all other respects, we affirm the decision of the trial court.

The orders of the trial court were designated as final pursuant to Rule 54.02 of the Tennessee Rules of Appellate Procedure. Because we find that certification of the judgment under Rule 54.02 was in error, we dismiss the appeal for lack of appellate jurisdiction.

The Defendant, David Eugene Breezee, was found guilty by a Benton County Circuit Court jury of rape, a Class B felony, and incest, a Class C felony. See T.C.A. §§ 39-13-503(b); 39-15-302(b). At the sentencing hearing, the incest conviction was merged with the rape conviction, and the Defendant was sentenced to ten years’ confinement. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions and that he erroneously received more than the minimum sentence of eight years because the trial court applied the multiple victims enhancement factor. We affirm the Defendant’s conviction and sentence for rape, but we reverse the trial court’s merger of the incest conviction into the rape conviction, reinstate the incest conviction, and remand for sentencing as to that conviction.

Sonya Wyche (“the Putative Daughter”) was named as one of the heirs of James Sheperd Smith, deceased (“the Deceased”), in the petition for letters of administration filed by James B. Smith and Jacqueline Smith Gunn (collectively “the Adminstrators”). The Administrators filed a “Motion to Determine Identity of Heirs” approximately 13 months after the Deceased died. The court held that the Putative Daughter’s claim as a child born out of wedlock was not perfected in a timely fashion. The court also held that the Putative Daughter did not carry her burden of proving that the Administrators, by naming her as an heir in the petition, acted with intent to trick her into not filing a timely claim. The Putative Daughter appeals. We affirm.

Carlos Burris (“the Defendant”) appeals his convictions in two separate trials for attempting to obtain a controlled substance by fraud and driving on a suspended license, fourth offense. The trial court sentenced the Defendant to six years for the attempting to obtain a controlled substance by fraud conviction and to eleven months, twenty-nine days for the driving on a suspended license conviction. The trial court also ordered that the two sentences run consecutively. On appeal, the Defendant contends that the evidence presented at both trials was insufficient to support his convictions. Additionally, the Defendant contends that his sentence for the first conviction was excessive and that the trial court erred by running the two sentences consecutively. After a thorough review of the record and the applicable law, we affirm the Defendant’s convictions and sentences.

The Petitioner, Kenneth Gregory Allen, appeals from the Marshall County Circuit Court’s summary dismissal of his pro se petition for post-conviction relief. On appeal, the Petitioner asserts that the post-conviction court erred in failing to acknowledge his claim of ineffective assistance of counsel and dismissing his petition based solely on finding that the issues raised therein were previously determined. Upon review, we reverse the judgment of the post-conviction court and remand for appointment of counsel and an evidentiary hearing with regard to the Petitioner’s ineffective assistance of counsel claim.

Jarvis Q. Williams (“the Petitioner”) filed for post-conviction relief from his convictions of seven counts of especially aggravated kidnapping and four counts of aggravated robbery, alleging ineffective assistance of trial and appellate counsel and denial of a public trial. After a hearing, the post-conviction court granted relief in the form of a reduced sentence but otherwise denied relief. This appeal followed. Upon our thorough review of the record, we affirm the judgment of the post-conviction court.

Plaintiff appeals a jury verdict awarding her damages in the amount of approximately $5,000 in her action for damages against her uninsured motorist insurance carrier. We affirm.

In this modification of custody case, Mother appeals only the trial court’s failure to make a specific finding that modification is in the child’s best interest. Concluding that the trial court failed to make the necessary findings of fact and conclusions of law, we vacate the order of the trial court naming Father primary residential parent and remand to the trial court for the entry of an order with appropriate findings of fact and conclusions of law.

Following a bench trial, the Defendant, Deborah Davis, was convicted of one count of driving under the influence (DUI), first offense, a Class A misdemeanor. See Tenn. Code Ann. § 55-10-401. The Defendant was sentenced to eleven months, twenty-nine days with forty-eight hours to be served in confinement and the remainder to be served on unsupervised probation. In this appeal as of right, the Defendant contends (1) that the trial court erred by denying her motion to suppress all evidence gathered by the police pursuant to an accident investigation because such evidence was protected by the accident report privilege of Tennessee Code Annotated section 55-10-114(b); and (2) that the evidence was insufficient to sustain her conviction. Following our review, we conclude that these issues are without merit and affirm the judgment of the trial court.

Branch Banking and Trust Company (“BB&T”) provided financing for a construction project and recorded a deed of trust. The excavation contractor, Charles Blalock & Sons, Inc., started work on the project and had done substantial work when Marshall & Ilsley Bank (“M&I Bank”) made a loan and recorded its trust deed. BB&T was paid off out of the proceeds of the loan from M&I Bank. Blalock was also paid current with the proceeds from the M&I Bank loan. BB&T released its trust deed. The developer later defaulted, and Blalock filed this action to enforce its statutory lien. M&I Bank’s assignee, Cay Partners, LLC, filed a counterclaim asserting that it should be entitled to the priority position of BB&T. Blalock and Cay filed competing motions for summary judgment. The trial court granted Blalock’s motion. Cay appeals. We affirm.

The Defendant, Memory Gayle Hall, entered open pleas of guilty to driving under the influence of an intoxicant (DUI), speeding, and failing to provide evidence of financial responsibility. At sentencing, the trial court ordered her to serve forty days on consecutive weekends in the county jail, followed by probation for the balance of the eleven months and twenty-nine day sentence. She challenges the trial court’s denial of full probation, contending that she was a favorable candidate. After reviewing the record and applicable authorities, we affirm the judgments of the trial court.

This is an appeal from the grant of summary judgment in favor of Appellee Shelby County. Appellants, former employees of the Shelby County Department of Homeland Security, filed suit against Appellee for retaliatory discharge under both the Tennessee Public Protection Act, Tennessee Code Annotated Section 50-1-304, and the Tennessee Public Employee Political Freedom Act, Tennessee Code Annotated Section 8-50-603. The trial court determined that Appellants had failed to meet their burden to show that the termination of their employment was causally connected to any whistleblowing activity and granted judgment in favor of Appellee. Discerning no error, we affirm.

This appeal concerns an inmate’s petition for a writ of certiorari. The petitioner inmate was convicted of disciplinary offenses, which were affirmed by the Tennessee Department of Corrections. The inmate filed a petition for a writ of certiorari, seeking judicial review of the convictions. The trial court found that it did not have subject matter jurisdiction to hear the inmate’s petition because it did not include a recitation that it was his first application for the writ. We reverse and remand the cause for further consideration in light of Talley v. Bd. of Prof’l Responsibility, 358 S.W.3d 185 (Tenn. 2011).

This is a termination of parental rights case focusing on two minor children, Holly B.C. (DOB: December 22, 2005) and Kylie M.C. (DOB: December 6, 2006) (collectively “the Children”). Defendants, Angela C. (“Mother”) and Chad C. (“Father”), are the biological parents of the Children. The Children were taken into custody in September 2007, after the defendants left them with a church nursery worker for two weeks and did not return during that period. The Department of Children’s Services (“DCS”) filed a petition to terminate parental rights on September 25, 2008, and a hearing was held on the petition in September 2009. At the conclusion of the hearing, the trial court took the matter under advisement. The court later decided to hold the petition in abeyance to give the defendants an opportunity to make more progress with respect to their permanency plans. In July 1 2010, the defendants’ visitation with the Children was suspended due to alleged danger to the Children. A final hearing was held in September 2011. At that time, the Children had been in state custody for approximately four years. The trial court terminated the defendants’ parental rights. The court found, by clear and convincing evidence, that both parents had failed to substantially comply with the permanency plan, that the conditions leading to removal still persisted, and that termination was in the Children’s best interest. Defendants appeal. We affirm.

This appeal involves jurisdiction over a divorce case. The parties lived in Maryland throughout their 19-year marriage. In 2007 or 2008, the husband left the marital home in Maryland. Several months later, he moved to Tennessee. About one year after he moved to Tennessee, the husband filed this complaint for divorce in the trial court below. The wife filed an answer and a counterclaim for divorce. The trial court conducted the first day of trial in the matter, and the case was continued. Before the trial resumed, the trial court sua sponte entered an order dismissing the case for lack of jurisdiction,jurisdiction over the wife and apparently also lack of subject-matter jurisdiction over the case. The husband now appeals. We reverse the trial court’s decision and remand for further proceedings.

A Benton County Circuit Court Jury convicted the appellant, David Eugene Breezee, of rape of a child, a Class A felony, and incest, a Class C felony. After a sentencing hearing, the trial court merged the incest conviction into the rape of a child conviction and sentenced the appellant to twenty-five years in confinement. The sentence was to be served consecutively to a prior sentence. On appeal, the appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court erred by refusing to allow him to question the victim about nude photographs taken of her by a registered sex offender, and (3) the trial court improperly ordered consecutive sentencing. The State argues that the trial court erred by merging the appellant’s convictions. Based upon the record and the parties’ briefs, we conclude that the evidence is sufficient to support the appellant’s convictions, that the trial court did not err by refusing to allow the appellant to question the victim about nude photographs, and that the trial court did not err by ordering consecutive sentencing. However, the trial court erred by merging the appellant’s convictions. Therefore, the appellant’s incest conviction is reinstated, and the case is remanded to the trial court in order for the court to resentence the appellant for both offenses.

The defendant, Christopher Brandon Presley, appeals the revocation of his probation. In August 2010, the defendant pled guilty to one count of aggravated burglary, a Class C felony, and one count of aggravated assault, a Class C felony. He received an effective ten-year sentence. The trial court suspended the defendant’s sentence and placed him on probation. One year later, a probation violation warrant was issued (and subsequently amended). Following a hearing, the trial court revoked the defendant’s probation and imposed his sentence. On appeal, the defendant claims that the trial court abused its discretion by revoking his probation. Following our review, we affirm the judgment of the trial court.

Appellant, Jermaine Burdette, pleaded guilty to three counts of especially aggravated kidnapping and three counts of aggravated robbery. The trial court sentenced him to a total effective sentence of 111 years in the Tennessee Department of Correction. Appellant argues that the trial court erred in sentencing him and by failing to merge the counts of especially aggravated kidnapping with aggravated robbery as to each victim. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgments of the trial court.

A lumber company employee with a history of heart bypass surgery died suddenly at a job site. After learning that the employee’s work activities could have triggered an arrhythmia or myocardial infarction, the widow filed suit for workers’ compensation benefits. The treating cardiologist of the employee concluded that his physical activities on the job contributed to his death, while a cardiologist who examined the medical records disagreed. The trial court awarded benefits, and the employer appealed. Pursuant to Tennessee Supreme Court Rule 51, the appeal has been referred to a special workers’ compensation appeals panel for a hearing and a report of findings of fact and conclusions of law. We affirm the judgment of the trial court.

The Defendant, Thomas L. Agnew, appeals from his Sullivan County Criminal Court conviction for third offense driving on a revoked or suspended license, a Class A misdemeanor. See T.C.A. § 55-50-504(a)(1), (2) (Supp. 2009) (amended 2010). The Defendant was sentenced to eleven months and twenty-nine days, with six months to be served in jail at 75%. On appeal, he contends that the trial court erred in imposing six months of confinement. We affirm the judgment of the trial court.

A Shelby County Criminal Court Jury convicted the appellant, Harold Moore, of selling less than .5 grams of cocaine, possessing less than .5 grams of cocaine with intent to sell, and possessing less than .5 grams of cocaine with intent to deliver. After a sentencing hearing, the trial court merged the convictions and sentenced him to five years in confinement. On appeal, the appellant contends that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Father’s individual retirement accounts (“IRAs”) were garnished to satisfy an award of attorney’s fees, and he filed a motion to quash the garnishment, claiming that the accounts were exempt from garnishment under Tennessee law. In a previous appeal, this Court concluded that the IRAs were exempt property, and we reversed the trial court’s order dismissing Father’s motion to quash the garnishment. On remand, the trial court vacated its previous order but again dismissed Father’s motion to quash. We reverse and remand with instructions for the trial court to grant Father’s motion to quash and to dissolve the writ of garnishment.