APPELLATE COURT OPINIONS

Appellant, an inmate with the Tennessee Department of Correction (“TDOC”), appeals the trial court’s dismissal of his appeal for review of disciplinary actions taken against him by the prison, and affirmed by the TDOC Commissioner. The trial court dismissed the appeal for lack of subject matter jurisdiction based upon the expiration of the applicable statute of limitations, Tennessee Code Annotated Section 27-9-102. Discerning no error, we affirm.

Appellant, Ian Michael Boone Parks, was charged by criminal information with one count of aggravated assault in Claiborne County. Appellant pled guilty, and the trial court held a sentencing hearing. The trial court sentenced Appellant to a five-year sentence of confinement as a Range I, standard offender. On appeal, Appellant argues that the sentence imposed by the trial court was not supported by the evidence. After a thorough review of the record, we have determined that Appellant failed to include both the transcript of the guilty plea and the presentence report. These documents are necessary for an adequate review of the issues presented. Because we do not have these documents, we must conclude that the trial court’s sentences are supported by the evidence. Therefore, the judgment of the trial court is affirmed.

The Defendant, Willie Lewis, was found guilty by a Shelby County Criminal Court jury of second degree murder, a Class A felony. See T.C.A. § 39-13-210(a)(1) (2010). He was sentenced as a Range I, violent offender to twenty-five years’ confinement. On appeal, the Defendant contends that the trial court erred by (1) excluding relevant testimony regarding the victim’s tattoo, (2) not permitting the Defendant to refer to the victim’s tattoo during closing argument, and (3) issuing a flight instruction that was not supported by the evidence. We affirm the judgment of the trial court.

A Knox County Criminal Court jury convicted the defendant, Kenneth Edward Watts, of vandalism of property valued at $1,000 or more but less than $10,000 and attempted theft of property valued at $1,000 or more but less than $10,000. On appeal, the defendant challenges the sufficiency of the evidence to support his conviction for attempted theft of property. We determine that sufficient evidence exists to support the defendant’s conviction of attempted theft of property valued at $1,000 or more but less than $10,000 and affirm that judgment. We conclude, however, that the trial court’s order concerning the vandalism count is inconsistent with the trial court’s ruling at the motion for new trial hearing. Therefore, we remand as to that count for entry of a corrected order properly effectuating the intent of the trial court.

The State appeals the trial court’s dismissal of the following charges against the Defendant, Jimmy Joyner: driving under the influence ("DUI"), third offense; violation of the open container law; and failure to maintain a traffic lane. The trial court dismissed the charges finding that the State had not commenced prosecution before the expiration of the statute of limitations. After a thorough review of the record and relevant authorities, we conclude that the trial court improperly dismissed the charges because the Defendant waived his preliminary hearing and agreed to allow the case to be bound over to the grand jury before the expiration of the statute of limitations. Therefore, the judgment of the trial court is reversed, and the case is remanded for reinstatement of the indictments against the Defendant.

The Petitioner,Antwain TapaigeSales,appeals the Bedford County Circuit Court’s summary dismissal of his petition for post-conviction relief from his conviction for second degree murder and resulting forty-year sentence. On appeal, he contends that the trial court erred in determining that he failed to satisfy the threshold burden to warrant an additional hearing regarding whether the statute of limitations should have been tolled due to his mental incompetence. We affirm the judgment of the trial court.

Gerald Farrar (“the Claimant”) submitted a claim under his homeowner’s insurance policy after his house was badly damaged by fire. His insurer, Tennessee Farmers Mutual Insurance Company (“the Company”) denied coverage and filed a declaratory judgment action. The Company alleged that the Claimant had made a misrepresentation on his application – one that increased the Company’s risk of loss. The Claimant filed a counterclaim in which he alleged that the Company’s agent, Michael E. Dyer (“the Agent”), misled him about the meaning of question 13 on the application, the answer to which contains the alleged misrepresentation. Following a bench trial, the court found in favor of the Company and dismissed the Claimant’s counterclaim predicated on the Claimant’s failure to carry the burden of proof. We affirmed the trial court’s judgment in Tennessee Farmers Mut. Ins. Co. v. Farrar, 337 S.W.3d 829 (Tenn. Ct. App. 2009) (“Farrar I”). The Claimant then filed this action against the Agent alleging that the Agent made a misrepresentation about the meaning of question 13 that caused him to give an incorrect answer on the application. The complaint also named the Company as a defendant “principal” responsible for the Agent’s actions. The trial court dismissed the case on summary judgment, holding that Farrar is a bar to this second action. The Claimant appeals. We affirm.

This direct appeal involves a disciplinary proceeding against a Chattanooga lawyer arising out of his representation of two clients. A hearing panel of the Board of Professional Responsibility determined that the lawyer should be suspended from the practice of law for forty-five days. Following the lawyer’s appeal to the Chancery Court for Hamilton County, the trial court upheld the lawyer’s forty-five-day suspension after finding that the record supported the hearing panel’s findings that the lawyer had attempted to bill one client twice, had breached his ethical obligations to another client, and had failed to cooperate with the Board of Professional Responsibility during its extended investigation into his conduct. On this appeal, the lawyer insists (1) that the evidence does not support the hearing panel’s findings, (2) that the hearing panel erred by receiving into evidence a videotaped deposition given by one of his clients, (3) that the hearing panel failed to properly apply the American Bar Association Standards for Imposing Lawyer Sanctions, and (4) that the hearing panel failed to consider the discipline imposed on other lawyers for similar infractions. Based on our review of the record, we, like the trial court, affirm the hearing panel’s decision to suspend the lawyer’s license to practice law for forty-five days.

The Defendant, Dennis Marshall, was convicted by a Shelby County Criminal Court jury of two counts of possession with intent to sell twenty-six grams or more of cocaine, a Class B felony. See T.C.A. § 39-17-417 (2010). The trial court merged the convictions and sentenced the Defendant as a multiple offender to sixteen years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction and that the trial court committed plain error (2) by denying him an open and public trial; (3) by admitting hearsay statements into evidence; (4) by admitting evidence of other investigations; (5) by admitting evidence of the utility account holder at the home in which the drugs were found; (6) by admitting evidence about his having money but no job; (7) by admitting nonexpert testimony about the value of the cocaine found at the crime scene; (8) by admitting evidence about the recovery of a razor blade at the scene; and (9) by admitting evidence of his personal relationship with a minor female. We affirm the judgment of the trial court.

Mother appeals the finding that termination of her parental rights to her son was in the son’s best interest. Finding no error, we affirm the termination of her rights.

The Petitioner, Jason Clinard, appeals the Hickman County Circuit Court’s summary dismissal of his petition seeking a writ of habeas corpus. The Petitioner, who was convicted of first degree murder, contends that his conviction was illegal because he was sentenced to life with the possibility of parole, which he states contravenes statute. Upon a review of the record in this case, we conclude that the habeas corpus court properly denied the petition for habeas corpus relief. Accordingly, we affirm the judgment of the habeas corpus court.
 

I respectfully dissent from the majority’s holding that the post-conviction court erred in failing to allow the Petitioner to amend his petition during the evidentiary hearing. The Petitioner sought to amend his petition to allege another ground for his claim of ineffective assistance of counsel. Specifically, the amendment would have raised the issue of trial counsel’s failure to assert the trial court’s denial of a motion for a mistrial in the Petitioner’s motion for new trial or on direct appeal. The motion for a mistrial related to the admission of impermissible character evidence regarding prior, uncharged bad acts during the prosecutor’s opening statement.

The petitioner, Ricardo Rodriguez, brings a post-conviction challenge to his 2004 guilty plea for sale of a controlled substance based on the United States Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), in which the Court concluded that trial counsel’s failure to advise a defendant that his guilty plea would result in deportation amounted to deficient representation. In this case, the post-conviction petition was not filed within the one-year limitations period specified by the Tennessee Post-Conviction Procedure Act, and it was dismissed by the post-conviction court based on the statute of limitations at Tennessee Code Annotated § 40-30-102(a). The petitioner contends that Padilla should be retroactively applied and that his claim falls into an exception to the statute of limitations for new constitutional rules with retrospective application. See T.C.A. § 40-30-102(b)(1) (2006). Alternatively, the petitioner claims that due process tolls the statute of limitations or that the rule is an old rule with retroactive application. The petitioner also challenges the knowing and voluntary nature of his plea and brings a habeas corpus challenge based on his incomplete knowledge of English. We conclude that, because Padilla does not warrant retroactive application and because due process does not require the statute of limitations to be tolled, the petition was time-barred. We further conclude that the post-conviction court properly denied relief on the petitioner’s remaining claims and affirm the judgment of the post-conviction court.
 

In 2003, Carol Ann Graybeal (“the Client”) filed this action against her former attorney and lover, Howell H. Sherrod, Jr. (“the Lawyer”), after he refused to give her an accounting regarding an investment she had made through him. In response to her demand for an accounting, he had accused her of stealing and damaging property, the value of which allegedly exceeded the value of her investment. In the answer later filed to her suit, he demanded a setoff; his answer was joined with a counterclaim seeking relief with respect to the stolen and damaged goods. Six years later, the case came on for trial. The court entered its first judgment on April 23, 2010 (“the April 2010 judgment”). The court found in favor of each of the parties regarding various of their respective claims, with the result that the Lawyer received a net judgment of $10,760.13, before interest. The Client filed a motion to alter or amend the April 2010 judgment. The court entered a second, almost identical, judgment on September 15, 2010 (“the September 2010 judgment”), in which it denied the Client’s motion. The Lawyer later filed a motion for discretionary costs as well as a motion to alter or amend the September 2010 judgment. In March 2011, the Client filed a motion for relief from the September 2010 judgment. In an order entered August 5, 2011 (“the August 2011 judgment”) and designated as “final,” the court granted the motion for discretionary costs in part, denied the Lawyer’s motion to alter or amend, and granted the Client’s motion for relief with respect to the calculation of prejudgment interest and the taxing of costs. The Lawyer appeals from the August 2011 judgment. The Client attempts to raise several issues of her own. We conclude that the merits of one of the earlier judgments – the September 2010 judgment – are not before us because what the Lawyer has labeled as a “motion to alter or amend” that judgment is not, despite its label, one of the motions recognized by Tenn. R. Civ. P. 59.01 as having the effect of “extending the time for taking steps in the regular appellate process.” We find no reversible error in the August 2011 judgment. Accordingly, we affirm that judgment.

Father appeals the termination of his parental rights. The trial court terminated Father’s parental rights upon finding that four grounds for termination had been established – the grounds of substantial noncompliance with the provisions of the permanency plan, abandonment by willful failure to visit and support, and failure to establish parentage, and that termination of Father’s rights was in the child’s best interest. We have determined that three grounds for termination were established by the requisite proof and that termination of his rights is in the child’s best interest. Therefore, we affirm the termination of Father’s parental rights.

The Defendant-Appellant, Richard Hanke, Sr., entered a plea of guilty in the Madison County Circuit Court to robbery (count one), aggravated burglary (count two), aggravated assault (count three), and two counts of kidnapping (counts four and five), all Class C felonies. He additionally pleaded guilty to retaliation for past action (count six) and possession of a weapon with intent to employ in offense (count seven), both Class E felonies. The trial court imposed a term of six years’ confinement for the robbery, aggravated burglary, aggravated assault, and each kidnapping. It further imposed a sentence of two years for possession of a weapon with intent to employ in offense and retaliation for past action. The trial court ordered the concurrent term of six years’ confinement in counts one, two, and four to be served consecutively to the concurrent term of six years’ confinement imposed in counts three, five, and seven. Count six was ordered to be served consecutively to all other counts, for an effective sentence of fourteen years in the Tennessee Department of Correction. The sole issue presented for our review is whether the trial court erred in ordering partially consecutive sentencing. Finding no abuse of discretion, we affirm the judgments of the trial court.

The Defendant-Appellant, Robin Elizabeth Willis, was convicted by a Hawkins County jury of theft of property valued at $1000 or more but less than $10,000, a Class D felony. The trial court sentenced her as a Range I, standard offender and ordered her to serve three years in the Tennessee Department of Correction. On appeal, Willis argues: (1) the evidence was insufficient to support her conviction; and (2) her sentence was excessive. Upon review, we affirm the judgment of the trial court.

Following a burglary in Greene County, the defendant was charged with two counts of aggravated burglary and two counts of theft of property. At the conclusion of the trial, the jury returned verdicts of guilt for one count of facilitation of aggravated burglary and for two counts of theft of property. After finding the presence of one enhancement factor, the trial court imposed concurrent three-year sentences for each offense. The Court of Criminal Appeals found that the enhancement factor did not apply and reduced each of the sentences to two years. Because we find that a sentence imposed by a trial court should be upheld so long as it is within the appropriate sentencing range and is otherwise in compliance with the purposes and principles of the sentencing statute, we reverse the sentence modification by the Court of Criminal Appeals and, upon review under an abuse of discretion standard with a presumption of reasonableness, reinstate the sentence imposed by the trial court.

JOSEPH M. TIPTON, P.J., concurring in part, dissenting in part. I concur with the majority opinion’s conclusion that the evidence was sufficient to convict the Defendant. I respectfully disagree, however, with its conclusions that the victim was particularly vulnerable and that the three-year sentence should be served in confinement

The Defendant, Joshua Paul Lewis, was convicted by a jury of two counts of rape of a child and one count of attempted rape of a child. The trial court subsequently sentenced the Defendant to twenty-five years on each of the rape convictions and to ten years on the attempted rape conviction, all sentences to run concurrently, for an effective sentence of twenty-five years in the Department of Correction. In this direct appeal, the Defendant contends that (1) the trial court erred in denying his motion to suppress his statement to the police; (2) the trial court erred in denying his motion for judgment of acquittal due to variances between the bill of particulars and the proof at trial; and (3) he was denied a fair trial due to cumulative error. After a review of the record and relevant authorities, we have determined that the Defendant’s issue are waived for failing to preserve them in a timely filed motion for new trial. Accordingly, we affirm the trial court’s judgments.

A Shelby County jury convicted the Defendant-Appellant, Randy Parham, of attempted first degree murder, a Class A felony, aggravated robbery, a Class B felony, theft of property valued at $1000 or more but less than $10,000, a Class D felony, and domestic assault, a Class A misdemeanor. On remand for resentencing following Parham’s first appeal, State v. Randy Parham, No. W2009-02576-CCA-R3-CD, 2010 WL 5271612 (Tenn. Crim. App. Dec. 10, 2010), the trial court imposed an effective sentence of fifty-five years. In this appeal, Parham argues that the trial court erred by (1) ordering the sentences for attempted first degree murder and aggravated robbery to be served consecutively, (2) ordering the sentence for attempted first degree murder to be served at one hundred percent release eligibility as a “violent” offense, and (3) failing to state on the record which enhancement factors it applied to which offenses while at the same time applying a non-statutory enhancement factor. Upon review, we affirm the judgments of the trial court in part and reverse them in part. We also note the need for entry of corrected judgments. The case is remanded for entry of judgments in accordance with this opinion.

Appellant,Terrance Gabriel Carter,pled guilty in Marshall County to five counts of violating the sex offender registration act in two separate cases with the length and manner of service of sentence to be determined by the trial court after a sentencing hearing. Appellant was sentenced to an effective sentence of five years. Appellant appeals his sentence, arguing that it is excessive. After a review of the record, we affirm the judgments of the trial court.

Andres Hernandez (“Father”) filed a petition seeking to terminate his child support obligation. The Trial Court held a hearing and entered an order on March 17, 2011 awarding a judgment against Father of $5,726.47 in child support arrearages but also providing for further hearing for a full review and calculation of arrearages. The case subsequently was heard before a Special Master who found that Heather Junghanel (“Mother”) was entitled to a judgment against Father of $21,976.27 in child support arrearages. Father appealed the Special Master’s report to the Trial Court. The Trial Court found that the March 17, 2011 order was a final order and awarded a judgment against Father of $5,726.47 in child support arrearages. The State of Tennessee ex rel. Mother appeals to this Court arguing that the Trial Court improperly retroactively modified Father’s child support obligation. We find and hold that the Trial Court erred in holding that the March 17, 2011 order was a final order. We vacate the Trial Court’s September 20, 2011 order and remand this case to the Trial Court for a hearing on Father’s objections to the Special Master’s report.

A Hamilton County jury convicted Defendant, Mario Jones, of possession of more than 50 grams of a Schedule II controlled substance with intent to sell, a Class A felony. The trial court sentenced Defendant to serve twenty years as a Range I standard offender. In his appeal, Defendant presents the following issues for review: (1) the stop of Defendant’s vehicle and the subsequent detention of Defendant violated his constitutional rights, and the trial court erred by denying Defendant’s motion tosuppress; (2) the evidence was insufficient to sustain Defendant’s conviction; (3) the trial court improperly allowed Lieutenant Queen to testify concerning the calendar, notes, and pills found in Defendant’s vehicle; (4) the trialcourt erred in finding that chain of custody had been established; and (5) the trial court erred in rejecting Defendant’s proposed mitigating factor. After a thorough review, we affirm the judgment of the trial court.

The Defendant-Appellant, Robert Blake Ball, was convicted by a Greene County jury of attempted second degree murder and sentenced to eleven years’ imprisonment. In this appeal, Ball challenges the sufficiency of the evidence supporting his conviction and the sentence imposed by the trial court. Upon our review, we affirm the judgment of the trial court.