APPELLATE COURT OPINIONS

Petitioner, Timothy “Tink” Watson, was indicted by the Dyer County Grand Jury in October of 2005 for two counts of sale of more than .5 grams of cocaine. Petitioner represented himself at trial and was convicted by a jury of one count of sale of more than .5 grams of cocaine. After a sentencing hearing, Petitioner received a fifteen-year 1 sentence as a Range II, multiple offender. Petitioner filed several pleadings referred to as “amended” motions for new trial after a hearing. The trial court denied the motions. Petitioner subsequently pled guilty to five subsequent indictments through a plea agreement that included a waiver of his right to appeal the felony drug conviction from the October 2005 indictment. Petitioner then sought pro se post-conviction relief. After counsel was appointed, an amended petition was filed. The trial court held a hearing on the petition. It was dismissed after a hearing by the post-conviction court because it was untimely and because Petitioner had waived his claims by his plea agreement. Appellant appeals this decision. After a review, we determine that the petition was untimely and, therefore, properly dismissed by the post-conviction court. However, the record fails to include a judgment form for Count One of the indictment. Accordingly, the judgment of the post-conviction court is affirmed, but the matter is remanded to the trial court for entry of a judgment form for Count One of the indictment.

The defendant, Victor A. Askew, was convicted by a Montgomery County jury of premeditated first degree murder,attempted second degree murder,and felony evading arrest. He was subsequently sentenced to concurrent sentences of life imprisonment, eight years,and two years in the Department of Correction. On appeal, the defendant raised the single issue of sufficiency of the evidence with regard to his first degree murder conviction. Specifically, he contends that the State failed to present sufficient evidence of the element of premeditation. Following review of the record, we find no error and affirm the judgment of conviction

I concur in Parts I, II, III, V, VI, and VII of the majority opinion. I do not concur in Part IV of the opinion addressing whether federal or state procedural rules should apply to a qualified immunity defense because the issue of whether federal or state procedural law applies is not properly before this Court. See Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009).

A Shelby County Criminal Court jury convicted the defendant, Jerry Williams, of alternative counts of aggravated assault. The trial court ordered the convictions merged and imposed a Range I sentence of five years’ incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence and the propriety of the five-year sentence. Discerning no error, we affirm. We remand the case, however, for the entry of a single judgment of conviction reflecting the merged convictions.

In this extraordinary appeal, the Defendant-Appellant,Charlotte McCarter, appeals the Sevier County Circuit Court’s order refusing to grant an interlocutory appeal regarding the denial of pretrial diversion. On appeal, McCarter argues that the prosecutor abused her discretion in denying her application for pretrial diversion by: (1) failing to properly consider her amenability to correction; (2) making “rote statements” that the evidence weighed in favor of denying pretrial diversion instead of properly weighing the relevant factors; (3) relying on the circumstances of the offense and the need for deterrence, where these factors were not of such “overwhelming significance” to justify the denial; and (4) failing to have “substantial evidence” to support her decision to deny pretrial diversion. Upon review, we affirm the judgment of the trial court.

The petitioner, Cameron Winselle, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief challenging his convictions of two counts of first degree murder on the basis of ineffective assistance of counsel. The petitioner specifically contends that trial counsel committed ineffective assistance by failing to present evidence of his diminished capacity, failing to exhaust peremptory challenges, failing to investigate the facts of the offense, and failing to move for the trial judge’s recusal based upon the trial judge’s previous employment as a prosecutor. The petitioner also contends that appellate counsel was deficient for failing to raise issues on appeal. Discerning no error, we affirm the judgment of the post-conviction court.

Defendant-Appellant, David Houston Greene, appeals the Sullivan County Circuit Court’s revocation of his probation in three different cases. He was originally convicted of possession of cocaine with intent to sell, aggravated perjury, and misdemeanor failure to appear. He received an effective eight-year sentence, all of which was suspended after thirty days incarceration. On appeal, Greene claims that the trial court abused its discretion in revoking his probation and in ordering him to serve the sentences in confinement. Upon review, we affirm the judgment of the trial court.

The defendant, Gary Reeves, appeals his Madison County Circuit Court convictions of theft of property valued at more than $1,000 but less than $10,000 and criminal trespass, challenging the sufficiency of the convicting evidence. Because sufficient evidence supports both convictions, we affirm the judgments of the trial court.

The Defendant, Michael Dean Marlin, was found guilty by a Marshall County Circuit Court jury of three counts of especially aggravated burglary, a Class B felony; aggravated robbery, a Class B felony; robbery, a Class C felony; aggravated assault, a Class D felony; and assault, a Class A misdemeanor. The trial court merged the especially aggravated burglary convictions. The court sentenced the Defendant as a Range II, multiple offender to twenty years each for the especially aggravated burglary convictions and the aggravated robbery conviction, to ten years each for the robbery and the aggravated assault,and to eleven months and twenty-nine days for the assault, to be served concurrently for an effective twenty-year sentence. On appeal, the Defendant contends that the evidence is insufficient to support his convictions and that double jeopardy protections and Tennessee Code Annotated section 3914-404(d) bar simultaneous convictions for aggravated robbery, especially aggravated burglary, and aggravated assault. We affirm the judgments for robbery and assault, but we reverse the especially aggravated burglary, aggravated assault, and aggravated robbery judgments and remand the case for entry of judgments in which the Defendant’s convictions for especially aggravated burglary are modified to aggravated burglary and he is resentenced accordingly, and the conviction for aggravated assault is merged into a judgment of conviction for aggravated robbery.
 

Appellant, the second mortgage holder on the subject property, appeals the trial court’s determination that Appellee held a valid first mortgage on the property, when Appellee’s mortgage was taken under a deed of trust that contained a scrivener’s error that incorrectly identified the property’s lot number. The trial court held that: (1) the scrivener’s error was not fatal to Appellant’s deed of trust as the instrument otherwise clearly identified the property; (2) Appellant’s mortgage was superior to Appellee’s; and (3) Appellee’s bid at Appellant’s foreclosure sale created a valid contract, under which Appellee owed Appellant the purchase price. Finding no error, we affirm.

The petitioner, Konstantinos Diotis, appeals from the dismissal of his petition for post conviction relief as time-barred. In this appeal, the petitioner contends that application of the statute of limitations in his case is inappropriate because (1) the United States Supreme Court decision in Padilla v. Kentucky, __ U.S. __, 130 S. Ct. 1473 (2010), should be applied retroactively and (2) principles of due process require the tolling of the statute of limitations. The petitioner waived his claim of due process tolling by failing to present it to the post conviction court. Further, because we conclude that Padilla should not be applied retroactively, we affirm the judgment of the post-conviction court dismissing the petition as untimely.

The pro se petitioner, Philip Reed Bryan, appeals the Shelby County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the judgment of the habeas corpus court.

Originally charged with five counts of aggravated burglary and four counts of theft of property valued at $1,000 or more but less than $10,000, the defendant, Jose Jesus Alba-Gutierrez, pleaded guilty to five counts of aggravated burglary in exchange for a total effective sentence not to exceed ten years, with the manner of service to be determined by the trial court, and the State’s agreement to dismiss the theft charges against him. Following a sentencing hearing, the trial court ordered the defendant to serve his sentence in confinement. In this appeal, the defendant challenges the order of a fully incarcerative sentence. We affirm the judgments of the trial court.

This is the second appeal of this post-divorce case to this court. Donna Lynn Lund (“Wife”) and John Fredrik Lund (“Husband”) were divorced in 2008. In the first appeal of the trial court’s classification of marital property, this court held that the increase in value of Husband’s pre-marital annuity was separate property. On remand, the trial court divided the property as consistent with this court’s opinion. Wife filed post-judgment motions and a subsequent motion for Rule 60.02 relief, asserting that the order on remand contained errors of law and that she mistakenly failed to file a timely notice of appeal. The trial court denied the Rule 60.02 motion. Wife appeals. We affirm the decision of the trial court.

Defendant, Larry Edward Moore, Jr., was convicted of carjacking, a Class B felony and was sentenced to serve thirty (30) years as a Range III, career offender. This Court affirmed the conviction and sentence in State v. Larry Edward Moore, Jr., No. M2008-00703-CCA-R3-CD, 2010 WL 457493 (Tenn. Crim. App., filed Feb. 10, 2010) (hereinafter “Moore I”). From that judgment,Defendant filed an application for permission to appeal to the Tennessee Supreme Court pursuant to Tennessee Rule of Appellate Procedure 11. In his application, Defendant presented only one specific issue, which is set forth below. In its order concerning the Rule 11 application, the Supreme Court ordered a supplementation of the record on appeal. The Supreme Court also remanded the case to this Court for reconsideration, in light of the supplemental record, of Defendant’s “argument that the trial court erred in not redacting from [the supplemented exhibit] certain portions of [Defendant’s] statement to police.” Upon reconsideration of Defendant’s “redaction” issue, which we initially held was waived for multiple reasons, we conclude the trial court erred, but the error was harmless. Accordingly, we again affirm the judgment of the trial court.

Husband challenges the trial court’s award of alimony in solido beginning after three years of rehabilitative alimony. We find no abuse of discretion and affirm the trial court’s decision.
 

The petitioner,Timmie Darrell Boston,appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief. After trial, a jury convicted him of rape of a child, a Class A felony, and assault by offensive or provocative contact, a Class B misdemeanor. He was sentenced as a Range I, standard offender and received an effective twenty-year sentence. In this appeal, the petitioner claims that he received the ineffective assistance of counsel based on trial counsel’s failure to (1) object to the prosecution’s use of leading questions when examining the victim, and (2) impeach the testimony of the victim. Upon review, we affirm the judgment of the post-conviction court.

I fully concur with the reasoning and result in this opinion.Agreeing that the two most significant points we derive from Gonsewski are “the great deference appellate courts are to give to the trial court’s decisions regarding alimony and the disfavor for long-term alimony,” I write separately to recognize an important exception to the deferential standard of review that was not affected by Gonsewski, that being the less deferential standard that applies when the alimony decision is based upon findings of fact that are not supported by the evidence.Such was the case in Jekot v. Jekot, No. M2010-02467-COA- R3CV, 2011 WL 5115542 (Tenn. Ct. App.Oct.25,2011), wherein we recently reversed the trial court’s alimony award.
 

The Knox County Board of Zoning Appeals denied plaintiff's use on review application for a proposed shopping center. Plaintiff appealed the decision to the Circuit Court by way of a Writ of Certiorari. The Trial Court upheld the Board of Zoning Appeals' decision and plaintiff appealed to this Court. We reverse the decision of the Circuit Court on the grounds the record before the Board of Zoning Appeals does not contain substantial material evidence to uphold the Board's ruling. We reverse the Judgment of the Trial Court and remand.

In a divorce action, Husband appeals the trial court’s designation of Wife as the primary residential parent, its allocation of the marital debt, and its denial of alimony. Discerning no error, we affirm.
 

The Petitioner, Richard L. Williams, appeals from the Davidson County Criminal Court’s denial of post-conviction relief from his guilty plea to second degree murder and twenty-five year sentence. In his appeal, the petitioner argues that he received ineffective assistance of counsel and did not enter his guilty plea knowingly, intelligently, and voluntarily due to the various failures of trial counsel. Upon review, we affirm the judgment of the post-conviction court.

In this post-divorce dispute, wife challenges the trial court’s credibility finding, an award for alimony arrearage, and an award of attorney fees. While we find that the amount of the arrearage award should be modified, we affirm the decision of the trial court in all other respects.
 

The Appellant, Fernandez D. Davenport, appeals the trial court's dismissal of his petition for habeas corpus relief. The Appellant fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the judgment of the trial court is affirmed.

An in-state bottled soft drink manufacturer argues, pursuant to the bottler’s tax statute, that the in-state distributor to which it sells may pay the bottler’s tax on such sales and utilize its own franchise and excise tax credit. Absent this flexibility, the manufacturer contends, equal protection guarantees are offended. The trial court granted summary judgment to the Department of Revenue, finding that the manufacturer bore the tax burden and that it could not utilize the distributor’s credit. We affirm.

This is a termination of parental rights case. The legal guardians of the child filed a petition to terminate Mother’s parental rights based on her alleged willful failure to visit and support the child. The trial court found that Mother’s efforts to visit and support had been frustrated by the legal guardians’ actions. Therefore, the trial court concluded that Mother’s failure to visit and support was not willful. Because the legal guardians failed to prove any of the grounds required to terminate Mother’s parental rights, the trial court denied the petition. We affirm.