APPELLATE COURT OPINIONS

The petitioner, Samantha Marie Daniel, appeals the denial of her petition for post-conviction relief from her convictions for first degree murder and attempted first degree murder, arguing that the post-conviction court erred in finding that she received effective assistance of trial counsel. Following our review, we affirm the denial of the petition.

The petitioner, Robert N. Helton, appeals the post-conviction court’s dismissal of his petition for post-conviction relief from his convictions for theft of property over $10,000, burglary, and vandalism. On appeal, he argues that the post-conviction court erred in dismissing his petition because he received the ineffective assistance of counsel. After review, we affirm the dismissal of the petition.

The Petitioner, James Hathaway, appeals the Shelby County Criminal Court’s denial of  post-conviction relief from his convictions of first degree felony murder and especially aggravated robbery, for which he is serving consecutive sentences of life without parole and twenty-five years. On appeal, he contends that trial counsel rendered ineffective assistance by failing to request lesser included offense instructions and failing to obtain additional expert assistance. We affirm the judgment of the trial court.

Plaintiff sued his former employer, claiming that he was entitled to unpaid overtime pay and reimbursement for the cost of educational courses he took while employed by the employer. Following a bench trial, the trial court awarded the plaintiff overtime pay, reimbursement for the courses, and attorney’s fees. We reverse the decision of the circuit court and vacate the award.

Petitioner, Ronald Crook, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of trial counsel because counsel failed to properly cross-examine the State’s witnesses and investigate the facts of his case. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

Capital Appellant, Corinio Pruitt, appeals as of right from his conviction for first degree felony murder and his sentence of death resulting from the August 2005 death of Lawrence Guidroz. On  February 29, 2008, a Shelby County jury found the Appellant guilty of one count of second degree murder and one count of first degree felony murder, and the trial court merged the conviction for second degree murder with the first degree murder conviction. At the conclusion of the penalty phase, the jury unanimously found the presence of three statutory aggravating circumstances; specifically, (1) the defendant had previously been convicted of one or more felonies involving the use of violence, (2) the murder was knowingly committed while the defendant had a substantial role in committing a robbery, and (3) the victim was seventy (70) years of age or older. See T.C.A. § 39-13-204(i)(2), (7), (14). The jury further determined that these three aggravating circumstances outweighed any mitigating circumstances and imposed a sentence of death. The trial court approved the sentencing verdict. On appeal, the Appellant presents the following issues for our review: (1) whether the trial court erred in failing to find the Appellant intellectually disabled and ineligible for the death penalty, (2) whether the evidence is sufficient to support a conviction for first degree felony murder, (3) whether the trial court erred in permitting the introduction of the autopsy photographs of the victim, (4) whether application of the (i)(7) aggravating circumstance is constitutional, (5) whether the evidence is sufficient to support application of the (i)(7) aggravator, and (6) whether the sentence of death is proportionate in the present case. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

This is an appeal from the dismissal of the plaintiff’s complaint for intentional fraud, unjust enrichment and breach of contract. Because the plaintiff did not file her notice of appeal within thirty days after entry of the order denying her motion to alter or amend the judgment as required by Tenn. R. App. P. 4, we dismiss the appeal.

The petitioner, Terry Jones, pleaded guilty to possession with the intent to sell more than twenty-six grams of cocaine, a Class B felony, and received a sentence of ten years in the Tennessee Department of Correction and a $2,000 fine. He filed a petition for post-conviction relief alleging the ineffective assistance of counsel. The post-conviction court denied relief, and the petitioner appeals the post-conviction court’s denial of relief. After a thorough review, we affirm the judgment of the post-conviction court.

This is an appeal from the circuit court’s dismissal of an appeal from the general sessions court. The appellee purchased property during a foreclosure sale. The appellee purchaser filed an action in general sessions court to gain possession of the property from the defendant/appellant and recover rent. After an adverse judgment in the general sessions court, the  defendant/appellant appealed to the circuit court. The circuit court found that the defendant/appellant failed to perfect her appeal because she did not file a cost bond or make bond for one year’s rent and costs. Consequently, the circuit court dismissed the appeal from general sessions court. The defendant/appellant appeals to this Court. We affirm based on failure to file a cost bond.

The trial court granted the wife a divorce on the ground of inappropriate marital conduct, and divided the marital property, awarding the marital home to the wife and a nearby piece of unencumbered business property to the husband. The court also made the husband responsible for 60% of the mortgage obligation on the marital home and allowed the wife to retain her entire 401(k) retirement account. The husband contends on appeal that the division of property and debt was inequitable and that the trial court impermissibly awarded the wife her 401(k) account in the form of alimony in solido. We affirm the division of marital property and marital debt. We also find that there was no alimony award, because the final order in this case, signed by the judge, treats the 401(k) as part of the division of marital property rather than as alimony. However, it appears to us that the trial court made some calculating errors when it ordered the husband to pay specific monthly amounts on the home mortgage. We therefore vacate that portion of the court’s order and remand this case to the trial court so that it may correct those calculations.

The Petitioner, Darrell Lamar Fritts, appeals as of right from the Johnson County Criminal Court’s summary dismissal of his petition for a writ of habeas corpus challenging his sentences for two counts of burglary. Following our review, we affirm the judgment of the habeas corpus court.

In August 2002, the Petitioner, Ortega Wiltz, was convicted by a jury of two counts of facilitation of especially aggravated kidnapping. He later filed a petition for habeas corpus relief in the Johnson County Circuit Court, contending that his convictions were void due to his illegal arrest based upon information from an unreliable informant and due to a violation of his due process rights because he was denied a preliminary hearing. The habeas corpus court summarily dismissed the petition, finding that the Petitioner had failed to state a cognizable claim for relief. After our review of the record, we agree and affirm the order summarily dismissing the petition.

The landlord and owner of a house filed a detainer warrant in general sessions court to regain possession of his house after notifying the tenants they should look for another place to live. In the warrant the landlord asked for possession, rents due, and reimbursement for any damages to the property. The general sessions court awarded the landlord possession only. The tenants filed a petition for writ of certiorari and supersedeas with the circuit court, claiming they had not received sufficient notice as required by statute and should therefore be permitted to remain in the house. The circuit court held a trial de novo on the issue of notice and granted the landlord a directed verdict on this issue. The tenants filed three motions asking the circuit court judge to recuse himself, and the judge denied them. The tenants appealed the court’s award of possession to the landlord and the trial judge’s refusal to recuse himself. Following the tenants’ appeal, the landlord filed a post-trial motion seeking an award of back rent and reimbursement for damages the  tenants had caused the house to suffer. Following a hearing, the trial court awarded the landlord $14,865 in back rent and damages. The tenants filed a second Notice of Appeal and argued their first Notice of Appeal divested the trial court of jurisdiction to hear the landlord’s post-trial motion. We affirm the trial court in all respects. We first determine we do not have jurisdiction to rule on the issue of notice because the tenants have vacated the house and do not wish to return, rendering that issue moot. The trial judge did not abuse its discretion in refusing to recuse himself because the tenants’ motions seeking his recusal were primarily based on the court’s adverse rulings against them. Finally, we determine the trial court retained jurisdiction to hear the landlord’s post-trial motions for back rent and damages because these issues were properly before the trial court and were unadjudicated issues when the tenants filed their first Notice of Appeal.

A Williamson County grand jury indicted the Defendant, Ashlee V. Dobbs, on five counts of fraudulent use of a credit card and one count of theft over $500. A bench trial was conducted, and, at the conclusion of the State’s proof, the Defendant filed a motion to dismiss the charges for failure to establish venue. The trial court dismissed four of the counts for failure to establish venue, found the Defendant not guilty of one count, and dismissed the final count by agreement of the parties. The State appeals, contending that the trial court erred when it dismissed four of the counts for lack of venue. After a thorough review of the record and applicable law, we conclude that the trial court properly dismissed two counts for failure of proof of venue but erred when it  dismissed the remaining two counts for the same reason. As such, we affirm in part and reverse in part the trial court’s judgments, and we remand for further proceedings.

The Defendant, Samuel Alan Ireson, was convicted by a Sullivan County jury of voluntary manslaughter, fabrication of evidence, and employment of a firearm during the commission of a dangerous felony. The trial court sentenced the Defendant as a Range I, standard offender to consecutive terms of five years for the voluntary manslaughter conviction, five years for the fabrication of evidence conviction, and six years for the firearm conviction, resulting in an effective sentence of sixteen years in the Department of Correction. On appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions and several sentencing determinations made by the trial court—the length of his sentences for voluntary manslaughter and fabrication of evidence, the consecutive nature of his fabrication of evidence sentence, and the denial of judicial diversion. Following our review, we affirm the judgments of the trial court.

The plaintiff financial services company filed actions in the General Sessions Court against defendants alleging they had defaulted on promissory notes. The court entered judgments for the plaintiff on both notes, including attorney fees. After making installment payments on the judgments for well over a year, the defendants filed a Rule 60 motion in the same court to set the judgments aside, accompanied by affidavits alleging that their signatures on the notes were forgeries. The court overruled the motion because it was filed more than ten days after the challenged judgments were entered and thus was not timely in accordance with Tenn. Code Ann. § 16-15-727(b). The defendants then appealed to the Circuit Court, which dismissed the appeal on the ground of lack of jurisdiction because of the untimeliness of the defendants’ filing in the court below. We affirm the Circuit Court.

The Defendant, Derrick Sloan Taylor, was convicted by a Davidson County Criminal Court jury of felony murder, second degree murder, and especially aggravated robbery, a Class A felony. See T.C.A. §§ 39-13-202 (Supp. 2007), 39-13-210 (2010), 39-13-403 (2010). The trial court merged the convictions for felony murder and second degree murder and sentenced the Defendant as a Range III, multiple offender to life for felony murder and to forty years’ confinement for especially aggravated robbery, to be served concurrently with each other and consecutively to the Defendant’s sentence in another case. On appeal, he contends that the evidence was insufficient to support his convictions and that the trial court erred by admitting evidence of prior bad acts. We affirm the judgments of the trial court.

In this direct appeal of a judicial disciplinary proceeding, we are asked to review the Court of the Judiciary’s decision that Cocke County General Sessions Court Judge John A. Bell violated various canons of the Tennessee Code of Judicial Conduct, resulting in sanctions that included a ninety-day suspension. The Court of the Judiciary found that Judge Bell violated the Code by taking nine months to decide the complainant’s personal injury action, re-hearing the case without disclosing to a new party that he had previously made findings against the new party as to liability and damages, and contacting through an attorney the self-represented complainant while the complainant’s case was still pending before him in General Sessions Court. We affirm the code violations with respect to the delay and the ex parte communication and affirm the sanctions.

Father appeals the trial court’s order granting Mother’s petition that she be named the primary residential parent of their one child. Father was named the primary residential parent when the parties were divorced, and Mother was granted liberal parenting time with the child. Father filed three separate petitions during the following three years seeking to modify and limit Mother’s time with the child. However, Father was unable to prove any of his allegations against Mother, leading the court to deny each of his petitions. In response to his final petition to modify, Mother filed a counter petition asking to be named the primary residential parent. The trial court granted Mother’s petition, finding that Father’s petitions seeking to limit Mother’s time with the child and his failure to investigate the allegations in his petitions intentionally interfered in the child’s relationship with her mother, constituting a material change in circumstances unanticipated at the time the permanent parenting plan was established. Father contends the trial court was precluded by res judicata and collateral estoppel from finding his earlier petitions were frivolous and filed without adequate investigation, and that the court erred in relying on these findings to change the primary residential parent from Father to Mother. We affirm the trial court’s judgment and grant Mother her attorney’s fees incurred at trial and this appeal. We remand this case to the trial court to determine Mother’s reasonable attorney’s fees.

A Humboldt Law Court jury convicted the defendant, Brandon M. Cartwright, of first degree murder committed in the perpetration of a robbery, see T.C.A. § 39-13-202(a)(2)(2006), and especially aggravated robbery, see id. §39-13-403. On appeal, the defendant argues that the trial court erred by admitting hearsay evidence and that he was denied his right to a jury of his peers because members of his race were underrepresented in the venire due to their systematic exclusion. Discerning no infirmity in the convictions, we affirm the judgments of the trial court.

The Metropolitan Nashville Board of Zoning Appeals refused to grant a special exception permit to allow a Nashville businessman to operate a Historic Home Events business in a residential neighborhood. The Board stated that its decision was based on the businessman’s history of non-compliance with the conditions it had imposed on earlier permit grants and renewals. The businessman filed a petition for writ of certiorari in the Circuit Court of Davidson County. After a hearing, the court found that four of the BZA members had acted out of ulterior motives, i.e.,their displeasure and frustration with the applicant, and it granted the requested permit, subject to a number of restrictions. We hold that the BZA may take into consideration prior activity at the location in the context of the impact of those activities on the public health, safety, and welfare. Because herein the BZA did not relate any specific prior conduct to a public harm and because most of the activities discussed at the hearing had occurred prior to previous permit grants and renewals, we conclude that the denial was arbitrary. Accordingly, we affirm the trial court.

The Defendant, Roger Eugene Daly, was indicted for first degree murder during the perpetration of a theft, first degree premeditated murder, especially aggravated robbery, aggravated arson, and abuse of a corpse. A jury convicted him of first degree murder in the perpetration of a theft, first degree premeditated murder, aggravated robbery, a Class B felony,  setting fire to personal property or land, a Class E felony, and abuse of a corpse, a Class E felony. See Tenn. Code Ann. §§ 39-13-202, -13-402(b), -14-303(b), -17-312(b) (1997). The trial court merged the two murder convictions and sentenced the Defendant to life imprisonment. For his other convictions, the Defendant was sentenced as a Range II, multiple offender to sixteen years for aggravated robbery, eight years for setting fire to personal property, and four years for abuse of a corpse. The trial court ordered that the setting fire to personal property and abuse of a corpse sentences run concurrently with each other but consecutive to the Defendant’s life sentence, for a total effective sentence of life plus eight years. In this direct appeal, the Defendant raises the following issues for our review: (1) The State presented insufficient evidence to support his convictions for first degree murder in perpetration of a theft, first degree premeditated murder, aggravated robbery, setting fire to personal property, and abuse of a corpse; (2) The trial court erred in failing to require the State to elect or specify the object of the theft with regard to the first degree murder in perpetration of a theft count and the aggravated robbery count; (3) The State failed to prove an underlying felony to support the Defendant’s “felony murder” conviction; (4) The trial court erred in failing to grant a mistrial when a detective testified that the Defendant had a criminal history; (5) The trial court erred when it allowed a photograph of the victim’s charred body into evidence; and (6) The trial court erred when it allowed testimony regarding an assault on a witness by the Defendant’s brother. During our review, we discovered that, for count four, the trial court erroneously entered a judgment reflecting the offense of arson, a Class C felony, and the corresponding statute section, rather than the offense of setting fire to personal property or land, a Class E felony. On that count, the trial court sentenced the Defendant within the range for a Class C felony. Thus, on count four, we must remand to the trial court for the entry of a corrected judgment and for resentencing within the range for a Class E felony. In all other respects, we affirm the judgments of the trial court.

The Petitioner, Eddie Williams, Jr., appeals the Criminal Court of Shelby County’s dismissal of his pro se petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the post-conviction court’s order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the post-conviction court.

Following a jury trial, the Petitioner, Charles Nash, was convicted of first degree murder and especially aggravated robbery. This Court affirmed his convictions on direct appeal. See State v. Charles Nash, No. E2008-00951-CCA-R3-CD, 2009 WL 2461178 (Tenn. Crim. App., Knoxville, Aug. 12, 2009), perm. to appeal denied, (Tenn. Mar. 1, 2010). The Petitioner filed a timely petition for post-conviction relief, however, the post-conviction court summarily dismissed it without conducting an evidentiary hearing. In this appeal, the Petitioner contends that he presented colorable claims in his petition and that the post-conviction court erred when it dismissed his petition without an evidentiary hearing. TheState concedes that the trial court erred. We agree and remand to the post-conviction court for proceedings consistent with the Post-Conviction Procedure Act.

Defendant issued a stop work order against plaintiff to cease mining activities on plaintiff's property. Plaintiff brought suit in Chancery Court seeking a declaratory judgment on the issue. A bench trial was held and the Trial Court adopted the doctrine of diminishing assets and that Ready Mix had established a pre-existing and non-conforming use on its property pursuant to Tenn. Code Ann. § 13-7-208 (b)(1). Defendant has appealed and we hold on this record that plaintiff was required to exhaust its administrative remedies prior to filing an action in Chancery Court.