APPELLATE COURT OPINIONS

The petitioner, Michael Davis, appeals the denial of his petition for post-conviction relief from his especially aggravated robbery conviction, arguing that the post-conviction court erred in finding that he received effective assistance of counsel. Because we conclude that trial counsel was deficient for failing to request a jury instruction on facilitation as a lesser- included offense of especially aggravated robbery, and that there is a reasonable probability that the outcome of the petitioner's trial would have been different had counsel done so, we reverse the judgment of the post-conviction court and remand for the granting of post-conviction relief.

Husband seeks to set aside a divorce decree and permanent parenting plan entered by default on the ground that the provisions of such differed significantly from the relief sought in Wife's complaint for divorce and proposed parenting plan. We reverse the trial court's decision insofar as it failed to grant Husband the relief sought.

A Davidson County jury convicted the Petitioner, Wesley Earl Brown, of two counts of rape of a child and three counts of aggravated sexual battery. The trial court sentenced the Petitioner to twenty-five years for each rape conviction, to be served consecutively, and ten years for each sexual battery conviction, to be served concurrently but consecutively to the rape convictions, for a total effective sentence of sixty years. The Petitioner filed a petition for post-conviction relief claiming: (1) he received the ineffective assistance of counsel; (2) the trial court improperly instructed the jury; and (3) the trial court's sentence violated the Petitioner's constitutional right to a jury. The post-conviction court denied relief after a hearing, and the Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

In large part, I agree with the majority in this case. However, I must respectfully dissent from my colleagues’ conclusion reversing the judgment of the trial court based on its failure to exclude Tate’s and Blades’ testimony regarding their acquittals.

The Defendant, John Edward Winn, Jr., was placed on probation for eight years after pleading guilty to aggravated burglary and aggravated assault. Following a revocation hearing, the trial court revoked the Defendant's probation and ordered him to serve the remainder of his eight-year sentence in the Department of Correction. On appeal, the Defendant contests the trial court's evidentiary rulings during the revocation hearing and the sufficiency of the evidence supporting the revocation. Upon our review of the record and the parties' briefs, we reverse the judgment of the trial court and remand for a new hearing.

The Petitioner, Garner Dwight Padgett, appeals the Putnam County Criminal Court's denial of post-conviction relief from his conviction for first degree murder. The Petitioner contends (1) that the trial court violated the Petitioner's federal and state constitutional rights at the trial by asking members of the venire whether they could be fair to both sides, thus lowering the State's burden of proof, and (2) that he received the ineffective assistance of counsel at the trial for failing to object to the trial court's asking whether the members could be fair. We affirm the judgment of the trial court.

The Defendant, Robert Thomas Reed, was convicted of driving under the influence (DUI) (first offense), a Class A misdemeanor, and driving after having been declared a motor vehicle habitual offender (MVHO), a Class E felony. Following a sentencing hearing, the Defendant was sentenced as a Range I offender to two years with service of six months in the county jail and the balance to be served on probation for the MVHO conviction and a concurrent sentence of eleven months, twenty-nine days suspended to six months for the DUI conviction. On appeal, the Defendant challenges the sufficiency of the evidence that formed the basis of both convictions. Following our review, we affirm the judgments of the trial court.

The defendant, Alfred Turner, was found guilty by a jury of the lesser included offenses of facilitation of felony murder, a Class A felony, and facilitation of second degree murder. After merging the convictions, the trial court sentenced the defendant to twenty-five years of incarceration as a Range I, standard offender. On appeal, he argues that: insufficient evidence exists to support his conviction; a proper chain of custody for the introduction of DNA evidence was not established; the trial court erred in allowing into evidence that two other individuals had been acquitted of this murder; and the trial court erred in both jury instructions and sentencing. After careful review, we conclude that even though sufficient evidence existed to support the defendant's convictions, the defendant's sentence ran afoul of Blakely and the prior acquittals of two other individuals deprived the defendant of a fair trial. Therefore, the error requires a remand for a new trial.

Appellant Jeff D. Arp pled guilty to two counts of incest stemming from two separate incidents involving his mentally disabled teenage daughter. One incident took place before the effective date of the 2005 amendments to the Sentencing Reform Act of 1989, and one incident took place after the effective date. Appellant chose to be sentenced under the prior law for the first offense. The trial court imposed a sentence of five years for each conviction, to be served consecutively, and denied alternative sentencing. Appellant claims that the trial court erred in its application of the enhancement factors and in denying alternative sentencing. We affirm.

Appellant Elizabeth Gay Tindell was arrested for driving under the influence (DUI) when, after a night out with friends, she stopped on the side of the road to call for a ride home. A sheriff's deputy saw her pull over and, concerned that she might be in distress, approached her car. During his stop, the deputy concluded Appellant was intoxicated, and a subsequent breathalyzer test revealed her blood alcohol content was .20 percent. A Hamilton County Grand Jury indicted her for DUI and DUI per se, and she was convicted after a bench trial. She appeals, contending that the trial court erred in: (1) denying her motion to suppress evidence from the deputy's stop; (2) admitting evidence of the breathalyzer test results; (3) denying, in an issue of first impression, her motion to compel discovery of the source code for the breathalyzer device used to test her blood alcohol content; (4) finding sufficient evidence to convict her of DUI per se; and (5) finding sufficient evidence to justify the court's conclusion that Appellant was subject to the enhanced seven-day incarceration minimum. We affirm.

I agree with the majority that, given the present state of the record in this case, summary judgment is not appropriate. As the record now stands, “[w]hether the plaintiff[s] exercised reasonable care and diligence in discovering the injury or wrong is . . . a fact question for the [trier of fact] to determine.” Wyatt v. A-Best Company, 910 S.W.2d 851, 854 (Tenn. 1995). In other words, there is a genuine issue as to this material fact. At trial, the finder of fact must determine if the plaintiffs filed suit within one year of the point in time when they first knew, or, in the exercise of reasonable diligence, should 1 have known that an actionable injury had occurred. Id. at 856-57.

Plaintiffs' home flooded and incurred severe water and mold damage when the hot water tank burst. Plaintiffs began to experience varying illnesses after moving back into the home. Despite Defendants' assurances that the home was safe, three years after moving back into the home, Plaintiffs discovered that their home was contaminated with toxic mold. Thereafter, Plaintiffs filed suit against Defendants alleging various claims. Defendants moved to dismiss the Complaint asserting that the statute of limitations barred the claims. After a hearing, the trial court agreed and dismissed Plaintiffs' Complaint. Plaintiffs then filed a motion to alter or amend the judgment; the trial court denied the motion. Plaintiffs appeal. We reverse.

The Defendant-Appellant, Devon O'Neal Wiggins, was convicted by a Dyer County jury of sale of cocaine over 0.5 grams, a Class B felony; possession of cocaine under 0.5 grams with intent to sell or deliver, a Class C felony; possession of marijuana under 0.5 ounce, a Class A misdemeanor; and evading arrest, a Class E felony. He was sentenced as a Range III, persistent offender, to thirty years for the sale of cocaine over 0.5 grams, fifteen years for the possession of cocaine under 0.5 grams, eleven months and twenty-nine days for the possession of marijuana, and six years for the evading arrest conviction. He was ordered to serve the above sentences concurrently to each other, but consecutively to another unrelated case. On appeal, Wiggins argues: (1) the evidence was insufficient to support his convictions for sale and possession of cocaine; (2) the testimony of a State's expert witness concerning an exemplar graph violated his right of confrontation; (3) the trial court erred by not charging the jury on the offense of sale of a counterfeit controlled substance; (4) Wiggins' prosecution for possession of marijuana was not commenced within the one-year statute of limitations; (5) the trial court improperly commented upon the evidence; (6) the State committed prosecutorial misconduct in its closing argument; (7) the sentence imposed by the trial court for sale of cocaine was excessive; and (8) cumulative error necessitates reversal of Wiggins' convictions. Following our review, we affirm the judgments of the trial court.

The defendant, Danny Lee Greene, was convicted by a jury of second degree murder and sentenced to twenty-three years as a violent offender. On appeal, he contends that the trial court improperly denied him a jury instruction concerning voluntary intoxication. After careful review, we conclude no error exists and affirm the judgment from the trial court.

Petitioner, Ivan Moreno, a/k/a Fernando Fileto a/k/a/ Roberto Lepe-Cervantes, pled guilty to felony murder, aggravated rape, and especially aggravated robbery. Petitioner received an effective sentence of life in prison without the possibility of parole. Petitioner then filed a pro se petition for post-conviction relief claiming ineffective assistance of counsel and an involuntary guilty plea. After a hearing, the post-conviction court denied relief. Petitioner seeks a review of the post-conviction court's decision. Because Petitioner has failed to prove that his guilty plea was involuntary or that he received ineffective assistance of counsel, we affirm the judgment of the post-conviction court.

The Department of Children's Services petitioned the Court to terminate the parental rights of both parents to the minor children. Following trial, the trial judge ruled that grounds to terminate the parental rights by clear and convincing evidence existed, as well as clear and convincing evidence that it was in the children's best interest to terminate the parental rights of the parents. The parents have appealed and we affirm the Judgment of the trial court.

We granted permission to appeal in this case to address the standard of care that applies to a physician assistant in a medical malpractice case. The plaintiff sued for injuries she allegedly suffered as a result of physician assistant Michael Maddox's failure to diagnose her condition accurately. The plaintiff did not sue Maddox, but sued the clinic which he owned and in which he practiced and Dr. Austin Adams, Maddox's supervising physician. The defendants filed a joint motion for summary judgment, supported by their testimony that (1) Maddox did not violate the standard of care applicable to physician assistants and (2) Dr. Adams did not violate the standard of care applicable to physicians. The plaintiff responded with her cardiologist's testimony that Maddox violated the standard of care applicable to primary care physicians. The cardiologist testified that he was not familiar with physician assistants or their supervision. The trial court granted the defendants' motion for summary judgment on the basis that the plaintiff had failed to establish that Maddox violated the professional standard of care applicable to him. The Court of Appeals reversed the trial court, holding that the standard of care applicable to physician assistants is the same as that applicable to physicians. We reverse the Court of Appeals and hold that the standard of care applicable to physician assistants is distinct from that applicable to physicians. The trial court's summary judgment in favor of the defendants is reinstated, and the case is dismissed.

The defendant, Robin Lynn Cooper, was convicted of attempted second degree murder, a Class B felony; rape, a Class B felony; aggravated rape, a Class A felony; especially aggravated kidnapping, a Class A felony; and three counts of aggravated kidnapping, a Class B felony. The convictions for the Class B felony kidnappings were merged into one count. The defendant was sentenced to life without parole as a repeat violent offender for the rape, aggravated rape, especially aggravated kidnapping, and three convictions of aggravated kidnapping and to a concurrent sentence of twelve years at thirty percent for attempted second degree murder. On appeal, he argues that: the evidence was insufficient to support his convictions; the trial court erred in admitting evidence; the trial court abused its discretion when it failed to grant a continuance; and the presence of his parole officer's folder on the witness stand violated a court order that the State could not mention that he was on parole. After careful review, we affirm the judgments from the trial court.

Petitioner, Courtney Means, appeals the dismissal of his petition for post-conviction relief in which he alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that (1) the search of his car and seizure of a gun was unconstitutional; (2) counsel failed to file a motion to suppress the victim's identification; (3) counsel failed to file a motion to suppress his statement to police; and (4) the introduction of a gun into evidence with a different serial number than the gun that was found in his vehicle violated his due process rights. 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 we accordingly affirm the judgment of the post-conviction court.

An Anderson County jury convicted the defendant, Jerry Orlando Weaver, of two counts of facilitation of possession of less than one-half gram of cocaine for sale or delivery, Class D felonies. The trial court sentenced the defendant as a career offender to twelve years for each count, to be served consecutively in the Tennessee Department of Correction. On appeal, the defendant argues that the trial court erred in sentencing him as a career offender and in imposing consecutive sentences. Following our review of the record, the parties' briefs, and the applicable law, we conclude that the defendant failed to timely file his notice of appeal and that his claims do not warrant consideration in the "interest of justice." Therefore, we dismiss his appeal.

The Petitioner, Craig E. Shears, filed a petition for post-conviction relief attacking his conviction of first degree murder on the basis of ineffective assistance of trial counsel. Following an evidentiary hearing, the post-conviction court denied relief based upon its finding that the Petitioner had failed to prove his allegations by clear and convincing evidence. In this appeal as of right, the Petitioner contends that trial counsel was ineffective in failing to effectively argue a motion to suppress his statement and in preparing for trial. The Petitioner also contends that co-counsel was ineffective in failing to request a continuance when co-counsel was hired to assist trial counsel. Following our review, we affirm the judgment of the post-conviction court.

The petitioner, Marvin Anthony Matthews, appeals the lower court's denial of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the lower court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the state's motion is meritorious. Accordingly, we grant the state's motion and affirm the judgment of the lower court.

The Defendant, Craig O. Majors, was convicted by a Montgomery County jury of especially aggravated kidnapping, a Class A felony, attempted aggravated robbery, a Class C felony, and aggravated burglary, a Class C felony. The trial court sentenced the Defendant to concurrent sentences of twenty years as a Range I offender for the especially aggravated kidnapping conviction and to six years each as a Range II offender for the attempted aggravated robbery and aggravated burglary convictions, for a total effective sentence of twenty years. In this appeal as of right, the Defendant contends that (1) the State's exercise of peremptory challenges to excuse African-Americans from the jury pool resulted in a systematic exclusion of African-Americans from the jury, (2) his convictions for especially aggravated kidnapping and attempted aggravated robbery violate due process, (3) there is insufficient evidence of his identity as the perpetrator, and (4) the trial court imposed an excessive sentence. Following our review, we affirm the judgments of the trial court.

The Defendant, Mickey Earl Brown, appeals his conviction upon a guilty plea in the Davidson County Criminal Court for aggravated assault, a Class C felony. The trial court sentenced the Defendant as a Range III, persistent offender to eleven years in the Department of Correction, to be served consecutively to a prior six-year sentence. On appeal, the Defendant contends that his sentence is excessive and that the trial court erred in imposing consecutive sentencing and in denying alternative sentencing. After review, we affirm the judgment of the trial court.

The Montgomery Count Grand Jury indicted Appellant for aggravated robbery and possession of .5 grams or more of cocaine. After a bench trial, the trial court found Appellant guilty as charged. Appellant was sentenced to two, concurrent twelve-year sentences to be served at 35% as a Range II, multiple offender. On appeal, Appellant argues that the evidence was insufficient to support his conviction for aggravated robbery. After a thorough review of the record, we conclude that the evidence was sufficient. Therefore, we affirm the judgment of the trial court.