APPELLATE COURT OPINIONS

The petitioner, Montea Wilson, appeals from the Criminal Court of Shelby County's denial in part of his petition for post-conviction relief and simultaneous order of a delayed appeal. After a hearing, the post-conviction court determined that appellate counsel was ineffective in failing to "protect[] the petitioner's right to litigate the trial court's failure to properly instruct the jury on [second degree murder as a lesser included offense of felony murder] by raising that point in the motion for new trial" and granted a delayed appeal. The postconviction court further determined that trial counsel were effective in their representation of petitioner and, at the time of the petitioner's trial, had no obligation to request second degree murder as a lesser included offense to felony murder. In this appeal, the Petitioner argues that the post-conviction court erred by not setting aside his conviction for felony murder and granting a new trial because (1) trial counsel was ineffective for failing to request an instruction on second degree murder and for failing to allege in the motion for new trial that the trial court erred by not instructing the jury on second degree murder as a lesser included offense; and (2) appellate counsel was ineffective for failing to argue on direct appeal that the trial court's failure to instruct the jury on second degree murder as a lesser included offense constituted plain error. For the reasons set forth within this opinion, we reverse the post-conviction court's determination that trial counsel provided effective assistance of counsel, vacate the petitioner's conviction, and remand for a new trial. In regard to the petitioner's delayed appeal, our decision pertaining to trial counsel's performance renders it moot.

A young woman was thrown from a horse at a camp operated by the YMCA of Middle Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two experienced riders ten days earlier. She filed a suit for negligence against the YMCA and the camp, alleging that their employees and volunteers knew the horse to be dangerous, but that they nonetheless failed to ascertain whether she was sufficiently experienced to handle such an animal. The defendants filed a motion for summary judgment, claiming that they were immune from liability under the provisions of the Equine Activities Act, Tenn. Code Ann. _ 44-20-101 et seq. The trial court granted the motion. We reverse.

This is a divorce action in which Husband appeals the valuation and division of marital property, and the trial court's awards of alimony, discretionary costs, and attorneys' fees to Wife. The trial court awarded 54 percent of the marital property to Wife and 46 percent to Husband, and awarded Wife alimony in futuro of $6,400 per month until July 2013, at which time the alimony payments will be reduced to $4,400 per month until either party's death or Wife's remarriage. The trial court also awarded Wife discretionary costs and attorneys' fees. We have modified the trial court's valuation of certain items of marital property, which caused a modest decrease in the value of marital property awarded to Husband; however, we affirm the trial court's division of the marital property because our modification of the value of certain property is relatively modest. We affirm the trial court's award of alimony to Wife and the award of attorneys' fees; however, we reverse the award of discretionary costs and remand for a new determination of the costs that may be awarded under Tenn. R. Civ. P. 54.04(2). We deny both parties' requests for the costs of their attorneys' fees incurred on this appeal.

The defendant, Curtis Wix, appeals the trial court's revocation of his probation and reinstatement of his original sentence, arguing that a sentence of split confinement followed by a return to supervised probation or community corrections would have been more appropriate under the circumstances of his case. Following our review, we affirm the order of the trial court revoking the defendant's probation and reinstating his original sentence.

The appellant, Robert Cooper, pled guilty to one count of possession of more than 300 grams of cocaine with the intent to sell and one count of possession of more than 300 grams of cocaine with the intent to deliver. The trial court imposed a total effective sentence of eighteen years in the Tennessee Department of Correction. As a condition of his pleas, the appellant reserved the following certified question of law: Whether the stop of the [appellant] for a minor "cite and release" traffic violation which provided for a fine only, the detention of the [appellant], the placement of the [appellant] in the secured area of the officer's patrol car, the use of a drug dog "run" around the [appellant's] vehicle, and the subsequent search of the [appellant's] vehicle violated the rights of the [appellant] under the federal and state constitutions and, therefore, all evidence resulting from the seizure and search should be suppressed. Upon review, we affirm the judgments of the trial court.

Appellant, Christopher Jarrod Alexander, was convicted by a Davidson County Jury of robbery. As a result, the trial court sentenced Appellant as a Range II, multiple offender, to a sentence of ten years. After the denial of a motion for new trial, Appellant filed an untimely notice of appeal. The timely filing of the notice of appeal was waived. On appeal, the following issues are presented for our review: (1) whether the evidence was sufficient to convict Appellant of robbery; (2) whether Appellant's sentence is excessive; and (3) whether the trial court erred by refusing to grant an alternative sentence. After a review of the record, we conclude that the evidence supports the conviction and that the trial court properly sentenced Appellant. Accordingly, the judgment of the trial court is affirmed.

Appellant, Rodney E. Howard, was indicted by the Davidson County Grand Jury for first degree murder. After a jury trial, Appellant was convicted and sentenced to life in prison. After the denial of a motion for new trial, this appeal ensued. Appellant seeks resolution of the following issues on appeal: (1) whether the evidence was sufficient to convict Appellant of first degree murder; and (2) whether the trial court erred by refusing to admit the transcript of the preliminary hearing testimony of a defense witness. After a review of the record, we determine that the evidence was sufficient to convict Appellant of first degree murder. Additionally, we determine Appellant waived the issue regarding the admission of the transcript for failure to move for the introduction of the transcript under the rule of completeness. Moreover, any error with respect tot he transcript was harmless. Accordingly, the judgment of the trial court is affirmed.

The Appellant, Robert M. Linder, filed a motion in the Blount County Circuit Court seeking a reduction in his sentence. The trial court denied the motion. The Appellant filed an appeal contesting the trial court's ruling. In response, the State filed a motion requesting that this court affirm the trial court's ruling pursuant to Rule 20, Rules of the Court of Criminal Appeals. Upon review of the record and the parties' briefs, we conclude that the motion was properly dismissed. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Appellant, Frank Edward Nixon, Jr., was indicted by the Davidson County Grand Jury for attempted first degree murder. Pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997); he pled guilty to attempted voluntary manslaughter, a Class D felony, in exchange for a negotiated, out-of-range sentence of eight years as a Range I, standard offender,. The trial court held a sentencing hearing to determine the manner of service of the sentence. After the hearing, the trial court denied alternative sentencing, finding that confinement was necessary: (1) to avoid depreciating the seriousness of the offense; (2) to protect society from Appellant's conduct; and (3) because measures less restrictive than confinement had been unsuccessfully applied to Appellant. Appellant filed a timely notice of appeal. On appeal, Appellant contends that the trial court improperly denied alternative sentencing. After a thorough review, we determine that the trial court properly denied alternative sentencing. Accordingly, the judgment of the trial court is affirmed. However, the matter is remanded to the trial court for entry of a corrected judgment to reflect that Appellant pled guilty to attempted voluntary manslaughter, a Class D felony.

I concur in the results reached in the majority opinion. However, I would affirm the trial court because of the defendant’s failure to include the trial transcript in the record and the attendant presumption that the trial court’s determinations were correct. See State v. Oody, 823 S.W.2d 554 (Tenn. Crim. App. 1991) (holding trial court’s ruling presumed correct in the absence of an adequate record on appeal). The 1989 Sentencing Act, as amended, requires a sentencing court to consider evidence received at the trial. T.C.A. § 40- 35-210(b)(1). Absent the trial transcript, it is impossible for us to do a de novo review of the matters relevant to sentencing.ts of the trial court.

The petitioner, Terrance Forrest, appeals the denial of his petition for post-conviction relief wherein he challenged his 2008 guilty-pleaded convictions of three counts of aggravated robbery, three counts of aggravated kidnapping, and aggravated burglary. In this appeal, he contends that he was denied the effective assistance of counsel and that his guilty pleas were not knowingly, voluntarily, and intelligently entered. Because the petitioner has failed to establish his claims by clear and convincing evidence, we affirm.

The Defendant-Appellant, Paul Richardson, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, aggravated burglary, a Class C felony, aggravated assault, a Class C felony, and unlawful possession of a handgun by a convicted felon, a Class E felony. He was sentenced as a persistent offender to twenty-five years for the aggravated robbery conviction, ten years for the aggravated burglary conviction, and fourteen years for the aggravated assault conviction. He was also sentenced as a career offender to six years for the unlawful possession of a handgun by a convicted felon conviction. The court ordered the sentences for the aggravated robbery and aggravated assault convictions to be served consecutively and the remaining sentences to be served concurrently, for an effective sentence of thirty-nine years. In addition, all of the sentences in this case were ordered to be served consecutively to a prior federal sentence for unlawful possession of a handgun by a felon. On appeal, Richardson argues that (1) the trial court erred in charging the jury on aggravated assault by intentionally or knowingly causing another to reasonably fear imminent bodily injury when the indictment charged him with aggravated assault by knowingly causing bodily injury to another, and (2) the evidence was insufficient to support his convictions. Upon review, we affirm the judgments for aggravated robbery, aggravated burglary, and unlawful possession of a handgun by a convicted felon, but we reverse and vacate the judgment for aggravated assault and remand this matter for the purpose of allowing the trial court to restructure the manner of service of the remaining sentences to include consecutive sentences, if the court deems it to be appropriate.

The defendant, Joshua Lee Arp, was convicted by a Sevier County Circuit Court jury of attempted aggravated robbery, a Class C felony; attempted robbery, a Class D felony; and public intoxication, a Class C misdemeanor. He was sentenced as a Range III offender to fifteen years on the attempted aggravated robbery conviction and twelve years on the attempted robbery conviction, to be served concurrently. On appeal, he challenges the sentences imposed by the trial court. After review, we affirm the judgments of the trial court.

The petitioner, Larry Paul Koffman, appeals from the Robertson County Circuit Court's denial of his petition for post-conviction relief. After reviewing his issues, we hold that his first issue has been previously determined and that all other issues are waived, and we affirm the order of the circuit court.

Petitioner, Charles L. Rochelle, was indicted by the Davidson County Grand Jury for aggravated robbery, aggravated assault, evading arrest while operating a motor vehicle, reckless endangerment, and possession of marijuana. Petitioner pled guilty to evading arrest and was convicted of aggravated robbery and aggravated assault after a jury trial. The remaining charges of reckless endangerment and possession of marijuana were dismissed. As a result of the convictions and guilty plea, Petitioner was sentenced to twelve years for aggravated robbery, ten years for aggravated assault, and eight years for evading arrest. The sentences were ordered to be served consecutively, for a total effective sentence of thirty years. The convictions were affirmed on appeal. State v. Charles L. Rochelle, No. M2007- 00367-CCA-R3-CD, 2008 WL 762488 (Tenn. Crim. App., at Nashville, Mar. 24, 2008). Petitioner then sought post-conviction relief on the basis of ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. On appeal, Petitioner argues that the post-conviction court improperly dismissed the petition for post-conviction relief. After a review of the record, we determine that Petitioner has failed to show that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

In the apt words of the trial court, this case is a "complex business divorce case." The "divorced" and now adverse entities are Tennessee Rand, Inc. ("Rand"), and Automation Industrial Group, LLC ("Automation"), formerly Tennessee Rand Automation, LLC. Rand builds automated robotic equipment such as that used in the automobile industry. Automation was formed by the principals of Rand and some skilled collaborators for the purpose of doing the electrical and computer aspects of Rand's work. The entities fell out of favor with each other when the principals in Rand _ Randy Nunley and Richard Roach_ each a 50% shareholder in Rand, began to have conflicts. Nunley ended up as the sole owner of Rand and Roach acquired Nunley's interest in Automation. Rand initiated this litigation (1) to enjoin Automation from using the name, Tennessee Rand Automation, LLC," (2) to recover the value of assets that Rand had transferred to Automation, and (3) to recover payments of rent and taxes that Rand had made on buildings occupied by Automation. Rand also named as defendants numerous principals and officers of Automation, including Roach. Automation filed a counterclaim seeking an award against Rand for some $6,000,000 in unpaid labor and expenses. In the bench trial that followed, the counterclaim accounted for 20-plus days of the 25-day trial. By the time the trial court announced its decision in a written memorandum opinion, the only parties remaining in the case were Rand and Automation, Roach having previously been dismissed by Rand with prejudice. The trial court found that the names of the entities were confusingly similar and ordered Automation to change its name. This was accomplished and is not an issue on this appeal. The trial court found that Automation was unjustly enriched by Rand's contribution of assets to Automation in the amount of $500,000. Also, the trial court found that Automation had been unjustly enriched in the amount of $162,818.80 by Rand's payment of rent and taxes on buildings used by Automation. Despite the prior dismissal of Roach as a defendant, the trial court held Roach liable to Rand for the rent and tax payments made out of Rand's account. On Automation's counterclaim, the trial court initially awarded it $2,270,759.22 plus prejudgment interest. Both parties filed a motion to alter or amend. The trial court determined that Automation was guilty of fraud in the pursuit of its counterclaim and set aside that part of the judgment with the result that Automation recovered nothing on its counterclaim. Automation and Roach have appealed raising issues as to the counterclaim, the unjust enrichment award against Automation based upon the assets it received from Rand, and the unjust enrichment award against Automation and Roach based on the rent and tax payments. We affirm in part, reverse in part, and remand for further proceedings.

The petitioner, Raymond Ross, appeals the denial of his petition for post-conviction relief wherein he challenged his 2008 Henderson County Circuit Court convictions of reckless endangerment, aggravated assault, carjacking, and theft of property valued at more than $1,000 but less than $10,000. In this appeal, he claims that the trial court erred by imposing consecutive sentences based "on factors considered by the trial court which were not found by a jury." Because the interests of justice do not excuse the untimely filing of the notice of appeal in this case, the appeal is dismissed.

David A. Lufkin, Sr. ("Lufkin") sued attorney Christopher W. Conner ("Conner") for legal malpractice in January of 2009. Conner filed a motion for summary judgment. After a hearing, the trial court entered an order finding and holding, inter alia, that Lufkin knew or reasonably should have known of the existence of the facts forming this cause of action by September of 2007, and that Lufkin's complaint filed in January of 2009 was barred by the applicable statute of limitations. Lufkin appeals to this Court. We affirm.

The defendant, Orlando Daniel Garcia, was convicted by a Tipton County jury of facilitation of first degree murder, a Class A felony, and possession of a Schedule VI controlled substance with intent to deliver, a Class E felony, and was sentenced to concurrent sentences of nineteen years and eighteen months for the respective convictions. On appeal, the defendant has raised three issues for our review: (1) whether the evidence was sufficient to support the conviction for facilitation of first degree murder; (2) whether the trial court erred in admitting portions of a video tape of the crime into evidence; and (3) whether the trial court erred in admitting evidence that the defendant purchased and wore a shirt with a Superman logo shortly after the incident. Following review of the record, we affirm the judgments of convictions.

The divorcing parents of two minor children entered into a parenting plan that named the mother as the primary residential parent of the children, but divided parenting time equally between the parties. Less than a year after their divorce became final, the mother moved from Murfreesboro to Franklin, and the parents filed competing petitions to modify the parenting plan. The trial court conducted two hearings and ultimately adopted a new parenting plan which provided that the mother would remain the primary residential parent and that the father would exercise only standard visitation. The father appealed. We affirm the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel. An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his right knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee. The employer denied liability and sought to introduce at trial a Medical Impairment Registry (“MIR”) report prepared in accordance with Tenn. Code Ann. § 50-6-204(d)(5) (Supp. 2009). The trial court sustained the employee’s objection to the introduction of the MIR report. Following a bench trial, the trial court determined that the 2006 injury to the employee’s left knee was compensable and awarded the employee 27% permanent partial impairment to each leg. On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee’s right knee was a new, compensable injury, and by basing its award on the impairment rating of the employee’s physician. We affirm the judgment.

Darlene Manis Brown, a Tennessee resident, filed a petition in the trial court seeking a protective order against her former boyfriend, Allan Craig Vaughn, a resident of the state of Georgia. Based upon her petition, the trial court issued an ex parte order of protection. Later, following an evidentiary hearing, the protective order was extended for one year. Vaughn appeals. He challenges the sufficiency of the evidence supporting the order of protection and claims the trial court lacked jurisdiction of this dispute. We affirm.