APPELLATE COURT OPINIONS

The petitioner, Rain Thomas Chesher, appeals the Henry County Circuit Court’s dismissal of his petition for post-conviction relief. The state has filed a motion requesting that this court affirm the circuit court’s judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. We conclude that the state’s motion is meritorious. Accordingly, we grant the state’s motion and affirm the judgment

This is a will construction case. The decedent died testate in July 2008. The personal
representative of the decedent’s estate filed this action to construe provisions of the
decedent’s will concerning the control of specifically devised farm property. The chancery
court determined that the decedent intended for the property to remain subject to the control
of her estate pending administration. Because the unambiguous language of the will
pointedly excludes specifically devised real property from the control of the personal
representative, we reverse and remand.

This appeal arises from a divorce action. Husband appeals the trial court’s classification and
division of property, the award of alimony in futuro to Wife, and the award to Wife of a
portion of her attorney’s fees. We affirm.

The trial court awarded summary judgment to Defendant surety in this breach of contract action. We affirm.

The Defendant, Timothy Dewayne Williams, was convicted by a Tipton County Criminal Court jury of possession of a Schedule II controlled substance with intent to deliver, a Class B felony; evading arrest in a motor vehicle, a Class E felony; evading arrest, a Class A misdemeanor; and driving while his license was suspended, a Class B misdemeanor. In this appeal as of right, the Defendant argues that the evidence was insufficient to support his convictions. After reviewing the record, we affirm the judgments of the trial court as modified.

The petitioner, Kenneth L. Anderson, appeals the denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of elbow counsel. After review, we affirm the post-conviction court’s denial of post-conviction relief.

We granted appeal in this case to clarify whether the location of the use of violence or fear is relevant in distinguishing theft from robbery. We hold that the temporal proximity between the taking of property and the use of violence or fear is the sole relevant factor. Applying this analysis to the facts of this case, we conclude that the evidence is insufficient to support the defendant’s conviction for aggravated robbery and therefore reverse the judgment of the Court of Criminal Appeals. The evidence, however, supports a conviction for the lesser included offense of aggravated assault. We therefore vacate the defendant’s conviction for aggravated robbery, modify the conviction to aggravated assault, and remand this case to the trial court to conduct a new sentencing hearing.

Appellant Donald Lockhart was indicted by a Loudon County Grand Jury for driving under the influence in violation of Tennessee Code Annotated section 55-10-401. The trial court denied a motion to suppress evidence derived from the stop of Appellant’s vehicle. Thereafter, Appellant pled guilty to the charge, but under Tennessee Rule of Criminal Procedure 37(b) preserved the following issue for appeal: “Whether the trial judge erred by failing to suppress evidence gathered pursuant to a traffic stop of the [Appellant] that was conducted by the Lenoir City Police Department and which the [Appellant] alleged was conducted in the absence of a valid warrant, probable cause or reasonable suspicion, all in violation of [Appellant’s] constitutional rights to be free of unreasonable searches and seizures?” On appeal, he argues that the citizen informant’s tip, combined with an officer’s determination that Appellant was impaired during a welfare check minutes before the stop, was insufficient to establish reasonable suspicion. Upon review, we affirm.

I concur in the majority’s conclusion that a trial court is free to set any sentence
within the appropriate sentencing range “regardless of the presence or absence of mitigating and enhancement factors.” I write separately, however, to emphasize that the 2005 amendments to the Sentencing Act, when read in conjunction with those provisions not affected by the amendments and the Sentencing Commission Comments, are in and of themselves open to two interpretations: (1) that, although the enhancement and mitigating factors were rendered advisory, a trial court still has no discretion to enhance a defendant’s
sentence without finding applicable one of the enhancement factors enumerated in Code section 40-35-114 and (2) that a trial court is free to choose any sentence within the appropriate range so long as the imposition of the sentence complies with the principles and purposes of the Sentencing Act. The latter was first alluded to by our supreme court in State v. Carter, 254 S.W.3d 355 (2008). For the reasons set forth below, it is my view that latter interpretation is constitutionally required.

The Defendant, Terry Wayne Hawkins, was convicted by a Monroe County jury of aggravated sexual battery and was sentenced to eleven years as a Range I, violent offender. In this appeal as of right, he contends that the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

The Petitioner, Cory Myers, appeals pro se from the Circuit Court 1 for Gibson County’s dismissal of his petition for writ of habeas corpus. The judgment form in this case shows that Myers originally pled guilty to first degree murder for which he received a life sentence. However, in this appeal, Myers argues that the trial court lacked jurisdiction to sentence him because another form, entitled “Plea of Guilty and Waivers of Jury Trial and Appeal” (hereinafter “plea agreement form”), shows that he pled guilty to the offense of “felony homicide.” Based on the plea agreement form, Myers claims his conviction is void because “felony homicide” does not exist under Tennessee law. Upon review, we affirm the judgment dismissing the petition for writ of habeas corpus.

The defendant, Antonio Hill, was convicted by a Shelby County jury of robbery, a Class C felony, and attempted robbery, a Class D felony, as lesser included offenses of the indicted offenses of aggravated robbery and attempted aggravated robbery. The trial court subsequently sentenced the defendant to concurrent sentences of five years and three and one-half years for the respective convictions. On appeal, the defendant raises the single issue of whether his sentence is excessive. Specifically, he contends that the trial court erred in considering the enhancement factor that the defendant possessed or employed a firearm during the commission of the offenses based upon the jury’s rejection of the greater offenses, which included possession of a firearm as elements of the offense. Following review of the record and applicable sentencing law, we affirm the sentences as imposed.

Although concurring in the majority opinion, I express concern about whether
the certified question is dispositive of the case. Specifically, I question whether the stop of the defendant’s vehicle yielded any evidence that was necessary to the State’s proving the defendant guilty of DUI.

Plaintiff was involved in a motor vehicle accident during the course and scope of his employment. Plaintiff brought a tort action against the driver of the other vehicle, and subsequently entered into a settlement with his employer and the workers' compensation carrier. Plaintiff then reached a settlement in the tort case, but before Judgment was entered his employer filed a Petition to Intervene in that case, asserting a subrogation lien on the tort recovery. The Trial Judge refused to allow intervention on the grounds that the Petition to Intervene was not timely filed. On appeal, we reverse and remand.

A Shelby County jury convicted the Defendant, Amos Oyeleye, of robbery, and the trial court sentenced him to five years of incarceration. On appeal, the Defendant contends that the evidence is insufficient to support his conviction and that the trial court erred when it set the length of his sentence. After a thorough review of the record and the applicable law, we affirm the trial court’s judgment.

This is a divorce case following a long-term marriage. Following a trial, the Trial Court classified the property as separate or marital, divided the marital property, awarded Wife $30,000 as her share of farm income that was earned after the parties separated, and awarded Wife alimony in futuro of $800 per month and alimony in solido of $20,000 for partial payment of her attorney fees. Both parties appeal raising various issues. We modify the award of $30,000 in farm income to an award of $2,184. We also modify the award of alimony in futuro to be $400 per month, with this modification to become effective sixty days from the date our judgment is entered. In all other respects, the judgment of the Trial Court is affirmed.

A Shelby County jury convicted the Defendant, Lance Murray, of facilitation of robbery. On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgment.

During the course of an investigation for a robbery and homicide, officers provided Miranda warnings to the defendant, who sought clarification regarding his right to the presence of counsel. Ultimately, the defendant executed a waiver and made a statement to police. Indicted later for first degree murder and other offenses, the defendant filed a motion to suppress his entire statement, arguing that the investigating officers had failed to honor an unequivocal invocation of his right to counsel. The trial court granted the motion, the State received permission to take an interlocutory appeal, and the Court of Criminal Appeals reversed. We accepted the application for review to determine whether the defendant was equivocal in his request for counsel and, if so, whether the police properly limited further questions to the clarification of his right to counsel until the right was either clearly invoked or waived. Because the defendant did not clearly assert his right and the police officers limited the scope of their questions until the defendant chose to execute the waiver of rights form, the judgment of the Court of Criminal Appeals is affirmed.

The Tennessee Claims Commission dismissed this claim for negligent deprivation of a statutory right upon finding that the statute relied upon contained no private right of action. We affirm.

The petitioner, Michael Joseph Grant, appeals the summary dismissal of his petition for writ of error coram nobis. The petitioner claims the trial court should have held an evidentiary hearing and allowed evidence of witness statements that would have impacted the outcome of the proceedings. We conclude the writ of error coram nobis upon this record is not available to the petitioner because he pled guilty. The summary dismissal is affirmed.

This appeal involves subject matter jurisdiction and exhaustion of administrative remedies. The petitioners filed an administrative petition with the defendant commission challenging a newly promulgated rule. Before the commission took action on the administrative petition,
the petitioners filed a complaint for declaratory judgment in the trial court, making essentially the same allegations. The commission filed a motion to dismiss in the trial court, arguing that the trial court did not have subject matter jurisdiction over the complaint, because the petitioners failed to exhaust their administrative remedies before filing the declaratory judgment lawsuit. The trial court granted the motion and dismissed for lack of subject matter jurisdiction. The petitioners now appeal. We reverse, finding that the trial court had subject matter jurisdiction over the petition.

A Madison County grand jury indicted the Defendant, Carlous Leon Clark, for attempted first degree murder, two counts of aggravated assault, aggravated burglary, and assault. The Defendant moved to dismiss the charges, claiming that a trial would not comply with the speedy trial provisions of the United States and Tennessee constitutions. The trial court denied the Defendant’s motion to dismiss, and a Madison County jury convicted the Defendant of attempted first degree murder, assault, two counts of aggravated assault, and aggravated criminal trespass. On appeal, the Defendant contends that the trial court erred when it denied his motion to dismiss based on a violation of his right to a speedy trial. After a thorough review of the record and the applicable law, we affirm the trial court’s judgment.

The petitioner, Joby Lee Teal, appeals the Shelby County Criminal Court’s summary dismissal of his “Motion for Correction of Void Judgment.” The State has filed a motion requesting that this court affirm the trial court’s dismissal pursuant to Rule 20, of the Rules of the Court of Criminal Appeals, arguing that the petitioner’s motion should be treated as a petition for writ of habeas corpus and that he failed to state a cognizable claim because he is not “imprisoned or restrained of liberty.” We agree, grant the State’s motion, and affirm the judgment from the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The petitioner, Curtis Daniel Hart, appeals the denial of his petition for post-conviction relief and contends that he received ineffective assistance of counsel. He was initially convicted of second degree murder, simple possession of marijuana, and simple possession of Alprazolam, a Schedule IV controlled substance, and sentenced to thirty-five years in confinement as a Range II offender. On appeal, the petitioner argues that counsel was ineffective in a variety of areas but failed to prove any of the allegations. Therefore, we affirm the judgment from the post-conviction court.

The defendant, Terry Cary, was convicted by a Madison County jury of promoting the manufacture of methamphetamine, a Class D felony, and sentenced as a career offender to twelve years in the Department of Correction. On appeal, the defendant raises the single issue of sufficiency of the evidence. Following review of the record, we affirm the judgment of conviction.