APPELLATE COURT OPINIONS

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner appeals the trial court’s denial of habeas corpus relief. The Petitioner fails to assert a cognizable ground for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

A McNairy County jury convicted the Petitioner, Eugene Turner, of two counts of premeditated first degree murder and the trial court sentenced the Petitioner to two concurrent life sentences with the possibility of parole. On direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner’s application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court’s judgment.

The defendant appeals his convictions and sentences on two counts of aggravated sexual battery. The defendant was sentenced to two twelve-year terms, to be served consecutively for an effective sentence of twenty-four years. The defendant asserts three issues for review: (1) insufficiency of the evidence to support the convictions; (2) error in the use of enhancement factors in determining the length of the sentences imposed; and (3) error in ordering the sentences served consecutively.

This dispute arose out of a breach of contract claim in which Plaintiff asserted Defendant owed upwards of $20,000.00 for goods and services provided from March 1996 through August 1997. Defendant raised affirmative defenses and filed a counterclaim for fraud, alleging that Plaintiff intentionally submitted false billings. Plaintiff moved for summary judgment. The Chancery Court granted Plaintiff’s motion for summary judgment on the complaint and dismissed Defendant’s counterclaim for fraud. Defendant appealed. We affirm the judgment of the trial court.

Administrative Law Judge vacated Certificate of Need, which had been granted by Tennessee Health Facilities Commission, on grounds of conflict of interest of a Commission member and erroneous information set forth in application for Certificate of Need. Chancery Court affirmed. We affirm, holding that the vote of a Commission member with a conflict of interest is void ab initio. Commission member with conflict of interest had an affirmative duty pursuant to Rules of Tennessee Health Facilities Commission 0720-1-.02(1) to not only disclose the conflict but to recuse himself. Adverse party's failure to raise the conflict was not a waiver for there can be no waiver of the public's interest in having all votes of the Commission take place without members who have a conflict.

In an action to enforce right to easement, the Trial Court enjoined defendant to remove gate across easement and otherwise not interfere with plaintiffs' use. On appeal, we affirm.

The Defendant, Roger L. Hickman, appeals from the trial court's dismissal of his petition for post-conviction relief, in which he alleged that, in 1986, he entered a guilty plea to a misdemeanor without the assistance of counsel and without waiving his right to counsel. We affirm the dismissal of the Defendant's post-conviction petition because it was time-barred. Furthermore, we conclude that the Defendant is not entitled to habeas corpus relief. We affirm the judgment of the trial court.

The defendant, Michael D. Martin, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony. After a sentencing hearing, the trial court sentenced the defendant as a Range II, multiple offender to four years in the Department of Correction (DOC) and ruled that despite the general prohibition on probation contained in T.C.A. § 55-10-616(c) of the Motor Vehicle Habitual Offenders (MVHO) Act, trial courts can consider probation for defendants who violate motor vehicle habitual offender orders. Nevertheless, the trial court denied the defendant’s request for probation. The defendant appeals, claiming that his sentence is excessive and that he should have received full probation. We conclude that the defendant’s sentence should be reduced to three years. We conclude that the Criminal Sentencing Reform Act of 1989 repealed by implication the MVHO Act’s prohibition of probation in T.C.A. § 55-10-616(c). However, we also conclude that the trial court erred in denying any form of alternative sentencing, and we remand the case for the entry of an appropriate sentence.

In Lester Johnson v. State, No. E2001-00019-CCA-R3-PC (Tenn. Crim. App., at Knoxville, July 11, 2002), and State v. Jimmy D. Goode, No. E2000-02829-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Nov. 19, 2001), I authored opinions indicating that the finding of an emergency is the only time a trial court might suspend the sentence of an individual convicted of a violation of Tennessee Code Annotated section 55-10-616. Johnson was a post-conviction case in which the petitioner alleged bias on the part of the trial judge. The holding in Goode was that an actual emergency is not only a defense to prosecution under the Motor Vehicle Habitual Offenders Act, but also a factor which could be considered at sentencing in the event of a conviction. In State v. Ricky Fife, No. 03C01-9401-CR-0036 (Tenn. Crim. App., at Knoxville, June 15, 1995), however, a panel of this court had held that the 1989 Act superseded the terms of Tennessee Code Annotated section 55-10-616(c), thereby providing sentencing alternatives absent an emergency. Our research indicates that other panels of this court, relying upon the holding in Fife, have established a conflicting line of authority. After further review, I am persuaded by the majority that the terms of the 1989 Act, so comprehensive in nature, should apply, thereby affording the trial court with more flexibility in the sentencing of habitual motor vehicle offenders. The facts here demonstrate why it is so important for trial judges to have wide discretionary authority in matters of sentencing.

This appeal involves a claim for unemployment compensation benefits by Lisa Huckabee ("Claimant"). When Claimant was hired by Watkins & Son, Inc. (the "Employer"), the Employer's policy prohibiting fraternization between employees was explained to her. Nevertheless, Claimant began a consensual affair with a coworker. The coworker's employment was terminated when the Employer learned of the affair. It is disputed as to whether Claimant was discharged or quit before she could be discharged. The Board of Review concluded that Claimant was disqualified from receiving benefits regardless of whether she quit or was discharged. The Trial Court reversed after concluding, inter alia, that the issue of whether Claimant was discharged for work related misconduct was not an issue the Board of Review could properly consider because the Employer did not raise that issue at the previous two administrative levels. The Trial Court also concluded that the decision by the Board of Review was not supported by substantial and material evidence. We reverse the judgment of the Trial Court and reinstate the judgment of the Board of Review.

Mickie R. McBee ("Plaintiff") signed a Promissory Note evidencing an indebtedness to J. Lynn Nance ("Defendant") in the amount of $15,000. The Promissory Note ("Note") was secured by a Deed of Trust on Plaintiff's house. After Plaintiff failed to make any payments on the Note, Defendant foreclosed on the house. Plaintiff then filed this lawsuit challenging the adequacy of the consideration supporting the Note. At trial, Defendant testified to various cash loans he made to Plaintiff which he claimed constituted adequate consideration for the Note. Plaintiff claimed these were gifts, not loans. The Trial Court concluded the Note was supported by adequate consideration and dismissed the complaint. Plaintiff appeals. We affirm.

The defendant, Larry K. Bombailey, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony; theft of property valued at $500 or less, a Class A misdemeanor; and public intoxication, a Class C misdemeanor. The defendant agreed to a sentence as a Range I offender of eleven months, twenty-nine days for the theft; thirty days for the public intoxication, to be served concurrently to the theft; and eighteen months for violating a motor vehicle habitual offender order, to be served consecutively to the theft. The parties stipulated that the trial court would determine the manner of service for the defendant's conviction for violating a motor vehicle habitual offender order. After a sentencing hearing, the trial court denied the defendant's request for an alternative sentence for the motor vehicle habitual offender violation. The defendant appeals, claiming that the trial court erred by denying him an alternative sentence. We affirm the trial court's denial of an alternative sentence but remand the case for entry of a corrected judgment for the theft conviction.

Petitioner, Donald Walton, appeals from the trial court's summary dismissal of his petition for writ of habeas corpus. After a review of the record and the briefs, we affirm the judgment of the trial court.

A Montgomery County jury convicted the Defendant, Floyd Perrow, of aggravated burglary, two counts of aggravated rape, and aggravated assault. The trial court merged the two convictions of aggravated rape and sentenced the Defendant to an aggregate thirty-six and a half years in prison. On appeal, the Defendant contends that: (1) insufficient evidence exists in the record to support his convictions; and (2) the trial court imposed an excessive sentence because it should have merged all of the Defendant’s convictions into a single conviction. The State also appeals, contending that the trial court erred by merging the two aggravated rape convictions. After thoroughly reviewing the record, we conclude that sufficient evidence exists to support the Defendant’s convictions and that the trial court did not err by failing to merge all of the convictions into a single conviction. However, we conclude that the trial court erred by merging the two aggravated rape convictions. Accordingly, we reverse this judgment by the trial court, and we reinstate the two aggravated rape convictions. We remand the case to the trial court for re-sentencing on those two convictions.

The Appellant, Ashad R. A. Muhammad Ali, appeals the Lincoln County Circuit Court's summary dismissal of his petition requesting DNA analysis under the Post-Conviction DNA Analysis Act. On appeal, the Appellant raises two issues for our review: (1) whether the trial court properly dismissed the petition and (2) whether the trial judge erred by not sua sponte recusing himself based upon the fact that the trial judge was "part of the prosecutorial team that prosecuted the original conviction against the Appellant." Due to the sparseness of the record with regard to the question of recusal, we remand the case for a determination of this issue.

The petitioner appeals the dismissal of his petition for post-conviction relief as time-barred, arguing that the post-conviction court erred for failing to find that the one-year statute of limitations was tolled due to his mental incompetence, or, in the alternative, for failing to find that his petition was timely because it was filed within one year from the date mandate issued. Following our review, we affirm the dismissal of the petition.

The petitioner, Anton McDonald, appeals the dismissal of his petition for post-conviction relief from a guilty plea to possession of over .5 grams of cocaine with the intent to sell or deliver, arguing that the post-conviction court erred in finding that the petition was time-barred. Following our review, we affirm the dismissal of the petition.

By pre-complaint Petition under Tennessee Rule of Civil Procedure 27, insureds seek to obtain from their insurer copies of previous unsworn oral statements given to an adjuster before they will submit to a statement under oath pursuant to their obligations under the policy. The trial court granted the Petition, and insurer appeals. The judgment of the trial court is reversed, and the case is remanded with instructions to dismiss the Petition.

In this appeal, the ex-husband challenges the trial court's order denying his post-divorce petition to modify alimony and finding him in "technical contempt." We find that the proof is inadequate to establish willful efforts to defeat alimony obligations, that his change of employment was not voluntary and that a substantial and material change of circumstances has occurred, justifying some relief from the alimony obligation. The trial court did not err in holding the ex-husband to be in contempt. We reverse the judgment in part, affirm the judgment in part, and remand the case for further proceedings.

The Defendant, Thomas G. Lampley, Jr., was convicted of aggravated burglary, a Class C felony. After determining the Defendant to be a Range III, persistent offender, the trial court sentenced him to twelve years in the Department of Correction, consecutive to an prior sentence. The Defendant now appeals, alleging that his sentence for the instant crime should be ten years. We affirm the judgment of the trial court.

In this divorce appeal the Husband challenges the distribution of the only significant marital asset, the Husband's retirement benefit. The trial court divided that benefit by ordering the Husband to pay $530.82 of each monthly payment to the Wife. We affirm.

Petitioner, Letivias D. Prince, filed a petition for post-conviction relief, which was subsequently amended. Following an evidentiary hearing, the trial court dismissed Petitioner's petition. On appeal, Petitioner argues the trial court erred in dismissing his petition for post-conviction relief and contends (1) that his counsel failed to develop a reasonable trial strategy or defenses for Petitioner; (2) that his counsel failed to fully investigate or adequately prepare the witnesses for trial; (3) that his counsel failed to allow Petitioner to testify at trial; and (4) that his counsel failed to ask for a continuance to investigate certain exculpatory evidence presented by the State at the time of trial. After a thorough review of the record, we affirm the judgment of the post-conviction court.

The Defendant, Craig Quevedo, pled guilty to thirty counts of rape and twenty-four counts of incest and pled nolo contendere to two counts of aggravated sexual battery, four counts of rape of a child, nine counts of rape and one count of aggravated rape in the Circuit Court for Montgomery County. After a sentencing hearing, the trial court imposed an aggregate sentence of ninety-two years in prison. On appeal, the Defendant contends that his sentence was excessive and contrary to public policy. Finding no reversible error, we affirm the trial court's judgments.

The defendant was convicted of one count of burglary. He contends on appeal that 1) there is insufficient evidence to sustain the conviction, 2) no proper foundation was laid for opinion testimony by certain witnesses, 3) the warrantless search of the vehicle was improper, and 4) the trial court erred in sentencing the defendant. The judgment of the trial court is affirmed.

The petitioner, Jerry Lynn Wright, appeals the dismissal of his petition for post-conviction relief, alleging that the post-conviction court erred in finding that his guilty plea was knowing and voluntary and that he received effective assistance of counsel. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.