APPELLATE COURT OPINIONS

The Defendant, Anthony Jared Ross, pled guilty to one count of carjacking, and after a sentencing hearing, the trial court sentenced him to serve a term of nine years and to pay restitution. On appeal, the Defendant argues that the trial court erred in imposing a sentence without having or considering the results of a validated risk and needs assessment as required by Tennessee Code Annotated section 40-35-210(b). Our review reveals that the General Assembly has mandated that a sentence must be based, in part, upon the risk and needs assessment. Because this required sentencing information was never prepared, and consequently not considered by the court and the parties, we respectfully remand this case for resentencing. We also remand the case for entry of a judgment reflecting the appropriate disposition of other charges.

This appeal involves the termination of parental rights of a mother.  The juvenile court found by clear and convincing evidence that five grounds for termination were proven and that termination was in the best interest of the child.  The mother appeals.  On appeal, DCS maintains that four grounds for termination were sufficiently proven against the mother.  We vacate one ground due to insufficient findings by the trial court.  We conclude that the three other remaining grounds for termination were sufficiently proven, but due to insufficient findings in the termination order, we vacate the court’s determination that termination of the mother’s parental rights was in the best interest of the child and remand for the court to consider all of the relevant best interest factors and detail its findings.  Accordingly, we affirm in part, reverse in part, vacate in part, and remand for further proceedings.

The Defendant, Mykhah Calvin Simon, appeals his convictions for possession of one-half gram or more of methamphetamine with intent to sell and deliver, possession of less than one-half gram of fentanyl with intent to sell and deliver, and driving on a suspended license, second offense. On appeal, the Defendant argues that (1) the evidence was insufficient to sustain his convictions and (2) his sentence was excessive. Following our review, we affirm the judgments of the trial court.

Defendant, Rickey Na’Tarius Porter, appeals the consecutive six-year sentences he
received after pleading guilty to one count of aggravated burglary, two counts of
aggravated assault, and one count of employment of a firearm during the commission of a
dangerous felony. Because the trial court improperly sentenced Defendant to the maximum
sentence in the range on each offense as an especially mitigated offender, we reverse the
judgments of the trial court and remand for resentencing.

The Petitioners seek accelerated interlocutory review of an order denying their motion to
recuse. However, because the Petitioners’ filings fail to comply with Tennessee Supreme
Court Rule 10B, we dismiss the appeal.

The plaintiff, a founding member of a law firm, filed this action against other members. The trial court found that the defendant members violated their duty of good faith and fair dealing, breached their contract with the plaintiff, violated their fiduciary duty toward the plaintiff, engaged in a conspiracy, and committed conversion. We affirm the ruling of the trial court.

The Petitioner, Terrance Reece, appeals from the Knox County Criminal Court’s denial of
post-conviction relief from his convictions for four counts of weapons violations, three
counts of aggravated assault, and one count of vandalism and his effective twenty-two-year
sentence. On appeal, the Petitioner contends that the post-conviction court erred by
denying relief on his ineffective assistance of counsel claims and that he was prejudiced by
the cumulative effect of counsel’s multiple instances of deficient performance. We reverse
the judgment of the post-conviction court and remand this case for a new trial.

Mother appeals the termination of her parental rights.  The trial court found four statutory grounds for termination: abandonment by failure to visit, abandonment by failure to support, persistent conditions, and failure to manifest an ability and willingness to assume custody.  The trial court also concluded termination was in the child’s best interest.  Neither the guardian ad litem nor Mother received notice of the trial court’s Order.  Becoming aware of the trial court’s Order more than thirty days after the decision, Mother filed a motion asking the trial court to set aside and then re-enter its final order, seeking to ensure that she could still appeal.  The trial court granted Mother’s motion.  Mother appeals, arguing the trial court erred with regard to each ground of termination that it found and that its conclusion as to the best interest of the child was also in error.  On appeal, Petitioners, paternal grandparents seeking to terminate Mother’s parental rights, argue the trial court erred in setting aside and then re-entering its termination order and, consequently, that this court lacks jurisdiction over Mother’s appeal.  The Petitioners also defend the trial court’s termination decision on the merits.  We conclude this court has jurisdiction over Mother’s appeal, that the trial court did not err in finding that grounds were established for termination, and that the trial court did not err in finding that termination is in the best interest of the child.

In this consolidated appeal, the defendants, Emily Ashton Williams and Joel Scott
Sweeney, appeal their Davidson County Criminal Court jury convictions of aggravated
child neglect. Defendant Sweeney argues that the evidence was insufficient to support his
conviction, that the trial court committed plain error by failing to require the State to make
an election of offenses, and that the trial court erred in sentencing him. Defendant Williams
argues that the evidence was insufficient to support her conviction. Discerning no
reversible error, we affirm.

The trial court furloughed the Defendant, Brady O’Brien Holmgren, to a mental health court program following his convictions for domestic assault and aggravated assault. The furlough was later revoked, and he was ordered to serve his sentence. Nearly a year later, the Defendant filed a motion to modify his sentence. The trial court denied the motion, and the Defendant appealed. Upon our review, we hold that the Defendant has waived any issues by failing to properly prepare his brief in accordance with Tennessee Rule of Appellate Procedure 27. Accordingly, we respectfully affirm the trial court’s judgment.

A homeowner’s association sought to enforce a recorded declaration of restrictive
covenants against a property owner in a subdivision. The property owner moved to dismiss
on the basis that the declaration did not appear in her chain of title and did not expressly
apply to her property. The HOA contended that language in the property owner’s chain of
title was sufficient to make the property subject to the restrictive covenants. And if not,
the restrictive covenants were enforceable as equitable servitudes. Without notice to the
parties, the trial court dismissed the action on an unasserted basis. We reverse.

I join in the majority in concluding that the evidence is sufficient to support the
Defendant’s kidnapping convictions and that the trial court did not err in denying the
motion for a mistrial. However, I part ways with the majority’s analysis and conclusion
regarding the court’s denial of a new trial based upon defense counsel’s personal,
concurrent conflict of interests. For the reasons that follow, I conclude that the record fails
to support a conclusion that the Defendant was assured his constitutional right to a fair trial
and that due process requires that he receive a new trial. See U.S. Const. amends. VI
(guaranteeing a criminal defendant’s right to counsel), XIV, §1 (no State shall “deprive
any person of life, liberty, or property, without due process of law”); Tenn. Const. art. 1,
§§ 6 (guaranteeing a criminal defendant’s right to a jury trial), 9 (rights of a criminal
defendant); Strickland v. Washington, 466 U.S. 668, 684-85 (1984) (stating that the right
to counsel exists to protect a criminal defendant’s fundamental right to a fair trial, which
is rooted in the Due Process Clause); see also Smith v. State, 357 S.W.3d 322 , 336 (Tenn.
2011).

In this case of first impression, we consider whether a defendant can be convicted of
criminally negligent homicide when he incites, encourages or coerces another person to
commit suicide and whether the State of Tennessee has territorial jurisdiction over a
defendant when he affirmatively reaches out to Tennessee via electronic means. A Knox
County jury convicted Defendant, Hayden Jennings Berkebile, of criminally negligent
homicide after the victim, Grace Anne Sparks, shot and killed herself for Defendant’s
sexual pleasure while on a video call with Defendant. Defendant argues on appeal that: (1)
the evidence is insufficient to support his conviction because (a) the State did not prove
that Defendant’s actions were the proximate cause of the victim’s death, and (b) the
negligent homicide statute as construed here violates the First Amendment to the United
States Constitution; (2) the State did not establish territorial jurisdiction over Defendant
because he was in Indiana at the time of the victim’s death and only communicated with
her electronically; (3) the trial court erred in admitting an alleged hearsay statement by the
investigator; (4) the trial court erred in allowing the jury to utilize a transcript of
Defendant’s interrogation that contained inaccurate transcriptions; (5) cumulative error
requires a new trial; and (6) the trial court erred in denying judicial diversion because it
relied on evidence not in the record. After reviewing the parties’ briefs and oral arguments,
the record, and the relevant law, we affirm in all respects.

The Defendant, Aaron Michael King, appeals his jury convictions for rape, rape of a child, statutory rape by an authority figure, incest, aggravated sexual battery, especially aggravated sexual exploitation of a minor, tampering with evidence, especially aggravated kidnapping, and aggravated kidnapping. For these convictions, he received an effective seventy-seven-year sentence. On appeal, the Defendant argues that (1) there was insufficient evidence to support his kidnapping convictions because they were merely incidental to the contemporaneous rapes; (2) the trial court erred by failing to grant his motion for a mistrial after a State’s witness impermissibly vouched for the victim’s credibility; (3) the trial court erred by failing to grant his motion for new trial where defense counsel, who was acting as treasurer for the prosecuting assistant district attorney general’s campaign for a general sessions court judgeship during the Defendant’s trial, had an impermissible conflict of interest; and (4) the cumulative effect of these errors entitle him to a new trial. After our review, we conclude that sufficient evidence supports the challenged convictions, that the trial court properly denied a mistrial, and that the Defendant is not entitled to relief pursuant to the cumulative error doctrine. We further conclude that no adverse effect resulted from the improper conflict of interest. We affirm the judgments of the trial court.

In this case, the State relied exclusively upon online communications sent between
the Defendant, who resided in Indiana, and the suicide decedent, who resided in Tennessee,
to establish a conviction of criminally negligent homicide. In my view, the State failed to
establish the essential elements of territorial jurisdiction and proximate cause. No matter
how “dark” or “diabolical” the online communications leading up to the decedent’s death
may have been, there is simply no law in Tennessee making it a crime to verbally persuade
or coerce someone to commit suicide.1 Because Tennessee has yet to criminalize
incitement, inducement, or encouragement to commit suicide, words alone cannot serve as
the basis for a criminal conviction.2 Accordingly, I must respectfully dissent

Petitioner, Lindsay Lowe, was convicted by a Sumner County jury of two counts of first
degree murder and two counts of aggravated child abuse for killing her newborn twin sons
shortly after their birth at her parents’ home and concealing their bodies in a laundry basket.
State v. Lowe, 552 S.W.3d 842, 846-48 (Tenn. 2018), cert. denied, 139 S. Ct. 1204 (2019).
Her convictions and resulting life sentence were affirmed on direct appeal, and the
Tennessee Supreme Court affirmed. Id. Petitioner unsuccessfully sought rehearing.
Petitioner then sought a writ of certiorari in the United States Supreme Court, which was
denied. Id. Petitioner ultimately filed an untimely petition for post-conviction relief in
which she made innumerable allegations of ineffective assistance of counsel as well as
several constitutional violations that she argued necessitated reversal of her convictions.
Petitioner also requested due process tolling of the post-conviction statute of limitations
based on erroneous legal advice about when the statute of limitations commenced.1 The
post-conviction court determined due process tolling was warranted and permitted
Petitioner to have a lengthy hearing on the merits of the post-conviction petition. After the
hearing, the post-conviction court granted post-conviction relief on the basis that a juror
was presumptively biased against Petitioner, violating her right to a fair trial, and that trial
counsel’s failure to remove the juror violated Petitioner’s right to effective assistance of
counsel. The post-conviction court did not address the merits of any of the remaining
claims in the petition. In this timely State appeal, we determine first that the postconviction
court improperly granted due process tolling of the statute of limitations for
post-conviction relief. Additionally, because the post-conviction court went on to grant
post-conviction relief, we review those findings of fact and conclusions of law and
determine that the post-conviction court also erred in finding that the juror was
presumptively biased and that trial counsel was ineffective. As a result, we reverse and
remand the judgment of the post-conviction court. All of Petitioner’s convictions are
reinstated and her petition for post-conviction relief is dismissed.

The Defendant, Jonathan E. Woodruff, pled guilty to the offense of tampering with evidence. The trial court imposed a five-year sentence to be served in a community corrections program and later on probation. Thereafter, the Defendant was alleged to have engaged in new criminal conduct by possessing fentanyl, and following a hearing, the trial court fully revoked the Defendant’s suspended sentence. In this appeal, the Defendant argues that a violation was not established by a preponderance of the evidence and that he was denied the opportunity to review a video of the alleged misconduct. Upon our review, we respectfully disagree and affirm the judgment of the trial court.

Petitioner, Brian C. Frelix, appeals from the Williamson County Circuit Court’s denial of his petition for post-conviction relief related to his convictions for four counts of aggravated robbery, four counts of aggravated assault, one count of aggravated burglary, and one count of theft of property valued at $1,000 or more, but less than $10,000.  Petitioner argues that the post-conviction court erred in denying relief based upon his claims that he received ineffective assistance of counsel because trial counsel failed to (1) raise a Double Jeopardy issue at trial or on direct appeal related to two of his aggravated robbery charges; and (2) raise a Brady issue on direct appeal related to the State’s failure to disclose three letters sent to the police by a jailhouse informant.  Petitioner also raises a freestanding claim that the State improperly withheld the letters in violation of Brady v. Maryland, 373 U.S. 83 (1963).  After a thorough review of the record, we affirm the judgment of the post-conviction court.

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights to two of her children. The trial court found that two grounds had been proven and that termination of the mother’s parental rights was in the children’s best interests. Based on these findings, the court terminated the mother’s parental rights. The mother appeals. We reverse the trial court’s finding that the ground of persistence of conditions has been proven but affirm the trial court’s finding that another ground for termination has been proven and that termination of the mother’s parental rights is in the children’s best interests. Thus, we affirm the termination of the mother’s parental rights.

The Defendant, Edward Honeycutt, Jr., pleaded guilty to one count of initiating the process to manufacture
methamphetamine and two counts of child endangerment, in exchange for an effective eight-year sentence,
suspended to ten years of probation, after service of sixty-one days in confinement. After multiple violations
and revocation hearings, the trial court revoked the Defendant’s probation sentence and ordered it into
execution, granting “street time” credit from October 25, 2021 to May 6, 2022. The Defendant filed a Rule 36
motion, claiming “clerical mistakes in the judgment orders” related to whether the Defendant’s sentence was a
probation sentence or a sentence served on community corrections. The Defendant argued that he was
entitled to time served in community corrections from September 4, 2012, rather than October 25, 2021,
because his sentence was a community corrections sentence. The trial court denied the motion, and the
Defendant appeals, maintaining that he has been deprived of time served in community corrections. After
review of the record, we affirm the trial court’s judgment.

This is the second post-divorce contempt case between the parties. While Mother’s petition
for contempt was pending in the trial court, Father filed a petition alleging that Mother was
guilty of 29 counts of criminal contempt for various violations of the parties’ permanent
parenting plan and the mandatory “Parental Bill of Rights” incorporated into the plan. The
trial court: (1) found Mother guilty of seven counts of contempt; (2) sentenced Mother to
29 days in jail; and (3) awarded Father a portion of his attorney’s fees and costs. Mother
appeals. Because Father failed to meet his burden to show, beyond a reasonable doubt,
that Mother was in criminal contempt of the parenting plan, we reverse the trial court’s
order.

The plaintiff appeals the dismissal of her complaint against her former landlord. Because
the plaintiff did not file her notice of appeal within thirty days after entry of the dismissal
order as required by Tennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

This is a probate matter which concerns whether a decedent devised his widow a parcel of real estate in fee simple absolute or whether the real property at issue was to be placed in trust for the benefit of decedent’s children. The probate court rendered a declaratory judgment determining that decedent devised his widow the parcel in fee simple absolute. For the reasons stated herein, we affirm.

This is a grandparent visitation case brought by the maternal grandmother of the child at issue. When the trial court dismissed the grandmother’s petition following a trial, it held, among other things, that there was no danger of substantial harm to the child in the absence of visitation. Although the trial court ruled in favor of the child’s father on the merits of the underlying case, it ultimately rejected the father’s request to recover attorney’s fees for his defense of the lawsuit. For the reasons stated herein, we affirm the trial court’s dismissal of the grandmother’s petition and also affirm the trial court’s denial of attorney’s fees to the father.

This appeal arises out of a dispute between the homeowners’ association for a planned
development and the successor owner of the development over the obligations of the
successor owner. We agree with the trial court’s ruling that the successor owner assumed
all of the previous owner’s rights and responsibilities as the declarant under the
development’s recorded restrictive covenants. We affirm the trial court’s judgment in all
respects.