APPELLATE COURT OPINIONS

A Giles County jury convicted Timothy T. Millican, Defendant, of one count of theft of property with a value of at least $10,000 but less than $60,000. The trial court sentenced Defendant as a Range I standard offender to four years at thirty percent release eligibility, which the trial court suspended to five years’ supervised probation following the service of a year in jail. On appeal, Defendant asserts that the evidence was insufficient to sustain his conviction. After a thorough review of the record and applicable case law, we affirm the judgment of the trial court.

On September 21, 2015, the Davidson County Grand Jury indicted Petitioner, Michael Delk, for aggravated rape of a child, aggravated sexual battery, sexual exploitation of a minor, and ten counts of aggravated sexual exploitation of a minor. On May 4, 2017, Petitioner pled guilty to one count of rape of a child and one count of especially aggravated sexual exploitation of a minor. Pursuant to the plea agreement, the trial court sentenced Petitioner to serve twenty-seven years at one hundred percent for rape of a child and eight years at one hundred percent for especially aggravated sexual exploitation of a minor, consecutive to the first count, for a total effective sentence of thirty-five years to serve at one hundred percent. On July 20, 2018, Petitioner filed an untimely pro se Petition for Post-Conviction Relief. After a hearing, the post-conviction court dismissed the petition as time-barred. Following a thorough review of the record and applicable case law, the judgment of the post-conviction court is affirmed.

In January 2015, the Sequatchie County Grand Jury indicted Defendant, Willard C. Land, for first degree premeditated murder. Following a trial in February 2018, a jury found Defendant guilty of the lesser-included offense of second degree murder, for which Defendant received a sentence of thirty-five years’ incarceration. On appeal, Defendant contends that the trial court erred in admitting evidence of Defendant’s prior threats and acts of violence against the victim and others, and he challenges the sufficiency of the evidence supporting his conviction. Following a thorough review, we affirm the judgment of the trial court.

The Petitioner, Javonta Marquis Perkins, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he argued that juvenile counsel was ineffective for waiving the juvenile transfer hearing and failing to investigate his mental health in connection with the transfer. The Petitioner’s case was transferred to criminal court, and after two trials, he was convicted of aggravated robbery, carjacking, and possession of a firearm during the commission of a dangerous felony. He received an effective sentence of thirteen years. After a review of the record and applicable law, we affirm the judgment of the post-conviction court.

Plaintiff John R. Fuller initially brought this action, on July 15, 2015, for fraud, negligence, and violation of the Tennesee Consumer Protection Act (TCPA). After taking a voluntary nonsuit, he refiled on August 24, 2017. The trial court granted summary judgment to defendant Allianz Life Insurance Company of North America, holding that the fraud and negligence claims were time-barred by operation of Tenn. R. Civ. P. 4.01(3), which provides that “[i]f a plaintiff or counsel for a plaintiff . . . intentionally causes delay of prompt issuance or prompt service of a summons, the filing of the complaint . . . will not toll any applicable statutes of limitation or repose.” It is undisputed that plaintiff’s counsel, despite knowing how to properly serve process on defendant, delayed service for almost seven months, until after the applicable three-year statutes of limitations for fraud and negligence had run. The trial court further held that plaintiff’s TCPA claim was barred by an applicable statute of repose. We affirm.

A mother and stepfather filed a petition seeking to terminate the parental rights of a father based on abandonment by failure to visit and failure to support his child.  The trial court found the petitioners proved the ground of abandonment by failure to support by clear and convincing evidence but did not prove the ground of abandonment by failure to visit because the mother interfered with the father’s attempts to visit the child.  The trial court then found it was not in the child’s best interest for the father’s parental rights to be terminated and denied the petition to terminate.  The mother and stepfather appealed, and we affirm the trial court’s judgment.

This appeal concerns the propriety of the defendant’s burglary conviction.  A Knox County grand jury indicted the defendant, Abbie Leann Welch, for misdemeanor theft in violation of Tennessee Code Annotated section 39-14-103, and burglary, a Class D felony, in violation of Tennessee Code Annotated section 39-14-402, for her involvement in a scheme to enter a Walmart retail store, steal merchandise, and have another individual return the merchandise for a gift card.  The defendant previously had been banned from Walmart retail stores for prior acts of shoplifting.  In this case, because the defendant entered Walmart without the effective consent of the owner—said consent having been revoked by letter—and committed a theft therein, the State sought an indictment for burglary rather than criminal trespass.  We hold that the plain language of the burglary statute does not preclude its application to the scenario presented in this case and that, because the statute is clear and unambiguous on its face, we need not review the legislative history to ascertain its meaning.  Application of the burglary statute in these circumstances does not violate due process or prosecutorial discretion.  We affirm the judgment of the Court of Criminal Appeals. 

I write separately in this case because I respectfully disagree with one point in the majority’s analysis, namely, the conclusion that Tennessee Code Annotated § 39-14-402(a) is clear and unambiguous.

The Petitioner, Gerald McEwen, appeals the Shelby County Criminal Court’s denial of post-conviction relief from his convictions for first degree premeditated murder and attempted first degree murder, for which he received an effective sentence of life without parole. In this appeal, the Petitioner argues that trial counsel was ineffective in failing to adequately cross-examine an eyewitness and in failing to formally move for a mistrial following alleged improper conduct by the prosecutrix. Upon review, we affirm the judgment of the post-conviction court.

On March 24, 2015, a Shelby County Grand Jury indicted the Defendant-Appellant, Reginald Parnell, for two counts of aggravated assault. On May 21, 2018, the day he was set for trial, the Defendant accepted a plea agreement and entered an Alford plea to each count of aggravated assault in exchange for a concurrent term of three years’ probation. On June 15, 2018, represented by newly retained counsel, the Defendant filed a motion to withdraw his guilty plea, which was denied by the trial court following a hearing. On appeal, the Defendant argues that the trial court abused its discretion in denying the Defendant’s motion to withdraw his guilty plea. Upon our review, we affirm.

The Petitioner, Vernon Walton, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his December 5, 2016 guilty plea conviction of attempted first degree murder, for which he is serving a sixteen-year sentence. He contends that the post-conviction court erred in denying relief based upon his claims of ineffective assistance of counsel and entry of an involuntary guilty plea. We affirm the judgment of the post-conviction court.

In 2014, the Petitioner, Antwion Dowdy, was convicted of first degree premeditated murder and four counts of aggravated assault, and the trial court sentenced him to life imprisonment. The Petitioner appealed his convictions to this court, and we affirmed the judgments. State v. Antwion Dowdy, No. W2015-02342-CCA-R3-CD, 2016 WL 7654950 (Tenn. Crim. App., at Jackson, Feb. 21, 2016), no perm. app. filed. Subsequently, the Petitioner filed a petition for post-conviction relief, which the postconviction court denied after a hearing. After review, we affirm the post-conviction court’s judgment.

The Defendant-Appellant, Demetrius Blakemore, appeals the order of the Madison County Circuit Court revoking his probation in four cases. On appeal, Blakemore argues that the trial court erred in revoking his probation because his probationary period had expired. Upon review, we affirm the judgments of the trial court.

The Defendant, Terrell Lamont Reid, pursuant to a plea agreement, pleaded guilty to possession of cocaine with intent to sell and to possession of a firearm by a convicted felon and received an effective seventeen-year sentence. He filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his sentence was illegal because his firearm offense sentence was enhanced under the criminal gang enhancement statute. The trial court summarily dismissed the motion after determining that the sentence was not illegal. On appeal, he contends that the trial court erred by denying relief because the enhanced sentence for his firearm conviction was unconstitutional and illegal. We reverse the judgment of the trial court.

The Defendant, Cleotris Ruben, entered best interest pleas in two separate cases to one count of Class E felony theft of property and one count of Class A misdemeanor theft of property. Prior to a sentencing hearing, the Defendant filed motions to withdraw his guilty pleas, which the trial court denied. The trial court sentenced the Defendant to an effective sentence of one year in the workhouse and six years of supervised probation. On appeal, the Defendant contends that the trial court erred in denying his motions to withdraw his pleas because he provided sufficient evidence demonstrating that a “fair and just reason” justifies the withdrawal of his guilty pleas. After a review of the record, we reverse the judgment of the trial court and remand for appointment of new counsel and a new hearing on the Defendant’s motions to withdraw his pleas.

The petitioner, Casey Carlos Raines, appeals the dismissal of his petition for post-conviction relief, which petition challenged his 2016 convictions of simple possession of methamphetamine and failure to appear, as time-barred. Discerning no error, we affirm the judgment of the post-conviction court.

After a jury trial, the Defendant, Jonathan A. Wheatley, was convicted of two counts of child abuse and neglect. Subsequently, the trial court ordered a new trial, and the Defendant later pled guilty to one count of child abuse and neglect. As a condition of his guilty plea, he sought to reserve the right to appeal three certified questions of law challenging the trial court’s denial of his motion to set aside his two initial convictions. Following our review of the record, we dismiss the appeal because the Defendant failed to properly certify his questions of law in accordance with Tennessee Rule of Criminal Procedure 37(b)(2).

Gustavius Smith, Defendant, admitted to violating the terms of probation and was allowed to enter a six-month program at a rehabilitation facility. After three additional violation of probation warrants were issued alleging Defendant received new criminal charges, and after Defendant was expelled from two rehabilitation programs, the trial court revoked Defendant’s probation and ordered him to serve the balance of his sentence in the Tennessee Department of Correction. Discerning no error, the judgment of the trial court is affirmed.

The Defendant, Presley William Nave, Jr., pled guilty to one count of statutory rape, a Class E felony, and one count of child abuse, a Class D felony, in exchange for a two-year sentence on probation. Following a hearing, the trial court ordered the Defendant to register as a sex offender. The Defendant appeals, arguing (1) that the trial court gave improper weight to the original offenses charged; and (2) that the trial court did not consider factors weighing against placing the Defendant on the sex offender registry. After our review, we affirm the judgments of the trial court.

A Shelby County jury convicted the Defendant, Timothy Lindsey, of aggravated rape for a crime committed in 2005, and he was sentenced to serve thirty years in confinement. On appeal, the Defendant challenges the sufficiency of the convicting evidence and asserts that the ten-year delay in indicting him violated his right to due process. We conclude that the evidence is sufficient to support the verdict and that the Defendant has waived the issue of pre-indictment delay. Accordingly, the trial court’s judgment is affirmed and the case remanded for correction of the judgment form.

A Tipton County jury convicted the Defendant, Nathan Allen Wallace, of rape, aggravated statutory rape, contributing to the delinquency of a minor, and incest, and the trial court sentenced him to eight years in the Tennessee Department of Correction. On appeal, the Defendant asserts that the trial court erred when it: (1) admitted prior statements by the victim into evidence; (2) declined to enforce a subpoena for the victim’s DCS record; (3) admitted expert testimony on the subject of “grooming”; and (4) limited his cross-examination of the victim. The Defendant also contends that the evidence is insufficient to support his convictions and that his request for a suspended sentence should have been granted. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

The Defendant, Jerry A. Thigpen, was found in contempt of court for four separate acts of publishing online certain materials related to his underlying charge of misdemeanor assault, and he received an aggregate sentence of forty days in jail, with two days suspended. The Defendant appeals, asserting that the evidence was insufficient to support a finding of guilt, that he did not have adequate notice of the charges, that the trial court erred in admitting evidence, that he received ineffective assistance of counsel at the hearing, and that the trial court was obligated to recuse itself. After a thorough review of the record, we affirm the judgments of the trial court.

Paternal great uncle and great aunt of a minor child filed a petition under the grandparent visitation statute, Tenn. Code Ann.
§ 36-6-306, and the trial court dismissed the petition for lack of standing, finding that the petitioners did not meet the statutory definition of “grandparent.”  We affirm the judgment of the trial court.

The Board of Professional Responsibility (“the Board”) filed a Petition for Discipline against James MacDonald (“Attorney”) based on a single complaint arising from his representation of Michael Huddleston.  A hearing panel (“the Panel”) was appointed and, after an evidentiary hearing, the Panel dismissed the Petition for Discipline and concluded that the Board “failed to sustain its burden of proving, by a preponderance of the evidence, that Attorney violated” any Rules of Professional Conduct (“RPC”).  Thereafter, the Board filed a petition for review of the Panel’s decision in the Knox County Chancery Court.  The chancery court reversed the Panel’s dismissal of all six rule violations and determined that the Panel’s conclusions were arbitrary and capricious and unsupported by the evidence.  In addition, the chancery court held that the Panel abused its discretion by applying an incorrect legal standard.  The chancery court found that Attorney violated all six rules alleged in the Board’s petition and imposed a public censure as punishment.  Attorney sought review in this Court, arguing that the chancery court incorrectly substituted its own judgment for that of the Panel’s and abused its discretion.  Upon review of the record and applicable law, we reverse the chancery court’s conclusion that Attorney violated RPC 3.3(b) and (c), 3.4(a) and (b), and 8.4(a), and we reinstate the Panel’s dismissal of those allegations.  Additionally, we hold that the chancery court was without authority to conclude that Attorney violated RPC 8.4(c), and this Court must treat the Panel’s failure to make a conclusion as a dismissal of the allegation.  Therefore, the Petition for Discipline against Attorney is dismissed in its entirety.

Gregg T. Merrilees, Defendant, was indicted for aggravated robbery, robbery in concert with two or more persons, and especially aggravated kidnapping. The week prior to trial, the State moved to amend count one to change the theory by which it would prove aggravated robbery. Defendant filed a response stating that he did not consent to amendment and requesting a continuance if the trial court granted the motion to amend. The trial court granted the State’s motion to amend and denied Defendant’s motion to continue. The same week, Defendant moved for a second continuance so that he could employ private counsel rather than appointed counsel, and the trial court denied the motion. Prior to the jury panel being sworn, the trial court issued preliminary jury instructions. Defendant was convicted of aggravated robbery in count one and robbery in concert with two or more persons in count two. He was acquitted of the especially aggravating kidnapping in count three. The trial court merged counts one and two and sentenced Defendant to serve eight years in the Tennessee Department of Correction. On appeal, Defendant argues that the trial court erred by amending the indictment without also granting Defendant a continuance, by denying Defendant’s motion to continue so he could employ private counsel, and by issuing preliminary jury instructions prior to the jury panel being sworn. Defendant also argues that cumulative error requires the granting of a new trial. After a thorough review of the record and applicable case law, we affirm the judgments of the circuit court.