APPELLATE COURT OPINIONS

The Defendant, Arthur McKinnie, was indicted for attempted first degree murder, a Class A felony; aggravated assault, a Class C felony; employment of a firearm during the commission of a dangerous felony, a Class C felony; reckless endangerment with a deadly weapon, a Class E felony; and tampering with evidence, a Class C felony. See Tenn. Code Ann. §§ 39-12-101, -13-102, -13-103, -13-202, -16-503, -17-1324. The Defendant proceeded to a jury trial. The trial court granted the Defendant’s motion for judgment of acquittal on the tampering with evidence charge. The jury convicted the Defendant of the lesser-included offense of attempted voluntary manslaughter, a Class D felony, and the charged offenses of aggravated assault and reckless endangerment. See Tenn. Code Ann. §§ 39-12-101, -13-211. The jury acquitted the Defendant of the employment of a firearm charge. The trial court imposed a total effective sentence of ten years. On appeal, the Defendant contends that (1) the evidence was insufficient to sustain his conviction for attempted voluntary manslaughter; (2) the trial court abused its discretion in setting the length of his sentences; and (3) the trial court abused its discretion in imposing partial consecutive sentences. Following our review, we affirm the judgments of the trial court.

A Shelby County Criminal Court Jury convicted the Appellant, Stanley Owens, of voluntary manslaughter, a Class C felony, and the trial court sentenced him as a Range III, career offender to fifteen years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the conviction, that the trial court erred by failing to dismiss the indictment due to the State’s almost twenty-five-year preindictment delay, and that trial court erred by disregarding the State’s late-filed notice of enhanced sentencing. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

This appeal arises from a Petition for Declaratory Judgment filed by an incarcerated sex offender in the custody of the Tennessee Department of Correction. Petitioner challenged what he claimed to be the illegal, arbitrary, and capricious application of Tenn. Code Ann. § 41-21-235, the Sex Offender Treatment Program (the “SOTP”), contending he is eligible for a parole hearing but will be denied parole because the State of Tennessee has failed to enroll him in the program. This contention is based on Tenn. Code Ann. § 41-21-235(b), which expressly states, as to sex offenders, “Successful participation and completion of the treatment program shall be a consideration for parole from a correctional institution.” Respondents moved for summary judgment on several grounds including the undisputed fact that the challenged provision is unenforceable due to a consent decree issued by the United States District Court for the Middle District of Tennessee in Dean v. McWherter, No. 1-90-0027 (M.D. Tenn. filed Aug. 18, 1994), and the Tennessee Board of Parole does not consider participation in the SOTP, or lack thereof, as a factor in deciding whether to grant parole. Respondents also filed a motion to dismiss the individual respondents as well as the State for failure to state a claim based Tenn. Code Ann. § 4-5-225. The trial court granted the motion to dismiss the individual respondents and summarily dismissed all remaining claims. In pertinent part, the court found it was undisputed that by the terms of the consent decree and the affidavit of the Executive Director of the Board of Parole that the Board cannot and does not consider an inmate’s participation in the SOTP in reaching its parole decision. This appeal followed. We affirm in all respects.

Defendant, Steven Erich Hubbard, appeals from his conviction for failure to obey a stop sign in violation of a municipal ordinance. Because such appeals are considered civil in nature, we are without subject matter jurisdiction to hear this appeal. Therefore, pursuant to Tennessee Rule of Appellate Procedure 17, we transfer the case to the Tennessee Court of Appeals for further adjudication.

In this post-divorce dispute, the father filed a criminal contempt petition against his exwife for alleged violations of a permanent parenting plan. In response, the mother filed a counter-petition for criminal contempt, modification of custody, and permission to relocate. The trial court denied the mother’s petition to relocate and the father’s petition for criminal contempt. The court determined that there was not a material change sufficient to modify custody but there was material change that met the lower threshold required for modification of the residential parenting schedule. The court adopted the position of the guardian ad litem that equal parenting time would serve the children’s best interest and modified the parenting plan accordingly. The court also found the father in criminal contempt. We conclude that the court erred in adopting the modified residential parenting schedule without conducting a best interest analysis. So we vacate and remand for further proceedings on this issue. In all other respects, we affirm.

In this child custody case, father petitioned the court to modify a prior custody order designating mother as the primary residential parent of their child, L.T. Father alleged that there had been a material change in circumstance in that mother refused to adhere to the court’s visitation order on numerous occasions. See Tenn. Code Ann. § 36–6–101(a)(2)(B) (2018). After a hearing, the court agreed. It held that it was in the best interest of the child to award joint custody to mother and father, with father designated as the primary residential parent. Mother appeals. We affirm.

The Petitioner, Ricky Harris, appeals the Carter County Criminal Court’s denial of his petition for a writ of error coram nobis from his first degree murder conviction, for which he received a life sentence. We affirm the judgment of the coram nobis court.

The petitioner, Kenneth A. Jones, appeals the denial of his petition for post-conviction relief, which petition challenged his Davidson County Criminal Court jury conviction of robbery. In this appeal, the petitioner reiterates his claim that he was deprived of the effective assistance of counsel. Because the petitioner has failed to establish that he is entitled to post-conviction relief, we affirm.

The petitioner, Thomas Lee Carey, Jr., appeals the denial of his petition for post-conviction relief, which petition challenged his 2012 convictions of first degree felony murder, second degree murder, and especially aggravated kidnapping, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

The Defendant, Rodger E. Broadway, pleaded guilty to first degree felony murder, especially aggravated robbery, and aggravated rape and received an effective sentence of life without the possibility of parole. Fifteen years after his sentencing, he filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his sentences were illegal because (1) the State failed to file the notice of its intent to seek life imprisonment without the possibility of parole and (2) the judgment forms for his remaining convictions reflect a standard offender classification with a 100% service requirement as a violent offender. The trial court summarily dismissed the motion on the basis that it failed to state a colorable claim. On appeal, the Defendant contends that the trial court erred by summarily denying relief. We affirm the judgment of the trial court.

Father appeals the trial court’s decision to terminate his parental rights to two children on the grounds of (1) incarceration under a sentence of ten or more years, and the children were under eight at the time the sentence was entered, (2) wanton disregard for the welfare of the children, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children, and placing the children in Father’s care would pose a risk of substantial harm to the physical and psychological welfare of the children. He further challenges the trial court’s finding by clear and convincing evidence that termination of his parental rights was in the best interest of the children. We affirm in part and vacate in part.

The Petitioner, James Lackey, appeals from the denial of post-conviction relief, alleging that (1) trial counsel provided ineffective assistance in failing to call his brother as a defense witness at trial, and (2) the post-conviction court abused its discretion in failing to consider his brother’s recorded interview as substantive evidence at the post-conviction hearing. We affirm the judgment of the post-conviction court.

Defendant, Whelchel Randall Hogan, pled guilty to possession of less than .5 grams of cocaine with the intent to sell or deliver after the denial of a motion to suppress. As part of the guilty plea, Defendant reserved a certified question of law regarding the legality of his traffic stop. After a review of the record, we reverse the judgment of the trial court and dismiss Defendant’s conviction.

The petitioner, Tracy Looney, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

After a defendant in an earlier action settled the claims against him, the lawyer representing the plaintiffs in the earlier action notified a regulatory agency of the defendant’s alleged conduct at issue in the earlier action. The defendant/current plaintiff filed a breach of contract action against the lawyer, asserting that the lawyer breached the terms of the settlement agreement by filing a complaint against him with the regulatory agency. The lawyer defended the action by claiming that the settlement agreement violated public policy and was unenforceable. The trial court held that the settlement agreement was not contrary to public policy and entered judgment for the plaintiff. The lawyer appealed, and we affirm the trial court’s judgment.

A patient in a state psychiatric facility was killed by another patient. The surviving spouse of the deceased patient brought suit against the State and was awarded damages for the wrongful death of her husband. Because the Tennessee Health Care Liability Act applies to the surviving spouse’s claim, and because she failed to comply with the Act’s requirements of pre-suit notice and good faith certification, we must reverse the decision of the Claims Commission.

In this appeal of the juvenile court’s determination of a petition to establish visitation, the father appeals the setting of supervised therapeutic visitation for him. The father argues that the court disregarded evidence that was favorable to him, that the court erred in relying upon testimony of the child’s counselor, and that the court erred in awarding attorney’s fees to Mother. Upon our review, we vacate the decision setting the father’s visitation and remand the case for the court to enter a judgment that discusses the factors set forth at Tennessee Code Annotated 36-6-106(a)(1)-(15) and makes appropriate findings relative thereto; we conclude that Father has waived any issue pertaining to the testimony of the child’s counselor, as he failed to object to the testimony at trial; in all other respects, we affirm the judgment of the trial court.

Following the post-conviction court’s granting of a delayed appeal, the petitioner challenges the trial court’s denial of his request for an instruction charging the jury that Jason McCollum was an accomplice as a matter of law. After reviewing the record and considering the applicable law, we conclude the post-conviction court did not follow the proper procedures in granting a delayed appeal and remand the case to the post-conviction court for further proceedings consistent with this opinion.

The plaintiff brought this action under Tennessee Code Annotated section 40-33-215 after a Knox County deputy seized a vehicle in which the plaintiff had a perfected security interest. The Tennessee Department of Safety and Homeland Security and Knox County both filed motions to dismiss the complaints against them on sovereign immunity grounds. After the motions to dismiss were denied, permission to appeal under Rule 9 was granted. In this interlocutory appeal, we have been asked to determine whether the trial court properly ruled on the sovereign immunity issue. After review, we affirm the trial court’s denials of the motions to dismiss and remand this matter to the trial court for further proceedings.

Donald R. Loveless (“Employee”) alleged he sustained a compensable injury on February 9, 2014, when he fell in the course and scope of his employment with the City of New Johnsonville (“Employer”). Following trial, the trial court awarded permanent partial disability benefits. Employer appeals, contending Employee did not sustain a compensable injury. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We reverse the trial court’s judgment.

Defendant, Joseph H. Goostree, complains on appeal that the trial court improperly sentenced him to serve the balance of his eight-year sentence after he admitted to multiple violations of the conditions of his Community Corrections sentence. Because the trial court did not abuse its discretion, we affirm the judgment of the circuit court and remand for entry of a judgment form dismissing Count 1 of the indictment.

The Petitioner, Carmel Borum, appeals from the denial of post-conviction relief, alleging he received ineffective assistance of counsel. He specifically argues trial counsel was ineffective in failing to challenge ownership of the stolen automobile and in failing to require the State to prove the value of the automobile. Upon our review, we affirm the judgment of the post-conviction court.

The Petitioner, Oscar Polk, Jr., appeals from the denial of post-conviction relief, alleging that trial counsel was ineffective in failing to argue at trial that the Petitioner was not tested for gunshot residue. Upon our review, we affirm the judgment of the
post-conviction court.

Shelby County grand jury indicted the defendant, Johnny Jenkins, for second degree murder (Count 1), employing a firearm during the commission of a dangerous felony as related to Count 1 (Count 2), attempted second degree murder (Count 3), and employing a firearm during the commission of a dangerous felony as related to Count 3 (Count 4). After trial, a jury convicted the defendant of employing a firearm in Counts 2 and 4, voluntary manslaughter in Count 1, and attempted voluntary manslaughter in Count 3. Upon the defendant’s motion for new trial, the trial court dismissed Count 2 but upheld his remaining convictions. The defendant now challenges the sufficiency of the evidence supporting his convictions and several rulings of the trial court relating to the admission of evidence and jury instructions. Based upon our review of the record, we reverse and vacate the defendant’s conviction in Count 1 for voluntary manslaughter. However, because the proof is sufficient to support the lesser-included offense of reckless homicide, which was charged to the jury, we remand this matter to the trial court for entry of an amended judgment reflecting a conviction for reckless homicide and for resentencing on this modified conviction. The defendant’s convictions for attempted voluntary manslaughter in Count 3 and employing a firearm in Count 4 are affirmed. Accordingly, the trial court’s judgments are affirmed in part and reversed in part, and the case is remanded for a new sentencing hearing.

In our resolution of this appeal, we hold that the General Release, which the parties executed when Case No. 2014-CV-170 settled, was not against public policy. I concur with that conclusion, under the facts presented.