APPELLATE COURT OPINIONS

The petitioner, John Armstrong, appeals the denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. He contends that his effective eighteen-year sentence for attempted first degree murder and unlawful possession of a firearm during the commission of a dangerous felony is illegal because the use or employment of a firearm was an essential element of his conviction for attempted first degree murder. Following our review, we affirm the judgment of the trial court.

Defendant, Ericka Alicia Smith, received a twelve-year sentence to be served on Community Corrections after pleading guilty to attempted aggravated child neglect.  After holding a hearing, the trial court determined that Defendant violated the conditions of her alternative sentence and ordered her to serve the remainder of her sentence in confinement.  On appeal, Defendant argues that the trial court abused its discretion by refusing to impose another alternative sentence.  We affirm the judgment of the trial court.

Appellant appeals from the denial of her motion to alter or amend the trial court’s judgment finding her guilty of thirty-seven counts of criminal contempt and sentencing her to 403 days incarceration. We affirm the trial court’s denial of Appellant’s post-trial motion on the ground that the trial court erred in finding her non-payment of child support willful. We also affirm the denial of Appellant’s post-trial motion based upon evidence that Appellant obtained a loan to pay her support obligation after the contempt hearing. We vacate the trial court’s denial of Appellant’s post-trial motion, however, on the ground that trial court failed to consider whether Appellant’s sentence was excessive. We therefore remand to the trial court to make appropriate findings of fact and conclusions of law to support its ruling and to consider whether Appellant’s sentence is excessive. Affirmed in part; vacated in part and remanded. 

In this health care liability case, the defendants moved to dismiss the complaint on the grounds that the plaintiff failed to comply with Tenn. Code Ann. § 29-26-121, part of Tennessee’s Health Care Liability Act. Specifically, the defendants argue that the plaintiff failed to provide a statement in the pleadings that he complied with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, documentation demonstrating compliance with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, an affidavit of the person who mailed pre-suit notice to the defendants, and failed to provide a HIPAA compliant medical authorization form. The trial court dismissed the case. We have reviewed the record and find that the plaintiff failed to substantially comply with Tenn. Code Ann. § 29-26-121(b). We affirm the judgment of the trial court.

Plaintiff seller filed suit against defendant buyers after buyers stopped paying interest on a line of credit under the terms of a contract for the sale of a convenience store. The trial court concluded that both sides breached the contract. As a result, the trial court ordered that buyers were required to pay the seller the contracted amount, less $16,000.00 resulting from buyer’s breach. Buyers appealed. Discerning no error, we affirm. 

The Davidson County Grand Jury returned an indictment against the Defendant-Appellant, Xavier Tull-Morales, and his two codefendants, Alberto Conde-Valentino and Rodney Earl Jones, charging them with one count of first degree felony murder and one count of especially aggravated robbery.  Conde-Valentino filed a motion to sever the defendants’ cases, which Tull-Morales joined, and the trial court denied the motion.  Following a jury trial, Tull-Morales, along with his codefendants, were found guilty of the charged offenses of felony murder and especially aggravated robbery, and he received concurrent sentences of life imprisonment and fifteen years, respectively.  On appeal, Tull-Morales argues:  (1) the trial court abused its discretion in denying his motion to sever his case from that of his codefendants; (2) the trial court erred in failing to instruct the jury that accomplice testimony and/or co-conspirator testimony must be corroborated; and (3) the evidence is insufficient to sustain his convictions.  Upon review, we affirm the judgments of the trial court.

The petitioner, Timothy W. Sparrow, appeals the denial of his petition for post-conviction relief, which petition challenged his 2011 Williamson County Circuit Court jury convictions of second degree murder, attempted first degree murder, and attempted aggravated robbery.  In this appeal, he claims that he was deprived of the effective assistance of counsel at trial.  Discerning no error, we affirm the denial of post-conviction relief.

The defendant, Robert L. Lyle, appeals the revocation of his community corrections sentence, claiming that the trial court erred by ordering that he serve a portion of his total effective sentence in confinement.  Discerning no error, we affirm.

This case arises from the attempted murder of Latoya Pipkins in September of 2012.  For this offense, the Defendant-Appellant, Donald Peden, was indicted by the Davidson County Grand Jury for attempted first degree murder in count one, especially aggravated robbery in count two, and theft of property valued at more than five hundred dollars, but less than one thousand dollars, in count three.  Prior to trial, Peden filed a motion in limine to exclude evidence recovered from a vehicle that he and the victim jointly owned.  He also asked the court to exclude photographs of his hands as well as clothing that was taken by investigating officers while he was incarcerated.  Following a trial, the State withdrew count three, and the jury convicted Peden of attempted first degree murder in count one and the lesser-included offense of theft of property in count two.  The trial court sentenced Peden to eleven months and twenty nine days’ incarceration on count two, and after a separate sentencing hearing, sentenced Peden as a Range III career offender to sixty years’ incarceration on count one.  On appeal, Peden argues that (1) the evidence is insufficient to support his attempted first degree murder conviction; (2) the trial court erred in denying his motions to suppress evidence seized in violation of his Fourth, Fifth, and Sixth Amendment rights; and (3) improperly sentenced him as a Range III, career offender.  Upon review, we affirm the judgment of the trial court.

The defendant, Shenekia M. Parks, was sentenced by the trial court to ten years in the Tennessee Department of Correction after pleading guilty to attempted aggravated child neglect. On appeal, the defendant argues that the trial court improperly enhanced her sentence for attempted aggravated child neglect, a Class B felony, from the minimum of eight years to ten years. The defendant argues the trial court failed to properly apply the applicable enhancement and mitigating factors to her sentence. The defendant also contends that the trial court erroneously denied her request for alternative sentencing. Following our review of the briefs, the record, and the applicable law, we affirm the defendant’s ten-year sentence.

This is a termination of parental rights case. Appellant/Father appeals the termination of his parental rights on the sole ground of persistence of the conditions that led to the child’s removal. Tenn. Code Ann. §36-1-113(g)(3). As a threshold requirement, in order for the persistence of conditions ground to apply in termination of parental rights proceedings, there must be a prior order adjudicating the child to be dependent and neglected. No such order is included in the appellate record. Furthermore, it is undisputed that Appellant was incarcerated at the time the child was removed from the home. Removal of the child from the parent’s home is a threshold requirement for applicability of the persistence of conditions ground. Because there is no order on dependency and neglect and because the child was not removed from Appellant’s custody or home, we conclude that the threshold requirements for applicability of the persistence of conditions ground are not met in this case. Reversed and remanded.

Defendant, Timothy John McKnight, Jr., appeals from his conviction of aggravated robbery, arguing that the evidence is insufficient and that the trial court abused its discretion by improperly limiting cross-examination of two witnesses.  After carefully reviewing the record, we affirm the judgment of the trial court.

The Defendant, Robert Andrew Hawkins, was convicted by a Claiborne County jury of aggravated kidnapping and two counts of aggravated assault. For these offenses, he received an effective sentence of sixteen years' in the Tennessee Department of Correction. On appeal, he argues that the trial court erred by denying his motion for a mistrial and abused its discretion by imposing consecutive sentences. Upon review, we affirm the judgments of the trial court.

This appeal arises from a finding of dependency and neglect. Ashley D. (“Mother”) and Matthew M. (“Father”) are the parents of Samuel D. and Uriah D. The Tennessee Department of Children’s Services (“DCS”) sought a finding of dependency and neglect regarding Samuel and Uriah stemming from the alleged sexual abuse by Father of their older half-siblings, Gage and Gracie, with Mother’s knowledge. The Circuit Court for Knox County, Fourth Circuit (“the Trial Court”) adjudicated Samuel and Uriah dependent and neglected. Mother and Father appeal. DCS concedes one of Father’s issues, which we reverse. Otherwise, we affirm the judgment of the Trial Court finding Samuel and Uriah dependent and neglected.

Antwan M. Cartwright (“the Petitioner”) appeals from the post-conviction court’s denial of his petition for post-conviction relief.  The Petitioner contends that he was denied the effective assistance of counsel based upon trial counsel’s failure to timely deliver discovery to the Petitioner and because the Petitioner only met with trial counsel four times during counsel’s two-year representation.  The Petitioner further argues that, but for trial counsel’s inadequate performance, he would not have accepted the State’s plea offer to serve a twenty-five year sentence at 100%.  After a thorough review of the appellate record and applicable law, we affirm the judgment of the post-conviction court.

This interlocutory appeal involves the failure of an Ohio corporation to obtain authorization to transact business in Tennessee prior to filing suit. The Ohio corporation filed this action against a former employee, seeking monetary damages and injunctive relief for breach of contract, unjust enrichment, and misappropriation of trade secrets. The former employee moved for partial summary judgment on the ground that the Ohio corporation had not obtained a certificate of authority from the Tennessee Secretary of State, as required by law, and thus was barred from maintaining an action in Tennessee court. The trial court granted the motion but allowed the Ohio corporation thirty days to obtain the certificate. After obtaining the certificate, the Ohio corporation filed a motion to reinstate its claims against the former employee. The trial court denied the motion, ruling that the certificate of authority only allowed the Ohio corporation to maintain an action on claims that arose after the date the certificate of authority was issued. We granted the Ohio corporation’s application for an interlocutory appeal. We conclude, based on the plain language of Tennessee Code Annotated § 48-25-102, that a foreign corporation who has filed an action in a Tennessee court without a certificate of authority may obtain a certificate during the pendency of the case and then prosecute the action. Therefore, we reverse the decision of the trial court and remand for further proceedings.

The petitioner entered pleas of nolo contendere to aggravated robbery, robbery, and fraudulent use of a credit card for which he received an effective sentence of twelve years. He filed the instant post-conviction petition, and following an evidentiary hearing, the post-conviction court denied relief. On appeal, the petitioner contends his guilty plea was not knowingly, intelligently, and voluntarily entered due to ineffective assistance of counsel. Upon review of the record and the applicable law, we affirm the judgment of the post-conviction court.

The defendant, Michael Frazier, was convicted by a Shelby County Criminal Court jury of especially aggravated kidnapping, a Class A felony; aggravated robbery, a Class B felony; and carrying a weapon with the intent to go armed, a Class A misdemeanor. He was sentenced by the trial court to an effective term of thirty-seven years, eleven months, and twenty-nine days in the Department of Correction. The sole issue he raises on appeal is whether the evidence is sufficient to sustain his especially aggravated kidnapping and aggravated robbery convictions. Following our review, we affirm the judgments of the trial court.

The petitioner, Torriano Floyd, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of counsel. Following our review, we affirm the denial of the petition.

The Petitioner, Desmond Shelton Spann, filed a petition in the Davidson County Criminal Court seeking post-conviction relief from his convictions of possession of 300 grams or more of cocaine with the intent to deliver within 1,000 feet of a school and conspiracy to possess 300 grams or more of cocaine with the intent to deliver within 1,000 feet of a school.  The Petitioner alleged that his counsel was ineffective at trial and on appeal.  The post-conviction court denied the petition, and the Petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

Petitioner, Willie Andrew Cole, appeals pro se from the post-conviction court’s summary dismissal of his post-conviction petition for DNA analysis.  Petitioner contends that the trial court erred by denying his request for DNA testing pursuant to the Post-Conviction DNA Analysis Act.  We affirm the judgment of the post-conviction court.

The appellant, Rickey Lee Brown, Jr., was convicted in the Sumner County Criminal Court of driving under the influence (DUI); DUI per se; DUI, fourth offense; and driving on a revoked license.  The trial court merged the first three offenses and sentenced the appellant as a Range II, multiple offender to four years for DUI, fourth offense.  The trial court sentenced him to six months in confinement to be served at 75% release eligibility for driving on a revoked license and ordered that the four-year sentence be served consecutively to the six-month sentence.  On appeal, the appellant contends that his four-year sentence is excessive.  Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

This is an accelerated interlocutory appeal from the trial court’s denial of a recusal motion. Having reviewed the trial court’s ruling on the motion pursuant to the de novo standard of review required by Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.  

Homeowners’ association brought suit against homeowner who refused to paint his home as requested. After a bench trial, the court determined that the board of the homeowners’ association had properly exercised its discretion and ordered homeowner to paint his house. Homeowner appeals, contending that the appearance of his home was consistent with the appearance of homes and the common areas of the subdivision. Upon our de novo review, we have determined that the board had authority under the bylaws governing the association and the subdivision’s covenants to require the homeowner to paint his home, and that the board’s action was appropriate. Accordingly, we affirm the judgment.  

The defendant, Thomas Edward Kotewa, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2006 Anderson County Criminal Court guilty-pleaded conviction of second degree murder. Discerning no error, we affirm.