APPELLATE COURT OPINIONS

Pursuant to a plea agreement, the Defendant, Emily Virginia Helton, pleaded guilty to promotion of methamphetamine manufacture, with the trial court to determine the sentence.  After a hearing, the trial court ordered the Defendant to serve three years and six months in the Tennessee Department of Correction.  On appeal, the Defendant asserts that the trial court erred when it denied her an alternative sentence.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

A Davidson County jury convicted the Defendant, Jonathan Christopher Carey, of driving while intoxicated (“DUI”), and the trial court found him guilty of violating the implied consent law.  The trial court sentenced the Defendant to eleven months and twenty nine days for the DUI conviction and ordered that he lose his driving privileges for one year for violating the implied consent law.  On appeal, the Defendant contends that: (1) his constitutional right pursuant to the Confrontation Clause was violated; (2) the trial court erred when it declined to instruct the jury about a missing witness; (3) the trial court erred when it admitted the video recording of his traffic stop into evidence; (4) the evidence is insufficient to sustain his convictions; and (5) the trial court erred when it enhanced the Defendant’s sentence based upon a reckless driving charge.  After a thorough review of the record and applicable law, we conclude that the Defendant’s right to confront a witness against him was violated when the trial court allowed the admission of the videotape of him performing field sobriety tasks and the officer conducting those tasks was not present at trial.  Accordingly, we reverse the trial court’s judgments, vacate the Defendant’s convictions, and remand the case for further proceedings consistent with this opinion.

The defendant, Jennifer Lee Dickey, appeals the trial court’s decision ordering her to serve her sentence in incarceration.  She argues that the trial court erred in denying her an alternative sentence.  Following our review, we affirm the judgment of the trial court.

The petitioner, Tavaria L. Merritt, appeals the denial of his petition for post-conviction relief.  He argues that trial counsel was ineffective for failing to investigate his mental capacity and for failing to meet with him a sufficient number of times.  He also argues that his guilty pleas were not knowing and voluntary.  Following our review, we affirm the judgment of the post-conviction court.

The Petitioner, Russell Leaks, filed a petition for habeas corpus relief.  He contended that he was entitled to relief because he was arrested without a warrant while he was on probation.  The habeas corpus court summarily dismissed the petition, and the Petitioner appealed.  Upon review, we affirm the judgment of the habeas corpus court.

The Petitioner, Troy Lynn Fox, appeals the Wilson County Criminal Court’s summary dismissal of his petition for post-conviction relief from his conviction of first degree premeditated murder and resulting sentence of life in the Department of Correction.  On appeal, he contends that his petition states a colorable claim for relief under the Post-Conviction Procedure Act, thus entitling him to counsel and to an evidentiary hearing. The State concedes that the trial court erred.  Based upon the record and the parties’ briefs, we agree with the Petitioner and the State, reverse the trial court’s order dismissing the petition, and remand this case to the trial court for the appointment of counsel and an evidentiary hearing.

This case involves the modification of a permanent parenting plan. Father asked the trial court to name him the primary residential parent, alleging a material change in circumstance. The court denied the request to change the primary residential parent, finding Father had failed to meet his burden of proof, but nonetheless modified the parties’ residential parenting schedule. On appeal, Father argues the trial court applied the wrong standard in determining whether a material change had occurred and erred in finding he had not met his burden of proof. We affirm the trial court’s finding that Father did not prove a material change in circumstance sufficient to justify a change in the primary residential parent; however, we find proof of a material change of circumstance sufficient to meet the lower standard for modification of the residential parenting schedule. Because in modifying the residential parenting schedule the trial court failed to consider the relevant factors in Tennessee Code Annotated § 36-6-106(a), we reverse in part and remand with instructions for the trial court to make a determination of whether it is in the child’s best interest to modify the residential parenting schedule and, if so, to modify the schedule accordingly.
   

In this post-divorce dispute, Father asserts the trial court erred in failing to find a material change in circumstances warranting a change in the residential schedule. We have reviewed the evidence and find that the significant change in Father’s work schedule, the parties’ admitted failure to adhere strictly to the parenting plan, and Father’s remarriage, when taken together, constitute a material change affecting the child’s best interest. Therefore, we reverse the trial court and remand the case for a determination of whether a modification of the residential schedule is in the child’s best interest.  

Sabrina Howard (“the Defendant”) appeals from the Shelby County Criminal Court’s denial of her motion to suspend the remainder of her sentence. The Defendant contends that the trial court abused its discretion by denying the motion without an evidentiary hearing. Because the record shows that the motion was untimely, we affirm the order of the trial court.

The Petitioner, Joyce Watkins, appeals the Shelby County Criminal Court's denial of her petition for habeas corpus relief from her 1988 convictions for first degree murder and aggravated rape and her effective life sentence. The Petitioner contends that the habeas corpus court erred by denying relief because the indictment failed to confer jurisdiction upon the trial court. We affirm the judgment of the habeas corpus court.

The appellant, Nicky Lowe Evans, pled guilty in the Madison County Circuit Court to two counts of theft of property valued $10,000 or more but less than $60,000, a Class C felony; four counts of theft of property valued $1,000 or more but less than $10,000, a Class D felony; and five counts of operating a home improvement business without a license, a Class A misdemeanor. After a sentencing hearing, the appellant received an effective sentence of ten years, eleven months, and twenty-nine days in confinement. On appeal, the appellant contends that the length and manner of service of his sentences is excessive. Based upon the record and the parties' briefs, we conclude that the appellant's conviction in count one, theft of property valued $10,000 or more but less than $60,000, must be reversed and the charge dismissed. The appellant's sentences for his remaining convictions are affirmed. However, the judgments of conviction for counts seven through eleven reflect the incorrect convicted offense. Therefore, the case is remanded to the trial court for the correction of those judgments.

This is a divorce action in which the trial court granted the husband a divorce and entered a parenting plan, designating the husband as the primary residential parent but awarding the wife substantially equal co-parenting time with the minor child. The husband appeals, raising numerous issues relating to the parenting plan. We affirm.

The Petitioner, Steven O. Hughes-Mabry, appeals the Sullivan County Circuit Court‘s denial of his petition for post-conviction relief from his convictions of possession of 0.5 gram or more of cocaine with the intent to sell or deliver within 1000' of a school zone, introduction of contraband into a penal institution, and driving on a suspended license, for which he is serving an effective fifteen-year sentence. He contends that the post-conviction court erred in denying relief on his ineffective assistance of counsel claims and that the court erred in excluding evidence relevant to an issue that was not raised in the petitions. We affirm the judgment of the post-conviction court.

This is an appeal of the general sessions court’s grant of a one-year extension of an order of protection. The respondent, a pro se litigant, appealed the extension to the circuit court. The circuit court initially dismissed the appeal as untimely. Upon further review, the circuit court transferred the appeal to this court for lack of jurisdiction. We hold that the circuit court had jurisdiction to hear the appeal. However, a final order for purposes of appeal was never entered. We remand this case for entry of a final order.

Subdivision developer brought a breach of contract action against the contractor who had been engaged nine years previously to pave the roads in the subdivision after the contractor refused to complete the second phase of paving for the roads at the price specified in the contract. The contractor moved for summary judgment on the grounds that the provision in the contract relating to the second phase of paving was a separate offer which had not been accepted by the developer and that the action was barred by laches and the statute of limitations. Developer also moved for summary judgment. The trial court granted summary judgment to developer and denied summary judgment to contractor. Contractor appeals. Discerning no error, we affirm the judgment of the trial court.  

A mother and father were divorced in 1993, and the mother was granted custody of the two children born of the marriage; the father was ordered to pay child support for their two children in the amount of $50 per week. In 1997 the children came into the custody of their maternal grandfather, and in 2007, the Tennessee Department of Human Services Child Support Division filed a petition to set child support against the father. After a hearing in February 2008 that the father did not attend, the trial court entered an order in March that increased his monthly support obligation and declared that he owed more than $31,000 in arrearages. Thereafter the father filed a pro se petition to modify the support order, asserting that the March 2008 order was defective; his petition was dismissed. On appeal to this court we held that the father was entitled to relief and vacated the order. The father thereafter filed a Motion for Further Relief in the trial court seeking reimbursement of child support payments he made pursuant to the March 2008 order; after a hearing on the motion, the court entered an order in accordance with the Court of Appeals’ opinion and denied father’s motion for further relief. Father appeals; finding no error, we affirm the judgment of the juvenile court.

After a bench trial, the Knox County Criminal Court convicted the appellant, Randy Lane, of five counts of aggravated burglary and six counts of felony theft of property and sentenced him to a total effective sentence of eight years. On appeal, the appellant challenges the trial court's denial of his motion to suppress his statement, arguing that he made the statement as part of a plea agreement that turned out to be unenforceable. The State responds that the appellant is not entitled to relief because the State and the appellant entered into a subsequent agreement, which he materially breached. Based upon the record and the parties' briefs, we agree with the appellant that the trial court should have granted his motion to suppress. Therefore, his convictions are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

The Defendant, Kevin Lynn Montgomery, pleaded guilty to two counts of sexual battery and received an effective four-year sentence. More than five years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence or permit him to withdraw his guilty pleas because lifetime community supervision was not authorized by statute. The trial court denied the motion after an evidentiary hearing. On appeal, he contends that the trial court erred in denying his motion. We affirm the judgment of the trial court.

Upon review of the record transmitted to us on appeal, we conclude that this case should have been appealed to the Tennessee Court of Criminal Appeals. As we are without jurisdiction, we must transfer the case to the Court of Criminal Appeals in accordance with Rule 17 of the Tennessee Rules of Appellate Procedure.

The Defendant-Appellant, Deborah Nowakowski, was convicted by a Wilson County jury of driving under the influence (DUI) and driving on a revoked license.  At a subsequent bench trial, the trial court found that Nowakowski had five previous DUI convictions and one previous conviction for driving on a revoked license.  She was therefore convicted of DUI, sixth offense, and violating the Motor Vehicle Habitual Offenders Act (MVHOA).  She received a total effective sentence of twelve years, eleven months and twenty-nine days’ incarceration.  On appeal, the sole issue presented for our review is whether the trial court erred in holding harmless the erroneous admission of a statement referencing Nowakowski’s prior DUI convictions.  Discerning no reversible error, we affirm the judgment of the trial court.

Appellant filed suit against the City of Jackson after her home was demolished, asserting causes of action for trespass and inverse condemnation. The City of Jackson filed an answer denying any liability and later moved for summary judgment on all claims. After a hearing, the trial court determined that the trespass claim should be dismissed due to governmental immunity. Moreover, the trial court concluded that Appellant had failed to timely assert her inverse condemnation claim. Appellant appeals only the dismissal of her inverse condemnation claim. Having reviewed the trial court's grant of summary judgment on that issue, we affirm.

The petitioner appeals from a decision of the Board of Law Examiners denying his application to take the Tennessee bar examination. The denial was based on Mr. Chong’s noncompliance with Supreme Court Rule 7, section 7.01. We affirm the judgment of the Board of Law Examiners.

In this declaratory judgment action, one of the co-defendants filed an answer and counterclaim that was dismissed by the trial court upon motion of the plaintiff. Nearly two years later, the co-defendant filed a motion pursuant to Tennessee Rules of Civil Procedure 59 and 60.02, seeking relief from the order dismissing his counterclaim. Said co-defendant asserted that he was never served with the motion to dismiss or the order of dismissal, despite the representation of service by mail pursuant to the certificates of service contained within those pleadings. The trial court conducted a hearing on the co-defendant's motion for relief from the earlier order, allowing the co-defendant to present evidence to rebut the presumption of proper service based on the certificates of service. The court subsequently denied the co-defendant's motion for relief from the earlier order, determining that he had not presented clear and convincing evidence to rebut the presumption of proper service. The co-defendant has timely appealed. Discerning no error, we affirm.

Petitioner, Eric Bernard Howard, appeals from the trial court’s dismissal of his pro se petition for writ of habeas corpus in which he alleged various constitutional violations concerning his convictions and seventeen-year sentence for two counts of aggravated robbery.  On appeal, Petitioner argues that the trial court erred by summarily dismissing his petition without a hearing and that his convictions are void because of his diminished mental capacity at the time of the offenses.  After a thorough review, we affirm the judgment of the habeas corpus court.

The petitioner, Douglas L. Lyle, Sr., appeals the post-conviction court's denial of his petition for relief from his aggravated sexual battery conviction, asserting that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court denying relief.