APPELLATE COURT OPINIONS

Petitioner, Tony Reed Hildebrand, filed a pro se motion for post-conviction relief in which he alleged ineffective assistance of counsel, alleged that he was “falsely accused,” and insisted that a “court order [was] not honored.” The post-conviction court denied relief and dismissed the petition without a hearing. After our review, we conclude that the petition alleged a colorable claim of ineffective assistance of counsel and Petitioner was entitled to appointed counsel, if found to be indigent, and to an opportunity to amend his petition. Accordingly, the judgment of the post-conviction court is reversed, and the case is remanded.

Although I concur with lead opinion’s conclusion that the trial court did not abuse its discretion in ordering consecutive sentencing, I write separately to express my opinion that the imposition of a 125-year sentence to be served at 100% pushes to the limit the presumption of reasonableness underState v. Pollard, 432 S.W.3d 851 (Tenn. 2013) and State v. Bise, 380 S.W.3d 682 (Tenn. 2012).  Without diminishing the seriousness of the offense of rape of a child, I would note that the 125-year sentence is over twice as long as a life sentence for first degree murder, 60 years.

          First, I concur in Judge Holloway’s separate opinion, and with the results reached in the lead opinion.  Second, I write to remind both the State and the defense bar that under binding precedent from our supreme court that “[s]imply stated, polygraph evidence is inadmissible.”  State v. Sexton, 368 S.W.3d 371, 409 (Tenn. 2012).  The results of polygraph examinations are inherently unreliable, they are thus not probative, and they lack relevance.  A defendant’s willingness or refusal to take a polygraph test is not admissible.  Id.  The trial court should have sua sponte ruled that all evidence of the polygraph examination in this case must be excluded.  I know of no exception to the rule of inadmissibility of such evidence.  Whether the threat or use of a polygraph examination might someday be argued by a defendant as evidence of an involuntary statement or as evidence of coercion, and thus be an exception to the rule of inadmissibility, is not raised in this case.

A Macon County jury convicted the Defendant, Aurelio Garcia Sanchez, of five counts of rape of a child.  The trial court sentenced the Defendant to serve consecutive twenty-five year sentences for each conviction, for an effective sentence of 125 years in the Tennessee Department of Correction.  On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion to suppress his statement to police; (2) the evidence is insufficient to sustain his convictions; and (3) the trial court erred when it imposed consecutive sentences.  After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

The Petitioner, Jamell Faulkner, filed a petition for post-conviction relief from his convictions of second degree murder and especially aggravated burglary and the accompanying effective sentence of fifteen years.  The Petitioner alleged that his lead counsel and his co-counsel were ineffective and that his guilty pleas were not knowingly and voluntarily entered.  The post-conviction court denied the petition, and the Petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

Following a jury trial, the Defendant, Tavarus Detterio Griffin, was convicted of two counts of aggravated robbery and two counts of aggravated kidnapping.  In this appeal as of right, the Defendant contends that: (1) the evidence is insufficient to support his convictions; (2) the entire jury pool was tainted when, during voir dire, a juror mentioned that she had been called for jury service at the Defendant’s first trial on these charges; (3) the jury foreman’s comment, prior to the beginning of deliberations, that he knew the Defendant was guilty constituted juror misconduct; and (4) the prosecutor’s use of testimony from the Defendant’s allocution at his first trial to impeach him with a prior inconsistent statement constituted reversible error.  Following our review, we affirm the judgments of the trial court.

Appellant appeals the Tennessee Claims Commission’s dismissal of his healthcare liability claim against the Appellee, State of Tennessee. Appellant failed to include a certificate of good faith with his complaint, as required by Tennessee Code Annotated Section 29-26-122. Accordingly, the State filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss Appellant’s complaint. The Claims Commission granted the State’s motion. We affirm.

The petitioner, Jerry Kirkpatrick, appeals the denial of his petition for post-conviction from his convictions for burglary and theft of property over $1,000, arguing that he received ineffective assistance of counsel at trial. After review, we affirm the denial of the petition.

The petitioner, Kermit Penley, appeals the denial of his Rule 36.1 Motion to Correct an Illegal Sentence. He argues that he received a sentence of “life with the possibility of parole” with his parole eligibility occurring after service of eighty-five percent of his sentence, and he contends that this sentence is not authorized by statute. Following our review, we conclude that the petitioner was sentenced to life imprisonment and that his sentence is not illegal. We affirm the judgment of the trial court

A Hearing Panel of the Board of Professional Responsibility (the “Hearing Panel”) found that an attorney’s handling of three separate criminal appeals violated certain ethical rules. See Tenn. Sup. Ct. R. 8, RPC 1.3, 1.4, 3.2, and 8.4(a), (d). The Hearing Panel suspended the attorney from the practice of law for six months and ordered him to serve thirty days’ active suspension and five months’ probation. The attorney appealed, and the trial court affirmed the Hearing Panel’s judgment. On appeal to this Court, the attorney contends that the Hearing Panel abused its discretion and acted arbitrarily and capriciously. Additionally, the attorney argues that the attorney disciplinary process in Tennessee is unconstitutional. After carefully reviewing the record and applicable law, we affirm the judgment of the trial court upholding the Hearing Panel’s decision.

Defendant, Christopher Lee Byrge, was convicted of aggravated sexual battery and received a nine-year sentence. He appeals his conviction, arguing that: (1) the trial court erred in denying Defendant's motion to suppress his admissions; (2) the trial court erred by not requiring the State to elect the specific date on which the alleged offense occurred; (3) the trial court erred by giving a sequential jury instruction; (4) the trial court erred in denying Defendant's request for a special jury instruction on corroboration of admissions against interest; and (5) the evidence was insufficient to support his conviction. After a careful review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the trial court.

Following his arrest at a sobriety checkpoint on October 7, 2011, the Defendant, Kenneth Dwayne Mitchell, was indicted for driving under the influence (“DUI”), possession of drug paraphernalia, and driving with a blood alcohol content (“BAC”) of .08% or greater (“DUI per se”). See Tenn. Code Ann. §§ 39-17-425 & 39-17-425. Following a jury trial, the Defendant was convicted of DUI per se and acquitted of the remaining charges. In this appeal as of right, the Defendant contends that the trial court erred in denying his motion to suppress, arguing that his seizure at the sobriety checkpoint was unreasonable because adequate notice of the roadblock was not provided. Discerning no error, we affirm the judgment of the trial court.

This is a health care liability action arising from decedent's death. Appellant filed this action against Dr. Radwan Khuri. Dr. Khuri moved to dismiss this action for failure to comply with the notice requirement of Tennessee Code Annotated section 29-26-121 et seq. Specifically, Dr. Khuri challenged whether the medical release provided with the pre-suit notice letter was compliant with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The trial court agreed with Dr. Khuri and dismissed the action with prejudice. Appellant timely appealed. We affirm.

We granted this appeal to determine whether Tennessee Rule of Criminal Procedure 36.1 (“Rule 36.1”) permits parties to seek correction of expired illegal sentences. We hold that Rule 36.1 does not expand the scope of relief available for illegal sentence claims and therefore does not authorize the correction of expired illegal sentences. We also conclude that a Rule 36.1 motion alleging that a trial court failed to award pretrial jail credit is insufficient to state a colorable claim for relief from an illegal sentence. Applying these holdings, we affirm the judgment of the Court of Criminal Appeals upholding the trial court’s dismissal of the defendant’s Rule 36.1 motion.

We granted this appeal to determine whether a party filing a motion under Tennessee Rule of Criminal Procedure 36.1 (“Rule 36.1”) states a colorable claim for relief for correction of an illegal sentence by alleging that the trial court increased his sentence above the statutory presumptive minimum sentence but failed to find enhancement factors justifying the increase. Answering this question requires us to determine the meaning of two terms used in Rule 36.1—“colorable claim” and “illegal sentence.” We hold that the definition of “colorable claim” in Rule 28, section 2(H) of the Rules of the Tennessee Supreme Court applies to the term “colorable claim” in Rule 36.1. Additionally, we conclude that the definition of “illegal sentence” in Rule 36.1 is coextensive with, and actually mirrors, the definition this Court has applied to the term for purposes of habeas corpus proceedings. Compare Tenn. R. Crim. P. 36.1(a), with Cantrell v. Easterling, 346 S.W.3d 445, 452 (Tenn. 2011). Taking the allegations of the Rule 36.1 motion in this case as true and viewing them in the light most favorable to the moving party, we conclude that the moving party has failed to allege a colorable claim for correction of an illegal sentence. Accordingly, the judgment of the Court of Criminal Appeals affirming the trial court’s denial of the Rule 36.1 motion is affirmed.

Petitioner, Cayetano Flores, appeals the denial of his petition for post-conviction relief.  He argues that his trial counsel provided ineffective assistance by operating under a conflict of interest, inadequately discussing various aspects of the case and the details of the plea agreement, and failing to file a motion to sever.  After a careful review of the record, we affirm the prost-conviction court’s denial of post-conviction relief.

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion for recusal filed by Timothy Messmaker ("Former Husband") in the parties' post-dissolution modification proceedings. Having reviewed the petition for recusal appeal filed by Former Husband, and finding no error in Trial Court's ruling, we affirm.

Plaintiff policy holder filed suit against defendant insurance company after the insurance company denied his claim for benefits. Defendant filed a motion for summary judgment based on the plaintiff’s failure to utilize the appeals procedure outlined in the contract for insurance before filing a lawsuit. The trial court granted the motion for summary judgment. Plaintiff appeals. Discerning no error, we affirm.

In this appeal, pro se Petitioner Mario D. Thomas challenges the Hardeman County Circuit Court’s summary dismissal of his petition for writ of habeas corpus relief.  Upon our review, we affirm the judgment of the habeas corpus court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Petitioner, Douglas Zweig, was convicted in 1981 of attempt to commit a felony: to wit, third degree burglary.  See Tenn. Code Ann. § 39-603 (1975).  He was sentenced to serve eleven months, twenty-nine days in the Shelby County Correctional Center, but the trial court suspended his sentence to two years of probation after service of thirty days in confinement.  In 2014, he filed a motion under Tennessee Rule of Criminal Procedure 36, requesting that the trial court correct the judgment to reflect that he was convicted of a misdemeanor rather than a felony.  The trial court denied his petition.  Upon review, we conclude that petitioner’s conviction was a felony and, therefore, affirm the judgment of the trial court. 

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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.  In this case, it is undisputed that Employee sustained an injury arising out of and in the scope of his employment; the issue on appeal, however, is whether Employee carried his burden of proving that his work-related injury caused a permanent disability.  The trial court found that Employee failed to carry his burden of proving any permanent disability resulting from the injury.  Based on our review of the evidence, we agree with the trial court’s finding, and we therefore affirm the trial court’s judgment.

Employee aggravated a pre-existing asymptomatic condition in her shoulder while working for Employer and failed to make a meaningful return to work.  The trial court found employee to be 100 percent disabled and awarded permanent total disability benefits.  Employer appealed, arguing that the trial court erred in determining that employee sustained a compensable injury in the absence of anatomical change and in awarding employee permanent total disability benefits.  After our review of the record, we affirm the trial court's judgment.

Father and Mother divorced in February 2012. Later that same year, Father’s employer notified him that his high-paying sales job would be eliminated. Due to his unemployment, Father filed a petition to modify his alimony and child support obligations. The trial court concluded there was a material change in circumstances and reduced Father’s monthly alimony and child support obligations. Father argues on appeal that the trial court erred by applying an incorrect legal standard; not reducing his alimony and child support obligations further; and declining to reduce his alimony in futuro obligation retroactive to the date of his petition. As an additional issue, Mother argues that the trial court erred in measuring any change in circumstances from the final decree of divorce rather than an agreed order addressing payments to Mother entered after Father learned that he was losing his job. Both Father and Mother seek an award of their attorney’s fees incurred on appeal. After a review of the record on appeal, we conclude that the trial court correctly found a material change in circumstances but erred in imputing income to Father. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

Three children were removed from their home as a result of a petition filed by the Department of Children’s Services, alleging that the stepfather was guilty of sexual abuse of the oldest child. After the children were removed from the home, it was found that the Mother knew of but had failed to report previous abuse. The children were subsequently adjudicated dependent and neglected; the Department later filed a petition for termination of the Mother’s parental rights. Her parental rights were terminated as to all three children on the grounds of severe child abuse and persistence of conditions. Mother appeals the court’s holding that termination of her parental rights was in her children’s best interests. Finding no error, we affirm the judgment.

Because I find the evidence preponderates against the trial court’s finding that Father lacked a reasonable purpose for relocating, I respectfully dissent. As noted by the majority, we have defined “reasonable purpose” to mean “a significant purpose, substantial when weighed against the gravity of the loss of the non-custodial parent’s ability to participate fully in their children’s lives in a more meaningful way.” Redmon v. Redmon, No. W2013-01017-COA-R3-CV, 2014 WL 1694708, at *5 (Tenn. Ct. App. Apr. 29, 2014). In my view, such precedent represents a departure from the natural and ordinary meaning of the words found in Tennessee Code Annotated § 36-6-108, otherwise known as the Parental Relocation Statute. Giving the words “reasonable purpose” their natural and ordinary meaning, from this record, I find that Mother failed to show Father lacked a reasonable purpose for relocating with their child. As such and because no other Tennessee Code Annotated § 36-6-108(d)(1) ground was present that would prevent relocation, I would reverse the trial court and remand with instructions to approve the relocation.