APPELLATE COURT OPINIONS

Employee of a contractor of alarm systems applied to be registered with the Alarm Systems Contractors Board. When his application was denied, the employee filed a petition for writ of certiorari seeking review of the Board’s decision; on the Board’s motion, the trial court dismissed the petition pursuant to Tenn. R. Civ. P. 12.02(6). Finding that the petition alleges sufficient facts to establish a right to certiorari review, we reverse the judgment and remand for further proceedings.

A jury convicted the Defendant, Romarcus Echols, of especially aggravated kidnapping, especially aggravated robbery, aggravated burglary, and employing a firearm during the commission of a dangerous felony. The trial court imposed an effective sentence of 60 years. The sentences for especially aggravated kidnapping, especially aggravated robbery, and employing a firearm during the commission of a dangerous felony were ordered to be served consecutively with each other, but concurrently with his sentence for aggravated burglary. The Defendant raises three issues on direct appeal: (1) whether the trial court erred when it instructed the jury that especially aggravated kidnapping as charged in this case could be the predicate felony for employing a firearm during the commission of a dangerous felony; (2) whether there was sufficient evidence to support the Defendant’s conviction for especially aggravated kidnapping; and (3) whether the trial court abused its discretion by ordering consecutive sentences. Upon review of the record and applicable law, we affirm the judgments for especially aggravated kidnapping, especially aggravated robbery, and aggravated burglary, but reverse the judgment for employing a firearm during the commission of a dangerous felony.

Following a jury trial, the Defendant, Cecilia Williams, was convicted of three counts of assault and one count of resisting arrest. The trial court sentenced the Defendant to concurrent terms of 11 months and 29 days for each of the assaults and to a consecutive sentence of six months for resisting arrest. The court ordered split confinement for a period of six months and suspended the remainder of the Defendant’s sentence to supervised probation. On appeal, the Defendant asserts that there was insufficient evidence to support her convictions. After reviewing the record and applicable law, we affirm the judgments of the trial court.

Abraham Mitchell (“the Petitioner”) pleaded guilty to one count of vandalism over $10,000 and one count of attempted theft of property valued over $1,000 and was sentenced to four years as a Range I offender. In this appeal from the denial of post-conviction relief, the Petitioner argues that his plea was not entered voluntarily, knowingly, and intelligently; that he was denied effective assistance of counsel; and that he was denied due process of law. After a thorough review of the record and applicable law, we affirm the judgment of the postconviction court.

Alexa Williams a.k.a. Elizabeth Williams El (“the Appellant”) was convicted by a jury of ten traffic offenses. In this direct appeal, the Appellant contends: (1) the judgments of conviction are not valid because bail was excessive; (2) the trial court improperly refused to allow the Appellant to have “counsel of her choice”; and (3) the trial court lacked jurisdiction. After a thorough review of the record and the applicable law, we find the issues without merit and affirm the judgments of the trial court.

Mother appeals the finding that termination of her parental rights to her child was in the child’s best interest. Finding no error, we affirm.

The judgment from which the pro se appellants, Frances Hamby and Stephen Hamby, seek to appeal was entered on February 12, 2013. The Notice of Appeal was filed more than thirty (30) days from the date of entry of the judgment. The appellee, The Bank of New York Mellon, filed a motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.

This appeal is from an order certified to be a final judgment pursuant to Rule 54.02 of the Rules of Civil Procedure. The order dismissed all of the claims made by the Plaintiff, SITEWORX, LLC (“SITEWORX”), against the Defendants, J & M Incorporated, Henson Construction Services, Inc., Clay Williams & Associates, Inc., Roane County, Tennessee, and Western Surety Company (“Defendants”). The order left unresolved the claims between Third-Party Plaintiff, J & M Incorporated, and Third-Party Defendant, Brian Mullins (“Mullins”). Because only Mullins appealed from the judgment and the judgment is not adverse to him, this appeal is dismissed for lack of jurisdiction.

Defendant, Antoine Cardet Smith, was indicted by the Montgomery County grand jury for one count of aggravated robbery.  A jury found Defendant guilty of the charged offense, and the trial court sentenced Defendant to serve 11 years and six months in the Tennessee Department of Correction.  Defendant appeals his conviction and asserts that the trial court erred by denying his motion to suppress evidence of his identification resulting from a photographic lineup and evidence of a DNA comparison; that the evidence was insufficient to support his conviction; and that the trial court erred by denying his motion for new trial based on the comments of a prospective juror during voir dire.  Having carefully reviewed the record before us, we find no error and affirm the judgment of the trial court.

Petitioner, Martrell Holloway, appeals the summary dismissal of his second petition for postconviction relief, which was filed during the statute of limitations period but after he previously withdrew his first petition before an evidentiary hearing was held. The postconviction court concluded that petitioner had waived the claims because they were the same as those contained in the first petition. In its brief, the State conceded that the postconviction court committed reversible error in doing so. Following our review, we conclude that the doctrine of waiver does not preclude petitioner from seeking post-conviction relief in this subsequent petition and reverse the judgment of the post-conviction court.

The trial court granted summary judgment to the Appellee medical providers on the basis of Appellant’s failure to comply with the health care liability notice provisions, expiration of the applicable statute of limitations, failure to state a claim upon which relief can be granted, and res judicata. We affirm as to the trial court’s ruling that Appellant’s claims are barred by the doctrine of res judicata.

The trial court vacated an arbitration award of attorney’s fees in favor of the defendant general contractor and its surety, concluding that such award exceeded the power of the arbitrator. We reverse and remand to the trial court for the entry of an order confirming the arbitration award and a determination of the reasonable attorney’s fees of the general contractor and its surety.

EverBank, the assignee and current owner of a promissory note secured by a previously recorded second-priority deed of trust, and Mortgage Electronic Registration Systems, Inc. (“MERS”), which was identified in the second-priority deed of trust as the beneficiary of record and “nominee for Lender and Lender’s successors and assigns,” filed this action to set aside a foreclosure sale and to recover damages from the trustee acting pursuant to the first-priority deed of trust for failure to identify MERS as an interested party in the notice of the foreclosure sale as required by Tenn. Code Ann. § 35-5-104. The trial court summarily dismissed the claims against the trustee holding that the plaintiffs failed to record their interests in the property in order to put creditors or any purchasers on notice. The trial court also refused to set aside the foreclosure sale upon the ground that the plaintiffs lacked standing and that the new owners were bona fide purchasers for value; thus, the trial court found that they acquired the property free and clear of any unrecorded interests. We have determined that MERS’ interest was of record and that the trustee had an affirmative duty to identify MERS as an interested party in the notice of the foreclosure sale pursuant to Tenn. Code Ann. § 35-5-101 et seq., yet the trustee failed to do so. Accordingly, MERS is entitled to seek restitution from the trustee pursuant to Tenn. Code Ann. § 35-5-107, which provides that any person referenced in Tenn. Code Ann. § 35-5-106 who fails to comply with this chapter is “liable to the party injured by the noncompliance, for all damages resulting from the failure.” As for setting aside the foreclosure sale, although MERS has standing to bring the claim, it failed to state a claim upon which to set aside the sale, for the mere failure of a trustee to comply with the provisions of Tenn. Code Ann. § 35-5-101 et seq. is insufficient to set aside a foreclosure sale. We, therefore, affirm the dismissal of the claim to set aside the foreclosure sale, reverse the dismissal of MERS’ claim against the trustee to recover its damages, and remand for further proceedings consistent with this opinion.

This is a breach of contract case arising from a sub-lease between a salon owner and her tenant.After Lessor terminated the Lease Contract,Lessee filed suit in general sessions court for damages. The general sessions court awarded Lessee $15,000 in damages. Lessor appealed to circuit court, which granted competing motions for summary judgment in favor of both Lessor and Lessee.  Lessee appealed. The judgment of the trial court is vacated and remanded, due to Tenn. R. Civ. P. 56.04 deficiencies in the trial court’s order.

Appellant, Cedric Taylor, was convicted of aggravated robbery, a Class B felony; aggravated burglary, a Class C felony; and employing a firearm during the commission of a dangerous felony, a Class C felony, for which he received an effective sentence of eleven years in the Tennessee Department of Correction. In this appeal, he challenges the sufficiency of the evidence underlying his convictions. Upon our review, we affirm the judgments of the trial court.

Appellant, Sean Blake, pleaded guilty to two counts of attempted second degree murder, two counts of aggravated robbery, two counts of attempted aggravated robbery, and robbery. Appellant subsequently filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed because appellant’s sentences had expired. On appeal, appellant argues that the trial court erred by summarily dismissing his motion because an illegal sentence may be challenged at any time pursuant to Rule 36.1. The State concedes that this case should be reversed and remanded to the trial court. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

The Defendant, Darius Jones, was convicted by a jury of second degree murder, first degree felony murder, especially aggravated kidnapping, reckless endangerment, and two counts of aggravated kidnapping. The jury sentenced the Defendant to life with the possibility of parole on the first degree felony murder charge. Following the jury’s sentence, the trial court merged the second degree murder conviction into the first degree felony murder conviction. The trial court then sentenced the Defendant to a total effective sentence of forty-nine years, eleven months, and twenty-nine days on the remaining counts, to run consecutively to the life sentence. On appeal, the Defendant challenges the sufficiency of the evidence underlying his convictions for second degree murder, first degree felony murder, especially aggravated kidnapping, and both counts of aggravated kidnapping. Because we hold that the evidence is sufficient to sustain the Defendant’s convictions on all counts, we affirm the judgments of the trial court.

The Appellant, Jeffery Yates, appeals as of right from the Shelby County Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Appellant contends that the trial court erred in summarily denying his motion because his motion stated a colorable claim for relief. Discerning no error, we affirm the judgment of the trial court.

Petitioner, Alvin Malone, was convicted by a Shelby County jury of two counts of first degree felony murder, one count of first degree premeditated murder, and two counts of especially aggravated kidnapping. The first degree murder conviction merged with one of the felony murder convictions, and Petitioner was sentenced to two life sentences and two twenty-year sentences, all running consecutively. This Court affirmed Petitioner’s convictions and sentences on direct appeal. State v. Alvin Malone, No. W2007-01119-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 813, at *73-74 (Oct. 2, 2008), perm. app. denied (Tenn. Mar. 23, 2009). Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel both at trial and on direct appeal. After several evidentiary hearings over an extended period of time, the post-conviction court granted relief in part and denied it in part. As it relates to this appeal, the post-conviction court found that Petitioner had not established deficient performance as to trial counsel’s failure to call two proposed alibi witnesses. The post-conviction court held that Petitioner was not entitled to relief from his convictions. However, the post-conviction court found that Petitioner was prejudiced by both trial and appellate counsel’s failure to object to or raise on appeal the trial court’s imposition of consecutive sentences based on the dangerous offender category without making the requisite findings under State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). The post-conviction court granted relief in the form of a new sentencing hearing solely on the issue of consecutive sentences. Both the State and Petitioner appealed. Upon our review of the record and applicable law, we affirm the post-conviction court’s decision on the issue of the alibi witnesses. However, we find that Petitioner has failed to show by clear and convincing evidence that he was prejudiced by trial and appellate counsel’s failure to raise the Wilkerson issue. Therefore, we reverse the post-conviction court’s judgment on that matter and reinstate Petitioner’s sentences as they were originally ordered by the trial court.

A jury convicted the defendant, William Darelle Smith, of first degree (premeditated) murder, and he was sentenced to life in prison. On appeal, this court affirmed the denial of the motion for a new trial.  The defendant appealed a single issue to the Tennessee Supreme Court: that his right to an impartial jury was compromised because the trial court did not hold a hearing after the discovery, during jury deliberations, that a juror was not only acquainted with one of the State’s witnesses but had sent the witness a communication through Facebook complimenting her on her testimony.  The Tennessee Supreme Court concluded that the trial court had erred in refusing to hold a hearing and remanded the case.  After a hearing during which the juror and the witness testified regarding the nature of both their relationship and the communication, the trial court again denied the defendant a new trial.  The defendant appeals.  We conclude that the State sufficiently rebutted any presumption of prejudice raised by the juror’s extrajudicial communication or by his concealment of his acquaintance with the witness, and accordingly we affirm the judgment of the trial court.

Defendant, William Edward Arnold, Jr., was indicted by the Davidson County Grand Jury for three counts of aggravated sexual battery and three counts of rape of a child for acts that took place while Defendant was a mentor for the victim through Big Brothers Big Sisters.  Prior to trial, Defendant sought to introduce evidence of the victim’s prior sexual knowledge pursuant to Tennessee Rule of Evidence 412.  The trial court granted the motion in part but prohibited the introduction of any extrinsic evidence at trial.  At the conclusion of the proof at trial, the trial court granted a motion for judgment of acquittal on two counts of aggravated sexual battery, finding them “impossible” under the facts as presented to the jury.  The jury convicted Defendant of the remaining charges: one count of aggravated sexual battery and three counts of rape of a child.  The trial court denied the motion for new trial and sentenced Defendant to an effective sentence of twenty-five years.  On appeal, Defendant challenges the trial court’s denial of the motion for judgment of acquittal as to the counts for which he was found guilty, the denial of the motion for new trial, and the trial court’s ruling on the admissibility of evidence under Tennessee Rule of Evidence 412.  After a thorough review of the record, the applicable authorities, and the issues, we determine the evidence is sufficient to support the convictions, and the trial court properly denied the motion for judgment of acquittal.  Further, we determine that the trial court properly determined that specific instances of conduct of prior sexual behavior of the victim were not admissible under Rule 412(c)(4).  Additionally, we agree with the trial court’s determination that due process permitted the victim to be subject to cross-examination, limited by Tennessee Rule of Evidence 608.  Accordingly, the judgments of the trial court are affirmed.

This appeal arises from a dispute over child custody. Charles W. Hendricks (“Father”) and Lori A. Smith (“Mother”) entered into an agreed permanent parenting plan concerning their two minor children (“the Children”). Less than two weeks after entry of the plan, Father filed a motion for custody of the Children in the Juvenile Court for Hamilton County (“the Juvenile Court”) alleging that the parenting plan had been procured by fraud as Mother had not disclosed that she worked as a licensed prostitute in Nevada. The Magistrate found a material change in circumstances and that it was in the best interest of the Children for Father to have custody. Mother appealed to the Juvenile Court. After a trial, the Juvenile Court found a material change in circumstances based on Mother’s having worked as a prostitute and her having concealed that fact, as well as Mother’s hostility to Father and the Children’s stepmother. The Juvenile Court entered a permanent parenting plan designating Father as primary residential parent of the Children. Mother appealed to this Court. Because the Juvenile Court did not conduct a best interest analysis, we vacate the judgment of the Juvenile Court and remand for further proceedings as necessary.

Defendant, Alvin Upchurch, was indicted by the Shelby County Grand Jury for one count of aggravated robbery. Following a jury trial, Defendant was convicted as charged. Defendant was sentenced by the trial court to serve 12 years in confinement. Defendant’s sole issue on appeal is whether the sentence imposed was excessive. Having reviewed the record before us, we conclude that Defendant’s sentence was proper. Accordingly, the judgment of the trial court is affirmed.

Petitioner, Edward Porecca, filed, through counsel, a “Petition for Relief from Conviction and Sentence” attacking his conviction for rape. He specifically alleged that the petition was instituted pursuant to T.C.A. § 40-30-[102] (for post-conviction relief) and pursuant to T.C.A. § 40-35-308 (for modification, removal, or release from a condition of probation). The twenty-four (24) page petition, plus exhibits, generally alleged that he was entitled to relief under T.C.A. § 40-30-308 because an “exile from Tennessee” condition of his probation is unconstitutional and therefore should be removed. As to grounds for postconviction relief, Petitioner asserted that his trial counsel rendered ineffective assistance of counsel and his guilty plea was not knowingly and voluntarily entered. After an evidentiary hearing the trial court denied relief and dismissed the petition. On appeal, Petitioner has abandoned his claim for post-conviction relief by not presenting that as an issue on appeal. As to the claim that Petitioner is entitled to statutory relief pursuant to T.C.A. § 40-35-308, we conclude that Petitioner is not entitled to relief. Petitioner has failed to show in this record that an “exile from Tennessee” condition exists. Accordingly, we affirm the judgment of the trial court.

The Appellant, Kevin Daws, filed a Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The trial court summarily dismissed the Appellant’s motion, and he appealed. Following our review of the record, we conclude that the Appellant’s motion fails to present a colorable claim that his sentences were illegal. We, therefore, affirm the trial court’s summary dismissal of the motion.