APPELLATE COURT OPINIONS

The issues in this divorce case are whether the trial court correctly ordered husband to pay wife $600 per month in transitional alimony for 36 months, child support in the amount of $253 per month, and $4,000 of the wife's attorneys fees, the latter as alimony in solido. At the time of trial, husband had been unemployed and actively seeking work for about one year. The trial court found that his income was zero. Wife did not argue that husband was voluntarily unemployed or underemployed, and the trial court made no such findings. The proof at trial establishes that many of the statutory factors supporting an award of alimony in futuro - including the need of the wife, duration of the marriage, i.e., 20 years, the parties' relative earning capacities, wife's contributions to the marriage as homemaker and parent, and wife's health - were demonstrated. Husband's current ability to pay, however, is quite limited because of his involuntary unemployment and zero income. Consequently, we modify the transitional alimony award to $50 per month, but designate it as alimony in futuro. The difference in husband's income, i.e., $1,191.66 per month, at the time his child support obligation was set and his income, i.e., zero, at time of trial likely supports a finding that there is a significant variance between the current support order of $253 and the amount of the proposed presumptive modified support order. Accordingly, we vacate the trial court's order refusing to modify his child support obligation and remand for a recalculation of child support. We affirm the judgment of the trial court in all other respects.

The defendant, Jessica M. Myers, was indicted on one count of first degree (premeditated) murder of Jimmy Cutshall, three alternative counts of first degree (felony) murder of Jimmy Cutshall, and one count of attempt to commit first degree murder of Rhonda Cutshall. A jury found her guilty of the first four counts as charged and of the lesser-included offense of reckless endangerment on the fifth count. The trial court merged the felony murder convictions. The defendant was sentenced to life in prison for counts one and two, and she was sentenced to serve eleven months and twenty-nine days on count five, with all sentences to be served concurrently. On appeal, the defendant challenges the sufficiency of the evidence, an alleged defect in the indictment in count one, and the admission of certain post-mortem photographs as cumulative evidence at trial. Having reviewed the record, we affirm the judgments of the trial court.

This appeal is from an order of the trial court denying the appellant’s motion to waive all fines and costs related to the nolle prosequi of all charges in Hamblen County Criminal Court case number 03CR212. Because it is clear from the record that no court costs or fines were assessed against the appellant as a result of the nolle prosequi entered in the proceedings below, there appears to be no judgment of the trial court adverse to the appellant’s interests and, therefore, we lack jurisdiction to entertain this appeal.

The Defendant, William Lance Walker, was convicted by a Marshall County Circuit Court jury of two counts of possession with the intent to sell one-half gram or more of cocaine, two counts of possession with the intent to deliver one-half gram or more of cocaine, and possession of drug paraphernalia.  See T.C.A. §§ 39-17-417, 39-17-425 (2010).  The trial court merged each possession with the intent to deliver conviction with the corresponding possession with the intent to sell conviction.  The Defendant was sentenced as a Range II, multiple offender to concurrent terms of nineteen years for each possession with the intent to sell conviction and eleven months, twenty-nine days for the possession of drug paraphernalia conviction.  On appeal, he contends that (1) the trial court erred by denying his motion to suppress, (2) the trial court imposed an excessive sentence, and (3) the trial judge erred by failing to recuse himself.  We affirm the judgments of the trial court.
 

After a trial by jury, the defendant was convicted of first degree (felony) murder as well as one count of especially aggravated robbery, a Class A felony. Prior to trial, the defendant also pled guilty to one count of burglary of an automobile, a Class E felony. The defendant was automatically sentenced to life in prison for the felony murder, and he received concurrent sentences as a Range I, standard offender of eighteen years for the especially aggravated robbery and one year for the burglary of the automobile. On appeal, the defendant claims that the evidence is insufficient to support his convictions and that the trial court erred by instructing the jury that they could not consider lesser-included offenses until after they reached a unanimous decision with respect to the first degree murder charge. We find these claims to lack merit. In addition, the defendant claims that the trial judge’s ex parte contact with the jury during its deliberations exerted an improper influence on jury’s verdict. Upon review, we conclude that on the unique facts of this case public confidence in jury’s verdict has been so undermined as to necessitate reversal of the defendant’s first degree (felony) murder conviction. We affirm the defendant’s remaining convictions and sentences and remand the case to the trial court for further proceedings consistent with this opinion.

The defendant, Reginald Lamont Graham, appeals his Davidson County Criminal Court jury convictions of the attempted sale of cocaine, claiming that the evidence was insufficient to support his convictions.  Discerning no error, we affirm.

The defendant, Jeremy Wendell Thorpe, appeals his Davidson County Criminal Court jury conviction of attempted sexual battery by an authority figure, claiming that the trial court erred by providing a jury instruction on attempted sexual battery by an authority figure as a lesser included offense of sexual battery by an authority figure and that the evidence was insufficient to support his conviction.  Discerning no error, we affirm.

The defendant, Phillip Pack, appeals from his Campbell County Criminal Court jury conviction of second degree murder, claiming that the evidence was insufficient to support his conviction, that newly discovered evidence established his innocence, that the trial court erred by admitting certain evidence, and that the prosecutor made inappropriate remarks during closing argument. Because the evidence adduced at trial was insufficient to support the defendant’s conviction of second degree murder, the conviction is reversed, and the charge is dismissed.

The Petitioner, Bradley Mitchell West, Jr., appeals as of right from the Bedford County Circuit Court’s denial of his petition for post-conviction relief.  The Petitioner contends that he received ineffective assistance of counsel because trial counsel failed to locate and interview a potential witness.  Discerning no error, we affirm the judgment of the post-conviction court.

The defendant, Clyde Turner, appeals the revocation of his probation, arguing that the trial court abused its discretion by revoking his probation and ordering that he serve his original four-year sentence in the Department of Correction.  Following our review, we affirm the judgment of the trial court.

Following a jury trial, the Defendants, Jack Price and Larry Thomas Cochran, were convicted of attempted first degree premeditated murder, a Class A felony; aggravated assault, a Class C felony; and two counts of attempted aggravated robbery, a Class C felony. Defendant Cochran was also convicted of resisting arrest and criminal impersonation, Class B misdemeanors. Both Defendants were sentenced to an effective twenty-five years’ incarceration for their respective convictions. In this appeal as of right, the Defendants raise the following issues: (1) both Defendants argue that the evidence was insufficient to support a finding by the jury of premeditation; (2) Defendant Cochran argues that issuance of a criminal responsibility instruction was in error; (3) Defendant Cochran contends that admission of his co-defendant’s statements against him violated Bruton v. United States, 391 U.S. 123 (1968); and (4) both Defendants contend that the trial court erred by submitting enhancement factors to the jury and by allowing the prosecutor to charge those factors, and that their sentences were excessive. Following our review, we affirm the Defendants’ convictions but, because the trial court utilized an unauthorized sentencing procedure, remand the case to the trial court for resentencing in accordance with this opinion.

Jacqueline Crank (“the Defendant”) was convicted after a bench trial of one count of misdemeanor child abuse or neglect. The trial court sentenced the Defendant to eleven months, twenty-nine days, suspended to probation. In this direct appeal, the defendant challenges the constitutionality of the “spiritual treatment exemption” provision set forth in Tennessee Code Annotated section 39-15-402(c). The Defendant also contends that, if this Court affirms her conviction, this matter must be remanded for a hearing under Tennessee’s ''Preservation of Religious Freedom” statute, codified at Tennessee Code Annotated section 4-1-07. Upon our thorough review of the record and relevant authority, for the reasons stated herein, we conclude that it is not necessary to address the constitutional issue or to remand this matter. We affirm the judgment of the trial court.

Following a jury trial in the Circuit Court of Rutherford County, Defendant, Bobby D. Parker, was convicted of three counts of attempted aggravated robbery and one count of attempted aggravated burglary.  Defendant was sentenced as a career offender for each conviction, with sentences of 15 years imposed for each attempted aggravated robbery and 12 years for the attempted aggravated burglary.  The trial court ordered two of the 15-year sentences to be served concurrently with each other but ordered them to be served consecutively to the third attempted aggravated robbery sentence.  The attempted aggravated burglary sentence was ordered to be served consecutively to the other sentences, for an effective sentence of 42 years.  In this appeal, Defendant raises two issues: (1) the trial court committed reversible error by overruling his objection to a peremptory challenge exercised by the State, and (2) the trial court imposed an excessive sentence by applying improper enhancement factors.  We affirm the judgments of the trial court.

A Putnam County Grand Jury returned an indictment against Defendant, Jonathan Andrew Dietz, charging him with rape.  After a jury trial, Defendant was found guilty as charged. The trial court sentenced Defendant to serve ten years at one-hundred percent in the Department of Correction as a violent offender.  On appeal, Defendant argues that (1) the trial court improperly admitted a video of Defendant, according to the State, attempting to rub the victim’s DNA off his genitalia while he was in the police interrogation room and (2) the evidence was insufficient to support his rape conviction.  After a thorough review, we affirm the judgment of the trial court.

Petitioner, Russell Lenox Hamblin, appeals from the trial court’s dismissal of his petition for post-conviction relief following on evidentiary hearing.  Petitioner asserts that his trial counsel and his appellate counsel (separate attorneys) rendered ineffective assistance of counsel.  After a review of the record and the briefs of the parties, we affirm the judgment of the trial court.

This is a collateral attack on an order entered by a general sessions court. The plaintiff tenant leased residential property from the defendant landowner. The tenant fell behind in his rent, so the landowner filed a forcible entry and detainer action in general sessions court against the tenant and obtained a judgment for the past-due rent. The tenant did not appeal that judgment. Months later, the tenant filed the instant lawsuit in chancery court to set aside the general sessions court judgment. The tenant alleged in the chancery court complaint that the general sessions court did not have subject matter jurisdiction to adjudicate the FED action because the landowner did not give the tenant a statutorily-required notice of termination of the lease. The chancery court below agreed with the tenant and set aside the general sessions judgment as void for lack of subject matter jurisdiction. The landowner now appeals. We reverse the decision of the chancery court and remand with directions to dismiss the tenant’s lawsuit in its entirety.

Petitioner, Corey Finley, was convicted by a Shelby County jury of attempted first degree murder. State v. Corey Finley, No. W2005-02804-CCA-R3-CD, 2007 WL 1651879, at *1 (Tenn. Crim. App., at Jackson, June 7, 2007), perm. app. granted, (Tenn. Oct. 15, 2007), aff’d after remand, No. W2007-2321-CCA-RM-CD, 2008 WL 726567 (Tenn. Crim. App., at Jackson, Mar. 18, 2008), perm. app. denied, (Tenn. Sept. 29, 2008). He was sentenced to twenty-three years. Id. at *8. Petitioner subsequently filed a petition for post-conviction relief arguing that he was afforded ineffective assistance of counsel. The post-conviction court denied the petition after an evidentiary hearing. Petitioner has appealed to this Court. After a thorough review of the record on appeal, we conclude that Petitioner has not proven that he was afforded ineffective assistance of counsel. Therefore, we affirm the post-conviction court’s denial of the petition.

In 2009, Petitioner, Sandra Hendricks Franklin, was convicted by a Tipton County jury of first degree murder. As a result, she received a sentence of life imprisonment. Petitioner’s conviction and sentence were affirmed by this Court on appeal. See State v. Cassandra Hendricks Franklin, No. W2009-01087-CCA-R3-CD, 2010 WL 2265439, at *1 (Tenn. Crim. App., at Jackson, June 3, 2010), perm. app. denied, (Tenn. Nov. 10, 2010). In May of 2012, Petitioner filed a pro se petition for post-conviction relief in which she claimed, among other things, that she received ineffective assistance of counsel. The post-conviction court dismissed the petition for relief as untimely. Petitioner appeals. After a review of the record and authorities, we determine that Petitioner has failed to show that her claims fall within the statutory exceptions to the one-year statute of limitations for post-conviction claims as listed in Tennessee Code Annotated section 40-30-102(b) or that due process requires the tolling of the statute of limitations. Consequently, the judgment of the post-conviction court dismissing the petition is affirmed

I respectfully disagree with the majority’s upholding the trial court’s summary dismissal of the petitioner’s pro se post-conviction petition. I acknowledge that the petition was filed beyond the one-year statute of limitations for filing a post-conviction petition. See Tenn. Code Ann. § 40-30-102(a). However, our supreme court has held that due process may require the statute of limitations to be tolled in cases where its strict application would deny the petitioner “‘a reasonable opportunity to assert a claim in a meaningful time and manner.’” Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001) (quoting Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)). Notably, “a post-conviction petitioner should not be denied a reasonable opportunity to raise a claim due to another’s misconduct.” Sample v. State, 82 S.W.3d 267, 277 (Tenn. 2002); see also Williams, 44 S.W.3d at 468.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

This is a medical malpractice case. The plaintiff filed a claim with the Division of Claims Administration, as the resident physician alleged to have engaged in negligence was purportedly connected to a University of Tennessee training program at Erlanger Hospital in Chattanooga, Tennessee. The State moved the Commissioner to dismiss the plaintiff’s action for failure to comply with the requirements set out in Tennessee Code Annotated section 29-26-121(a). The Commissioner reluctantly agreed with the State’s position. We hold that the plaintiff complied with section 121(a)’s notice requirement by complying with the claim notice requirements of Tennessee Code Annotated section 9-8-402. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that the plaintiff’s failure to provide all the items denoted in section 121(a) does not warrant dismissal with prejudice under the facts of this case. We vacate the dismissal order and remand for further proceedings.

The Defendant, Shanice L. Dycus, challenges the trial court’s denial of judicial diversion for her multiple convictions for various drug-related offenses, including possession of marijuana in excess of one half of a gram with intent to sell or deliver within 1,000 feet of a school zone.  See Tenn. Code Ann. §§ 39-17-417, -432.  She contends that the trial court erred by failing to consider all of the required factors in deciding her suitability for judicial diversion and by failing to state on the record how it weighed the relevant factors.  The State counters that possession of marijuana in excess of one half of a gram with intent to sell or deliver in a school zone is a non-divertable offense and, regardless, that the trial court properly denied diversion under the standard announced in State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).  Following our review, we conclude that the offense for which the Defendant stands convicted is eligible for diversion but that the trial court failed to consider and weigh all of the factors relevant in its decision denying diversion.  Therefore, we reverse the trial court’s denial of judicial diversion and remand this case for a resentencing hearing.

During the pendency of this divorce action, the trial court found Husband in criminal contempt for failing to pay pendente lite support on five occasions and sentenced Husband to ten days per count for a total sentence of fifty days. Husband was not booked or jailed for contempt but he was detained for two hours during the court’s lunch recess. During the recess, Husband’s trial counsel filed a notice of appeal. Husband was returned to the courtroom thereafter, and he and his counsel participated in the divorce hearing, which commenced after lunch. Following the conclusion of a short divorce hearing, the court took notice of the appeal from the contempt action and granted a stay of the sentence pending this appeal; Husband was then released. This appeal followed. We have concluded that the evidence upon which the five counts of criminal contempt were based was inadmissible and there is no other evidence to support a finding beyond a reasonable doubt that Husband had the ability to pay the support when it was due. Therefore, we reverse the finding of five counts of criminal contempt.

This appeal involves the tolling of the statute of limitations for a breach of contract. The plaintiff architect rendered services to the defendant real estate developer, and the developer failed to pay for the architect’s services. Approximately four years later, the architect recorded a lien against the real property to secure the indebtedness. The developer then promised the architect he would pay the indebtedness if the architect released the lien. The architect released the lien but still was not paid. Approximately four years after that, the architect filed this lawsuit against the developer to collect the debt. The developer asserted that the architect’s claim was barred by the six-year statute of limitations. After a trial, the trial court held that the statute of limitations was tolled under the doctrine of equitable estoppel, so the architect’s lawsuit was timely filed. The trial court entered a judgment in favor of the architect. The developer appeals only on the issue of whether the claim was time-barred. Discerning no error, we affirm.

This appeal concerns the denial of a motion to compel arbitration. The sister of the decedent signed several admissions documents on the decedent’s behalf for purposes of admitting her to the defendant health care facility. At that time, the sister also signed an optional arbitration agreement. Several days later, the decedent passed away, and subsequently, the decedent’s beneficiaries brought a wrongful death action against the healthcare facility on her behalf. The healthcare facility moved to compel arbitration, arguing that the sister had authority to bind the decedent to the terms of the arbitration agreement based on several agency theories, as no power of attorney existed. After reviewing the depositions submitted in lieu of live testimony, the trial court determined the arbitration agreement was not enforceable because the sister lacked the legal authority to bind the decedent. Based on a careful review of the evidence, we affirm.