APPELLATE COURT OPINIONS

In April 2008 the City of South Pittsburg hired a contractor to enlarge its sewage treatment plant. During construction of the project several sink holes developed, the last of which occurred in February of 2009 and caused the plant’s lagoon to collapse. The City made claim on the contractor’s builders’ risk insurance policy; the insurer denied the claim, contending that construction of the project was complete at the time of the collapse. The City, which had filed suit against the contractor, amended the complaint, adding the insurer as a party and asserting a claim for breach of contract against the company; the City also requested that the court issue a declaratory judgment that the losses sustained by the city were covered by the policy. The court subsequently granted the insurance company’s motion for summary judgment and denied the city’s motion for partial summary judgment. The city and the engineering firm engaged by the City to plan the project appeal the grant of summary judgment to the insurer and the denial of the city’s motion. We have determined that the court erred in granting the insurer’s motion and denying the City’s; consequently, we reverse both judgments.

In these acrimonious post-divorce proceedings, the father of two minor children filed a petition seeking, inter alia, to be given sole decision-making authority over the children’s educations, non-emergency health care, religion, and extracurricular activities, and to be designated the primary residential parent or alternatively to receive more parenting time. The trial court found a material change of circumstances had occurred due to the parties’ total inability to cooperatively co-parent and that it was in the children’s best interest to spend more quality time with their father. However, the court found it was in the children’s best interest for the mother to remain the primary residential parent and to have final authority over the children’s non-emergency medical care after consultation with the father. The court found that the other major decisions concerning the children should be made jointly. Each party was ordered to pay his or her own attorney’s fees. We affirm the foregoing decisions; however, we have determined the father may be entitled to a modification of his child support obligation, which was not addressed in the trial court’s final order, and we remand this issue for further proceedings.

This appeal arises from the second divorce between these parties. Husband and Wife were married for nineteen years, divorced in 1997, and then married again for thirteen additional years. In this second divorce, the trial court awarded Wife alimony in futuro and alimony in solido in addition to 45% of Husband’s military retirement pay. As part of the first divorce the trial court had awarded Wife 36% of Husband’s military retirement pay. Although Husband retired in 2006, Wife had not received any portion of his retirement pay. Wife requested the court in this second divorce award her the money she should have been paid from the date of Husband’s retirement to the date of the second divorce. The trial court declined to make that award. On appeal we affirm the trial court’s judgment awarding Wife alimony in futuro and alimony in solido. We reverse the court’s judgment denying Wife the portion of Husband’s retirement pay she had been awarded in the first divorce, and we remand the case for a hearing on the issues surrounding the Survivor Benefit Plan.

The petitioner, Raymond Hayden, appeals the Lake County Circuit Court’s dismissal of his 2012 petition for writ of habeas corpus in which he sought to challenge his 2009 Putnam County, guilty-pleaded conviction of the sale of cocaine. Following our review, we affirm the order of the circuit court.

The appellant, Alan Robert Benjamin, pled guilty in the Hamilton County Criminal Court to two counts of robbery and one count of attempted aggravated robbery. The trial court sentenced the appellant as a Range I, standard offender to five years for each offense, with the sentences to be served consecutively for a total effective sentence of fifteen years. The court ordered the appellant to serve eleven months and twenty-nine days confinement for each offense, with the remainder of the sentence to be served on supervised probation. On appeal, the appellant challenges the length of the sentences imposed by the trial court, the imposition of consecutive sentencing, and the denial of full probation. Upon review, we conclude that the trial court erred by allowing the appellant to choose between two proposed sentencing options. Therefore, the judgment of the trial court is reversed and the case is remanded for resentencing in accordance with the purposes and principles of the Sentencing Act.

The defendant, Nathan Daniel Puckett, appeals from the Sullivan County Criminal Court’s denial of his motion to reduce his Range II, 35-year sentence for second degree murder. Because the record shows that the motion was untimely, we affirm the order of the criminal court.

The Petitioner, Douglas Killins, appeals the Montgomery County Circuit Court’s summary dismissal of his petition for post-conviction relief from his 2003 conviction for second degree murder and Range II thirty-eight-year sentence. The Petitioner contends that the trial court erred by denying him relief because he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

This appeal involves a dispute over an attorney’s fee in a wrongful foreclosure case filed by Client against Bank of America. Client originally signed a contingency fee contract with Attorney, who later withdrew from the case. Client hired a new law firm to represent him and subsequently prevailed following a jury trial. Attorney filed suit, alleging that he was entitled to recover his original contingency fee because Client’s behavior forced him to withdraw from representation. The trial court limited Attorney’s recovery of fees pursuant to quantum meruit. Attorney appeals. We affirm the decision of the trial court.

The issues in this divorce case focus, for the most part, on the enforceability and interpretation of a prenuptial agreement entered into by Sabra Elaine Ellis O’Daniel (“Wife”) and Rusty Wade O’Daniel (“Husband”). Shortly after their marriage, Wife was diagnosed with a serious illness that resulted in several extensive hospitalizations. We have determined that the enforcement of the provisions limiting and waiving alimony contained in the parties’ prenuptial agreement is likely to render Wife a public charge. Accordingly, we reverse that portion of the trial court’s judgment holding that these “alimony” provisions are valid and enforceable. We affirm the trial court’s award to Wife of 67 months of health insurance, but do so on a ground other than the one articulated by the trial court. We affirm the trial court’s award to Wife of a judgment for $16,000 based upon Husband’s breach of the prenuptial agreement requiring him to fund a retirement account for Wife. This case is remanded to the trial court for further proceedings (1) to consider anew Wife’s request for alimony and (2) to set her attorney’s fees on appeal.

Nigel Marlin Reid, Sr. filed a complaint in the trial court. The court, sua sponte, held that the complaint is “frivolous” and that plaintiff’s claims against his brother are barred by res judicata. The court dismissed the action. Because the complaint fails to state a cause of action, we affirm.

The Defendants, Lashun Gray and Stanley Williams, were tried jointly before a Shelby County Criminal Court jury. Defendant Gray was convicted of attempt to commit first degree murder, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202, 39-12-101, 39-17-1324 (2010). He was sentenced as a Range I, standard offender to consecutive sentences of twenty-four years for the attempted first degree murder conviction and ten years for the firearm violation, for an effective thirty-four-year sentence. Defendant Williams was convicted of first degree murder, attempt to commit first degree murder, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See id. He was sentenced to life imprisonment for the first degree murder conviction and as a Range I, standard offender to consecutive terms of twenty-four years for the attempted first degree murder conviction and ten years for the firearm violation, for an effective sentence of life plus thirty-four years. On appeal, Defendant Gray contends that (1) the evidence is insufficient to support his conviction for attempted first degree murder, (2) the trial court erred by allowing the medical examiner to testify about the effects of a gunshot wound on a living person, and (3) the court erred during sentencing. Defendant Williams contends that
(4) the evidence is insufficient to support his convictions for attempted first degree murder and the firearm violation, and (5) the court erred in instructing the jury regarding criminal responsibility. We affirm the Defendants’ convictions, but because of inappropriate sentences, we reverse the Defendants’ judgments for employing a firearm during the commission of a dangerous felony and remand the case for entry of judgments reflecting six-year sentences.

The defendant, Quanya Revell Prewitt, appeals her Davidson County Criminal Court jury conviction of possession with intent to sell or deliver dihydrocodeinone, a Schedule III substance, in a school zone, claiming that the trial court erred by limiting the scope of cross-examination of two of the State’s witnesses and that the evidence was insufficient to support her convictions. Discerning no error, we affirm.

The Defendant, Michael Allen Gibbs, was convicted by a Haywood County jury of first degree felony murder, especially aggravated burglary, and attempted especially aggravated robbery. On appeal, the Defendant argues that the trial court erred by failing to give a jury instruction on accomplice testimony. Following our review of the record and the applicable authorities, we conclude that the trial court should have instructed the jury with respect to the legal status of the State’s witness but that the error was harmless. However, because the Defendant’s conviction for especially aggravated burglary is precluded by statute, that conviction is modified to one for aggravated burglary with imposition of a five-year sentence. We affirm the judgments of the trial court in all other respects.

Mario Green (“the Petitioner”) was convicted by a Shelby County jury of two counts of second degree murder. The trial court merged the convictions and sentenced the Petitioner to twenty years’ incarceration. The Petitioner subsequently filed for post-conviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that he received ineffective assistance of counsel at trial. After reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

Plaintiffs filed a complaint asserting a constitutional challenge to HB600. The trial court, however, dismissed the complaint because it found Plaintiffs lacked standing because they had failed to allege an injury-in-fact, that their claims were not ripe for review, and that they were merely seeking an advisory opinion. Plaintiffs timely appealed to this court. However, we dismiss the appeal for lack of subject matter jurisdiction, and we remand the case to the trial court for resolution of Plaintiffs’ Motion and Memorandum to Amend Complaint and for further proceedings, as necessary, consistent with this opinion
 

A Shelby County jury convicted the defendant, Jessie Dotson, of six counts of premeditated first degree murder and three counts of attempted first degree murder. The jury sentenced the defendant to death for each conviction of first degree murder. Following a separate sentencing hearing, the trial court sentenced the defendant as a Range II, multiple offender to forty years for each conviction for attempted first degree murder, to be served consecutively to each other and to the first degree murder sentences. On appeal, the defendant contends that: (1) the evidence is insufficient to support his convictions; (2) testimony regarding one of the victims’ statement to police was hearsay and its admission violated the United States and Tennessee Constitutions; (3) the admission of the defendant’s custodial statements violated his rights under the United States and Tennessee Constitutions; (4) the admission of testimony that the defendant invoked his right to counsel violated his due process rights; (5) the admission of testimony regarding the defendant’s history of imprisonment violated his right to a fair trial; (6) the trial court’s treatment of defense counsel in the jury’s presence violated his right to a fair trial; (7) the admission of the pathologist’s testimony regarding autopsies that she did not perform violated the defendant’s confrontation rights; (8) the trial court erred in admitting photographs of the victims; (9) the trial court erred in denying the defendant’s motion to provide DNA analysis of all those who came in contact with the crime scene; (10) the trial court erred in denying the defendant’s motion for production of the statements of those not to be called as witnesses for the State; (11) the trial court improperly defined “reasonable doubt” in instructing the jury; (12) the trial court erred in refusing to instruct the jury on facilitation of first degree murder as a lesser included offense; (13) the trial court erred in denying the defendant’s motion to strike aggravating circumstances; (14) the trial court erred in denying the defendant’s motion for a probable cause finding regarding the aggravating circumstances; (15) the trial court erred in denying the defendant’s motion for disclosure of information regarding the proportionality review; (16) the admission of victim impact evidence was improper; (17) the trial court erred in denying the defendant’s motion to argue last during the penalty phase; (18) the State committed prosecutorial misconduct during its argument to the jury; (19) the trial court erred in allowing the death verdicts to stand; (20) the defendant’s sentences for his three convictions for attempted first degree murder were excessive; and (21) cumulative error requires reversal. Based upon our review of the record and the applicable law, we affirm the judgments of the trial court.

In this appeal, the mother of the child at issue appeals the trial court’s order establishing paternity. The appellant mother filed this parentage petition against the father. At the outset of the hearing on the petition, the mother’s attorney announced that he had developed a conflict of interest regarding his representation of the mother, because he had previously consulted with both the mother and the father when the parties agreed on the issues. By the time of the hearing, the parties no longer agreed and the father had hired his own attorney. Despite the attorney’s disclosure that he had developed a conflict of interest in continuing to represent the mother, the trial court proceeded with the paternity hearing. What ensued was a procedural train wreck; it ultimately resulted in orders that resolved all issues on their merits. The mother appeals. We conclude that this particular train never should have left the station. In light of the disclosure by the mother’s prior attorney that he had developed a conflict of interest, we vacate everything that followed the attorney’s disclosure, except the order allowing the mother’s attorney to withdraw.

The Petitioner, Auqeith Lashawn Byner, pled guilty to driving on a suspended license, and a Davidson County jury convicted him of possession with the intent to sell or deliver over twenty-six grams of cocaine and possession of drug paraphernalia. The trial court sentenced the Petitioner to serve an effective sentence of seventeen years in the Tennessee Department of Correction. The Petitioner appealed his convictions but withdrew his appeal on February 11, 2010. On February 14, 2011, the Petitioner, pro se, timely filed a petition seeking post-conviction relief on the basis of ineffective assistance of counsel and was thereafter appointed an attorney. After a hearing on the petition, the post-conviction court issued an order denying the Petitioner relief. The Petitioner appeals the trial court’s denial of his claim. After a thorough review of the record, the briefs, and relevant authorities, we affirm the post-conviction court’s judgment.

In this medical malpractice action, the jury entered a verdict in favor of the defendant doctor. On appeal, the plaintiff argues that the trial court erred in allowing a medical expert witness to testify. We find no error in the trial court’s decision.

The Petitioner, Kenneth Coleman Benefiel, appeals the Henry County Circuit Court’s denial of post-conviction relief from his guilty plea to soliciting sexual exploitation of a minor by electronic means, a Class B felony. See T.C.A. § 39-13-529(a), (e)(1). On appeal, the Petitioner argues that he received ineffective assistance of counsel and that his guilty plea was entered unknowingly and involuntarily. Upon review, we affirm the judgment of the post-conviction court.

Petitioner, George Campbell, Jr., was convicted by a jury in Memphis of felony murder and aggravated assault and sentenced to life in prison in 1994. See State v. George Campbell, Jr., No. 02-C-01-9408-CR00165, 1996 WL 368224, at *1 (Tenn. Crim. App., at Jackson, June 28, 1996), perm. app. denied, (Tenn. Jan. 6, 1997). His convictions and sentence were affirmed on direct appeal. Id. Petitioner later sought post-conviction relief on the basis of ineffective assistance of counsel. The post-conviction court denied relief and this Court affirmed the decision of the post-conviction court. See George Campbell, Jr. v. State, No. W2002-00703-CCA-R3-PC, 2001 WL 1042112, at *1 (Tenn. Crim. App., at Jackson, Sept. 10, 2001), perm. app. denied, (Tenn. Dec. 27, 2001). Then Petitioner sought relief via the writ of habeas corpus on the basis that his convictions were void for various reasons. The trial court denied relief and this Court affirmed the denial of habeas corpus relief on appeal. See George Campbell, Jr. v. Bruce Westbrooks, No. W2002-02086-CCA-R3-CO, 2003 WL 22309471, at *1 (Tenn. Crim. App., at Jackson, Oct. 6, 2003). Petitioner also sought redress in the form of a motion of writ of error coram nobis in which he claimed that newly discovered evidence may have resulted in a different judgment at trial had the evidence been admitted at the trial. See George Campbell, Jr. v. State, No. W2007-00820-CCA-R3-CO, 2008 WL 2219305, at *1 (Tenn. Crim. App., at Jackson, May 28, 2008). This Court affirmed the dismissal of the petition for writ of error coram nobis on the basis that it was untimely and “nothing in the record implicate[d] any due process concerns that would require that the statute of limitations be tolled.” Id. at *2. Petitioner filed a second petition for writ of error coram nobis that is the subject of the appeal herein. After a hearing concerning the timeliness of the petition, the trial court entered an order finding that Petitioner’s claims were barred by the one-year statute of limitations pertaining to coram nobis petitions and that due process did not require the rolling of the statute of limitations. After a thorough review of the record, we agree with the determination made by the trial court. The petition was filed more than one year after the judgment became final. Further, Petitioner has shown no reason that due process would require the tolling of the statute. Accordingly, the judgment of the trial court is affirmed.

Petitioner, Vershawn McCoy, was convicted by a Shelby County jury for second degree murder. The trial court sentenced him to a twenty-year sentence to be served at 100%. He unsuccessfully appealed to this Court. State v. Vershawn McCoy, No. W2009-01222-CCA-R3-CD, 2010 WL 4540076 (Tenn. Crim. App., at Jackson, Nov. 9, 2010). Subsequently, he 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 now appeals the denial of his petition. After a thorough review of the record, we conclude that Petitioner has been unable to prove either deficient performance on the part of trial counsel, or prejudice even if deficient performance had been found. Therefore, we affirm the denial of the petition.

The Defendant, Colton D. Whitelow, was indicted for first degree premeditated murder, first degree felony murder, and aggravated assault. Following a jury trial, the Defendant was convicted of the lesser included offenses of voluntary manslaughter and reckless homicide and acquitted of the aggravated assault charge. See Tenn. Code Ann. §§ 39-13-211, -215. The trial court sentenced the Defendant to an effective ten-year sentence. In this appeal as of right, the Defendant contends (1) that the length of his sentences were excessive; and (2) that the trial court erred in imposing consecutive sentences. Following our review, we affirm the judgments of the trial court.

Mother’s parental rights to her child were terminated due to her diminished mental capacity, which caused her to be incompetent to care for her child. Mother appealed, and we affirm the trial court’s judgment. The trial court’s findings are supported by clear and convincing evidence.

A Shelby County grand jury indicted appellant, Darquan Swift, for one count of attempted first degree murder, one count of especially aggravated robbery, one count of attempted especially aggravated robbery, three counts of aggravated robbery, one count of attempted aggravated robbery, and one count of employing a firearm during commission of a dangerous felony in violation of Tennessee Code Annotated section 39-17-1324. Following a trial, a jury found him guilty of the lesser included offense of attempted second degree murder and guilty as charged on all remaining counts. The trial court sentenced appellant to an effective sentence of ninety-seven years in the Tennessee Department of Correction. He now appeals his convictions on the following grounds: (1) whether Tennessee Code Annotated section 39-17-1324 can be applied in a case involving robbery; (2) whether Tennessee Code Annotated section 39-17-1324 can be applied to lesser included offenses of the dangerous felony upon which the State relied; and (3) whether the trial court improperly limited the testimony of appellant’s expert witness. Following our review, we affirm the judgments of the trial court.