author: PHILLIP R. GARRISON, Judge.

text:
    David T. HARRIS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26991.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 27, 2006.

      Margaret M. Johnston, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., and Roger W. Johnson, Asst. Atty. Gen., Jefferson City, for Respondent.
   PHILLIP R. GARRISON, Judge.

David T. Harris (“Movant”) appeals the judgment denying his motion for post-conviction relief under Rule 24.035. Pursuant to a plea bargain, Movant entered a plea of guilty to the amended charges of the class D felony of promoting prostitution in the second degree, in violation of Section 567.070, and the class D felony of endangering the welfare of a child in the first degree, in violation of Section 568.045. Movant was sentenced as a prior and persistent offender to concurrent sentences of seven years on both counts. We affirm.

Between May 4, 2001, and May 21, 2001, Movant took E.S., a minor under seventeen years of age, to the residence of Jim Davis (“Davis”), where Movant had E.S. perform sexual intercourse with Davis in return for the payment of money to purchase drugs. In addition, Movant encouraged and aided E.S. to use and possess those drugs. Movant was charged with four counts of statutory rape in the second degree, two counts of statutory sodomy in the second degree, promoting prostitution in the second degree, and endangering the welfare of a child in the first degree.

On April 11, 2002, the State filed an amended information charging Movant as a prior and persistent offender with one count of promoting prostitution in the second degree, and one count of endangering the welfare of a child in the first degree. Movant filed with the court a “Petition to Enter Plea of Guilty” to the amended information, signed by Movant and his attorney. Movant entered his pleas of guilty and was sentenced as set out above.

Movant filed a pro se motion to vacate, set aside or correct the judgment and sentence, which was later amended by appointed counsel to allege ineffective assistance of counsel for failure to inform Mov-ant that he would be required to register as a sex offender. After a hearing, the court entered its findings of fact and conclusions of law denying Movant’s motion. Movant appeals this denial. Other facts pertinent to our resolution of this case are recited below.

In his sole point on appeal, Movant alleges the motion court erred in denying his Rule 24.035 motion because Movant’s counsel was ineffective for “misadvis[ing] him that he would not have to register as a sex offender.” Movant explains that had he known he would have to register as a sex offender he would not have pleaded guilty. We disagree and affirm the motion court’s judgment.

Appellate review is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 24.035(k); Pongrass v. State, 132 S.W.3d 292, 293 (Mo.App. S.D.2004). Findings of fact and conclusions of law are clearly erroneous only if our review of the entire record leaves us with the firm and definite impression that a mistake has been made. Waserman v. State, 100 S.W.3d 854, 857 (Mo.App. S.D.2003). To prevail on a claim of ineffective assistance of counsel, a mov-ant must show that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances; and that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The movant bears the burden of proving his post-conviction claims, including a claim of ineffective assistance of counsel, by a preponderance of the evidence. Rule 24.035(i); Tabor v. State, 161 S.W.3d 862, 865 (Mo.App. S.D.2005). “In the context of a guilty plea, a movant establishes prejudice due to ineffective assistance of counsel by demonstrating that a reasonable probability exists that, but for plea counsel’s errors, the movant would not have entered a guilty plea and would have insisted on proceeding to trial.” Copas v. State, 15 S.W.3d 49, 54 (Mo.App. W.D.2000). When a movant pleads guilty, claims of ineffective assistance of counsel are relevant only to the extent they affect the voluntariness with which a plea was made. Pongrass, 132 S.W.3d at 293.

As indicated above, Movant pleaded guilty to amended charges of promoting prostitution in the second degree and endangering the welfare of a child in the first degree. Movant’s testimony at the plea hearing regarding the voluntariness of his plea is as follows:

Q. [Court]: And you have had the opportunity ... to talk with [your counsel] about your various rights, including your right to trial, your right to trial by jury, and you wish to waive those rights and enter a plea today; is that correct?
A. [Movant]: Yes, sir.
Q. [Court]: Have any promises or any threats been made to get you to enter this plea other than the plea arrangement that you have entered into with the prosecutor’s office?
A. [Movant]: No, sir.
Q. [Court]: Have you had any medication, drugs or alcohol in the last 48 hours that might make your mind cloudy about what we are doing here today?
A. [Movant]: No, sir.
Q. [Court]: I am sure you have had some questions to ask [your counsel] about what to do, what not to do, and how to protect your rights, has she been able to answer your questions to your satisfaction?
A. [Movant]: Yes.
Q. [Court]: Have you been satisfied with her services to this point?
A. [Movant]: Yes, sir.
Q. [Court]: [H]ave you ever been diagnosed with any mental health conditions that may affect your ability to enter a plea in this case?
A. [Movant]: No.
Q. [Court]: Do you remember when I asked you to raise your right hand and promise to tell us the truth? Is everything you told us so far been the truth?
A. [Movant]: Yes.
Q. [Court]: Nobody has asked you to come in and tell a lie or take the blame for somebody else, have they?
A. [Movant]: No.

In his amended Rule 24.035 motion, Movant asserts that his plea counsel, Dana Weis (“Ms. Weis”), was ineffective in failing to advise him that he would be required to register as a sex offender. He alleged that Ms. Weis misadvised him that he would not have to register as a sex offender because promoting prostitution is not a Chapter 566 offense. Movant argues his plea was involuntary because his specific purpose in pleading to the lesser charge of promoting prostitution was to avoid sex offender registration. He asserts that had he been advised that he would be required to register as a sex offender by pleading guilty, he would have rejected the plea offer and gone to trial.

At the post-conviction relief hearing, Movant testified that he had told Ms. Weis that he would not plead guilty to any charges that would require him to register as a sex offender. Movant alleged that Ms. Weis had told him that the charges he was pleading guilty to would not subject him to sex offender registration. Movant explained that had he known he would be required to register, he would not have taken the plea, but would have gone to trial.

Ms. Weis testified that she could not recall Movant being concerned about whether he would have to register as a sex offender. Rather, Ms. Weis remembered that Movant was concerned about whether he would be able to continue working with school age children as part of an outreach program. Ms. Weis did not remember ever telling Movant whether or not he would have to register as a sex offender.

Also before the motion court was the deposition of Movant’s post-conviction attorney, Karen Bourgeois (“Ms. Bourgeois”). Ms. Bourgeois related that she had discussed Movant’s case with Ms. Weis, and had been told that Ms. Weis had realized that sex offender registration was a concern of Movant’s, but could not recall any specific conversations with Movant on that subject.

In response to Movant’s claim that plea counsel was ineffective for informing him that he would not have to register as a sex offender, the motion court concluded as follows:

The Court finds that Movant has failed to prove by a preponderance of the evidence that he received ineffective assistance of counsel. Further, the Court finds that the record and the evidence adduced at the motion hearing does not provide a basis for Movant’s reasonable belief, that the defense counsel misinformed him of his collateral consequence of his plea that he would be required to register as a sex offender.
Finally, the Court finds that the Movant has not proved by a preponderance of evidence that he would have proceeded to trial rather than accept and [sic] negotiated sentence. The only evidence in this regard comes from Movant’s self[-]serving statement. Movant was fully advised by the trial court at the time of his plea and acknowledged his understanding of the plea, range of punishment and sentence.

When a movant alleges that he was misled by counsel into involuntarily entering his guilty plea, we must determine whether the movant’s belief was reasonable. Beal v. State, 51 S.W.3d 109, 111-12 (Mo.App. W.D.2001). “Only when it appears that a movant’s belief is based upon positive representations on which he is entitled to rely will we conclude a movant’s mistaken belief is reasonable.” Robinson v. State, 952 S.W.2d 315, 318 (Mo.App. E.D.1997).

It was Movant’s burden to prove his grounds for relief by a preponderance of the evidence. The motion court was free to disbelieve Movant’s testimony that he was told by Ms. Weis that he would not have to register as a sex offender. Rhodes v. State, 157 S.W.3d 309, 313 (Mo.App. S.D.2005). We give due regard to a motion court’s ability to assess the credibility of witnesses appearing before it. West v. State, 159 S.W.3d 847, 851 (Mo.App. S.D.2005). Therefore, we defer to the motion court’s determination of witness credibility. Id.

Here, the motion court clearly made a finding regarding the credibility to be accorded the testimony of Movant. That finding was well within the motion court’s discretion and it should not be disturbed. The motion court did not clearly err in finding that Movant failed to prove by a preponderance of evidence that he received ineffective assistance of counsel. Consequently, Movant’s point is denied.

The rejection of Movant’s point does not end our consideration of this case. As previously related, Movant was charged by amended information with promoting prostitution in the second degree. Pursuant to a plea bargain agreement, Movant pleaded guilty to promoting prostitution in the second degree, and the trial court accepted that plea and sentenced him accordingly. However, the -written judgment and sentence reflects that Movant was convicted of promoting prostitution in the third degree. The failure to memorialize accurately the decision of the trial court as it was announced in open court was clearly a clerical error. “Rule 29.12 permits a trial court to correct such clerical errors in the judgment that obviously are a result of oversight or omission.” State v. Taylor, 123 S.W.3d 924, 931 (Mo.App. S.D.2004) (quoting State v. Booyer, 87 S.W.3d 926, 931 (Mo.App. S.D.2002)). We affirm, but remand this case with instructions to the trial court to enter a written judgment reflecting the judgment and sentence as they were announced by the trial judge open court.

BATES, C.J., and SHRUM, P.J., concur.

      . All references to statutes are to RSMo (2000) and all references to rules are to Missouri Rules of Criminal Procedure (2004), unless otherwise indicated.


source: Caselaw Access Project

author: E. RILEY ANDERSON, J.,

license: Public Domain

text:
    David D. ORRICK v. BESTWAY TRUCKING, INC., et al.
    Supreme Court of Tennessee, at Nashville.
    Oct. 6, 2005 Session.
    Feb. 21, 2006.

      Frank Buck, Smithville, Tennessee, for the Appellant, David D. Orrick.
    Patrick A. Flynn, Columbia, Tennessee, for the Appellees, Bestway Trucking, Inc., Transit Group Transportation, LLC, and Ace, USA.
   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court,

in which ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and CORNELIA A. CLARK, JJ., joined.

We granted review in this workers’ compensation case to determine whether the Special Workers’ Compensation Appeals Panel erred in reducing the trial court’s disability award from 33% to 3%. After reviewing the record and the applicable authority, we conclude that reduction of the trial court’s award is appropriate. We further conclude, however, that we are unable to enter an appropriate award based on the record before us. We therefore remand to the trial court to enter an award consistent with this opinion.

Background

The dispute in this case concerns the appropriate percentage of vocational disability. The relevant evidence presented at trial is summarized as follows.

On July 6, 2000, the employee, David D. Orrick (“Orrick”), sustained an injury in the course and scope of his employment with Bestway Trucking, Inc. (“Bestway”). Orrick suffered a comminuted fracture to his right eye socket when a trailer crank-jack malfunctioned and the handle struck him in the face.

Immediately following the accident, Or-rick was treated at the Norton Hospital emergency room in Louisville, Kentucky. He was released to the care of Dr. Merritt J. Seshul of the Murfreesboro Medical Clinic and was treated by Dr. Seshul until September 29, 2000.

Orrick testified that after about a week of light duty (approximately one month after the accident), Bestway put him back to regular service. He drove for three or four days and then started having problems with his face swelling up. He said that while in Ft. Wayne, Indiana, his right eye swelled shut, and he had to wait there for a day and a half until the swelling went down. He then drove back to Nashville. He returned to Dr. Seshul, who recommended that he apply ice packs and stay off work for another week. Dr. Seshul gave Orrick a full release to work on October 2, 2000. However, during the week that Orrick was off work, Bestway went out of business and closed its Nashville terminal.

Orrick testified that about a month and a half after the accident, he began working at his brother-in-law’s business, J & K Tool and Die (“J & K”), in McMinnville, Tennessee. He has been employed there ever since. Orrick’s job duties include running a lathe, running a mill, and doing miscellaneous work around the two-person shop.

Orrick said that his right cheek and upper right lip remain numb as a result of the accident. He also stated that he experiences swelling and pain on the right side of his face after physical exertion, such as lifting something. The pain forces him to sit down, and occasionally he must leave work. Orrick stated that he only feels pain when he must lift something weighing fifty to sixty pounds, and that he lifts that amount infrequently. He said that his brother-in-law allows him to take breaks as he needs them and that his co-worker assists him as necessary. Finally, Orrick stated that he takes pain medication two to three times per week to relieve the pain.

Additionally, Orrick testified that vibration, such as the vibration from a lawn mower, triggers pain on the right side of his face. He said that truck drivers experience large amounts of vibration, that bumps in the road cause the cab to bump and jerk, and that he did not think he could stand to drive a truck because of the pain. He also said he did not think he would be able to drive a truck because the pain medications he takes are prohibited by trucking regulations.

Orrick was forty-six years old at the time of trial, had been married for twenty-six years and had two grown children. Orrick said that he had been a long distance truck driver for approximately twenty-two years and had been employed as a truck driver for Bestway since 1994. He stated that he has a high school diploma but no other education or training other than the on-the-job training he has received at his brother-in-law’s tool and die shop. Orrick said that prior to working as a truck driver, he had done factory work, construction work, and tool and die work.

Orrick testified that in 1999, the last full year that he drove a truck, he earned $44,050. He stated that his income at J & K is approximately 65% of what he earned in his last year as a truck driver (he earns $13.90 per hour working at J & K and stated that he usually works forty hours per week). Orrick testified that although he enjoyed the work at J & K and enjoyed not having to travel, “[i]f I was able to do it, I would probably go back to driving a truck.”

Chad Washer testified that he is Or-rick’s co-worker at the tool and die shop. He said that he had observed that when Orrick strains himself his face swells up, and that he observed Orrick swelling after exertion three or four times per month. Washer tries to do most of the heavy lifting himself, but since he and Orrick are the only two employees in the shop, occasionally Orrick must handle lifting or other strenuous tasks. When Orrick first began work at the tool and die shop, he attempted to mow the yard around the shop. However, the vibration from the mower caused Orrick’s face to swell so badly that Washer was forced to take over the mowing tasks. Washer also said that he had observed hot metal chips from the lathe stuck to Orrick’s cheek because Orrick could not feel that they were there. He testified that hot metal will burn and stick to the skin.

Orrick’s father, James Roland Orrick, and Orrick’s wife, Tammy Orrick, also testified that Orrick has difficulty with mowing the grass, because the vibration from the mower causes him pain. They testified that Orrick has swelling and that he takes pain pills two or three times a week.

Anthony Hendricks testified that he had been a truck driver for twenty years and that eighteen-wheeler trucks produce a tremendous amount of vibration. He testified that trucking companies, as well as the federal Department of Transportation and the Tennessee Department of Transportation, have strict rules against driving while under the influence of certain medications, including pain medications.

Medical and Expert Evidence

Orrick was treated at the Norton Hospital emergency room in Louisville, Kentucky, immediately following the accident of July 6, 2000. No witnesses testified, and the only information from the emergency department is the discharge sheet Orrick received, indicating that he had “fractured one of the bones in [his] face.”

From July 11, 2000 to September 29, 2000, Orrick received treatment from Dr. Merritt J. Seshul of the Murfreesboro Medical Clinic and Surgicenter in Mur-freesboro, Tennessee. Dr. Seshul did not testify. However, the record contains a letter from Dr. Seshul stating that a CT scan revealed that Orrick had experienced a comminuted fracture of his right anterior maxillary sinus wall. Dr. Seshul stated that “no other facial fractures were noted.” Dr. Seshul also noted facial swelling which had gradually resolved, although leaving paresthesias, or numbness, to a facial nerve. Dr. Seshul treated the injury conservatively, leaving the fracture to heal on its own. Dr. Seshul released Orrick to light duty on July 28 and to full duty on October 2, 2000.

Dr. David Gaw, an orthopedic surgeon, performed an independent medical examination. Dr. Gaw testified by deposition as well as via a Standard Form Medical Report for Industrial Injuries (a “C-32 form”). See Tenn.Code Ann. § 50-6-235(c)(1) (2005) (“Any party may introduce direct testimony from a physician through a written medical report on a form established by the commissioner of labor and workforce development.”). On his C-32 form, Dr. Gaw assigned permanent restrictions of not lifting or carrying more than fifty pounds and limiting exposure to temperature extremes and to fumes. In his deposition, Dr. Gaw stated that he would add restrictions on vibration as well, based on what Orrick told him about experiencing pain from vibration. Dr. Gaw opined that Orrick had sustained an 8% permanent impairment as a result of the facial deformation from his injury, believing that a depression in Orrick’s right cheek and nasal bones put him in the middle of the AMA’s 6-10% range for facial deformities. Dr. Gaw also assigned a 3% impairment for the numbness to his upper right lip and right cheek, for a total impairment of 11% to the body as a whole. Finally, he testified that although he is an orthopedic surgeon, he had never treated facial fractures.

Dr. Brett Jaffrey, an oral-maxillofacial surgeon, also performed an independent medical examination and testified by deposition. He testified that as a result of the fracture, Orrick had damage to his trige-minal nerve and that the damage caused paresthesia to Orrick’s cheek and upper lip. Using the evaluation guidelines from the American Association of Oral and Max-illofacial Surgeons, rather than the AMA Guides, Dr. Jaffrey opined that Orrick had not sustained any permanent impairment. He stated that he did not agree with Dr. Caw’s assessment of 8% for facial deformity, because he was not able to detect any clinically significant malunion or deformity. Finally, Dr. Jaffrey testified that he had treated “at least a hundred” injuries similar to the one Orrick sustained.

Dr. Daniel Lalonde, a neurologist and pain specialist, testified by deposition. He assigned Orrick a 0-14% impairment to the whole body based on his injury. He declined to narrow his impairment rating any further because he stated that he rarely assigns impairment ratings. Dr. La-londe testified that Orrick had damaged his trigeminal nerve and that the trigemi-nal nerve is “exquisitely sensitive.” He stated that numbness and pain were not mutually exclusive and that in fact patients with damage to the trigeminal nerve often experience extreme pain.

Finally, Patsy Bramlett, a vocational rehabilitation counselor, testified by deposition that in her opinion Orrick did not have any vocational disability. Ms. Bramlett did not interview Orrick but did review his medical records. Based on that review, she testified that Orrick would experience “no loss of access to job opportunities or jobs from the impairment.”

Decisions Below

The trial court found that Orrick “continues to suffer paresthesias and pain on the right side of his face, accompanied by swelling in his face after physical exertion.” The trial court specifically found Orrick to be “a believable and credible witness” and chose to rely “most heavily” on Dr. Gavts testimony. The court adopted Dr. Gaw’s 8% impairment rating for the facial disfigurement “based on a careful reading of the tables used in the Fifth Edition of the AMA Guides.” The court concluded that “[w]hile the Plaintiff has no obvious disfigurement, that is not the criteria called for on page 256 of the Guides in category II.” The court also adopted Dr. Gaw’s 3% impairment rating for trigeminal numbness in Orrick’s face and lip. Finally, the court found that the 2-1/2 times cap did not apply because Or-rick was not able to make a meaningful return to work and made a total award of 33%.

The Special Workers’ Compensation Appeals Panel reduced the award to 3%. Crediting the opinion of Dr. Jaffrey over that of Dr. Gaw and rejecting entirely Dr. Lalonde’s testimony, the Panel concluded that the medical evidence supported only the 3% impairment for damage to the trigeminal nerve. The Panel further found that there was not sufficient evidence to support a vocational disability award.

We accepted review.

Analysis

Our standard of review of factual issues in a workers’ compensation case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the trial court’s factual findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (2005); see also Blankenship v. Am. Ordnance Sys., LLS, 164 S.W.3d 350, 353 (Tenn.2005). In reviewing documentary evidence such as depositions, however, we extend no deference to the trial court’s findings. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 734 (Tenn.2000). Our standard of review of questions of law is de novo without a presumption of correctness. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn.2003).

We agree with the Panel that the trial court erred in adopting Dr. Gaw’s 8% impairment rating for facial disfigurement. Our de novo review of the depositions and other documentary medical evidence leads us to the conclusion that the trial court erred in crediting Dr. Gaw’s testimony over that of Dr. Jaffrey with respect to the loss of supporting structure to the face. Dr. Gaw, an orthopedic surgeon, testified that there was a significant depression of the right side of the face, noted visually and by palpation; however, he conceded that he had never treated facial fractures.

Dr. Jaffrey is a practicing oral-maxillofa-cial surgeon, a specialty that deals with the face, jaws, and trauma. Dr. Jaffrey testified that he had treated at least a hundred patients with similar injuries and that his examination of Orrick revealed no loss of supporting structure of the face. Moreover, although the trial court was correct in stating that the AMA Guides do not require obvious disfigurement to support a 6% to 10% impairment, the Guides do require “loss of supporting structure of part of the face.” Therefore, crediting the testimony of Dr. Jaffrey, we reverse the award of 8% for facial disfigurement.

We also agree with the Panel that the trial court correctly found a 3% impairment for damage to Orrick’s trigeminal nerve. There seems to be no question in the medical evidence, and counsel for the employer conceded, that Orrick sustained damage to that nerve and that the damage and accompanying paresthesia is permanent. Although Dr. Jaffrey did not assign an impairment rating for this permanent injury under the guidelines issued by his specialty, Dr. Gaw did assign a 3% impairment, which is supported by the AMA Guides.

We part ways with the Panel, however, in our assessment of Orrick’s eligibility for a vocational disability award. The Panel concluded that because Orriek was able to perform the duties of a tool and die maker and had not attempted to drive a truck since beginning work at J & K, he was not entitled to an award for vocational disability greater than 3%. In our view, the Panel erred in crediting the testimony of the vocational rehabilitation counselor over Orrick’s own testimony as to whether he is able to drive a truck. On the issue of vocational disability, non-expert evidence is relevant, “including the testimony of the injured employee.” Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458 (Tenn.1988). '“‘[T]he claimant’s own assessment of his physical condition and resulting disabilities is competent testimony and cannot be disregarded.’ ” Id. (quoting Tom Still Transfer Co. v. Way, 482 S.W.2d 775, 777 (Tenn.1972)). Orriek testified that vibration from vehicles and machinery causes him pain and that he must relieve the pain by lying down and/or taking medication. He stated that, although he enjoyed work at the tool and die shop and was glad to have a job that did not require travel, “[i]f I was able to do it, I would probably go back to driving a truck.” As the trial court specifically found Orriek to be credible, the Panel erred in crediting the vocational counsel- or’s opinion over Orrick’s own assessment of whether he is able to drive a truck.

Moreover, “Vocational disability is ‘measured not by whether the employee can return to h[is] former job, but whether []he has suffered a decrease in h[is] ability to earn a living.’ ” Lang v. Nissan N. Am., Inc., 170 S.W.3d 564, 570 (Tenn.2005) (quoting Walker v. Saturn Corp., 986 S.W.2d 204, 208 (Tenn.1998)). As we explained in Corcoran,

The test is whether or not there has been a decrease in the employee’s capacity to earn wages in any line of work available to the employee. This is so because the whole theory of the Workmen’s Compensation statute is that compensatory income is substituted for loss of earning capacity. That an injured worker is re-employed after an injury is a relevant factor to the determination of the extent of vocational disability, regardless of whether the employee returns to the same employment or to some other work. Nevertheless, this factor is not controlling and is only one of many that must be considered. Despite the employee’s return to any employment, if the employee’s ability to earn wages in any form of employment that would have been available to him in an uninjured condition is diminished by an injury, then that is what is meant by vocational disability for the purposes of Workers’ Compensation.

Corcoran, 746 S.W.2d at 459 (emphasis added) (alterations and quotations omitted).

In cases where the employee is eligible for permanent partial disability benefits and is not able to make a meaningful return to work, the maximum vocational disability award permitted under the workers’ compensation law is six times the medical impairment rating. TenmCode Ann. § 50-6-241(b) (2005). The extent of vocational disability is a question of fact. Corcoran, 746 S.W.2d at 458. When the court applies a multiplier of five or higher, it must “make specific findings of fact detailing the reasons for awarding the maximum impairment.” Tenn.Code Ann. § 50-6-241(e). In making such findings, the court must “consider all pertinent factors.” Id, These include “lay and expert testimony, employee’s age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant’s disabled condition.” Id.

In this case, the trial court found that Orriek was not able to make a meaningful return to work. Orriek returned to work on light duty for one week and drove three or four days of regular duty the next week, until his injury prevented him from continuing to drive. The following week, Bestway went out of business. Given that Bestway went out of business after Orrick had spent less than two weeks back on the job, the evidence does not preponderate against the trial court’s finding that Orrick did not make a meaningful return to work.

The trial court set Orrick’s vocational disability at 38%, applying a multiplier of three to the total impairment rating of 11%. However, because we have held that the 8% impairment rating based on facial disfigurement was not supported by the evidence, the 33% award exceeds the maximum possible award in this case of 18%. We are therefore constrained to reduce the trial court’s award, but are unable to set an appropriate figure based on the record before us. Although, as we have explained, the record supports an award greater than the 3% set by the Panel, it is not clear from the trial record whether the maximum multiplier of six applies. The trial court did not make specific findings of fact as required by Tennessee Code Annotated section 50-6-241(c) as to Orrick’s “skills and training,” or as to “local job opportunities” or “capacity to work at types of employment available in claimant’s disabled condition.”

At trial, there was testimony not only from Orrick but from his co-worker, his wife, his father, and a fellow truck driver that Orrick is unable to work under conditions where vibration exists and that a truck driver experiences a tremendous amount of vibration. Additionally, the witnesses testified that Orrick is limited in his ability to lift and do strenuous activities. Orrick had spent twenty-two of his forty-six years as a truck driver, had only a high school education, and had no vocational training. His work experience was all in the area of manual labor, a field in which he is now limited due to the pain he experiences as a result of his injury. Orrick is currently earning 65% of what he earned as a truck driver and testified that he is able to earn that in part due to the good grace of his brother-in-law in accommodating work conditions to his injury. He testified that he will be unable to return to truck driving or perform many types of manual labor. Under these circumstances, the maximum multiplier of six set forth in Tennessee Code Annotated section 50-6-241(b) may well be appropriate, but in the absence of specific factual findings by the trial court we are unable to order such an award. We therefore remand to the trial court to make specific findings of fact and to enter a new vocational disability award consistent with this opinion.

This injury occurred five and a half years ago, on July 6, 2000. We suggest that in view of the fact that the statute requires that workers’ compensation cases be expedited by giving the cases “priority over all cases on the trial and appellate dockets,” Tenn.Code Ann. § 50 — 6—225(f)(1) (2005), that the remand be heard by the trial court within sixty days.

Conclusion

After considering the applicable authority and the arguments of the parties, we affirm in part and reverse in part the decision of the Special Workers’ Compensation Appeals Panel. We affirm the Panel’s award of future medical costs and remand to the trial court to enter a vocational disability award consistent with this opinion. Costs of the appeal shall be assessed to the defendants/appellees, Best-way Trucking, Inc., et al.

WILLIAM M. BARKER, C.J., not participating.


author: JANICE M. HOLDER, J,

text:
    Wanda BARRON v. STATE of Tennessee DEPARTMENT OF HUMAN SERVICES.
    Supreme Court of Tennessee, at Jackson.
    Nov. 9, 2005 Session.
    Feb. 14, 2006.

      Erich M. Shultz, Memphis, Tennessee, for appellant-plaintiff, Wanda Barron.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Sarah H. Cope, Assistant Attorney General, for the appellee-defen-dant, State of Tennessee.
   OPINION

JANICE M. HOLDER, J,

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and CORNELIA A. CLARK, JJ., joined.

The plaintiff sought workers’ compensation benefits for pain in her lower back and hip resulting from a work-related accident. We conclude that the Commissioner erred in finding the evidence insufficient to establish that the plaintiffs injury was permanent and in dismissing the plaintiffs claim. Accordingly, we reverse the judgment of the Claims Commission and remand the ease to determine the extent of vocational impairment and the reasonableness and necessity of medical expenses paid by the plaintiff.

In January 2002, the plaintiff, Wanda Barron, was employed in the child care licensing division of the Department of Human Services (“DHS”) as an inspector of daycare centers. On January 24, 2002, Mrs. Barron fell and landed on her buttocks while walking down a ramp at a daycare center.

Mrs. Barron filed a complaint in the Tennessee Claims Commission seeking workers’ compensation benefits for permanent total disability and for medical expenses incurred as a result of her injury. Following trial, the Commissioner found the evidence insufficient to establish that Mrs. Barron suffered a permanent injury as a result of the accident. The Commissioner concluded that the remaining issue of medical expenses was moot and dismissed Mrs. Barron’s claim.

Mrs. Barron appealed, and the appeal was referred to the Special Workers’ Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3). Following oral argument before the Panel, this case was transferred to this Court for review.

ANALYSIS

A. Permanent and Total Disability

Mrs. Barron contends that the trial court erred in failing to find that she sustained a permanent total disability as a result of pain in her lower back and hip. A finding of permanent disability in a workers’ compensation case must be based upon expert medical testimony unless the injury resulting in permanent disability is obvious to a lay person. Singleton v. Procon Prods., 788 S.W.2d 809, 811 (Tenn.1990); Freemon v. VF Corp., Kay Windsor Div., 675 S.W.2d 710, 711 (Tenn.1984).

Dorothy Jones, Mrs. Barron’s supervisor, testified regarding her observations of Mrs. Barron when she returned to work following the accident. Ms. Jones stated that Mrs. Barron was unable to sit for long periods of time or to walk long distances. Ms. Jones further observed Mrs. Barron’s condition worsen over time. This proof indicates that Mrs. Barron’s pain was obvious to a layman but fails to establish that the permanency of Mrs. Barron’s pain was obvious to a layman. The permanency of Mrs. Barron’s injury, therefore, must be established by medical expert testimony.

In determining the standard of medical proof required to establish permanent disability, this Court has held:

Any expert medical witness presented must give testimony that preponderates in favor of permanency to qualify as having probative value on that issue. In short, the medical witness, in expressing his opinion, must use language that means that the medical factors that indicate permanency of disability outweigh those to the contrary.

Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn.1990) (quoting Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 350 (Tenn.1978)). Evidence indicating only the possibility of permanency is insufficient to support a finding of permanency. Singleton, 788 S.W.2d at 811-12.

The medical proof presented at trial included the deposition testimony of Dr. Stephen Waggoner, an orthopedic surgeon specializing in spinal disorders, and of Dr. Sheila Thomas, a physician certified in family medicine. In its findings, the trial court did not appear to accredit one physician’s testimony over that of the other but considered the medical testimony as a whole in concluding that the evidence failed to establish permanency.

Because this medical expert testimony was presented by deposition, we extend no deference to the trial court’s findings regarding this testimony. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 774 (Tenn.2000). Ultimately, we must conduct an independent review of the evidence to determine where the preponderance of the evidence lies. See Tenn.Code Ann. § 50-6 — 225(e)(2) (2005); Cleek, 19 S.W.3d at 773-74.

Dr. Waggoner treated Mrs. Barron from March 2002 until June 2002. Dr. Waggoner testified that Mrs. Barron complained of severe pain in the lower lumbar spine and weakness in her leg when he first began treating her. Mrs. Barron had mild tenderness over her sacrum and coccyx region, but Dr. Waggoner did not observe swelling or spasms in her spine. During subsequent examinations, Mrs. Barron complained of increasing lower back pain and pain in her left hip.

X-rays of Mrs. Barron’s spine and coccyx did not reveal any evidence of a fracture. An MRI indicated a possible contusion over the coccyx but did not reveal any evidence of a fracture, disk herniation, or spinal stenosis. Dr. Waggoner testified that following his March 13, 2002 examination of Mrs. Barron, he felt that Mrs. Barron “had some signs of symptom magnification on her exam because of the severe pain she was having with the light touch. This was basically a nonphysiologie type of finding. I am not sure why she was complaining of such severe pain from what I could find on the exam.”

Dr. Waggoner recommended an aggressive physical therapy program for lumbar strengthening. The physical therapy, however, did not improve Mrs. Barron’s condition. Dr. Waggoner stated he did not believe that further physical therapy would be beneficial. Rather, he instructed Mrs. Barron -to continue with an exercise program on her own and to take Tylenol for the pain.

During subsequent examinations, Mrs. Barron complained of pain with light touch, pelvic rotation, and axial compression, all of which, according to Dr. Wag-goner, typically should not cause pain. Dr. Waggoner stated that he also observed minimal swelling and tenderness in the lumbar region. He testified that his impression in June 2002 was that Mrs. Barron had reached maximum medical improvement. He released her from his care to return to her primary care physician. Although Dr. Waggoner did not assign Mrs. Barron an anatomical impairment rating, he did not equate his failure to do so with the absence of a disability. He acknowledged that he did not utilize the chapter of the American Medical Association Guidelines for Permanent Impairment (“AlMA Guides”) to evaluate any impairment due to pain.

After Dr. Waggoner released Mrs. Barron, she sought treatment from Dr. Thomas. Dr. Thomas testified that she did not conduct a physical examination of Mrs. Barron’s back or hip but reviewed tests conducted by other doctors. Dr. Thomas opined that Mrs. Barron’s hip pain, which first arose months following the accident, was the result of inflammation from the initial injury. Dr. Thomas observed Mrs. Barron walking with a limp and experiencing difficulties sitting in a chair. Dr. Thomas stated that when Mrs. Barron sat in a chair she would position her hands in such a way as to prevent her buttocks from touching the chair.

During the course of treating Mrs. Barron, Dr. Thomas gave her intramuscular injections, pain medication, and muscle relaxers. Dr. Thomas testified that despite these courses of treatment Mrs. Barron’s pain never ceased. Furthermore,' some of the medications caused Mrs. Barron to suffer from drowsiness and various gastrointestinal problems such as nausea and vomiting. Dr. Thomas explained that Mrs. Barron will continue to require treatment in an attempt to alleviate her pain.

When questioned regarding whether Mrs. Barron sustained a permanent impairment due to pain under the AMA Guides, Dr. Thomas stated that she was not familiar with the applicable percentages because the nature of her practice does not require her to assign anatomical impairment ratings on a regular basis. Dr. Thomas, however, testified that Mrs. Barron was unable to conduct the activities of daily living, which Dr. Thomas acknowledged are functions measured in the AMA Guides in determining an impairment rating. Dr. Thomas further testified,

I know all of the treatments that I have done with her have not worked. She’s continued to have the pain and has actually not expressed that there has been any relief in the pain or really any improvement in the pain, maybe a slight amount, but ... she had the side effects associated with those medications. So I really haven’t seen any change in her since the first day I saw her last year.

Both Dr. Waggoner and Dr. Thomas testified regarding the various treatments provided to Mrs. Barron and her continued pain despite the treatments. Both physicians also made objective findings regarding Mrs. Barron’s pain. Dr. Waggoner observed some swelling and tenderness in the lumbar region while Dr. Thomas noted inflammation. Dr. Wag-goner characterized Mrs. Barron’s condition as “chronic back pain with left hip pain.” Dr. Thomas testified that she had not observed any improvement in Mrs. Barron’s condition since she began treating her. Neither physician assigned an anatomical impairment rating or permanent restrictions due to Mrs. Barron’s injury. Both physicians acknowledged, however, that they did not consider the AMA Guides’ chapter on impairment due to pain. Furthermore, we do not believe that the absence of permanent restrictions alone precludes a finding of permanency. Considering the medical evidence in its entirety, we conclude that the testimony of Dr. Waggoner and Dr. Thomas is sufficient to establish that Mrs. Barron’s condition is permanent. See Johnson, 801 S.W.2d at 806.

Because the trial court dismissed the claim after finding a lack of permanency, the Commissioner did not reach the issue of vocational impairment. We therefore remand the case for a determination of the extent of vocational impairment. We recognize that prior to trial, Mrs. Barron conceded that the evidence would not support a finding of permanent partial disability and sought benefits for permanent total disability only. A court, however, is not bound by a party’s concession. See, e.g., State v. Gomez, 163 S.W.3d 632, 661-62 (Tenn.2005) (refusing to accept the State’s concession that the defendants’ sentences were imposed in violation of the Sixth Amendment); State v. Mitchell, 137 S.W.3d 630, 639-40 (Tenn.Crim.App.2003) (declining to accept the State’s concession that the evidence supported the trial court’s application of one of the elements of the marital communications privilege). Before accepting Mrs. Barron’s concession on remand, the Commissioner should conduct an independent analysis of the evidence and the applicable law to determine whether the proof supports an award of either permanent partial disability or permanent total disability.

B. Medical Expenses

Mrs. Barron seeks reimbursement for medical expenses that she paid since being released by Dr. Waggoner, as well as future medical expenses. The Commissioner concluded that the issue was moot due to her finding that Mrs. Barron was not permanently disabled.

An employer is responsible for reasonable and necessary medical care resulting from an employee’s work-related injury even if the injury does not result in permanent impairment. See Tenn.Code Ann. § 50-6-204(a)(l), (b)(1) (Supp.2001); Stephens v. Henley’s Supply & Indus., Inc., 2 S.W.3d 178, 179 (Tenn.1999); Wilkes v. Res. Auth. of Sumner County, 932 S.W.2d 458, 461 (Tenn.1996). Accordingly, we remand this case to the Claims Commission for a determination of the reasonableness and necessity of the medical expenses paid by Mrs. Barron.

CONCLUSION

We conclude that the evidence is sufficient to establish that Mrs. Barron’s injuries were permanent. We further conclude that the Commissioner erred in declining to address Mrs. Barron’s claims for medical expenses. Therefore, we reverse the judgment of the Claims Commission. We remand the case to the Claims Commission for determinations regarding the extent of vocational impairment and the reasonableness and necessity of medical expenses paid by Mrs. Barron.

Costs of appeal are taxed to the appel-lee, the State of Tennessee.

      . To prevent additional proceedings and undue delay, a trial court should make appropriate findings of fact and alternative findings necessary for appellate review. See Cunningham v. Shelton Sec. Serv., Inc., 46 S.W.3d 131, 137-38 (Tenn.2001).


author: ADOLPHO A. BIRCH, JR., J.,

text:
    STATE of Tennessee v. Robert PAGE.
    Supreme Court of Tennessee, at Nashville.
    Feb. 8, 2006.

      Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tracey Jones, Assistant District Attorney, for the appellant, State of Tennessee.
    Paul Guibao and Larry Copeland, Memphis, Tennessee, for the appellee, Robert Page.
   Opinion

ADOLPHO A. BIRCH, JR., J.,

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, JJ., FRANK F. DROWOTA, III, Sp.J. joined.

We granted the State’s application for permission to review this case pursuant to Tennessee Rule of Appellate Procedure 11 in order to determine the constitutionality of Tennessee Code Annotated section 40-18 — 110(c), which provides that failure to request a lesser-ineluded offense instruction in writing waives the right to assign it as an issue in a motion for a new trial or on appeal. We conclude that section 40-18-110(c) renders the omission of instruction on lesser-ineluded offenses subject to the general rule that issues concerning instructions are considered waived in the absence of objection or a written request, unless they contain plain error. Under section 40-18-110(c), even absent a written request, the trial judge may still charge the jury on applicable lesser-ineluded offenses and an appellate court may still review a lesser-ineluded offense issue under the doctrine of plain error. We conclude, however, that the failure to instruct on lesser-ineluded offenses in the present case does not constitute plain error. Accordingly, we reverse the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

On August 17,1999, the defendant, Robert Page, was indicted for second degree murder for his participation in the beating and death of Roosevelt Burgess on April 30,1999.

The proof at trial showed that at approximately 10:00 p.m. on April 30, 1999, Officer Jason McDaniel of the Memphis Police Department responded to a call directing him to the scene of an altercation at Third and Auction Streets. He found a man lying face down in a vacant parking lot. Other investigators found numerous bloody sticks and boards surrounding the victim, Roosevelt Burgess, who had suffered multiple head wounds and was dead on the scene.

Ms. Carrie Jones testified that her daughter awakened her on the evening of April 30, 1999, because four men were outside “beating up” another man. Ms. Jones went outside and talked to one of the men — the defendant — to determine what had caused the fight. She asked the men to stop hitting the victim, but they would not. She stated that all four men were hitting the victim with planks, and that she saw the victim fall to the ground as a result of these blows. After the victim fell, all of the men kicked him except the defendant. All four men fled the scene before police arrived.

Thomas Deering, M.D., a medical examiner for Davidson and Williamson counties, testified as an expert forensic pathologist. He performed an autopsy on the victim and determined that the cause of death was blunt trauma to the head caused by numerous blows resulting in injury to the brain.

Officer Gary Creasy, Memphis Police Department, testified that on May 2, 1999, the defendant confessed to his involvement in the beating that resulted in the death of Burgess. In his confession, which Creasy read into the record, the defendant stated that he, together with Lacy Woods, Andy Carr, and Michael Woods participated in the beating. The defendant described his role in the altercation, stating:

I came from the store at Fifth and Mill Streets. When I stopped at the stop sign, I seen Lacey [sic] and some other dude arguing about some money or something. I seen dude when he pulled a box cutter and tried to stab Lacey with it. Lacey was backing up, looking for something or anything to hit the dude with. Then, me, Michael and Andy got with Lacey and started chasing the dude with the box cutter. We ran to where the dude fell down. I don’t know the name of the street. I picked up a sign and hit him with it in the back of the head. Then the sign slipped out of my hand and Andy Carr picked up the sign and hit him with it. Then, Michael Woods picked up the stick and hit the dude one time in the head. Then Michael throwed it down. That’s when Lacey picked up the stick and kept on hitting the dude. I don’t know how many times Lacey hit him, I think about seven or eight times. Then I walked off.

Lacy Woods pleaded guilty to second degree murder for his involvement in the beating and testified at the defendant’s trial. In Woods’ prior statement to the police, he claimed that he had hit the victim about four times, using only his fist. He also said that the defendant had hit the victim about five or six times with his hands because the victim owed the defendant some drugs. At trial, he claimed that some of the information he had previously given was incorrect because he had been “messed up” the night he gave the statement. He admitted, however, that he was not drunk the next day when he signed that same statement. Woods testified that contrary to his prior statement, he was the one who hit the victim repeatedly with a two by four. He also testified that the defendant had tried to break up the fight, and that the defendant hit the victim only once with a plastic sign after the victim had taken a swing at the defendant.

The jury was instructed on second degree murder and the lesser-included offenses of voluntary manslaughter and reckless homicide. The defendant did not request an instruction on facilitation of second degree murder, and none was given. The jury returned a verdict convicting the defendant of second degree murder. The defendant filed a motion for a new trial, in which he failed to raise as an issue the omission of the instruction on the lesser-included offense of facilitation of second degree murder. The trial court denied the motion and imposed a sentence of thirty-eight years to the Department, of Correction.

The Court of Criminal Appeals reversed, ruling that the trial court should have instructed the jury on facilitation of second degree murder as a lesser-included offense. The court opined that the 2001 amendment to Tennessee Code Annotated section 40-18-110, which provides that failure to request an instruction in writing waives the issue as grounds for a new trial or an appeal, was unconstitutional, abridging a defendant’s right to a jury trial. Furthermore, the court held that the trial court’s error in failing to instruct the jury on facilitation was prejudicial. The Court of Criminal Appeals then reversed the judgment of the trial court and remanded the case for a new trial.

II. Standard of Review

Questions regarding the constitutionality of a particular statute are questions of law; therefore, the standard of review is de novo with no presumption of correctness afforded to the conclusions of the court below. State v. McKnight, 51 S.W.3d 559, 562 (Tenn.2001) (citing Comdata Network, Inc. v. Tennessee Dept. of Revenue, 852 S.W.2d 223, 224 (Tenn.1993)).

III. Analysis

A. Right to Lesser-included Offense Instructions

The State asserts that the Court of Criminal Appeals erred in finding Tennessee Code Annotated section 40-18-110(c) unconstitutional because the statute does not preclude lesser-included offense instructions; it merely establishes reasonable procedures for invoking the right to those instructions. The State urges the Court to assume that the defendant in this case waived the right to an instruction on facilitation for tactical reasons, a decision which bound him. The State argues that, in any event, the trial court’s failure to instruct on facilitation of second degree murder does not constitute reversible error.

On the other hand, the defendant contends that the Court of Criminal Appeals correctly held Tennessee Code Annotated section 40 — 18—110(c) unconstitutional as violating a defendant’s right to have a jury consider all lesser-included offense instructions supported by the evidence. The defendant also claims that this statute violates the separation of powers doctrine by removing a court’s authority to correct such errors. Moreover, the defendant argues that because the evidence supported a finding that he facilitated the murder, the trial court committed reversible error in failing to instruct on that offense, thereby depriving him of a fair trial.

In State v. Burns, 6 S.W.3d 453, 466-67 (Tenn.1999), the Court set forth the following test for determining what constitutes a lesser-included offense:

An offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).

In addition, an offense can also be lesser-included if it is expressly so designated by the legislature. State v. Rush, 50 S.W.3d 424, 429 n. 4 (Tenn.2001).

Whether a lesser-included offense must be charged in a jury instruction necessarily requires a two-step analysis. First, the trial court must determine whether an offense is a lesser-included offense under the Bums test; then, it must determine whether a charge is justified by the evidence. State v. Ely, 48 S.W.3d 710, 722 (Tenn.2001). The second step of this analysis requires a determination that: “(1) reasonable minds could accept the offense as lesser-included; and (2) the evidence is legally sufficient to support a conviction for the lesser-included offense.” State v. Wilson, 92 S.W.3d 391, 394 (Tenn.2002).

First, both parties agree that facilitation of second degree murder is a lesser-included offense under part (c)(1) of the Bums test, and we agree also. Further, we conclude that the evidence could reasonably be interpreted to support a conviction for facilitation of second degree murder. The defendant’s precise role in the beating of the victim is unclear. Carrie Jones testified that she saw the defendant hit the victim with a plank several times, but Woods testified that the defendant hit the victim only once with a plastic sign. The defendant’s theory was that he hit the victim only once and that this blow did not cause the victim’s death. Although this evidence is conflicting, it is sufficient to support, at the very least, a finding of facilitation of second degree murder.

B. Waiver

We must determine, however, whether the defendant waived his right to raise this issue as error on appeal. The prior version of section 40-18-110 provided:

(a) It is the duty of all judges charging juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.

TenmCode Ann. § 40-18-110(a)(1979). This statute placed a duty on trial courts to instruct on all lesser-included offenses supported by the evidence, whether or not requested by the defendant. Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 228 (1962) (“Our statute made it the duty of the Judge to give such charge without any request.”). Under this prior version of section 40-18-110, a defendant was not required to request a lesser-included instruction to assign as error the trial court’s failure to give such instruction. Therefore, all a defendant need do to assign error to a trial court’s failure to instruct on a lesser-included offense was to raise that issue on appeal. See id.

Conversely, the current version of section 40-18-110 places a duty on the defendant to request a lesser-included offense in writing at trial to assign as error on appeal the trial court’s failure to instruct on such offenses. The current statute, effective for all cases tried on or after January 1, 2002, provides:

(b) In the absence of a written request from a party specifically identifying the particular lesser included offense or offenses on which a jury instruction is sought, the trial judge may charge the jury on any lesser included offense or offenses, but no party shall be entitled to any such charge.
(c) Notwithstanding any other provision of law to the contrary, when the defendant fails to request the instruction of a lesser included offense as required by this section, such instruction is waived. Absent a written request, the failure of a trial judge to instruct the jury on any lesser included offense may not be presented as a ground for relief either in a motion for a new trial or on appeal.

Tenn.Code Ann. § 40-18-110(b)-(c) (2003) (emphasis added). Accordingly, if a defendant fails to request an instruction on a lesser-included offense in writing at trial, the issue will be waived for purposes of plenary appellate review and cannot be cited as error in a motion for a new trial or on appeal. See id.; State v. Terry, 118 S.W.3d 355, 359 (Tenn.2003). While a defendant’s failure to request a lesser-included offense instruction in writing waives the right to raise such omission as an issue on appeal, the right itself is not waived because the trial court may still charge the jury on any instructions supported by the evidence. See TenmCode Ann. § 40-18-100(b). The trial court would presumably still give lesser-included offense instructions, even when not requested, when those instructions are necessary for a fair trial.

Irrespective of section 40-18-110, a defendant has a constitutional right to a correct and complete charge of the law to ensure that he receives a fair trial. State v. Teel, 793 S.W.2d 236, 249 (Tenn.1990). This right encompasses the right to have the jury instructed on all lesser-included offenses supported by the evidence. While an erroneous or inaccurate jury charge may be cited as error for the first time in a motion for a new trial or on appeal, a trial court’s incomplete jury charge may be cited as error on appeal only if the defendant requested a lesser-included offense charge at trial. See State v. Faulkner, 154 S.W.3d 48, 58 (Tenn.2005). The current version of section 40-18-110(c) subjects the right to lesser-included offense instructions to the general rule that issues concerning incomplete instructions are deemed waived in the absence of an objection or special request. See State v. Cravens, 764 S.W.2d 754, 757 (Tenn.1989).

Furthermore, the waiver of a lesser-included offense for purposes of plenary appellate review is constitutionally permissible. A trial court’s failure to instruct on lesser-included offenses is not a structural error. See State v. Allen, 69 S.W.3d 181, 190-91 (Tenn.2002) (Holding that failure to instruct on lesser-included offenses is subject to constitutional harmless error analysis). As a non-structural constitutional error, the omission of a lesser-included offense instruction is subject to waiver for purposes of plenary appellate review when the issue is not timely raised and properly preserved. See State v. Terry, 118 S.W.3d 355, 359 (Tenn.2003) (defendant’s failure to request lesser-included offense instruction at trial-or in a motion for a new trial waived issue). Similarly, issues involving other non-structural constitutional errors must be preserved to receive plenary appellate review. See State v. Gomez, 163 S.W.3d 632, 645 (Tenn.2005) (Sixth Amendment right to confront witnesses). Accordingly, we conclude that Tennessee Code Annotated section 40-18-110(c) does not violate the constitutional right to trial by jury.

C. Separation of Powers

This Court invited the parties to address the separation of powers issue. The defendant argues that Tennessee Code Annotated section 40-18-110(c) violates the separation of powers provision of the Tennessee Constitution by precluding a court from addressing a trial court’s error in failing to instruct on lesser-included offenses, even when there has been plain error. See Tenn. Const., art. II, § 2 (“No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.”). The State argues that because the statute provides for a waiver of the right to lesser-included offense instructions, it could not violate the separation of powers because there would be no error for an appellate court to correct.

We agree that Tennessee Code Annotated section 40-18-110(c) does not violate the constitutional provision for separation of powers. Although section 40-18-110(c) precludes a defendant from raising the trial court’s failure to instruct on lesser-included offense instructions not requested in writing, appellate courts are not precluded from sua sponte reviewing this issue under the plain error doctrine.’ Accordingly, we hold that Tennessee Code Annotated section 40-18-110(c) does not violate the constitutional provision for separation of powers.

D. Plain Error Analysis

We now address whether it is appropriate to review the trial court’s failure to give a lesser-included offense instruction, even if the issue was not properly preserved for appeal, under the doctrine of plain error. When determining whether plain error review is appropriate, the following five factors must be established:

(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial, right of the accused must have been adversely affected;
(d) the accused [must not have waived] the issue for tactical reasons; and
(e) consideration of the error [must be] “necessary to do substantial justice.”

Terry, at 360 (citing State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn.Crim.App.1994) (footnotes omitted)). An error would have to especially egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to rise to the level of plain error.

In the present case, at trial, the defendant failed to request a lesser-included offense instruction on facilitation of second degree murder. The defendant has failed to show that he did not waive this issue for tactical reasons. Therefore, the trial court’s failure to instruct on facilitation of second degree murder does not rise to the level of plain error.

IV. Conclusion

We hold that Tennessee Code section 40-18-110(c) does not violate a defendant’s right to trial by jury, nor does it violate the constitutional provision for separation of powers. We find, therefore, that by failing to request such an instruction, the defendant waived his right to seek plenary appellate review of the issue. Furthermore, the trial court’s failure to instruct on facilitation of second degree murder as a lesser-included offense does not constitute plain error. Accordingly, we reverse the decision of the Court of Criminal Appeals, and reinstate the defendant’s conviction for second degree murder. It appearing that the defendant is indigent, the costs of this appeal are taxed to the State of Tennessee, for which execution may issue if necessary.


author: DAVID R. FARMER, J.,

text:
    In re the ESTATE OF J.D. DAVIS, Deceased.
    Court of Appeals of Tennessee, at Nashville.
    Aug. 3, 2004 Session.
    Sept. 2, 2004.
    Application for Permission to Appeal Denied by Supreme Court Feb. 28, 2006.
    Petition to Rehear Denied May 2, 2005.

      Overton Thompson, III, Nashville, Tennessee, for the appellant, Dorothy L. Davis.
    Thomas O. Helton and Sheri A. Fox, Chattanooga, Tennessee, for the appellees, J. Douglas Davis and Julie Ann Davis Griffin.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

The probate court awarded summary judgment to Defendants/Appellees upon determining that, under Florida law, the antenuptial agreement entered into by Plaintiff/Appellant and Deceased was valid and enforceable. On appeal, Plaintiff/Appellant argues that the agreement is not enforceable as a violation of Tennessee public policy and by reason of duress. We reverse the award of summary judgment and remand for further proceedings.

This appeal requires us to construe an antenuptial agreement (“the agreement”). The facts relevant to our disposition of this appeal are undisputed. PlaintiffiAppel-lant, Ms. Dorothy L. Davis (Ms. Davis), a resident of Florida, and her late husband, J.D. Davis (Mr. Davis), a domiciliary of Tennessee, met in the spring of 1989 and married in July 1990. At the time of their marriage, Mr. Davis was 75 years of age and Ms. Davis was 66 years of age. Both Mr. Davis and Ms. Davis had been married previously, and both had children from their previous marriages. They were engaged for over a year before marrying, and their wedding date was postponed at least once. At the time of their marriage, both were in good health and were comfortable financially. They lived in Nashville, Tennessee, for six months of the year and in Florida for the remaining six months. Mr. Davis remained domiciled in Tennessee. Mr. Davis and Ms. Davis executed their antenuptial agreement at the offices of Mr. Davis’ legal counsel in Florida on July 19, 1990, one day before their marriage. The agreement was notarized by a Florida notary.

The agreement executed by Mr. Davis and Ms. Davis provided, inter alia:

2. WAIVER OF RIGHT OF ELECTION. Each of the parties waives and releases any rights as surviving spouse to elect to take against the other’s will, whether heretofore or hereafter made. This provision shall constitute a waiver and release of the right of election in accordance with the requirements of the Estates, Powers and Trusts Law of the State of Florida or of the same or similar law of any other jurisdiction which may be applicable.
3. RELEASE OF MARITAL RIGHTS. Each of the parties hereby waives and releases all rights and interest, statutory or otherwise, including but not limited to homestead, dower, spouse’s allowance statutory allowance, distribution in intestacy, and right of election to take against the will of each other which they might acquire as the wife, widow, husband, spouse, heir-at-law, next of kin, or distributee of each other, in their property, owned by them at the time of the marriage or acquired by them at any time thereafter.

Mr. Davis died on May 9, 2002, and his Will was admitted to probate in Tennessee on May 15, 2002. In December 2002, Ms. Davis filed petitions for elective share, homestead, exempt property, and a year’s support allowance against the estate of Mr. Davis (“the Estate”). The Estate moved for summary judgment, arguing that Ms. Davis was not entitled to elect against Mr. Davis’ Will under the antenup-tial agreement. In her response, Ms. Davis argued the agreement was invalid and that she was, therefore, entitled to exercise her right to elective share, homestead, exempt property, and a year’s support allowance.

The probate court determined that, under Tennessee’s choice of law provisions, Florida law applied to the agreement. It further found the agreement to be valid and enforceable under Florida law. The probate court entered summary judgment for the Estate in April 2003, holding that, in light of the antenuptial agreement, Ms. Davis is not a “surviving spouse” within the meaning of section 31-4-101, Tennessee Code Annotated. Ms. Davis appeals.

Issues Presented

Ms. Davis presents the following issues, as we re-state them, for review by this Court:

(1) "Whether the trial court erred by determining the antenuptial agreement is governed by Florida law;
(2) "Whether the trial court erred by awarding summary judgment to the Estate where a genuine issue of material facts exists regarding whether the antenuptial agreement was a product of duress;
(3) Whether the trial court erred by awarding summary judgment to the Estate when enforcing it violates Tennessee public policy.

Standard of Review

Antenuptial agreements are enforceable as contracts. Tenn.Code Ann. § 36-3-501(2001). Contract interpretation is a matter of law which we review de novo, with no presumption of correctness afforded to the trial court. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999); Tenn. R.App. P. 13(d). We also review an award of summary judgment de novo, with no presumption of correctness. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn.2002).

Summary judgment is appropriate only when the moving party can demonstrate that there are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). The party moving for summary judgment must affirmatively negate an essential element of the nonmoving party’s claim, or conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998).

When a party makes a properly supported motion for summary judgment, the burden shifts to the nonmoving party to establish the existence of disputed material facts. Id. A mere assertion that the non-moving party has no evidence does not suffice to entitle the moving party to summary judgment. Id. In determining whether to award summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn.2000). The court should award summary judgment only when a reasonable person could reach only one conclusion based on the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if there is any doubt about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at 588.

Analysis

Absent a contractual choice of law provision, Tennessee courts apply the lex loci rule to contract causes of action. Solomon v. FloWarr Mgmt., 777 S.W.2d 701, 704-05 (Tenn.Ct.App.1989). Accordingly, the substantive law of the state in which the contract was executed governs disputes arising from the contract. Id. An exception to this general rule is often made when the contract is to be performed in another state and the parties envision performance in accordance with that state’s laws. Id. at n. 5. The primary consideration to be made in determining whether the exception applies is whether the contract was made “in good faith with reference to the law of some other state,” or “with [a] view to” the other state. Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 466-67 (Tenn.1973) (quoting First Am. Nat'l Bank of Nashville v. Automobile Ins. Co., 252 F.2d 62 (6th Cir. Tenn.1958)). The intent of the parties in this regard is to be “gathered from the terms of the instruments and all of the attending circumstances.” Id.

The agreement before us in this case contains no choice of law provision. Thus, absent a reason for exception, the lex loci rule applies and this agreement is to be construed under Florida law. Ms. Davis submits, however, that a genuine issue of material fact exists regarding whether the parties intended that the agreement would be construed under Tennessee or Florida law.

Although Mr. Davis remained a domicile of Tennessee and identified Tennessee as his residence in tax returns and in his Will, there is nothing in this record to suggest that Mr. Davis intended that this agreement would be construed under Tennessee law. Mr. Davis entered into the agreement while in Florida; he entered into the agreement with a Florida domiciliary; the agreement was prepared by Florida legal counsel; during the marriage, Mr. Davis resided in Florida for one-half of each year. Additionally, Florida law is the only law specifically referenced in the agreement. Further, there is nothing in the record to suggest Ms. Davis believed the agreement would be construed under Tennessee law at the time she entered into it. Thus, absent some reason for exception, the lex loci rule would apply to this agreement, and it would be governed by Florida law.

Ms. Davis submits, however, that this contract is not enforceable because it violates Tennessee public policy. In general, parties are free to contract under binding terms unless contrary to an overriding social policy. Planters Gin Co. v. Federal Compress & Warehouse Co., Inc., 78 S.W.3d 885, 892 (Tenn.2002). Thus, regardless of the generally applicable lex loci rule of contracts, courts will apply Tennessee law under circumstances where applying the law of a sister jurisdiction would contravene a strong public policy of Tennessee. Bowman v. Price, 143 Tenn. 366, 226 S.W. 210, 214 (1920); Robinson Prop. Group, LP v. Russell, No. W2000-00331-COA-R3-CV, 2000 WL 33191371, at *3 (Tenn.Ct.App. Nov.22, 2000) (no perm, app. filed). A contract which violates Tennessee public policy will not be enforceable in Tennessee, although it is enforceable in the. state in which it was executed. Martin v. Dealers Transp. Co., 48 Tenn.App. 1, 342 S.W.2d 245, 249 (1961).

Florida and Tennessee law governing antenuptial agreements differ in at least one important respect. In Tennessee, antenuptial agreements are enforceable as contracts if they have been entered into “freely, knowledgeably and in good faith without exertion of duress or undue influence upon either spouse.” Tenn.Code Ann. § 36-3-501(2001); Bratton v. Bratton, 136 S.W.3d 595, 599 (Tenn.2004). Thus, to be valid in Tennessee, an ante-nuptial agreement requires prior adequate disclosure and the absence of undue influence or overreaching. Bratton, 136 S.W.3d at 599. A party seeking to enforce an antenuptial agreement in Tennessee must prove, by a preponderance of the evidence, that the agreement was executed after

full and fair disclosure of the nature, extent and value of his or her holdings was provided to the spouse seeking to avoid the agreement, or that disclosure was unnecessary because the spouse seeking to avoid the agreement had independent knowledge of the full nature, extent, and value of the proponent spouse’s holdings.

Randolph v. Randolph, 937 S.W.2d 815, 817 (Tenn.1996).

Tennessee applies the standard enunciated in Randolph in the probate context, as well as in the marriage dissolution context. See In Re Estate of Miller, C.A. No. 88-316-11, 1989 WL 19921, at *2 (Tenn.Ct. App. March 8, 1989). In Estate of Miller, this Court affirmed the judgment of the probate court setting aside the terms of an antenuptial agreement waiving the spouse’s marital rights, including a year’s support, exempt property, homestead and a distributive share of the net estate. We held the agreement was invalid where the agreement was not entered into freely, knowledgeably and in good faith after full and fair disclosure. Id.

Under Florida law, however, an ante-nuptial agreement may be held valid in the probate context even when executed under conditions which would render it invalid in a marriage dissolution action. Weintraub v. Weintraub, 417 So.2d 629, 630 (Fla.1982). The Florida Code provides:

Waiver of Spousal Rights.
(1)The rights of a surviving spouse to an elective share, intestate share, pre-termitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. The requirement of witnesses shall be applicable only to contracts, agreements, or waivers signed by Florida residents after the effective date of this law. Any contract, agreement, or waiver executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where it was executed, whether or not he or she is a Florida resident at the time of death. Unless the waiver provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, by the waiving party in the property of the other and a renunciation by the waiving party of all benefits that would otherwise pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the written contract, agreement, or waiver.
(2) Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.
(3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.

Fla. Stat. Ann. § 732.702(2002). Thus, in the Florida probate context, an antenuptial agreement to waive the right of election is valid even in the absence of full and fair disclosure of the estate. A fair disclosure is required only when such an agreement is executed after marriage.

As we consider whether enforcing the agreement as valid under Florida law would violate Tennessee public policy, we must consider the history of Florida law governing antenuptial agreements. The Supreme Court of Florida addressed the validity of antenuptial agreements in the probate context in Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). The Del Vecchio court observed:

The relationship between the parties to an antenuptial agreement is one of mutual trust and confidence. Since they do not deal at arm’s length they must exercise a high degree of good faith and candor in all matters bearing upon the contract.

Del Vecchio, 143 So.2d at 21. In consideration of this confidential relationship, the court held that, in the probate context:

A valid antenuptial agreement contemplates a fair and reasonable provision therein for the wife, or, absent such provision, a full and frank disclosure to the wife, before the signing of the agreement, of the husband’s worth, or, absent such disclosure, a general and approximate knowledge by her of the prospective husband’s property. The term ‘approximate’ is, for this purpose, held synonymous with ‘near’, ‘close to’ or ‘approaching’.
If the provision made by the agreement is not fair and reasonable then it should be made to appear that the wife, when she signed, had some understanding of her rights to be waived by the agreement. In any event she must have signed freely and voluntarily, preferably, but not necessarily a required pre-requi-site, upon competent and independent advice.

Id. at 20. In Posner v. Posner, the Supreme Court of Florida held the Del Vecchio standard of fairness of provision or knowledge of the estate was applicable to determine the validity of antenuptial agreements in marriage dissolution actions. Posner v. Posner, 233 So.2d 381 (Fla.1970).

In 1974, however, the Florida legislature enacted current section 732.702(2), changing the Del Vecchio rule as it applied to the probate context. Weintraub, 417 So.2d 629, 630 (Fla.1982). Accordingly, under Florida law, an antenuptial agreement is valid in the probate context even absent disclosure or independent knowledge of the estate of the other spouse. Id. The Florida statute applies only in the probate context, however, and the Weintraub court rejected Appellant’s argument that, for public policy reasons, the same rule should apply in marital dissolution actions. Id. at 631. The Weintraub court observed that the Florida legislature had made a policy determination when it revised the Del Vecchio rule in the probate context, and that it was within the province of the legislature to revise the rule, if it saw fit, in the dissolution context. Id. The court further stated, “[t]his Court, however, believes that the Posner decision serves an important function in protecting prospective spouses from being bound by unfair agreements!)]” Id.

Unlike the Florida legislature, the Tennessee legislature has made no distinction dr exception for antenuptial agreements which ultimately are construed in the probate context. In Tennessee, an antenup-tial agreement must be entered into “freely, knowledgeably and in good faith without exertion of duress or undue influence upon either spouse” in order to be valid in any context. TenmCode Ann. § 36-3-501(2001). The courts of Tennessee, moreover, have applied the standard with the same rigor in both the probate and dissolution contexts. See, e.g., In Re Estate of Miller, C.A. No. 88-316-11, 1989 WL 19921, at *2 (Tenn.Ct. App. March 8, 1989).

In Bratton v. Bratton, 136 S.W.3d 595 (Tenn.2004), the Tennessee Supreme Court recently reiterated the philosophy which guides the courts of this state when considering agreements entered into between spouses. In considering a postnup-tial agreement, the Bratton court stated, “[b]ecause of the confidential relationship which exists between husband and wife, postnuptial agreements are [like antenup-tial agreements] ... subjected to close scrutiny by the courts to ensure that they are fair and equitable.” Bratton, 136 S.W.3d at 601. The court observed that “a fiduciary duty of the highest degree” is imposed in transactions between spouses. Id. (quoting 41 C.J.S. Husband & Wife § 87 (1991)). The Bratton court emphasized:

While it is lawful and not against public policy for husband and wife to enter into such contracts, yet they are not dealing with each other as strangers at arm’s length. The relationship of husband and wife is one of special confidence and trust, requiring the utmost good faith and frankness in their dealings with each other.... Transactions of this character are scrutinized by the courts with great care, to the end that no unjust advantage may be obtained by one over the other by means of any oppression, deception, or fraud. Courts of equity will relieve against any unjust advantage procured by any such means, and less evidence is required in such cases to establish the fraud, oppression, or deception than if the parties had been dealing at arm’s length as strangers....

Id. (quoting In re Estate of Gab, 364 N.W.2d 924, 926 (S.D.1985)(quoting Keith v. Keith, 37 S.D. 132, 156 N.W. 910, 911 (1916))).

Clearly, in Tennessee, the marriage relationship is regarded as one of utmost confidence. Accordingly, it is the public policy of this state that agreements entered into between spouses or, in the case of antenuptial agreements, prospective spouses, are enforceable only if they are executed in good faith, knowledgeably, and without duress. Id.; Tenn.Code Ann. § 36-3-501 (2001). This “highest degree” of fiduciary duty is required in light of the confidential relationship existing between the parties at the time the agreement is made. The fact that a term of the agreement takes effect after the death of one spouse, rather than upon a dissolution of the marriage, does not change the circumstances existing at the time the agreement was executed by the parties.

Tennessee’s requirements for antenup-tial agreements have been developed in light of the unique and confidential nature of the marriage relationship. “An engagement to marry creates a confidential relation between the contracting parties and an antenuptial agreement contract entered into after the engagement and during its pendency must be attended by the utmost good faithfj” Bratton, 136 S.W.3d at 601 (quoting Baker v. Baker, 24 Tenn.App. 220, 142 S.W.2d 737, 745 (Tenn.1940)). Borrowing the now famous words of Judge Cardozo, the parties to an antenuptial agreement are “coadventures, subject to fiduciary duties akin to those of partners ... the punctilio of an honor the most sensitive, is then the standard” which we shall apply to their agreements. Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (N.Y.1928). The relationship existing at the time the agreement was executed is not altered by the context in which enforcement is sought.

The public policy of this state is found in our constitution, statutes, judicial decisions, and common law. Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn.1998). It is primarily within the function of the legislature to determine public policy, although the judiciary may do so in the absence of a co- atitutional or statutory directive. Id. Antenuptial agreements generally are favored by public policy. Bratton, 136 S.W.3d at 599. However, the public policy of this state, as established by the legislature and enforced by the courts, requires that, in light of the confidential relationship between prospective spouses, ante-nuptial agreements must be executed in utmost good faith, knowledgeably, with full and fair disclosure, and without duress. Unlike the Florida legislature, the Tennessee legislature ha; not altered the rules governing the execution of antenuptial agreements when enforcement is in the probate context.

At the time he entered into the agreement, Mr. Davis was a domiciliary of Tennessee. He remained a domiciliary of Tennessee, and thus, upon his death, his Will was subject to probate in Tennessee courts. The parties to this action do not dispute that the Davises’ antenuptial agreement was entered into by the parties without full and fair disclosure. Further, the Estate does not contend that Ms. Davis had independent knowledge of Mr. Davis’ estate when the agreement was executed. Thus, in this case, the Estate seeks to enforce a contractual term which violates Tennessee public policy in a probate proceeding which could occur only in Tennessee.

As a matter of public policy, Tennessee requires full and fair disclosure. This policy has been formed by the legislature and reinforced by the courts of this state. It is a policy developed in light of the unique and confidential nature of the marital relationship, and serves to promote the highest degree of fiduciary duty between spouses. With all due respect to the legislature of Florida, section 732.702 of the Florida code violates a substantially important public policy of the State of Tennessee. Therefore, we decline to apply the lex loci rule to this agreement. The agreement will be construed under Tennessee substantive law. This holding is dispositive of this appeal and the issue of duress is preter-mitted.

Holding

In light of the foregoing, we hold the antenuptial agreement executed by Ms. Davis and the late Mr. Davis is unenforceable in Tennessee. Accordingly, we reverse the award of summary judgment to the Estate and remand this action for further proceedings consistent with this opinion. Costs of this appeal are taxed to the Appellees, J. Douglas Davis and Julie Ann Davis Griffin, Co-Executors, for which execution may issue if necessary.

      . Although our holding on the issue of public policy makes it unnecessary for us to address the issue of duress, we note that the record and Appellant’s brief create confusion regarding the date of the Davises’ marriage. This fact would have been important in our consideration of duress. We note, however, that counsel for the Appellees informs the Court: “The Record below reflects some confusion over the date of marriage; however, the marriage license and antenuptial agreement show that the parties were married in 1990.” We highly commend Appellees’ counsel for their candor and forthrightness to this Court.


author: PER CURIAM.

text:
    Ex Parte Jesus Flores SALINAS, Applicant.
    No. AP-75323.
    Court of Criminal Appeals of Texas.
    Jan. 25, 2006.
    Jesus Flores Salinas, pro se.
    Armando Villalobos, D.A., Brownsville, Matthew Paul, State’s Attorney, Austin, for state.
   OPINION

PER CURIAM.

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex.Code CRiM. PROC. art. 11.07, § 3. Applicant was convicted of possession of less than 28 grams of cocaine and punishment, enhanced by a prior conviction, was assessed at confinement for thirty years, consecutive to another sentence. Appeal from this conviction was affirmed, Salinas v. State, No. 13-89-824-CR (Tex.App.-Corpus Christi, delivered November 8,1990, no pet.)

Applicant contends that the Texas Department of Criminal Justice, Criminal Institutions Division [TDCJ-CID], is improperly calculating his sentence in this cause. TDCJ-CID has submitted an affidavit reflecting how Applicant’s sentence in this cause is being calculated. Finding that this calculation is not correct, we now grant relief.

The trial court ordered this sentence to ran consecutively to a ten year sentence for aggravated assault, and found that Applicant was entitled to credit in this cause for 168 days of pre-sentence confinement. Both sentences were for offenses committed in 1989. Applicant was released from confinement on July 18, 1995, after the Board of Pardons and Paroles voted to release him on parole. That parole was revoked the next year, and Applicant was given credit on his aggravated assault sentence from August 28,1996.

TDCJ-cid records reflect that this possession of cocaine sentence commenced January 28, 2000. However, the aggravated assault “ceased to operate,” and this sentence commenced, on July 18, 1995, when Applicant was released on parole. Ex parte Kuester, 21 S.W.3d 264, 270 (Tex.Crim.App.2000). Applicant does not receive credit for the period he was out of custody because his parole was revoked prior to 2001, but Applicant is entitled to credit on this sentence for all the time he has been confined since he was released on parole, so is entitled to credit from August 28, 1996. Ex parte Hale, 117 S.W.3d 866, 873 (Tex.Crim.App.2003).

Relief is granted. The Texas Department of Criminal Justice is ordered to amend Salinas’s records to reflect that this sentence commenced to run 168 days before August 28,1996.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Criminal Institutions and Parole Divisions.


author: FELIPE REYNA, Justice.

text:
    George Vernon MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00201-CR.
    Court of Appeals of Texas, Waco.
    Feb. 23, 2005.
    L. Patrick Davis, Ft. Worth, for appellant.
    Dale S. Hanna, Somervell County Dist. Atty., David W. Vernon, Somervell County Asst. Dist. Atty., Cleburne, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Pursuant to a plea bargain, the court placed George Vernon Martinez on deferred adjudication community supervision. The State later filed a motion to adjudicate Martinez’s guilt. After a contested hearing, the court adjudicated Martinez’s guilt and sentenced him to twelve years’ imprisonment. Martinez then filed a motion for new trial, which the court overruled. Martinez contends in two issues that the court abused its discretion by: (1) denying him an evidentiary hearing on the motion; and (2) overruling the motion. Because the issues raised in the motion for new trial relate back to the original plea proceeding, we hold that they must be raised by a habeas application. Accordingly, we will affirm.

In Jordan v. State, the Court of Criminal Appeals held that a defendant who had originally been placed on deferred adjudication community supervision could not challenge the voluntariness of his guilty plea by motion for new trial filed after the adjudication of his guilt because a defendant is not allowed to attack his original plea in an adjudication proceeding. 54 S.W.3d 783, 786 (Tex.Crim.App.2001) (citing Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999)); contra Keller v. State, 854 S.W.2d 224, 227-28 (Tex.App.Beaumont 1993, pet. ref'd) (addressing merits of post-adjudication motion for new trial alleging newly discovered evidence). Instead, the Court held that a habeas application is the proper means to pursue such an attack. Jordan, 54 S.W.3d at 786.

An exception to the rule announced in Jordan is that a defendant may raise a post-adjudication allegation that the judgment in the original plea proceeding is void. Id. at 785 (citing Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App.2001)). However,

[a] judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright. While we hesitate to call this an exclusive list, it is very nearly so.

Nix, 65 S.W.3d at 668 (footnotes omitted).

In this case, Martinez contends that newly discovered evidence establishes his innocence. However, the evidence he has discovered would do no more than discredit the complainant’s allegations. This does not rise to the level of the “no evidence” required to establish a “void” judgment under Nix.

Here, the only difference between Martinez’s case and Jordan’s is that Martinez is challenging the original plea on the basis of newly discovered evidence rather than on the basis of an involuntary plea. Martinez must pursue this issue in a habeas application. See Jordan, 54 S.W.3d at 786.

Accordingly, we overrule the issues presented and affirm the judgment.

      . Because Keller appears to be in direct conflict with Jordan, we decline to follow it.