### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 2000 Session

STATE OF TENNESSEE v. THERON L. BOYD

Appeal from the Criminal Court for Davidson County No. 97-D-2309 Seth Norman, Judge

No. M1999-01125-CCA-R3-CD Filed August 31, 2000

The Defenda nt, Theron L. B oyd, appea ls as of right fro

m an "Agreed F

inal Judgment Gran

ti n g Delayed Appeal" ent ered by the trial court upon the trial court's finding that the Def endant was entitled to post-conviction relief. The "A

greed Final Judg

ment Granting De

layed Appe

al" purports
to modify the original judgment of conviction by explicitly reserving certified questions of law which would be dispositive of the case and then to grant a delayed appeal of those issues. The Def endant argues that his convictions pursuant to his guilty pleas should be reversed because the trial court erred in denying his motion

to suppress evidence found as a result of illegal searches by police. The State, however, argues that we lack jurisdiction to address the merits of the Defendant's contentions because the trial court did

not have juris d iction to amend the final judgment which did not reflect the reservation of c

ertified question

s of law pursuant to

Tennessee Rule o

f Criminal P rocedure 37(b). We conclude that this

appeal is not prope

rly before us. Accordingly

, we must dismiss

this appeal and remand to the trial court for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Reversed.

D AVID H. W ELLES , J., delivered the opinion of the court, in which J ERRY L. S MITH , J. a nd J OHN E VERETT W ILLI

AMS , J., joined.

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Theron L . Boyd.

Paul G. Summers, Attorne y General and Reporter; M

a rvin E. Clements, Jr., Assistant Attorney General; Vict or S. Johnson, Distric t Attorney G

eneral; Pamela A

nderson, Assistan

t District Attorne y General, for the appellee, State of Tennessee.

OPINION

The Defendant, The

ron L. Boy

d, pleaded guilt

y on April

30, 1998 to possession with intent
to sell or de liver over . 5 gr ams of cocaine and to the unlawful possession of a handgun. The judgment of conviction was

entered that sam

e day. The D

efendant attemp

ted to appeal, pur

suant to Tennessee Rule of

Criminal Procedur

e 37(b)(2), ce

rtified questions o

f law challeng

ing warrantle

ss-2-

searche s conduct ed by th e police. We dismissed his appeal, however, based on our determination that he did not properly preserve post-guilty plea appellate review of his certified questions becaus

e those ques tions were not made part of the final judgment of conviction. See Stat e v. Th eron L. Boyd
, No. 01C019805-CR-00218, 1999 WL 354258, a t *1 (Tenn. Crim. App., Nashville, June 3, 1999).

Sub seq uen tly, on August 3, 1999, the Defendant filed a petition for

post-conviction relief, in which he alleged that his trial counsel was ineffective for failing to properly preserve the certifie d questions of

law and that he wo

uldnot have pleaded guilty had he known that he could not appeal the questions relating to the searches by police. He requested tha t the trial court either

set aside his guilty plea or grant him a delay ed appeal pursuant to Tennessee Code Annotated § 40-30-213.

App aren tly, the trial court an d the prosecutor a

greed with

the Defendant th

at his counsel was ineffective and that the Defe ndant was entitled

to post-conviction relief. However, instead of setting aside the Defendant's guilty plea and vacating the judgment as authorized by Tennessee Code Annotated § 40-30-211(a), the parties agreed that the Defendant should be granted a delayed appeal pursuant to Tennessee Code Annotated § 40-30-213. The trial court entered a doc u ment entitled "Agreed Final Judgment Granting Delayed Appeal," which w as signed by the trial court, the prosecutor, and

the defense atto

rney, and w

hich provided as f

ollows:

By agreement of the parti es, as evidenced by the signatures of their respec tive counsel below, it is hereby ORDERED that the jud

gment previously

entered in this
matter on or about April 30, 1998, is set aside to the extent that a D elayed App

eal is granted pursuant to T.C.A. Section 40-30-213 in as much as the Petitioner was denied his right to an appeal from the original conviction in violatio n of the Constitution of

the United States and the Constitution of Tennessee since Petitioner

was denied effective assistance of counsel in prosecuting his appeal. All aspects of the guilty plea entered by the Defendant in this matter on April 30, 1998, sha ll remain the same with the exception of the following additions to the guilty plea . . . .

The document then sets forth the certified questions which the Defendant wished to a p peal. The Defendant now a

sks us to address tho

se certified que

stions.

Notwithstanding the fact that the prosecutor agreed to the procedure utilized by the trial court in granting the D

efendant a delayed ap

peal, the State, acting through the office of the Attorney General, argues now that the case is again not properly before us. The State asserts that bec ause the trial court did not have

jurisdiction to ame

nd the fin al judgment, t he case is in the same posture before us now as it was when the Defendant originally appealed, thus ar guing that we do not

have jurisdiction to address the Defendant's issues because they were not pr operly reserved. Based on our review of the record and the applicab le law , we must agree with the State that we do not have juris diction to address the Defendant's issues on the merits. While we are sympathetic to t h e Defendant in his a

ttempts to have the search

issues reviewed on appeal, we "will not violate court rules to assume jurisdiction of a matter on agreement of litigants and the t rial court ." State v.-3-

Wilkes
, 684 S.W.2d 663, 667 (T enn. Crim. App. 1984

); see also State v. Larry

David Tharpe , No. 02C01-9302-CC-00018, 1994 WL 51423, at *3 (Tenn. Crim. App., Jackson, Feb. 23, 1994).

Tennessee Rule of Criminal Procedure 37(b) provides that an appeal lies from any judgment of conviction (2) upon a plea of guilty or nolo contendere if: (i) Defendant ente

red into a plea ag

reement under Ru

le 11(e) but explicitly reserved with the consent of the state and of the court the right to appeal a certified question of law that is dispositive of the case; or

. . . (iv) Defen d ant explicitly reserved with the

consent of the co

urt the right to appeal a certified question of law that is dispositive of the case.

In State v. Preston , 759 S.W.2d 647 (Tenn. 1988), our supreme court set forth the following prerequisites for appellate review of certified questions pursuant to this Rule of Criminal Procedure:

Regardless

of what has appea

red in prior petiti

ons, orders, collo

quy in open court

or otherwise, the final order or judgme nt from which the ti

me begins to

run to pursue

a T.R.A.P. 3 appeal m

ust contain

a statement of the dispositive certified question of law reserved by defendant for appellate revie w and the question of

law must be stated

so as to clearly identify the scope a nd the limits of the legal issue reserved. . . . Witho u tan explicit statement of the certified question, neither the defendant, the State nor t he trial ju dge can make a meaningful determination of whether the issue sought to be reviewed is dispositive of the c ase. . . . Also, the order must state that the certified questi

on was expressl y reserved as part of a plea agr eement, that the Stateand the trial judge consented to the reservation and that the State and the trial judge are of the o pinion that the question is dispositive of the case. Of course, the burden is on defendant to see that these prere quisites are in

the final order

and that the record brought to the appellate courts contains all of the proceedings below that bear upon whether the c

ertified question

of law is dispositi

ve and the merits of the questions certified. No issue beyond th e scope of the certified question will be considered

.
Id. at 650 (emphasis a

dded); see also Statev. Pendergrass , 937 S.W.2d 834, 836-37 (Tenn. 1996); Statev. Irwin , 962 S.W.2d 477, 478-79 (Te nn. 1998). Because the final judgment in this case, entered April 30, 1998, did not contain a statem ent of the dispositive certified question of law reserved by the Defendant nor any

reference to

a dispositive certified question of law, we determined

on direct appeal th

at we did not have jurisdiction to address the Defendant's certified questions, and we dismissed his case. See The ron L. Bo yd , 1999 WL 354258, at *4.

Now, the case is before

us again in the posture of a delayed appeal granted pursuant to the Post-Convict ion Procedu re Act. All parties below agreed that the Defendant was denied the effective ass istance of counsel by counsel's failure to ensure that the prere quisites for appealing-4-

certified questions of law were met and that the Defendant was entitled to post-conviction relief. Regarding pos

t-conviction reli

ef, Tennessee C

ode Annotated § 40

-30-211(a) pro

vides as follows:

If the court finds that there was such a denial or i nfr ingement of the rights of the prisoner as to render the judgmen t void or vo idable, in cluding a fi nding t hat trial counsel was ineffective

on direct appea

l, the court shall va cate and set aside the judgment or order a delayed appeal as her einafter provided . . . .

With respect to a de

layed appe

al, the Code provid

es:
(a) When the t rial j udge conducting a hearing pursuant to this part finds that the Petitioner was denied the right to an appeal from the original conviction in violation of the Constitution of the United States or the Constitution of Tennessee and that there is an adequate record of the original trial proceeding available for such review, the judge can: (1) If a tra

nscript was filed

, grant a delay

ed appeal;

. . . Tenn. Code Ann. § 40-30-213(a)(1).

The obstacle facing the Defendant in this case is that granting him a delayed appeal f rom the

or iginal judgment does not allow him to presen

t his certified que

stions to this Court.

A de laye d appeal grants

a defendant who was denied the right to a direct appeal from his original conviction the right to appeal from that original conviction. See id. The Defendant has already appealed from h is original conviction, and his appeal was dismissed because the judgment of conviction did n o t reflect that the Defendant had

reserved any certified questions. What the Defendant, the trial court, and the prosecutor

have attempted to

do by agre

eing to this

delayed appeal is to amend the original judgment by adding s

tatements to the original judgment indicatingthat the Defenda nt is explicitly

r eserving, with the consent of the trial court and the State, certified questions of law w hich ar e dispositive of the case. The trial court,

however, did not

have the jurisdiction to amend the judgment when it granted

the delaye

d appeal.

As a gener al rule, a trial court's judgment becomes final thirty day s after its entry un

less a timely notice of appeal or a specified post-trial motion is filed. See Pendergrass , 937 S.W.2d at 837; Tenn. R. App. P. 4(a), (c) . Once a judgme nt becomes final or a timely notice of appeal has been filed, the trial court loses jurisdiction over the matter. Pendergrass , 937 S.W.2d at 837. After a trial
court loses jurisdiction, it generally has no power to amend its judgment. Id. ; State v. Moore , 814 S.W.2d 381, 382 (Tenn. Crim. App. 1991). It is well-set tled that a judgment beyond the jurisdiction of a court is void. Pendergrass , 937 S.W.2d at 837. "Likewise, jurisdiction to mod ify a final judgment cannot be grounded

upon waiver or agreement by the parties." Moore , 814 S.W.2d at 383; see also State v. Hamblin , 655 S.W.2d 200, 202 (Tenn. Crim. App. 1983).-5-

Here, the trial court lost the jurisdiction to amend its judgment when the Defendant originally filed his notice of appeal. See Pendergrass , 937 S.W.2d at 837-38. Thus, any attempt by the trial
court to amend the judgment, even with the agreement of the Defendant and the State, is void. See id. ; Moore , 814 S.W.2d at 383. B y granting the Defendant a

delayed a

ppeal from his origina l conviction, the trial court essentially placed the

Defendant in the same posture he was in when he originally brought his case before

this Court: The Def

endant is attempting to appeal from a judgment of conviction which does not reflect the reservation of certified questions of law . Because th e judgment does not reflect that reservation, we do not have jur isdi ction to ad dress the De fendant's issues. See The ron L. Bo yd , 1999 WL 354258, at *4; Pendergrass , 937 S.W.2d at 836-37; Preston
, 759 S.W.2d at 650. We view the agreed order as “an attempt to confer jurisdiction on the Court of Criminal Appeals to hear and determine a Preston appeal where no jurisdiction existed because of noncompliance with Rule 37.” Pendergrass 937 S.W.2d at 837.

We recognize that the procedure followed in this case was esse ntially allowed in the unreported

case of Carlos L. Ace

vedo v. State , No. 01C01-9711-C R-00541, 1999 WL 21958 8 (Tenn. Crim. App., Nashville, A pr. 16, 1999), a case which was relied upon by the Defendant. L ike the parties in this case, the defendant, the prosecutor, and the trial court all agreed in Acevedo that the defendant was prejudiced by his counsel's error in failing to pre serve his right to appeal certified questions of law and that the defendant should

be granted a

delayed appeal for the appellate court
to address the certified questions of law on the merits. Id. at *1. When the State argued be fore this Court that a delayed appeal cannot resurrect an issue not properly reserved, we simply stated, "The State's arguments must fail because by agree d order, the State stipulated 'that Petitioner's petition for post-conviction relief, which requests a delayed a ppeal on a r eserved issue of appellate review, should be granted. '" Id

. Our resolution of that case was obviously predicated upon a notion of estoppel, although we did not refer to

it as such. We agree that it may appear unfair to a def endant fo r the Stat e to take one position at the trial court level, and after a defendant has relied on that positi on, take a differ ent positi on on appeal . In most cases we could refu se to accept the State's position on appeal on the ground tha t we will no t address issues no t raised at the tri

al court level. See Stat e v. Cameron , 9 09 S.W.2d 836, 839 (Tenn. Crim. App. 1995); Tenn. R. App. P. 36(a). However, as stated previously, neither we nor the trial court can ignore

court rules in ord

er to assume jurisdiction where there is none. See Wilkes , 684 S.W.2d at 667; Hamblin , 655 S.W.2d at 202. In the past, we have addressed procedural failures which went to the very nature of our jurisdiction sua sponte in order to preserve

the integrity of and prevent prejudice to the judicial process. See State

v. Bowlin , 871 S.W.2d 170, 173 (Tenn. Crim. App. 1993). We believe that the procedure utilized in Acevedo to obtain appellate review of the defendant's certified q uestio ns of law was erroneous in that the trial court cannot "amend" the final judgment of conviction in order to allow a defendant

a delayed appeal of certified questions. We have decided not to allow the procedure appr

oved in Acevedo

. Defendants who find themselves in this unfortunate position due to trial counsel's errors

are not, however, left without a remedy. While a delay ed appeal is not

the correct

procedure, relief is available in the p

ost-conviction pr

ocess. If a t

rial court finds that a defendant's trial coun sel's performance

was deficient for failing to properly reserve certified questions of

law and that

but for-6-

counsel's assurance that h e or she would be a

ble to appeal cer

taindispositive questions of law, the defendant would not have pleaded guilty, the trial court may vacate the judgment of conviction and allow the defendant to w ithdraw the guilt

y ple a. See Tenn. Code Ann. § 40 -30-211(a); Hill v. Lockhart
, 474 U.S. 52, 59 (1985). The parties are then placed back in the position they occupied prior to the guilty

plea. Should

the defendant and the State again agree to a guilty plea in which the defendant reserves dispositive certified questions of law, they could re-enter int o such a plea agreement,

and the trial court could conduct anot her p lea hearing and enter a new judgment of conviction, explicitly

reserving the certified questions of law. The defendant could then appeal, as of right, those certified questions to this Court. Tenn. R. App. P. 3(b).

In summary, the judgment of conviction from which the Defendant seeks relief became final long ago. It did not reserve certified questions, and it ma

y not be amen

ded. That judgme

nt reflects no appealable iss

ues. A "delay

ed appeal" is the

refore of no be

nefit.

Based on the foregoing, the Defendant's appeal is dismissed. This case is re manded to the trial court for further proceedings consistent with this opinion.

___________________________________ DAVID H. WELLES, JUDGE