# FILED

February 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT KNOXVILLE (Heard at Kingsport)

FOR PUBLICA TION STATE OF TENNESSEE, ) Filed: February 23, 1998 ) Appellee, ) Hon. Rex Henry Og le, ) Judge Vs. ) ) BLOUNT COUNTY DOUGLAS BRIAN IRWIN, ) ) Supreme Court Appellant. ) No. 03-S01-9702-CC-00021 )

APPELLANT FOR APPELLEE: Gerald C. Russell John Knox Walkup 125 E. Broadway Attorney General & Repor ter Maryville, Tenness

ee Michael E. Moore Solicitor General Kathy M. Yac uzzo Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, Tennessee Michael Flynn District Attorney General 5th Judicial District Maryville, Tenness

ee Edward P. Bailey Assistant District Attorney General Maryville, Tenness

ee



## O P I N I O N

AFFIRMED. DROWOTA, J.1 Rule 37(b)(2) (I), Tenn. R. Crim. P., p rovides i n pertinen t part as f ollows: (b) An appeal l ies from any or der or judgment i n a criminal proceeding where the law provides for such ap peal, and f rom any judg me nt of c onvic tion: (2 ) Upo n a ple a of g uilty or n olo contendere i f: (i ) Defendant entered into a plea agreement under Rule 11(e) but

explicitly

reserved with the consent of the state and of the cour t the rig ht to a ppe al a ce rtified ques tion o f law th at is dispositive of the ca se. . . . -2- On June 7, 1993, the defendant was char ged in a one count indictment with contri buting to the delinquency of a minor in violation of Tenn. Code Ann. § 37-1-156 (1996 Repl. & Supp. 1997) as fo llows: DOUGLAS BRIAN IRWIN, on the 18th da y of December 1992, in Blount County, Tennessee, and before the finding of this indictment, did unlawfully contri bute to the delinquency of [S.A .], a child under 18 years of age, by engaging in sexual intercourse with said child, all of which is against the peace and dignity of the State of Tennessee.
On September 28, 1993, the defen dant moved to dismiss the indictment “because it does not charge a cri me.” The next day, the defendant w ithdrew the motion to dismiss and on December 14, 1993, entered a plea of guilty unde r the indictment. The defendant attempted to reserve for appellate review pursuant to Tenn. R. Crim. P. 37(b)(2)(I), 1 the following questi on: “Would the act of this sexual intercourse constitute the offense of contributing to the delinq uency of a minor under this indictment, number C 7302?”

The trial court accepted the defendant’s guilty plea, but did no t sentence the defendant on the conviction. I ndeed, no order was entered r eflecting the trial court’s acceptance of the plea ag reement and the purported certified question of law until the case w

as pending on appeal in the Cour t of Criminal Appeals. On August 10, 1994, the trial c ourt, with the permission of the Court of Criminal Appeals, then filed an “Amended Order Acceptin g Plea of Guilty.” In that order,2 The defendant was sentenced to eleven months and twenty- nine days,all of which was ordered to be ser

ved on supervi sed probati on, ordered t o perform three hundr ed hours of community service,ordered to par tici pate in sex counse ling, and ordered to refrain from contacting the vic tim o r her f am ily. -3- the certified question was set out and the trial court stated that a senten ce would be imposed after the intermediate court rend ered its decision. However, the Court of Criminal Appeals did not r each the merits of the certified q uestion, but concluded instead that it had no j urisdiction because no final judgment of conviction had been entered s ince the trial court had nei ther ruled upon the merits of the purported certified question, nor imposed a sentence on the conv iction. Accordingly, the appeal was dismissed.

The case went back to the tri al court for sentencing, and on July 11, 1995, the trial court entered a judgment imposing sentence for the d efendant’s conviction. 2 The final judgment of convicti on entered by the trial c ourt did not purport to set forth a certified question for review. Nonetheless, the defendant sought to appeal to the Court of Criminal Appeals, and for state ment of the certified question, reli ed upon the August 10, 1994, order entered by the trial judge which the Court

of Criminal Appeals prev iously had held to be insufficient as a final judgment of convictio n.

This time, the Court of Criminal Appeals affirmed the judgment of the tr ial court, noting that, unlik e the allegation in the defendant’ s withdrawn motion t o dismiss the indictment, the question purportedly certified fo r appeal did not assert that the indictment failed to state a criminal offense. Instead, the cer tified question asked the court to decide if the defendant is guilty of contributing to the3 Ora l argu me nts w ere h eard in this c ase on N ovem ber 2 1, 19 97 in K ings port a s par t of this Court’s S .C.A.L.E .S. ( S upreme C ourt A dvancing L ega l E ducation for S tudents ) project. -4- delinquency of a minor based upon the facts stipulated by the parties. Quoting from its prior decision, the intermediate court concluded that the stipulated facts were inadequate to permit review, and further he ld that the defendant had waived any complaint regarding the sufficiency of the indictment by withdrawing his motion to dismiss.

Thereafter, we granted the defendant permission to appeal and, after carefully reviewing the record, now conclude that the defendant failed to prope rly reserve a certified q uestion of law in accordanc e with Rule 37, Tenn. R. C rim. P. Accordingly, we affirm the judgment of the Court of Criminal Appeals. 3

CERTIFICAT

ION Rule 37(b)(2)(i), Tenn. R. Crim. P., provides in pertinent part as follows: (b) An appeal lies from any order or judgment in a cr iminal proceeding where the l aw provides for such appeal, and from any judgment of conviction: (2) Upon a plea of guilty or nolo contendere if: (i) Defendant entered into a pl ea agreement under Rule 11(e) but explicitly res

erved with the consent

of the state and of the court the right to appeal a certifie d question of law that is dispositive of the case. . . .

In State v. Preston , 759 S.W2.d 647 (Tenn. 1988), this Court expl ained the requirements of Rule 37(b) as follows: Regardless of what has ap peared in prior petitions , orders, colloquy in open court or otherwise, the final order or judgment from which the time begins to run to pursue a T.R.A.P. 3 appeal must contain a statement of the disposit ive certified question of law reserved by-5- defendant for appellate review and the question of law must be stated so as to clearly i dentify the scope and the lim its of the legal issue reserved. . . .

Also, the order must state that the certified question was expr

essly reserved as

part of the plea agreement, that the State and the judge are of the opinion that th e question is dispositive of the case. Of course, the burden is on def endant to see that these prerequisites are in the final order

and that the record brought to the appellate cour ts contains all of the proceedi ngs below that bea r upon whet her the ce rtified question of law is di spositive and the merits of the question cer tified. No issue beyond the scope of the certified question will be considered.

Id ., 759 S.W.2d at 650 (emphasis added); see also State v. Pendergrass , 937 S.W.2d 834 (Tenn . 1996).

Contrar y to the expli cit and unambig uous req uirements of Preston , the final judgment in this case, enter ed on July 11, 1995, from whi ch the time for filing an appeal pursuant to Rule 3, Tenn. R . App. P., began to run, makes no reference at all to a reservation of a dispositive question of law for appellate review. Moreover, this judgment does not refer to,nor incorporate, any oth er independent document which would s

atisfy the req uirements of Preston

.

Relying upon the tri al court’s order of August 10, 1994, the defendant argues that the question ha s been properly reserv

ed for review. We point out that, in the first appeal of this c ase, the Court of Criminal Appeals held that order insuff icient to qualify as a final ju dgment. Moreover, s ince that time, we ha ve specifically held that an order entered by a trial court after the filing of the noti ce of appeal in the Court of Criminal Appeals is not effe ctive to remedy noncompliance with Rule 37, Tenn. R. App. P., because the trial court no longer has jurisdi ction. Pendergrass , 937 S.W.2d at 837-38 . The August 10, 1994, order in this case falls-6-

squarely withi n that rule. Accordingl y, the defendant may not rely upon that order to establish compliance w ith Rule 37 and Preston

.

CONCLUSION After carefully review

ing the record, we hav

e determined that the defendant failed to properly reserve the right to appeal a certified question of law in accordance with the req uirements of Rule 37, Tenn. R. Cr im. P. Accordingly , the decision of the Court of Crimin al Appeals upholding the tr ial court’s judgment finding the defendant guilty of contributing to the delinq uency of a minor and imposing a sentence thereon i s affirmed.

_____________________________________ FRANK F. DROWOTA, III Justice

Concur: Anderson, C.J. Reid, Holder, JJ.
Birch, J - Not Partici pating.