                                                                                         04/22/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               January 17, 2019 Session

             STATE OF TENNESSEE v. LINDSEY S. SEYMOUR

                Appeal from the Criminal Court for Fentress County
                       No. 9614    E. Shayne Sexton, Judge
                     ___________________________________

                           No. M2018-01008-CCA-R3-CD
                       ___________________________________

Lindsey S. Seymour, Defendant, pled guilty to two counts of aggravated statutory rape,
and her case was deferred pursuant to Tennessee Code Annotated section 40-35-313.
After successfully completing the terms of judicial diversion, Defendant moved to be
discharged from probation and to have the indictments against her dismissed. On May 1,
2017, the trial court entered an Agreed Order that “discharged and dismissed” all
indictments in Case Number 9614 “with prejudice.” Section 4 of the Agreed Order
provided that “Defendant shall be removed from the sexual offender registry” (“SOR”).
Approximately two and a half months after the agreed order was entered, the trial court,
in error, allowed the Tennessee Bureau of Investigation (“TBI”) to intervene, and the trial
court vacated Section 4. At the time the motion to intervene was filed, the order
dismissing all charges against Defendant with prejudice was final, and there was no
pending action in which the TBI could intervene. Additionally, the trial court had neither
subject matter jurisdiction over Defendant’s criminal case nor personal jurisdiction over
Defendant at that time. Therefore, there is no criminal case for this court to review, and
Defendant does not have an appeal as of right under Tennessee Rule of Appellate
Procedure 3(b). We therefore dismiss the appeal.


              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Melanie R. Bean, Lebanon, Tennessee, for the appellant, Lindsey S. Seymour.

Herbert H. Slatery III, Attorney General and Reporter; Andree Sophia Blumstein,
Solicitor General; Dianna Baker Shew, Assistant Attorney General; Jared R. Effler,
District Attorney General; and John W. Galloway, Assistant District Attorney General,
for the appellee, State of Tennessee.
Jonathan Harwell and Tyler M. Caviness, Knoxville, Tennessee, for the Amicus Curiae,
Tennessee Association of Criminal Defense Lawyers.



                                               OPINION

       The Fentress County Grand Jury indicted Defendant for eight counts of Class C
felony statutory rape by an authority figure, all involving a sixteen-year-old student at the
school where Defendant taught. On November 8, 2010, Defendant pled guilty pursuant
to a negotiated plea agreement to two counts of Class D felony aggravated statutory rape.
The trial court entered an order finding Defendant guilty in counts 1 and 8 and deferring
further disposition until March 7, 2011.

       Following receipt of the “Certification of Eligibility for Diversion” signed by a
representative of the TBI, the trial court entered judgments in counts 1 and 8 on March 7,
2011, placing Defendant on probation for six years and dismissing the other six counts.
On the same date, the court signed a Probation Order. Under “special conditions,” the
order noted that an addendum to the plea paperwork, which had been signed by the
Deputy District Attorney General and Defendant on November 8, 2010, was attached.
The addendum noted that “even if [D]efendant successfully completes the probation and
diversion . . . the records in this case cannot be expunged” and that Defendant would be
on the SOR “during the probationary period.”1

       After completing the terms of her probation, Defendant moved for dismissal of the
indictments pursuant to Tennessee Code Annotated section 40-35-313(a)(2) and to be
removed from the SOR. On May 1, 2017, the trial court entered an Agreed Order,
finding that Defendant had successfully completed the terms of her probation and
dismissing the indictments with prejudice. Section 4 of the Agreed Order provided that
“Defendant shall be removed from the sexual offender registry.”2

        1
          Because aggravated statutory rape is not one of the offenses included in the definition of “sexual
offense” for the purposes of judicial diversion, a person who pleads to or is found guilty of aggravated
statutory rape is a “qualified defendant” for judicial diversion. Tenn. Code Ann. § 40-35-313(a)(1)(B)(ii).
However, because aggravated statutory rape is one of the offenses included in the definition of “sexual
offense” pursuant to Tennessee Code Annotated section 40-39-202(20)(A)(xvi), the person cannot have
the records expunged after successfully completing judicial diversion. Tenn. Code Ann. § 40-35-313(b).
        2
           When a defendant enters a guilty plea to or is convicted of a sexual offense requiring
registration, the defendant is “automatically” as a “collateral consequence” of the plea or finding of guilt
required to register, and no order by the trial court is required to trigger the registration requirement.
Ward v. State, 315 S.W.3d 461, 472 (Tenn. 2010); see also Tenn. Code Ann. § 40-39-203(a). A trial
court does not have the authority to place a defendant on the SOR or to require the TBI to place a
defendant on the SOR. Once on the SOR, a defendant remains on the SOR until removed by the TBI.
                                                   -2-
       On July 18, 2017, the TBI filed an application to intervene pursuant to Tennessee
Rule of Civil Procedure 24.01 (“the application”), a motion for relief from judgment
pursuant to Tennessee Rule of Civil Procedure 60.02, and a motion to stay pursuant to
Tennessee Rule of Civil Procedure 62.07 (“the TBI motions”). The application stated
that “[t]he provision of the Order removing [Defendant] from the registry [wa]s void
because [the trial court] lacked jurisdiction to remove her from the registry [because]
authority for such an action is vested exclusively in the TBI by statute.” An affidavit
attached to the TBI motions claimed that the TBI was not notified of Defendant’s motion
to be removed from the SOR and that the TBI was not served with a copy of the May 1,
2017 order. The affidavit also stated that the TBI first became aware of the order when it
received a faxed copy from the Murfreesboro Police Department on May 8, and that upon
receipt of the order, the TBI promptly sought advice from the Office of the Attorney
General.

        Defendant filed a response on September 27, 2017, claiming that the TBI had no
right to intervene to change the terms of the diversion agreement entered in 2011, that the
motions were not timely, and that Defendant had a right to specific performance of her
plea agreement. In support of her specific performance claim, Defendant alleged that
between July 1, 2008, and March 7, 2017, the TBI interpreted Tennessee Code Annotated
section 40-39-207(a)(1) to allow a person whose charges were dismissed following the
successful completion of judicial diversion to be immediately removed from the SOR.

       On October 30, 2017, the trial court entered an order based solely on the
pleadings, which found that Section 4 of its order was “contrary to statutory law,
specifically T[ennessee] C[ode] A[nnotated] [section] 40-39-207” and rescinded Section
4 based on “lack of subject matter jurisdiction.”

      On November 30, 2017, Defendant filed a “Motion for Specific Performance of
Plea Agreement and/or to Alter and Amend the October 30, 2017 Order.” On March 6,
2018, Defendant filed an amended motion that requested the trial court declare portions
of Tennessee Code Annotated section 40-39-201, et seq., unconstitutional.

       On March 15, 2018, the trial court conducted a hearing on Defendant’s motion.
The trial court entered “Stipulations of Fact” based on the personal knowledge of Jeanne
Broadwell, General Counsel for the TBI since 2004, as Exhibit 1, which stated that from
July 1, 2008, through March 7, 2017:



Tenn. Code Ann. § 40-39-207(a). Because the trial court did not have the authority to remove Defendant
from the SOR or to require the TBI to remove Defendant from the SOR, Section 4 of the order was void
and unenforceable.
                                                -3-
             (1) The TBI “interpreted” the Sexual Offender Act “to provide that a
       dismissal of charges following the successful completion of judicial diversion was
       grounds for removal” from the SOR,

              (2) The TBI did not interpret Tennessee Code Annotated section 40-39-
       207(a)(1) to require defendants who successfully completed judicial diversion to
       remain on the registry for ten years following dismissal of the charges,

              (3) The TBI “provided statutory interpretation upon request to defense
       counsel and district attorney general offices, both verbally and in writing . . . that
       persons who successfully completed judicial diversion were eligible for removal”
       from the SOR following dismissal of the charges, and

             (4) The TBI removed persons from the SOR without requiring them to
       remain on the SOR for ten years after successful completion of judicial diversion.

The stipulation also stated that “as recently as January 11, 2017,” the TBI advised
defense counsel that it “interpret[ed] a dismissal following judicial diversion [to be]
grounds for removal from the registry” because “the offender is no longer convicted
under 40-39-202(1) and therefore doesn’t meet the criteria for registration.”

       John Galloway, who served as an Assistant District Attorney General in the Eighth
Judicial District for thirty-two years before his retirement, testified that he was assigned
Defendant’s case and negotiated the agreement that resulted in her guilty plea. He stated
that “a material part of [the] discussions and agreement” was that Defendant would be on
the SOR during the term of her judicial diversion. He said that, in negotiating the plea
agreement, he relied on general discussions with the TBI in other sex cases and an
opinion from the Tennessee Attorney General. At the time of the plea negotiations, he
believed that Defendant would be eligible to be removed from the SOR upon successful
completion of her probation.

        Following a hearing, the trial court entered an order denying relief to Defendant on
May 10, 2018. Defendant timely filed her notice of appeal. After the parties filed their
briefs, we granted the Tennessee Association of Criminal Defense Lawyers’ (TACDL)
Request for Participation, and shortly before oral argument, TACDL filed a brief as
amicus curiae. The State was provided an opportunity to file a reply to the brief of
amicus curiae but elected not to do so.

       Defendant claims on appeal that the trial court erred by permitting the TBI to
intervene, erred by denying Defendant specific performance of her expired judicial
diversion agreement, and erred by failing to find the Sexual Offender Act
unconstitutional on its face and as applied to her and to other defendants who
                                            -4-
successfully complete judicial diversion. Defendant also claims that the TBI’s admitted
inconsistent interpretation and administration of Tennessee Code Annotated section 40-
39-207 from July 1, 2008, through March 7, 2017, resulted in “direct, significant punitive
consequences” to her “without adequate notification of those consequences” at the time
she accepted the plea agreement and entered her plea.3

        The State responds that the TBI properly intervened, that the trial court properly
vacated the portion of its order that required the removal of Defendant from the SOR, and
that the trial court properly rejected Defendant’s constitutional arguments.

       The amicus curiae raised three issues in support of Defendant. The first issue
centers on the conflicting definitions of “conviction” in the diversion statute and in the
Sexual Offender Act.4 Second, the amicus curiae claims that, after numerous
amendments, the Sexual Offender Act “now imposes a litany of positive obligations on
an offender and limits virtually every aspect of [a defendant’s] everyday life[,]” and
therefore, the SOR requirement is no longer “non-punitive.”5 The third issue relates to
intervention by the TBI.



        3
           By amendment effective on July 1, 2008, the Tennessee General Assembly redefined
“conviction” to include “a plea taken in conjunction with § 40-35-313, or its equivalent in any other
jurisdiction.” Tenn. Code Ann. § 40-39-202(1)(2008). Before March 7, 2017, the TBI’s interpretation of
§ 40-39-202(1) was that individuals who successfully completed diversion no longer had a conviction and
therefore were eligible to be removed from the SOR. After March 7, 2017, the TBI’s interpretation of §
40-39-202(1) was that individuals who have not or cannot have their records expunged, must wait a
minimum of ten years after the termination of the period of probation before becoming eligible to request
the TBI to terminate the registration requirements and remove the person from the SOR. Tenn. Code
Ann. § 40-39-207(a)(1).
        4
          “In judicial diversion cases, no judgment of conviction is entered, and a sentence is imposed
only in the instance that the defendant fails to successfully complete the period of probation pursuant to
the grant of judicial diversion.” State v. Dycus, 456 S.W.3d 918, 928 (Tenn. 2015); Tennessee Code
Annotated section 40-35-313. However, “[t]he applicable meaning of conviction depends on the context
or procedural setting in which the term is used.” Rodriguez v. State, 437 S.W.3d 450, 454 (Tenn. 2014).
In the context of the Sexual Offender Act, a plea to a sexual offense requiring registration, including a
plea where further proceedings are deferred pursuant to Tennessee Code Annotated section 40-35-
313(a)(1)(A), is a conviction.
        5
           While we are sympathetic to the amicus curiae’s argument that the Sexual Offender Act “now
imposes a litany of positive obligations on an offender and limits virtually every aspect of [a defendant’s]
everyday life[,]” Tennessee Code Annotated section 40-39-201(b)(8) states that “the general assembly
does not intend that the information [available to the public on the SOR] be used to inflict retribution or
additional punishment on those offenders[,]” and our supreme court has held that “the registration
requirements imposed by the sex offender registration act are nonpunitive and that they are therefore a
collateral consequence of a guilty plea.” Ward, 315 S.W.3d at 472.
                                                   -5-
      Before proceeding to the merits of the issues raised in this appeal, we must
determine whether Defendant has a right to appeal. A criminal defendant’s right to
appeal is governed by Tennessee Rule of Appellate Procedure 3(b), which provides in
part:

              In criminal actions an appeal as of right by a defendant lies from any
      judgment of conviction entered by a trial court from which an appeal lies to
      the Supreme Court or Court of Criminal Appeals: (1) on a plea of not
      guilty; and (2) on a plea of guilty or nolo contendere, if the defendant
      entered into a plea agreement but explicitly reserved the right to appeal a
      certified question of law dispositive of the case pursuant to and in
      compliance with the requirements of Rule 37(b)(2)(A) or (D) of the
      Tennessee Rules of Criminal Procedure, or if the defendant seeks review of
      the sentence and there was no plea agreement concerning the sentence, or if
      the issues presented for review were not waived as a matter of law by the
      plea of guilty or nolo contendere and if such issues are apparent from the
      record of the proceedings already had.

The entry of a judgment of conviction is a prerequisite to a right of appeal under the
above quoted portion of Tennessee Rule of Appellate Procedure 3(b).

       The remaining portion of Tennessee Rule of Appellate Procedure 3(b) provides:

      The defendant may also appeal as of right from an order denying or
      revoking probation, an order or judgment entered pursuant to Rule 36 or
      Rule 36.1, Tennessee Rules of Criminal Procedure, from a final judgment
      in a criminal contempt, habeas corpus, extradition, or post-conviction
      proceeding, from a final order on a request for expunction, and from the
      denial of a motion to withdraw a guilty plea under Tennessee Rules of
      Criminal Procedure 32(f).

None of the avenues for direct appeal available in the portion of Rule 3(b) quoted above
are applicable to this case.

       The May 1, 2017 Agreed Order “discharged and dismissed with prejudice” all
indictments pending against Defendant in this case. The order became final thirty days
after the date it was entered. Defendant’s criminal case has concluded and there has
never been and can never be a judgment of conviction in this case.

       Shortly before this case was argued, this court filed State v. Carl Allen, No.
W2017-01118-CCA-R3-CD, 2018 WL 6595352, at *1 (Tenn. Crim. App. Dec. 13,
2018), perm. app. filed. In 1995, Mr. Allen entered an Alford plea in Florida to sexual
                                          -6-
battery and was sentenced to ten years. Id. In 2001, after being released from
confinement in Florida, Mr. Allen moved to Tennessee and properly registered with the
TBI as a sexual offender pursuant to Tenn. Code Ann. § 40-39-101, et seq. Id. at *2. In
2004, the general assembly enacted the Tennessee Sexual Offender and Violent Sexual
Offender Registration, Verification and Tracking Act of 2004 (the Sexual Offender Act)
and repealed the Sexual Offender Registration and Monitoring Act. The Sexual Offender
Act divides sexual offenders into two categories: sexual offenders and violent sexual
offenders. Id.; Tenn. Code Ann. § 40-39-201(b). Sexual offenders are required to report
in person one time each year; violent sexual offenders are required to report in person
four times each year. Tenn. Code Ann. § 40-39-204(b)(1), (c). After Mr. Allen was
indicted for failing to report as required as a violent sexual offender, he moved to dismiss
the indictments. Id. at *2-3. The trial court initially denied the motion upholding the
TBI’s classification of Mr. Allen as a violent sexual offender, but after reviewing the
transcript from the Florida plea, the trial court entered an order that reversed its prior
ruling, finding that the “stipulated facts” to which Mr. Allen pled did not “amount to a
violent sexual offense in Tennessee[.]” Id. at *3. On February 3, 2012, the trial court
entered a judgment dismissing the indictments charging Mr. Allen with failing to report
as required as a violent sexual offender. Id. The State did not appeal. Id.

        In April 2014, Mr. Allen applied to be removed from the SOR. Id. The TBI
“noticed that he had been misclassified as a sexual offender . . . [,] changed his
registration back to violent[,]” and denied his application. Id. Mr. Allen then appealed
the TBI’s denial to the chancery court. Id. In December 2014, the TBI moved to
intervene in the trial court, for relief from the judgment, and to stay enforcement of the
trial court’s February 3, 2012 order. Id. The TBI argued that the trial court lacked
jurisdiction to alter the defendant’s classification. Id. at *3-4. The trial court then
entered an order vacating its February 3, 2012 order, and the defendant appealed. Id. at
*4. This court stated:

              As noted by the State, an appeal of the granting of a motion to
       intervene and vacate a provision of an order for which the trial court lacked
       jurisdiction is not one of the enumerated actions from which a defendant
       may appeal as of right under Rule 3(b). The trial court’s most recent order
       did not mention the February 2012 judgments, which became final thirty
       days after entry, and the State did not request that the trial court reinstate
       the indictments. Therefore, we agree with the State that there is no longer
       any criminal case to review.

Id. at *6.

       “In order to adjudicate a claim, a court must possess both subject matter
jurisdiction and personal jurisdiction.” Landers v. Jones, 872 S.W.2d 674, 675 (Tenn.
                                           -7-
1994). “The concept of subject matter jurisdiction involves a court’s power to adjudicate
a particular type of controversy.” Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477,
480 (Tenn. Ct. App. 1999). In this case, the trial court entered the May 1, 2017 Agreed
Order, which dismissed all criminal charges against Defendant with prejudice, over two
and a half months before the TBI moved to intervene. The trial court had subject matter
jurisdiction over Defendant’s criminal case while the indictments against her were
pending, but once the order dismissing all criminal charges became final, there was no
controversy to adjudicate, and the trial court no longer had subject matter jurisdiction
because there was no case involving Defendant pending. There was no “action” pending
in the trial court in which the TBI could intervene. See Tenn. R. Civ. P. 24.01

       We agree with this court’s decision in Carl Allen. See Carl Allen, 2018 WL
6595352, at *6. Once the order dismissing all charges against Defendant became final,
there was no longer any criminal case to review. See id.

       Because we lack jurisdiction under Tennessee Rule of Appellate Procedure 3(b) to
decide Defendant’s case, we dismiss the appeal.



                                            ____________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




                                          -8-
