        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 2, 2016


                   STATE OF TENNESSEE v. BILLY RAMER

                 Appeal from the Circuit Court for McNairy County
                       No. 3350    J. Weber McCraw, Judge




                No. W2015-01692-CCA-R3-CD - Filed April 12, 2016
                        _____________________________

The defendant, Billy Ramer, pled guilty to one count of sexual battery for crimes
committed against his granddaughter. The trial court denied judicial diversion, and the
defendant appeals. We conclude that the defendant’s appeal was not timely filed and that
the interest of justice, having been served by the denial of diversion, does not demand
that we waive the time for filing a notice of appeal. Accordingly, the appeal is dismissed.
We remand the case for correction of the judgment form.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Bryan Jaxon Petty, Selmer, Tennessee, for the Appellant, Billy Ramer.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Mike Dunavant, District Attorney General; and Bob Gray, Assistant District Attorney
General, for the Appellee, State of Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The defendant was charged with sexual battery by an authority figure, a Class C
felony, when his granddaughter revealed that he had touched her genital area. At the plea
hearing, the defendant acknowledged that he had touched his minor granddaughter’s
genital area,1 and he pled guilty to the lesser-included offense of sexual battery, a Class E
felony, in exchange for a two-year sentence, to be suspended to probation after two days,
which the defendant had already served.

       The defendant sought judicial diversion for the crime of touching his minor
granddaughter’s genital area. The State did not contest that the defendant was eligible for
diversion. The victim’s father, who had intended to testify and ask the court to order time
in confinement, did not testify at the plea hearing, and the State relied on a victim impact
statement which the trial court referenced but which is not a part of the record on appeal.
The trial court found that the victim had been physically and emotionally damaged by the
defendant’s crimes and that she had been forced to seek counseling, which was paid for
by the State. The defendant’s attorney, who was apparently a personal friend of the
defendant, did not testify under oath but argued that the defendant was “trustworthy” and
“kind.” The defendant’s attorney also attempted to make allegations against the minor
victim, but the trial court interrupted the argument, finding that any pre-existing crimes
against the victim increased her vulnerability and that, having admitted to the factual
basis of the crime, the defendant’s argument served only to “beat up the victim.”

       The trial court found that the defendant was eligible for diversion. In considering
whether to grant diversion, the court reviewed the factors in State v. Electroplating, Inc.,
990 S.W.2d 211, 229 (Tenn. Crim. App. 1998). The court found that there was nothing
to indicate that the defendant, who had no prior criminal history, was not amenable to
correction. However, it found that the circumstances of the offense were “dire” and
weighed against diversion. In so finding, the trial court noted that the defendant’s version
of events in the pre-sentencing report did not address the State’s allegations and that the
familial relationship was an aggravating circumstance. The trial court found that the
defendant had no criminal record, that his social history was neutral, and that he had no
mental health issues and some physical health issues. The trial court, taking judicial
notice of numerous recent sexual offenses in the county, concluded that deterrence was
necessary. It further concluded that while diversion would be in the interest of the
defendant, the interest of the public would not be served by diversion. In making this
conclusion, the trial court noted in particular the damage done to the victim, the
defendant’s relationship to her, the necessity for deterrence, and the fact that the public
bore the expense of treatment for the victim. The trial court particularly stated that it saw
a “great need” for deterrence, noted that the defendant pled guilty to a lesser offense but
that the record established he was the child’s grandfather, and emphasized the effect of

       1
          While not a part of the record on appeal, the defendant quotes repeatedly from a
transcript of “the plea phase of this cause,” in which the State summarized further facts,
including that the victim was fourteen years old at the time of the crime and that she told
authorities that the inappropriate touching had happened repeatedly.
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the crime on the victim. The trial court denied diversion on June 11, 2015, and the
defendant was sentenced to serve two years, to be suspended to probation for all but two
days.

       The defendant did not appeal the denial of diversion but instead, on June 25, 2015,
filed a “Motion to Modify Sentence,” in which he asked the trial court to reconsider
diversion. On the same day, he filed a “Motion for Reconsideration,” which also asked
for diversion and included an analysis of the factors relevant to diversion. The defendant
attached two letters, written by David and Jesse Petty, expressing support for the
defendant. The trial court denied the motions orally on August 24, 2015, and the
defendant filed a notice of appeal on September 3, 2015.


                                       ANALYSIS

        The State argues that the defendant’s appeal is not timely filed and should be
dismissed. Generally, a judgment becomes final thirty days after its entry unless a notice
of appeal or specified post-judgment motion is filed. State v. Pendergrass, 937 S.W.2d
834, 837 (Tenn. 1996); Tenn. R. App. P. 4(a)-(c). When the judgment has become final,
the trial court generally loses jurisdiction to amend it. State v. Moore, 814 S.W.2d 381,
382 (Tenn. Crim. App. 1991).

        A notice of appeal must be filed within thirty days of the entry of the judgment
which is being appealed. Tenn. R. App. P. 4(a). Tennessee Rule of Appellate Procedure
4 lists the motions which may defer the deadline for filing a notice of appeal and extend
the trial court’s jurisdiction. In criminal actions, a motion under Rule 29(c) for a
judgment of acquittal, a motion under Rule 32(a) for a suspended sentence, a motion
under Rule 32(f) for withdrawal of a plea of guilty, a motion under Rule 33(a) for a new
trial, and a motion under Rule 34 for arrest of judgment operate to extend the time for
filing a notice of appeal. Tenn. R. App. P. 4(c). The notice of appeal must be filed
within thirty days of an order denying one of the motions listed above. Id.

        This court once again cautions litigants: a motion to reconsider is simply not
authorized by the Tennessee Rules of Criminal Procedure. State v. Turco, 108 S.W.3d
244, 245 n.2 (Tenn. 2003); State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App. 1992);
State v. Ryan, 756 S.W.2d 284, 285 n.2 (Tenn. Crim. App. 1988). Accordingly, the filing
of such a motion does not function to toll the time for filing a notice of appeal. Lock, 839
S.W.2d at 440. A hearing conducted after the judgment has become final lies outside the
jurisdiction of the court. See id. at 440. The State notes that, even if we interpret the
motion as one for reduction of sentence under Tennessee Rule of Criminal Procedure 35,
such a motion also does not toll the time for filing an appeal. We observe that Tennessee
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Rule of Criminal Procedure 35 cannot be used to seek judicial diversion after a judgment
of conviction has been entered. Turco, 108 S.W.3d at 248.

        We conclude that the defendant’s motions did not operate to delay the deadline for
the filing of the notice of appeal, and that his notice of appeal is consequently untimely.

        This court may waive a timely notice of appeal in the interest of justice. Tenn. R.
App. P. 4(a). Waiver of the notice requirement is not automatic, and this court bears in
mind that reflexively granting waiver would render the timely notice requirement a “legal
fiction.” State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). “In
determining whether waiver is appropriate, this court will consider the nature of the
issues presented for review, the reasons for and the length of the delay in seeking relief,
and any other relevant factors presented in the particular case.” Id. (quoting State v.
Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn.
Crim. App. Dec. 27, 2005)).

       The defendant does not ask this court to waive the timely notice of appeal. The
record contains no explanation of the decision to file the motions with the trial court
rather than to appeal the decision. Moreover, a review of the issue presented on appeal
leads us to conclude that the defendant would not, in any event, be entitled to relief.

                                    CONCLUSION

      The defendant’s notice of appeal was not timely, and we dismiss the appeal and
remand for correction of the judgment documents.




                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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