        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                November 9, 2010 Session

                STATE OF TENNESSEE v. JEFFERY D. LEMAY

                  Appeal from the Circuit Court for Marshall County
                         No. 17698    Robert Crigler, Judge


                No. M2010-00175-CCA-R3-CD - Filed January 11, 2011


The defendant, Jeffery D. Lemay, pleaded guilty to one count of rape of a child, a Class A
felony, and reserved a certified question of law challenging the trial court’s order finding him
competent to stand trial. See Tenn. R. Crim. P. 37(b)(2)(a). Following our review, we
conclude that the defendant failed to properly certify a question of law that is dispositive of
the case. Accordingly, we dismiss the appeal.

                          Tenn. R. App. P. 3; Appeal Dismissed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.

Melissa L. Thomas, Fayetteville, Tennessee, for the appellant, Jeffery D. Lemay.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempl, Assistant
Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               The Marshall County grand jury charged the defendant in a 20-count
indictment with two counts of rape of a child, two counts of aggravated sexual battery, eight
counts of rape, four counts of sexual battery, and four counts of statutory rape by an authority
figure for acts alleged to have been committed by the defendant against his stepdaughter on
six specific dates spanning a time frame of over two years. Defense counsel petitioned the
court for a mental evaluation to determine the defendant’s competency to stand trial pursuant
to Tennessee Code Annotated section 33-7-310(a). The trial court initially denied the
petition based upon the defendant’s non-indigent status. The trial court, however, eventually
ordered a competency evaluation. Following the completion of the evaluation and a full
evidentiary hearing, the trial court found the defendant competent to stand trial. This court
denied the defendant’s appeals pursuant to Rules 9 and 10 of the Tennessee Rules of
Appellate Procedure on two separate occasions. On February 11, 2010, the defendant
entered into a plea agreement whereby he agreed to enter a best interest plea of guilty to one
count of rape of a child, the State agreed to enter judgments of nolle prosequi on the
remaining 19 counts of the indictment, and the defendant sought to reserve a certified
question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A) concerning
the propriety of the trial court’s finding him competent to stand trial.

              At the March 6, 2009 competency hearing, Doctor Donna Moore testified that
she had reviewed the defendant’s academic records as part of her evaluation of the
defendant’s competency to stand trial. Doctor Moore said that an evaluation by school
agents when the defendant was nine years old revealed that the defendant had an intelligence
quotient (IQ) of 59, which was in the mild mental retardation range. Further school
evaluations when the defendant was 16 years old revealed that the defendant had difficulty
processing verbal information, although his ability to perform manual tasks was not as
impaired. Doctor Moore said that the defendant received a special education diploma upon
graduating high school. Based upon this information, Doctor Moore determined that the
defendant was mentally retarded. Likewise, she determined that the defendant’s difficulties
in processing verbal information hindered his ability to understand the judicial process and
to assist his attorney in the preparation of his defense, so she recommended that the
defendant undergo competency training in hopes of improving his understanding of the
judicial system and his ability to assist counsel. After completing seven one-hour
competency sessions, Doctor Moore determined that the defendant could not learn because
he was unable to retain the verbal information requisite to a competency finding. She stated
that the defendant did not have a “complete factual or rational understanding” of the
proceedings in which he was involved. She also determined that additional training would
be futile.

               On cross-examination, Doctor Moore admitted that she was familiar with some
mentally retarded patients facing trial who had been housed in a mental health facility and
who had undergone competency training “for years.” She stressed, however, that no amount
of competency training would help the defendant. When confronted with the defendant’s
specific answers to competency questions, Doctor Moore denied that the defendant evinced
any understanding of the adversarial process. She also denied that the testing revealed any
evidence of malingering by the defendant. Doctor Moore admitted that she could have
benefitted from more time to gather information concerning the defendant’s mental status
and that the reliability of her diagnosis was tied to the reliability of the school records she had
utilized in formulating her opinion. When asked about the defendant’s IQ score of 80 at the
age of 16, Doctor Moore opined that the testing method employed for that score was not as

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reliable as the one utilized when the defendant was 9 years old that had indicated an IQ of
59.

                The defendant’s ex-wife, Heather Lemay, testified that she had known the
defendant for approximately nine years. She said that she never had any idea that the
defendant had a special education diploma or that he was mentally impaired in any way until
he attempted to qualify for social security disability in 2004. She said that the defendant had
always worked during their marriage and that he had been employed by the same factory for
20 years until its closing. She recalled that she and the defendant split household expenses
while married and that the defendant wrote checks, balanced the checkbook, and always paid
their bills in a timely manner. In fact, she said that the defendant “was very good about
paying things early.” After a factory where he had worked for many years closed, the
defendant worked as a maintenance supervisor in a mobile home community where the
couple lived. As part of his duties, the defendant read water meters, computed water bills
for each tenant, collected rent, and wrote receipts. Ms. Lemay said that no psychologists ever
contacted her regarding the defendant’s competency evaluation.

               The defendant’s school records, 2004 disability application report, and several
psychological reports were made exhibits at the competency hearing. The trial court found
significant the defendant’s malingering evidenced at the 2004 disability evaluation and in an
earlier competency evaluation.

               In an initial forensic evaluation performed in January 2008, psychologist
Doctor Kimberly Brown reported that the defendant understood the purpose of the
competency evaluation and that he agreed to participate in the evaluation. Doctor Brown’s
report also stated that the defendant presented appropriate affect and demeanor during the
interviews. Her report further noted that, although the defendant’s “adaptive functioning was
not formally assessed during his school years,” his school records noted that he evinced a
level of emotional immaturity. The defendant self-reported that he relied upon others to
assist him in his daily activities. His sister also reported that he “has difficulty understanding
what happens in court and what is said in meetings with his attorney.” Significantly, Doctor
Brown reported that the defendant “was minimizing what he really knew” during the
competency evaluation. Doctor Brown concluded that the defendant suffered from “mild
mental retardation” affecting his competency, but she also noted that her findings were
“complicate[d]” by “some malingering and poor effort” on the defendant’s part.

               A competency assessment instrument administered by Doctor Moore indicated
that the defendant had a general understanding of courtroom proceedings and the adversarial
process with some confusion about legal terminology. Significantly, the assessment also
showed that the defendant possessed an accurate historical understanding of the charges

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against him and of the factual basis of the charges.

                On July 2, 2009, the trial court entered an order with written findings
concerning the defendant’s competency. In its findings, the trial court noted that the
defendant was “gainfully employed full-time for approximately twenty (20) years by the
same employer” until the factory closed and that the defendant successfully pursued a
worker’s compensation claim and had held a job requiring some “bookkeeping ability”
subsequent to the factory’s closure. Based upon Doctor Moore’s testimony, the trial court
noted that a mental retardation diagnosis required an IQ test score below 70 and deficits in
adaptive behavior, both of which should be manifest before the age of 18. Additionally, the
trial court noted Doctor Moore’s testimony that someone who is in special education classes
is not necessarily mentally retarded and that people who fall into the mild mental retardation
range, like the defendant, “tend to be competent.”

               In ruling that the defendant failed to establish by a preponderance of the
evidence his incompetency, the trial court found specifically that Doctor Moore’s diagnosis
of mental retardation was not supported by the proof in the school records because the school
records were “insufficient to establish deficits in adaptive behavior.” The trial court also
found that Doctor Moore’s interpretation of previous evaluations was “not accurate.” The
trial court found that Doctor Moore “did not give appropriate consideration to the
defendant’s work history, evidence of the defendant’s malingering and the . . . adaptive
functioning measure completed by the defendant’s sister.” Because the trial court ruled that
the defendant was competent, the trial court made no findings related to Doctor Moore’s
conclusions regarding the defendant’s ability to be competency trained.

                The defendant sought an interlocutory appeal of the trial court’s July 2, 2009
order pursuant to Tennessee Rule of Appellate Procedure 9. This court denied permission
to appeal on August 7, 2009. See State v. Jeffrey Lemay, No. M2009-01455-CCA-R9-CD
(Tenn. Crim. App., Nashville, Aug. 7, 2009) (Order).1 On December 15, 2009, the trial court
denied a motion to reconsider the competency issue. The defendant then sought an
extraordinary appeal of the December 15, 2009 order pursuant to Tennessee Rule of
Appellate Procedure 10. This court denied permission to appeal on February 9, 2010. See
State v. Jeffrey Lemay, No. M2010-00175-CCA-R10-CD (Tenn. Crim. App., Nashville, Feb.
9, 2010) (Order).



        1
            In previous orders, this court did not have a full record available for review and relied upon the
spelling of the defendant’s name as provided by the parties in their pleadings. The custom of this court is
to spell a defendant’s name as it appears in the charging instrument. Accordingly, we will utilize the name
appearing in the indictment unless referring to a previous order of this court.

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               On February 11, 2010, the defendant entered into a plea agreement whereby
the State entered orders of nolle prosequi on counts two through 20 of the indictment in
exchange for the defendant’s best interest guilty plea to count one of the indictment charging
rape of a child. Per the agreement, the defendant received a sentence of 15 years’
incarceration to be served at 100 percent. The guilty plea petition also provided that the
defendant reserved a certified question of law for appeal as indicated by the parties’
agreement that “all issues regarding competency are dispositive of the case.” See Tenn. R.
Crim. P. 37(b)(2)(A). On the same date, the trial court entered judgments consistent with the
plea agreement. The judgment for count one, rape of a child, indicated that “[t]he Court,
State and Defense agree that all issues concerning the defendant’s competency to stand trial
are dispositive of the case and are reserved for review by the appellate court.” The defendant
filed a notice of appeal on February 17, 2010. On March 3, 2010, the trial court entered an
order in an attempt to more specifically outline the certified question presented for appeal by
tying the competency issue to the defendant’s mental retardation.

               On appeal, the defendant argues that the trial court erred by ruling that he failed
to prove by a preponderance of the evidence that he was incompetent to stand trial. He
asserts that each expert opined that the defendant was incompetent and that the State
presented no countervailing evidence. Therefore, he claims that he established incompetency
by a preponderance of the evidence. The State, as an initial matter, contends that the
appealed issue was not properly reserved because it is nonspecific. The State also contends
that, even assuming the issue was properly reserved, the issue is not dispositive of the case.
Therefore, the State urges this court to dismiss the appeal.

               Initially, we note, contrary to the defendant’s argument, that the State did
indeed present countervailing evidence, including lay testimony and documents, which the
trial court accredited in its findings.

               We also agree with the State that the certified question presented is very
general. Tennessee Rule of Criminal Procedure 37(b)(2)(A)(ii) provides, as a prerequisite
to this court’s review, that “the question of law is stated in the judgment or document so as
to identify clearly the scope and limits of the legal issue reserved.” Rule 37(b)(2)(A)(i) also
requires that “the judgment or other document to which such judgment refers that is filed
before the notice of appeal, contains a statement of the certified question of law that the
defendant reserved for appellate review.” The procedural requirements of Rule 37 must be
strictly met in order to afford appellate review. State v. Preston, 759 S.W.2d 647 (Tenn.
1988).

              It appears that the trial court attempted to specifically identify the certified
question by entry of the March 3, 2009 order. This order, however, was ineffectual because

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it was filed subsequently to the defendant’s filing of the notice of appeal. The trial court lost
jurisdiction to amend its judgment or incorporate by reference any other order once the notice
of appeal was filed. State v. Pendergrass, 937 S.W.2d 834, 837-38 (Tenn. 1996); State v.
Irwin, 962 S.W.2d 477 (Tenn. 1998).2 Accordingly, we conclude that the defendant failed
to meet the requirements of properly certifying the question for this court’s review. See State
v. Harris, 280 S.W.3d 832, 837 (Tenn. Crim. App. 2008).

               That said, even if we assumed the defendant had complied with the Rule 37
requirements, we would decline to review this issue because the question raised is not
dispositive of the case. This court has previously declined to review the propriety of a trial
court’s ruling concerning competency via Rule 37(b) because “a resolution [of the issue]
favorable to the defendant would not result in dismissal” and was, therefore, not dispositive.
State v. Bailey, 213 S.W.3d 907, 912 (Tenn. Crim. App. 2006). In Bailey, the trial court
ruled that the defendant was competent and, as a consequence, failed to make any findings
concerning whether the defendant qualified for judicial commitment and “whether there was
a substantial probability that the defendant will become competent to stand trial in the
foreseeable future.” Id. at 911 (citing T.C.A. § 33-7-301(c)).

                Likewise, in this case, although Doctor Moore testified that the defendant was
not eligible for judicial commitment and that he could not be educated to competency, the
trial court did not accredit Doctor Moore’s opinion and made no findings relating to those
issues. Accordingly, just as in Bailey, “if this court agreed with the defendant that the trial
court had erred in determining that he was competent to stand trial, we would not dismiss the
matter . . . , but, instead, remand it to the trial court to follow the procedures set out in
Tennessee Code Annotated section 33-7-301.” Id. at 911-12. Therefore, this issue is not
dispositive of the case.

               Because the defendant failed to meet the certification requirements of Rule
37(b)(2)(A) and because the issue raised is not dispositive of the case, this court is without
jurisdiction to review the issue. The appeal is dismissed.


                                                        _________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




        2
          We also note that the judgment failed to incorporate by reference the March 3 order. Therefore,
even if the notice of appeal had not intervened, the March 3 order would have failed to comply with the
Preston requirements.

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