Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 11, 2015
Appeal from the Criminal Court for Davidson County No. 2013-D-3367 J. Randall Wyatt, Jr., Judge
Elaine Heard, Nashville, Tennessee, for the appellant, Ashley Marie Witwer.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Victor S. Johnson III; District Attorney General; Brian Ewald, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
On July 30, 2010, Appellant pled guilty to the offense of promoting prostitution, a Class E felony. The trial court accepted the State's sentencing recommendation that Appellant receive one year of incarceration as a Range I, standard offender to be served consecutive to a sentence that she was serving for another offense at the time of the plea.
Subsequently, the General Assembly amended Tennessee Code Annotated section 40-39-202 by adding the offense of promoting prostitution to the list of enumerated offenses subject to the requirements of the sex offender registry. This amendment became effective on July 1, 2012, and on July 23, 2013, Appellant was notified that she had three days to register as a sex offender. Appellant appeared for a scheduled appointment on July 26, 2013, to register, but she informed the authorities that she was refusing to complete the process of registration.
Appellant was indicted for two counts of violating Tennessee Code Annotated section 40-39-208, one for failure to timely register and another for failure to sign a Tennessee Bureau of Investigation ("TBI") registration form. Pursuant to a plea agreement, the second count was dismissed by the State, and Appellant pled guilty to the first count, a Class E felony. Appellant received a one-year sentence as a Range I, standard offender, of which all but ninety days were suspended to supervised probation. The sentence was stayed by the trial court pending this Court's resolution of Appellant's certified question of law.
Appellant raises the following certified question of law:
Whether Tennessee Code Annotated section 40-39-202(A)(20)(xviii), which designates "promotion of prostitution" as a "sexual offense" requiring registry within the Tennessee Sex Offender Registry, is constitutional as retroactively applied to the Appellant under the Tennessee Constitution and the Constitution of the United States.
Tennessee Rule of Criminal Procedure 37(b) permits a defendant to plead guilty to an offense on the condition of a certified question of law that is dispositive ...