source: Caselaw Access Project

author: SHARON G. LEE, J.,

license: Public Domain

text:
    Marcus WARD v. STATE of Tennessee.
    Supreme Court of Tennessee, at Jackson.
    Nov. 5, 2009 Session.
    July 7, 2010.

      Ryan B. Feeney, Selmer, Tennessee, for the appellant, Marcus Ward.
    Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; William L. Gibbons, District Attorney General; Colin Campbell, Assistant District Attorney General; and J. Ross Dyer, Senior Counsel, District Attorney General’s Office, for the appellee, State of Tennessee.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the Court,

in which JANICE M. HOLDER, C.J., and CORNELIA A. CLARK, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.

In this post-conviction case, the issue we review is whether the defendant’s plea of guilty to aggravated sexual battery was knowingly, intentionally, and voluntarily made when the trial court did not advise the defendant of the following consequences of his guilty plea: (1) mandatory registration as a sexual offender, and (2) a mandatory sentence of community supervision for life in addition to his incarceration. We hold that the trial court was not required to advise the defendant of the requirement of sex offender registration because it is a remedial and regulatory measure, and therefore a collateral consequence of the guilty plea. We further hold that the trial court was required to advise the defendant of the mandatory sentence of lifetime community supervision because it is a punitive and direct consequence of the guilty plea. Because the trial court failed to ensure that the defendant was informed of the lifetime supervision consequence, we hold that his guilty plea to aggravated sexual battery was not knowingly, intentionally, and voluntarily entered. Accordingly, this case is remanded to the trial court for further proceedings consistent with this opinion.

Factual and Procedural Background

On June 8, 2005, Marcus Ward pleaded guilty to one count of aggravated sexual battery, three counts of aggravated assault, and one count each of especially aggravated kidnaping and intentionally evading arrest in a motor vehicle. Mr. Ward was sentenced to eight years on the aggravated sexual battery charge to be served at 100%, three years on each of the aggravated assault charges to be served at 30%, thirteen and one-half years on the especially aggravated kidnaping charge to be served at 100%, and one year on the intentionally evading arrest in a motor vehicle charge; all the sentences were to be served concurrently for an effective sentence of thirteen and one-half years. At his sentencing hearing, Mr. Ward was not advised by the trial court that he was required to register with the Tennessee Sexual Offender Registry or that he was subject to lifetime community supervision.

On July 11, 2005, Mr. Ward filed a petition for post-conviction relief, alleging, among other things, that his guilty plea to the aggravated sexual battery charge was not knowingly, intentionally, and voluntarily made. The post-conviction court held that although the trial court’s failure to advise Mr. Ward of the sex offender registration requirement during the plea colloquy was deficient, notice of the requirement was not constitutionally required for a valid guilty plea because the registration was only a collateral consequence of the plea. As to Mr. Ward’s claim that he was not advised of the requirement of lifetime community supervision, the trial court ruled that this claim failed for the same reason.

A majority of the Court of Criminal Appeals panel affirmed the post-conviction court’s judgment, concluding that neither the sex offender registration requirement nor the mandatory sentence of community supervision for life constituted punishment, and therefore both were collateral, not direct, consequences. Accordingly, the majority ruled that Mr. Ward was not required to have been advised of those consequences in order to enter a constitutionally valid guilty plea. Ward v. State, No. W2007-01632-CCA-R3-PC, 2009 WL 113236 (Tenn.Crim.App. Jan.14, 2009). Presiding Judge Tipton dissented, reasoning that the imposition of a sentence of community supervision for life as mandated by Tennessee Code Annotated section 39-13-524 imposes a direct and punitive consequence upon a defendant entering a guilty plea. Id. at * 11.

Issue

We granted review in this case to determine whether Mr. Ward’s plea of guilty to aggravated sexual battery was knowingly, intentionally, and voluntarily made when the trial court did not advise him of the following consequences of his guilty plea: (1) mandatoiy registration as a sexual offender, and (2) a mandatory sentence of community supervision for life in addition to his incarceration.

Analysis

To prevail on his claim for post-conviction relief, Mr. Ward bears the burden of proving factual allegations by clear and convincing evidence. Tenn.Code Ann. § 40 — 30—110(f) (2006); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.2009). The trial court’s factual findings “are conclusive on appeal unless the evidence preponderates against those findings.” Jaco v. State, 120 S.W.3d 828, 830 (Tenn.2003). “Whether a guilty plea meets the constitutional standards of voluntary and knowing is a mixed question of law and fact.” Id. We review mixed questions of law and fact de novo, applying a presumption of correctness only to the post-conviction court’s findings of fact. Id. at 830-31.

Knowing and Voluntary Guilty Plea

When a defendant enters a guilty plea, he or she waives several constitutional rights, including the right against self-incrimination, the right to a trial by jury, and the right to confront his or her accusers. State v. Mellon, 118 S.W.3d 340, 345 (Tenn.2003). To pass constitutional muster under the Due Process Clause of the United States Constitution, a guilty plea must be entered knowingly, voluntarily, and intelligently. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Brady v. United States, 397 U.S. 742, 747, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn.1977). In making the determination of whether a guilty plea was knowingly, voluntarily, and intelligently entered, the standard of inquiry is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Grindstaff, 297 S.W.3d at 218 (quoting Jaco, 120 S.W.3d at 831); see also Alford, 400 U.S. at 31, 91 S.Ct. 160. A plea is not voluntary unless the defendant understands the consequences of his or her plea. Mellon, 118 S.W.3d at 345. It follows then that “a plea is not ‘voluntary’ if it results from ignorance, misunderstanding, coercion, inducements, or threats.” Id. (quoting Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.1993)). The waiver of these fundamental rights cannot be presumed, but must be evident in the record. Id. Thus, “the record of acceptance of a defendant’s plea of guilty must affirmatively demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been made aware of the significant consequences of such a plea; otherwise, it will not amount to an ‘intentional abandonment of a known right.’ ” Mackey, 553 S.W.2d at 340; see also State v. Pettus, 986 S.W.2d 540, 542 (Tenn.1999). To find that the plea was entered “intelligently” and “knowingly,” the trial court must discuss the matter with the accused to make sure he or she “has a full understanding of what the plea connotes and of its consequences.” Blankenship, 858 S.W.2d at 904 (quoting Boykin, 395 U.S. at 244, 89 S.Ct. 1709) (emphasis omitted).

In Tennessee, before accepting a guilty plea, the trial court is required to inform the defendant of, and determine that he or she understands, the following:

1) the nature of the charge to which the plea is offered and the mandatory minimum and maximum penalty provided by law;
2) the right of the defendant to be represented by counsel at every stage of the proceedings;
3) the right of the defendant to plead not guilty and to persist in that plea, the right to a jury trial, the right to assistance of counsel at trial, the right to confront and cross-examine witnesses against him, and the right against compelled self-incrimination;
4) that by pleading guilty or nolo con-tendere, the defendant waives the right to a trial; and
5) that if the defendant enters a guilty or nolo contendere plea, the trial court may question the defendant regarding the offenses and that any of the defendant’s answers made under oath, on the record, and in counsel’s presence may later be used against the defendant in a subsequent prosecution for perjury or false statement.

Howell v. State, 185 S.W.3d 319, 331 (Tenn.2006) (citing Tenn. R.Crim. P. 11(c)(1)(5)). In addition to these matters specified by Tennessee Rule of Criminal Procedure 11(b), the defendant must be advised, “if applicable, that a different or additional punishment may result by reason of his prior convictions or other factors which may be established in the present action after the entry of his plea.” Mack-ey, 553 S.W.2d at 341.

However, neither our federal nor state constitution requires that an accused be apprised of every possible or contingent consequence of pleading guilty before entering a valid guilty plea. Courts are constitutionally required to notify defendants of only the direct consequences— not the collateral consequences — of a guilty plea. Brady, 397 U.S. at 755, 90 S.Ct. 1463; Blankenship, 858 S.W.2d at 905. In Blankenship, we observed that “[b]y contrast, some consequences are considered ‘collateral,’ rather than ‘direct.’ ” 858 S.W.2d at 905. The distinction between a collateral and a direct consequence has often been formulated as turning on “whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Bautista v. State, 160 S.W.3d 917, 921 (Tenn.Crim.App.2004) (overruled on other grounds by Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)) (quoting Adkins v. State, 911 S.W.2d 334, 350 (Tenn.Crim.App.1994)); see also Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir.1988). An example of a direct consequence was presented in Mellon. In Mellon, the trial court failed to explain to the defendant that if the defendant breached his plea agreement by refusing to testify against his co-defendants, he would be subject to a full sentencing hearing with the possibility of the death penalty. This Court held that the trial court’s failure resulted in an involuntary and unknowing guilty plea and a violation of the defendant’s due process rights. 118 S.W.3d at 347-48. An example of a collateral consequence was presented in the Jaco case, where we held that “[a] defendant need not be informed of all criteria that affect his possible release on parole in order for his guilty plea to be constitutionally sound.” In Jaco, we reasoned that “[n]either the federal nor the state constitution requires that [the defendant] be informed of all possible factors that could affect the parole board’s decision” whether to release the defendant on parole at some later date. 120 S.W.3d at 829, 833.

Tennessee Sexual Offender Registry Requirement

The Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act, Tenn.Code Ann. §§ 40-39-201 to 215 (2006 & Supp. 2009) (the “registration act”) was enacted in the wake of the brutal kidnaping, rape, and murder of seven-year-old Megan Kan-ka on July 29,1994, in Hamilton Township, New Jersey. This tragic event sparked the enactment of “Megan’s Law.” Megan’s murderer was a convicted sex offender who lived across the street from her home. In an effort to protect other children from the acts of known sex offenders, the New Jersey legislature enacted Megan’s Law, which required notice to the surrounding community when a convicted sex offender moved into the community after release from prison. The abduction of eleven-year-old Jacob Wetterling in St. Joseph, Minnesota, was the impetus for the adoption of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program Act in 1994. This Act required all states to adopt a system of sex offender registry by September 13,1997, or face losing a portion of the state’s federal funding. By 1996, all fifty states and the District of Columbia had enacted a version of Megan’s Law.

Tennessee’s sexual offender registration act was first adopted in 1994 and has been amended multiple times since Mr. Ward entered his guilty plea. The act’s language evinces a clear intent that the registration requirements be applied retroactively to any sexual offender. See Tenn.Code Ann. §§ 40-39-202(20), (27) & (28); 40-39-20S(a)(2) & (j)(l) & (2). Consequently, the registration act, in its present form, is applicable to Mr. Ward rather than the version in effect when he entered his plea. Consequently, we apply and construe the registration act as currently written. The Tennessee sexual offender registration act requires persons convicted of a sexual offense or violent sexual offense to provide to law enforcement officials certain regularly updated information, including the offender’s residence, employment, electronic mail or other internet identification, and other personal information. Tenn.Code Ann. § 40-39-203 (2006 & Supp.2009). Additionally, Tennessee Code Annotated section 40-39-211 imposes certain other requirements on sexual offenders, providing in part as follows:

(b) No sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, shall knowingly:
(1)Reside within one thousand feet (1,000’) of the property line on which the offender’s former victims or the victims’ immediate family members reside;
(2) Come within one hundred feet (100’) of any of the offender’s former victims, except as otherwise authorized by law; or
(3) Contact any of the offender’s former victims or the victims’ immediate family members without the consent of the victim or consent of the victim’s parent or guardian if the victim is a minor being contacted by telephone, in writing, by electronic mail, Internet services or any other form of electronic communication, unless otherwise authorized by law.
(d)(1) No sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, shall knowingly:
(A) Be upon or remain on the premises of any building or grounds of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when the offender has reason to believe children under eighteen (18) years of age are present;
(B) Stand, sit idly, whether or not the offender is in a vehicle, or remain within one thousand feet (1,000’) of the property line of any building owned or operated by any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when children under eighteen (18) years of age are present, while not having a reason or relationship involving custody of or responsibility for a child or any other specific or legitimate reason for being there; or
(C) Be in any conveyance owned, leased or contracted by a school, licensed day care center, other child care facility or recreation center to transport students to or from school, day care, child care, or a recreation center or any related activity thereof when children under eighteen (18) years of age are present in the conveyance.

TenmCode Ann. § 40-39-211 (2006 & Supp.2009). Subsections (a) and (c) of this statute impose further, more extensive restrictions on those offenders whose victim was a minor; however, these subsections are not implicated or subject to our review in the case at bar, because Mr. Ward’s victim was an adult.

Mr. Ward argues that he should have been advised of the registration requirement because it is a direct and punitive consequence of his guilty plea. The State argues that the trial court was not required to advise Mr. Ward of the registration requirement because it is a collateral consequence of the guilty plea. We agree with the State’s position. The General Assembly clearly indicated its intent that the registration act was a remedial and regulatory measure rather than a punitive measure. In addition, the registration act, although perhaps inconvenient for Mr. Ward, has no effect on his range of punishment. We are joined in this view by a majority of the states in this country.

An examination of the clearly-expressed legislative intent of the registration act supports the conclusion 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:

(b) The general assembly finds and declares that:
(1) Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are violent sexual offenders who present an extreme threat to the public safety. Sexual offenders pose a high risk of engaging in further offenses after release from incarceration or commitment, and protection of the piiblic from these offenders is of paramount public interest;
(2) It is a compelling and necessary public interest that the public have information concerning persons convicted of sexual offenses collected pursuant to this part, to allow members of the public to adequately protect themselves and their children from these persons;
(4) ... the general assembly finds that releasing information about offenders under the circumstances specified in this part will further the primary governmental interest of protecting vulnerable populations from potential harm;
(5) The registration of offenders, utilizing complete and accurate information, along with the public release of specified information concerning offenders, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems that deal with these offenders;
(6) To protect the safety and general welfare of the people of this state, it is necessary to provide for continued registration of offenders and for the public release of specified information regarding offenders. This policy of authorizing the release of necessary and relevant information about offenders to members of the general public is a means of assuring public protection and shall not be construed as punitive;
(8) The General Assembly also declares, however, that in making information about certain offenders available to the public, it does not intend that the information be used to inflict retribution or additional punishment on any such offenders.

Tenn.Code Ann. § 40-39-201 (2004) (emphasis added). The plain language of this statute expresses a nonpunitive intent to protect the public. In addition, as noted by the General Assembly, the registration requirement does not inflict additional punishment on Mr. Ward nor does it alter the range of punishment.

Although no Tennessee court has previously ruled on this precise question, courts in at least thirty-three other states have addressed this issue. All but one of these states have concluded that a sexual offender registration requirement is a collateral consequence and that a trial court’s failure to advise the defendant of the registration requirement does not, therefore, render a guilty plea constitutionally infirm. Courts applying this majority rule have utilized the following rationales: (1) the underlying intent of sex offender registration is public protection and safety, and registration requirements assist law enforcement agencies in protecting the health, safety, and welfare of members of the community and state; (2) the registration requirement does not impose such a substantial additional disability or restraint on an offender, such as lengthening his or her sentence or significantly restricting freedom of movement, as to render the effect of the otherwise remedial statute punitive; (3) registration requirements in general have not been traditionally and historically considered punishment; and (4) the overwhelming importance of protecting the public safety outweighs the discomfort or inconvenience imposed upon a sex offender by requiring compliance with the registration requirement. Simply stated, the overwhelming majority of courts considering this issue have concluded that a sex offender registration requirement does not impose additional punishment on the offender.

The United States Supreme Court has not ruled on the exact issue presented here, but has upheld Alaska’s sex offender registration act against an ex post facto challenge, finding that the act was nonpun-itive in intent and effect. Smith, 538 U.S.at 105-06, 123 S.Ct. 1140. Additionally, the United States Supreme Court has upheld Connecticut’s registration law against a procedural due process challenge. Connecticut Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). The United States Court of Appeals for the Sixth Circuit, examining an earlier version of Tennessee’s Sexual Offender Registration and Monitoring Act, has determined the act to be nonpunitive. Cutshall v. Sundquist, 193 F.3d 466, 477 (6th Cir.1999). Courts from other jurisdictions addressing the ex post facto issue have likewise held that similar state statutes are not punitive.

We agree with the majority of states 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. In summary, while the registration requirement is undoubtedly a definite, immediate, and largely automatic consequence of a conviction of a sexual offense or violent sexual offense, it does not have an effect on the length, manner, or service of the defendant’s punishment. Consequently, the trial court’s failure to advise Mr. Ward of the sex offender registration requirement does not render Mr. Ward’s guilty plea constitutionally invalid. However, it is clearly better practice for a trial court to advise a defendant that a consequence of pleading guilty to an offense requiring sex offender registration is that the defendant must register as a sex offender, and we encourage trial courts in Tennessee to make every effort to ensure that defendants are so advised prior to entering a guilty plea.

In concluding the analysis of this issue, we add two final observations. First, at the risk of stating the obvious, we address the applicable sections of the registration act as currently written and in effect. As noted in footnote 4, the General Assembly has frequently enacted amendments to the registration act — amending the statute at least fifteen times since 2005. Although some of the amendments have loosened the requirements imposed on sex offender registrants, most of the changes have had the effect of adding or increasing requirements and restrictions. Obviously, nothing in this opinion precludes the possibility that an amendment to the registration act imposing further restrictions may be subject to review on the grounds that the additional requirements render the effect of the act punitive. Secondly, we reiterate that the restrictions imposed by Tennessee Code Annotated section 40-39-211(a) & (c), applicable only to offenders whose victim was a minor, are not at issue here because Mr. Ward’s victim was not a minor.

Lifetime Supervision Requirement

We now turn to an application of the same analysis to a different requirement: the imposition of a sentence of community supervision for life pursuant to Tennessee Code Annotated section 39-13-524 (2006 & Supp.2009). A sentence of community supervision for life for certain enumerated crimes is provided for in Tennessee Code Annotated section 39-13-524 as follows:

(a) In addition to the punishment authorized by the specific statute prohibiting the conduct, any person who, on or after July 1, 1996, commits a violation of § 39-13-502 [aggravated rape], § 39-13-503 [rape], § 39-13-504 [aggravated sexual battery], § 39-13-522 [rape of a child], or attempts to commit a violation of any of these sections, shall receive a sentence of community supervision for life.
(b) The judgment of conviction for all persons to whom the provisions of subsection (a) apply shall include that the person is sentenced to community supervision for life.
(c) The sentence of community supervision for life shall commence immediately upon the expiration of the term of imprisonment imposed upon the person by the court or u,pon the person’s release from regular parole supervision, whichever first occurs.
(d)(1) A person on community supervision shall be under the jurisdiction, supervision and control of the board of probation and parole in the same manner as a person under parole supervision. The board is authorized on an individual basis to establish such conditions of community supervision as are necessary to protect the public from the person’s committing a new sex offense, as well as promoting the rehabilitation of the person.
(2) The board is authorized to impose and enforce a supervision and rehabilitation fee upon a person on community supervision similar to the fee imposed by § 40-28-201. To the extent possible, the board shall set the fee in an amount that will substantially defray the cost of the community supervision program. The board shall also establish a fee waiver procedure for hardship cases and indigency.

TenmCode Ann. § 39-13-524 (emphasis added).

We conclude that the imposition of a sentence of community supervision for life is punitive for several reasons. First, there is no statement indicating a nonpun-itive intent as in Tennessee Code Annotated section 40-39-201 cited above. Moreover, the language employed by the General Assembly in enacting section 39-13-524 is strongly indicative of punitive intent. The phrase “in addition to the punishment” in subsection (a) suggests that the mandatory lifetime supervision requirement is additional “punishment” for the enumerated crimes. The statute’s repeated use of the term “sentence” also suggests punishment. See Black’s Law Dictionary 1485 (9th ed.2009) (defining “sentence” as “punishment imposed on a criminal wrongdoer”) (emphasis added). The United States Supreme Court, in Smith, indicated that the intent of the legislature, while not dispositive, should be afforded considerable deference, and if a court finds punitive intent, that finding ends the inquiry:

If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil.... Whether a statutory scheme is civil or criminal is first of all a question of statutory construction. We consider the statute’s text and its structure to determine the legislative objective. A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it.

Smith, 538 U.S. at 92-3, 123 S.Ct. 1140 (emphasis added) (citations omitted). The statute is also punitive in effect, requiring an offender to regularly report to a parole officer who is granted wide discretion in imposing supervisory requirements, and to pay a monthly fee. The imposition of lifetime supervision and the attendant consequences placed on an individual after having served his or her entire sentence of incarceration and/or regular parole are significant.

In Blankenship, this Court, discussing the constitutional requirement that an accused be “fully aware of the direct consequences” of his or her guilty plea in the context of analyzing whether a plea is knowing, intelligent, and voluntary, provided the following pertinent observation: “[t]he most obvious ‘direct consequence’ of a conviction is the penalty to be imposed. It is, therefore, well-recognized that the defendant must be apprised of the sentence that he will be forced to serve as the result of his guilty plea and conviction.” 858 S.W.2d at 905 (emphasis added). Additionally, as we have noted, Tennessee Rule of Criminal Procedure 11 requires the trial court, when considering and accepting a guilty plea, to advise the defendant of, among other things, “the maximum possible penalty and any mandatory minimum penalty.” Tenn. R.Crim. P. 11(b)(1)(B). Because the mandatory lifetime supervision requirement is an additional part of a defendant’s sentence, the trial court is constitutionally required to inform the defendant of the supervision requirement as part of the plea colloquy.

Although far fewer courts from other jurisdictions have addressed this question than have considered the sexual offender registry requirement, those that have considered a lifetime supervision requirement have held it to be a direct consequence. See Palmer v. State, 118 Nev. 828, 59 P.3d 1192, 1196-97 (2002) (concluding that “lifetime supervision is a direct consequence of a guilty plea”); State v. Jamgochian, 363 N.J.Super. 220, 832 A.2d 360, 362 (2003) (holding that community supervision for life “is a penal and not a collateral consequence”); People v. Goss, 286 A.D.2d 180, 733 N.Y.S.2d 310, 314 (N.Y.App.Div.2001) (concluding that “postrelease supervision is a significant, punitive component of defendant’s sentence”).

Our holding that an additional sentence of lifetime community supervision is a direct and punitive consequence of which a defendant must be informed in order to enter a knowing and voluntary guilty plea in no way signifies a retreat from our holding in Jaco that “[a] defendant need not be informed of all criteria that affect his possible release on parole in order for his guilty plea to be constitutionally sound.” 120 S.W.3d at 829. The State argues that “in essence, community supervision is nothing more than a specialized form of parole supervision,” noting that the United States Supreme Court has “never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.” Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The Court of Criminal Appeals in the instant case agreed with this analogy, citing the dissent in an earlier unreported Court of Criminal Appeals opinion, Parker v. State, No. M2007-02799-CCA-R3-PC, 2008 WL 2938046 (Tenn.Crim.App. July 31, 2008), that addressed the same question regarding the lifetime supervision requirement as presented here.

It is obvious that “community supervision” is very similar to parole in terms of the requirements imposed upon a supervi-see. The statute mandates that “[a] person on community supervision shall be under the jurisdiction, supervision and control of the board of probation and parole in the same manner as a person under parole supervision.” Tenn.Code Ann. § 39-13-524(d)(l). The critical distinction, however, lies in the very different circumstances surrounding the imposition of a sentence of lifetime supervision, as opposed to early release from prison on parole. From the perspective of someone who is incarcerated, release on parole is a good and desirable consequence. From the perspective of someone who has served his or her entire sentence of incarceration and/or parole, an additional sentence of lifetime supervision is an undesirable and punitive consequence. Jaco dealt with a post-conviction petitioner’s claim that he had been unaware of a possible impediment to his release on parole — the potential effect of a statutory requirement that a sex offender be examined and evaluated by a mental health professional prior to being eligible for parole. 120 S.W.3d at 830; see also Tenn. Code Ann. § 40-35-503(c) (2003). We recognized in Jaco that “[rjelease on parole is a privilege, not a right,” 120 S.W.3d at 832 (quoting Tenn.Code Ann. § 40-35-503(b)), and noted that a defendant is not constitutionally required to “be informed of all possible factors that could affect the parole board’s decision.” Id. at 833.

Conversely, lifetime community supervision is not a contingent and uncertain privilege like release on parole. While parole allows an offender to serve part of his or her sentence of incarceration in a less restrictive environment, lifetime supervisión imposes an additional set of restrictions and requirements on the offender after serving his or her entire sentence of incarceration. The Supreme Court of Nevada, addressing and rejecting the same argument as presented by the State here, noted the differences between lifetime supervision and parole:

Generally, parole is a privilege ... that benefits one serving a term of imprisonment by allowing the prisoner to serve part of the term “outside the walls of the institution” in a supervised but non-custodial environment. Parole is a collateral consequence of a guilty plea because it is served in lieu of actual prison time and “is wholly beyond the jurisdiction of the district judge” to grant. Lifetime supervision, on the other hand, must be imposed by the sentencing judge and served in addition to any term of imprisonment, probation or parole as a matter of law.

Palmer, 59 P.3d at 1196 (footnotes omitted).

Finally, the Court of Criminal Appeals distinguished its earlier holding in the Parker case by noting that “[i]n the present case, the petitioner’s claim is that he was not advised at all about community supervision for life, not, as in Parker, that he received incorrect legal advice.” Ward, 2009 WL 113236, at *10. We disagree that this distinction is dispositive or significant for purposes of determining whether a guilty plea was knowingly, intelligently, and voluntarily made. We have noted on several occasions that “[e]ertainly, a plea is not ‘voluntary1 if it results from ignorance [or] misunderstanding ...” Mellon, 118 S.W.3d at 345 (citing Blankenship, 858 S.W.2d at 904); see also Boykin, 395 U.S. at 242-43, 89 S.Ct. 1709. If a defendant receives incorrect legal advice, his or her guilty plea is potentially a product of “misunderstanding.” If a defendant receives no advice regarding a direct consequence of his or her guilty plea, the plea is potentially a product of “ignorance.” In either case, a defendant’s right to due process would be violated.

In summary, we hold that the mandatory sentence of lifetime supervision imposed in addition to other statutorily authorized punishment is a direct and punitive consequence of a plea of guilty to the crimes enumerated in Tennessee Code Annotated section 39-13-524(a). Consequently, trial courts have an affirmative duty to ensure that a defendant is informed and aware of the lifetime supervision requirement prior to accepting a guilty plea.

Where, as here, the trial court has committed constitutional error by failing to ensure that the defendant is aware of a direct consequence of his or her guilty plea, the judgment of conviction must be set aside unless the State proves that the error was harmless beyond a reasonable doubt. State v. Neal, 810 S.W.2d 131, 138-40 (Tenn.1991), overruled in part on other grounds by Blankenship, 858 S.W.2d at 902. As the Neal Court observed, “[i]f it can be shown that the defendant already knew what he was not advised, ... the harmless nature of the error is classic.” Id. at 139. “If the State can demonstrate that the error was harmless beyond a reasonable doubt, then the judgment stands. If a reasonable doubt exists at the close of the proof, then the judgment must be set aside.” Id. at 139-40; accord Adkins, 911 S.W.2d at 348 (stating “[i]f a reviewing court determines that the failure to strictly advise of the Boykin rights ‘was harmless beyond a reasonable doubt,’ the conviction stands”).

In the instant case, the State failed to prove that the trial court’s failure to advise Mr. Ward of the direct lifetime supervision consequence of his guilty plea was harmless beyond a reasonable doubt. The State submitted the testimony of Mr. Ward’s trial counsel, who testified that he did not have any specific recall of his conversations with Mr. Ward but would have discussed with him “all of the charges and all of the requirements of those charges.” Mr. Ward’s trial counsel was not asked directly whether he told Mr. Ward about the supervision requirement prior to his plea of guilty, but counsel testified that he did not “have any independent memory of actually sitting in the back going through the guilty plea with” Mr. Ward. On the other hand, Mr. Ward testified at the hearing that his trial counsel did not advise him of the lifetime supervision requirement. Further, Mr. Ward testified without contradiction that on the “special conditions” area of the order of judgment form, the box beside the statement “[pjursuant to 39-13-524 the defendant is sentenced to community supervision for life following sentence expiration” was unchecked when he signed the form. Mr. Ward’s trial counsel corroborated his testimony by stating that it was probable that the lifetime supervision provision box was checked after Mr. Ward signed the judgment order. When trial counsel was asked whether he “recalled] specifically whether [he] informed Mr. Ward that those changes had been made after he gave his signature,” counsel testified, “no, I don’t remember if I did or not.” Mr. Ward testified that he would not have pleaded guilty to aggravated sexual battery if he had been made aware of the attendant consequences of his guilty plea. In short, there is clearly a reasonable doubt that the trial court’s failure to ensure that Mr. Ward was advised of the lifetime supervision requirement was harmless error.

Mr. Ward also raised the issue of ineffective assistance of counsel. However, because our determination that Mr. Ward’s guilty plea was not made knowingly, intelligently, and voluntarily is determinative, the issue of whether he received ineffective assistance of counsel is moot and pretermitted. See Mellon, 118 S.W.3d at 348.

Conclusion

The judgment of the Court of Criminal Appeals affirming Mr. Ward’s conviction for aggravated sexual battery is reversed. Following remand, the judgment of conviction shall be vacated and Mr. Ward shall be allowed to withdraw his guilty plea and stand trial on the original count of aggravated sexual battery in the indictment, if necessary. Costs on appeal are assessed to the appellee, State of Tennessee.

      . Mr. Ward also alleged that he received ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied the ineffective assistance claim, finding that Mr. Ward did not establish by clear and convincing evidence that his trial counsel had failed to advise him that he would be required to register as a sex offender. As will be further explained herein, the issue of ineffective assistance of counsel is rendered moot by our determination that Mr. Ward's plea of guilty was not intelligently, knowingly, and voluntarily made.

      . At the time of Mr. Ward’s guilty plea and as pertinent to the circumstances of his case, Tennessee Code Annotated section 39-13-504 provided as follows: "Aggravated sexual battery is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish the act and the defendant is armed with a weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon."

      . Tennessee Rule of Criminal Procedure 11 has been amended twice since the Howell opinion but remains substantively the same. Rule 11(b)(1) currently provides:
      Before accepting a guilty or nolo contende-re plea, the court shall address the defendant personally in open court and inform the defendant of, and determine that he or she understands, the following:
      (A) The nature of the charge to which the plea is offered;
      (B) the maximum possible penalty and any mandatory minimum penalty;
      (C) if the defendant is not represented by an attorney, the right to be represented by counsel — and if necessary have the court appoint counsel — at trial and eveiy other stage of the proceeding;
      (D) the right to plead not guilty or, having already so pleaded, to persist in that plea;
      (E) the right to a jury trial;
      (F) the right to confront and cross-examine adverse witnesses;
      (G) the right to be protected from compelled self-incrimination;
      (H) if the defendant pleads guilty or nolo contendere, the defendant waives the right to a trial and there will not be a further trial of any kind except as to sentence; and
      (I) if the defendant pleads guilty or nolo contendere, the court may ask the defendant questions about the offense to which he or she has pleaded. If the defendant answers these questions under oath, on the record, and in the presence of counsel, the answers may later be used against the defendant in a prosecution for perjury or aggravated perjury.

      . 42 U.S.C.A. § 14071 et seq.; Pursuing Public Protection Through Mandatory Community Notification of Convicted Sex Offenders: The Trials and Tribulations of Megan's Law, 6 B.U. Pub. Int. L.J. 29 (Fall 1996); Balancing the Protection of Children Against the Protection of Constitutional Rights: The Past, Present and Future of Megan's Law, 42 Duq. L.Rev. 331 (Winter 2004). In 1998, there were 2,800 registered sex offenders in the State of Tennessee. This number increased by sixty-three percent to 4,561 in 2001. Devon B. Adams, Summary of State Sex Offender Registries, 2001, Bureau of Justice Statistics Fact Sheet, NCJ-192265, March 2002, available at http://www.ojp.usdoj.gov/bjs/pub/ pdf/sssorOl .pdf.

        .See 2005 Tenn. Pub. Acts Ch. 316; 2006 Tenn. Pub. Acts Ch. 890; 2007 Tenn. Pub. Acts Ch. 126, 262, 451, 465, 531, 594, and 764; 2008 Tenn. Pub. Acts Ch. 714, 979, 1143, and 1164; 2009 Pub. Acts. Ch. 145 and 597; 2010 Pub. Acts Ch. 750 (eff. July 1, 2010).

      . The United States Supreme Court has upheld the retroactive application of Alaska’s registration law against an ex post facto challenge. Smith v. Doe, 538 U.S. 84, 105-06, 123 S.Ct. 1140, 155 L.Ed.2d 164(2003).

      . The terms "sexual offense" and "violent sexual offense” are defined at Tennessee Code Annotated sections 40-39-202(20) and (28) (2006 & Supp.2009) respectively.

      . See Robinson v. State, 730 So.2d 252, 254 (Ala.Crim.App.1998) (registration and notification requirements collateral consequences and not punishment); Patterson v. State, 985 P.2d 1007, 1019 (Alaska Ct.App.1999), overruled on other grounds by Doe v. State Dep’t of Pub. Safety, 92 P.3d 398, 411 n. 83 (Alaska 2004) (registration requirement a collateral consequence); State v. Young, 112 Ariz. 361, 542 P.2d 20, 22 (1975) (registration collateral effect of conviction); People v. Montaine, 7 P.3d 1065, 1067 (Colo.Ct.App.1999) (sex offender registration collateral consequence of guilty plea); State v. Scott, 2003 WL 21204469, at *1 (Del.Super.Ct. May 19, 2003) (registration a collateral consequence); State v. Partlow, 840 So.2d 1040, 1043 (Fla.2003) (registration collateral consequence of guilty plea); Foo v. State, 106 Hawai'i 102, 102 P.3d 346, 358 (2004) (sex offender registration requirements are collateral consequences); Ray v. State, 133 Idaho 96, 982 P.2d 931, 935 (1999) (registration not a direct consequence); People v. Taylor, 203 Ill.App.3d 636, 149 Ill. Dec. 115, 561 N.E.2d 393, 394 (1990) (registration act not penal in nature); Spencer v. O’Connor, 707 N.E.2d 1039, 1046 (Ind.Ct. App.1999) (notification not punishment); State v. Legg, 28 Kan.App.2d 203, 13 P.3d 355, 358 (2000) (registration not a direct consequence); Carpenter v. Commonwealth, 231 S.W.3d 134, 137 (Ky.Ct.App.2007) (registration a collateral consequence); Commonwealth v. Shindell, 63 Mass.App.Ct. 503, 827 N.E.2d 236, 238 (2005) (registration requirement collateral to guilty plea); In re Lyons, No. 217858, 2000 WL 33389824, at *1 (Mich.Ct.App. Dec. 19, 2000) (registration a collateral consequence); Kaiser v. State, 641 N.W.2d 900, 907 (Minn.2002) (registration regulatory rather than punitive consequence); Magyar v. State, 18 So.3d 807, 811-12 (Miss.2009) (registration collateral consequence of guilty plea); Ramsey v. State, 182 S.W.3d 655, 661 (Mo.Ct.App.2005) (registration requirement collateral because not punitive); Nollette v. State, 118 Nev. 341, 46 P.3d 87, 90 (2002) (sex offender registration requirement collateral consequence of guilty plea); State v. Costello, 138 N.H. 587, 643 A.2d 531, 534 (1994) (no added punishment imposed by sex offender registration); State v. Moore, 135 N.M. 210, 86 P.3d 635, 643 (2004) (court's failure to advise of registration and notification requirement does not render guilty plea invalid); People v. Clark, 261 A.D.2d 97, 704 N.Y.S.2d 149, 151 (N.Y.App.Div.2000) (sex offender certification a collateral consequence); Davenport v. State, 620 N.W.2d 164, 166 (N.D.2000) (registration a collateral consequence); State v. Omiecinski, No. 90510, 2009 WL 626114, at *7 (Ohio Ct.App. Mar. 12, 2009) (court not required to explain registration requirements because not punitive); Rodriguez-Moreno v. State, 208 Or.App. 659, 145 P.3d 256, 259 (2006) (counsel not constitutionally inadequate for failing to advise of collateral registration requirement); Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399, 406 (2008) (registration requirements collateral, not direct, consequences of guilty plea); Williams v. State, 378 S.C. 511, 662 S.E.2d 615, 617-18 (S.C.Ct.App.2008) (sex offender registration regulatory and non-punitive consequence); State v. Timperley, 599 N.W.2d 866, 869 (S.D.1999) (registration a collateral consequence);
        Ducker v. State, 45 S.W.3d 791, 796 (Tex.App.2001) (court’s failure to admonish defendant on collateral registration requirement harmless error); Kitze v. Commonwealth, 23 Va.App. 213, 475 S.E.2d 830, 832 (1996) (registration requirement not punishment); State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1076 (1994) (registration requirement not punitive but regulatory); State v. Bollig, 232 Wis.2d 561, 605 N.W.2d 199, 206 (2000) (registration requirement collateral and not punitive); Johnson v. State, 922 P.2d 1384, 1387 (Wyo.1996) (registration not punishment). But see People v. McClellan, 6 Cal.4th 367, 24 Cal.Rptr.2d 739, 862 P.2d 739, 745 (1993) (sex offender registration a direct consequence of plea).

      . See, e.g., State v. Bollig, 232 Wis.2d 561, 605 N.W.2d 199, 204 (2000) (noting that "[c]ourts that have determined that sex offender registration is not punitive have held that the underlying intent is public protection and safety”).

      . See, e.g., Foo v. State, 106 Hawai'i 102, 102 P.3d 346, 357 (2004) (noting that "the registration requirements of [Hawaii’s sex offender registration act] are similar to the restrictions on the right to travel or the loss of a driver’s license that are collateral consequences of a guilty plea”); State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1069 (1994) ("Registration alone imposes no significant additional burdens on offenders.”).

      . See, e.g., Smith v. Doe, 538 U.S. 84, 98, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (observing that “[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment”); Nollette v. State, 118 Nev. 341, 46 P.3d 87, 91 (2002) (noting that “traditionally, registration requirements for certain criminal offenders are viewed as a law enforcement technique and are not designed to serve traditional aims of punishment, deterrence, and retribution”).

      . See, e.g., People v. Taylor, 203 Ill.App.3d 636, 149 Ill.Dec. 115, 561 N.E.2d 393, 394 (1990) ("Any limitation of the rights of an offender proscribed by the Act is made insignificant when weighed against the protection to the public.”); State v. Seering, 701 N.W.2d 655, 668 (Iowa 2005) (finding it "difficult to conclude that the restrictions are excessive considering the special needs of children in this particular aspect of our society and the imprecise nature of protecting children from the risk that convicted sex offenders might reoffend”).

      . See Collie v. State, 710 So.2d 1000, 1008 (Fla.Dist.Ct.App.1998) (designation as sexual predator a collateral consequence); State v. Seering, 701 N.W.2d 655, 667 (Iowa 2005) (no punitive intent to sex registration requirement); State v. Myers, 260 Kan. 669, 923 P.2d 1024, 1041 (1996) (sex offender registration act not punitive but regulatory); Hyatt v. Commonwealth, 72 S.W.3d 566, 572 (Ky.2002) (sexual predator designation not punishment); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 404-05 (1995) (registration requirement not punitive but regulatory); State v. Burr, 598 N.W.2d 147, 158-59 (N.D.1999) (registration not punishment); State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570, 581 (1998) (no punitive intent underlying registration statute); State v. Matthews, 159 Or.App. 580, 978 P.2d 423, 426 (1999) (no retributive intent behind registration requirement); Commonwealth v. Gaffney, 702 A.2d 565, 569 (Pa.Super.Ct.1997) (registration provisions not intended to punish); State v. Walls, 348 S.C. 26, 558 S.E.2d 524, 526 (S.C.2002) (registration act not so punitive as to constitute a criminal penalty).

      . Tennessee Code Annotated sections 40-39-211(a) and (c) provide:
      (a) While mandated to comply with the requirements of this chapter, no sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, whose victim was a minor, shall knowingly establish a primary or secondary residence or any other living accommodation, knowingly obtain sexual offender treatment or attend a sexual offender treatment program or knowingly accept employment within one thousand feet (1,000') of the property line of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public.

      (c) While mandated to comply with the requirements of this part, no sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, whose victim was a minor, shall knowingly reside with a minor. Notwithstanding this subsection (c), the offender may reside with a minor, if the offender is the parent of the minor, unless one (1) of the following conditions applies:
      (1) The offender’s parental rights have been or are in the process of being terminated as provided by law; or
      (2) Any minor or adult child of the offender was a victim of a sexual offense or violent sexual offense committed by the offender.

      . Although this statute provides for a sentence of "community supervision for life,” Tennessee Code Annotated section 39 — 13— 525(a) (2006) provides that after a person sentenced to community supervision has been on supervision for a period of fifteen years, the person may petition the sentencing court for release from community supervision. The possibility of release from community supervision after fifteen years under subsection 525(a) does not alter our analysis.

      . We also note that the federal counterpart to Tennessee Rule of Criminal Procedure 11, Federal Rule of Criminal Procedure 11, explicitly provides that "[bjefore the court accepts a plea of guilty ... the court must inform the defendant of, and determine that the defendant understands, the following: ... any maximum possible penalty, including imprisonment, fine, and term of supei-vised re-leasel.}" Fed.R.Crim.P. 11(b)(1)(H) (emphasis added).


author: HOLLY M. KIRBY, J.,

text:
    SHELBY COUNTY, Tennessee v. James M. CREWS, Jr., L. Dow Crews, John T. Crews, Ormond Crews, III, Kate Crews Hooks, Margaret Crews Warren, Lois Woodbury, Sarah Mullins Deshazo, L. David Mullins, Thomas Phillip Mullins, Jane Howell Mullins, Betty Jo Mullins Coon, the Unknown Heirs of L.D. Mullins.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    May 20, 2009 Session.
    Nov. 23, 2009.
    Permission to Appeal Denied by Supreme Court May 12, 2010.

      Irma Merrill Stratton and Julia Beth Crews, Memphis, Tennessee, for the Respondents/Appellants, James M. Crews, Jr., L. Dow Crews, Ormond Crews, III, et al.
    Bruce D. Brooke and Brian L. Kuhn, Memphis, Tennessee, for the Petitioner/Appellee, Shelby County, Tennessee.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.

This is a condemnation case. The appel-lee county for many years had possession of a small strip of land owned by the appellant family. The county filed a petition for condemnation of the strip of land. A consent order was entered granting the county ownership and possession of the subject parcel, and a hearing was scheduled to determine the amount of compensation due. A week before the hearing, the county gave notice of voluntary dismissal. The family objected to voluntary dismissal, citing Anderson v. Smith, 521 S.W.2d 787 (Tenn.1975). The trial court permitted the county to voluntarily dismiss its petition. The family appeals. We reverse, finding that voluntary dismissal is precluded where the trial court grants the condemnor right of possession and only the issue of compensation is left to be resolved.

Facts and Procedural History

For many years, Petitioner/Appellee Shelby County, Tennessee (“County”) had possession of a small strip of land owned by Respondents/Appellants James M. Crews, Jr., L. Dow Crews, John T. Crews, Ormond Crews, III, Kate Crews Hooks, Margaret Crews Warren, Lois Woodbury, Sarah Mullins Deshazo, L. David Mullins, Thomas Phillip Mullins, Jane Howell Mullins, Betty Jo Mullins Coon, and the unknown heirs of L.D. Mullins (“Mullins family”). The County used the land as a parking area for the nearby Shelby County Penal Farm, even going so far as to pave it.

On July 30, 2004, the County filed a petition for condemnation of the strip of land, pursuant to Tennessee Code Annotated §§ 29-17-101 through 29-17-814 and Tennessee Code Annotated § 54-16-108. Pursuant to section 29-17-802, the County tendered to the court $39,500 as the amount of compensation to which the Mullins family was entitled for the subject property. The Mullins family did not contest the County’s right to acquire the property, but disputed the amount of compensation it should receive for it. Therefore, on December 14, 2004, the trial court entered a consent order that granted “all property rights and ownership in fee simple” in the property to the County; the trial court scheduled a trial on September 17, 2007 to litigate the amount of compensation.

Discovery was conducted concerning, inter alia, the history of ownership and possession of the subject property. The Mullins family’s interest in the property at issue was traced to a reversionary clause in a deed executed by their predecessor, L.D. Mullins, to the Tennessee Midland Railway Company on April 25, 1890. The record indicates a conflict as to how and when the property was returned to the Mullins family. Regardless, it is undisputed that, at the time the County filed the instant petition, the Mullins family owned the subject property.

On September 11, 2007, less than one week before the scheduled trial, the County filed a notice of voluntary nonsuit. The next day, the Mullins family filed an objection to the nonsuit. Subsequently, the Mullins family filed a motion to quash the notice of the voluntary nonsuit, arguing that the County was not entitled to voluntarily dismiss the petition because it took possession of the subject property by virtue of the consent order dated December 14, 2004. In response to this motion, the County claimed that it had taken possession of the property long before the December 2004 consent order. Specifically, the County asserted that its records showed that the County had possession of the property as early as 1991, when an expenditure of County funds was approved to pave the parcel for use as a parking lot adjacent to the Shelby County Penal Farm. The County noted further that, from 1974 until the filing of the County’s condemnation petition hi 2004, the Mullins family did not have possession of the subject parcel and paid no property taxes on-it.

On May 29, 2008, the trial court entered an order permitting the County to take a nonsuit and assessing court costs and attorney’s fees against the County. From this order, the Mullins family now appeals.

Issue on Appeal and Standard op Review

On appeal, the Mullins family argues that the trial court erred in permitting the County to voluntarily dismiss the condemnation action after a writ of condemnation had been granted, with the amount of compensation due being the only issue remaining for trial. Because this is a question of law, we review the trial court’s conclusion de novo, affording it no presumption of correctness. Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn.2004) (citing S. Constructors, Inc. v. Loudon Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001); Presley v. Bennett, 860 S.W.2d 857, 859-60 (Tenn.1993)).

Analysis

On the issue of whether the trial court erred in permitting the County to voluntarily dismiss its condemnation petition, both parties cite our Supreme Court’s decision in Anderson v. Smith, 521 S.W.2d 787 (Tenn.1975). The Mullins Family cites Anderson for the proposition that a court may not grant a nonsuit in a condemnation action after it has put the condemnor in possession of the property. The County distinguishes Anderson from the instant case on the basis that the County in this case already had actual physical possession of the property prior to filing the condemnation petition. Thus, we begin by examining the Anderson decision.

In Anderson, the condemnor, the Commissioner of the Tennessee Department of Transportation, filed a petition seeking to condemn the respondents’ property. Anderson v. Smith, 521 S.W.2d 787, 788 (Tenn.1975). The respondents filed an answer admitting that the condemnor had the authority to condemn the property but disputing the amount of compensation due. Id. at 788-89. The trial court entered an order that granted immediate possession of the property to the condemnor and authorized the clerk to issue a writ of possession if necessary to enforce the order. Id. at 789. Nine months later, the condemnor sought to voluntarily dismiss the action, over the objection of the respondent. Id. The trial court permitted the voluntary dismissal, and the respondents appealed. Id.

On appeal, the Anderson court surveyed a handful of cases, as well as Rule 41.01 of the Tennessee Rules of Civil Procedure. It then synthesized the law from these authorities into the following:

the condemnor has the right to take a nonsuit at any time prior to the case being submitted to the trier of fact for decision, unless the condemner has taken possession of the property under court order issued under circumstances leaving nothing to be decided by the court except the compensation to be paid the owner for the land taken.

Id. at 791. Applying this principle to the facts before it, the Anderson court held that the trial court erred in permitting the voluntary dismissal, because the condem-nor had obtained an order of possession and the only remaining issue was the compensation due to the respondent. Id. Notably, the Anderson court implicitly found that the question of whether the condem-nor had actually taken physical possession was irrelevant, because the effect of the order of possession was “to deprive the owner of the complete and free use of the land at least” during the pendency of the case. See id.

In the case at bar, as in Anderson, the condemnor County filed a condemnation petition, and the respondents did not challenge the County’s right to condemn, but challenged only the amount of compensation due. In the case at bar, as in Anderson, the trial court entered an order that granted the condemnor ownership and the right of possession.

However, the County argues that the instant case is distinguishable from Anderson in that, in this case, the condem-nor County had actual physical possession of the property prior to the trial court’s order. Thus, the County argues, Anderson is inapplicable because the County did not take possession of the property “under court order.” Id.

While the County had actual physical possession of the property at issue prior to the filing of the condemnation action, the record shows that its possession was bare: the County does not assert that it had title or legal right to possession prior to the entry of the trial court’s consent order of December 14, 2004. Certainly, bare possession can ripen into legal possession in a number of ways such as adverse possession or, in this case, condemnation. Harton v. Lyons, 97 Tenn. 180, 36 S.W. 851, 854-55 (1896) (quoting Marr v. Gilliam, 41 Tenn. (1 Cold.) 488, 507, 508 (Tenn.1860)) (“[Ajctual possession ... may, by length of time and negligence of him who hath the right, by degrees, ripen into perfect and indefeasible title.”). Indeed, in this appeal, the County argues that the seven year adverse possession statute, Tennessee Code Annotated § 28-2-105, is applicable in light of the County’s longstanding possession of the subject property. The County also contends that the Mullins family is barred, under Tennessee Code Annotated § 28-2-110, from asserting any interest in the subject property because they did not pay taxes on it for more than twenty years. These statutes may provide the basis for the County to obtain the legally-recognized right to own and possess the property, free of any claim by the Mullins Family, but the County did not actually have this legally-recognized right until entry of the December 2004 consent order granting the County “all property rights and ownership in fee simple” of the subject property. The right of possession is distinct from actual physical possession, which the County already enjoyed. See Harton, 36 S.W. at 854-55 (Tenn.1896) (quoting Marr v. Gilliam, 41 Tenn. (1 Cold.) 488, 507, 508 (Tenn.1860)) (discussing the “first degree of title ... bare possession or actual occupation of land, without any apparent right, or pretense of right, to hold and continue such possession”); Zenner v. King, No. 02A01-9109-CH-00197, 1992 WL 151441 at *6 (Tenn.Ct.App. July 2, 1992), no perm. app. (drawing distinction between right to possession and actual possession). Thus, the December 2004 order in fact gave the County something it did not already have. Given that the Anderson court found that “the authority [the condemnor] actually exercised over the property” was irrelevant because “the effect of the order was to deprive the owner of the complete and free use of the land,” the Anderson court’s discussion of “tak[ing] possession of the property under court order” referred to gaining the legal right to possession of the property pursuant to a court order, in addition to gaining physical occupation. Anderson, 521 S.W.2d at 791.

Thus, Anderson precludes voluntary dismissal by the County after the trial court granted it ownership and the legal right of possession, leaving only the issue of compensation to be decided. Accordingly, we must conclude that the trial court erred in permitting the County to voluntarily dismiss the condemnation petition. This holding pretermits all other issues on appeal.

Conclusion

The decision of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion. The costs of this appeal are taxed to the Appellee Shelby County, Tennessee, for which execution may issue if necessary.

      . The original petition sought to condemn both the small strip of land known as the Mullins Station parcel and a larger railroad easement parcel believed to be owned by the Mullins family; however, upon discovery that the Mullins family may not have been the owners of the railroad easement parcel, the County amended the petition to limit condemnation to the Mullins Station parcel. Amendment of the petition is not an issue on appeal.

      . In a concurrent quiet title action between the members of the Mullins family, the chancery court entered an order finding that Or-mond Crews, III, Kate Crews Hooks, Margaret Crews Warren, L. Dow Crews, James M. Crews, Jr., and John Crews were the only owners of the subject property. This order is not an issue on appeal.

      . In its petition, the County asserted that the property was returned to the Mullins family by virtue of the execution of a disclaimer of title document by the Louisville and Nashville Railroad Company on or about March 18, 1974. In response to this allegation, the Mullins family asserted that a chancery court order on March 18, 2003 in a prior lawsuit between the Mullins family and CSX Transportation Incorporated granted reversion to the family.

      . The statute provides:
      Any person holding any real estate or land of any kind or any legal or equitable interest therein, and such person and those through whom such person claims having been in adverse possession of same for seven (7) years, where the real estate is held and claimed by such person or those through whom such person claims by a conveyance, devise, grant, a decree of a court of record, or other assurance of title purporting to convey an estate in fee, and such conveyance, devise, grant, or other assurance of title, has been recorded in the register's office of the county in which the land lies for a period of thirty (30) years or more or such decree entered on the minutes of such court for a period of thirty (30) years or more, is vested with an absolute and indefeasible title to such real estate or interest therein.
      T.C.A. § 28-2-105 (2000).

      . This statute provides:
      (a) Any person having any claim to real estate or land of any kind, or to any legal or equitable interest therein, the same having been subject to assessment for state and county taxes, who and those through whom such person claims have failed to have the same assessed and to pay any state and county taxes thereon for a period of more than twenty (20) years, shall be forever barred from bringing any action in law or in equity to recover the same, or to recover any rents or profits therefrom in any of the courts of this state.
      T.C.A. § 28-2-110(2000).


author: J. STEVEN STAFFORD, J.,

text:
    Gena Maglio CHIOZZA v. Christopher Alexander CHIOZZA.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Oct. 28, 2009 Session.
    Nov. 20, 2009.
    Permission to Appeal Denied by Supreme Court May 20, 2010.

      Christopher Alexander Chiozza, Memphis, Tennessee, pro se.
    Aubrey L. Brown, Jr. and Leigh-Taylor White, Memphis, Tennessee, for the Ap-pellee, Gena Maglio Chiozza.
   OPINION

J. STEVEN STAFFORD, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY, J., joined.

This case arises from a post-divorce motion to modify child support to include payment of the minor children’s private school tuition. Because Appellant/Father’s brief fails to comport with Tenn. R.App. P. 27 and Rule 6 of the Court of Appeals, and because Appellant/Father has failed to comply with this Court’s order to supplement the appellate record with necessary documents, we dismiss the appeal. Mother/Appellee has requested attorney’s fees accrued in defense of this appeal. Pursuant to Tenn.Code Ann. § 27-1-122, we exercise our discretion and award Ms. Chiozza her fees, and remand for the determination of the amount of those fees. Dismissed and remanded.

Appellant Christopher Alexander Chioz-za and Appellee Gena Maglio Chiozza were divorced by final decree entered on April 25, 2006. Two children (d.o.b. March 25, 2000, and March 13, 2002) were born to the marriage. A Permanent Parenting Plan was entered by the trial court, which plan designated Ms. Chiozza as the primary residential parent. Mr. Chiozza was granted visitation, and was ordered to pay child support in the amount of $1,238.00 per month. The amount of child support was calculated pursuant to the Tennessee Child Support Guidelines, and was based upon Mr. Chiozza’s monthly gross income of $8,316.66, and Ms. Chiozza’s monthly gross income of $2,204.16. The parenting plan also provides, in relevant part, that:

[T]he child support shall be recalculated every year by May 1st and modified accordingly after all yearly income information has been exchanged regardless of the presence or absence of a significant variance. Nothing herein shall be deemed to preclude either party in any subsequent hearing for modification of child support from contending that the other is underemployed or unemployed, etc. Both parties agree to execute a release if requested by the other party to obtain income information directly from the other’s employment.

To establish this, the parties were to exchange annual income information by April 15th of each year. Uncovered medical expenses incurred on behalf of the minor children were to be divided equally. Although the parenting plan provided that disagreements about the plan, or requests to modify same, must be submitted to mediation, “financial support issues including child support, health and dental insurance, uncovered medical and dental expenses, and life insurance,” were specifically excluded from this requirement.

At the time of the divorce, the parties’ oldest child was attending Saint Francis, a private Catholic school in Memphis. The parties’ youngest child was enrolled in Germantown Methodist, a private preschool in Memphis. The parties were essentially splitting the cost of private school tuition. Mr. Chiozza was paying the youngest child’s tuition at Germantown Methodist, which was approximately $3,600 per year. Ms. Chiozza was paying the oldest child’s tuition at Saint Francis. According to the record, this arrangement continued for some time after the divorce.

On March 15, 2007, Ms. Chiozza petitioned the court to modify the final decree of divorce and, specifically, the permanent parenting plan. On March 28, 2007, the court entered an order of reference, referring the petition to the Divorce Referee for hearing. On September 1, 2007, the trial court entered an order confirming the ruling of the Referee. Specifically, the court held that:

b. The average gross monthly income of [Mr. Chiozza] is $9,441.00. The average gross monthly income of Mother is $3,333,33.
f. The minor children attend private school at St. Francis, at an average monthly tuition cost to Mother of $1,175.00. Under the circumstances presented, it is appropriate that Father pay for one-half (50%) of said monthly tuition, $587.50 per month, and that the same be included in the final child support order as a deviation from the guidelines.
h. In consideration of the foregoing, Father’s monthly cash child support obligation for the parties’ two (2) minor children should be increased to $2,331,-00, effective April 1, 2007.
The retroactive increase in child support results in a child support arrearage for the period of April 1, 2007, through August 31, 2007, of $5,465.00, and the same shall be and hereby is reduced to judgment and Father shall pay the same to Mother upon entry of this Order....

Prior to this order being entered, Mr. Chiozza filed a motion excepting to the Referee’s ruling and an appeal of the order.

On or about September 24, 2007, Ms. Chiozza filed a petition for citation for civil and criminal contempt against Mr. Chioz-za. Therein, Ms. Chiozza avers that:

Father has willfully failed and refused to abide by the terms and conditions of [the September 1, 2007] Order Confirming Ruling of Divorce Referee. Specifically, Father has willfully failed and refused to pay ... child support as ordered.... From August 28, 2007, the date of the hearing before the Divorce Referee, through the date of execution of this Petition, Father has only paid to Mother a total of $620.00 (on September 15, 2007), and he is accordingly in arrears in his child support obligation to Mother in the total amount of $7,076.00....

On September 26, 2007, the court entered an application and order for wage assignment directing Mr. Chiozza’s employer to begin withholding his monthly child support, and to pay it to the Central Child Support Receipting Unit for disbursement to Ms. Chiozza. On November 2, 2007, Ms. Chiozza filed an amendment to her petition for citation for civil and criminal contempt. Ms. Chiozza’s motion was heard on August 15, 2008. By Order of August 28, 2008, the court found Mr. Chiozza to be in contempt of court for willful failure to pay his child support ar-rearage of $7,517.33. The court gave Mr. Chiozza until August 29, 2008 to pay. Mr. Chiozza paid the arrearage and, by consent order of September 4, 2008, the garnishment was lifted.

On September 5, 2008, the court heard Mr. Chiozza’s motion excepting to the Referee’s ruling, and Ms. Chiozza’s application for attorney’s fees and expenses. By Order of September 25, 2008, the court held that:

2.Pursuant to Rule 1240-2-4-.07(2)(d) of the Tennessee Child Support Guidelines, the children’s private school tuition is an extraordinary expense which the Court may divide between the parties and add to Father’s presumptive child support as a deviation. The Court finds that the minor children of the parties were enrolled in private school during the marriage and have continued to be enrolled in private school since that time, that during their separation prior to the divorce the parties were essentially splitting the cost of the children’s private school tuition and expenses, that Father has, at the very least, acquiesced in the children’s enrollment in private school and has actively participated in their school activities, and that there is no contention that Father can not afford to pay for a portion of the children’s private school tuition. Accordingly, it is appropriate that Father pay for one-half (50%) of the children’s average monthly tuition amount and that the same be included in the final child support order and added to the presumptive child support as a deviation from the guidelines as set forth in the Child Support Worksheet attached hereto.
Effective October 1, 2008, Father’s monthly cash child support obligation to Mother shall be and hereby is increased to $2,428.00 per month....

In addition, the court ordered Mr. Chiozza to pay Ms. Chiozza’s attorney fees in the amount of $10,750.00. Mr. Chiozza filed a notice of appeal on October 24, 2008. He raises seven issues for review as stated in his brief:

1. Whether the court erred in arbitrarily entering an order requiring the Father to pay for private school tuition when the petition to modify child support did not pray for such action.
2. Whether the court erred in ruling that the Father “acquiesced” [to] the children’s ... private school by not objecting.
3. Whether the court erred in not remanding the case to mediation [as] set forth in the permanent parenting plan.
4. Whether the court abused its discretion by making an award of attorneys’ fees to the Mother when she in fact [ ] was the party who breached the contract.
5. Whether the court abused its authority in modifying child support to include private school when the original child support order did not provide for it.
6. Whether the court erred in hearing the modification of child support prematurely as May 1st each year was to be the date, per the MDA.
7. Whether the court was mislead by Mr. Brown [attorney for Ms. Chiozza] in his statement of the facts.

In the posture of Appellee, Ms. Chiozza raises the following, additional issues as stated in her brief:

I. Whether Father has waived the issues raised in his appeal because he has failed to make appropriate references to the record throughout his brief, he has failed to set forth all the facts relevant to the issues he presents for review, he has failed to cite to any legal authority in support of his argument, and he has failed to otherwise comply with the applicable provisions of Tennessee Rule of Appellate Procedure 27 and Rule 6 of the Court of Appeals of Tennessee.
II. Whether Father has waived his right to appeal because he has failed to comply with Tennessee Rule of Appellate Procedure 24 and he has failed to file an adequate transcript or record in the Appellate Court.

We will first address Ms. Chioz-za’s issues concerning alleged shortcomings in Mr. Chiozza’s appellate brief. We first note that we are cognizant of the fact that Mr. Chiozza is proceeding pro se. While a party who chooses to represent himself or herself is entitled to the fair and equal treatment of the courts, Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn.Ct.App.2000) (citing Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn.Ct.App.1997)), “[p]ro se litigants are not ... entitled to shift the burden of litigating their case to the courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn.Ct.App.2000) (citing Dozier v. Ford Motor Co., 702 F.2d 1189, 1194-95 (D.C.Cir.1983)). Pro se litigants must comply with the same substantive and procedural law to which represented parties must adhere. Hodges, 43 S.W.3d at 920-21.

Concerning the contents of appellate briefs, Tenn. RApp. P. 27 provides, in pertinent part, as follows:

(а) Brief of the Appellant. — The brief of the appellant shall contain under appropriate headings and in the order here indicated:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages in the brief where they are cited;
(3) A jurisdictional statement in cases appealed to the Supreme Court directly from the trial court indicating briefly the jurisdictional grounds for the appeal to the Supreme Court;
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the case, the course of proceedings, and its disposition in the court below;
(б) A statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument, setting forth the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on;
(8) A short conclusion, stating the precise relief sought.

(Emphasis added). Likewise, Rule 6 of the Court of Appeals of Tennessee provides, in pertinent part, as follows:

(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous action of the trial court which raises the issue and a statement by the appellee of any action of the trial court which is relied upon to correct the alleged error, with citation to the record where the erroneous or corrective action is recorded.
(2) A statement showing how such alleged error was seasonably called to the attention of the trial judge with citation to that part of the record where appellant’s challenge of the alleged error is recorded.
(3) A statement reciting wherein appellant was prejudiced by such alleged error, with citations to the record showing where the resultant prejudice is recorded.
(4) A statement of each determinative fact relied upon with citation to the record where evidence of each such fact may be found.
(b) No complaint of or reliance upon action by the trial court will be considered on appeal unless the argument contains a specific reference to the page or pages of the record where such action is recorded. No assertion of fact will be considered on appeal unless the argument contains a reference to the page or pages of the record where evidence of such fact is recorded.
(c) Where less than the full record is sufficient to convey a fair, accurate and complete account of the issues on appeal (as set out in Tenn. R.App. P. 24) and counsel for one of the parties desires to file a complete transcript of the proceeding in this Court, counsel may do so. However, this Court may require that party or counsel to bear the expense of the unnecessary part of the transcript and to furnish an appendix as provided in Tenn. R.App. P. 28.
(d)Extensions of time in excess of those provided for in Tenn. R.App. P. 29(a) will not be liberally granted by this Court. Any request for such extension shall be in the form of a written motion setting forth the reasons for the extension sought. Such motion shall be filed or presented to a member of this Court within the time initially allowed by Tenn. R.App. P. 29(a) for the doing of the act for which an extension is sought.

In reviewing Mr. Chiozza’s brief, we agree with Ms. Chiozza’s contention that it does not comply with the foregoing rules. Starting with the “Table of Authorities,” Mr. Chiozza’s brief lists only one case (cited as “Lee Brown vs. Kelly Sue Brown (Tenn.2006)”); however, from our review, this case is not actually cited in the brief. This is a violation of Tenn. R.App. P.27(a)(2). Tenn. R.App. P. 27(a)(5) directs that the brief shall contain a statement of the case, which is to “briefly [describe] the nature of the case, the course of proceedings, and its disposition in the court below.” Moreover, Tenn. R.App. P. 27(a)(6) requires the statement of the case to contain appropriate references to the record. Rules 6(a) and 6(b) of the Court of Appeals require citations to the record indicating where evidence of each determinative fact relied upon may be found. Not only does Mr. Chiozza’s “Statement of the Case” fail to fully describe the facts and proceedings, but it also fails to include citations to the record.

In reviewing the “Statement of the Facts,” we find that it consists of one paragraph, which contains one citation to the appellate record. Even giving Mr. Chiozza every benefit, this “Statement of the Facts” does not set forth all facts relevant to the issues presented, nor does it contain the necessary citations to the record. Specifically, Mr. Chiozza has failed to include any facts regarding the costs of the children’s private school tuition, or the parties’ respective incomes. In fact, Mr. Chiozza does not even indicate the amount to which his monthly child support obligation was raised.

The “Argument” section of Mr. Chiozza’s brief does nothing to correct the foregoing errors. While it does contain some citations to the record, it does not include references to volume and page. Moreover, in contravention of the requirements set out in Tenn. R.App. P. 27(a)(7) and Rules 6(a) and 6(b) of the Court of Appeals, the argument section contains no citations to legal authority in support of his allegations. Our Courts have “routinely held that the failure to make appropriate references to the record and to cite relevant authority in the argument section of the brief as described by Rule 27(a)(7) constitutes a waiver of the issue[s] [raised].” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn.Ct.App.2000). In Bean, we went on to hold that “an issue is waived where it is simply raised without any argument regarding its merits.” Id. at 56; see also Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn.Ct.App.2006) (holding that the failure of a party to cite to any authority or to construct an argument regarding his or her position on appeal constitutes waiver of that issue). As we stated in Neiv-comb, a “skeletal argument that is really nothing more than an assertion will not properly preserve a claim.” Newcomb, 222 S.W.3d at 400. It is not the function of this Court to verify unsupported allegations in a party’s brief or to research and construct the party’s argument. Bean, 40 S.W.3d at 56.

Despite the fact that Mr. Chioz-za’s brief is woefully inadequate, there are times when this Court, in the discretion afforded it under Tenn. R.App. P. 2, may waive the briefing requirements to adjudicate the issues on their merits. This is especially true in cases involving domestic relations where the interests of children are involved. However, in order for this Court to properly review the trial court’s actions, the record must be in a proper posture to provide us a meaningful review. This Court’s review is limited to the appellate record and it is incumbent upon the appellant to provide a record that is adequate. Jennings v. Sewell-Allen Piggly Wiggly, 173 S.W.3d 710 (Tenn.2005). Here, Mr. Chiozza has failed to provide this Court with an accurate record. A brief discussion of the parties’ filings with this Court is necessary to explain the shortcomings of the appellate record.

Mr. Chiozza’s brief was filed on March 26, 2009. On April 9, 2009, Ms. Chiozza filed a motion to dismiss the appeal and for an extension of time to file her brief. Therein, Ms. Chiozza first asserted that Mr. Chiozza had waived the issues raised in his appeal because he allegedly failed to make appropriate references to the record in his brief, failed to set forth all relevant facts, failed to cite to any legal authority, and otherwise failed to comply with Tennessee Rule of Appellate Procedure 27 and Rule 6 of the Court of Appeals.

On May 11, 2009, this Court entered an Order, which states, in relevant part:

[Ms. Chiozza’s] ... motion to dismiss ... asserts that [Mr. Chiozza’s] brief fails to comply with Tennessee Rules of Appellate Procedure 27(a) and Rule 6 of the Court of Appeals. Moreover, [Ms. Chiozza] requested an extension of time to file her brief, in the event the Court denied the motion. [Mr. Chiozza] filed a response in opposition to the ... motion and finally, [Ms. Chiozza] filed her brief on April 29, 2009.
Upon our review of the motions and responses filed, as well as the briefs filed by the respective parties, it appears that the appellate record may not be complete at this time. Specifically, [Ms. Chiozza] asserts in her brief that the transcripts of the trial proceedings are not complete and that necessary exhibits are missing.... [T]he Court believes that the interests of justice dictate that this matter be remanded to the trial court for supplementation and correction of the appellate record.
Consequently, upon the Court’s own motion, this matter is i’emanded to the trial court and the appellant, Chris Chiozza, shall have fifteen (15) days from the entry of this Order to submit to the trial court any supplemental materials necessary to create a record which accurately discloses what occurred in the trial court. The appellee, Gena M. Chiozza, shall then have fifteen (15) days in which to file any objections to the record....
Upon filing of a certified, supplemental record ... Chris Chiozza may file an amended brief within fifteen (15) days.... Gena Chiozza shall have twenty (20) days in which to file an amended brief....

On May 26, 2009, Mr. Chiozza filed, with the clerk of the trial court, a collection of documents titled “Exhibits to Supplemental Record of Appeal.” Although Mr. Chiozza had marked each of the eight documents as an “exhibit,” none of the documents had, in fact, been introduced as exhibits in any of the hearings before the trial court. Nonetheless, the clerk of the trial court certified the documents and transmitted them to the Clerk of the Court of Appeals, where they were filed on June 2, 2009 as “Vol. 5” of the appellate record. No other supplemental materials were filed.

On June 4, 2009, Ms. Chiozza filed, with the trial court, her objection to the materials that were submitted by Mr. Chiozza. Ms. Chiozza’s objection was heard on June 12, 2009. On June 15, 2009, the trial court entered an Order sustaining Ms. Chiozza’s objection to the supplemental materials filed by Mr. Chiozza, and redacted these materials from the appellate record, stating that “none of the supplemental materials submitted by Appellant and marked by him as ‘Exhibits’ were actually introduced as exhibits to any of the hearings in this matter, they are not properly part of the record on appeal.... ” The trial court also found that Mr. Chiozza had “failed to file any appropriate additional materials for inclusion in the appellate record, and he has therefore failed to comply with the May 11, 2009 Order of the Court of Appeals.” Consequently, the trial court ordered that the “bound documents entitled ‘Exhibits to Supplemental Record of Appeal’ filed in this court on May 26, 2009, and in the Court of Appeals on June 2, 2009, and heretofore designated as ‘Vol. 5’ of the record, be redacted and stricken from the record in their entirety.” Ms. Chiozza’s objection, and the trial court’s order sustaining the objections were transmitted to this Court, where they were filed on June 26, 2009, as a supplement to the appellate record.

As set out above, this Court’s May 11, 2009 Order gave Mr. Chiozza fifteen days (or until July 13, 2009) to file an amended brief. However, as discussed in detail above, Mr. Chiozza failed to avail himself of this opportunity to present this Court with a brief that complies with the requirements set forth in Tenn. R.App. P. 27 and Rule 6 of the Court of Appeals. More importantly, however, Mr. Chiozza did not succeed in supplementing the appellate record with the necessary documents. Consequently, at present, the case is in the same posture it was when this Court entered its May 11, 2009 Order — i.e., we have an inadequate brief and an incomplete record.

Tenn. R.App. P. 24 provides, in pertinent part, as follows:

Content and Preparation of the Record. — (a) Content of the Record. — The record on appeal shall consist of: (1) copies, certified by the clerk of the trial court, of all papers filed in the trial court except as hereafter provided; (2) the original of any exhibits filed in the trial court; (3) the transcript or statement of the evidence or proceedings, which shall clearly indicate and identify any exhibits offered in evidence and whether received or rejected; (4) any requests for instructions submitted to the trial judge for consideration, whether expressly acted upon or not; and (5) any other matter designated by a party and properly includable in the record as provided in subdivision (g) of this rule.
(b) Transcript of Stenographic or Other Substantially Verbatim Recording of Evidence or Proceedings. — If a stenographic report or other contemporaneously recorded, substantially verbatim recital of the evidence or proceedings is available, the appellant shall have prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal. Unless the entire transcript is to be included, the appellant shall, within 15 days after filing the notice of appeal, file with the clerk of the trial court and serve on the appellee a description of the parts of the transcript the appellant intends to include in the record, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. If the - appellee deems a transcript of other parts of the proceedings to be necessary, the appel-lee shall, within 15 days after service of the description and declaration, file with the clerk of the trial court and serve on the appellant a designation of additional parts to be included....
(c) Statement of the Evidence When No Report, Recital, or Transcript Is Available. — If no stenographic report, substantially verbatim recital or transcript of the evidence or proceedings is available, the appellant shall prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement should convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant or the appellant’s counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. Proof of service shall be filed with the clerk of the trial court with the filing of the statement. If the appellee has objections to the statement as filed, the appellee shall file objections thereto with the clerk of the trial court within fifteen days after service of the declaration and notice of the filing of the statement. Any differences regarding the statement shall be settled as set forth in subdivision (e) of this rule.

Generally, this Court “is precluded from addressing an issue on appeal when the record fails to include relevant documents.” State v. Zirkle, 910 S.W.2d 874, 884 (Tenn.Ct.Crim.App.1995). Without an adequate transcript or statement of the evidence, “this Court must presume that every fact admissible under the pleadings was found or should have been found in the appellee’s favor.” McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn.Ct.App.1989). The failure of the appellant to ensure that an adequate transcript or record on appeal is filed in the appellate court constitutes an effective waiver of the appellant’s right to appeal. See, e.g., In re Estate of Tipps, 907 S.W.2d 400, 402 (Tenn.1995).

In the case at bar, we find the record to be deficient in the following respects:

1. There is no transcript or statement of the evidence adduced at the hearing before the Divorce Referee on August 28, 2007;
2. The exhibits introduced at the August 28, 2007 hearing before the Referee are not included.
3. There is no transcript or statement of the evidence adduced at the August 15, 2008 appeal of the Referee’s ruling. The transcript provided includes only opening statements of Counsel [which is not considered evidence], and the trial court’s ruling. However, all of the testimony and evidence presented at that hearing is excluded from the record.
4. The exhibits introduced at the August 15, 2008 hearing are not in the record.
5. None of the exhibits that were introduced into evidence at the final hearing before the trial court on September 5, 2008 are included. According to Ms. Chiozza’s brief, these exhibits include copies of Ms. Chiozza’s checks evincing payment of the private school tuition, and the affidavit of Ms. Chiozza’s attorney evincing the total amount of fees incurred by Ms. Chiozza.

Tenn. R.App. P. 24(b) provides, in relevant part, that, “[u]nless the entire transcript is to be included, the appellant shall, within 15 days after filing the notice of appeal, file with the clerk of the trial court and serve on the appellee a description of the parts of the transcript the appellant intends to include in the record, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal.” There is no evidence that Mr. Chiozza complied with this requirement.

From the totality of the circumstances, we conclude that Mr. Chiozza has failed to avail himself of the opportunity given by this Court in its May 11, 2009 Order to either amend his brief, or to supplement the record with the necessary documents. His failure to do so puts this Court in the position of being unable to conduct a thorough and proper review of the trial court’s actions. Based upon his failure to comply with Tenn. R.App. P. 27, Rule 6 of the Court of Appeals, and Tenn. R.App. P. 24, we conclude that Mr. Chiozza has waived the issues raised, and the appeal should be dismissed.

In her brief, Ms. Chiozza contends that she should be awarded attorney’s fees because Mr. Chiozza’s appeal was frivolous. Tenn.Code Ann. § 27-1-122 provides:

When it appears to any reviewing court that the appeal from any court of record was frivolous or taken solely for delay, the court may, either upon motion of a party or of its own motion, award just damages against the appellant, which may include but need not be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result of the appeal.

The decision to award damages for the filing of a frivolous appeal rests solely in the discretion of this Court. Whalum v. Marshall, 224 S.W.3d 169, 180-81 (Tenn.Ct.App.2006) (citing Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn.1985)). “Successful litigants should not have to bear the expense and vexation of groundless appeals.” Id. at 181 (quoting Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn.1977)). An appeal is frivolous when it has “no reasonable chance of success” or is “so utterly devoid of merit as to justify the imposition of a penalty.” Id. (citing Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn.1978); Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn.Ct.App.1999)). We exercise our discretion under this statute sparingly so as not to discourage legitimate appeals. Id. In the instant case, given the state of the record and the state of Mr. Chiozza’s appellate brief, we can only conclude that his appeal had “no reasonable chance of success.” Whalum, 224 S.W.3d at 180-81. Under these circumstances, we find that Mother is entitled to her reasonable fees and costs on appeal, and we remand the case to the trial court to determine the amount of the fee award.

For the foregoing reasons, we dismiss the appeal, and remand the case to the trial court to determine the amount of the attorney’s fee award to Ms. Chiozza. Costs are assessed to the Appellant, Christopher Alexander Chiozza, and his surety.

      . Tenn. R.App. P. 2 provides, in relevant part, that:
      For good cause, including the interest of expediting decision upon any matter, the Supreme Court, Court of Appeals, or Court of Criminal Appeals may suspend the requirements or provisions of any of these rules in a particular case on motion of a party or on its motion and may order proceedings in accordance with its discretion.