State v. George Pilkinton ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF
TENNESSEE
AT NASHVILLE FILED
JULY SESSION, 1999 October 29, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A.
NO.
01C01-9809-CC-00368
)
Appellee, )
) GILES COUNTY
V. )
)
) HON. JUDY G. CALLAHAN, JUDGE
GEORGE SHERRILL PILKINTON, )
)
Appe llant. ) (VEHIC ULAR H OMIC IDE)
FOR THE APPELLANT: FOR THE APPELLEE:
HAL HARDIN PAUL G. SUMMERS
Counsel for Appellant At Trial Attorney General & Reporter
ROG ER T. M AY KIM R. HELPER
Counsel for Appellant At Trial Assistant Attorney General
219 Second Avenue N., Suite 300 2nd Floor, Cordell Hull Building
Nashville, TN 37201-1601 425 Fifth Avenue North
Nashville, TN 37243
M. ANDREW HOOVER T. MICHAEL BOTTOMS
Counsel for Appellant On Appeal District Attorn ey Ge neral
TIMOTHY P. UNDERWOOD ROBERT C. SANDERS
Counsel for Appellant On Appeal Assistant District Attorney General
134 North Second Street
Pulaski, TN 38478 RICHARD DUNAVANT
Assistant District Attorney General
252 North Military Avenue
P.O. Box 459
Lawrenceburg, TN 38464
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
On October 14, 1996, the Giles County Grand Jury indicted Defendant George
Sher ill Pilkinton for aggravated vehicular homicide. On March 16, 1998, Defendant
pled guilty to vehicular homicide pursuant to a negotiated plea agreement. Following
a senten cing hea ring on M ay 5, 199 8, the trial court sentenced Defendant as a
Range I standard offende r to a term of eight years in the Tennessee Department of
Correction. On May 21, 1998, Defendant filed a motion to set aside the sentencing
hearing and/or vacate the plea agreement. The trial court conducted a hearing on
the motion on August 8, 1998, and the trial court denied the motion on August 11,
1998. Defendant challenges his conviction, raising the following issues:
1) whether the trial court erred when it denied his motion to suppress blood
sample evidence; and
2) whether the trial court erred when it denied his motion to set aside the
senten cing hea ring and /or vacate the plea a greem ent.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. BACKGROUND
Defendant and the State stipulated to the following facts in the petition to enter
a plea of guilty:
On July 23, 1996, the de fendant, Ge orge She rill Pilkinton, while working on
his farm in Giles County, Tennessee, consumed some alcoholic beverages
during the day, between 2:30 and 5 p.m . At or about 5 p.m . he left his farm
and drove his pickup truck down Pigeon Ro[o]st Road and struck a mo torcycle
head-on. The driver of the m otorcy cle, Du stin Clark, was instantly killed. The
point of impac t betwe en the two veh icles w as ove r the ce nter of th e road in
the direction that the defendant was driving. Appro ximately 3 hours thereafter,
a blood sample was taken. The TBI lab found it negative for marijuana but .06
positive for alco hol. In February the blood sample was at the request of the
District Attor ney, teste d by a Pe nnsylvan ia lab for m arijuana.
After he was indicted, Defendant filed a motio n to su ppres s the b lood s amp le
eviden ce tha t was o btaine d in this case. In his motion, Defendant argued that the
evidence shou ld be suppressed because the blood sample was destroyed before the
defense expert was able to perform inde penden t testing. The trial court
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subs eque ntly denied the motion after finding that there was no proof that
independent testing of the blood sample by the defense would have produced any
exculpatory evidence.
Following the denial of his motion to suppress, Defendant entered into plea
negotiations with the State. The parties subsequently entered into an agreement
whereby Defendant agreed to plead guilty to vehicular homicide with a sentence of
eight years in return for the State’s agreement to dismiss all other charges. The
agreement also provided that the trial court would conduct a sentencing hearing to
determine how the sentence would be served. In addition, the agreement provided
that neither party would call any witnesses during the sentencing hearing.
During his argument at the sentencing hearing, defense counsel stated that
Janice Clark, the victim’s mother, wanted Defendant “to serve somewhere between
the maximum and the minimum sentence”, but she was opposed to full probation.
Shortly thereafter, the prosecutor informed the court that Ms. Clark wanted to be
heard because defense counsel had inferred that she was amenable to something
less than an eight year sentence while, in fact, she was adamant that Defendant
shou ld receive an eight year sentence. Defense counsel then objected to allowing
Ms. Clark to make a statement on the ground that permitting her to testify would be
a violation o f the plea a greem ent.
The trial court then asked the prosecutor whether the State wanted Ms. Clark
to testify or whether it was Ms. Clark’s ow n idea. The prosecutor responded that he
would prefer that Ms. Clark did not testify, but he believed that she had a right to do
so. The tr ial cou rt subs eque ntly ruled that, as the victim’s mother, Ms. Clark had a
right to make a statement. The trial court also ruled that Ms. Clark wa s not a pa rty
to the agreement and thus, the agre emen t did not affe ct her right to testify. The trial
court the n called M s. Clark to make a statem ent.
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Ms. Clark subs eque ntly stated that she believed that Defendant should suffer
the consequences of his actions, even though his family would suffer if he was
incarcerated. The trial court then asked Ms. Clark three questions about whether
she was aware of various sentencing provisions governing release eligibility and Ms.
Clark essen tially stated tha t she did n ot want D efenda nt to be able to jus t “walk[]
away”. Neither the pros ecutor nor de fense coun sel asked M s. Clark any questions.
II. DENIAL OF THE SUPPRESSION MOTION
Defendant contends that the trial court erred when it denied his motion
to supp ress b lood s amp le evide nce. W e con clude that D efend ant ha s waive d this
issue.
“The genera l rule is that a p lea of guilty waives all non-jurisdictional defects,
procedural defects, and constitutional infirmities.” State v. Gross, 673 S.W.2d 552,
553 (Tenn. Crim. App. 1984). However, Rule 37(b)(2)(i) of the Tennessee Rules of
Crim inal Procedure provides for an appeal following a guilty plea in limited situations.
Rule 37(b)(2)(i) states:
(b) . . . An ap peal lie s from any ord er or jud gme nt in a cr imina l proceeding
where the law provides for such appeal, and from any judgment of conviction:
....
(2) upon a plea of g uilty or nolo c ontend ere if:
(i) defendant entered into a p lea ag reem ent un der R ule 11(e) but
explicitly reserved with the consent of the State and of the court
the right to appeal a certified question of law that is dispositive of
the case ;
Tenn R. Crim . P. 37(b)(2 )(i).
The Tenn essee Supre me C ourt set forth the requ iremen ts for pursuing an
appeal pursuant to Rule 37(b)(2)(i) in State v. Preston, 759 S.W.2d 647 (Tenn.
1988). The supreme court stated that
This is an approp riate time for this Cou rt to make explicit to the bench and bar
exactly what the ap pellate courts will hereafter require as prerequisites to the
consideration of the merits of a questio n of law ce rtified pursu ant to
Tenn.R.Crim.P. 37(b)( 2)(i) or (iv). Regardless of what has appeared in prior
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petitions, orders, colloquy in open court or otherwise, the final order or
judgment from which the time begins to run to pursue a T.R.A.P. 3 appeal
must contain a statement of the dispositive certified question of law reserved
by defendant for appellate review and the question of law must be stated so
as to c learly identify the scope and the limits of the legal issue res erved. . . .
Also, the order must state that the certified question was expressly reserved
as part of a plea agreement, that the State and the trial judge consented to the
reservation and that the State and the trial judge are of the opinion that the
question is dispositive of the cas e. Of cou rse, the bu rden is on defend ant to
see that the se pre requis ites are in the final order and that the record brought
to the appellate courts contains all of the proceedings below that bear upon
whether the ce rtified qu estion of law is dispositive and the merits of the
question certified. No issue beyond the scope of the ce rtified qu estion will be
considered.
Id. at 650.
The judgmen t in this case does not contain a sta tement of an y dispositive
question of law, d oes n ot con tain a s tatem ent tha t the ce rtified question was
expre ssly reserved, and does not contain a statement that the State and trial court
agree that the question is dispositive. In fact, nothing in the record indicates that
Defendant made any effort to reserv e the q uestio n of wh ether th e bloo d sam ple
evidence should h ave bee n supp ressed . In short, Defendant has waived this issue
by failing to comply w ith the requirements of Rule 37(b)(2)(i). Defendant is not
entitled to relief on this issue.
III. DENIAL OF THE MOTION TO SET ASIDE THE SENTENCING
HEARING AND/OR VACATE THE PLEA AGREEMENT
Defendant conte nds th at the tria l court e rred w hen it d enied his motion to set
aside the sentencing hearing and/or vacate the plea agreement. We disagree.
Defendant argues that the State violated the plea agreement when it called
Ms. Clark to testify during the senten cing h earing , even th ough it had sp ecifica lly
agreed not to call any witnesses. The record indicates that the State informed the
trial court that Ms. Clark wanted to make a statement because she believed that
defense counsel had misrepresented her feelings about the sentence that should be
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imposed. After the trial court allowed Ms. Clark to make a statem ent, the State d id
not ask Ms. Clark a single question.
Tennessee Code Annotated section 40-35-209(b) provides that “[a]t the
senten cing hea ring, the co urt . . . may afford the victim o f the offe nse o r the fam ily
of the victim the opportunity to testify relevant to the sentencing of the defend ant.”
Tenn. Code Ann. § 40-35-209(b) (1997). Thus, the trial court was clearly authorized
to permit Ms. C lark to mak e a sta teme nt. No thing in the ple a agre eme nt limite d this
authority. Further, M s. Clark w as not a p arty to the plea a greem ent an d noth ing in
the record indicates that she otherwise agreed not to make a statement at the
sentencing hearing in return for D efendant’s ag reemen t to plead guilty.
In addition, it is clear that Defendant was not prejudiced in any manner by Ms.
Clark ’s statement. Ms. Clark’s entire statement takes up less than one page of the
transcript of the sentencing hearing. Moreover, Ms. Clark’s stateme nt is m erely
cumulative of the in forma tion sh e inclu ded in her victim impac t stateme nt. Indeed,
the trial court specifically stated that
[Ms. Clark] did not say anything of substance that was not included in the
investigation report filed by the Department of Correction. The Court does not
remember now, and I don’t think I did at that tim e give an y special w eight to
the testimony of a grieving mother as to what the sentence should be.
In short, the plea agreement in this case was simply not violated. Therefore,
the trial court’s denial of the motion to set aside the sentencing hearing and/or
vacate the plea agreement was entirely appropriate. Defen dant is no t entitled to
relief on this issue.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________
THOMAS T. W OODALL, Judge
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CONCUR:
___________________________________
JERRY L. SMITH, Judge
___________________________________
NORMA McG EE OGLE, Judge
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