State of Tennessee v. Joseph Pendergrass ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
DECEMB ER SESSION, 1997 February 3, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00210
)
Appellee, )
)
) SEVIER COUNTY
VS. )
) HON . BEN W. HO OPE R, II
JOSEPH PENDERGRASS, ) JUDGE
)
Appe llant. ) (Certified Questions)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF SEVIER COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD C. MILLER JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
Fourth Judicial District
P.O. Box 416 MICH AEL J . FAHE Y, II
Dandridge, TN 37725 Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243-0490
AL SCHMUTZER, JR.
District Attorney General
MIKE GALLEGOS
Assistant District Attorney General
Sevier County Courthouse
Sevierville, TN 37862
OPINION FILED ________________________
APPEAL DISMISSED
DAVID H. WELLES, JUDGE
OPINION
This appea l attempts to prese nt certifie d que stions of law p ursua nt to R ule
3(b) of the Tennessee Rules of Appellate Procedure and Rule 37(b)(2 ) of the
Tennessee Rules of Criminal Procedure. The certified questions prima rily involve
the legality of a stop of a mo tor vehicle and a s ubseque nt search an d seizure
resulting therefrom. Because we conclude that this matter is not properly before
us, we dism iss this a ppea l.
In April of 1996, a Pigeon Forge, Tennessee police officer stopped the
Defe ndan t’s vehicle because he thought the vehicle’s windows violated the motor
vehicle window tinting law. The Defendant was driving and the officer determined
that the Defendant’s driver’s license was revoked and that the Defendant was an
habitual motor vehicle offender. A search of the ve hicle re sulted in the seizure
of about a pound of marijuana.
The Defendant was indicted for possession of marijuana with intent to sell
and for operating a motor vehicle in violation of the Motor Vehicle Habitual
Offen der’s Act. T he De fenda nt filed a motio n to dis miss the m otor ve hicle
habitual offend er’s ind ictme nt on th e bas is that it fa iled to a llege a culpa ble
mental state. He filed a motion to suppress all evidence obtained as a resu lt of
the stop, alleging that both the stop and the resultant search were illegal. The
trial court o verrule d the D efend ant’s m otions. Immediately thereafter, the
Defendant entere d an “o pen p lea” to e ach c ount o f the ind ictme nt “exp ressly
reserving the right to appeal the certified questions raised in the Motions
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Hearin g.” The trial judge entertaine d the gu ilty pleas from the Defendant on the
record and then stated, “Okay. We will then deal with this matter on April 25,
1997.” The judge neither announced nor entered a judg ment of con viction or a
senten ce.
Approximately two months later an order was entered overruling the
Defe ndan t’s motions, accepting the Defendant’s pleas of guilty and allowing the
Defendant’s appeal of the following certified questions of law:
1. Whether the stop and subsequent arrest of the
defendant was unlawful and therefore whether the marijuana found
in the search of the defenda nt’s car should h ave been suppressed.
2. Wh ether, if the stop and arrest of the d efendant we re
lawful, were th e sea rch an d seizu re of the mariju ana nonetheless
unlawful and therefore should the marijuana have been suppressed.
3. Whether the indictment in this case should have been
dismissed for failing to include the culpable mental state of
“knowin g.”
The Defendant filed a notice of appe al from this order. T he record contains
no judg ment o f conviction or sente ncing ord er.
The Defen dant ha s attem pted to reserve his certified questions pursuant
to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure, which provides
that:
An appeal lies "from any order or judgment in a criminal proceeding
where the law provides for such appeal, and from any judgment of
conviction : (2) [u]pon a plea of guilty or nolo contendere if: (i)
defendant entered into a plea agreement under Rule 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; (iv) Defendant explicitly reserved with the consent of the court
the right to appeal a certified question o f law that is dispositive of the
case.
Tenn. R . Crim. P. 37(b)(2 )(i) & (iv).
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Our supreme court has also prescribed guidelines that must be adhered
to in order to perfect an appeal by Rule 37(b)(2)(i) and (iv). In State v. Preston,
759 S.W.2d 647 (Tenn. 1988), and again in State v. Pendergrass, 937 S.W.2d
834 (Tenn. 1996), the court held:
This is an app ropriate time for this Court to make explicit to the
bench and bar exa ctly what the appe llate courts will hereafter requ ire
as prerequisites to the consideration of the merits of a question of law
certified pursuant to Tenn. R. Crim. P. 37 (b)(2)(i) or (iv). Regardless
of what has appeared in prior petitions, orders, colloquy in o pen court
or otherwise, the final order or judgment from which the time beg ins to
run to pursue a T.R.A.P. 3 appeal must contain a statement of the
dispositive certified question of law reserved by defend ant for ap pellate
review and the question of law must be stated so as to c learly identify
the scope and the limits of the legal issue re served. For example,
where questions of law involve the validity of searches and the
admissibility of state men ts and confe ssion s, etc., th e reas ons re lied
upon by defendant in the trial court at the suppression hearing must be
identified in the statement of the certified question of law and review by
the appellate courts will be limited to those passed upon by the trial
judge and state d in the ce rtified ques tion, absent a constitutional
requirement otherwise. With out an e xplicit statem ent of the c ertified
question, neither the defendant, the State nor the trial judge can make
a meaningful determination of whether the issue sought to be reviewed
is dispositive of the case. Most of the reported and unreported cases
seeking the limited appellate review pursuant to Tenn. R. Crim. P. 37
have been dismissed because the certified question was not
dispositive. Also, the order must state that the certified question was
expre ssly 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 case. Of
course, the burden is on defendant to see that these prerequisites are
in the final order and th at the reco rd broug ht to the ap pellate co urts
contains all of the proceedings below that bear upon whether the
certified ques tion of la w is dispositive and the merits of the question
certified. No issue beyond the scope of the certified question will be
conside red.
Pendergrass, 937 S.W.2d at 836-37 (citing Preston, 759 S.W.2d at 650)
(emp hasis added). The Defendant bears the burden of “reserving, articulating,
and identifying the issu e.” Pendergrass, 937 S.W.2d at 838.
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In the present case, it is clear from the reco rd that the D efenda nt, with the
agreement of the State and the trial court, attempted to reserve certified
questions concerning the validity of the stop, the search, and the indictme nt. It
is equally cle ar, howe ver, that Preston, Pendergrass, and Rule 37 of the
Tennessee Rules of Criminal Procedure have not been followed. There is no
final order or judgment in the record from which the time begins to run to pursue
a T.R.A.P. 3 appeal. The questions of law set forth in the order entered by the
trial court are not stated so as to clearly identify the scope and the limits of the
legal issues reserved. The reasons relied upon by the Defendant in the trial court
at the suppression hearing are not identified in the statement of the certified
question of law. There is no judgment of conviction. Obviously, at the time of the
appe al, the Defendant had been neither convicted nor sentenced, so the
underlying issues attempted to be presented on appeal are not necessarily
dispositive of the cas e.
Given the clear, m andato ry langua ge of Preston and Pendergrass, we
must conclude that this appeal is not prope rly before us. Accordingly, we dismiss
the appeal of the certified questions and remand the case to the trial court for
such further proceedings as may be appropriate.
____________________________________
DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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