State of Tennessee v. Jeffery Keith Toone, Jr. ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 1, 2016
STATE OF TENNESSEE v. JEFFERY KEITH TOONE, JR.
Appeal from the Circuit Court for Madison County
No. 15-159 Kyle C. Atkins, Judge
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No. W2015-02332-CCA-R3-CD - Filed March 16, 2017
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The Defendant-Appellant, Jeffery Keith Toone, Jr., pled guilty to two counts of extortion,
ten counts of attempted sexual exploitation of a minor, and two counts of solicitation of
sexual exploitation of a minor and received an effective four-year sentence, suspended to
supervised probation after service of two consecutive sentences of eleven months and
twenty-nine days in the county jail. As a condition of his guilty plea, Toone sought to
reserve several certified questions of law pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2)(A), generally arguing that the transfer of his case from juvenile court
to circuit court was improper. Because Toone‟s certified questions are overly broad, the
appeal is dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.
C. Mark Donahoe, Jackson, Tennessee for the Defendant-Appellant, Jeffery Keith Toone,
Jr.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; James G. (Jerry) Woodall), District Attorney General; and Benjamin
C. Mayo, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
On July 9, 2013, two petitions were filed in the Madison County Juvenile Court
alleging that Toone committed certain delinquent acts. These acts included Toone posing
as a juvenile female to obtain nude pictures of other juveniles and then extorting these
juvenile victims by threatening to post their nude pictures online unless the victims sent
more nude photographs of themselves.
On August 1, 2013, the State filed a motion for Toone to be tried as an adult in
accordance with the juvenile transfer hearing statute in Tennessee Code Annotated
section 37-1-134. Following a transfer hearing in September 2013, the juvenile court
transferred Toone‟s case to the Madison County Circuit Court.
On March 2, 2015, a Madison County Grand Jury returned an indictment charging
Toone with two counts of extortion and thirteen counts of sexual exploitation of a minor.
On November 4, 2015, Toone pled guilty two counts of extortion, ten counts of attempted
sexual exploitation of a minor, and two counts of solicitation of sexual exploitation of a
minor. Pursuant to his guilty plea, one of the counts for sexual exploitation of a minor
was dismissed, and the trial court imposed an effective four-year sentence, suspended to
supervised probation after service of two consecutive sentences of eleven months and
twenty-nine days in the county jail. At the time, Toone sought to reserve, with the
consent of the State and the trial court, the following eight certified questions of law that
the trial court and the parties agreed were dispositive of the case:
The certified question of law that the Defendant hereby reserves for
appellate review is as follows: (1) Whether or not the transfer of the
Defendant‟s case from juvenile court, pursuant to T.C.A. § 37-1-134 was
appropriate; (2) whether or not the juvenile court properly considered the
factors enumerated in T.C.A. § 37-1-134 in finding that the juvenile met the
requirements for transfer to criminal court; (3) whether or not the proof
submitted by the State at the juvenile court transfer hearing pursuant to
T.C.A. § 37-1-134 was adequate, appropriate, competent and sufficient to
support a transfer by the juvenile court of the juvenile to criminal court; (4)
whether or not the State adequately proved at the juvenile transfer hearing
whether or not reasonable notice in writing of the time, place and purpose
of the hearing was given to the child and the child‟s parents, at least three
(3) days prior to the hearing; (5) whether or not the court erred in finding
reasonable grounds and/or did not consider the following: (a) the child
committed the delinquent act as alleged; (b) the child is not committable to
an institution for the developmentally disabled or mentally ill; and (c) the
interest of the community require that the child be put under legal restraint
or discipline; (6) whether or not the juvenile court, in making the
determination to transfer, failed to: (a) appropriately consider the extent
and nature of the child‟s prior delinquency records; (b) the nature of past
treatment efforts and the nature of the child‟s response thereto; (c) whether
the offense was against person or property, with greater weight in favor of
the transfer give[n] to offenses against the person; (d) whether the offense
was committed in an aggressive and premeditated manner; (e) the possible
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rehabilitation of the child by use of procedures, services and facilities
currently available to the court in this state; and (f) whether the child‟s
conduct would be a criminal gang offense as defined in T.C.A. § 40-35-
121; (7) whether or not the state failed to introduce adequate proof at the
juvenile transfer hearing that reasonable notice in writing of the time, place
and purpose of the hearing was given to the child and the child‟s parents;
(8) whether or not the state failed to introduce adequate proof to prove: (a)
proof to appropriately consider the extent and nature of the child‟s prior
delinquency records; (b) the nature of past treatment efforts and the nature
of the child‟s response thereto; (c) whether the offense was against person
or property, with greater weight in favor or the transfer give[n] to offenses
against the person; (d) whether the offense was committed in an aggressive
and premeditated manner; (e) the possible rehabilitation of the child by use
of procedures, services and facilities currently available to the court in this
state; and (f) whether the child‟s conduct would be a criminal gang offense
as defined in T.C.A. § 40-35-121.
Toone filed a timely notice of appeal on November 25, 2015.
On May 9, 2016, Toone filed a motion in this court to accept a late-filed exhibit
supplementing the appellate record with the transcript of the juvenile transfer hearing.
Attached to this motion was the transcript of the juvenile transfer hearing.1 On July 11,
2016, this court granted the motion to supplement the record and ordered the trial court,
within fifteen days of the order, to certify and transmit to the appellate court a
supplemental record including the transcript of the juvenile transfer hearing. See State v.
Jeffery Keith Toone, Jr., No. W2015-02332-CCA-R3-CD (Tenn. Crim. App. July 11,
2016) (order). Nevertheless, the appellate record was not properly supplemented with
this transcript because Toone did not file a copy of the transcript of the juvenile transfer
hearing with the trial court clerk. See Tenn. R. App. P. 24(b) (requiring transcripts to be
filed with the clerk of the trial court in order to be included in the appellate record); Cf.
1
Also on May 9, 2016, Toone‟s attorney filed a motion to withdraw from representation
on appeal and a supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967). In
Anders, the United States Supreme Court held that if counsel finds a case to be wholly frivolous
after a conscientious examination of it, then he or she may advise the court and request
permission to withdraw, so long as counsel files with the motion a brief that references any
portion of the record that arguably supports the appeal, the indigent client is furnished a copy of
the brief, and the client is given time to raise any necessary issues. Id. at 744; see Tenn. Ct.
Crim. App. R. 22 (governing the withdrawal of appointed counsel in frivolous appeals). This
court denied counsel‟s motion to withdraw in the court‟s July 11, 2016 order. See State v.
Jeffery Keith Toone, Jr., No. W2015-02332-CCA-R3-CD (Tenn. Crim. App. July 11, 2016)
(order).
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State v. Matthews, 805 S.W.2d 776, 783-84 (Tenn. Crim. App. 1990) (concluding that a
transcript attached to the appellant‟s brief could not be considered because it was not
made a part of the appellate record). On August 10, 2016, Toone filed his appellate brief.
On September 9, 2016, the trial court clerk filed a notice stating that no transcript of the
juvenile transfer hearing had been filed in the Madison County Circuit Court Clerk‟s
Office.
ANALYSIS
Although Toone‟s eight certified questions merely restate the numerous
procedures and considerations outlined in Tennessee Code Annotated section 37-1-134,
he contends in his appellate brief that the juvenile court at the transfer hearing failed to
properly consider “how the psychological and psycho-sexual assessments treatment
affected the defendant or how such treatment would further help the defendant in the
future.” Specifically, he asserts that although he voluntarily sought counseling at a
church and was diagnosed with Adjustment Disorder, Anxiety, and Sexual Disorder
during his evaluation at Pathways Behavior Health Services, the juvenile court failed to
consider his participation in counseling, failed to review his psychological assessment,
and failed to contemplate the effects of counseling on his future behavior. The State
responds that Toone‟s certified questions are overly broad, that they do not include the
reasons relied upon by Toone at the juvenile transfer hearing, and that Toone failed to
provide an adequate record for review. Because Toone has failed to properly identify the
scope and limits of the legal issue reserved in his certified questions, we are without
jurisdiction to consider this appeal.
In State v. Griffin, 914 S.W.2d 564, 566 (Tenn. Crim. App. 1995), this court stated
that a defendant may seek review of a lawyer juvenile judge‟s order transferring a child
to circuit or criminal court by reserving the issue pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2):
We note that the process of obtaining appellate review of a lawyer
juvenile judge‟s order transferring a child to be tried as an adult is rather
awkward. The criminal court has no authority to decline jurisdiction.
Thus, the criminal court is put in a position of being forced to dispose of the
case on the merits even though an appellate court must later determine
whether the decision of the juvenile court transferring the child to the
criminal court was correct. Thus, it appears that in order to review the
decision of the lawyer juvenile judge, the juvenile in criminal court must
either (1) enter a plea of not guilty and thus preserve the issue for review, if
convicted, or (2) reserve the issue on a plea of guilty or nolo contendere
pursuant to Rule 37(b)(2)(i) or (b)(2)(iv) of the Tennessee Rules of
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Criminal Procedure. The second alternative assumes that the decision of
whether the juvenile should be tried as an adult is a “certified question of
law” that may be appealed pursuant to Rule 37.
This court has consistently addressed challenges to a juvenile court‟s decision at a
transfer hearing via a certified question of law. See State v. Christopher Bell, No.
W2014-00504-CCA-R3-CD, 2015 WL 1000172, at *2 (Tenn. Crim. App. Mar. 4, 2015)
(citing State v. Simmons, 108 S.W.3d 881, 882 (Tenn. Crim. App. 2002); State v.
Boccous McGill, Jr., No. M2013-01076-CCA-R3-CD, 2014 WL 1413875, at *1 (Tenn.
Crim. App. Apr. 11, 2014); State v. Isiah Wilson, No. W2003-02394-CCA-R3-CD, 2004
WL 2533834, at *1 (Tenn. Crim. App. Nov. 8, 2004); State v. Tavaris Hill, No. 01C01-
9301-CC-00028, 1993 WL 345537, at *1 (Tenn. Crim. App. Sept. 9, 1993)). Therefore,
we believe that Toone, in attempting to reserve several certified questions of law, utilized
the proper method for challenging the juvenile court‟s decision at his transfer hearing.
However, a defendant must properly reserve a certified question before this court
has jurisdiction to consider the merits of the question. The State argues that Toone‟s
questions do not clearly identify the scope and limits of the legal issue reserved because
they merely “recit[e] the basic language of the juvenile transfer statute.” Tennessee Rule
of Criminal Procedure 37(b)(2)(A) allows for an appeal from any order or judgment on a
plea of guilty or nolo contendere if the defendant reserves the right to appeal a certified
question of law that is dispositive of the case, so long as the following four requirements
are met:
(i) the judgment of conviction or order reserving the certified question that
is filed before the notice of appeal is filed contains a statement of the
certified question of law that the defendant reserved for appellate review;
(ii) the question of law as stated in the judgment or order reserving the
certified question identifies clearly the scope and limits of the legal issue
reserved;
(iii) the judgment or order reserving the certified question reflects that the
certified question was expressly reserved with the consent of the state and
the trial court; and
(iv) the judgment or order reserving the certified question reflects that the
defendant, the state, and the trial court are of the opinion that the certified
question is dispositive of the case[.]
Tenn. R. Crim. P. 37(b)(2)(A).
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The State asserts that Toone failed to follow the requirement in subsection (ii), that
the certified question “identifies clearly the scope and limits of the legal issue reserved.”
Tenn. R. Crim. P. 37(b)(2)(A)(ii). The Tennessee Supreme Court further defined the
requirements for reserving a certified question of law in State v. Preston:
Regardless of what has appeared in prior 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 clearly identify the
scope and the limits of the legal issue reserved. For example, where
questions of law involve the validity of searches and the admissibility of
statements and confessions, etc., the reasons relied 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 stated in the certified
question, absent a constitutional requirement otherwise. Without an
explicit statement of the certified 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
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 case. Of course, the
burden is on defendant to see that these prerequisites 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 certified question of law is
dispositive and the merits of the question certified. No issue beyond the
scope of the certified question will be considered.
759 S.W.2d 647, 650 (Tenn. 1988) (emphases added). As the Tennessee Supreme Court
stressed, “Preston puts the burden of reserving, articulating, and identifying the issue
upon the defendant.” State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). The
court, in rejecting “a substantial compliance” standard, held that the Preston requirements
for appealing a certified question of law under Rule 37 are “„explicit and unambiguous.‟”
State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003) (quoting State v. Irwin, 962
S.W.2d 477, 479 (Tenn. 1998); Pendergrass, 937 S.W.2d at 837). A defendant‟s failure
to comply with the Preston requirements results in the dismissal of the appeal. State v.
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Bowery, 189 S.W.3d 240, 245-46 (Tenn. Crim. App. 2004) (citing Pendergrass, 937
S.W.2d at 837).
This court has consistently required certified questions of law to be narrowly
framed. In State v. Nicholas J. Johnson, this court concluded that it did not have
jurisdiction of the case because the defendant failed to identify the scope and limits of the
legal issue reserved within the extensive area of search and seizure law:
In the present case, the issue reserved is “the validity of the search
and seizure of the” Appellant. This overly broad question violates the
mandates announced in Preston. The question is not only patently non-
specific but also does not clearly identify the reasons relied upon by the
Appellant at the suppression hearing. Additionally, review of the question
as presently framed would potentially require a complete dissertation of the
law of search and seizure of which this court is not willing to engage in
absent specific boundaries circumscribed by the Appellant. The holding of
Preston created a bright-line rule regarding the prerequisites for a Rule
37(b)(2)(i) appeal from which this court may not depart. See generally
Preston, 759 S.W.2d at 650; but see State v. Harris, 919 S.W.2d 619, 621
(Tenn. Crim. App. 1995) (issue need not be framed in standard “law
school” format; statement satisfies Preston if appellate court can ascertain
from the record the scope of the issue presented).
No. M2000-03162-CCA-R3-CD, 2001 WL 1356369, at *2 (Tenn. Crim. App. Nov. 6,
2001). Likewise, in State v. Kale J. Sandusky, this court concluded that the defendant‟s
certified question was overly broad even though the defendant argued a narrower issue in
his appellate brief:
The issue reserved in the trial court‟s judgment is “whether or not
the entries by law enforcement into [the Defendant's] home on October 23,
2006 were in violation of constitutional guarantees against unreasonable
searches and seizures under the state and federal constitutions. . . .” The
Defendant‟s brief, however, frames the issue as follows: “Must arrest
warrants for the offense of „failure to appear‟ be issued by a neutral and
detached magistrate upon a sworn affidavit setting forth probable cause?”
The Defendant‟s certified question is overly broad and fails to
clearly identify the scope and limits of the legal issue reserved. We point
out that the certified question does not mention the validity of an arrest
warrant.
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No. M2008-00589-CCA-R3-CD, 2009 WL 537526, at *3 (Tenn. Crim. App. Mar. 4,
2009).
We conclude that Toone‟s eight certified questions are overly broad because they
do not precisely identify the scope and limits of the legal issue reserved. See Tenn. R.
Crim. P. 37(b)(2)(A)(ii). These questions, which simply restate the numerous procedures
and considerations outlined in Tennessee Code Annotated section 37-1-134 for juvenile
transfer hearings, fail to specifically identify how the juvenile court erred. See State v.
Jennette, 706 S.W.2d 614, 617 (Tenn. 1986) (“It is possible for there to be more than one
certified question under Rule 37, but any question sought to be presented under that rule,
following conviction on a guilty plea, should (1) be precisely stated in the order of the
trial court certifying the question and (2) be dispositive of the case if the trial court is in
error. The rule was never designed to authorize a general review of numerous factual and
legal issues without express articulation and without these being completely
controlling.”). Moreover, the sheer breadth of these certified questions is not cured by
Toone‟s substantially narrower statement of the issue on appeal. As we noted, the
reasons relied upon by the defendant in the trial court must be identified in the certified
question, and review by this court will be limited to those issues passed upon by the trial
judge and stated in the certified question, absent a constitutional requirement otherwise.
See Preston, 759 S.W.2d at 650; cf. State v. William G. Barnett, Jr., No. M2013-01176-
CCA-R3-CD, 2014 WL 1632080, at *5 (Tenn. Crim. App. Apr. 23, 2014) (“Certified
question[s] are overly broad when they mention a violation of a defendant‟s right but do
not clearly outline the question beyond the right allegedly violated.”).
Toone‟s certified questions do not state why he is entitled to relief and do not
particularly identify how the trial court failed to follow the juvenile transfer statute. See
State v. Valdez Domingo Wilson, No. E2015-01009-CCA-R3-CD, 2016 WL 537083, at
*4 (Tenn. Crim. App. Feb. 11, 2016) (stating that “the reasons relied upon by defendant
in the trial court must be identified in the certified question”), perm. app. denied (Tenn.
June 23, 2016); William G. Barnett, Jr., 2014 WL 1632080, at *5 (concluding that the
certified question was overly broad when it failed to state the relief to which the
defendant would be entitled and failed to state with any particularity the ground upon
which the defendant sought appellate review); State v. Robert Glenn Hasaflock, No.
M2012-02360-CCA-R3-CD, 2013 WL 4859577, at *4 (Tenn. Crim. App. Sept. 12, 2013)
(stating that “certified questions of law which fail to narrowly construe the issues and
identify the trial court‟s holding do not provide an adequate basis for our review.”); State
v. Casey Treat, No. E2010-02330-CCA-R3-CD, 2011 WL 5620804, at *5 (Tenn. Crim.
App. Nov. 18, 2011) (concluding that a certified question that did not “articulate the
reasons previously relied upon by the Defendant in support of his arguments [and did] not
describe the trial court‟s holdings on the constitutional issues presented” was overly
broad). These eight certified questions, as stated, would require this court to conduct a
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complete review of all the reasons a juvenile transfer hearing could be improperly
conducted. See State v. Randall Cagle, No. M2013-00728-CCA-R3-CD, 2013 WL
6122379, at *3 (Tenn. Crim. App. Nov. 20, 2013) (“As posed, the [certified] question
would require this court to essentially conduct a complete overview of the plethora of
reasons a search warrant affidavit could lack probable cause.”). Toone‟s certified
questions require not only a thorough analysis of the law applicable to juvenile transfer
hearings but also a comprehensive review of his transfer hearing, which we decline to do.
Certified questions should be reserved only when there is a controlling question that
requires an answer. They should not be used, as they were in this case, to make a
general, open-ended challenge to the juvenile court‟s decision in a transfer case by citing
every procedure and consideration contained within the juvenile transfer statute. In other
words, a defendant should not be allowed to conveniently reserve an overly broad
certified question at the time of the plea agreement and then, upon reflection, provide a
more precise statement of the issue in his appellate brief. For all these reasons, Toone‟s
certified questions do not precisely identify the scope and limits of the legal issue
reserved.
We also agree with the State that Toone has waived his challenge to the juvenile
court‟s ruling in his transfer hearing by not properly supplementing the appellate record
with the transcript of the juvenile transfer hearing. Although Toone filed a motion in this
court to supplement the appellate record with this transcript and included, as an
attachment to this motion, a copy of the juvenile transfer hearing transcript itself, he
neglected to file the transcript with the trial court clerk. See Tenn. R. App. P. 24(b)
(requiring transcripts to be filed with the clerk of the trial court if they are to be included
in the appellate record). Consequently, he has waived this issue. See Preston, 759
S.W.2d at 650 (stating that it is the defendant‟s burden to ensure that the appellate record
contains all of the proceedings below that are relevant to whether the certified question is
dispositive and the merits of the question certified). An appellant has a duty to prepare a
record that conveys a fair, accurate, and complete account of what transpired with respect
to the issues forming the basis of the appeal. State v. Ballard, 855 S.W.2d 557, 560
(Tenn. 1993) (holding that the failure to include the relevant transcripts precludes
appellate review). If the record is incomplete and does not include a transcript of the
proceedings relevant to an issue presented for review, an appellate court is precluded
from considering the issue. Id. (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn.
Crim. App. 1988)). “In the absence of an adequate record on appeal, we must presume
that the trial court‟s ruling was supported by the evidence.” State v. Bibbs, 806 S.W.2d
786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584 S.W.2d 811, 812 (Tenn.
Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979)). In
any case, because we have held that Toone‟s certified questions do not clearly identify
the scope and limits of the legal issue reserved, the presence of this transcript as an
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attachment to his motion, though not properly supplemented in the appellate record, does
not avail Toone of relief.
Because Toone has failed to properly identify the scope and limits of the legal
issues reserved, we are without jurisdiction to consider this appeal. Although we take no
satisfaction in dismissing this appeal, we must nonetheless add Toone‟s case “„to the
growing heap of appellate fatalities that have resulted when would-be appellants failed to
heed the Preston–Pendergrass litany of requirements for certified-question appeals.‟”
State v. Harris, 280 S.W.3d 832, 836-37 (Tenn. Crim. App. 2008) (quoting State v. Carl
F. Neer, No. E2000-02791-CCA-R3-CD, 2001 WL 1180507, at *2 (Tenn. Crim. App.
Oct. 8, 2001)). Because this court is without jurisdiction, the appeal is dismissed.
CONCLUSION
Because the certified questions of law did not identify the scope and limits of the
issue reserved, we are without jurisdiction to consider the appeal. Accordingly, the
appeal is dismissed.
______________________________
CAMILLE R. McMULLEN, JUDGE
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