                                                                                          02/26/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  October 1, 2019 Session

                  STATE OF TENNESSEE v. RONALD TAYLOR

                   Appeal from the Criminal Court for Shelby County
                    No. C17-04240      J. Robert Carter, Jr., Judge
                       ___________________________________

                             No. W2019-00502-CCA-R3-CD
                         ___________________________________

THOMAS T. WOODALL, J., concurring.

        I respectfully concur in results with Judge Wedemeyer’s majority opinion. I am
unable to join with that portion of the opinion addressing Defendant’s Gerstein v. Pugh,
420 U.S. 103 (1975) “unlawful detention” issue. I agree the issue is waived as a result of
the failure of Defendant’s trial counsel to raise a pre-trial Gerstein challenge to suppress
evidence obtained after his warrantless arrest. The State on appeal asserts the issue is
waived. If this court concludes in this particular case that the issue is waived, we should
stop our analysis there.

        Defendant has the opportunity to seek relief by way of post-conviction
proceedings if he is denied relief in this direct appeal. Post-conviction counsel would be
entitled to present, in effect, a Gerstein hearing during post-conviction proceedings in
order to establish evidence to support a claim of deficient performance by trial counsel
and the resulting prejudice to Defendant.

       Tennessee Rule of Appellate Procedure 36(b) provides in part that “[w]hen
necessary to do substantial justice, an appellate court may consider an error that has
affected the substantial rights of a party at any time . . . .” (emphasis added).
Consideration of an error that is waived is not mandatory. If it was, “may” would be
“shall.”

       To establish plain error, Defendant has the burden of establishing the following
factors:

        (a)   the record clearly establishes what occurred in the trial court;
        (b)   a clear and unequivocal rule of law has been breached;
        (c)   a substantial right of the accused has been adversely affected;
        (d)   the accused did not waive the issue for tactical reasons; and
        (e) consideration of the error is “necessary to do substantial justice.”

        State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016). All five factors must be
established by the record before this court can recognize the existence of plain error, and
complete consideration of all the factors is not necessary when it is clear from the record
that at least one of the factors cannot be established. State v. Bishop, 431 S.W.3d 22, 44
(Tenn. 2014). Even if all five factors are present, “the plain error must be of such a great
magnitude that it probably changed the outcome of the trial.” Id. (quoting State v.
Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)).

        Essentially, if an analysis of whether “plain error” relief should be granted results
in a conclusion that relief should not be granted, the analysis is dicta because the issue is
not addressed on its merits. For instance, the majority opinion concludes that
Defendant’s request to review the issue should not be considered because “consideration
of the alleged error is not necessary to do substantial justice.” Since it is waived, the
merits of the Gerstein issue have not been addressed. The majority’s brief statement does
not conclude that if any error in the trial court occurred, it has been determined to be only
harmless error beyond a reasonable doubt. The issue is waived because it was not
presented to the trial court, as asserted by the State in this appeal. If the issue was not
presented to the trial court, there is nothing to review to establish that Defendant is
entitled to relief pursuant to plain error review. In my opinion, it is better in this case to
simply say that this court declines to exercise plain error review than to determine one of
the Adkisson factors is not established.

       Accordingly, absent being ordered by our Supreme Court to review an issue under
“plain error” analysis, see State v. Stephano Lee Weilacker, No. M2016-00546-CCA-R3-
CD, slip op. at 1, 2018 WL 5099779 (Tenn. Crim. App. Oct. 19, 2018), I am reluctant to
include in an opinion a “plain error” review of an issue that has been waived unless the
court concludes that relief is to be granted.


                                    ____________________________________________
                                    THOMAS T. WOODALL, JUDGE




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