            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs January 16, 2013

            MAURICE EDWARD CARTER v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Smith County
                          No. 07-72    David E. Durham, Judge


                       No. M2012-01843-CCA-R3-PC Filed 06/14/2013


The petitioner pled guilty in Smith County to one count of aggravated statutory rape and one
count of criminal exposure to HIV and received an effective sentence of twenty years.1 The
petitioner’s guilty pleas were entered with the condition that he reserved the right to appeal
a certified question of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal
Procedure regarding the search and seizure of certain evidence. The Court dismissed the
appeal based on a lack of jurisdiction. The petitioner brought this post-conviction petition
asserting that his trial counsel was ineffective in reserving the certified question and bringing
the appeal. The post-conviction court dismissed the claim without a hearing or the
appointment of counsel, finding that the issues had been previously determined on direct
appeal. See T.C.A. § 40-30-106(h) (2010). The petitioner appeals, asserting that this Court
on direct appeal concluded it was without jurisdiction and did not rule on the merits of his
claims. After a thorough examination of the facts and law, we conclude that the petitioner
has stated a colorable claim; and we reverse the judgment of the post-conviction court and
remand the case for further proceedings.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                  Case Remanded

P AUL G. S UMMERS, S R. J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J., joined.

Maurice Edward Carter, Nashville, Tennessee, Pro Se.



        1
          The petitioner pled guilty in Rutherford County to four counts of aggravated sexual exploitation
of a minor, two counts of solicitation of sexual exploitation of a minor, one count of statutory rape and one
count of criminal exposure to HIV. He received an effective twenty-year sentence in Rutherford County,
to be served concurrently with the Smith County sentences.
Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin Ball, Assistant Attorney
General; Tom P. Thompson, District Attorney General; and Howard Chambers, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                                OPINION

                               I. Facts and Procedural Background

        The charges against the petitioner arose when police responded to a noise disturbance
at the end of a closed road leading to a defunct ferry dock. State v. Carter, No. M2010-
00063-CCA-R3-CD, 2011 WL 3303714, at *1 (Tenn. Crim. App. Aug. 2, 2011). They found
several persons in four separate vehicles, including the petitioner in the passenger seat of his
car and the minor victim in the driver’s seat of the petitioner’s car. Id. at *2. A deputy
shined a flashlight into the car and observed a bag of marijuana, which the victim claimed.
Id. The deputy testified that the petitioner gave permission for him to search the car, where
he found another bag of marijuana. Id. The petitioner then began manifesting symptoms of
heart trouble, and the deputy requested an ambulance. Id. Because it became apparent that
the petitioner would leave in the ambulance, the deputy asked him to identify the company
he wanted to tow his car; and the petitioner did so. Id. The deputy then gave the petitioner
the opportunity to withdraw his consent to the search because it would be conducted in his
absence, and the petitioner stated “it was okay” for police to search. Id.

       The police searched his car and found a locked box in the back seat. Id. at *3. They
determined that it contained something by shaking it. Id. A deputy “took [his] knife and it
just opened right up.” Id. The police discovered nude photographs and DVDs of the minor
victim.2 Id. The petitioner subsequently gave a statement incriminating himself. Id. at *5.
He then gave consent for a search of his residence, storage unit, and electronic devices. Id.

       In a joint hearing, the trial courts for both Smith and Rutherford counties denied the
petitioner’s motions to suppress evidence recovered from the search of his vehicle; his
motions to suppress evidence recovered based on the initial seizure; and his motions to
suppress his statement. The petitioner decided to plead guilty to some of the numerous
charges brought against him. Id. at *3-6. The petitioner reserved the following certified


        2
          The appellate opinion on direct review also makes reference to a “new English dictionary”
containing nude photographs of the victim. Id. at *2. It is unclear if this item was inside the locked box, on
the back seat as a separate item, or if it was itself the locked box. The appellate court refers to the “book
(maybe in a locked box)” and quotes the trial court’s referring to “the box or the dictionary book.” Id. at *3,
 10. The post-conviction petition refers to the “Locked Box (Old English Dictionary).”

                                                     -2-
question:

              Whether the stop and subsequent warrantless search of the
              [petitioner’s] Nissan automobile on June 3, 2007, by officers in
              Smith County, Tennessee, was unreasonable; violated the
              [petitioner’s] Fourth Amendment rights to the United States
              Constitution and rights under the Tennessee Constitution; was
              performed without probable cause nor based upon a reasonable
              suspicion supported by articulable facts; was a pretext to
              perform an illegal search; was unreasonable in the time[,]
              manner and scope of the investigation; was done without lawful
              consent; and was unlawful. Whether the evidence obtained from
              the stop and subsequent warrantless search, including statements
              and evidence obtained from search warrants based on evidence
              from the search, were obtained unlawfully and subject to
              suppression and, if so, whether the trial court erred in failing to
              suppress the evidence and statements.

Id. at *7.

        On direct appeal, this Court noted that the question of when the seizure of the
petitioner occurred was not ruled on by the trial courts and was beyond the scope of the
certified question. The Court also stated that it would not consider the claim that officers
acted illegally in stopping the petitioner’s vehicle, as the trial court had made no
determination regarding this issue. Id. at *8, 9. Nevertheless, the Court concluded that it
agreed with the Rutherford County trial court’s determination that the “initial detention was
appropriate” and also wrote that “the evidence shows that the defendant [petitioner] was not
seized’ by the officers’ arrival in the area and approach to the defendant’s vehicle.” Id. at
*9.

       Regarding the search, the Court determined that “the search of the defendant’s vehicle
was lawful.” Id. at *11. While the Court held that the plain view, exigent circumstances, and
inventory exceptions to the warrant requirement were “not specifically include[d] . . . in [the
petitioner’s] certified question” and therefore “beyond the scope of the question,” it also
noted that the trial courts’ ruling that the search could legally have been conducted under the
plain view and inventory exceptions was supported by testimony. Id. at *10-11. Regarding
the issue of consent, the Court noted it would “defer to the [trial] courts’ credibility
determinations,” which were in favor of the State. Id. at *10. The petitioner also argued that
the locked box was outside the scope of any alleged consent, but the Court concluded that
“it does not appear that the scope of the defendant’s consent was properly reserved in the

                                              -3-
certified question.” Id. at *11. Nevertheless, the Court noted that “the courts also accredited
the testimony of the officers” on this issue. Id. at *10.

        Finally, the Court addressed the petitioner’s claims regarding his incriminating
statements given to police after the search of his vehicle. The Court “conclude[d] that the
trial court did not err in denying these motions because, as determined above, the search of
the defendant’s vehicle was lawful, meaning that his subsequent statement and evidence from
the search warrants were not ‘fruit of the poisonous tree.’” Id. at *11. It also held that
allegations of violations of the Fifth, Sixth, and Fourteenth Amendments were beyond the
scope of the certified question. Id. In the section regarding suppression of the petitioner’s
statements, the Court also wrote, “In addition, we note that the suppression of the
[petitioner’s] statement would not be dispositive of the issue . . . because the victim gave a
statement detailing his involvement with the [petitioner] and the locations of their
interactions.” Id. In a footnote, the Court elaborated that “[t]he certified question does not
contemplate why the State could not proceed based upon the testimony of the juvenile
victim.” Id. at *11n.5.

        In sum, the Court determined that the following issues were beyond the scope of the
certified question: (1) the timing of the seizure of the petitioner; (2) the claim that the initial
stop of the petitioner was illegal; (3) whether the search was proper under the plain view
exception to the warrant requirement; (4) whether the search was proper under the inventory
exception to the warrant requirement; (5) whether the search was proper under the exigent
circumstances exception to the warrant requirement; (6) whether the locked box was outside
the scope of the petitioner’s consent; (7) whether the petitioner’s statement was taken in
violation of the Fifth, Sixth, and Fourteenth Amendments; and (8) whether the testimony of
the victim was an independent source of evidence. The Court nevertheless went on to make
determinations regarding several of the issues.

        However, the opinion makes it clear that the case was ultimately disposed on the
ground that “the certified question is not dispositive of the charges against the defendant and,
as a result, this court is without jurisdiction to consider the appeal.” Id. at *1. The appeal
was, accordingly, dismissed, although the Court noted that the record supported the
conclusion that “the motions to suppress were without merit.” Id.

        The petitioner filed a timely post-conviction petition, asserting ineffective assistance
of counsel. The Smith County post-conviction court dismissed the petition on the grounds
that it did not present a colorable claim and that the issues raised had been previously




                                                -4-
determined.3

                                          II. Law and Analysis

        When a “conviction or sentence is void or voidable because of the abridgment of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United States,”
a petitioner may bring a post-conviction petition to challenge the conviction or sentence.
T.C.A. § 40-30-103. However, the trial court must dismiss the petition “[i]f the facts alleged,
taken as true, fail to show that the petitioner is entitled to relief or fail to show that the claims
for relief have not been waived or previously determined.” T.C.A. § 40-30-106(f). “A
ground for relief is previously determined if a court of competent jurisdiction has ruled on
the merits after a full and fair hearing.” T.C.A. § 40-30-106(h). The petitioner bears the
burden of proving the allegations of fact in his post-conviction petition by clear and
convincing evidence. T.C.A. § 40-30-110(f).

        The petitioner asserts that he was denied the effective assistance of counsel because
his counsel failed to preserve certain certified questions on appeal. Under the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution, a criminal defendant has the right to be represented by counsel. This is the
right to “reasonably effective” assistance, which in turn is assistance “‘within the range of
competence demanded of attorneys in criminal cases.’” Pylant v. State, 263 S.W.3d 854, 868
(Tenn. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). To show
ineffective assistance of counsel, the petitioner must establish both that counsel’s
performance was deficient and that the deficiency prejudiced the petitioner. Strickland, 466
U.S. at 687. Deficiency requires a showing of “errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The
petitioner must also show prejudice, which is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

       In the context of a guilty plea, a petitioner shows prejudice by proving “‘there is a
reasonable probability that, but for counsel’s errors, he would not have pled guilty and would
have insisted on going to trial.’” Grindstaff v. State, 297 S.W.3d 208, 217 (Tenn. 2009)
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). The inquiry should focus on whether any
alleged deficiency affected the outcome of the plea process. Grindstaff, 297 S.W.3d at 217.
Because both prejudice and deficiency must be established for post-conviction relief, a
petition can be denied on a failure to prove either; the court considering the claim is not


       3
         According to the petitioner’s brief, the Rutherford County post-conviction court granted him a
hearing and appointed counsel.

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required to address both prongs. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        This Court has previously indicated that a post-conviction petition is the proper
mechanism for challenging any purported deficiency in failing to preserve a certified
question “[b]ecause the reasons a defendant pleads guilty may be varied, [and] it is not
necessarily the case that the inducement to plead guilty is the ability to have a certified
question considered on appeal.” State v. Ruiz, No. M2000-03221-CCA-R3-CD, 2001 WL
1246397, at *4 (Tenn. Crim. App. Oct. 17, 2001). An attorney’s failure to preserve an issue
as a certified question is “not automatically the ineffective assistance of counsel” because
“[a] guilty plea based upon the reasonably competent advice of counsel may not be attacked
because of the possibility that the eventual outcome of an issue may have been favorable to
the petitioner had he or she proceeded to trial.” Lowe v. State, No. W1999-00881-CCA-R3-
PC, 2000 WL 1285333, at *7 (Tenn. Crim. App. Aug. 30, 2000). Instead, the petitioner must
show by clear and convincing evidence that he would not have pled guilty absent the ability
to appeal the certified question. Id. If a petitioner is able to demonstrate both deficiency and
prejudice in counsel’s failure to properly present a certified question for review, the proper
remedy is to vacate the judgment of conviction and allow the petitioner to withdraw the
guilty plea. State v. Boyd, 51 S.W.3d 206, 211 (Tenn. Crim. App. 2000).

       The petitioner alleges his counsel was deficient in failing to properly frame his legal
issues as a certified question. Under Tennessee Rule of Criminal Procedure 37, the
defendant who pleads guilty may nevertheless lodge an appeal if:

               (A) the defendant entered into a plea agreement under Rule
               11[(c)]4 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, and the following requirements
               are met:

               (i) the judgment of conviction or other document to which such
               judgment refers that is filed before the notice of appeal, contains
               a statement of the certified question of law that the defendant
               reserved for appellate review;

               (ii) the question of law is stated in the judgment or document so
               as to identify clearly the scope and limits of the legal issue
               reserved;


       4
         See State v. Lands, 377 S.W.3d 678, 680-84 (Tenn. Crim. App. 2012) (concluding that Rule 37
contained certain clerical errors).

                                                -6-
               (iii) the judgment or document reflects that the certified question
               was expressly reserved with the consent of the state and the trial
               court; and

               (iv) the judgment or document 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) (2010).5 Under the Rule, the question appealed must be
dispositive. Tenn. R. Crim. P. 37(b)(2)(A). A question is dispositive when the appellate
court is left with two options: to affirm the judgment or to reverse the trial court and dismiss
the case. State v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007); State v. Robinson, 328 S.W.3d
513, 518 n.2 (Tenn. Crim. App. 2010). Although the parties and trial court may be in
agreement that a question is dispositive, the reviewing court is not bound by such an
agreement, and must make an independent determination that the certified question is
dispositive. Dailey, 235 S.W.3d at 134-35. When the record contains incriminating evidence
apart from that challenged through the certified question, the appellate court must dismiss
the appeal because the certified question is not dispositive. See id. at 135-36 (citing State v.
Walton, 41 S.W.3d 75 (Tenn. 2001).

       In State v. Preston, the Tennessee Supreme Court required that in reserving a certified
question, “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.” State v. Preston, 759 S.W.2d 647, 650
(Tenn. 1988); see Tenn. R. Crim. P. 37(b)(2)(A)(ii). Regarding the scope of the certified
question, the Court in Preston elaborated:

               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.



       5
       This provision has since been amended. 2012 Tennessee Court Order 0025, No. M2012-01977-SC-
RL2-RL (Tenn. Dec. 18, 2012).

                                               -7-
Preston, 759 S.W.2d at 650 (emphasis added). These requirements regarding the framing
of the question are “‘explicit and unambiguous.’” State v. Day, 263 S.W.3d 891, 899 (Tenn.
2008) (quoting State v. Irwin, 962 S.W.2d 477, 479 (Tenn.1998)); State v. Pendergrass, 937
S.W.2d 834, 837 (Tenn. 1996). “No issue beyond the scope of the certified question will be
considered.” Preston, 759 S.W.2d at 650.

         On direct appeal, this Court held that the certified question was not dispositive of the
case and dismissed the appeal. The Court’s reasoning was that the juvenile victim had given
a statement (which was part of the record), and the State could have proceeded to trial on this
basis alone. The Court did not consider whether the juvenile’s testimony was an
“independent source” of the facts of the crimes because this question was not part of the
certified question reserved by the petitioner. Carter, 2011 WL 3303714, at *11n.5; see, e.g.,
State v. Williams, 784 S.W.2d 660, 664 (Tenn. Crim. App. 1989) (“As respects witnesses,
if their connection to the evidence is discovered by reason of an independent source, or if the
connection between the primary taint and the witness is so attenuated as to dissipate the taint,
the primary taint is purged and the evidence is admitted because it is sufficiently
distinguishable from the primary illegality.” (Footnotes omitted)). Apparently based on the
evidence of the victim’s statement, the Court concluded that even those certified questions
properly preserved – e.g., whether the initial search was lawful pursuant to consent – were
not dispositive of the case.

        Because the ultimate disposition of the direct appeal was to dismiss the case for lack
of jurisdiction based on the fact that the question presented was not dispositive, the issues
of law which the petitioner asserts would have resulted in the dismissal of his case have not
been previously determined. T.C.A. § 40-30-106(h) (defining a previously determined issue
as one where there has been a ruling on the merits after a full and fair hearing). Certainly, the
issue of ineffective assistance of counsel has not been previously determined.

        The question remaining is whether the post-conviction petition presents a colorable
claim entitling the petitioner to a hearing. A colorable claim is one that “if taken as true, in
the light most favorable to the petitioner, would entitle petitioner to relief under the
Post-Conviction Procedure Act.” Tenn. Sup. Ct. R. 28 § 2(H). Pro se petitions are held to
less stringent standards than pleadings drafted by attorneys when considering whether a
colorable claim has been asserted. Allen v. State, 854 S.W.2d 873, 875 (Tenn. 1993). The
petitioner argues that the victim’s testimony, which was the basis for dismissal on appeal,
would not have been discovered had police not opened the locked box. He alleges that
several meritorious issues were not argued before the trial court by his counsel or were not
properly preserved in the certified question, particularly the validity of the search of the
locked box within the vehicle. The petitioner avers that he would not have pled guilty absent
the opportunity to challenge the legality of the search through a certified question and that

                                               -8-
his attorneys “guaranteed” that the appellate court would hear his “legal question.” He also
asserts his plea was based on his attorneys’ encouraging assessment of the likelihood of
prevailing on the certified question and their statement that without the photographs, the
State would have no case.

        We conclude that the petitioner has stated a colorable claim under the Post-Conviction
Procedure Act. Ultimately, dismissal of the certified question was predicated on the fact that
“[t]he certified question does not contemplate why the State could not proceed based upon
the testimony of the juvenile victim.” Carter, 2011 WL 3303714, at *11n.5. The petition
alleges, essentially, that the victim’s testimony was “fruit of the poisonous tree”; that counsel
should have explored this issue; that counsel was deficient in preserving issues for appeal by
failing to properly argue them before the trial court or to properly frame the certified
question; and that the petitioner pled guilty based on counsel’s representations that his legal
issues would be addressed. To establish deficiency, the petitioner must “prove the fact of
counsel’s alleged error by clear and convincing evidence.” Dellinger v. State, 279 S.W.3d
282, 294 (Tenn. 2009) (emphasis omitted). Furthermore, whether the guilty plea was
predicated on the preservation of this particular issue is a question of fact. We reiterate that
“it is not necessarily the case that the inducement to plead guilty is the ability to have a
certified question considered on appeal.” Ruiz, 2001 WL 1246397, at *4. We further note
that the determinations in the opinion dismissing the certified question may make it difficult
for the petitioner to show prejudice with regard to certain issues. Nevertheless, we conclude
that the petition states a colorable claim.

                                       III. Conclusion

        Based on the foregoing, the judgment of the post-conviction court is reversed, and the
case is remanded for further proceedings consistent with this opinion. The trial court shall
appoint counsel for the petitioner, upon his showing of inability to retain his own lawyer.




                                                     _________________________________
                                                     PAUL G. SUMMERS, Senior Judge




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