                                                                                         05/05/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 17, 2019

             STATE OF TENNESSEE v. JUAN DEWAYNE HALL

                  Appeal from the Criminal Court for Knox County
                     No. 112607 Steven Wayne Sword, Judge
                     ___________________________________

                           No. E2019-00024-CCA-R3-CD
                       ___________________________________


On December 3, 2018, the Defendant, Juan Dewayne Hall, entered an Alford plea to the
offense of possession with intent to deliver over 26 grams of cocaine, a Schedule II
controlled substance. As a condition of his plea, the Defendant expressly preserved two
certified questions of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of
Criminal Procedure, stemming from his denied motion to suppress. After thorough
review, we conclude that the certified questions do not meet the requirements of Rule
37(b)(2)(A) and State v. Preston, 759 S.W.2d 647 (Tenn. 1988), and, as a result, this
court is without jurisdiction to consider the appeal. Accordingly, the appeal is dismissed.

              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and NORMA MCGEE OGLE, JJ., joined.

Cameron D. Bell, Knoxville, Tennessee, for the appellant, Juan Dewayne Hall.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ken Irvine, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                         FACTS

        On July 11, 2017, Knoxville Police Department Officer J.D. Hopkins was
dispatched to Magnolia Avenue at approximately 2:22 a.m. following an anonymous 911
call that reported that someone was selling drugs in a parking lot there. Officer Hopkins
was the only officer on the scene and arrived without lights or sirens and did not block
the vehicle that was in the parking lot. He noticed four people, one woman and three
men, in the parking lot when he arrived, including the Defendant. He witnessed what
appeared to be some sort of “exchange” between the Defendant and a woman in the
parking lot. He also noticed a “No Trespassing” sign in the parking lot, which he
testified had been placed there by the owner at the request of police following previous
criminal activity in the parking lot.

        Officer Hopkins testified that he initially addressed only the woman upon arriving
at the scene and did not draw a weapon or make threatening gestures towards the group.
He asked the group for their names and social security numbers and asked them to “hang
tight for a minute, okay?” while he went back to his cruiser to run the names and social
security numbers through his computer. Officer Hopkins’ attention switched to the
Defendant because he was “visibly intoxicated” and “walk[ed] over to” Officer Hopkins
while holding a bottle full of “a blue liquid.” When asked if he had anything on his
person, the Defendant “start[ed] to reach into his pocket,” which contained a “suspicious
bulge[.]” Because Officer Hopkins was in “close proximity” to the Defendant and
“d[id]n’t know if [the Defendant had] a weapon” in his pocket, he told the Defendant to
stop reaching into his pockets. He tried to reach into his pocket a second time, and
Officer Hopkins again told him not to. He tried to reach into his pocket a third time, and
Officer Hopkins then took him into custody for public intoxication. Officer Hopkins
testified that he “smelled a strong odor of alcohol” coming from the Defendant, who was
“wobbling,” “mumbling,” and “slurring his words[.]”

      The trial court dismissed the Defendant’s motion to suppress via written order on
November 26, 2018. He pleaded guilty on December 3, 2018, and this timely appeal
followed.

                                       ANALYSIS

       Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure provides that an
appeal lies from any judgment of conviction upon a plea of guilty or nolo contendere if:

      (A) [T]he defendant entered into a plea agreement under Rule 11(c) 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 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;
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      (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). In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our
supreme court emphasized that the burden is on the defendant to ensure that the
conditions for properly preserving a question of law pursuant to Rule 37 have been met:

      This is an appropriate time for this Court to make explicit to the bench and
      bar exactly what the appellate courts will hereafter require 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 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. [...] No issue beyond the scope of the certified
      question will be considered.

Id. at 650. The burden is on the defendant to ensure compliance with the requirements of
Rule 37(b) and failure to properly reserve a certified question of law will result in the
dismissal of the appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996).

       In State v. Armstrong, our supreme court reiterated that strict compliance with
Preston is required:
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       [O]ur prior decisions demonstrate that we have never applied a substantial
       compliance standard to the Preston requirements as urged by the defendant
       in this case. To the contrary, we have described the requirements in
       Preston for appealing a certified question of law under Rule 37 of the
       Tennessee Rules of Criminal Procedure as “explicit and unambiguous.”
       Moreover, we agree with the State that a substantial compliance standard
       would be very difficult to apply in a consistent and uniform manner, and
       therefore would conflict with the very purpose of Preston. We therefore
       reject the defendant’s argument that substantial compliance with the
       requirements set forth in Preston is all that is necessary in order to appeal a
       certified question of law.

State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003) (citations omitted).

       Although the parties agreed that the Defendant’s certified questions of law
regarding being told by an officer to “hang tight” constituted a seizure and whether the
officer had probable cause to believe that the Defendant was publicly intoxicated were
dispositive of the case, we are not bound by that determination, see State v. Thompson,
131 S.W.3d 923, 925 (Tenn. Crim. App. 2003), and instead “must make an independent
determination that the certified question is dispositive,” State v. Dailey, 235 S.W.3d 131,
135 (Tenn. 2007) (citation omitted). “An issue is dispositive when this court must either
affirm the judgment or reverse and dismiss.” State v. Wilkes, 684 S.W.2d 663, 667
(Tenn. Crim. App. 1984).

       The Defendant’s judgment reflects that his guilty plea was entered with “Certified
Question Findings Incorporated by Reference.” The Defendant supplemented the
technical record with the following order, which was filed prior to his notice of appeal
and signed by the prosecution, defense counsel, and the trial court:

               This matter having come before the Court on this the 3rd day of
       December, 2018, upon Defendant’s request and consent of the State to
       enter a plea of guilty in his best interest reserving the right to appeal a
       certified question of law that is dispositive of the case pursuant to Tenn. R.
       Crim. P. 37(b)(2). Accordingly,

              IT IS SO ORDERED, ADJUDGED AND DECREED that the
       judgment in this matter shall reflect that, by the consent of the State of
       Tennessee and with the consent of this Court, Defendant has entered a plea
       of guilty, in his best interest, to the offense of possession with intent to sell

                                             -4-
       over 26 grams of cocaine which explicitly reserves the right to appeal the
       following certified questions of law that are dispositive of the case:

       1. Whether the statement of Officer Hopkins to “hang tight a minute”
       considered in conjunction with the other applicable Daniel [sic] factors
       constituted a seizure of Defendant, and if so, whether Officer Hopkins had
       sufficient probable cause to justify this seizure.

       2. Whether Officer Hopkins had sufficient probable cause to believe that
       Defendant committed the offense of public intoxication in order to seize
       and/or arrest the Defendant when he placed Defendant in handcuffs.

       These two questions fail to clearly identify the “scope and limits of the legal
issue.” State v. Long, 159 S.W.3d 885, 887 (Tenn. Crim. App. 2004). Further, as we
have laid out, our supreme court has stated that in “questions of law involv[ing] the
validity of searches and the admissibility of [evidence], the reasons relied upon by the
defendant in the trial court at the suppression hearing must be identified in the statement
of the certified questions of law.” Preston, 759 S.W.2d at 650. The above questions do
not clearly state the reasoning that the Defendant employed during the suppression
hearing, nor do the questions state the reasoning the trial court employed in denying the
Defendant’s motion to suppress and were therefore not properly preserved. See, e.g.,
State v. Casey Treat, No. E2010-02330-CCA-R3-CD, 2011 WL 5620804, at *5 (Tenn.
Crim. App., Nov. 18, 2011) (a certified question of law that did not “articulate the
reasons previously relied upon by the Defendant in support of his argument [and did] not
describe the trial court’s holdings on the constitutional issues presented” was overly
broad). The scope and limits of the legal issue reserved, the reasons relied upon by
Defendant in the trial court at the suppression hearing, and the trial court’s reasoning for
denying the motion to suppress should be discernable from the certified questions of law
without looking at any other portions of the appellate record. See State v. Jeffrey Van
Garrett, No. E2018-02228-CCA-R3-CD, 2020 WL 1181805, at *3 (Tenn. Crim. App.
Mar. 11, 2020).

       Based on the above analysis, this court is without jurisdiction to review the merits
of the Defendant’s appeal because he has failed to properly preserve these two certified
questions of law, and the appeal is therefore dismissed. See Pendergrass, 937 S.W.2d at
838.

                                     CONCLUSION

        Based on the foregoing authorities and reasoning, we dismiss the appeal for lack
of jurisdiction.
                                           -5-
 ____________________________________
 ALAN E. GLENN, JUDGE




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