         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                            JULY 1998 SESSION
                                                   FILED
                                                  September 24, 1998

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )              Appellate C ourt Clerk
                                    )
           Appellee,                )    C.C.A. No. 02C01-9707-CC-00283
                                    )
vs.                                 )    Lauderdale County
                                    )
JAMIE WALKER,                       )    Hon. Joseph H. Walker, Judge
                                    )
           Appellant.               )    (Statutory Rape - Certified Question)




FOR THE APPELLANT:                       FOR THE APPELLEE:

CHARLES P. RONEY                         JOHN KNOX WALKUP
Attorney at Law                          Attorney General & Reporter
P.O. Box 542
Union City, TN 38282-0542                CLINTON J. MORGAN
                                         Assistant Attorney General
                                         425 Fifth Ave. N., 2d Floor
                                         Nashville, TN 37243-0493

                                         ELIZABETH T. RICE
                                         District Attorney General

                                         MARK DAVIDSON
                                         Asst. District Attorney General
                                         P.O. Box 562, 302 Market St.
                                         Somerville, TN 38068




OPINION FILED:________________

AFFIRMED

CURWOOD WITT, JUDGE
                                       OPINION

              The defendant, Jamie Walker, entered best-interest guilty pleas1 to

three counts of statutory rape in the Lauderdale County Circuit Court. With the

consent of the state and the trial court, he reserved the certified question of whether

the trial court correctly determined he was competent to stand trial. Thereafter, he

perfected his appeal to this court, and that certified question is now before us for

consideration. After studying the record and the briefs of the parties, we have

determined (1) that the certified question is properly before us, and (2) the trial court

did not abuse its discretion in ruling the defendant was competent to stand trial.

Accordingly, we affirm the judgment of the trial court.



              The defendant is a mildly mentally retarded adult. After the initiation

of the proceedings against him, he was examined by two licensed psychologists.

The trial court then conducted a hearing on the issue of competency. The defense

expert opined that the defendant was not competent to stand trial. He admitted the

defendant fell into a "gray area." The state's expert opined the defendant was

competent; however, he testified "it was somewhat borderline and marginal[.]" In

an order finding specific facts related to the defendant's competence, the trial court

ruled, "[A]lthough the defendant is marginally competent . . . he is competent

sufficient to address the issue of the charge against him."



              After the competency hearing, the defendant entered his guilty pleas

subject to the certified question of the propriety of the trial court's determination of

competency. In a well-drafted pleading, the defendant set forth the certified

question and the corollary information required by State v. Preston, 759 S.W.2d 647


       1
       In North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), the United
States Supreme Court held that a criminal defendant may enter a guilty plea
without admitting guilt if the defendant intelligently concludes his best interests
would be served by a plea of guilty.

                                           2
(Tenn. 1988) and State v. Pendergrass, 937 S.W.2d 834 (Tenn. 1996). This

pleading was incorporated by reference in the guilty plea document, which noted,

"Defendant reserves the right to appeal the certified issue of law attached hereto

and agreed upon and consented to by the defendant, trial judge and State of

Tennessee." Thereafter, a sentencing hearing was held, and each judgment

entered reflects the notation "certified question of law." The trial court ordered that

the previously filed statement of the certified question be attached to the judgment

forms; however, it does not appear as an attachment to the judgments in the

technical record.



                                           I

              As a threshold issue, the state questions whether the certified

question is properly before the court. The state finds a fatal deficiency in the

absence of the statement of the certified question in the judgment forms. 2 We

disagree.



              Our supreme court has recently addressed the proper procedure for

preserving a question of law under Rule of Criminal Procedure 37(b)(2). In State v.

Pendergrass, 937 S.W.2d 834, the court reiterated its admonitions from State v.

Preston, 759 S.W.2d 647:

       Regardless of what has appeared in prior petitions, orders, colloquy
       in open court and 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 the
       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 the 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


       2
      The defendant elected not to file a reply brief addressing this issue. We
presume he opposes dismissal of his appeal on this basis.

                                          3
       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 the 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.

Pendergrass, 937 S.W.2d at 836-37 (quoting Preston, 759 S.W.2d at 650)

(emphasis added in Pendergrass). The Pendergrass court also observed that the

Preston prerequisites would be met if the final judgment referred to or incorporated

"any other independent documents which would satisfy the Preston requirements."

Pendergrass, 937 S.W.2d at 837.



              In the case at bar, the defendant thoroughly summarized the certified

question and other pertinent information in a pleading entitled "Certified Question

of Law." The plea agreement was prepared with specific reference to the certified

question and the consent of the state and the trial court. The judgments reflect the

notation “certified question of law.” As reflected in the transcript of the sentencing

hearing contained in the appellate record, the trial court ordered that the certified

question pleading be attached to the final judgments. Although the certified

question pleading is not attached to the judgments in the technical record, it

appears elsewhere in the technical record and bears a file stamp with the same

date to which the trial court referred in ordering its attachment to the judgments.

Although it is a better practice for the appellant to take care that any incorporated

documents are physically attached to the judgment when so ordered by the trial


                                          4
court, we hold in this case that the defendant has properly certified his question to

this court consistent with the requirements of Preston and Pendergrass. See

Pendergrass, 937 S.W.2d at 836-37; State v. Ricky Gene Wilkerson, No. 01C01-

9708-CR-00362, slip op. at 2 (Tenn. Crim. App., Nashville, May 22, 1998) (Rule 20

Order) (certified question properly before the court where final judgments

incorporate by reference the agreed orders setting forth the certified question).



                                         II

              Thus, we turn to the primary issue on appeal -- whether the trial court

properly determined that the defendant was competent to stand trial.            The

defendant argues that the expert evidence presented by his expert is more definitive

and persuasive than the "speculative" testimony offered by the state's expert.



              When a trial court conducts a hearing, it has the opportunity to see

and hear the witnesses and their conflicting testimony. On appeal, the trial court's

findings have the weight of a jury verdict. State v. Tate, 615 S.W.2d 161, 162

(Tenn. Crim. App. 1981). When this court reviews the trial court's finding that a

defendant is competent to stand trial, the question is whether the evidence

preponderates against the trial court's determination. State v. Benton, 759 S.W.2d

427, 431 (Tenn. Crim. App. 1988).



              In the case at bar, both expert witnesses agreed that the question of

the defendant's competency to stand trial was a close one. The state's witness

opined that the defendant’s competence was "somewhat borderline and marginal."

The witness said the defendant is "coachable" in the areas of competency in which

he is weak, and with some extra work by defense counsel, the defendant could be

improved in those areas. Ultimately, however, the state's expert opined that the

defendant is competent for trial. In comparison, the defendant's expert witness

                                         5
testified that the defendant has "intellectual limitations as a result of physical

problems" as opposed to mental illness. As such, the defendant's mental status will

not improve in the future.      He opined that the defendant is incompetent.

Specifically, the defendant is deficient in his ability to assist his attorney and

understand the consequences of a finding of guilt. He agreed with the state's expert

that certain aspects of the proceedings could be explained to the defendant as the

process unfolded.



              At the conclusion of the hearing, the trial court found that the

defendant has some problems in understanding some aspects of the proceedings

against him and some problems with assisting counsel, but these limitations do not

rise to the level necessary for a finding of incompetency. Furthermore, the trial

court found the defendant understood the nature of the accusations. As such, the

trial court found the defendant competent for trial.



              This case presents a typical "battle of the experts." Unfortunately for

the defendant, the trial court weighed the testimony of the state's expert more

heavily than that of the defense expert. The trial court addressed the essential

differences between the state's evidence and defense evidence in its findings of

fact. It resolved these issues adversely to the position advanced by the defendant.

On appeal, the defendant has not convinced us that the evidence preponderates

against the trial court's determination of competency.



              The judgment of the trial court is affirmed.




                                          _______________________________
                                          CURWOOD WITT, JUDGE


                                         6
CONCUR:




_____________________________
JOE G. RILEY, JUDGE



_____________________________
ROBERT W. WEDEMEYER, SPECIAL JUDGE




                                7
