                                                                                          10/23/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 4, 2019

            STATE OF TENNESSEE v. DEMETRIUS J. JOHNSON

                 Appeal from the Circuit Court for Madison County
                        No. 17-608 Donald H. Allen, Judge
                     ___________________________________

                           No. W2018-02056-CCA-R3-CD
                       ___________________________________


In November 2017, the Madison County Grand Jury indicted Defendant, Demetrius J.
Johnson, for various drug and firearm offenses. Defendant filed a motion to suppress,
which was denied by the trial court. Defendant then pled guilty to the offenses,
attempting to reserve the following certified question of law for appeal: “Did the affidavit
in support of the search warrant establish probable cause within the four corners of said
affidavit?” After review, we conclude that this court does not have jurisdiction to address
the certified question because the certification did not meet the requirements of State v.
Preston, 759 S.W.2d 647 (Tenn. 1988). We, therefore, dismiss the appeal.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and TIMOTHY L. EASTER, JJ., joined.

George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant
District Public Defender, Jackson, Tennessee, for the appellant, Demetrius J. Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Jody Pickens, District Attorney General; and Matthew Floyd, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                         Factual and Procedural Background

       Defendant’s charges arose out of the execution of a search warrant at Defendant’s
residence on East Deaderick Street in Jackson. According to the State’s factual recitation
at Defendant’s guilty plea submission hearing:
        [On] November 3rd, 2016 at approximately 5:36 a.m., the gang unit
and Metro Narcotics and the SWAT team with the Jackson Police
Department executed a narcotics search warrant at 130 East Deaderick
Street. [Defendant] was the target of the search warrant and he reside[d] at
that address. Upon arrival officers made contact with numerous people
who lived in the house and some family members of [Defendant]. SWAT
then proceeded to clear the residence when the[y] encountered [Defendant]
coming out of the bathroom. [Defendant] was detained and escorted
outside. The officers read the search warrant to him at that time. Sergeant
White[,] who is a member of the SWAT team[,] informed investigators that
[Defendant] had come out of the bathroom and had possibly flushed some
marijuana down the toilet. The officers proceeded to the bathroom where
they noticed a strong odor of marijuana coming from the bathroom. There
were a couple of small packs of what appeared to be marijuana floating in
the toilet and the toilet was running at that time.

        There was some loose marijuana, approximately .15 grams lying on
the bathroom floor beside the toilet. There was a large plastic bag in the
garbage can by the toilet that was wet on the open end and contained
marijuana residue. Officers believed the bag was possibly wet from where
[Defendant] was dumping marijuana down the toilet. [Defendant] had also
lit two incense sticks in the bathroom to cover up the odor of marijuana.

       . . . [A]t that time they did conduct a search of the house initially
using one of the K-9 units. The dog alerted on the garbage can in the
bathroom where [Defendant] had exited and also alerted on the coffee table
in [Defendant’s] bedroom. During the search of [Defendant’s] bedroom,
investigators located a black Crown Royal bag containing marijuana.

       There was also a clear baggie containing crack cocaine in the Crown
Royal bag. Officers also located a digital scale with marijuana residue and
a box of sandwich bags on the same coffee table beside the Crown Royal
bag. The sandwich bags were probably used to package illegal narcotics.
They also located some loose marijuana lying on the floor beside the coffee
table.

       Sergeant Gilley located a Remington 12 gauge shotgun lying on the
floor at the head of [Defendant’s] bed. The shotgun was not loaded, but
Investigator Rhodes located nine 12 gauge shotgun shells in [Defendant’s]
bedroom. Investigator Rhodes also located a Jennings [.]32 semiautomatic
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       pistol lying in a pile of clothes next to [Defendant’s] bed. That gun was
       loaded with six rounds in the magazine and no rounds in the chamber.

              Investigator Rhodes also located a box containing twenty-nine [.]32
       caliber rounds lying in the pile of clothes in close proximity to the handgun.
       There were three additional rounds lying in the floor in [Defendant’s]
       bedroom.

              . . . [Defendant’s] wallet contained his ID and Social Security Card
       on the dresser in this bedroom along with mail addressed to [Defendant].
       The address [where] this search was executed was also on his Tennessee
       ID[.]

               . . . [T]hey did take a statement from one of the other residents of the
       house who stated that the bedroom belonged to [Defendant]. Photos were
       taken of the evidence and the drugs were seized and sent to the TBI lab. . .
       . [T]he total amount of marijuana that was found was 14.17 grams. The
       total cocaine weighed at 1.72 grams.1

                                     Motion to Suppress

       Following his indictment, Defendant filed a motion to suppress the cocaine,
marijuana, drug paraphernalia, and firearms that were recovered as a result of the search
warrant. Defendant asserted that the affidavit for the search warrant did not contain
sufficient indices of probable cause for the warrant to issue. The affidavit read:

       Affiant has received information from a reliable confidential informant who
       has observed [Defendant] in possession of marijuana and cocaine within the
       past 72 hours. The observation was made inside [Defendant’s] residence at
       130 East Deaderick Street. [Defendant] has the address of 130 East
       Deaderick Street listed as his residence on his TN Driver’s License. The
       confidential informant has been proven reliable by providing information
       that has led to the arrest of 32 individuals for outstanding warrants, and
       various narcotic and firearms charges. The informant has been responsible
       for the recovery of at least 190 grams of crack cocaine, at least 150 grams
       of cocaine, at least 4 pounds of marijuana, at least 3 grams of heroin and
       approximately 12 firearms. This confidential informant has also provided


       1
         The State further noted that Defendant had been previously convicted of felony reckless
endangerment in Madison County on November 29, 2010.
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       corroborated information about local street gangs and narcotics activity in
       and around the Jackson, Madison County area.

        At a suppression hearing, Defendant called the affiant, Investigator Ashley
Robertson, who testified that the confidential informant (CI) had worked for the gang unit
for a substantial amount of time. Investigator Robertson stated that he had utilized the CI
two times to obtain search warrants, both of which were successful. He testified that
possession of marijuana and cocaine within the past 72 hours was the most specific
information he could gather from the CI about Defendant and Defendant’s residence.

       Following the hearing, the trial court entered an order denying the motion to
suppress. The trial court found that Investigator Robertson had confirmed that the
address where the CI saw the drugs within the previous 72 hours was Defendant’s
residence. The trial court found that the affidavit adequately established the CI’s basis of
knowledge, reliability, and veracity by the totality of the circumstances. The trial court
further found that the affidavit established probable cause to believe that narcotics would
be found at Defendant’s residence.

                             Guilty Plea Submission Hearing

       On October 9, 2018, Defendant pleaded guilty to all charges. Pursuant to a plea
agreement, the trial court imposed a total effective sentence of thirteen years’
incarceration, as set out below:

Count                          Offense                                     Sentence
  1      Possession of 0.5 grams or more of cocaine with intent     8 years to serve
         to sell
   2     Possession of 0.5 grams or more of cocaine with intent     Merged with Count 1;
         to deliver                                                 no sentence imposed
   3     Possession of marijuana                                    11 months and 29 days
                                                                    to serve
   4     Possession of drug paraphernalia                           11 months and 29 days
                                                                    to serve
   5     Tampering with evidence                                    6 years to serve

   6     Convicted felon in possession of a firearm                 6 years to serve

   7     Convicted felon in possession of a firearm                 6 years to serve

   8     Possession of a firearm during the course of a             5 years to serve;
         dangerous felony                                           merged into Count 12
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   9     Possession of a firearm during the course of a            5 years to serve;
         dangerous felony                                          merged with Count 12
  10     Possession of a firearm during the course of a            5 years to serve;
         dangerous felony                                          merged into Count 14
  11     Possession of a firearm during the course of a            5 years to serve;
         dangerous felony                                          merged into Count 14
  12     Convicted felon in possession of a firearm during the     5 years to serve
         course of a dangerous felony
  13     Convicted felon in possession of a firearm during the     5 years to serve;
         course of a dangerous felony                              merged into Count 12
  14     Convicted felon in possession of a firearm during the     5 years to serve
         course of a dangerous felony
  15     Convicted felon in possession of a firearm during the     5 years to serve;
         course of a dangerous felony                              merged into Count 14

The trial court ordered counts 1-7 to run concurrently. The court also ordered counts 8-
15 to run concurrently with each other but consecutively to counts 1-7.

       In going over the plea agreement with Defendant, the trial court recited a notation
on the plea paperwork that the “State and Defense agree to [an] appeal of a certified
question of law regarding the search warrant affidavit.” The following colloquy then
took place:

              [DEFENSE COUNSEL]: Your Honor, I attached at the end, I
       actually had to hand write it because I didn’t have access to a computer, but
       the [State] reviewed that and everyone is in agreement that the certified
       question -- we had a hearing, Your Honor, back on September the 10th and
       the Court denied our motion. It was a search warrant affidavit obtained by
       Metro Narcotics. We are reserving a certified question on that issue.

              THE COURT:            So the State and Defense are agreeing that . . .
       Defendant would be allowed to appeal a certified question of law pursuant
       to this guilty plea today and then the certified question being, “Did the
       affidavit in support of the search warrant establish probable cause within
       the four corners of said affidavit?”

             [DEFENSE COUNSEL]: Yes, sir. That was the issue the Court
       decided about a month ago.

              THE COURT:            It says, “The parties agree that this certified
       question is dispositive of the case.” So you understand you’ll still have the
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       right to appeal[.] [T]he Court I think denied the Motion to Suppress and for
       whatever reason whatever I stated on the record is my reason, so you can
       still appeal that ruling.

      Defendant attached to the plea paperwork a handwritten statement that read as
follows:

       The State and defense agree to allow the appeal of the following certified
       question of law, pursuant to his guilty plea:

       (1) Did the affidavit in support of the search warrant establish probable
       cause within the four corners of said affidavit?

       The parties agree that this certified question is dispositive of the case.

The handwritten statement contained the heading “State v. [Defendant] #17-608” at the
top of the document. The document was not signed by the parties or the trial court.

       The judgment for Count 1 states in the “Special Conditions” box that the “State
and defense agree to appeal of certified question of law regarding search warrant
affidavit.” Although the judgment form contains a box labeled “Pled Guilty - Certified
Question Findings Incorporated by Reference,” the box checked is the one labeled “Pled
Guilty.”

       This timely appeal follows.

                                          Analysis

                                 Certified Question of Law

       The State contends that the question is not properly certified because the
handwritten question is not included on the judgment form or incorporated by reference,
and the trial court did not agree that the question was dispositive. Defendant responds
that the judgment and order reserving the certified question clearly state that the parties
agree to argue the legality of the search warrant on appeal and that this issue is
dispositive of the case.

       Tennessee Rule of Criminal Procedure 37(b) states that a defendant may appeal
from a plea of guilty if:



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      (A) the 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;

             (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 [S]tate, 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).

       The Tennessee Supreme Court has held that “the final order or judgment from
which the time begins to run to pursue a [Tennessee Rule of Appellate Procedure] 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).

      [W]here 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.

Id.

                                           -7-
       Additionally, “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.” Preston, 759 S.W.2d at 650. The defendant has the burden of
ensuring that the “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.” Id.

       If the judgment of conviction does not set out the certified question, the certified
question may be set out in an independent document that satisfies Preston’s
requirements, if such document is referred to, or incorporated by reference into, the
judgment. See State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998). However, the
Tennessee Supreme Court has rejected a standard of substantial compliance with the
procedural requirements of Rule 37 and has stated that the requirements are “‘explicit and
unambiguous.’” State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003) (quoting Irwin,
962 S.W.2d at 479). Failure to properly certify a dispositive question of law results in
dismissal. Preston, 759 S.W.2d at 650; see e.g., State v. Long, 159 S.W.3d 885, 887
(Tenn. Crim. App. 2004); State v. Christopher Christie, No. M2006-00612-CCA-R3-CD,
2007 WL 152484, at *2 (Tenn. Crim. App. Jan. 18, 2007) (dismissing appeal because the
question was not incorporated by reference and because the judgment did not state that
the State and trial court had given consent to the preservation of the question or that the
parties agreed the question was dispositive).

        Here, we agree with the State that Defendant failed to properly reserve the
certified question due to his lack of compliance with the requirements of Rule 37(b).
None of the judgments contain a statement of the certified question of law reserved by
Defendant for appellate review nor do they refer to any other document which contains
the certified question. Our review of the record indicates that Defendant attached to his
plea paperwork a handwritten document containing what purports to be a certified
question of law; however, this document is neither referred to nor incorporated within the
judgments of conviction. Although the judgment for Count 1 states in the “Special
Conditions” box that the “State and defense agree to appeal of certified question of law
regarding search warrant affidavit[,]” the judgment does not make any explicit reference
to any document containing the certified question. Moreover, although the judgment
form contains a box labeled “Pled Guilty - Certified Question Findings Incorporated by
Reference,” the box actually checked on the judgment is labeled “Pled Guilty.”

       In addition to this omission, we note that neither the judgments nor the
handwritten document attached to the plea paperwork state that the trial judge consented
to the reservation of the certified question or that the trial judge was of the opinion the
question was dispositive of the case. See Preston, 759 S.W.2d at 650. While we may
                                           -8-
conclude that Defendant substantially complied with the requirements of Rule 37(b),
substantial compliance is not enough. Armstrong, 126 S.W.3d at 912. Because
Defendant failed to follow the “explicit and unambiguous” requirements of Preston and
Rule 37(b), we are without jurisdiction to entertain this appeal.

                                      Conclusion

      For the aforementioned reasons, the instant appeal is dismissed.


                                            ____________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




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