                                                                                         07/10/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 7, 2020

           STATE OF TENNESSEE v. TIMOTHY TERELL MAYS

                 Appeal from the Circuit Court for Madison County
                   Nos. 17-489, 17-490 Donald H. Allen, Judge


                            No. W2019-01095-CCA-R3-CD


The Defendant, Timothy Terell Mays, was convicted on his guilty pleas to two counts of
sale of cocaine, a Class C felony, and two counts of delivery of cocaine, a Class C felony.
See T.C.A. § 39-17-417(a)(2), (3), (c)(2)(A) (2018). The delivery offenses were merged
with the sale offenses. Pursuant to the plea agreement, he received six-year sentences, to
be served concurrently to each other and consecutively to a previous sentence, and he
reserved a certified question of law regarding mandatory joinder of the present offenses
with the offenses from a previous prosecution in which his guilt had already been
adjudicated. We affirm the judgments of the trial court, and we remand the case for
correction of a clerical error.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed;
                                 Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant
District Public Defender, for the Appellant, Timothy Terell Mays.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jody Pickens, District Attorney General; Shaun A. Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

       The Defendant was charged with several offenses related to the sale of cocaine to a
confidential informant. In case number 17-17, the Petitioner pleaded guilty on May 8,
2017, to sale of cocaine on May 25, 2016, and sale of cocaine on May 31, 2016. On
October 2, 2017, the grand jury returned indictments in cases 17-489 and 17-490. In each
case, the Defendant was charged with one count of sale of cocaine and one count of
delivery of cocaine. Case 17-489 involved offenses occurring on June 13, 2016, and case
17-490 involved offenses occurring on July 6, 2016.

       The Defendant filed a motion to dismiss cases 17-489 and 17-490 on the basis that
they were subject to mandatory joinder with case 17-17. At the hearing on the motion to
dismiss, Jackson Police Sergeant Samuel Gilley testified that he investigated the Defendant
for sale of narcotics to a confidential informant on May 25 and 31, 2016; June 13, 2016;
and July 6, 2016. Sergeant Gilley said the Tennessee Bureau of Investigation (TBI)
Laboratory report reflected that the drugs collected as evidence in case 17-17 were received
by the laboratory on June 8, 2016 and that the report was issued on November 1, 2016. He
said that the TBI Laboratory report reflected that the drugs collected as evidence in cases
17-489 and 17-490 were received by the laboratory on July 13, 2016 and that the report
was issued on November 8, 2016. He said the date the report was issued did not necessarily
reflect when the Jackson Police Department received the report because reports were
delivered electronically “and sometimes the State fails to get them posted.” He agreed that
the laboratory reports could be “search[ed] . . . on a special server or website.” He did not
know if the district attorney general’s office had access to the server or website.

        Sergeant Gilley testified that the same confidential informant was involved in each
of the transactions for which the Defendant was indicted and that each transaction involved
the sale of crack cocaine. He said that each transaction was a separate “buy” on a separate
day. He did not know when the case files were sent to the district attorney general’s office.

        The prosecutor stated to the trial court that he had received the file for cases 17-489
and 17-490 about two months before the Defendant pleaded guilty in case 17-17. He said
that the file had been incomplete and that on March 17, 2017, he sent a note to the district
attorney general’s investigator to collect more evidence before the case could be presented
to the grand jury. He said the case was presented to the grand jury in October 2017, which
was after the Defendant’s guilty plea in case 17-17.

       The trial court denied the motion to dismiss. It found that the offenses were “four
separate criminal episodes” and not part of a single criminal episode.

      The Defendant sought permission from the trial court to file an interlocutory appeal
pursuant to Tennessee Rule of Appellate Procedure 9, although the record does not indicate

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whether the court acted on the Defendant’s motion. The appellate court clerk has no record
of a Rule 9 application filed with this court.

        The Defendant entered into a plea agreement. The transcript of the guilty plea
hearing is not part of the appellate record, but the judgments reflect that the Defendant
pleaded guilty to two counts of sale of cocaine and two counts of delivery of cocaine. The
trial court merged Counts 1 and 2 of case 17-489 and Counts 1 and 2 of case 17-490. The
court imposed the agreed-upon six-year sentences for each case, to be served concurrently
to each other and consecutively to the six-year sentence the Defendant received for case
17-17. As part of the plea agreement, the Petitioner reserved the following certified
question of law:

       Did the trial court err in denying the Defendant’s “Motion to Dismiss
       Indictments” where the Defendant argued that these indictments were subject
       to mandatory joinder under Tenn. R. Cri. Pro. 8(a)(1) and 8(b)?

The parties agreed that the certified question was dispositive of the case.

        Tennessee Criminal Procedure Rule 37(b)(2)(A) provides that an appeal can be
taken from a plea of guilty if the Defendant enters into a plea agreement and explicitly
reserves with the consent of the State and the trial court a certified question of law that is
dispositive of the case. See Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv); State v. Armstrong, 126
S.W.3d 908 (Tenn. 2003). “An issue is dispositive when this court must either affirm the
judgment or reverse and dismiss. An issue is never dispositive when we might reverse and
remand[.]” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984). Furthermore,
the fact that the defendant, the State, and the trial judge have agreed the issue is dispositive
does not bind this court. State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988). “[T]he
appellate courts must . . . determine if the record on appeal demonstrates how that question
is dispositive of the case . . . . If the appellate court does not agree that the certified question
is dispositive, appellate review should be denied.” Id. (citing State v. Jennette, 706 S.W.2d
614, 615 (Tenn. 1986)); see State v. Dailey, 235 S.W.3d 131, 134-35 (Tenn. 2007). The
certified question must also clearly identify “the scope and limits of the legal issue
reserved.” See Tenn. R. Crim. P. 37(b)(2)(A)(ii).

      We conclude that the question presented is dispositive of the case, and we will
undertake review.

       Relative to joinder of offenses, Tennessee Rule of Criminal Procedure provides:

       (a) Mandatory Joinder of Offenses.



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       (1) Criteria for Mandatory Joinder. Two or more offenses shall be joined in
       the same indictment, presentment, or information, with each offense stated
       in a separate count, or the offenses consolidated pursuant to Rule 13, if the
       offenses are:

              (A) based on the same conduct or arise from the same criminal
              episode;

              (B) within the jurisdiction of a single court; and

              (C) known to the appropriate prosecuting official at the time of
              the return of the indictment(s), presentment(s), or
              information(s).

       (2) Failure to Join Such Offenses. A defendant shall not be subject to separate
       trials for multiple offenses falling within Rule 8(a)(1) unless they are severed
       pursuant to Rule 14.

       (b) Permissive Joinder of Offenses. Two or more offenses may be joined in
       the same indictment, presentment, or information, with each offense stated
       in a separate count, or consolidated pursuant to Rule 13, if:

       (1) the offenses constitute parts of a common scheme or plan; or

       (2) they are of the same or similar character.

Tenn. R. Crim. P. 8(a), (b).

       In determining whether multiple offenses constitute a single criminal episode
subject to mandatory joinder pursuant to Rule 8(a)(1), our supreme court has adopted
American Bar Association Standards for Criminal Justice, section 13-1.2 cmt., at 13.10,
which provides:

       “Single criminal episode” offenses normally are generated by separate
       physical actions. The actions may be committed by separate defendants. In
       other respects, however, they are similar to same conduct offenses: they
       occur simultaneously or in close sequence, and they occur in the same place
       or in closely situated places. A critical characteristic of single episode
       offenses, particularly in cases involving otherwise unrelated offenses or
       offenders, is the fact that proof of one offense necessarily involves proof of
       the others.


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State v. Johnson, 342 S.W.3d 468, 474 (Tenn. 2011) (quoting ABA Standards). The
Johnson court said that if multiple acts are to be construed as arising from a single criminal
episode, they “must occur simultaneously or in close sequence and must occur in the same
place or in closely situated places.” Id. The Johnson court stated, “A break in the action
may be sufficient to interrupt the temporal proximity required for a single criminal episode
to exist.” Id. Significantly, in order for offenses to be subject to mandatory joinder, proof
of one “must be inextricably connected with the proof of the other offense.” Id.
Alternatively, however, proof of one offense must constitute a substantial portion of the
proof the other offense. Id.

       In the present case involving docket numbers 17-489 and 17-490, as well as in the
previous case involving docket number 17-17, the Defendant was charged with selling and
delivering cocaine to a confidential informant. The identity of the informant was the same
in each case, and Sergeant Gilley conducted the controlled buys in each case. The offenses
involved separate transactions on different dates. Each was capable of independent
prosecution, based upon the facts that occurred on the date of the transaction, and proof of
the other offenses was not necessary in order to obtain a conviction for any single offense.

        The offenses were not based on the same conduct or did not arise from the same
criminal episode. See Tenn. R. Crim. P. 8(a)(1)(A). We conclude that the trial court did
not err in denying the motion to dismiss, and the Defendant is not entitled to relief on his
certified question of law.

       In a matter that has not been raised by the parties, we note that the judgment form
for Count 2 of Case 17-489 states that the conviction offense is related to delivery of a
Schedule IV drug. The indictment and guilty plea paperwork reflect, however, that the
offense related to delivery of cocaine, which is a Schedule II drug. We remand the case
for correction of a clerical error on this judgment form. See Tenn. R. Crim. P. 36.

        In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed, and the case is remanded for correction of the clerical error.


                                             _____________________________________
                                              ROBERT H. MONTGOMERY, JR., JUDGE




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