        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs February 14, 2012

            STATE OF TENNESSEE v. ANDRE JON SIMMONS, II

              Direct Appeal from the Circuit Court for Madison County
                        No. 10-597    Roger A. Page, Judge


                 No. W2011-01004-CCA-R3-CD - Filed June 26, 2012


The Defendant-Appellant, Andre Jon Simmons, II, pled guilty in the Circuit Court of
Madison County to possession with intent to sell more than .5 grams of cocaine, a Class B
felony, and simple possession of a controlled substance, a Class A misdemeanor. He
received an effective sentence of ten years, suspended to probation. Pursuant to Tennessee
Rule of Criminal Procedure 37(b)(2)(A), Simmons attempted to reserve the following
certified question of law: “Whether the cocaine and oxycodone should have been suppressed
by the Circuit Court for an illegal stop and search of Andre Jon Simmons.” Because the
certified question fails to identify the scope and limits of the legal issue reserved, we
conclude that we are without jurisdiction to consider it. The appeal, therefore, is dismissed.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the Defendant-Appellant, Andre Jon Simmons, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General and James W. (Jim)
Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

        Background. Simmons was indicted for the possession of more than .5 grams of
cocaine with the intent to sell, possession of more than .5 grams of cocaine with the intent
to deliver, possession of oxycodone with the intent to sell, and possession of oxycodone with
the intent to deliver. The drugs were found during a search of Simmons following a traffic
stop. Simmons filed a motion to suppress the evidence seized during the search, arguing that
“a cracked windshield does not create probable cause to search the vehicle or the persons in
it.” The trial court held an evidentiary hearing on the matter.

        Investigator Tikal Greer of the Jackson Madison County Metro Narcotics Unit
testified that he was patrolling in the area of several night clubs when he saw a maroon
Chevrolet car occupied by three men. He noticed a crack in the car’s windshield that he
believed was a safety hazard, and he followed the car when it left a club parking lot.
Investigator Greer called for backup to assist with a traffic stop, which he initiated once he
knew other officers were near. Greer approached the car, and Simmons, the driver, lowered
his window. Investigator Greer smelled the odor of marijuana coming from inside the car.
By this time, other officers had arrived to assist. Greer wrote Simmons a citation based on
the cracked windshield and then ordered the three men out of the car because he believed
marijuana was present. As Simmons got out, Greer saw marijuana shake, or seeds and stems,
in plain view on the floorboard of the car. The officers searched the car and found more
shake on the front passenger side. They arrested Simmons and the front passenger based on
the marijuana. Investigator Greer testified that Investigator Smith searched Simmons
incident to his arrest and discovered pills and individually bagged quantities of cocaine.

       Investigator Andrew Smith, a Deputy Sheriff with the Madison County Sheriff’s
Department assigned to the Metro Narcotics Unit, testified that he responded to assist Greer
with the arrest and search of Simmons. When Smith arrived at the scene of the traffic stop,
other officers were searching the car. After Greer found marijuana shake, he told the other
officers to arrest the car’s occupants. Investigator Smith arrested Simmons and then searched
him. In Simmons’s crotch area, Smith found cocaine packaged in plastic bags and a plastic
bag containing pills, which a lab analysis later identified as oxycodone. Simmons also had
approximately $200 in cash and two cell phones.

        Simmons testified that he was not at any night clubs on the night in question. He was
driving his friend’s car when Investigator Greer pulled him over. Simmons had not noticed
the crack in the windshield until Investigator Greer mentioned it to him. No one smoked
marijuana in the car that night. On cross-examination, Simmons testified that there was in
fact a crack in the windshield and that Investigator Greer told him that the crack was the
reason for the traffic stop. Investigator Greer also told Simmons that he smelled marijuana
at the time Simmons lowered the car window.

       During the hearing, counsel for Simmons conceded that a cracked windshield was a
lawful basis for a traffic stop.

       At the conclusion of the evidence, the trial court denied the motion to suppress. It
specifically accredited Investigator Greer’s testimony that he saw the cracked windshield

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before stopping Simmons and that he smelled the odor of marijuana coming from the car.
In a written order, the trial court further stated:

        The Court finds the vehicle the defendants were driving was lawfully stopped
        for a crack [sic] windshield. The Court also finds officers lawfully searched
        the vehicle after Investigator Greer smelled the odor of Marijuana from the car
        after the defendant rolled down his window. . . . The court also finds the drugs
        and other items seized from the defendants [sic] person was [sic] the result of
        a lawful search incident to arrest.

        Simmons later entered a conditional guilty plea to the offenses of possession of more
than .5 grams of cocaine with the intent to sell and simple possession of a controlled
substance. The judgment forms reflect that Simmons reserved a certified question of law.
Three days after the judgments were filed, the trial court filed an agreed order stating that the
parties and the court consented to the reservation of the certified question as part of the plea
agreement and that the question was dispositive of the case. It stated that the agreed order
was incorporated into the judgment. Simmons later filed a timely notice of appeal.

                                                ANALYSIS

        The judgment forms provide that Simmons reserved the following certified question:
“Whether the cocaine and oxycodone should have been suppressed by the Circuit Court for
an illegal stop and search of Andre Jon Simmons.” Simmons’s brief states the issue in
broader terms: “Whether the trial court properly denied the [sic] Mr. Simmons’s motion to
suppress.” The brief asserts that “the time, manner, or scope of the investigation exceed[ed]
the proper parameters,” and further attacks the credibility of Investigator Greer’s testimony
regarding the basis of the traffic stop and the search of the car.1 Upon review, we hold that
the certified question does not clearly identify the scope and limits of the legal issue reserved,
and we are therefore without jurisdiction to consider this appeal.




        1
          Confusingly, at another point in Simmons’s brief, he concedes that probable cause existed to
support the traffic stop. Indeed, the brief is confusing for numerous reasons and is replete with glaring errors
in style and substance, a few of which we mention here. In conceding that probable cause existed, Simmons
discusses events and people that are apparently not connected to this case. He states, “Indicates [sic] herein,
the appellant concedes that he was lawfully stopped by Officer Harper for disregarding a stop sign. Thus,
the appellant concedes that Officer Harper had probable cause to stop the vehicle for a traffic violation.”
Additionally, the brief often directly quotes sources without indicating such. Finally, the relief Simmons
requests is a remand to the trial court for further proceedings, relief which is improper on an appeal of a
certified question of law. State v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim. App. 2000).

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       Tennessee Rule of Criminal Procedure 37(b)(2)(A) allows for an appeal from any
order or judgment on a plea of guilty or nolo contendere if the defendant reserves the right
to appeal a certified question of law that is dispositive of the case, so long as the following
four 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 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). The Tennessee Supreme Court clearly outlined the
requirements for reserving a certified question of law in State v. Preston:

       [T]he dispositive certified question of law reserved by defendant for appellate
       review . . . 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. 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 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. Of course, the

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       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.

759 S.W.2d 647, 650 (Tenn. 1988) (emphasis added). As the Tennessee Supreme Court
stressed, “Preston puts the burden of reserving, articulating, and identifying the issue upon
the defendant.” State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996).

       This court has previously required certified questions of law to be narrowly framed.
In State v. Nicholas J. Johnson, this court concluded that it did not have jurisdiction of the
case because the defendant failed to identify the scope and limits of the legal issue reserved
within the expansive area of search and seizure law:

              In the present case, the issue reserved is “the validity of the search and
       seizure of the” Appellant. This overly broad question violates the mandates
       announced in Preston. The question is not only patently non-specific but also
       does not clearly identify the reasons relied upon by the Appellant at the
       suppression hearing. Additionally, review of the question as presently framed
       would potentially require a complete dissertation of the law of search and
       seizure of which this court is not willing to engage in absent specific
       boundaries circumscribed by the Appellant. The holding of Preston created a
       bright-line rule regarding the prerequisites for a Rule 37(b)(2)[(A)] appeal
       from which this court may not depart. See generally Preston, 759 S.W.2d at
       650; but see State v. Harris, 919 S.W.2d 619, 621 (Tenn. Crim. App. 1995)
       (issue need not be framed in standard “law school” format; statement satisfies
       Preston if appellate court can ascertain from the record the scope of the issue
       presented).

No. M2000-03162-CCA-R3-CD, 2001 WL 1356369, at *2 (Tenn. Crim. App., at Nashville,
Nov. 6, 2001) (footnote omitted), perm. app. denied (Tenn. Apr. 8, 2002). In State v. Kale
J. Sandusky, this court concluded that the defendant’s certified question was overly broad in
light of the narrower issue argued by the defendant in his appellate brief:

               The issue reserved in the trial court’s judgment is “whether or not the
       entries by law enforcement into [the Defendant’s] home on October 23, 2006
       were in violation of constitutional guarantees against unreasonable searches
       and seizures under the state and federal constitutions. . . .” The Defendant’s
       brief, however, frames the issue as follows: “Must arrest warrants for the

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       offense of ‘failure to appear’ be issued by a neutral and detached magistrate
       upon a sworn affidavit setting forth probable cause?”

               The Defendant’s certified question is overly broad and fails to clearly
       identify the scope and limits of the legal issue reserved. We point out that the
       certified question does not mention the validity of an arrest warrant.

No. M2008-00589-CCA-R3-CD, 2009 WL 537526, at *3 (Tenn. Crim. App., at Nashville,
Mar. 4, 2009), perm. app. denied (Tenn. Aug. 24, 2009).

       Here, we conclude that the certified question presented by Simmons fails to precisely
identify the scope and limits of the legal issue reserved. See Tenn. R. Crim. P.
37(b)(2)(A)(ii). In attempting to reserve the question of “[w]hether the cocaine and
oxycodone should have been suppressed by the Circuit Court for an illegal stop and search
of Andre Jon Simmons,” he asks this court to conduct a complete overview of search and
seizure law as applied to the facts of this case. This court has repeatedly declined to engage
in or conduct such an overview. See Nicholas J. Johnson, 2001 WL 1356369, at *2; State
v. Randal L. Cheek, No. M2000-00203-CCA-R3-CD, 2000 WL 1838584, at *4 (Tenn. Crim.
App., at Nashville, Dec. 14, 2000) (dismissing appeal because certified question, “whether
there was a lawful or unlawful search of [the defendant’s] residence by police officers,” was
overly broad question in violation of Preston), overruled on other grounds by State v.
Sigifredo Ruiz, No. M2000-03221-CCA-R3-CD, 2001 WL 1246397, at *4 (Tenn. Crim.
App., at Nashville, Oct. 17, 2001).

        Simmons’s certified question is overly broad for several reasons. First, the certified
question does not adequately set forth the legal basis for Simmons’s claim. It is unclear
whether the police action is allegedly illegal under the United States Constitution, the
Tennessee Constitution, or both. Additionally, assuming he alleges a constitutional violation,
he fails to mention any of the exceptions to the warrant requirement that potentially apply.
See State v. Tobias Toby Horton, No. W2008-01170-CCA-R3-CD, 2009 WL 2486173, at
*6 (Tenn. Crim. App., at Jackson, Aug. 13, 2009) (“In light of the facts of this case and the
trial court’s ruling at the suppression hearing, the failure to mention the exigency exception
to the warrant requirement in the certified question of law is fatal to this appeal.”), perm. app.
denied (Tenn. Dec. 14, 2009). In particular, the question does not mention reasonable
suspicion, probable cause, search incident to arrest, or the automobile exception to the
warrant requirement. All of these concepts would presumably be central to Simmons’s
claim. As framed, the question is patently non-specific because it fails to identify the scope
and limits of the legal issue raised and the reasons relied upon by Simmons at the suppression
hearing. Moreover, the broad terms of the certified question are not cured by Simmons’s
narrower assertions in his appellate brief. See id.; Kale J. Sandusky, 2009 WL 537526, at

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*3. Because Simmons has failed to properly identify the scope and limits of the legal issue
reserved, we are without jurisdiction to consider this appeal.

                                     CONCLUSION

       Upon review, we conclude that Simmons did not properly identify the scope and limits
of the issue reserved in his certified question of law, and we are without jurisdiction to
consider the appeal. Accordingly, the appeal is dismissed.


                                                  ______________________________
                                                  CAMILLE R. McMULLEN, JUDGE




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