                                                                                           09/05/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 27, 2017

               STATE OF TENNESSEE v. CHARLES FOWLKES

                Appeal from the Criminal Court for Hamilton County
                          No. 297534 Don W. Poole, Judge
                     ___________________________________

                           No. E2016-02386-CCA-R3-CD
                       ___________________________________


ROBERT L. HOLLOWAY, JR., J., concurring.

        I concur with the majority’s opinion affirming the trial court’s judgment based on
the failure of the Defendant to strictly comply with the prerequisites established in State
v. Preston, 759 S.W.2d 647 (Tenn. 1988).

        Based on the record before us, the trial court and the State did not expressly state
that the certified question was dispositive as required by Preston. See id. at 650.
However, the petition to enter plea of guilty, which was signed by the Defendant, the
Defendant’s counsel and an Assistant District Attorney General, specifically notes that
the Defendant is reserving a certified question “on the basis of the lack of probable cause
for the stop and seizure of the Defendant before arrest.” The judgment has handwritten
on its face, “This question is expressly reserved as part of the plea agreement. Both the
State and the court consent to this reservation. Certified question is attached [as] Exhibit
1.” Exhibit 1 states the certified question and is signed by the trial judge.

        Tennessee Rule of Criminal Procedure 37(b)(2)(A)(iv) requires only that “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[.]” (emphasis added). In my opinion, the statements in the documents listed in the
above paragraph “reflect” that the parties and the trial court are of the opinion that the
certified question is dispositive. If the trial court or the State did not think the question
was dispositive, why go through this process? In my experience, what often happens
after an appeal involving a certified question is dismissed other than on the merits is that
the defendant files a post-conviction relief petition alleging that he or she received
ineffective assistance of counsel because trial counsel was deficient in drafting or
reserving the certified question. If the defendant is indigent, post-conviction counsel
must be appointed. During the hearing, trial counsel usually has to admit that his or her
legal performance was deficient in drafting or reserving a certified question. The post-
conviction court then grants post-conviction relief, setting aside the guilty plea because it
was not knowingly entered due to ineffective assistance of counsel. Then, there is a
second guilty plea in which a new certified question is reserved that everyone hopes
complies with Tennessee Rule of Criminal Procedure 37(b) and Preston.

        Even if the State and the trial court had expressly stated that the certified question
is dispositive, this court is still required to “make an independent determination that the
certified question is dispositive.” State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007)
(citing Preston, 759 S.W.2d at 651). In my review of this record, I “independently
determine” that the certified question in this case is dispositive. Nevertheless, strict
compliance with the prerequisites established in Preston requires that I concur in
affirming the trial court based on a hypertechnical error, rather than deciding the certified
question based on the record on appeal which includes the transcript from the suppression
hearing.

      Drafting and reserving a certified question should not be a minefield ready to
explode if you step slightly off course but rather an efficient means of avoiding the time
and expense of a trial when the only issue is a legal one. Far too often, it is the former
and not the latter.

                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




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