     IN THE COURT OF CRIMINAL APPEALS OF
                 TENNESSEE

                   AT NASHVILLE                        FILED
                JULY SESSION, 1999                      October 29, 1999
                                                      Cecil Crowson, Jr.
                                                     Appellate Court Clerk
STATE OF TENNESSEE,               )   C.C.A.
                                      NO.
                                      01C01-9809-CC-00368
                                  )
            Appellee,             )
                                  )   GILES COUNTY
V.                                )
                                  )
                                  )   HON. JUDY G. CALLAHAN, JUDGE
GEORGE SHERRILL PILKINTON,        )
                                  )
            Appe llant.           )   (VEHIC ULAR H OMIC IDE)



FOR THE APPELLANT:                    FOR THE APPELLEE:

HAL HARDIN                            PAUL G. SUMMERS
Counsel for Appellant At Trial        Attorney General & Reporter

ROG ER T. M AY                        KIM R. HELPER
Counsel for Appellant At Trial        Assistant Attorney General
219 Second Avenue N., Suite 300       2nd Floor, Cordell Hull Building
Nashville, TN 37201-1601              425 Fifth Avenue North
                                      Nashville, TN 37243

M. ANDREW HOOVER                      T. MICHAEL BOTTOMS
Counsel for Appellant On Appeal       District Attorn ey Ge neral

TIMOTHY P. UNDERWOOD                  ROBERT C. SANDERS
Counsel for Appellant On Appeal       Assistant District Attorney General
134 North Second Street
Pulaski, TN 38478                     RICHARD DUNAVANT
                                      Assistant District Attorney General
                                      252 North Military Avenue
                                      P.O. Box 459
                                      Lawrenceburg, TN 38464




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       On October 14, 1996, the Giles County Grand Jury indicted Defendant George

Sher ill Pilkinton for aggravated vehicular homicide. On March 16, 1998, Defendant

pled guilty to vehicular homicide pursuant to a negotiated plea agreement. Following

a senten cing hea ring on M ay 5, 199 8, the trial court sentenced Defendant as a

Range I standard offende r to a term of eight years in the Tennessee Department of

Correction. On May 21, 1998, Defendant filed a motion to set aside the sentencing

hearing and/or vacate the plea agreement. The trial court conducted a hearing on

the motion on August 8, 1998, and the trial court denied the motion on August 11,

1998. Defendant challenges his conviction, raising the following issues:

       1) whether the trial court erred when it denied his motion to suppress blood
       sample evidence; and

       2) whether the trial court erred when it denied his motion to set aside the
       senten cing hea ring and /or vacate the plea a greem ent.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                   I. BACKGROUND



       Defendant and the State stipulated to the following facts in the petition to enter

a plea of guilty:

       On July 23, 1996, the de fendant, Ge orge She rill Pilkinton, while working on
       his farm in Giles County, Tennessee, consumed some alcoholic beverages
       during the day, between 2:30 and 5 p.m . At or about 5 p.m . he left his farm
       and drove his pickup truck down Pigeon Ro[o]st Road and struck a mo torcycle
       head-on. The driver of the m otorcy cle, Du stin Clark, was instantly killed. The
       point of impac t betwe en the two veh icles w as ove r the ce nter of th e road in
       the direction that the defendant was driving. Appro ximately 3 hours thereafter,
       a blood sample was taken. The TBI lab found it negative for marijuana but .06
       positive for alco hol. In February the blood sample was at the request of the
       District Attor ney, teste d by a Pe nnsylvan ia lab for m arijuana.

       After he was indicted, Defendant filed a motio n to su ppres s the b lood s amp le

eviden ce tha t was o btaine d in this case. In his motion, Defendant argued that the

evidence shou ld be suppressed because the blood sample was destroyed before the

defense expert was able to perform inde penden t testing.                 The trial court

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subs eque ntly denied the motion after finding that there was no proof that

independent testing of the blood sample by the defense would have produced any

exculpatory evidence.



      Following the denial of his motion to suppress, Defendant entered into plea

negotiations with the State. The parties subsequently entered into an agreement

whereby Defendant agreed to plead guilty to vehicular homicide with a sentence of

eight years in return for the State’s agreement to dismiss all other charges. The

agreement also provided that the trial court would conduct a sentencing hearing to

determine how the sentence would be served. In addition, the agreement provided

that neither party would call any witnesses during the sentencing hearing.



      During his argument at the sentencing hearing, defense counsel stated that

Janice Clark, the victim’s mother, wanted Defendant “to serve somewhere between

the maximum and the minimum sentence”, but she was opposed to full probation.

Shortly thereafter, the prosecutor informed the court that Ms. Clark wanted to be

heard because defense counsel had inferred that she was amenable to something

less than an eight year sentence while, in fact, she was adamant that Defendant

shou ld receive an eight year sentence. Defense counsel then objected to allowing

Ms. Clark to make a statement on the ground that permitting her to testify would be

a violation o f the plea a greem ent.



      The trial court then asked the prosecutor whether the State wanted Ms. Clark

to testify or whether it was Ms. Clark’s ow n idea. The prosecutor responded that he

would prefer that Ms. Clark did not testify, but he believed that she had a right to do

so. The tr ial cou rt subs eque ntly ruled that, as the victim’s mother, Ms. Clark had a

right to make a statement. The trial court also ruled that Ms. Clark wa s not a pa rty

to the agreement and thus, the agre emen t did not affe ct her right to testify. The trial

court the n called M s. Clark to make a statem ent.



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         Ms. Clark subs eque ntly stated that she believed that Defendant should suffer

the consequences of his actions, even though his family would suffer if he was

incarcerated. The trial court then asked Ms. Clark three questions about whether

she was aware of various sentencing provisions governing release eligibility and Ms.

Clark essen tially stated tha t she did n ot want D efenda nt to be able to jus t “walk[]

away”. Neither the pros ecutor nor de fense coun sel asked M s. Clark any questions.



                     II. DENIAL OF THE SUPPRESSION MOTION



                Defendant contends that the trial court erred when it denied his motion

to supp ress b lood s amp le evide nce. W e con clude that D efend ant ha s waive d this

issue.



         “The genera l rule is that a p lea of guilty waives all non-jurisdictional defects,

procedural defects, and constitutional infirmities.” State v. Gross, 673 S.W.2d 552,

553 (Tenn. Crim. App. 1984). However, Rule 37(b)(2)(i) of the Tennessee Rules of

Crim inal Procedure provides for an appeal following a guilty plea in limited situations.

Rule 37(b)(2)(i) states:

         (b) . . . An ap peal lie s from any ord er or jud gme nt in a cr imina l proceeding
         where the law provides for such appeal, and from any judgment of conviction:
                       ....
                 (2) upon a plea of g uilty or nolo c ontend ere if:
                       (i) defendant entered into a p lea ag reem ent un der R ule 11(e) 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 ;

Tenn R. Crim . P. 37(b)(2 )(i).



         The Tenn essee Supre me C ourt set forth the requ iremen ts for pursuing an

appeal pursuant to Rule 37(b)(2)(i) in State v. Preston, 759 S.W.2d 647 (Tenn.

1988). The supreme court stated that

         This is an approp riate time for this Cou rt to make explicit to the bench and bar
         exactly what the ap pellate courts will hereafter require as prerequisites to the
         consideration of the merits of a questio n of law ce rtified pursu ant to
         Tenn.R.Crim.P. 37(b)( 2)(i) or (iv). Regardless of what has appeared in prior

                                              -4-
       petitions, orders, colloquy in open court or 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 defendant for appellate review and the question of law must be stated so
       as to c learly identify the scope and the limits of the legal issue res erved. . . .
       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 cas e. Of cou rse, the bu rden is on defend ant to
       see that the se pre requis ites 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 ce rtified qu estion of law is dispositive and the merits of the
       question certified. No issue beyond the scope of the ce rtified qu estion will be
       considered.

Id. at 650.



       The judgmen t in this case does not contain a sta tement of an y dispositive

question of law, d oes n ot con tain a s tatem ent tha t the ce rtified question was

expre ssly reserved, and does not contain a statement that the State and trial court

agree that the question is dispositive. In fact, nothing in the record indicates that

Defendant made any effort to reserv e the q uestio n of wh ether th e bloo d sam ple

evidence should h ave bee n supp ressed . In short, Defendant has waived this issue

by failing to comply w ith the requirements of Rule 37(b)(2)(i). Defendant is not

entitled to relief on this issue.



       III. DENIAL OF THE MOTION TO SET ASIDE THE SENTENCING
             HEARING AND/OR VACATE THE PLEA AGREEMENT



       Defendant conte nds th at the tria l court e rred w hen it d enied his motion to set

aside the sentencing hearing and/or vacate the plea agreement. We disagree.



       Defendant argues that the State violated the plea agreement when it called

Ms. Clark to testify during the senten cing h earing , even th ough it had sp ecifica lly

agreed not to call any witnesses. The record indicates that the State informed the

trial court that Ms. Clark wanted to make a statement because she believed that

defense counsel had misrepresented her feelings about the sentence that should be



                                            -5-
imposed. After the trial court allowed Ms. Clark to make a statem ent, the State d id

not ask Ms. Clark a single question.



       Tennessee Code Annotated section 40-35-209(b) provides that “[a]t the

senten cing hea ring, the co urt . . . may afford the victim o f the offe nse o r the fam ily

of the victim the opportunity to testify relevant to the sentencing of the defend ant.”

Tenn. Code Ann. § 40-35-209(b) (1997). Thus, the trial court was clearly authorized

to permit Ms. C lark to mak e a sta teme nt. No thing in the ple a agre eme nt limite d this

authority. Further, M s. Clark w as not a p arty to the plea a greem ent an d noth ing in



the record indicates that she otherwise agreed not to make a statement at the

sentencing hearing in return for D efendant’s ag reemen t to plead guilty.



       In addition, it is clear that Defendant was not prejudiced in any manner by Ms.

Clark ’s statement. Ms. Clark’s entire statement takes up less than one page of the

transcript of the sentencing hearing. Moreover, Ms. Clark’s stateme nt is m erely

cumulative of the in forma tion sh e inclu ded in her victim impac t stateme nt. Indeed,

the trial court specifically stated that

       [Ms. Clark] did not say anything of substance that was not included in the
       investigation report filed by the Department of Correction. The Court does not
       remember now, and I don’t think I did at that tim e give an y special w eight to
       the testimony of a grieving mother as to what the sentence should be.



       In short, the plea agreement in this case was simply not violated. Therefore,

the trial court’s denial of the motion to set aside the sentencing hearing and/or

vacate the plea agreement was entirely appropriate. Defen dant is no t entitled to

relief on this issue.



       Accordingly, the judgment of the trial court is AFFIRMED.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge

                                             -6-
CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
NORMA McG EE OGLE, Judge




                               -7-
