                                                                                         04/30/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 April 2, 2019 Session

          STATE OF TENNESSEE v. JOSEPH FRANK BOLKA, III

                  Appeal from the Circuit Court for Tipton County
                      No. 9272     Joe H. Walker, III, Judge
                     ___________________________________

                           No. W2018-00798-CCA-R3-CD
                       ___________________________________


The Defendant, Joseph Frank Bolka, III, entered open guilty pleas to possession of 0.5
grams or more of methamphetamine with the intent to deliver and simple possession of
marijuana, and he was sentenced to serve eight years in the Community Corrections
program. The record reflects that the Defendant attempted to reserve a certified question
regarding the legality of the traffic stop which led to the discovery of the drugs. Because
the notice of appeal was untimely and because the record reflects that the question was
not properly preserved, we dismiss the appeal.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.
GLENN and TIMOTHY L. EASTER, JJ., joined.

Vicki L. Green, Millington, Tennessee, for the Appellant, Joseph Frank Bolka, III.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Mark E. Davidson, District Attorney General; and James Walter
Freeland, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

      The Defendant was driving in Tipton County on December 15, 2016, when
Deputy George Finney of the Tipton County Sheriff’s Office observed him cross the
yellow line separating his lane of traffic from oncoming traffic. Deputy Finney
conducted a traffic stop which ultimately led to the discovery of the drugs in question.
The Defendant filed a motion to suppress the evidence obtained during the search of his
vehicle and to suppress his statements to police, generally alleging that there was no
probable cause for the stop, no probable cause “for the officer waiting twenty-seven
minutes” prior to notifying dispatch, and no evidence that a traffic offense had been
committed.

       According to the testimony presented at the hearing on the motion to suppress,
Deputy Finney observed the Defendant’s vehicle travel over the center line. Deputy
Finney stated that he did not activate his lights immediately and explained that the
activation of his lights triggered the patrol car’s recording mechanism to preserve video
beginning thirty seconds prior to the activation of the lights. Deputy Finney
acknowledged that the video showed the Defendant’s tires on the line rather than over the
line, but he testified that he observed the vehicle cross over the line prior to the events
reflected in the recording.

        The Defendant, who was driving with his daughter and her boyfriend as
passengers, appeared suspiciously nervous to Deputy Finney. The Defendant’s hands
were shaking, and Deputy Finney could see the carotid artery in his neck beating.
Deputy Finney took the Defendant’s driver’s license to the police vehicle and checked
the validity of the Defendant’s license and the vehicle’s license plate. He testified that
while he was at the patrol car, he could see the Defendant making furtive movements, as
though he were either looking for something or trying to hide something. Deputy Finney
acknowledged there was a passenger in the back seat. Deputy Finney asked the
Defendant for consent to search the vehicle, and the Defendant refused. Deputy Finney
testified that he returned to the patrol car, began to write a citation for the driving offense,
and called for a K-9 unit. The occupants of the vehicle were removed, the dog alerted for
the presence of drugs, and police found 3.3 grams of marijuana, 21 grams of
methamphetamine, and 100 ecstasy tablets in the center console.

        Deputy Finney acknowledged that twenty-seven minutes elapsed between the
beginning of the video and the arrival of the dog. The video reflects the lapse of
approximately fifteen minutes between Deputy Finney’s return to the patrol vehicle to
write the ticket and the arrival of the dog. He stated that his “job is not just to write a
ticket to everyone” but “[t]o go beyond traffic stops and to find narcotics and things like
that.” Asked if his purpose in stopping the Defendant was to find narcotics, he answered,
“No, ma’am. But that’s the only way without violating people’s rights that is by
conducting traffic stops, investigating, and asking them questions and things like that.”
He denied, however, prolonging the issuance of the citation, noting that he had to write a
narrative and copy down the vehicle information. He stated that he had not finished
writing the citation when the K-9 unit arrived.

                                             -2-
        Defense counsel contended that there was no probable cause to stop the
Defendant’s vehicle. She also specifically argued that twenty-seven minutes was “too
long” under Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015) (holding that a
traffic stop cannot be prolonged beyond the time reasonably necessary to complete the
purpose for which the stop was made).1

        The trial court issued a written order denying the motion. The trial court did not
address the Defendant’s allegation that the stop was unnecessarily prolonged, but instead
accredited the testimony of Deputy Finney that the Defendant failed to maintain his lane
of traffic, providing reasonable suspicion for the stop. The trial court found that bringing
the dog to sniff was permissible and that the subsequent search was supported by
probable cause because the dog indicated that there were drugs in the vehicle. The trial
court also concluded that the Defendant was not in custody at the time he spoke to police
on the scene and that he had been advised of his rights when he later gave a formal
statement.

       On March 15, 2018, the Defendant pled guilty to the charges in the indictment.
The plea form indicated that the Defendant wished to waive his right to trial and that the
District Attorney General would not recommend a sentence.                The Defendant
simultaneously filed a document entitled “Issues Reserved for Appeal.” This document
noted that the Defendant:

       advises the Court that the following issues are specifically reserved for
       appeal:

              1. Defendant reserves the issue of whether his right to be secure
       from unreasonable searches and seizures, pursuant to Tennessee
       Constitution Article 1, Section 7, and the 4th … Amendment of and to the
       Constitution of the United States of America, was violated when a Deputy
       Finney of the Tipton County Sheriff’s Office stopped him for the traffic
       violation of crossing the center lane of the highway in violation of
       [Tennessee Code Annotated] § 55-8-115 or § 55-8-125 and held him at that
       location, without issuing a citation as required by [Tennessee Code
       Annotated] § 55-10-207 within the period of the stop, and instead held him
       for twenty-seven (27) minutes until a canine trained to detect illegal drugs
       by scent[] was brought to the scene of the stop to conduct a search of the
       Defendant’s vehicle.

       1
          The Defendant’s written motion did not cite to any authority requiring suppression beyond the
constitutional provisions forbidding unreasonable searches and seizures and Miranda v. Arizona, 384 U.S.
436, 439 (1966).
                                                 -3-
              2. Whether the evidence presented at the hearing on the Motion to
       Suppress filed by the Defendant supported the extension of the time of the
       stop for additional investigation leading to the appearance of the canine
       based upon the Deputy’s testimony of the Defendant’s extreme nervousness
       and his visual observation of the Defendant making movements that
       suggested he was attempting to hide something in the vehicle, when such
       testimony is not supported by the dashcam video which shows that the
       interior of the Defendant’s vehicle was not visible from the front seat of the
       Deputy’s vehicle at the time he is checking the driver’s license of the
       Defendant.

       On March 29, 2018, the uniform judgment document was filed, and the “Special
Conditions” section of the form contained the following comment: “Issues reserved for
appeal filed 3-15-18.” Although the form contained a box labeled “Pled Guilty -
Certified Question Findings Incorporated by Reference,” the box checked was the one
labeled “Pled Guilty.”

       The Defendant filed a notice of appeal on May 1, 2018. The State moved to
dismiss the appeal on the basis that the question was not properly certified, and this court
denied the motion, concluding “that the issues in this appeal should be fully briefed to
ensure adequate review.” The State subsequently filed a brief arguing that the appeal
should be dismissed both because the notice of appeal was not timely filed and because
the requirements of Rule 37(b) of the Tennessee Rules of Criminal Procedure had not
been met. The Defendant did not file a reply brief but asserted at oral argument that the
question was properly certified.

                                       ANALYSIS

       The State contends that this appeal must be dismissed both because the notice of
appeal was not timely and because the question was not properly certified. The
Defendant has not addressed the State’s argument regarding the timeliness of the notice
of appeal. See State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007) (“We
take this opportunity to encourage litigants that the more proper and efficient practice for
a party seeking a waiver of the timeliness of the notice of appeal is to file a motion with
this court requesting the waiver pursuant Tennessee Rule of Appellate Procedure 4(a).”).
We conclude that the notice of appeal was not timely and that the interest of justice does
not demand a waiver of the timeliness requirement because the procedural requirements
of Tennessee Rule of Criminal Procedure 37(b) have not been met.



                                           -4-
        The Defendant appeals under Tennessee Rule of Appellate Procedure 3(b), which
permits a defendant to file an appeal on a plea of guilty “if the defendant entered into a
plea agreement but explicitly reserved the right to appeal a certified question of law
dispositive of the case pursuant to and in compliance with the requirements of Rule
37(b)(2)(A) or (D) of the Tennessee Rules of Criminal Procedure.” The notice of appeal
“shall be filed with the clerk of the appellate court within 30 days after the date of entry
of the judgment appealed from.” Tenn. R. App. P. 4(a). In computing the time period, if
the last day of the period is a Saturday, a Sunday, a statutory legal holiday, or a day on
which the court is closed or inaccessible, the time is extended to the next day on which
the court is open and accessible. Tenn. R. App. P. 21(a).

       The uniform judgment document in this case was filed on March 29, 2018. Thirty
days from this date would have been April 28, 2018, a Saturday. Accordingly, the notice
of appeal should have been filed by Monday, April 30, 2018. Instead, the notice of
appeal was not filed until the following day, May 1, 2018. The notice was untimely.

       The requirement to file a timely notice of appeal is not jurisdictional, and this
court may waive it “in the interest of justice.” Tenn. R. App. P. 4(a). Waiver of the
notice requirement is not automatic, and this court bears in mind that reflexively granting
waiver would render the timely notice requirement a “legal fiction.” Rockwell, 280
S.W.3d at 214. “‘In determining whether waiver is appropriate, this court will consider
the nature of the issues presented for review, the reasons for and the length of the delay in
seeking relief, and any other relevant factors presented in the particular case.’” Id.
(quoting State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL
3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005)).

       We conclude that the interest of justice does not demand waiver of the notice of
appeal because Rule 37, “the quagmire of criminal jurisprudence in Tennessee,” State v.
Thompson, 131 S.W.3d 923, 923-24 (Tenn. Crim. App. 2003), and “a trap” for the
unwary, State v. Danny Harold Ogle, No. E2000-00421-CCA-R3-CD, 2001 WL 38755,
at *4 (Tenn. Crim. App. Jan. 17, 2001), has struck again. In short, in examining the
nature of the issues present for review, it is apparent that the certified question was not
properly preserved.

        Tennessee Rule of Criminal Procedure 37(b)(2) permits an appeal on a plea of
guilty if:

       (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:
                                            -5-
             (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; or

      (B) the defendant seeks review of the sentence and there was no plea
      agreement under Rule 11(c); or

      (C) the errors complained of were not waived as a matter of law by the
      guilty or nolo contendere plea, or otherwise waived, and if such errors are
      apparent from the record of the earlier proceedings; or

      (D) if there is no plea agreement pursuant to Rule 37(b)(2)(A), the
      defendant — with the consent of the court — explicitly reserved the right to
      appeal a certified question of law that is dispositive of the case, and the
      requirements of Rule 37(b)(2)(A)(i)-(ii) are otherwise met.

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

        We note here that the State argues that the Defendant failed to meet the
requirements of Rule 37(b)(2)(A)(i)-(iv), including a statement in the judgment or order
averring that the Defendant obtained the consent of the State and a statement that all
parties agree the question is dispositive of the case. However, there is nothing in the
record to indicate that the Defendant entered into a plea agreement under Tennessee Rule
of Criminal Procedure 11(c) or was attempting to reserve the certified question under
subsection (b)(2)(A). Instead, the record reflects that the Defendant pled guilty to the
offenses as charged. See Tenn. R. Crim. P. 11(c)(1)(A)-(C). The signed agreement notes
that the prosecutor would not recommend a sentence.
                                            -6-
       The Defendant did not argue that he was proceeding under Rule 37(b)(2)(D).
Nevertheless, if the Defendant was attempting to preserve a certified question under
Tennessee Rule of Criminal Procedure 37(b)(2)(D), rather than subsection (b)(2)(A), the
Rule would still require him to explicitly reserve the right to appeal the question with the
consent of the court, require the “judgment of conviction or order reserving the certified
question” to contain a statement of the question preserved for review, and require the
preserved question to clearly identify the scope and limits of the reserved legal question.
Tenn. R. Crim. P. 37(b)(2)(A)(i)-(ii), (b)(2)(D).

       The Tennessee Supreme Court has rejected a standard of substantial compliance
with the procedural requirements of the Rule. State v. Armstrong, 126 S.W.3d 908, 912
(Tenn. 2003). Instead, the requirements are “‘explicit and unambiguous.’” Id. (quoting
State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998)); see 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, even if we were to conclude that the document entitled “Issues Reserved for
Appeal” was sufficiently incorporated into the judgment by the notation on the judgment
form that it was “filed 3-15-18,” the record is still void of any indication that the
Defendant obtained the consent of the court to reserve the right to appeal the issues after
entering a guilty plea, as required by the Rule. See Tenn. R. Crim. P. 37(b)(2)(D); State
v. Melissa A. Simmons, No. M2003-03064-CCA-R3-CD, 2005 WL 468295, at *3 (Tenn.
Crim. App. Feb. 23, 2005) (dismissing the case because the record did not indicate that
the question was reserved with the consent of the trial court or that the trial judge
believed the issue was dispositive of the case). The document in question instead
“advises the court” that the issues are being reserved. This does not comport with the
“‘explicit and unambiguous’” requirements of Tennessee Rule of Criminal Procedure 37.
Armstrong, 126 S.W.3d at 912 (quoting Irwin, 962 S.W.2d at 479). While the trial court
may have given its consent to the reservation of the question at the plea hearing, the plea
hearing transcript is not part of the record before us, and “the burden is on defendant to
see … that the record brought to the appellate courts contains all of the proceedings
below that bear upon” the issues presented. State v. Preston, 759 S.W.2d 647, 650 (Tenn.
1988).

        We further note that, under Tennessee Rule of Criminal Procedure 37(b), review is
limited to the questions which are identified in the certified question and which were
decided by the trial court. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996).
While we disagree with the State that the Defendant failed to present his argument that
the traffic stop was unreasonably prolonged to the trial court, the trial court nevertheless
                                           -7-
did not make a ruling on this issue, perhaps because the motion to suppress limited
argument on the issue to one phrase and did not contain any citations to legal authority
regarding a prolonged traffic stop. The failure to obtain a ruling from the trial court
precludes appellate review. See Preston, 759 S.W.2d at 650 (“[R]eview by the appellate
courts will be limited to those [issues] passed upon by the trial judge and stated in the
certified question, absent a constitutional requirement otherwise.”).

       Our jurisdiction to hear the certified question is “predicated upon the [statutory]
provisions for reserving a certified question of law.” State v. Jon Michael Johnson, No.
M2014-01834-CCA-R3-CD, 2015 WL 6164009, at *5 (Tenn. Crim. App. Oct. 21, 2015).
Failure to properly certify a dispositive question of law results in dismissal. Preston, 759
S.W.2d at 650. Because we would in any event be unable to review the certified
questions presented for failure to follow the statutory procedural requirements, we
conclude that the interest of justice does not demand waiver of the untimely notice of
appeal.

                                     CONCLUSION

       Based on the foregoing, the appeal is dismissed.




                                   ____________________________________________
                                    JOHN EVERETT WILLIAMS, PRESIDING JUDGE




                                           -8-
