        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 29, 2014

                STATE OF TENNESSEE v. TRAVIS MEADOWS

                  Appeal from the Criminal Court for Putnam County
                     No. 10-0402    David Alan Patterson, Judge


               No. M2013-01646-CCA-R3-CD - Filed December 5, 2014


Appellant, Travis Meadows, pleaded guilty to two counts of attempted aggravated sexual
battery, Class C felonies. The trial court sentenced him to four years on each count, to be
served consecutively, for an effective eight-year sentence. The effective eight-year sentence
was suspended, and appellant was placed on supervised probation. As part of the plea
agreement, appellant reserved a certified question of law challenging the denial of his motion
to suppress. On appeal, appellant argues that the State failed to include the certified question
in the judgment form and filed the judgment form without notice to appellant; therefore, the
State violated the terms of the plea agreement. Appellant also argues that the trial court erred
by denying his motion to suppress his statement to law enforcement due to the coercive and
misleading nature of the interrogation. Following our review of the briefs, the record, and
the applicable law, we dismiss appellant’s appeal.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which JOHN E VERETT W ILLIAMS
and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Robert L. Vogel, Knoxville, Tennessee, for the appellant, Travis Meadows.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
Randall A. York, District Attorney General; Gary McKenzie, Deputy District Attorney
General; and Douglas E. Crawford, Assistant District Attorney General, for the appellee,
State of Tennessee.
                                              OPINION

                                               I. Facts

        Appellant was indicted on three counts of rape of a child, three counts of aggravated
sexual battery, and one count of attempted rape of a child. At appellant’s guilty plea
submission hearing on two counts of attempted aggravated sexual battery, the State explained
that the factual bases underlying appellant’s convictions were that between June 22, 2006,
and August 2007, appellant “took his hands and touched [the seven-year-old 1 victim] in the
genital area, as well as he attempted to penetrate her. . . . There is some issue on penetration
or not. . . . And that is why, after much negotiation with defense counsel, we arrived where
we are.” The court accepted appellant’s plea.

         Prior to the guilty plea submission hearing, appellant filed a motion to suppress his
statement made to law enforcement at a Department of Children’s Services facility after the
initial allegations were made by the victim. Appellant argued that appellant, who was at the
time a minor, and his parents were not fully informed of appellant’s Miranda rights and that
the interview was conducted under false pretenses. Appellant argued that he was told that
the interview was only for the purpose of understanding what occurred and getting him help
if necessary, not for the purpose of building a case against him. However, after hearing the
testimony at the motion to suppress hearing and watching the recording of appellant’s
interview, the trial court denied appellant’s motion to suppress his statement.

       Appellant attempted to reserve a certified question of law regarding the trial court’s
denial of the motion to suppress his statement when he pleaded guilty. It is clear from the
record that both the State and the trial court were aware of appellant’s intent in this regard.
However, at the guilty plea submission hearing, the trial court acknowledged that if this court
were to reverse the trial court’s decision, there may be “some further sentencing” afterward.
The State explained at the hearing that it was “silent as to whether [the certified question
was] dispositive or not.” Furthermore, appellant’s plea petition referenced and incorporated
the State’s formal plea offer letter, which stated:

        5. The State will agree to send up the certified question on the
        admission/confession issue. The State will not agree that is it [sic] dispositive
        as you stated in your letter dated February 1, 2013.




        1
         Testimony from the motion to suppress hearing indicates that the victim was seven years old when
the crimes occurred.

                                                  -2-
       6. The State will not agree to a dismissal of the charge in the event of the
       appeals court overturns the trial court on the admission/confession issue.

       7. The State will agree that if you win at the appellate level, our offer will be
       to plea to one count of Sexual Battery with a sentencing hearing. . . . This offer
       by the State would be subject to continued negotiation if you wish BUT only
       after a decision by the appeals court. You would be under no obligation to
       accept this offer of Sexual Battery but the State would be bound to offer it.

        At the conclusion of the guilty plea submission hearing, the prosecutor and defense
counsel stated that the wording of the certified question of law had not yet been finalized,
and the trial court cautioned appellant that it would be up to him to properly draft the
certified question of law and lodge it with this court. Defense counsel stated:

               Actually[,] I have written a proposed certified question and sent it to the
       D.A.’s Office. I’m sure that they’ll want to have some editorial influence on
       that, but I think we’re on the way to do that. That of course has to be attached
       to the final judgment in this matter. And so we’ll have that before the court
       certainly in time for the final judgment to be entered.

               But it is in essence based on this court’s resolution of the suppression
       hearing in which this court determined that his statements would be admissible
       in a trial of this matter. And if we are correct in our argument, then my
       understanding of the procedure, what will happen is that it will be remanded
       back to this court, . . . the charges being pled today will be set aside and that
       the state is going to want [] the E felony and then this court will determine
       again the mode of service of that. So potentially we could have two sentencing
       hearings if we’re successful on appeal.

              On the other hand, if it goes against us, then what [appellant] is
       pleading to today is what he’s going to serve and live with for the rest of his
       life.

        On the day prior to the sentencing hearing, defense counsel filed a proposed
addendum to the judgment that contained a draft of the certified question of law. However,
at the sentencing hearing, the trial court, referring to the filed addendum, stated:

              There’s a question that is going to be rephrased before the court signs
       it. We’ve talked about that before we went on the record. It has to do with
       custodial interrogation as to whether or not those words will be used. And

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       prior to signing, the state and the defense attorney will have signed those and
       present those to the court. We’ve talked through the way that that, words that
       may be struck from what it is now and how it is likely to come to the court
       when the defendant asks for the case to be appealed with a certified question.

However, the judgment forms were submitted to the trial court and filed on November 26,
2013, without any reference to the certified question of law. Prior to the filing of the
judgment forms, appellant filed a premature notice of appeal on July 9, 2013.

                                          II. Analysis

        On appeal, appellant argues that the State failed to include the certified question in the
judgment forms and filed the judgment forms without notice to appellant; therefore, the State
violated the terms of the plea agreement. As such, appellant argues that he is entitled to
either specific performance of the plea agreement or to be restored to the status he occupied
before the plea agreement was entered. Appellant further argues that this court should
address the certified question proposed and determine that the trial court erred in denying his
motion to suppress. The State argues that even if the proposed certified question of law had
been properly preserved, the question is not dispositive; thus, the appeal should be dismissed.

        When the State breaches a plea agreement that has already been accepted, “one of two
results ordinarily follows, depending on the circumstances: (1) either specific performance
of the agreement is directed, or, (2) the parties are restored to the status existing immediately
before the plea was entered.” Metheny v. State, 589 S.W.2d 943, 945 (Tenn. Crim. App.
1979). However, even if we granted specific performance and addressed appellant’s
proposed certified question of law, the question was not properly preserved, irrespective of
it not being attached to the judgment, and is not dispositive.

       Rule 3(b)(2) of the Tennessee Rules of Appellate Procedure permits a defendant to
plead guilty while reserving the right to appeal a certified question of law that is dispositive
of the case. In doing so, a defendant must also comply with the requirements of Rule
37(b)(2)(A) of the Tennessee Rules of Criminal Procedure. Rule 37 outlines the following
requirements:

       (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;




                                               -4-
       (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)(i)-(iv).

      Our courts have explicitly defined the prerequisites to an appellate court’s
consideration of the merits of a question of law certified pursuant to Rule 37(b)(2):

       Regardless of what has appeared in prior petitions, orders, colloquy in open
       court or otherwise, the final order or judgment from which the time begins to
       run to pursue a [Tennessee Rule of Appellate Procedure] 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 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 [Tennessee Rule of Criminal Procedure]
       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 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

                                              -5-
       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.

State v. Bowery, 189 S.W.3d 240, 245 (Tenn. Crim. App. 2004) (internal quotation marks
omitted) (quoting State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988)). The Preston
requirements are mandatory. Bowery, 189 S.W.3d at 245-46 (citing State v. Pendergrass,
937 S.W.2d 834, 837 (Tenn. 1996)). Failure to comply with the requirements results in
dismissal of the appeal. Id. (citing Pendergrass, 937 S.W.2d at 837). Our supreme court has
clearly required strict compliance with Preston:

       [O]ur prior decisions demonstrate that we have never applied a substantial
       compliance standard to the Preston requirements as urged by the defendant in
       this case. To the contrary, we have described the requirements in Preston for
       appealing a certified question of law under Rule 37 of the Tennessee Rules of
       Criminal Procedure as “explicit and unambiguous.” Moreover, we agree with
       the State that a substantial compliance standard would be very difficult to
       apply in a consistent and uniform manner, and therefore would conflict with
       the very purpose of Preston. We therefore reject the defendant’s argument that
       substantial compliance with the requirements set forth in Preston is all that is
       necessary in order to appeal a certified question of law.

State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003) (citations omitted). One requirement
of a properly certified question is that “‘the defendant, the state, and the trial court are of the
opinion that the certified question of law is dispositive of the case.’” State v. Dailey, 235
S.W.3d 131, 134 (Tenn. 2007) (quoting Tenn. R. Crim. P. 37(b)(2) (A)(iv)).

        Initially, we note that it was appellant’s burden to ensure that the Preston requirements
were satisfied and that the certified question of law was attached to the final order. Bowery,
189 S.W.3d at 245 (internal quotation marks omitted) (quoting Preston, 759 S.W.2d at 650).
However, even if we were to accept appellant’s assertions that the State violated the plea
agreement by filing the judgment without notice to appellant as true, appellant has failed to
satisfy the other requirements of Tennessee Rule of Criminal Procedure 37; therefore, we do
not have jurisdiction to decide the merits of appellant’s proposed certified question of law.

       First, appellant filed a premature notice of appeal. Rule 37(b)(2)(A)(i) mandates that
“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.” Appellant filed his notice of appeal on July 9,



                                                -6-
2013, but the judgment forms were not filed until November 26, 2013. Therefore, appellant
failed to strictly comply with Rule 37(b)(2)(A)(i).

        Also, Tennessee Rule of Criminal Procedure 37(b)(2)(A)(iv) requires that “the
defendant, the state, and the trial court are of the opinion that the certified question is
dispositive of the case.” The record reflects that in the State’s formal plea offer letter, the
State explicitly stated that it would not agree that the question was dispositive. Furthermore,
at the guilty plea submission hearing, the State explained that it was “silent as to whether [the
certified question of law was] dispositive or not.” There is also no document in the record
that was signed by the trial court nor any statement made by the trial court indicating its
agreement that the proposed certified question of law was dispositive. Therefore, appellant
failed to satisfy Rule 37(b)(2)(A)(iv)

        In addition, it is clear from the record that appellant’s proposed certified question of
law was not dispositive, which is required by Rule 37(b)(2)(A). A question is dispositive
“when the appellate court ‘must either affirm the judgment [of conviction] or reverse and
dismiss [the charges].’” Dailey, 235 S.W.3d at 134 (alteration in original) (quoting State v.
Walton, 41 S.W.3d 75, 96 (Tenn. 2001)). An issue is never dispositive when this court may
exercise the option to reverse and remand. State v. Wilkes, 684 S.W.2d 663, 667 (Tenn.
Crim. App. 1984). This court “‘is not bound by the determination and agreement of the trial
court, a defendant, and the State that a certified question of law is dispositive of the case.’”
Dailey, 235 S.W.3d at 134-35 (quoting State v. Thompson, 131 S.W.3d 923, 925 (Tenn.
Crim. App. 2003)). The appellate court must make an independent determination that the
certified question is dispositive. Id. at 135 (citing Preston, 759 S.W.2d at 651). Thus, the
issue becomes whether “the record on appeal demonstrates how [the certified] question is
dispositive of the case.” Id. (citing Preston, 759 S.W.2d at 651) (emphasis in original).

        While the record contains only a draft of the certified question of law and does not
contain a final version for review, the arguments and contingencies of the parties, as reflected
in the record, make clear that the proposed certified question of law is not dispositive. The
State’s formal plea offer letter stated:

       6. The State will not agree to a dismissal of the charge in the event of the
       appeals court overturns the trial court on the admission/confession issue.

       7. The State will agree that if you win at the appellate level, our offer will be
       to plea to one count of Sexual Battery with a sentencing hearing. . . . This offer
       by the State would be subject to continued negotiation if you wish BUT only
       after a decision by the appeals court. You would be under no obligation to



                                               -7-
       accept this offer of Sexual Battery but the State would be bound to offer it.

At the guilty plea submission hearing, defense counsel stated:

       And if we are correct in our argument, then my understanding of the
       procedure, what will happen is that it will be remanded back to this court, . .
       . the charges being pled today will be set aside and that the state is going to
       want [] the E felony and then this court will determine again the mode of
       service of that.

Even on appeal, appellant argues in his brief that:

       It was clear to both parties that the purpose of the question was to find out
       whether or not the appellant’s statement was admissible. If the appellant’s
       statement was admissible then the appellant would agree to accept the sentence
       to which he has already pled. However, if this Court determines that the
       statement was not admissible then the appellant would have an opportunity to
       withdraw his plea and go to trial or to accept a lesser[-]included plea for an E
       felony Sexual Battery.

       However, a certified question is only dispositive when the appellate court must either
affirm the judgment of conviction or reverse and dismiss the charges, rather than reversing
and remanding the case. Dailey, 235 S.W.3d at 134 (quoting Walton, 41 S.W.3d at 96);
Wilkes, 684 S.W.2d at 667. Therefore, even though the parties agreed to a contingency to
the agreed-upon plea if this court reversed the trial court’s decision, we would have to
remand the case to the trial court for more plea negotiations and entry of the alternative plea
agreement or for a trial based solely on the victim’s testimony and any other evidence
collected; therefore, the proposed question is not dispositive.

       In consideration of the foregoing analysis, appellant is without relief even if granted
specific performance, and we refuse to place appellant in the status he occupied before the
plea agreement was entered because it would merely give him a proverbial second bite at the
apple to appeal his motion to suppress issue absent the errors in this appeal. We, therefore,
dismiss appellant’s appeal.




                                              -8-
                                      CONCLUSION

       Based on the parties’ briefs, the record, and the applicable law, we dismiss appellant’s
appeal.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




                                              -9-
