        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                September 16, 2014 Session

             STATE OF TENNESSEE v. JUSTIN ANDREW JONES

                    Appeal from the Circuit Court for Sevier County
                     No. 11-AP-001-III    Rex Henry Ogle, Judge


               No. E2014-00036-CCA-R3-CD - Filed November 25, 2014


Appellant, Justin Andrew Jones, pleaded guilty to driving under the influence of an
intoxicant and was sentenced to eleven months and twenty-nine days, suspended to probation
after forty-eight hours of incarceration. As part of the plea agreement, appellant reserved a
certified question of law in which he challenged the denial of his motion to suppress. On
appeal, appellant argues that the trial court erred by denying his motion to suppress because
the arresting officer did not have reasonable suspicion to stop appellant and because the
officer was acting outside of his community caretaking function when he stopped appellant.
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 D. K ELLY T HOMAS, J R., and
R OBERT H. M ONTGOMERY, J R., JJ., joined.

Bryce W. McKenzie (at plea hearing and on appeal); and Bryan E. Delius (at motions hearing
and on appeal), Sevierville, Tennessee, for the appellant, Justin Andrew Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
James B. Dunn, District Attorney General; and Gregory C. Eshbaugh, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       Appellant was charged with driving under the influence of an intoxicant (“DUI”), a
Class A misdemeanor. Appellant was found guilty of the offense after a trial in general
sessions court, but he appealed his conviction to the circuit court. Appellant filed a motion
to suppress all evidence resulting from his traffic stop, claiming that the stop was illegal. The
trial court denied appellant’s motion, and appellant pleaded guilty, reserving the following
certified question of law for appeal:

       Whether the trial court erred in denying the Defendant’s Motion to Suppress
       when legally insufficient reasonable suspicion supported the traffic stop of the
       Defendant because the Officer never observed any violation of the rules of the
       road and only witnessed the Defendant slow his vehicle and then stop on the
       inside lane of traffic on Chapman Highway.

                       I. Facts from the Motion to Suppress Hearing

         The testimony at the motion to suppress hearing showed that on August 20, 2010,
Turhan Thomas, a deputy sheriff with the Sevier County Sheriff’s Office, noticed a silver
BMW “pull in a little fast” at E-Z Stop gas station on Chapman Highway at 3:00 a.m. and
saw appellant get out of the car, look at the car’s tires, and then reenter the car. Appellant
then “squalled the tires a little bit” and pulled back out onto Chapman Highway at a “high
rate of speed.” Deputy Thomas then entered his car and followed appellant. After cresting
a hill, the officer saw appellant slow and stop his car in the left lane of a four-lane highway
in a curve. Deputy Thomas sat in his car for approximately four to five seconds after
appellant’s car had stopped moving before activating his emergency lights. Appellant pulled
onto the side of the roadway. Deputy Thomas then smelled the odor of alcohol on
appellant’s person. Appellant performed “very poorly” on his field sobriety tests, and Deputy
Thomas arrested appellant for driving under the influence.

      At the conclusion of the hearing, the trial court cited two due care statutes, Tennessee
Code Annotated sections 55-8-136 and -158, and the community caretaker doctrine to
determine that the stop was permissible and denied appellant’s motion to suppress.

                                         II. Analysis

        Appellant argues that the trial court erred by denying his motion to suppress because
the arresting officer did not have reasonable suspicion to stop appellant and because the
officer was acting outside of his community caretaking function when he stopped appellant.
The State argues that the trial court properly denied appellant’s motion to suppress.

       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:

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       (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)(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

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       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
       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)). The 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

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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). With these considerations in mind, we address the
following certified question:

       Whether the trial court erred in denying the Defendant’s Motion to Suppress
       when legally insufficient reasonable suspicion supported the traffic stop of the
       Defendant because the Officer never observed any violation of the rules of the
       road and only witnessed the Defendant slow his vehicle and then stop on the
       inside lane of traffic on Chapman Highway.

        We initially note that appellant has failed to include the community caretaker doctrine
in his certified question of law. Instead, the certified question focuses strictly on whether
there was reasonable suspicion to conduct the traffic stop. Our court has stated that:

       [W]here 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.

Bowery, 189 S.W.3d at 245 (emphasis added) (internal quotation marks omitted) (quoting
Preston, 759 S.W.2d at 650). Because appellant did not properly include the community
caretaker doctrine in his certified question of law, we are without jurisdiction to address
whether the community caretaker doctrine is applicable.

       Furthermore, because appellant has failed to include the community caretaking
doctrine in his certified question, his current certified question is not dispositive. The trial
court cited two due care statutes and the community caretaking doctrine when denying
appellant’s motion to suppress. Therefore, even if we were to reverse the trial court’s ruling
on the grounds listed in the certified question of law, the trial court’s holding that the
community caretaking doctrine applied to the initial stop still remains in effect. Accordingly,
appellant’s certified question of law is not dispositive of this case because, based on this
appeal, the prosecution of appellant for DUI could have proceeded upon a community
caretaking theory to justify the initial stop.




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                                      CONCLUSION

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


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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