         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 14, 2001 Session

  STATE OF TENNESSEE v. MATTHEW PATRICK FRONTERA, A/K/A
   MATTHEW ANTHONY FRONTERA, A/K/A PATRICK MATTHEW
           FOSTER, A/K/A DERRICK JOSHUA FOSTER

                    Appeal from the Circuit Court for Williamson County
                         No. I-133-600    Donald P. Harris, Judge



                  No. M2000-02747-CCA-R3-CD - Filed September 21, 2001


The Defendant, Matthew Patrick Frontera, pleaded guilty to criminal impersonation, a Class B
misdemeanor. Sentencing was left to the discretion of the trial court. As part of his plea agreement,
the Defendant attempted to reserve the right to appeal a certified question of law relating to the
legality of his stop, detention and questioning by police officers. In this appeal, the Defendant
asserts that the trial court erred by refusing to suppress the evidence obtained against him due to an
unlawful stop and detention. He also argues that the trial court erred by sentencing him to serve six
months in the county jail with release eligibility at seventy-five percent. Because the Defendant
failed to properly reserve his issue concerning his stop and detention, we are unable to reach the
merits of that issue. We affirm the sentence imposed by the trial court.

   Tenn. R. App. 3 Appeal as of Right; Appeal of Certified Question Dismissed; Sentence
                                        Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Matthew Patrick Frontera.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Ron Davis, District Attorney General; and Sharon E. Guffee, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

        On May 21, 2000, the Defendant was observed loitering in and around the boy’s restroom
near the baseball fields at a park in Brentwood, Tennessee. Some of the parents of the children who
played baseball in the park had become concerned because of a report of an individual who was
hanging around the restrooms in such a manner as to frighten or annoy the children. The next night,
on May 22, 2000, the father of one of the children again saw the Defendant in the restroom and
noticed that the Defendant seemed to remain in the restroom for a rather lengthy period of time. The
child’s father and another man decided to confront the Defendant while someone else called the
police on a cellular telephone. Before the police arrived, the two men did confront the Defendant
inside the restroom. The Defendant refused to give the men his name, and asked them what he was
being accused of. The men told the Defendant that the police had been called and asked him to stay
and speak to the police. The Defendant told them that he was going to leave, and he began walking
away just as a policeman arrived. The policeman ordered the Defendant to stop and the Defendant
eventually complied. At first the Defendant refused to give the policeman his name. Eventually,
the Defendant gave the police officer a name, date of birth and social security number, all of which
turned out to be false.

         The Defendant was eventually indicted for criminal impersonation,1 evading arrest,2 and
failing to register as a sex offender.3 The Defendant entered an open plea of guilty to the charge of
criminal impersonation, with sentencing left to the discretion of the trial judge. The charge of
evading arrest was dismissed. Following a bench trial, the Defendant was found not guilty of failing
to register as a sex offender. Subsequently, following a sentencing hearing on the criminal
impersonation conviction, the trial court sentenced the Defendant to six months in the county jail
with release eligibility set at seventy-five percent.

        We will first address the certified question which the Defendant has attempted to reserve
pursuant to Tennessee Rule of Criminal Procedure 37(b). The Defendant filed a motion to suppress
all evidence obtained against him based upon his assertion that he was illegally stopped, detained
and questioned by the police. He asserted that the police officer had no legal justification to stop,
detain and question him and therefore the statement he gave to the police officer should be
suppressed. After conducting an evidentiary hearing on the Defendant’s motion, the trial judge
overruled the motion.

         On October 4, 2000, the Defendant filed a “petition for waiver of trial by jury and request for
acceptance of plea of guilty.” This document was signed by the Defendant, his counsel, and the
assistant district attorney general. On the same date, the Defendant filed a “negotiated plea
agreement.” This document stated that the Defendant agreed to plead guilty to the offense of
criminal impersonation with the sentence to be set by the trial court. The document also stated that
the plea was “entered pursuant to Tenn. R. Crim. P. 37-issue-whether State possessed reasonable
suspicion to stop Mr. Frontera on 5-22-00 and ask him questions regarding his identity. This issue
is dispositive of the case.” This document is also signed by the Defendant, his attorney, and the
assistant district attorney general. It is not signed by the trial court. Also on October 4, 2000, the
trial judge signed an order authorizing the waiver of trial and accepting the Defendant’s plea of

       1
           Tenn. Code Ann. § 39-16-301.

       2
           Tenn. Code Ann. § 39-16-603.

       3
           Tenn. Code Ann. § 40-39-108.

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guilty. This order makes no reference to the reservation of a question of law pursuant to Rule 37.
On October 23, 2000, the trial court entered judgment finding the Defendant guilty, upon his plea
of guilty, of criminal impersonation and setting his sentence at six months in the county jail with
release eligibility set at seventy-five percent. This judgment contains the following notation:
“Defendant reserves R37 certified question of stop.”

       Tennessee Rule of Criminal Procedure 37(b) provides that an appeal lies from any judgment
of conviction
       (2) Upon a plea of guilty or nolo contendere if:
              (i) Defendant entered into a plea agreement under Rule 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; or
       ...
              (iv) Defendant explicitly reserved with the consent of the court the right to
       appeal a certified question of law that is dispositive of the case.


       In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our supreme court set forth the following
prerequisites for appellate review of certified questions pursuant to this Rule of Criminal Procedure:
       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 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 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. . . . 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 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.

Id. at 650 (emphasis added); see also State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn. 1996).
If the judgment itself does not satisfy the requirements of Preston but does refer to or incorporate


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another document which would satisfy those requirements, then the certification of issues will be
sufficient for appellate review. See State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998); Pendergrass,
937 S.W.2d at 837.

       In this case, the judgment merely states, “Defendant reserves R37 certified question of stop.”
Obviously, this statement does not satisfy the strict requirements of Preston. It does not refer to or
incorporate any document which would arguably meet the requirements of Preston. See Irwin, 962
S.W.2d at 479; Pendergrass, 937 S.W.2d at 837. Thus, we have no choice but to hold that the
Defendant did not properly reserve his certified question for review. That portion of the appeal
which seeks review of the certified question is therefore dismissed.

        In his next issue, the Defendant argues that the trial court erred by denying him probation or
split confinement rather than ordering his six-month sentence to be served in the county jail with
release eligibility set at seventy-five percent. The trial judge conducted the sentencing hearing
immediately following the bench trial on the Defendant’s charge of failing to register as a sex
offender. In sentencing the Defendant, the trial judge noted that he believed that the Defendant
thought he was supposed to register as a sex offender and that he gave the officers the false name
for the purpose of avoiding detection. The trial judge observed that had the Defendant been
convicted of failing to register as a sex offender, the minimum sentence would have been 180 days.
The judge then stated that he believed the appropriate sentence would be six months with seventy-
five percent release eligibility.

        Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,
which provides in part that the trial court shall impose a specific sentence consistent with the
purposes and principles of the 1989 Criminal Sentencing Reform Act. See Tenn. Code Ann. § 40-
35-302(b). In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the court
is required to provide the defendant with a reasonable opportunity to be heard as to the length and
manner of the sentence. Id. § 40-35-302(a). The trial court retains the authority to place the
defendant on probation either immediately or after a time of periodic or continuous confinement.
Id. § 40-35-302(e). Misdemeanor sentencing is designed to provide the trial court with continuing
jurisdiction and a great deal of flexibility. One convicted of a misdemeanor, unlike one convicted
of a felony, is not entitled to a presumption of a minimum sentence. State v. Creasy, 885 S.W.2d
829, 832 (Tenn. Crim. App. 1994).

        In this case we note that the trial judge did not make specific findings of fact when
determining what portion of the Defendant's sentence would be served in confinement. While the
better practice is to make findings on the record when fixing a percentage of a Defendant's sentence
to be served in incarceration, our supreme court has held that a trial court need only consider the
principles of sentencing and enhancement and mitigating factors in order to comply with the
misdemeanor sentencing statute. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). “The lack
of findings is no basis for holding the trial court in error.” State v. Russell, 10 S.W.3d 270, 278
(Tenn. Crim. App. 1999).



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         At the sentencing hearing, the State introduced evidence that the Defendant had a prior
conviction in Texas for “Theft Over $750.” In addition, although not contained in the record on
appeal, the State introduced a certified copy of a conviction for committing a “lewd act upon a child”
in South Carolina in 1991. In reviewing the video transcript of the sentencing hearing, the assistant
district attorney clearly introduced what purports to be such a document and stated the document
reflects a ten-year sentence for this offense in the South Carolina Department of Correction. The
assistant district attorney also stated that the certified record from South Carolina includes two
probation violations pertaining to this sentence. The assistant district attorney general stated that this
conviction was entered and the sentence served under the name of “Patrick Matthew Foster.” There
appears to be no question that “Patrick Matthew Foster” is the same person as Matthew Patrick
Frontera, the Defendant herein. Although this documentation is not found in the record on appeal,
we note that it is the duty of the appellant to prepare a record that conveys a fair, accurate and
complete account of what transpired in the trial court with respect to the issues that form the basis
for the appeal. Tenn. R. App. P. 24(b); see Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).

       The Defendant’s primary complaint on appeal concerning his sentence is that the trial court
denied him probation. The Defendant’s history of criminal conduct, which apparently includes two
instances of probation violation, adversely reflects upon his suitability for probation. Based on our
review of the record in this case, we conclude that the trial court acted within its discretionary
authority in setting the Defendant’s sentence at six months with release eligibility after service of
seventy-five percent of the sentence.

       Accordingly, that portion of the Defendant’s appeal addressing the certified question of law
is dismissed. The sentence imposed by the trial court is affirmed.




                                                ___________________________________
                                                      DAVID H. WELLES, JUDGE




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