        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               December 10, 2013 Session

       STATE OF TENNESSEE v. GERALD ANTHONY HUMPHREY

                  Appeal from the Circuit Court for Dickson County
                  No. 22CC-2012-CR-475      Larry J. Wallace, Judge


                  No. M2013-01512-CCA-R3-CD - Filed April 4, 2014


The defendant, Gerald Anthony Humphrey, pled guilty in the Dickson County Circuit Court
to DUI, first offense, and was sentenced to eleven months, twenty-nine days in the county
jail, with seven days to serve prior to release on supervised probation. As a condition of his
guilty plea, he attempted to reserve certified questions of law regarding the constitutionality
of the “loud muffler” statute, Tennessee Code Annotated section 55-9-202, under which the
arresting officer initiated the traffic stop of his vehicle. Based on our review, we conclude
that the defendant failed to meet his burden to properly certify his questions of law.
Accordingly, we dismiss the appeal for lack of jurisdiction.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
C AMILLE R. M CM ULLEN, JJ., joined.

Olin J. Baker, Charlotte, Tennessee, for the appellant, Gerald Anthony Humphrey.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; Dan
M. Alsobrooks, District Attorney General; and Brooke M. Orgain and Margaret F. Sagi,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       On March 18, 2012, Dickson County Sheriff’s Deputy Clark Evins stopped the
defendant for driving a vehicle with an excessively loud muffler. Upon detecting a strong
odor of alcohol from the vehicle and observing that the defendant had bloodshot and watery
eyes, he conducted field sobriety tests on which the defendant performed poorly. The results
of the defendant’s consensual blood draw was .23%, and he was subsequently indicted for
DUI, first offense, and violation of the muffler law. He later filed a motion to suppress in
which he challenged the constitutionality of the loud muffler statute, the constitutionality of
the traffic stop, and the admissibility of evidence obtained as the result of the stop. After the
trial court overruled his motion to suppress, the defendant pled guilty to DUI, first offense,
in exchange for a sentence of eleven months, twenty-nine days with all but seven days
suspended and credit for time served, payment of a $350 fine and costs, attendance at a DUI
safety school, the one-year loss of his driver’s license, and the requirement of an ignition
interlock device should he receive a restricted license. The litter pickup requirement of the
DUI conviction was waived, and the loud muffler count of the indictment was nolle
prosequied. As a condition of his guilty plea, the defendant attempted to reserve questions
of law pursuant to Rules 11 and 37 of the Tennessee Rules of Criminal Procedure.

                                         ANALYSIS

      Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure provides that the
defendant may appeal from any judgment of conviction on a plea of guilty or nolo
contendere, 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:

              (i) the judgment of conviction or order reserving the certified
              question that is filed before the notice of appeal 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

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             (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.

       In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our supreme court emphasized that
the burden is on the defendant to ensure that the conditions for properly preserving a question
of law pursuant to Rule 37 have been met:

              This is an appropriate time for this Court to make explicit to the bench
       and bar exactly what the appellate courts will hereafter require as prerequisites
       to the consideration of the merits of a question of law certified pursuant to
       Tenn. R. Crim. P. 37(b)(2)(i) or (iv). 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. . . . .
       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 the 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. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003)
(noting that the supreme court has never applied a “substantial compliance” standard to the
Preston requirements but instead repeatedly held that the requirements under Rule 37 are
“explicit and unambiguous”).



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        The defendant’s judgment reflects that his guilty plea was entered with “Certified
Question Findings Incorporated by Reference.” The defendant supplemented the technical
record with the following order entitled “Certified Questions of Law,” which was filed prior
to his notice of appeal and signed by defense counsel and the trial court:

              THIS MATTER HAVING COME before the Court on the 23rd day of
       May, 2013, upon Motion of the Defendant arising from a suppression motion
       heard before [the trial court], by and through counsel, [trial counsel], moving
       this Court to grant Certified Questions of Law for Appeal; and being
       dispositive of the case at bar, grants such request and incorporates the
       following questions of law to the Judgment in the matter as if contained on the
       judgment sheet itself:

             1. “Whether Tenn. Code Ann. § 55-9-202 is facially unconstitutionally
       vague?”

             2. “Whether the traffic stop of the Defendant initiated by Dickson
       County Sheriff’s Office Deputy Clark Evins pursuant to Tenn. Code Ann. §
       55-9-202 was unconstitutional and/or unconstitutional as applied?”

             3. “Whether the Dickson County Circuit Court erred in denying the
       suppression of evidence obtained from the application of Tenn. Code Ann. §
       55-9-202?”

               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
       that the foregoing certified questions are incorporated into the judgment sheet
       as if incorporated on the actual judgment sheet itself.

        Because the defendant “entered into a negotiated plea agreement with an agreed
sentence, the only avenue available to him to properly reserve a certified question of law for
appeal was pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A)(i) through (iv).
Subsection (iv) requires that both the trial court and the State agree that the certified question
is dispositive of the case.” State v. Lands, 377 S.W.3d 678, 684 (Tenn. Crim. App. 2012).
The order here fails to state that the certified questions were expressly reserved with the
consent of the trial court and the State or that the trial court and the State were in agreement
that the questions of law were dispositive. The order was also not signed by the State. Thus,
although the transcript of the guilty plea hearing shows that the prosecutor appeared, by
remaining silent, to acquiesce to the reservation of the certified questions of law, the
defendant has not met his burden of complying with the explicit and unambiguous
requirements of Rule 37. Accordingly, we conclude that we are without jurisdiction to

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review the questions of law and that we must dismiss the appeal.

                                    CONCLUSION

        Based on the foregoing authorities and reasoning, we conclude that we are without
jurisdiction in this matter and therefore dismiss this appeal.


                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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