IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 12, 2011

STATE OF TENNESSEE v. KENNETH D. HUBANKS

Direct Appeal from the Circuit Court for Hardin County

No. 8561 C. Creed McGinley, Judge

No. W2007-00906-CCA-R3-CD - Filed October 6, 2011

A Hardin County grand jury indicted the Defendant, Kenneth D. Hubanks, for possession

with intent to sell more than .5 grams of cocaine, possession with intent to sell more than

one-half ounce of marijuana, and unlawful possession of drug paraphernalia. The Defendant

filed a motion to suppress the evidence, obtained by execution of a search warrant upon his

residence, which the trial court denied. The Defendant entered a plea of nolo contendre to

all of the charges but reserved a certified question of law pursuant to Tennessee Rule of

Criminal Procedure 37(b)(2) as to whether the search warrant established probable cause to

search his residence. After review, we conclude that the Defendant has failed to comply with

the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2). Accordingly, the

appeal is dismissed.

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

ROBERTW. WEDEMEYER, J., delivered the opinion of the Court, in which JOSEPHM.TIPTON,

P.J., and JAMES CURWOOD WITT, JR., J., joined.

Lance R. Chism, Memphis, Tennessee (on appeal) and Daniel J. Mickiewicz, Memphis,

Tennessee (on appeal and at plea hearing), for the Appellant, Kenneth D. Hubanks.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General; Hansel McCadams, District Attorney General; Eddie N. McDaniel, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

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Background

This case arises from the execution of a search warrant at the Defendant’s residence

that resulted in the seizure of cocaine, marijuana, and drug paraphernalia. A Hardin County

grand jury indicted the Defendant for possession with intent to sell more than .5 grams of

cocaine, possession with intent to sell more than one-half ounce of marijuana, and unlawful

possession of drug paraphernalia. The Defendant moved to suppress the evidence seized

during the search of his residence, challenging the probable cause basis for the search

warrant. Specifically, the Defendant argued that the reliability and credibility of the

confidential informant was not established in the affidavit. The trial court held a hearing on

the motion to suppress.

At the suppression hearing, Joe Lambert, a Hardin County Sheriff’s Department

deputy, testified that he obtained a search warrant for the Defendant’s residence from

General Sessions Court Judge Danny Smith. The affidavit in support of the search warrant

stated the following:

Within the past three days a controlled purchase of marijuana was made from

Kenneth Hubanks at 259 Rockpile Ln. in Hardin County, TN. A confidential

source was searched, fitted with a monitoring device, and given money which

can be identified if found. The source was accompanied to the address with

an agent from the 24 DTF. The agent observed the source enter the house

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trailer and a few minutes later a male white, identified by the agent as Kenneth

Hubanks, came outside and went inside a gray utility building and then came

out carrying a white bag and entered the residence again. The affiant listened

as the source and Kenneth Hubanks discussed the sale of marijuana. This was

consistent to what the agent outside was observing. The source returned to the

agent and turned over a bag of green leafy substance that field tested positive

for marijuana. The agent and the source met back with the affiant at a secure

location where the source was searched again and the evidence turned over to

the affiant by the agent. The source stated that they saw more of the substance

in the residence.

Following the testimony, the trial court overruled the Defendant’s motion, finding that

the search warrant was not based on information from the confidential informant but on

“actually what the officer monitored, listened, saw, and it’s based [] directly upon this

officer’s knowledge under a controlled buy situation which provided probable cause for the

issuance of the warrant.” The Defendant offered a plea of guilty to the charges and

attempted to reserve a certified question of law about the propriety of the seizure. The trial

court entered the plea and sentenced the Defendant in accordance with the plea agreement

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to the agreed eight years for felony cocaine possession, one year for felony marijuana

possession, and eleven months and twenty-nine days for the misdemeanor paraphernalia

possession conviction. The Defendant’s eight-year sentence was to be suspended after

service of 120 days in the county jail and one year to be served on Community Corrections.

The Defendant’s other sentences were suspended.

II. Analysis

Certified Question of Law

Because this appeal comes before us as a certified question of law, pursuant to Rule

37(b) of the Tennessee Rules of Criminal Procedure, we must first determine whether the

question presented is dispositive. An appeal lies from any judgement of conviction upon a

plea of guilty if the defendant entered into a plea agreement under Rule 11(a)(3) but

explicitly reserved, with the consent of the State and the court or of the court alone, the right

to appeal a certified question of law that is dispositive of the case. Tenn. R. Crim. P.

37(b)(2)(A),(D); see State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). Further, the

following are prerequisites for an appellate court’s consideration of the merits of a question

of law certified pursuant to Rule 37(b)(2):

(i) The judgment of conviction, or other document to which such judgment

refers that is filed before the notice of appeal, contains a statement of the

certified question of law reserved by the defendant for appellate review;

(ii) The question of law is stated in the judgment or document so as to identify

clearly the scope and limits of the legal issue reserved;

(iii) The judgment or document reflects that the certified question was

expressly reserved with the consent of the state and the trial judge; and

(iv) The judgment or document reflects that the defendant, the state, and the

trial judge are of the opinion that the certified question is dispositive of the

case . . . .

Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).

In State v. Preston, our Supreme Court stated its intention 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).” 759 S.W.2d 647, 650 (Tenn. 1988). First, the final order or judgment

appealed from must contain a statement of the dispositive question of law reserved for

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review. Id. The question must clearly identify the scope and limits of the legal issue and

must have been passed upon by the trial judge. Id. Second, the order must also state that:

(1) the certified question was reserved as part of the plea agreement; (2) the State and the

trial judge consented to the reservation; and (3) both the State and the trial judge agreed that

the question is dispositive of the case. Id. Third, the defendant bears the burden of satisfying

the prerequisites. Id.

A defendant may comply with these requirements either by using the judgment or a

separate document. State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998). If a separate

document is used, it must be clearly referred to or incorporated by reference into the

judgment. Id. However, the Tennessee Supreme Court has warned that mere “substantial

compliance” with Preston is not sufficient to acquire appellate review of the certified

question. State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003). Further, this court has

consistently and repeatedly held that the Preston requirements are jurisdictional. See State

v. Faith Whitley, No. W2006-02595-CCA-R3-CD, 2008 WL 450617, at *3 (Tenn. Crim.

App., at Jackson, Feb. 19, 2008) (citing multiple cases for this proposition, including State

v. Long, 159 S.W.3d 885, 887 (Tenn. Crim. App. June 16, 2004); State v. Boyd, 51 S.W.3d

206, 210 (Tenn. Crim. App. Aug. 31, 2000)), no Tenn. R. App. P. 11 application filed.

The judgment of conviction in this case reflects no mention of the reserved certified

question of law. Additionally, there is no mention of the negotiated plea agreement, even

though the record includes a plea agreement that purports to reserve a certified question of

law. The question it “reserves” is “whether the facts contained in the affidavit of the search

warrant issued December 30, 2005 in this case, supported probable cause for the issuing of

the warrant.”

Rule 37 clearly states that a requirement of our review of a certified question of law

is that “[t]he judgment of conviction, or other document to which such judgment refers that

is filed before the notice of appeal, must contain a statement of the certified question of law

reserved by the defendant for appellate review.” Tenn. R. Crim. P. 37(b)(2). In this case the

judgment of conviction does not contain a statement of the certified question of law, and it

does not refer to another document that contains a statement of the certified question law.

See Irwin, 962 S.W.2d at 479. As such, we lack jurisdiction. We take no satisfaction in the

dismissal of this or the many other failed Rule 37(b)(2) appeals. We, however, cannot

assume jurisdiction when it is denied due to failures in meeting the strict prerequisites. See

Armstrong, 126 S.W.3d at 912 and Whitley, 2008 WL 450617, at *3.

III. Conclusion

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After a thorough review of the evidence and relevant authorities, we conclude that the

proposed certified question was not properly reserved. Accordingly, we dismiss the

Defendant’s appeal.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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