### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 6, 2001 Sessi

on
STATE OF TENNESSEE v. LILLIE FRA N FERGUSON
Appeal from the Circuit Court for Madison County

No. 99-938 Roger Page, Judge

No. W2000-01687-CCA-R3-CD - Filed April 27, 2001

The Defendant, Lillie

Fran Ferguson, ple

d guilty to possession with intent to sell or deliver less than .5 grams of a Schedu

le II controlled s

ubstance and to

failure to obey a stop sign. As part of her plea agreement,

she expressly reserved with the consent of the trial court and the State the right to appeal certain certified

questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) relating to t he frisk of her person and the subsequent seizure of contraband. In this appeal, the Defe nd an t asserts that the trial cour

t erred by refus

ing to suppress

the evidence obtained

against her as the

result of an unlawful fri sk. She claims that the officer did not have reasonable suspicion that she was armedand dangerous,thereby warranting a Terry pat-down, and that the incriminating nature of the crack pipe felt by the officer during the pat-down was not immediately apparent within the meaning of the “ plain feel” doctrine. However, because the Defendant failed to properly c ertify her issues for review, we are unable to reach the merits of her case. Acc ordingly, this appeal is dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal D

ismissed

D AVID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined.
Lloyd Tatum, Henderson, Tennessee, for the appellant, Lillie Fran Ferguson.

Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; Jerry Woodall, District Attorne y General; and James Thompson, Assistant District Attorney G eneral , for the appellee, State of Tennessee.

OPINION

On August 5, 1999, at approxima tely 8:00 p.m., Officer Jeff Shepard of the Jackson Police Department

saw the Defenda

nt, a sixty-one-ye

ar-old white fem

ale, enter a hou

se in J ackson, Tennessee. Officer Shepard was conducting sur

veillance on the h

ouse due to multiple anonymous tips that crack coca ine was being sold at the house. About two days before, Officer Shepard had arrested two men for possession of crack cocaine after they left the alleged “crac k house.” Based-2-

on the anonymous tips and the prior arrests, Office r Shepard su spected that the Defendant might possess crack cocaine when she left the house.
Officer Shepar

d followed the Def

endant and initiat

ed a traffic

stop when she failed to stop at a stop sign. Officer Shepard directed the Defendant to get out of her car, and he “c onducted a safety pat down of her person.” During the frisk, he felt an object which he perceived to be a crack pipe in her

pants poc ket. Officer Shepard asked the Defendant whether she had any narcotics or contraband

on her, and she replied, “Yes, sir,” and pulled out the crack pipe. Officer Shepard then asked the Defendant

whether she had a

ny crack on her,

and she again re

plied, “Yes,

sir,” and pulled several rocks of crack cocaine from her shirt pocket. A search of the Defe ndant’s car

revea led another crack pipe and more crack cocaine.

On June 14, 2000, the Defendant entered a guilty plea pursua nt to Rule 37 (b)(2) of the Tennessee Rules of Criminal Procedure. On the same day, the t rial court entered a “Final Order” accepti ng the guilty plea and setting forth the Defendant’s certified questions of law. The “F ina l Order” explicitly stated that the Defendant was reserving with the consent of the court and the State the right to appeal certified question s o f law which are dispositive of the case. The certified questions were se

t forth as follows: whether the detention of the defendant after being cited for running a stop sign was lawful; whether the officer was justified in conducting a Terry search of the defendant’s person w as lawful [sic]; and whether the subsequent seizures of contraband fro

m the defendant’ s person and vehic le were lawful.
Twelve days later, on June 26, 2000, judgment was entered against the Defendant. The judgment form stated, “This plea

taken pursuant to R

ule 37, Tenn. Rules

Crim. Proc.” It sta

yed some conditions of probation “pending the outcome of the defendant’s appeal,” and the ju dgment provided that other conditions of

probation were n

ot “stayed by the D

efendant's appe

al.” It did not set forth any certified questions of law or make reference to the “Final Orde

r,” which did set f

orth the issues.

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 cou rt the rig ht 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:-3-

Regardless

of what has appea

red 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 ide

ntify the scope an

d the limits of the lega l issue reserved. For example, where questions o f la w involve the validity of searches and the admis sibility of statements and confessions, etc., the reasons relied upo n b y defenda nt in the trial court a t the suppression he

aring must be ident

ified in th e statement of the certified

question of law an

d review by the ap

pellate 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 sta te that the certif

ied question was e

xpressly reserved as part of a plea agreement , th at the State and the trial judge conse

nted 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 reco

rd brought to the ap

pellate 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. Pendergr ass , 937 S.W.2d 834, 836-37 (Tenn. 1996). If the judgment itself does not satisfy the re quireme nts of Preston but does refer to or incorporate anoth er document which would satisfy those requirements, then the certification of issues wi ll b e 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 judg

ment merely state

s, “This plea take

n pursuant to

Rule 37.” Obviously, this statement does not satisfy the strict requirements of Preston . More importantly, it does not refer to or incorporate the document entitled “Final Order,” which would arguably meet the requirement

s of Preston

. See Irwin , 962 S.W.2d at 479; Pendergrass , 937 S.W.2d at 837. Although Preston refers to both a “final order” and “judgment,” it is the judgment of conviction from which time begins to
run to pursue an appeal as of right. See Preston , 7 59 S .W.2d at 650; Tenn. R. App. P. 3(b), 4(a). Thus, titling a document, “Final Order,” when the document is not the judgment of conviction from which an appeal lies, w

ill not satisfy the requirements of Preston . We conclude that the judgment document entered pursuant to the mandate of Supreme Court Rule 17 is clearly the “final order or judgment from which the time begins to run to pursue a T.R.A.P. 3 appeal” as referenced by Preston

. 759 S.W.2d at 650. Thus, we have no choic

e but to hold

that the Defendant did not properly reserve her certified questions for

review. We recognize that the result appea

rs harsh in a case

such as this, where the intent of the pa rties, the expre

ss reservation, a

nd the certif

ie d questions are re

adily apparent from the record.-4-

A panel of this Court recently observed, In many of these cases the state, defendant and trial court have all agreed (as evidenced

by the gui l ty plea transcrip t) that the question

is properly cert

ified, only to have the state cor

rec tly argue on appe

al that the certif

ication was not in compliance with Preston , requiring dismis sal of the appeal. The dismissal of the appeal leads to

an unwieldy result. Since the plea was entered conditionally upon the certified question, the defendant has the opportunity to seek post-conviction relief from the conviction and guilty plea. The defendant, state, crime victims, and the trial court are now back

to “square one,” in spite of everyone’s original agreement as to the substa

nce of the plea agreement. It is then months or years after the original guilty plea. The defendant may re-enter his pl ea and pr operly certify the question back to this cou r t. However, the d efendant is not re

quired to do so. Thus , in spite of everyone’s earlier agreement as evidenced by the transcript of the hea r in g, the parties are left in a quandary and, at the very least, face even more dela y.

Based upon the documente d appellate histor

y of guilt y plea s with certified questions of law, we observe t hat it has become more o f a trap than ser

ving its intended purpose. In spite of repeated appellate cautions, the dictates of Preston are simply not being met and, according to its history, will not be met. Along these lines
we observe that guilty pleas are often unanticipated until shortly prior to their entry withjudgments prepared by the state or trial court and entered without approval by defens e counsel. We further note that there is no requirement that either counsel approve the judgment. See Tenn. Sup. Ct. R. 17 (signatures of attorneys “optional”). U nf ortunately, it appears there is undue prejudice

to the state, crime

victims, defendants

and all involved in t

hese cases bec

ause that which has clearly been agreed upon has not been written on the appropriate document at the appropriate time.

Acc ordingly, we hope that Preston and/or Tenn. R. Crim. P. 37 will be reexamined. We intend absolutely no disrespect in this suggestion. W

e would hope that if the judgment itself doe s not contain the es sential requirem ents, the appella

te courts may still entertain an appeal; pro vided, it is apparent from other plea documents, th e gui lty plea transcript, orders entered while the trial court had jurisdiction, or any other prop er record befo

re the appellate

court that, at the time of the guilty plea, the plea “explicitly reserved with the consent of the State and of the court the r igh t to appeal a certified question of law that is dispositive of the case.” See Tenn. R. Crim. P. 37(b)(2)(i) and (iv). If the Preston requirements remain, we would hope th at, at the ve ry least, Tenn. R. C rim. P. 37 is amended

to specifically incorporate these requirements.

Statev. Danny Harold O

gle , No. E2000-00421-CCA-R3-CD, 2001 WL 38755, at *3-4 (Tenn. Crim. App., Knoxville, Jan. 17, 2001).-5-

Nevertheless,

the procedural m

andate in Preston allows for no exceptions, and this Court has been repeatedly forced to dismiss cases which are not in strict compliance. See, e.g. , id. ; State v

. Jerry A. Murrell , No. E2000-0063-CCA-R3-CD, 2001 WL 15791, at *2-3 (Tenn. Crim. A pp ., Knoxville, Jan. 8, 2001); State v. Robert Bassett Brown , No. M1999-00867-CCA-R3-CD, 2000 WL 502679, at *2 (Tenn. Crim. App., Nashville, Apr. 28 , 2000); State v. Andrea McCraw , No. 03C01- 9903-CR-00106, 2000 WL 250146, at *2 (Tenn. Crim. App., Knoxville, Mar. 7, 2000), perm. app. denied (Tenn. Nov. 6, 2000).
Accordingly, we must conclude that the Defendant did not properly reser ve her certified issues for review. This appeal is therefore dismissed.

___________________________________ DAVID H. WELLES, JUDGE