# FILED
September 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 02C01-9707-CC- 0 028 3 ) vs. ) Lauderdale County ) JAMIE WALKER, ) Hon. Joseph H. Walker, Judge ) Appellant. ) (Statu tory Rape
- Certified Question )

FOR THE APPE LLANT: FOR THE APPELLEE: CHARLES P. RONEY JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter P.O. Box 542 Union City, TN 38282-0542 CLI NTO N J. MOR GAN Assistant Attorney Gener al 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General MARK DA

VIDSON Asst. Distr ic t Attorney General P.O. Box 562, 302 Market St

. Somerville, TN 38068

OPINION FILED:________________ AFFIRMED CURWOOD WITT, JUDGE1 In North Carolina v. Alford , 400 U.S. 25, 91 S. Ct. 160 (197 0), the United States Supreme Court held that a criminal defendant may enter a g uilty plea without admitting gui lt if the defendant intelligentl y concludes his best i nterests would be se rved by a ple a of guilt y. 2 OPINION The defendant, Jamie Walker, entered best-interest guilt y pleas 1 to three counts o

f statuto ry r ape in the Lauderdale County C ircuit Court. With the consentof the state and the trial court, he reserved the certified question of whether the trial court correctly determined he was c ompetent to stand trial. Thereafter, he perfected his appeal to this court, and that certified question i s now before us for consideration. After st udying the rec ord and the brief

s of the parties, we have determined (1) that the certified question is properly before us, and (2) the trial court did not abuse its disc retion in ruling the defendant was competent to stand trial. Accordingly, w

e affirm the judgment of the trial cour t.

The defendant is a mildly mentally r etarded adult. After the initiation of the proce edings aga inst him, he was exa mined by two licensed psychologists. The trial court then conducted a hearing on the issue of comp etency. The defense expert opined that the defendant was not competent to stand trial. He admitted the defendant fell into a "gray area. " T he state' s expert opined the defendant w as competent; however, he testified "it was somew hat borderline and marginal [.]" In
an order finding specific facts relat ed to the defendant's competence, the trial court ruled, "[A]lthough the defe ndant is marginally competent . . . he is competent sufficient to address the issue of the charge against him."

After the competency hearing, the defendant entered his guilty pleas subject to the certified question of the propr iety of the trial court's determination of competenc y. In a we ll-dra fted plea

ding, t he defenda nt set for th the ce rtifi e d question and the corollary information required by State v. Preston , 759 S.W.2d 6472 Th e d ef en da nt el ec te d n ot to fi le a r ep ly br ief a dd re ss in g t hi s i ss ue . We presume he opposes dismissal of his appeal on this ba sis. 3 (Tenn. 1988) and State v. Pendergrass , 937 S.W.2d 834 (Te nn. 1996). This pleading was incorpor

ated by reference in theguilty plea document, w hich noted, "Defendant reserves the rig ht to a ppeal the certified issue of law attached hereto and agreed upon and consented to by th e defendant, trial judge and State of Tennessee." Thereafter, a sentencing hea ring w as hel d, and each judgment entered reflects the notation "certified question of law." The trial court or dered that the previously filed s

tatement of the certified question be att ached to the judgment forms; however, it does not appear as an attachment to the judgments in the technical record.

I

As a thr eshold issue, the state ques tions whether the certi fied question is proper ly befo re the court. The state finds a fatal deficiency in the absence of the statement of the certifiedque stion in the judgment forms. 2 We disagree.

Our

supreme court has recently addressed the proper procedure for preservinga question of law under Rule of Criminal Pro cedure 37(b)(2). In State v. Pendergrass , 937 S.W.2d 834, the c ourt reiter

ated its admon itions from State v. Preston , 759 S.W.2d 647: Regardless of what has ap peared in prior petitions, order s, colloquy in open court and otherwise, the final order or judgment from which the time begins to run to pur sue a T.R.A.P. 3 appeal must contain a statement

of the dispositive certi

fied question

of law reserved

by the defendant for appellate review and the question of law must be stated so as to clearly i

dent ify the scope and the lim its of the legal issue reserved

. For example, where questionsof law involve the val idity of sea rche s and the admissibility of statements and confessions, etc., the reasons relied upon by the defenda nt in the trial court at the suppression heari ng must be identified in the statement of the certified question of law and revie w by the appellate cour ts will be4 limited to those passed upon by the trial judge a nd stated in the certified question, absent a constitutional requirement otherw ise. Wit hout an explicit statement of the ce rtified question, neither the defendant, the State nor the trial judge can mak e a meaningful det ermin ation of whether the issue sought to be reviewed is dispositive of the case. Most of the reported and unreported cases seeking the lim ite d appellate review pu rsuant to Tenn.R.Crim.P. 37 have been dismissed because the certified question was not dispositive. Also, the order must state that the cer tified question was expressly

reserved as part of the pl ea 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 d ispositive 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 pr oceedings below that bear upon whether the certif ied question of law is dis positive and the merits of the question certified. No i ssue beyond the scope o f the certified question will be c

onsidered. Pendergrass , 937 S.W.2d at 836-37 (quo tin g Preston , 759 S.W.2d at 650) (emphasis added in Pendergrass ). The Pendergrass court also observed that the Preston prerequisites would be met if the final judgment referred to or incorporated "any other indepen dent doc uments w hich w ould sat isfy

the Preston requirements." Pendergrass , 937 S.W.2d at 837.

In the case at bar, the

defendant thoroughly summariz ed the certified question and other pertinent information in a pleading entitled

"Certified Question of Law." The plea

agreement was prepared with specific reference to the certified question and the consent of the state and the tri al court. The judgmentsreflect the notation “certified question of law .” As reflected in the transcript of the sentencing hearing contained in th e appellate record, the trial court ordered that the certified question pleading be attached to the final judgments. Altho ugh the certified question pleading is not attached to the judgments in the technical record, it appears elsewher

e in the techn ical recor d and bears a fi le stamp with the same date to which the trial co ur t referred in ordering its attachment to the judgments. Although it is a better pr actice for the appellant to take care that

any incorporated documents are physic all y attached to the judgment w hen so ordered by the tri al5

court, we hold in this case that the defendant has properlycertified his question t o t his court c

onsiste nt wit h the req uirements of Preston and Pendergr ass . Se e Pendergrass , 937 S.W.2d at 836-37; State v. Ricky Gene Wilkerson , No. 01C01- 9708-CR-00362, slip op. at 2 (Tenn. Crim. App., Nashv ille, May 22, 1998) (Rule 20 Order ) (ce rtified question properly before the court where final j udgments incorporate by reference the agreed orders setting forth the certified question).

II Thus, we turn to the primary issue on appeal -- whether the trial court properlydetermined that the defend a nt was competent to stand tri al. The defendant argues that the expert evidence presented by his expert is more definit ive and persuasive than the "specu lative" testimony offered by the state's expert.

When a trial court co nducts a hearing, it has the opportunity to see and hear the wi tnesses and thei r conflic ting testi mony. On appeal, thetrial court's findings have the weight of a ju ry verdi ct. Sta te v. Tate , 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). When this court reviews the tri al cou rt's finding that a defendant is competent to stand trial, the question is whether the evidence preponderatesagainst the trialcourt's determination. State v. Benton , 759 S.W.2d 427, 431 (Tenn. Crim. App. 1988).

In the case at bar, both exper t witnesses agreed th at the question of the defendant's competency to stand tr ial was a close one. The s tate' s witnes s opined that the defendant’s competence was "somewhat borderline and marg inal." The witness said the defendant is "coachable" in the areas of competency in which he is weak, and with some extra work by defense counsel, thedefendant could be i mproved in those areas. Ultimatel y, however, the s

tate's expert opined that th e defendant is co mpetent for trial. In comparison, the defe ndant's expert witness6

testified that the defendant has "intellectual limitations as a resul t of physical problems" as opposed to mental illness. As such, the defendant's mental status will not improve in the future. He opined that the defend ant is i ncompeten t. Specifi cally, the defendant is deficient in his abi lity to assist his attorney and understand the consequences of a finding of guilt. He agreed with the state's expert that certain aspects

of the proceedings could be ex plained to the defendant as the process unfolded.

A t t he conclusion of the hearing, the trial court found that the defendant has some prob lems in understandi ng some aspects of the procee dings against him and some problems with as sisting counsel, but thes e limitations do not rise to the level necessary for a finding of inco mpe tency. Furthermore, the trial court found the defendant understood the nature of the accusations. Assuch, the trial court found the defendant comp etent for trial.

This case presents a typical "battle of the experts." Unfortu nately for the defendant, the trial co urt wei ghed the testimony of the state's expert more heavily than that of the def ense expert. The trial court addressed the essential differences between the state's evi dence and defense evidence in its findings of fact. It resolved these issues adverselyto the position advanced by the defendant. On appeal, the de f endant has not convinced us that the evidence preponderates against t he trial co urt's det erminat ion of co mpeten cy.

The judgment of the trial court i s affirmed.

_______________________________ CURWOOD WITT, JUDGE7

CONCUR:

_____________________________ JOE G. RILEY, JUDGE

_____________________________ ROBERT W. WEDEMEYER, SPECIAL JUDGE