### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te mb er 1, 200 9

STATE OF TENNESS EE v . DECARLOS RODG ERS

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 05-04808 Paula Skah an, Jud ge

No. W2009-00588-C CA-R 3-CD - Filed October 7, 2009

The de fenda

nt, Deca rlos Rodge rs, pled g uilty to posse ssion of coca ine in a n amount g reater than 0.5 g ra ms w ithint e nt t o s e ll a

nd c on vic ted fel on in p os se ssi on of a ha nd g un . H e wa s se nte nc e d to twelve a nd two y ear s, respe ctively , to be serve d concur rently as a Rang e I I offe nder. As a condition of his g uilty

plea, the de fenda

nt reser ved a c ertified que stion of law pursuant to Rule 37(b)( 2)(A) of the Te nn e sse e Rul e s of

Cr imi na l Pr oc e dure re g ard ingwh e the r t he ind ic tme nts a g a ins t hi m sh ou ld have be en dismissed under a theory of pr o m i s s o ry es t oppel. Afte r re view, we conclude that the qu e sti on s are pr op e rl y

c e rt if ie d a nd that th e tr ia l c ourt

ru le d c or

re c tly in d e nyingthe mot ion

to dismiss

. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

A LA N E. G LE NN , J., delivere d the opinion of the court, in which D AVI D H. W ELL ES and C AM I LLE R. M C M ULLEN , JJ., joined.

Ste ph e n R. Le ff

le r, Me mph is, Te nn e sse e , f or the app e lla nt, De c arl os Rod ge rs

.
Robert E. C o o p er, Jr ., Attorney Ge nera l and Reporter ; Rachel W est Harmon, Assistant Attorney Gene ral; William L. Gibbons, District Attorney Ge nera l; and Byron Winsett and Stace y McEndre e, Assistant District Attorneys Gene ral, for the appe llee, State of Te nnessee

.
OP IN ION

F AC TS

I n J uly 2005, the defendant was indicted i n count one of possession of twenty -six g rams or more of c ocai n e with i ntent to sell, in count two of possession of twenty -six g rams or more of

coca ine with intent to deliver, and in c ount three of convicted f

elon in possession of a ha ndg un.

Th e tr ia l c ourt

c on du c ted a vo ir di re e xami natio n o f t he de fe nd ant o n July

26 , 2 00 6, to deter mine his de cision reg ardingan off er pr esente d to him by

a fe dera l prosecutor . The de fenda nt acknow ledg ed that he ha d two case s pending in state court, one invol ving a driving char g e and the-2-

oth e r i nv olv ingc ra c k c oc a ine and fe lon in pos se ssi on of a ha nd g un

. He a lso ha d a ca se pe nd ingin fe de ra l c ourt on c on vic te d fe lon in po sse ssi on of a fi re arm , ba se d on the same inc ide nt a s th e state char g e. The defe ndant re lay ed his understa nding that the state prose cutor ha d declined to make an offe r but was de fer

ring to the federa l prosec utor who had made him an of fer in which he would se rve fiftee n y ear s on his state char g es and e ight to ten y ear s on his feder al cha rg es, conc urre ntly

.
The defe ndant acknow ledg ed that he understood if he re jected the fede ral off

er, the fede ral prosec utor had intende d to bring a super seding indictment in which all of his state c harg es, with the exception of the driving char g e, would be tr ied in fede ra l co urt. I n response to his counsel’s questions, the defe ndant furthe r ac knowledg ed that he understood the state prosec utors would then dismiss the cha

rg es ag ainst him and he would be prosecute d solely in fede ral c ourt. The de fenda nt

was apprised that he fac ed signific antly more e x posure in fe dera l court, but he de clined the of fer and said he would “ take [his] chanc es over there .”

The re co rd i ndicates that the fede ral prose cutor broug ht a superse ding indictment on November

28, 2006. A trial proce eded in f eder al court, and the defe ndant was found not g uilty on the g un char g e and the drug char g es we re dismissed with prejudice . There afte r, the State proc eede d with its case ag ainst the defe ndant.

On J uly 16, 2008, the defe ndant filed a motion to dismiss the prosec ution ag ainst him on the g round of “ prosec utorial esto p p el
, ” ar guing that he re jected the fede ral c ourt offe r with the understandingthat the State would dismiss i ts charg es ag ainst him a nd all matters would be handle d in the fede ral c ourt. The tria l court conduc ted a hear ing on the motion on September 3, 2008. At the he ari ng , th e de fe nd ant’ s st a te c ourt tr ia l couns e l tes tif ie d tha t she re pr e se nte d th e de fe nd a nt i n state cour t in which the defe ndant was char g ed with possession with intent to sell and deliver coca ine and fe lon in possession of a handgun. She rec alled that the defenda nt was also indicted in feder al

c ourt on a g un c ha rg e , b ut w he n th e de fe nd ant d e c lin e d th e of fe r, the fe de ra l pr os e c uto r b ro ug ht a superse ding indictment that e ncompassed the drug char g es as we ll.

State court c ounsel identified a le tter she wr ote to the def endant six da y s befor e the defe ndant’s voir dire examination reg arding the offe r. I n that letter, counsel informed the def endant that if he re

jected the fede ral prosec utor’s offe r to se ttle his state and fe dera l case s, “[his] wish that all [hi s] charg es ar e prose cuted in one c ourt will be g rante d. Once the superse ding f eder al indictment is handed down, the State of Tenne ssee wi l l enter nolle pr osequi in y our ca ses[.] ” She explained that the State did not make the de fenda nt an offe r but instead wa s “wa iting for the fe dera l authorities to put an offe r on all his case s.” The of fer was intende d to “g et rid of the State c ase,” which appe aled to the defe ndant because he no long er w anted c ounsel to repr esent him. State court counsel stated that her unde rstanding that the state case would be dismiss ed if the de fenda nt rejec ted the plea c ame f

rom “the of

fer that was re lay ed to [her] from the prosec utor.”

State court c ounsel rec alled that the de fenda nt’s case s went to trial in fede ral c ourt, and the jury acquitted him on the g un char g e. The drugchar g e wa s dismis sed bec ause the fede ral indictment was incor rec t, but she was not aware that it was dism issed with prejudice . Counsel identified a letter-3-

she wrote to the defe ndant on J uly 2, 2007, informing him that the State had r eviewe d the transc ript of his voir dire pr ocee ding a nd decide d to prosecute his state case

.

On cr oss-examination, state court counse l said that the state pros ec u t o r wa s the one who convey ed the f

eder al offe r to her but wa s not the one ac tually making the offe r. She said that the state prose cutor ne ver “ object[ed] to [ her] when [she] said [the state char g es] would be dismiss ed.” Counsel clarifie d that she first hea rd about the f

eder al offe r f

ro m t h e defe ndant’s fe dera l court attorney , and then the f

ollowing da

y , the state prosec utor rea ffirme d what the f eder al cour

t attorney had told he r. She acknow ledg ed that the fede ral offe r was never written up, an d t h e d efendant reje cted it. Counsel testified t hat whil e the fede ral case was pending , she still reported in state c ourt

on the de fe nd ant’ s c a se . Sh e ackn owl edg e d th a t du ri ngthe pe ri od , s he ne ve r f ile d a mot ion to dismiss based on he r under standing of the fe dera l offer

.

Th e de fe nd ant t e sti fi e d th a t hi s und e rs tand ingof the of fe r w a s that if he r e

je c te d it , th e state

case would be dismissed and he w ould be tried in fe dera l court on all the c harg es. The de fenda nt de c ide d to take his c ha

nc e in fe de ra l c ourt , re lying on his be lie f t

hat he wo uld

no t ha ve to d e a l w ith the matter a g ain in state cour t. On cross-e x ami nation, the def endant a dmitted that he had bee n

arr ested in state c ourt sever al ti m es b ef o re an d had tried to g et those ca ses dismissed. He denie d
tr y in g to d o th e s a me in th is c a s e

. H e s a id th a t a p r o s e c u to r n e v e r to ld h im th a t h e would not be prosec uted in state cour

t if he re jected the offe r, only

counsel told him that.

The state pr osecutor te stified that he represe nted the State duringthe voir dire he aringwhen the def endant r ejec ted the fe dera l plea off er. H e reca lled the offer was made by an assistant district attorney g ener al who was on special assig nment with the United States Attorney ’s Off ice ( “fe dera l prosec utor”). A lthough he could not rec all the s pecif ics of t he voir dire, the r ecor d indicated that he

“ c on ve y e d th e of

fe r t hat w a s wr itt e n in

the fi le .” He sa id t

hat he did no t th ink he wo uld have tol d counsel that the State would dismiss the i ndictment if the fe dera l prosecutor s broug ht a superse ding indictment. The state prosec utor noted that there was nothing in the file about dismissing the c ase.

The fe dera l prosecutor

testified that he made an off er to the de fenda

nt to settle his state and fede ral c ases. Aske d if there wer e any p ro m i s es o r commitments that the St ate’ s case would be dis mis se d, the fede ral pr os e c uto r s a id, “ No t c on ta ine d w ith in t his of fe r. ” He c ou ld n ot r e c a ll sp e c if ic a lly bu t e la bo rate d th at “ it w ou ld b e c on tr ary to a ny thi ng[he ha d] e ve r d on e to o ff e r t o dis mis s a pe nd ingState c a se a s p art of a

. . . . fe de ra l pr os e c uti on .” He e la bo ra te d th a t he “ wo uld be shocke d if

. . . any

body . . . would offe r a dismissal of a pe nding State c ase w hen ther e’s a pending fe de ra l c a se fo r t

he same c a se .” He sa id t

hat it wa s p os sib le that a

state c a se mig ht b e dis mis se d in the even t o f

a f e d e r a l c o n v ic ti o n , b u t h e c o u ld n o t s e e o f

f e r in g to d is mi s s r e g ar d le s s o f what happene d in fede ral c ourt.

Af te r t he he ari ng , th e tr ia l c ourt

e nte re d a n o rd e r d e nyingthe de fe nd ant’ s mo tio n to dis mis s. Th e c ourt ob se rv e d th a t th e “ fata l f

law” in t he de fe nd ant’ s argume nt wa s tha t he ne ve r e nte re d in to a plea ag ree ment with either the state or fede ral prosec utor. Instead, the defe ndant reje cted the offe r; there fore , no contra ct was f ormed. The court noted that the doctrine of promissory estoppel ca

nnotCount t w o, pos s es s i on of c oca i ne w i t h i nt ent t o de l i ver , w as di s m i s s ed. 1

-4- be a pp lie d in the a bs e nc e of a c on tr a c t. T he c ourt fo un d tha t the fe de ra l pro se c uto r did no t pr omi se that the def

endant’ s state case would be dis missed and, assuming arg uendo that he had, there was insufficient e vidence to conclude that the defendant relied on that promise in reje cting the plea. T he defe ndant then filed a

n application for

an interloc utory

appea l, which the trial c ourt denied.

Al tho ug h it

is unc le ar f

ro m th e re c or d b e fo re us , a c c or din g to t he de fe nd ant, the tr ia l in h is state ca se beg an on Fe bruar y 17, 2009. The defe ndant’s fede ral c ourt counsel testified that he was appointed on that date to repre sent the def endant in fe dera l cou rt on the fe lon in possession of a handg un char g e. He rec alled that an off er of fiftee n y ear s on the state cha rg es with the fe dera l gun char g e ser ved concur

rently was rela

y ed to him by the U.S. A ttorney ’s Offic e. Fe dera l court counse l

sa id t hat he tho ug ht t

he de fe nd ant u

nd e rs too d th e off

er, and the de fe nd ant d id n ot w ant t he de a l. Counsel stated that he probably discussed wit h the defendant that ty pically when there a

re state and fede ral c harg es ar ising o u t o f t h e same fac ts, that state char g es ar e usually dismiss ed once the offe nder pleads in fede ral c ourt. Counsel testified that when he discussed the off er w ith the d e f e n d a n t , h e a l s o ex p l ai n edt o t h e d ef en d an tt h at t h e f

ed er al p ro s ec u t o r s ai d

h e w o u l d

b ri n g a
su pe rs e din g ind ic tme nt t o in c lud e the dr ugc ha rg e s if the de fe nd ant r e

je c te d th e of

fe r. Couns e l di d not rec all discussing a

ny thing a bout the state ca se with the def endant other

th an wh at was in the offe r.

On cr oss-examinat i o n , wh en read the tra nscript of the de fenda

nt’s voir dire e x amination, fe de ra l c ourt

c ouns e l te sti fi e d th a t it

wo uld have be e n re a so na ble fo r the de fe nd ant t o th ink the state

c a se wo uld be di sm iss e d if he re je c te d th e ple a . O n r e dir e c t e xami natio n, c ouns e l sa id t hat in his experience , a def

endant would wa

nt it in writi ng if an off

er involved the dismiss al of a case

.
There afte r, on F ebrua

ry 19, 2009, the def

endant pled guilty

to possession of co ca i n e in an

a mou nt g re a te r t

ha n 0 .5 g ra ms w ithint e nt t o s e ll a

nd c on vic te d f

e lon in po sse ssi on of

a ha nd g un in

e xch ang e fo r c on c ur

re nt s e nte nc e s o f t

wel ve y e ars and

tw o y e ars , r e sp e c tiv e ly
, wh ile pr op e rl y 1

rese rving the following cer tified question of l aw pursuant to Tennesse e Rule of Criminal Proce dure 37(b)( 2)(A) that is disposi tive of this case :

Whether the indictment in this matter should have be en di s m i s s ed on the theory of promissory

estoppel base d on repr esentations made to the defend an t b y his counsel in the pres en ce o f the State to the e ffe ct that the state pr osecution would be dismissed if the defe ndant failed to acc ept an offe r t o settle both the s tate and fede ral charg es then pe nding ag ainst the defe ndant (arising out of t he same set of facts) and whether the def endant r elied on those repr esentations to hi s detriment.

AN AL YSI S

Th is c ourt re vie ws a tr ia l c ourt ’s ru lin g on wh e the r to dis mis s an ind ic tme nt un de r an a bu se of discre tion standard. State v. Ha rr i s , 3 3 S

. W .3d 767, 769-70 (Te nn. 2000). “The abuse of-5-

discretion standa

rd conte mplates that befor e re versa l the rec ord must show that a judg e ‘a pplied an incorre ct leg al standar d, or re ache d a deci s i o n whi ch is ag ainst logic or re asoning that cause d an inj us tic e to t

he pa rt y c omp la ini ng .’ ” State v. Col e y , 32 S.W.3 d 8 31 , 8 33 (T e nn . 2 00 0) (q uo tin g Sta te v. Shirley , 6 S.W .3d 243, 247 (Tenn. 1999) ).

Our supre me cour

t has held that plea

ag ree ments are enfor cea

ble contracts once acc epted by the trial j u d ge. S ee State v. Howing ton, 907 S.W .2d 403, 407 (Tenn. 1995) . Gene rally , when a n ag ree ment is acc epted a

nd later br eac hed, the reme dy is either spec ific per formanc e of the ag ree ment

or restoration of the parties to pr e-ple a status. See State v. Mellon, 118 S.W .3d 3 4 0
, 3 4 6 (T en n. 2003). In this case, a s noted by the trial cour

t, the defe ndant rejected the plea offer ; theref ore, the re
was no c ontrac t formed be tween the parties.

Our supre me cour

t has held that promissory estoppel is “‘a

promise which the promisor should r easona

bly expect to induce ac tion or forbe ara nce of a def inite and substantial char acte r on the par t of the promi see and which doe s induce such a ction or for bear ance is binding if injustice ca n be avoide d only

by enfor ceme nt of the promise.’” Alden v. P resley , 637 S.W .2d 862, 864 (Tenn. 19 82 ) ( qu oti ngRe state me nt of Con tr a c ts, § 90 ). To state a su c c e ssf ul c la im f or pr omi sso ry

e sto pp e l, the a sse rt ingpa

rt y mus t sh ow that a pr omi se wa s ma de and that it r e a so na bly re lie d u po n th e pr omi se to its detriment. Calabro v. Calabro, 15 S.W.3d 873, 879 (Tenn. Ct. App. 1999). The promise upon which the pr omisee re lied must be unambig uous and not unenforce ably vag ue. Amac her v. B rownFor man Corp., 826 S.W.2d 480, 482 (Tenn. Ct. App. 1991). A claim of pr omissory estoppel is not de pe nd e nt u

po n th e e xiste nc e of an e xpre ss c on tr a c t be tw e e n th e pa rt ie s. En Ge niu s E nte rt a inm e nt, I nc. v. He renton, 971 S.W.2d 12, 19 (Tenn. C t. App. 1997). “The key element in finding promissory estoppel is, of cour se, the promise.” Amache r, 826 S.W.2d at 482.

I n this case, the State ma de no promise to dismiss the charge s ag ainst the defe ndant in the event he reje cted the f

eder al plea of

fer and, as f o u n d b y the trial cour

t, neither did the fe dera l prosec utor make suc h promise. The r epre sentation upon which the defe ndant alleg edly relied w as made by his counsel. Althoug h the defe ndant place s emphasis on the fa ct that the state pr osecutor could have corr ecte d counsel’s state ments during the voir dire if wr ong , the State was not involved in the details of t he plea neg otiations and was only rela y ing w hat had be en pre sented by the fe dera l prosec utor.

The de fenda

nt offer ed the c ases of

Shaffe r v. Morg an, 815 S.W.2d 402 (Ky . 1991), and Pe op le v. Ray

mon d, 56 0 N .E .2d 2 6 ( I ll. Ap p. Ct. 19 90 ), a s p e rs ua siv e a uth or ity in s up po rt

of his argument. I n Sh a ff

e r, the State a greed to and the tr ia l c ourt dis mis se d th e de fe nd ant’ s c a se wi th prejudice . 815 S.W .2d at 403. The S tate later indicted t he defenda nt for the same offense, a

nd the Kentuck y S u p reme Court found that the State had r eneg ed on the a g ree ment upon which the defe ndant had de trimentally relied. I d. at 403-04. I n Ray mond, the State informed the de fenda nt that felony char g es ar ising out of a

fata l traff ic ac cident would not be f

iled ag ainst him, and the def endant there afte r voluntarily

testified in a civil hea

ring reg arding the revocation of his driver’ s license. 560 N. E. 2d a t 27 -2 8. Th e de fe nd ant w a s in fa c t la te r ind ic te d fo r re c kle ss h omi c ide , a nd he mov e d to dismiss the cha

rg e which the trial court g rante d. I d. at 28. The I llinois Appellate Court a ffirme d,-6-

concludingthat the State made a n unambig uous promise, t he defenda nt relied on the promi se, the

re lia nc e wa s r e a so na

ble , a nd de fe nd ant su ff

e re d de tr ime nt. I d. a t 29

. I n a dd iti on to be ingoth e rw ise distinguish ab l e, these c ases c ontain one distinct element missing f rom the def

endant’ s case – a p r o mi s e ma d e b y

th e p r o mi s o r

a g a in s t w h o m t

h e c la im an t i s tr

y in g to e n f

o r c e th e p r o mise

. We

c on c lud e that th e tr ia l c ourt did no t a bu se its dis c re tio n in d e nyingthe de fe nd ant’ s mo tio n to dis mis s the indictment ag ainst him.

CO NC LU SION

B a se d o n the fo re g oin g a

uth or iti e s and

re a so nin g , w e a ff

ir m th e jud g me nt o f t

he tr ia l c ourt

.

___________________________________ ALAN E. G LENN, JUD GE