### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE September 19,

2001 Session
STATE OF TENNESSEE v. SIGIFREDO RUIZ
Direct Appeal from the Circuit Court for Williamson County

No. I-700-227 Donald P. Harris, Judge

No. M2000-03221-CCA-R3-CD - Filed October 17, 2001

A Williamson County

grand jury indicted the defendant on one count of possession of not less than ten pounds, one gra

m of marijuana nor

more than seventy

pounds of marijuana with intent to sell or deliver. Through counse

l the defendant f

iled a motion to suppr

ess any evid

ence or statements resulting from th e allege dly unconstitutional search of the defendant’s vehicle. When the motion to suppress was denied, thedefendant waived his right to a trial by jury and pled guilty as charged. For this offen se the trial court sente nced t he def endan t as a R ange I, standardoffender to two y ears, which would be suspende d after the serv

ice of one hundre

d days, day

for day; p

l aced him on supervised proba

tion for a period o

f four yea rs; and fined him fi

ve thousand dollar

s. According to the Negotiated Plea Agreement form, there was also an agre ement with the State that the defendant would later submit a

certified questi

on of law to this Cour

t. Through this appeal the defendant asks
us to consider two search related issues. However, the State ass erts that the defendant did not properly reserve the ce

rtified questions,

and, thus, this Co

urt lack s jurisdiction to con sider them. Finding the State ’s position has meri t, we, therefor

e, dismiss this appea

l.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Dismissed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J. and D AVID G. H AYES , J., joined.

Mario Ramo

s, Nashvil le, Tenne ssee, for appellan t, Sigifr edo Ruiz.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney Gene ral; Ron Davis, District Attorney General; and Derek K. S mith, Assistant District Attorney

, for appellee, S

tate of Tennessee.1 Because we find the jur isdict ional i ssue raised by the State det

erminat ive, we limit

our fact ual pres entati

on to only the pr

ocedural aspects of

the case.

2 During the plea subm iss ion hea ring, de fense cou

nsel eve n asked a que stion c oncernin g the proce

dure for reserving the c ertified questio ns because of his unfamiliarity with th is type of app eal.
-2- OPINION
Factual Backgrou

nd 1

The defendant faced D felony possession of marijuana char ges stemming from

the search of his pick-up truck. As af orementioned, the defendant pled guilty to the charge d offense and received a two year sentence

to be suspended after the service of one hundred days, day for day

; four yearson supervised probation; and a five thousand dollar fine. The videotapes of the defendant’s guilty plea submission hea

ring and of his se

ntencing hear

ing unquestionab

ly reflec t his intentto seek appellate review of a certified question. 2 Furthermore, th e technical rec

ord supports this inte

nt. Prior to entering his pl

ea, the defenda

nt signed a form e

ntitled “Negotia

ted Plea Agree

ment.” Also written on the form is the following statement: “Will submit certified q uestio n to Court Criminal Appeal [sic] in a separate order.” In keeping with that statement, the record presented includes an agreed order submitting

for review to this Court whether “the stop and search [was] constitutional under the 4 th Amendment” and w heth er “the use of the canine [was] constitutional under the 4 th Amendment.” Since this was an agreed order, the State at the trial court level obviously offered no opposition. Nevertheless, at the appellate level theState filed a motion to dismiss contending that this Court lacked juris

diction because t

he alleged ce

rtified questio

ns were not

properly reserved. This Court denied the motion, ordering the State “to file an appellate brief . . . includ[ing] a res ponse to the [defendant’s] contention that his guilty plea should be vacated.” Within its brief the Sta te again argued that this Court did not have jurisdiction to consider the matters raised

by the defe

ndant. After reviewing the St

ate’s threshold is sue, we find it to ha ve merit and, ther

efore, dism

iss t he defendant’s appeal.

Alleged Improper Reservation of a Certified Question of Law

Under the Tennessee Rules of Criminal Procedure, a defendant pleading guilty may reserve for appeal a certif

ied question of law

dispositive of his

or her case. Tenn. R. Crim P. 37(b)(2)(i), (iv). In State v. Pr eston , 759 S.W.2d 647 (Tenn. 1988), the Tennessee Supreme Court set out the required steps to successfully preserve this ty pe of appeal. Id . at 650. The Preston Court stated:
Regardless

of what has appeared

in prior petitions, orders, colloquy in open court or otherwise, the final order or judgment from wh

ich the time begi

ns to run to

pursue a T.R.A.P. 3 appeal must contain a statement of the dispositive certified question of law reserved by [the] 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

.... Without an explicit

statement of the certified question, neither the defendant, the-3-

State[,] nor the trial judge can make a meaningful

determination of whether the issue sought to be reviewed is

dispositive of the c

ase . . .. Als o, t he order must state that the certified questionwas expressly reserved as part of the plea agreement, that the Stateand the trial judge consented to the reservation[,] and that the State andthe trial ju dge ar e 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....

Id

. Approximately

eight years later, our s

upreme co urt quoted this lang uage with appro

val in Statev. Pendergrass , 937 S.W.2d 834, 836-37 (Tenn. 1996). During Pendergrass’ plea, reference
was clearly ma

de to his reservation of

a certified question of law. Id . at 835. Nevertheless, the judgment subsequently entered on January 15, 1993, contained no mention of a reservation of the right to appeal a dispositive certifi ed q uestion of law. Id . On February 12, 1993, “the defendant filed a notice of appeal ‘pursuant to Rule 37,’” and one week later “the trial court entered an order, p urporting to n ote the appeal of a certified question of law.” Id . However, the supreme court dismissed the appeal

. Id . at 838. In support of its dismissal,

the Pendergrass

court cited the de

fendant’s failu

re to comply

with Preston , which resulted in the ap pellate court’s lack of jurisdiction. Id . at 837-38. The su preme court observed, for example, that the judgments did not re fer ence the reservation of a certified question; that the judgments did not contain a statement indicating that the certified question would be dispositive of the case; that the judgments did “not refer to or incorporate any other independent document which would satisfy the Preston requirements,” etc. Id . at 837. Further more, the supreme court observed that the trial court had lost jurisdiction upon the defendant’s filing of his notice of appeal. Id . at 837-38. Along this line the Pendergrass Court agreed with the

State’s portrayal of the February 19 th order as “an attempt to confer jurisdiction on the Court of Criminal Appea

ls to hear and determine a Preston appeal where no jurisdiction existed because of noncompliance wi

th Rule 37.” Id . at 837. The supre

me court further f

ound that even if th

esematters had not precluded review, the order did not clearly identify “ the scope and limits of the legal issue reserved.” Id . at 838. Turning to the ca se presently before this Court, we find the rationale of Pendergrass controlling because of n umerous fac tual similarities. For example, the defendant in the instant appeal made reference

within his pleaagreement form to reserving a certified question of law. However , no mention was made o

f this in the judgment entered on December 4, 2000. On December 11, 2000, the defendant filed his noticeof appeal and on the same day mailed to the assistant district attorney handling the defendant’s case a copy of the afore mentioned agreed o rder outlining the certified questions. The record reflects that the Williamson County Circuit Court Clerk’s Office received the agreed order on the 12 th, and the tri al judge signed the order on the 13 th . As in Pendergrass , the order containing the certified questions was entered after t he defend ant had filed his no tice of appeal; therefore, the trial court no longer had jurisdiction to cure the flaws in the appeal. Furthermore, the agreed order includes no statement that the certifie d question

s listed ar e disposit ive of the case. We3 In Pendergrass , o ur supreme court provi ded guidance regardin

g the detail

nee ded to pr eserve certi fied questions. Pendergrass , 937 S.W .2d at 650 . The supr eme cou rt stated: For examp le, where qu estions of law inv olve the valid ity of searches an d the adm issibility o f statements and confessions, etc., the reasons relied upon b y [the] defenda nt in the trial court at the suppressi

on hearing must be identified in the statement of the certifi ed question of l

aw and review by the appellate c ourts will be limited to those passed upon by t he trial j udge and stated in the cert

ified question, abse

nt a constit

utional requi

rement otherwi se. Id

. 4 The court also observ ed that Ogle’s

supplemental order

was filed thirty days after the entry of the jud gment, which had, the refore, bec ome final. Ogle , 2000 WL 38755, at *3.
-4- also notethat the questions listed lack the requisite limitation of the issues presented. 3 See e.g ., State
v. Randa ll L. Cheek , No. M2000-00203-CCA-R3-CD, 2000 WL 1838584, at *4 (Tenn. Crim. App. at Nashville, Dec. 14, 2000). Our decision is further informed by the more recent case of State v. Danny Harold Ogle , No. E2000-00421-CCA-R3-CD, 2001 W L 38755 (Tenn. Crim. App. at Knoxville, Jan. 17, 2001, permission to appeal d

enied , J une 4, 2001). At the time of Ogle’s plea, all parties involved were
awarethat he intended to

reserve a certified question for appeal. Id . at *1. Both his plea agreement form and the transcri

pt of his plea submission reflected this. Id . Nevertheless, the judgment entered
on January 14, 2000 does not include the question though it does state: “CERTIFIED QUESTION OFLAW RESERVED FOR APPEAL (SEE SUPPLEMENTAL ORDER).” Id . On F ebruary 17, 2000 , t he trial judge signed and the trial clerk entered the referenc ed supplemental order. Id

. However, the defendant had filed his notice o f appeal one week previously. Id . Among other considerat ions, t he co urt rul ed t hat the tri al c our t’s sup ple men tal ord er wa s “a n ull ity” 4 and could not cure the Preston defects that prevented this Court from acquiring jurisdiction. Id . at *2-3. To further support its determination, the court provided numerous cas es a ffirming “that the Preston requirements are jurisdictional.” Id . at * 3. In sum, through Preston in 1998, our supreme court outlined the procedure to be followed to preserve a ce

rtified question f

or appeal. Preston , 759 S.W.2d at 650. It emphatically re-affirmed this procedure in Pendergrass

. Pendergrass , 937 S.W.2d at 836 -37. Thus, presen ted with the facts of the instant case, this Court must conclude that the defendant has not complied with Preston and that we are, the

refore, precl

uded from conside

ring the matters

raised by th

e defendant. The que stion then remains a s to the proper disp

osition of this appe

al in vie w of ou r conclusion that we do not have j urisdiction to consider this appeal. This Court has entered inconsistentopinions with respe ct to this issue. In State v. Ogle 2001 WL 38755, at *3, a panel of this Court declined to go ahead and vacate the guilty plea and simply dismissed the appeal. The panel found th at a pos t-conviction petition was the proper vehicle for determining whether the defendant’s guilty pleas were involuntary or the product

of ineffective

assistance of co

unsel because they were premised on the belief that his certified question would be decided on the merits. Id

. In State v. Cheek , 2000 WL 1838584, at *4-5, another panel of this Court, after finding an improper reservation of a

certified questi

on and thus a lack o

f jurisdiction, nev

ertheless went ahead and vacated the guilty plea as bei ng involuntary because it was based on a belief that the certified question would be considered.-5-

Havi ng reviewedthe opinions in both Ogle and Cheek , we have concluded that the better procedureis to simply dismiss the appeal. Because the reasons a de fendant pl eads guilty may be varied, it is not necessari

ly the case

that the induceme

nt to pled guilty

is the ability to have a certified question con sid ered on a ppe al. The defe nda nt m ay hav e pl ed gu ilt y even without the certified question. Such qu estions are better answered at an evidentiary hea ring in a post-conviction proceeding. We therefor e adop t Ogle as providing the proper disposition of appeals under the circumstances presented by the instant case. That portion of the opinion in Cheek indicating the appropriate

disposition in such cases is the vacation of the guilty plea by the appellate court is hereby expressly overruled.

Conclusion

For the foregoing reasons, we find that the State’s issue has merit. Accordingly , the defendant’s appeal is DISMISSED.

___________________________________ JERRY L. SMITH, JUDGE