State of Tennessee v. Deangelo M. Radley ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 14, 2011
STATE OF TENNESSEE v. DEANGELO M. RADLEY
Appeal from the Criminal Court for Davidson County
No. 2010-B-1107 J. Randall Wyatt, Jr., Judge
No. M2011-00165-CCA-R3-CD - Filed October 7, 2011
The defendant, Deangelo M. Radley, pleaded guilty in the Davidson County Criminal Court
to one count of unlawful possession of a weapon, see T.C.A. § 39-17-1307 (2006), and
attempted to reserve the right to appeal a certified question of law, see Tenn. R. Crim. P.
37(b)(2), concerning the legality of the vehicle stop leading to his arrest. Following our
review, we conclude that the defendant failed to properly certify a question of law that is
dispositive of the case. Accordingly, we dismiss the appeal.
Tenn. R. App. P. 3; Appeal Dismissed
J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.
Joshua L. Brand, Nashville, Tennessee (on appeal); Scott Saul, Nashville, Tennessee (at
trial), for the appellant, Deangelo M. Radley.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Ben Ford, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Sometime after midnight on November 13, 2009, Metropolitan Nashville
Police responded to the call of a burglary at the AM Express gas station on Nolensville Road.
The officers were dispatched based upon an anonymous telephone call by “[a] witness that
lived across the street . . . saying they were witnessing [that] a maroon type Ford . . . Explorer
had rammed into the front of the business[,] and they saw an individual coming out of the
business with items in their hand.” The officers arrived at the scene within five to seven
minutes and observed that the two front glass doors “had been pushed in causing an opening
into the business.” The officers entered the store, found no one inside, and went outside to
the parking lot.
Within 10 minutes, the officers saw a maroon Ford Explorer driven by the
defendant traveling north on Nolensville Road. Because the vehicle matched the one
described by the caller, the officers initiated an investigatory stop. As one officer approached
the driver-side door, another officer approached the passenger-side door and immediately
observed a .38 revolver lying on the passenger seat. The officers ordered the defendant from
the vehicle. The defendant claimed that the fully-loaded handgun did not belong to him, but
he did admit that he was a convicted felon. The officers observed “some minor [damage]
possibly like scratches” on the front bumper of the vehicle. They did not find, however, any
evidence of the defendant’s involvement in the burglary, and the defendant was never
charged with burglary.
The defendant filed a motion to suppress the gun alleging that the officers did
not have reasonable suspicion based upon the uncorroborated statements of the caller to
justify the stop of his vehicle. Following an evidentiary hearing, the trial court found that the
knowledge and credibility components of the anonymous call were sufficiently satisfied by
the fact that the nature of the call indicated that the caller was witnessing the burglary as it
occurred and by the officers’ independent corroboration of the report by verifying the
condition of the burglary scene within minutes of the call. With these components satisfied
and because the defendant’s vehicle matched the description of the vehicle used in the
burglary, the trial court concluded that the officers possessed reasonable suspicion to justify
the stop and denied the defendant’s motion to suppress.
On November 12, 2010, the defendant pleaded guilty to the weapons offense
with an agreed sentence of five years as a Range III, persistent offender to be served on
community corrections. The guilty plea petition and the judgment, both filed on November
12, 2010, reflect that the defendant also reserved a certified question of law pursuant to
Tennessee Rule of Criminal Procedure 37. The judgment, however, does not contain a
statement indicating (1) the scope of the certified question, (2) the consent of the parties, or
(3) the agreement of the parties that the question is dispositive of the case. Likewise, the
judgment does not incorporate by reference any other document concerning the certified
question. On November 12, 2010, the trial court filed an addendum to the judgment
incorporating by reference the defendant’s motion to suppress, the State’s answer, and the
trial court’s order denying the motion to suppress and indicating that the parties agreed that
the question was dispositive of the case. The addendum states the certified question as:
“Whether the Defendant was lawfully stopped by Officer Rumbley of the Metro Nashville
Police Department.”
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On appeal, the defendant contends that the trial court erred in denying his
motion to suppress because the stop was based upon an insufficiently corroborated
anonymous tip. The State urges this court to dismiss the appeal for the defendant’s failure
to certify properly the question of law presented for review. In the alternative, the State
contends that the trial court correctly denied the motion to suppress.
As in any other appeal before this court, our first concern is whether this court
is authorized to hear the case, and in the present case, the State claims that this court lacks
jurisdiction. Jurisdiction to hear a direct appeal following a guilty plea generally must be
predicated upon the provisions for reserving a certified question of law. Reserving a certified
question of law for appellate review is governed by Rule 37(b)(2) of the Tennessee Rules of
Criminal Procedure, which provides:
(b) The defendant or the state may appeal any order or judgment
in a criminal proceeding when the law provides for such an
appeal. The defendant may appeal from any judgment of
conviction:
(2) On a plea of guilty or nolo contendere if:
(A) the defendant entered into a plea agreement under
Rule 11(a)(3) 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, and the following
requirements are met:
(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 that the defendant reserved for appellate
review;
(ii) the question of law must be 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 court; and
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(iv) the judgment or document reflects that the
defendant, the state, and the trial court are of the opinion
that the certified question is dispositive of the case[.]
Tenn. R.Crim. P. 37(b)(2)(A)(i)-(iv) (emphasis added). “Appeals of certified questions of
law run counter to the general rule that a defendant enjoys no right of appeal following a
guilty plea.” State v. Festus Babundo, No. E2005-02490-CCA-R3-CD, slip op. at 3 (Tenn.
Crim. App., Knoxville, May 25, 2006); compare Tenn. R. Crim. P. 37(b)(1) with id. 37(b)(2).
Because of the dispensatory nature of a certified question appeal, our supreme
court firmly rejected a rule of substantial compliance, see State v. Armstrong, 126 S.W.3d
908, 912 (Tenn. 2003), and instead demanded strict adherence to Rule 37(b), as that rule has
been amplified by the court itself. For instance, in State v. Pendergrass, our supreme court
“emphasized” that
[r]egardless of what has appeared 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 identify the scope and the
limits of the legal issue reserved. For example, where questions
of law involve the validity of searches and the admissibility of
statements and confessions, etc., the reasons relied upon by
defendant in the trial court at the suppression hearing must be
identified in the statement of the certified question of law[,] and
review by the appellate 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 state that the
certified question was expressly reserved as part of the plea
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 dispositive 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 proceedings below that bear upon whether the
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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.
State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn. 1996) (quoting State v. Preston, 759
S.W.2d 647, 650 (Tenn. 1988) (emphasis added)); see also State v. Lillie Fran Ferguson, No.
W2000-01687-CCA-R3-CD, slip op. at 4-5 (Tenn. Crim. App., Jackson, Apr. 27, 2001)
(lamenting general, widespread failure to comply with Preston-Pendergrass and citing cases
in which the court of criminal appeals has dismissed certified question appeals). This court
has said that, given the mandate for strict compliance, ineffectual certified question appeals
continue to “add[ ] to the growing heap of appellate fatalities that have resulted when would-
be appellants failed to heed the Preston-Pendergrass litany of requirements for certified-
question appeals.” State v. Carl F. Neer, No. E2000-02791-CCA-R3-CD, slip op. at 2 (Tenn.
Crim. App., Knoxville, Oct. 8, 2001).
That being said, Rule 37, as is applicable to this case, permits the review of a
certified question of law in instances where the “other document to which [a] judgment refers
that is filed before the notice of appeal” otherwise satisfies the requirements of the rule.1 See
also State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998) (acknowledging that a separate
document that comports with Rule 37 requirements will afford this court jurisdiction so long
as the document is incorporated into the judgment). The judgment of conviction in this case,
however, failed to incorporate by reference the separate order filed contemporaneously with
the judgment. For this reason, this court is without jurisdiction to review this appeal. See
State v. Rickey Clayton Rogers, M2009-02377-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App.,
Nashville, Mar. 8, 2011) (holding that “it is not sufficient that the ‘other document’ contains
all the required information . . . . the judgment must refer to the ‘other document’ which
contains the necessary information”); State v. Curtis Emmanuel Lane, E2004-02340-CCA-
R3-CD (Tenn. Crim. App., Knoxville, Nov. 11, 2005) (holding that addendum sufficiently
setting forth Rule 37 requirements filed on the same date as judgment did not afford this
court jurisdiction when judgment did not incorporate by reference the addendum), perm. app.
denied (Tenn. Mar. 2, 2006). Accordingly, we dismiss the appeal.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
1
We note that recent amendments to Rule 37 dispense with the requirement that a separate document
setting forth the certified question be incorporated by reference in the judgment. See Tenn. R. Crim. P.
37(b)(A)(i) (effective July 1, 2011); see also Tenn. R. Crim. P. 37, Advisory Comm’n Comments (2011).
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