State v. George Pilkinton

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JULY SESSION, 1999 October 29, 1999 Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9809-CC-00368 ) Appellee, ) ) GILES COUNTY V. ) ) ) HON. JUDY G. CALLAHAN, JUDGE GEORGE SHERRILL PILKINTON, ) ) Appe llant. ) (VEHIC ULAR H OMIC IDE)

FOR THE APPELLANT: FOR THE APPELLEE:

HAL HARDIN PAUL G. SUMMERS Counsel for Appellant At Trial Attorney General & Reporter

ROG ER T. M AY KIM R. HELPER Counsel for Appellant At Trial Assistant Attorney General 219 Second Avenue N., Suite 300 2nd Floor, Cordell Hull Building Nashville, TN 37201-1601 425 Fifth Avenue North Nashville, TN 37243

M. ANDREW HOOVER T. MICHAEL BOTTOMS Counsel for Appellant On Appeal District Attorn ey Ge neral

TIMOTHY P. UNDERWOOD ROBERT C. SANDERS Counsel for Appellant On Appeal Assistant District Attorney General 134 North Second Street Pulaski, TN 38478 RICHARD DUNAVANT Assistant District Attorney General 252 North Military Avenue P.O. Box 459 Lawrenceburg, TN 38464

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION

On October 14, 1996, the Giles County Grand Jury indicted Defendant George Sher ill Pilkinton for aggravated vehicular homicide. On March 16, 1998, Defendant pled guilty to vehicular homicide pursuant to a negotiated plea agreement. Following a senten cing hea ring on M ay 5, 199 8, the trial court sentenced Defendant as a Range I standard offende r to a term of eight years in the Tennessee Department of Correction. On May 21, 1998, Defendant filed a motion to set aside the sentencing hearing and/or vacate the plea agreement. The trial court conducted a hearing on the motion on August 8, 1998, and the trial court denied the motion on August 11, 1998. Defendant challenges his conviction, raising the following issues:

1) whether the trial court erred when it denied his motion to suppress blood sample evidence; and

2) whether the trial court erred when it denied his motion to set aside the senten cing hea ring and /or vacate the plea a greem ent.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. BACKGROUND

Defendant and the State stipulated to the following facts in the petition to enter a plea of guilty:

On July 23, 1996, the de fendant, Ge orge She rill Pilkinton, while working on his farm in Giles County, Tennessee, consumed some alcoholic beverages during the day, between 2:30 and 5 p.m . At or about 5 p.m . he left his farm and drove his pickup truck down Pigeon Ro[o]st Road and struck a mo torcycle head-on. The driver of the m otorcy cle, Du stin Clark, was instantly killed. The point of impac t betwe en the two veh icles w as ove r the ce nter of th e road in the direction that the defendant was driving. Appro ximately 3 hours thereafter, a blood sample was taken. The TBI lab found it negative for marijuana but .06 positive for alco hol. In February the blood sample was at the request of the District Attor ney, teste d by a Pe nnsylvan ia lab for m arijuana.

After he was indicted, Defendant filed a motio n to su ppres s the b lood s amp le eviden ce tha t was o btaine d in this case. In his motion, Defendant argued that the evidence shou ld be suppressed because the blood sample was destroyed before the defense expert was able to perform inde penden t testing. The trial court

-2-subs eque ntly denied the motion after finding that there was no proof that independent testing of the blood sample by the defense would have produced any exculpatory evidence.

Following the denial of his motion to suppress, Defendant entered into plea negotiations with the State. The parties subsequently entered into an agreement whereby Defendant agreed to plead guilty to vehicular homicide with a sentence of eight years in return for the State’s agreement to dismiss all other charges. The agreement also provided that the trial court would conduct a sentencing hearing to determine how the sentence would be served. In addition, the agreement provided that neither party would call any witnesses during the sentencing hearing.

During his argument at the sentencing hearing, defense counsel stated that Janice Clark, the victim’s mother, wanted Defendant “to serve somewhere between the maximum and the minimum sentence”, but she was opposed to full probation. Shortly thereafter, the prosecutor informed the court that Ms. Clark wanted to be heard because defense counsel had inferred that she was amenable to something less than an eight year sentence while, in fact, she was adamant that Defendant shou ld receive an eight year sentence. Defense counsel then objected to allowing Ms. Clark to make a statement on the ground that permitting her to testify would be a violation o f the plea a greem ent.

The trial court then asked the prosecutor whether the State wanted Ms. Clark to testify or whether it was Ms. Clark’s ow n idea. The prosecutor responded that he would prefer that Ms. Clark did not testify, but he believed that she had a right to do so. The tr ial cou rt subs eque ntly ruled that, as the victim’s mother, Ms. Clark had a right to make a statement. The trial court also ruled that Ms. Clark wa s not a pa rty to the agreement and thus, the agre emen t did not affe ct her right to testify. The trial court the n called M s. Clark to make a statem ent.

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Ms. Clark subs eque ntly stated that she believed that Defendant should suffer the consequences of his actions, even though his family would suffer if he was incarcerated. The trial court then asked Ms. Clark three questions about whether she was aware of various sentencing provisions governing release eligibility and Ms. Clark essen tially stated tha t she did n ot want D efenda nt to be able to jus t “walk[] away”. Neither the pros ecutor nor de fense coun sel asked M s. Clark any questions.

II. DENIAL OF THE SUPPRESSION MOTION

Defendant contends that the trial court erred when it denied his motion to supp ress b lood s amp le evide nce. W e con clude that D efend ant ha s waive d this issue.

“The genera l rule is that a p lea of guilty waives all non-jurisdictional defects, procedural defects, and constitutional infirmities.” State v. Gross, 673 S.W.2d 552, 553 (Tenn. Crim. App. 1984). However, Rule 37(b)(2)(i) of the Tennessee Rules of Crim inal Procedure provides for an appeal following a guilty plea in limited situations. Rule 37(b)(2)(i) states:

(b) . . . An ap peal lie s from any ord er or jud gme nt in a cr imina l proceeding where the law provides for such appeal, and from any judgment of conviction: .... (2) upon a plea of g uilty or nolo c ontend ere if: (i) defendant entered into a p lea ag reem ent un der R ule 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 ;

Tenn R. Crim . P. 37(b)(2 )(i).

The Tenn essee Supre me C ourt set forth the requ iremen ts for pursuing an appeal pursuant to Rule 37(b)(2)(i) in State v. Preston, 759 S.W.2d 647 (Tenn. 1988). The supreme court stated that

This is an approp riate time for this Cou rt to make explicit to the bench and bar exactly what the ap pellate courts will hereafter require as prerequisites to the consideration of the merits of a questio n of law ce rtified pursu ant to Tenn.R.Crim.P. 37(b)( 2)(i) or (iv). Regardless of what has appeared in prior

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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 c learly identify the scope and the limits of the legal issue res erved. . . . Also, the order must state that the certified question was expressly reserved as part of a 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 cas e. Of cou rse, the bu rden is on defend ant to see that the se pre requis ites 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 ce rtified qu estion of law is dispositive and the merits of the question certified. No issue beyond the scope of the ce rtified qu estion will be considered.

Id. at 650.

The judgmen t in this case does not contain a sta tement of an y dispositive question of law, d oes n ot con tain a s tatem ent tha t the ce rtified question was expre ssly reserved, and does not contain a statement that the State and trial court agree that the question is dispositive. In fact, nothing in the record indicates that Defendant made any effort to reserv e the q uestio n of wh ether th e bloo d sam ple evidence should h ave bee n supp ressed . In short, Defendant has waived this issue by failing to comply w ith the requirements of Rule 37(b)(2)(i). Defendant is not entitled to relief on this issue.

III. DENIAL OF THE MOTION TO SET ASIDE THE SENTENCING HEARING AND/OR VACATE THE PLEA AGREEMENT

Defendant conte nds th at the tria l court e rred w hen it d enied his motion to set aside the sentencing hearing and/or vacate the plea agreement. We disagree.

Defendant argues that the State violated the plea agreement when it called Ms. Clark to testify during the senten cing h earing , even th ough it had sp ecifica lly agreed not to call any witnesses. The record indicates that the State informed the trial court that Ms. Clark wanted to make a statement because she believed that defense counsel had misrepresented her feelings about the sentence that should be

-5-imposed. After the trial court allowed Ms. Clark to make a statem ent, the State d id not ask Ms. Clark a single question.

Tennessee Code Annotated section 40-35-209(b) provides that “[a]t the senten cing hea ring, the co urt . . . may afford the victim o f the offe nse o r the fam ily of the victim the opportunity to testify relevant to the sentencing of the defend ant.” Tenn. Code Ann. § 40-35-209(b) (1997). Thus, the trial court was clearly authorized to permit Ms. C lark to mak e a sta teme nt. No thing in the ple a agre eme nt limite d this authority. Further, M s. Clark w as not a p arty to the plea a greem ent an d noth ing in the record indicates that she otherwise agreed not to make a statement at the sentencing hearing in return for D efendant’s ag reemen t to plead guilty.

In addition, it is clear that Defendant was not prejudiced in any manner by Ms. Clark ’s statement. Ms. Clark’s entire statement takes up less than one page of the transcript of the sentencing hearing. Moreover, Ms. Clark’s stateme nt is m erely cumulative of the in forma tion sh e inclu ded in her victim impac t stateme nt. Indeed, the trial court specifically stated that

[Ms. Clark] did not say anything of substance that was not included in the investigation report filed by the Department of Correction. The Court does not remember now, and I don’t think I did at that tim e give an y special w eight to the testimony of a grieving mother as to what the sentence should be.

In short, the plea agreement in this case was simply not violated. Therefore, the trial court’s denial of the motion to set aside the sentencing hearing and/or vacate the plea agreement was entirely appropriate. Defen dant is no t entitled to relief on this issue.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________ THOMAS T. W OODALL, Judge

-6-CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ NORMA McG EE OGLE, Judge

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