### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 18, 200 2 Session

STATE OF TENN ESSEE v. WILLIAM ROBE RT POSEY

Appeal from the Criminal Court for Hamilton County No. 232588 Stephen M. Bevil, Judge

No. E2001-02665-CCA-R3-CD August 26, 2002

The Defend ant, William Robert Posey, appea ls as of right from the judgment of the trial court, which found him guilty of driving under the influence (DUI ) as a third offender. The Defendant raises two central issues on appeal. First, the Defendant arg ues that the two preceding DUI convictions ar e invalid on their face and therefore cannot be used to enha nce his punishment for the present conviction. Second, the Defendant argue s that the trial court co mmitte d error by failing to hold a hearing pursuant to Momon v. Sta te , 18 S .W.3d 152 ( Tenn. 1999), to determine whether the Defendant

persona lly w aived hisright to

testify. Bec ause the record is void of any evidence that the Defendant

didpersonally wa

ive his right to testify, we

remand the case to the trial court for a hearing
to determine whether the Defendant’s r ight to testify was violated, a nd if so, whether the violation of the Defendant’s right to testify was harmless bey ond a reasonable doubt.

Tenn. R. App. P. 3 Appeal as of Right; Remanded to the Trial Court

D AV ID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined.

Llo yd A . Le vi tt , C ha tt an oo ga , T en ne ss ee , f or th e a pp el la nt , W il li am Ro be rt Po se y.

Paul G. Su mmers, Attorney Ge neral and Reporter; Elizabeth B. Marney , Assistant Attorney Gene ra l ; Bill Cox, Dis trict Atto

rney Genera l; and Thomas E. Kimb all, Assistant DistrictAttorney Genera l, for the appellee, State of Tennessee.

OPINION

On October

24, 1999, t

he Defe ndant wa s arres ted for d

rivin g under the influence of an intoxicant in violation of Tennessee Code Annotated section 55-10-401. At the bench trial on Ma y 14, 2001, Brian Ashburn of the Hamilton County Sheriff’s Department testified that he was on patrol

on October 24, 1999. While he was driving southbound on a two-lane road, he observed a vehicle, driven by the Defe

ndant, traveling northbound. The Defendant’s vehicle crossed the c enter line and1 In his brief, the Defen dant al so asser ts t hat the porti on of Tenn esse e Code Annot ated section 55- 10-403(a )(3) which allows the prosecuti on to go back mo re than ten y ears from th e date of t he pre sent

convi cti on when ass essi ng pri or convictions for enh ancemen t purpose s is void as an e x po st facto law . Ho weve r, he co nced es in his b rief that this argument has alre ady b een re jected by this Court in State v. Clev er , 70 S.W.3d 771 (T enn. Crim. App. 2001). Ha ving mad e said conce ssi on, th e Defendant opts to n ot fur ther argue the iss ue in hi s brief . Because Clever is controll ing autho rity, we cho ose n ot to ad dress the issue fur ther. See Te nn. S. C t. R. 4(H )(2).

-2- almost struck Officer Ashburn’s vehicle hea d-on. To avoid a co llision, Officer Ashburn swerved off the road into a parking lot. He then turned his patrol car around, activated his lights, and followedthe Defe

ndant. The Defendant pulled his vehicle into a parking lot and dr ove to the rear of a building , where

he stoppe d. Offic er Ashbu rn drove his patrol car behind the Defendant, and,

as he was exiting his vehicle, saw the Defendant open his door and jump out of his vehicle. Officer Ashburn then p ursue d the D efenda nt on foot t o the f ront o f the b uild ing, where another officer who had arr ived on the

scene st opped the Defend ant.

Officer Ashburn testified that upon talking with the Defendant, he noticed a strong odor of alcohol on the Defendant ’s brea th. The De

fendant was ver y un steady

on his f ee t. He wasunable
to produce

a driver ’s licens e, and he gave O fficer

Ashburn f

alse info rmati on abou t himself. The Defendant

refused to submit to field sobriet y te sts and a breathalyzer test. In Officer A shburn’s opinion, the Defendant was clearly intoxicated.

After hearing the evidence, the trial court found bey ond a reasonable doubt that the Defendant was guilty

of driving under the influence on October 24, 1999. Because the Defendant hadtwo prior convictions for DUI, the c ourt sentenced him as a third offender pursuant to Tennessee Code Annotated se ction 55- 10-403(a )(1). I t is from th

is judgme nt the Def endant no w appea

ls.

The first of the two main arguments that the Defendant a dvances is that the judgmen ts of his
two prior DUI convictions are facially invalid and

therefore cannot

be used to

enhanc e the pen alty for the instant conviction. 1 We begin our analy sis by noting that the TennesseeSupreme Court has recognized

the rule “that a f acially valid, unr

everse d judgme

nt in a cou

rt with jurisdiction over the subject matter and the person

cannot be collaterally

attacked in a subsequent proceeding e xcept by the authorized routes of attack.” State v. McClintock , 732 S.W.2d 268, 271 (Tenn. 1987). “The authorized route

for attacking a facially

valid, final judgment of conviction is by the Post-Conviction Procedure Act.” Id. at 272. However, if a judgment is facially invalid, then it may

not be use d to enhancepunishment in a subsequent prosecution. See id ; see also State v. Whaley , 982 S.W.2d 346, 348-49 (Tenn. Cr

im. App. 19 97) (hold

ing that a Georg ia conviction, which was fa cially invalid because it l acked th e judge’s signature and a ny indication that the defe ndant was represented by counsel or had waived her right to counsel, could not be used to e nhance a subsequent Tenne ssee conviction).

The Defendant was first convicted of driving unde r the influence in Rhea County , Tennessee, in 1990. The

Defend ant alleges that thi s convict ion is inva

lid on its face me

rely because it fails to contain written advice of an e nhance d penalty for a sub sequent c onviction or a war ning tha t a convict ion in another state may be used to enhance the punishment for a DUI committed i n2 The Defendant’s reli ance on Boyki n v. Ala bama , 395 U.S . 238 , 89 S . Ct. 1709, 23 L. Ed. 271 (1969), and State

v. Mackey , 553 S. W.2d 337 (Te nn. 19 77) , in this rega rd is mispla ced . The se case s add ress the r equ ireme nt that a gu ilty plea be en tered into kno wingly, intell igently , and volunt aril y. While the under standi ng that the re sult

ing convi ction may be used to en hance th e punish ment of s ubsequent crimi nal activity is an important factor t o consider when assessing t he int elli gence and volun tariness o f guilty pleas, thes e cases in no way st and for the proposition that the lack of a warni ng of en hance ment possi bil it ies rende rs a n oth erwi se va li d convi cti on voi d.

-3- Tennessee. The Defendant states that these omissions render the 1990 conviction void so that it may be collater

ally attacke d and should not have been use d to enhan

ce th e punishmen t for his present DUI conviction. We disagree. 2

TennesseeCode Annotated s ection 55-10-403(g)(1) states that “[a]ny person convicted of

an initial or subseque nt [D UI] offense shall be advised, in writing, of the penalty for second and subsequent

convictions” and “[w]ritten notice by the judg e shall infor m the defend ant that a conviction for the offense of driving under the influenc e of an in

toxicant committed in a

nother st ate shallbe used to enhance the p unishment for a violation of § 55-10-401 committed in this state.” However, “the statute does not require that a defend ant have received such notice prior to being sentenced on a second or subsequent offense.” Statev. Geo rge S. Mercier , No. 02C01 -9404-CC00066, 1994 Tenn. C rim. App. L EXIS 695, at *2

(Tenn. Cr

im. App. Oct. 19, 1994 ). Prior to Mercier
, this Court held in State v. Rea , 865 S .W. 2d 923, 9 24 (Tenn. Crim. App. 1992), that the defendant’s claim that she had not been warned in writing by the Alabama trial court of the enhancing penaltie s for subs equent D UI c onviction s was without merit. More recently , this Court held that “the fact that the defendant did not have the b enefit of bei ng warned pursuant to Tenn. Code Ann. § 55-10 -403( g)(1) of enhan ced pu nish ment f or fut ure DUI’s before he was c harge d a secondtime for DUI

is of no consequence.” State v. Bowen , 67 S.W.3d 826, 828 (Tenn. Crim. App. 2001). “The statute does not provide that failure to warn bars enhanced se ntencing for subsequent DUI’s.” Id . Because precedent c learly states that the f ailure to warn of enhanced punishment does
notbar enh anced s enten cing forsubsequent DUI’s, we hold in this case tha t the failure to include in the Defendant’s 1990 judgment a written warning of enhancement does not re nder the judgment faciall y invalid. Therefore, McClintock prohibits the Defendant’s collateral attack on his 1990 DUI conviction.

We now address the validity of the Defendant’s second conviction of DUI , which occurred in the GeneralSessions Court of Hamilton County, Tennessee, in 1997. The Defendant alleges that this convicti on is invalid on i ts face for two r

easons: ( 1) It

failed to contain a

warning that a conviction in another state ma y be used to en

hance th e punishme

nt for a D UI c ommitted in Tennessee, and (2) the judge who acce pted the Defendant’s guilty plea wa s a

special judge who was
notproperly a

ppointed. Having previous ly c oncluded that the f ailure to warn of the futur e possibili ty of enhanced punishment does not render a judgme nt of conv

iction fa cially void, we now consider the Defendant’s second ground for attacking the 1997 conviction, that th e special judge who3 In his brie f, the Defenda nt a rgue s t hat the spe cial ju dge was not du ly ele cted pursu ant to Tenne ssee Code

Annotated section 17-2 -118 . Ho weve r, this pro vision is app licable only to c ourts o f reco rd. B ecau se the D efend ant’s 1997 judgme nt of

convi cti on was ent ered i n a gen eral ses sion s court, the appli cable st atut e is sect ion 16- 15-209.

4 Prior to en actme nt of

exi sti ng l aw, prior l aw cont aine d si mil ar pr ovisi ons co ncern ing the a ppo intmen t of a specialgener al sessio ns jud ge. See Tenn. Co de A nn. § 1 6-15 -209 (Rep l. 199 4). The differences between prior law and
current law are not rel evant t o our disposi tion of thi s is sue.

-4- accepted the guil ty p lea was not d ul y elected pursuant to Tennessee law. 3 Tennessee Code Annotatedsection 16-15-209 addr esses th e procedure to be followed when appointing a special judge to presid

e over a cour

t of general se ssions or a

juvenile court. F irst, the j udge who finds it necessary to be abse

nt from co

urt should attempt to

locate a judge, curren

t, former , or retir

ed, to sit as special judge. See Tenn. Code An n. § 1 6- 15 -2 09 (a )( 1) -( 2) . If ne ce ss ar y, the absent judge may apply for assistance from the administrative office of the courts in finding a ju dge to sit as special judge. Id. § 16-15-209(a)(3). “Only afte r exhausting the procedures set out in subdivisions (a)(1), (2) and (3), a judge may

appoint a lawye

r from a list, on a rotating basis, of lawy ers that have been previous ly

appro ved by the j udge or judges of the district or county . . . .” Id. § 16-15-209(a)(4). Where a lawye

r is sitting as a special judge, the parties and c ounsel must be notified that the lawyer is a specia

l judge w ho is sitting in the regular judge’s abse nce. See id. § 16-15-209(a)(4)(A). Then the parties m

ust choose

to proce ed and ha

ve their case heard by

the special judge r

ather th an await the return of the regular judg e. See id. § 16-15-209(a)(4)(B). 4

The record

before us contains no proof whatsoever of the procedure followed in the election of attorne y Will iam Hall a s a

special judge to hear the Defe ndant’s case on Jun

e 10, 1997 . The only evidence in the record

to supportthe Defendant’s position is the testimony of the D efendant and that of Shawn Johnson, the Court Administrator of Hamilton County, Tennessee, who, at the time of Defendant’s guilty plea in 1997, wa s the Assistant Court Administrator. Mr. Johnson testified that in 1997, the general

practice for appointing special judg es in Hamilton County was to have the Court Administrator, then Ms. Bobbie Helton, attem pt to find a retired judge who would sit as special judge. If she was unable to find a retired judge, she would consult a list of practicing attorney s and callone of them with the request that they serve as a s pe ci al ju dg e for th e d ay. Mr. Johnson stated that he was not aware of

any forma

l election held by the a

ttorneys who wer

e present in court, but

he admitted that he was not particularly involved in the proc ess. Mr. Johnson further testifiedthat he

was unable to

find a record indi cating

that William

Hallhad taken an oath as special judge on June 10, 1997. However, he stated that the records fr om 1997 were “mixed up”and he ha d not had time to thoro ughly go th rough them. Fin ally , Mr. Johnson said that at the time of the Defendant’s 1997 guilty plea, no form was used for obtaining the consent of all the parties to a special judge hea ring their case. He did not

know whe

ther the special judges o rally informed the part ies of the ir righ t to have their cases heard by

a regular judge. The Defendant testified that at the time of his 1997 plea,

no one informed

him that William Hall was a special judge as opposed to a regular judge, and no one asked him to consent, either orally or in writing, to William Hall presiding over his case.

It appears doubtful that the procedureutilized by the Hamilton County Court Administrator in 1997 for appointing special judges fully complied with TennesseeCode Annotated section 16-15--5-

209. First of all, the Court Administrator is not authorized under the statute to seek a special judge. Second, other than Mr. Johnson’s testimony that t he Cou rt Adm inis trato r “tri ed to ge t a ret ired j udge first,” there is no indication that the procedures set out in Tennessee Code Annota ted section 16-15- 209(a)(1)-(3) were exhausted before she consulted the lis t of private attorney s. Finally, the Defendant

testified that he was neither apprised of Mr. Hall’s status as a special judge nor asked to consent to the special judge hearing his case.

However, even ass uming tha t the statu te was no t st

ri ctly adhered to in selecting a special judge, our an alysis d oes no t end t here. T he jud ge who presided over the Defendant’s case could a ct

as a de facto judge even if he were not properly

appointed or selected. The position of de fa cto ju dge has long been re cognize d in Tenne ssee and is widely accept ed throug hout the c ountry : A ju dge de facto is one acting with the color of right an d who i s regarded as, andhas the reputation of, exercising the judicial function he assumes. He differs, on the one hand, from a me re usurper

of an
o ffice who undertakes to act without any color of right: and o n th e other hand, fr om an off

icer de jure who

is in all re spects le gally appointed and qualified to exercise the office . . . .

48A C.J.S. Judges § 2 (1981). The Tennessee Supreme Court has recognized “that even where there

are cons titutional infi rmities in the manner in which a judge took office, that judg e may still be deemed to be acting under color of authority as a de facto judge.” State ex rel . Newsome v. Biggers
, 911 S.W.2d 715, 718 (Tenn. 1995). The court drew a distinction between the situation where the judgment o f a de facto c ourt is dir ectly challenged and where

the Defe ndant see ks to colla

terally attack the judg ment. “B ecause Newsome

did not c halleng e th e municipal court’s exercise of jurisdiction either d

uring th e trial ph asein which he pleaded guilty or on direct appea

l, he acquiesced to the court’s exercise of jurisdiction.” Id. at 719.

This Court has rec ogn ized the doctri ne of de facto judges as rec ently as 1999. I n State v. Mark Joh n Turner , No. 01C01-9703-CR-00071, 1999 Tenn. Crim. App. LEXI S 584, at *12-13 (Tenn. Crim. App. June. 16, 1999), a defendant sought to have his prior DU I conviction declared void as an enhancement factor because the record did not reflect

that the special judge who accepted his guilty plea had been pro perly electe d. In

affir ming the jud gment of the trial court, this Court stated, [T]he special judge was, at a mini mum, a de fact o jud ge . . . . There

was no object

ion to the s pecial ju dge’s exerc ise of authority at the time the plea

was ente red in 1990, and no appeal was taken from the resulting convicti on. “L

ike any judgmen t, a pres ump tion of regu larity in the proceedings attaches upon bec oming final.” Because t h e special judge acted with de facto authority andbecause

this autho

rity

was not chall enged

during t r ial oron appeal, the defendant cannot now attac k the inte grity

of the jud

gment.5 The Defendant also as serts that, if the 1997 convi cti on wer e decl ared i nval id, the 1990 convi cti on woul d be

more than 10 years prior to the present convicti on and therefore unavailable t o be used to enhance the penalty for t he present conv ict

ion pur sua nt to Ten nes see Code An notated se cti on 55-10- 403(a)( 3). Because we f ind t hat the 1997 judg men t is valid, it is not n ecess ary to ad dress this argum ent.

-6- Id. (citatio ns omitted) ; see also Banksto n v. State , 908 S.W.2d 194, 198 (Tenn. 1995) (holding that because the defendant

did not challenge the jurisdiction of the municipal court either in that court or on direct appeal, the municipal court was a de f acto court).

We see no reason to depart from the above precedent. Although William Hall may not have been elected according to the spec ific statutory provisions reg arding special judges, he was a

de fact o judicial officer whose judicial acts are valid and not subject to collateral attack.

Having concluded that neither of h is prior D UI c onviction s is facia lly i nvalid and subject

to collateral attack, we now address the Defenda nt’s secondprinci pal issue, that the trial court erred by not holding a hearing to determine whethe r the Defe ndant personally

waived h is right t o te st if y. 5 The State ar

gues tha t the Def endant ha s waived

this issue by failing to r

aise it in a timely motion for a new tri al. Althou gh the D efenda nt did not r

aise this issue in a motion for a new trial, this Court has discretion pursuant to Rule 52(b) of the Tennessee Rules of Criminal Procedure to take notice
at any time of a p lain err

or which affec ts a substantial right of the accused where it may be nece ssary to do substantial justice. See State v. O gle , 666 S.W.2d 5 8, 60 (Te nn. 1984) ; Veach v . State , 491 S.W.2 d 81, 83 (Te

nn. 1973) ; Herron

v. State , 3 Tenn. Crim. App. 39, 51, 456 S.W.2d 873, 87 8 (1970), vacated on other

grounds , 408 U.S. 937, 92 S. Ct. 2865, 33 L. Ed. 756 (1972). When deciding whether an erro r constitu tes “pla in error ,” we co nsider f

ive fac tors: (a) the rec ord must c learly establish what occ urred in the trial court; (b) a clear and uneq uivocal r ule of law must have been breached; (c)

a substantial right

of the accused must have been adver sely affected; (d) t he accuseddid not waive the issue for tactical reasons; and (e) consideration of the issue is “necessary to do substantial justice.”

State v. Smith , 24 S .W.3 d 274, 282-8 3 (Ten n. 200 0) (qu otin g State v. Adkisson , 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994)). With respect to the first factor, the recor d is clear that no hearing was had pursuant to the mandate of Momon v. Sta te , 18 S.W.3d 152, 162 (Tenn. 1999), to determine whether the Defendant per sonally waived his rig ht to testify. I

n Momon , 18 S.W.3d at 161, the Tennessee Supreme Court held that the right of a defendant to testify in his own behalf i s a funda

mental constitutiona

l right th at may

only be waived persona

lly b y the defendant; thus the second and third factors are satisfied . There appears to be no tactical re ason for the Defendant to have waived the issue of not having a Momonhearing ; theref ore the f ourth fa ctor is satisfied. And finally, if the De fendant did not personally w aive his right to testify on his own behalf, which is a fundamental right, it is necessar y that we consider

the issue to ensure justice. Therefore, we find that the failure to c onduct a hearing pursuant to Momon to determine whether the Defendant did personally waive his right to testify

was plain error. As such, the failure of the Defendant to raise this issue in a motion for a new trial does not preclude this Court from considering the issue. SeeTenn. R. Crim. P. 52(b).6 Th is Cour t has held that the Momon requ ireme nts app ly to ben ch trials as well as ju ry trials. See State v.

Charles Randal l El rod , No. M 2001-01 125-CC A-R3-CD , 2002 T enn. Crim. App. LEX IS 83, at *8 (Tenn . Cri m. App. Jan. 31, 1999).

-7- To ensure that the defendant’s right to testify has been personally

waived by the defendant, the court in Momon adopted p rocedur al guide lines that call for defense counsel t o request a jury -out hearing to demonstrate that the defenda nt’s waiver of the right to testify has been knowingly , intelligently, and voluntarily made. See Momon , 18 S.W.3d at 163. 6 There is

no ev id en ce in th e r ec or d t ha t t he pr oc ed ur al gu id el in es es ta bl is he d b y Momon were followed. Further more, the re is no “ evidenc e in the r ecord to establish that the r ight wa s otherwi se personally wa

ived by the defe

ndant.” Id. The waiver of a defendant’s rig ht to testify on his own behalf will not be presumed from a silent record. See id. at 162. “I n the abse nce of e vidence to show that [a

] defenda nt person ally

waived [th

e] right t o testify , we must pr

esume tha

t he did not.” State v. Dwayne

Simmons , No. M2000-01199-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 359, at *17 (Tenn. Crim. App. May 11, 2001).

On remand, the trial court must first consider whether the De fendant did personally

waive his right to testify. I

t may be that the De

fendant did not desire to testify. T he record is void of any indication one wa

y or the other. I

f the Defendant did not desire to testify , and the court finds from the evidence that he personally waived his right to testify , then no further inquiry need be made. However, if the Defendant did wish to testify , but was deprived of that right, then the trial court must determine whether the violation of the Defendant’s r ight to testify was ha

rmless error beyond a re asonable doubt. See Momon , 18 S.W.3d a t 166 (hold

ing that the denia l of the ri ght to testify on one’s own be

half may be f

ound harmless beyond a

reasonable doubt).

In de termining whether the State has prove

n that the constituti onal viola

tion is har

mless beyond a re asonable doubt, courts should consider the following factors: (1) the importance of the defendant’s testimony to the defense case; (2) the cumulative nature of the testimony; (3) the presenc e or abse

nce of e vidence corrobo rating or contr adicting the defe ndant on ma

terial po ints; and (4) the overall strength of the prosecution's case. See id. at 167. The above factors “are merely instructive a

nd not exclusive considerations.” Id.

As was the case in Momon , there i s not suff icient ev idence in the rec ord for t

his Court to give full consideration to these factors. We have no indica tion of what the substance of the Defendant’s testimony

would have been had he testified. The rec ord does not reflect whether the Defendant desired to testify . The record does not reflect that the De fendant personally

waived his right to testify. The De fendant simply asserts that the tria l court did not comply with the Momon guidelines. Finding thisto be the c ase, we conclude that the c ase must b e remanded to the trial court fo r the det erminati on of whe

ther the Defend ant did, in

fact, wi sh to testif

y on his own behalf. If he did, then a hearing must be held at which the State will bear the burde n of establish ing that the denia l of the De

fendant ’s righ

t to testify

on his own b ehalf wa s harmles s beyond a re asonable doubt. If the trial cour t concludes that the State has met its burden, the Defendant’s conviction will be sustained. However, if the State f ails to prove that the error was-8-

harmless beyond a

reasonable doubt, the trial court must vacate the Def endant’s conviction and grant the Defendant a new trial.

We therefore remand this case to the trial court for a determination of whether the Defendant waived his right to testify and, if he did not, whether the violation of the Defendant’s right to testify on his own beha lf was harmless error.

___________________________________

DAVID H. WEL

LES, JUDGE