# FILED April 14, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE NOVEMB ER SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9807- CR-00239 ) Appellee, ) ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLA S A. MEYE R, PHILLIP T ODD SWORDS, ) JUDGE ) Appe llant. ) (DUI—Third Offense)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF HAMI LTON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : JERRY H. SUMMERS JOHN KNOX WALKUP 500 Lindsay Str

eet Attorney Generaland Reporter Chattanooga, TN 37403-3496 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 BILL COX Distri ct Attorney General PARKE MAS TERSON Distri ct Attorney General 600 Market Street

- Courts Buil ding Chattanooga, TN 37402
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defenda nt, Phillip Todd S word s, appe als as o f right from his conv iction forthi rd of

fens e DUI i n theCrimi nal Co urt for Hamil ton Co unty. I n t his ap peal, he asserts two primary claims: (1)that he was denied libert y without due process
as a result of deficie ncies in the cu stom ary arre st and bail procedures i n Hamilton County, and (2) that the trial court erred by enhancing t he convicti on at bar due to two prior

DUI convicti ons thatDefe ndan t argue s are fa cially invalid. We a ffirm the dec ision of the trial court.

I. DUE PROCESS To support

his arg ument that

he was deni ed due proce ss of l aw, Defendant directs our attent ion to fou r alleged violati ons: (1) t hat he was denied theright to be taken before a ma gis trate or judge at t he time of hi s arrest, (2) that he was denied th e r ight to ha ve an arrest

warrant i ssued by a neutra l and detached magistrate, (3) that

the procedures for sett ing bail do not conform to the Release from Custod y and B ail Act, and (4) that he was punished wit hout due process by being detained in the H amilton Co unty Jail for at least six hours after being booke d.
A. App earanc e Before a Mag istrate According to Defen dant, t he procedure by which a probable cause determinati on was ma de following his wa rrantless arrest by po lice failed to “serve
as a protecti on against unfounded interf erence with l iberty

” and failedto “‘pr

ovide
a fair and r

eliabl e determinati on of probable caus e as a conditi on for any-3-

signif icantpretr ial restrai nt of li berty.’ ” Defendant’ s Brief ( quoting Gerstein v. Pugh , 4 20 U.S. 103, 124-25 ( 1975)). Defenda nt correct ly maintai ns that he shou ld have been brought bef ore a magistrate “w ithout unnece ssary delay” followi ng his arrest. See Tenn. R. Crim. P. 5; Tenn. Cod e A nn. § 55-10-203. Furthermore, as Defendant insists, the magistr ate should have informed him at this appearance ofthe nature of the charge s agains t him, as w ell as his righ t to
couns el during th e proce edings
. See Tenn . Code Ann. § 4 0-10-10 1.

Defendant testified that h e received no opp ortunit y to appear b efore a magis trate or judge on t he morning ofhis arrest. Moreover, a deput y clerk f rom the Hamilton County Clerk’s offi ce explained the usual procedure for those defend ants arrested overnigh t without a warrant: The arresting officer delivers a recitati on of probable cause to a depu ty clerk, who then grants t he warrant and sets bail for t he defendant as a matter of course. Customarily , she test ified, the accused is seated el sewhere and does not app ear befo re or provid e facts to the deputy c lerk, just as h appen ed in this ca se.

Defendant clearly

did not receive the pr oper he ar ing before a judici al officer, nor was he app rised by su ch an o fficer of th e na ture of t he charges against him or of his right to co unsel. How eve r, Defendant is not ent itled t o a remedy in thi s Court. The Tennessee Supreme Court in State v. Cam pbell , 641 S.W.2d 89 0 (Ten n. 1 982), a case i n which the defendant receiv ed no hearing before a magistrate, but was i nstea d permitted t o make an appearance bond, concluded, The failur e to bring t he Defendan t before a magistrate, as p ro vided by T.C.A. Sec. 55-10-203(a)(3), results only i n release from custody of an accused who is st ill in jai l when the issue i s-4- raised, or results in possib le exclusio n of evide nce, [for exa mple,] a confession that occu rs during the delay . In short, t he delay has no conse quenc e in the law unless th e defen dant is pre judiced b y it. State v. Cam pbell , 614 S.W.2d 890, 89 3 (Tenn . 1982) (c itations om itted); see also State v. Billy L. D avis , No. 85-343-I II, 1986 WL 5681, at *2 (Te nn. Cri m. App., Nashvill e, May 20, 1986 ). Here , Defe ndan t mad e bon d app roxim ately six hours after he was b o o ked, and he produced no evidence duri ng that ti me that
was later us ed agai nst h im. We f ind n o prejudi ce toDe fe ndan t; theref ore, this issue lac ks me rit.

B. Probable Cause Deter mination Defendant next argues t hat the Ham ilton Cou nty policy violates his right to have a probable cause determination by a neutra l and deta ched m agistrate, see Steag ald v. UnitedStates , 451 U.S. 204, 216 (1981), i n two ways: He asser ts that (1) a deputy cl erk cannot const itut i onally make such a determinati on and thus issue a warrant, and (2) the office of t he cou rt clerk has a financia l incentive to issue wa rrants be cause of filing costs.

With respect to his fi rst point, Defe ndan t adm its that o ur Ge neral A ssem bly granted deputy court

clerks t he aut ho rity to issue a rrest warra nts. See Tenn. Code Ann. § 41-6 -214. H owev er, he c onten ds tha t the sta tute is unconstit utional in light of the United States Supreme Court’ s opini on in Unite d States v. Leon , 469 U.S. 897 ( 1984) , in whic h theCo urt uph eld a warrant not supported by proba ble cause based upon t he officer’s relianc e that th e ma gistrate ’s determina tion was “objectively rea sonable.” Id. at 919-21. Defendant argues, This “good fait h” excepti on insuresthat the finaldecision on t he validity of a warrant

will virtu ally al ways be decided by the magis trate issuing the warrant

and not by the appellate court. . . . However, the-5- basic underlyi ng assumption of the Court ’s decisi on in Shadwick [v. City of Tampa , 407 U.S. 345 ( 1972),] wasthat the de cisions made by persons not t rained in t he law would al ways be subject to appellate review, an assu mption wh ich is no longer valid after Leon
. Hence, the absenc e of appellate review for pro bable c ause determinat ions by those with no legal t raining constitutes the basis f or this pr ong of Defendant’ s due process chall enge.

The State correctly responds that Tennessee Code Annotated § 40-6-214 provides, “Clerk s of co urts of g enera l sessio ns an d their duly sworn deputies have jurisdi ction and authorit y, concurr

ent with that

of the j udges thereof, to issue
warran ts for the arrest of perso ns.” Ten n. Cod e Ann. § 40-6-21 4. We decline to hold this statute unconst ituti onal as appli ed to deputy cl erks ofcourt wh o may lacklegal tr aining. Althoug h we rec ognize the distinct p ossibility that d eputy clerks without l egal trai ning may not be “capab le of the probable cause determinati on” as required by Te nnessee Rule of Cri minal Procedure 3, Defendant has not made such a factual showing in this case. To otherwise specu late whethe r the dep uty clerks s erving H amilton C ounty a re gene rally incap able of properl y recognizi ng the noti on of probable cause due to a lac k of legal training would b e to encr oach u pon the doma in of our sta te legislature
.
Second, Defend ant a rgues that becau se th e Hamil ton Co unty Clerk ’s offic e receivesa fee for each arrestwarrant i ssued, it has a financi al incent ive to i ssue the warrants, disturbi ng its abi lity to serve as a neutral and detached adjudi cator of probab le cause
. Defendant contends that “[ w]hile t he deputy clerk issuing t he warrantdoes not get t he fee personal ly, t he Gene r al Sessions Clerk’s Offi ce-6-

certain ly gets the fee, and this fe e is used with other revenues to determi ne how many deputy c lerks can be hired .”

We conc lude th at this claim ha s no m erit. First , Defendan t has not shown thatthe co mpe nsatio n for H amilto n Cou nty Ge neral S essio ns de puty cle rks is “contingent

in any m anne r upon the is sua nce or non-issuance” of the arrest warrantat issue i n this case, as prohibi ted by Tennessee Code Annotated § 40- 5-106. In addit ion, we declineto infer that as t he clerk’ s office accrues revenue, the salary of the deputy clerks increases accor dingly, influen cing thei r decisi ons to grant arr

est warrants. Furthermore, the State correctly observe d that “t he proofthat defendan t did off er by way of [the deputy clerk’ s] testi mony evidenced no inkli ng that she i ssued the arrest warrant for any reason other

than the fa cts attested to by the ar resting of ficer andno inkli ng that she wasanything ot her than detach ed and neutral.”

C. Bail Procedur es In a related ar

gument, Defendant ass erts that he was denied due process (1) when he was not gr anted a bail hearing be fore a judge, ma gistrate, or court clerk, but by a deputy court cl erk, and (2) when his bai l wa s “a ssi gnedfrom a sche dule poste d on th e wall of the ja il ,” with no regard to the statutory factors which should be considered to ach ie ve the funct ions of bai l—assuring the defen dant’s contin ued p resen ce in court and prev entive detention. Thedeputy clerk set Defendant’ s bail at the maximum the law allows a court cle rk to set for the offens e of DU I. See Tenn. C ode Ann . § 40-11-105 (b)(1).-7- De fendantfirst

challenges t he authorit y of the Hamil ton County General Sessions deputy clerk to set bai l. He contends that havi ng hi s b ail set by a deputy clerk of General Sessionsviolates Tennessee Code Annotated § 40-11- 105, which provides tha t bail determinati ons may be made “by the committ ing magistrate, by any judge of the ci r cuit or c riminal court, or by the clerk of any circuit or criminal court .” Tenn. Code Ann. § 40-11-105(a) (1) (empha sis added).

We conclude that even if the depu ty clerk of the Hamilton County General Sessions court lac ked authorit y to set Defendant’s bai l, he never theless hasno remedy in this Court. Tennessee Code Annotated § 40-11-144 states,

(a) The actions by a t rial cour t from which a n appea l lies to the supreme court or court of criminal appeals in gr anting, deny ing, settingor alte ring c onditions of the defe ndant’s rel ease shall be review able in t he manne r provi ded i n theTe nn essee Rules of Appe llate Proce dure. (b) If the action to be reviewed i s that of a court fr om which an appeal lies to a court inferi or to the supreme court or court of crimin al appeals, review shallbe sought in t he next higher cour t upon writ of ce rtiorari. Tenn. Code Ann. § 4 0-11-14 4. See Tenn. R. App. P. 8. The proper method of review for the determination of Defendant’s bai l was appeal to the Hamilton Coun ty Criminal Court . This iss ue has been waived. Any other remedy now l ies outside th is Court’s ju risdiction.

With regard to his seco nd argu ment, D efenda nt specifica lly asserts tha t the bail procedures in Hamilt on County are cont rary to t he princi ples and procedures of the Bail Ac t since t he procedures ref lect an arbitrary sche me w hic h det ermin es the form a nd am ount o f bail. First, alternat ive forms of release ar e n o t conside red in lieu o f a cash bond. The Jail does not hold any heari ng to determine (i) t he defend ant’ s r elation to the c omm unity, (ii) th e defe ndan t’s background, or (ii i) whether the defendant

had a prior c riminal recor d. Second, the bail is set according to a pre-arrange d “B on d Sched ule” which lists various o ffenses a nd a bo nd am ount.-8-

He also cites Ten nessee C ode Ann otated § 40-1 1-118, which man dates that “ba il shall be set as low as the co urt determine s is necessa ry to reasonab ly assure the appearance of the defendant as required,” and al so prescribes factors whi ch “the magis trate shall consider, ” includi ng the defendant ’s lengt h of reside nce in the
comm unity; emp loyme nt statu s and history; financ ial con dition; fa mily tie s an d relationships; reputation, chara cter, and me ntal condition; record o f prior presence at or flight from court appearances; nat ure of the of fense, probability of convicti on, and likel y sentence; prior cri minal record and perceived risk of danger to the pu blic; an d resp onsib le members of the community who wi ll vouch f or the defen dant’s reliability. See Ten n. Co de An n. § 40 -11-1 18(a) , (b) (em phas is added).

We find that

Defendant’s bai l was set in accordance wi th neither the letter nor the princi ples underl ying theBail Act noted above. However, we further find thatagain , any re med y lies ou tside th is Cou rt, as we fin d no prej udice in t he record. The bail set

by the depu ty clerk, a lthoug h the m aximu m ba il perm issible by the cle rk for this offense, did not prev ent Defendant fr

om release. I n fact, he contends in his nex

t argument that

he could have made his bond sooner than t he ti me he was permitted to leave. We conclude, therefore, that Defendant did not suffer prejudice suffic ient to pe r mit this Court to f ind a due process v iolati on warran ting revers al of his con viction.

D. Six-Hour Detent

ion Defe ndan t’s final due pro cess ch allenge c ontests th e Ham ilton Cou nty policyof holdi ng persons charged with DUI for a peri od of at l east six h ours. The record reflects that Defendant was arrested shor

tly af ter 1:40 a. m., he was taken-9-

to the Ham ilton Cou nty Jail and booke d at 3:45 a .m., and he was released to the bail bonds man a t 9:30 a.m . This de tenti on, Defen dant clai ms, constit utes punish ment w ithout due proces s of law.

The State argues t hat the detenti on policy i s “not unconst ituti onal” based upon an op inion b y our su prem e cou rt in State v. Pennington , 952 S.W.2d 420 (Tenn. 1997), and by this Cour t in State v. Donnie Lamar Carden , No. 03C01- 9610-CR-00378, 1997 WL 789933 (Tenn. Crim. App., Knoxv ille, Dec. 23, 199 7), in which the policy

was h eld no t to invok e dou ble jeopardy pr otections , prevent ing further p rosec ution for

DUI, because the detention i s primarily remedial r ather than punitive and because jeopardy had not yet at

tached. This a rgument does not directly decide the i ssue at hand. We do not examine whether the detenti on violates doub le jeopardy by punishing a

defend ant twice fo r the offens e of DU I; instead, we determine whether the policy(1) constitutes puni shment for ref using to take a breathaly

ser test (a non-offense) , or (2) constit utes puni shment for DUI without due proces s of law.

This Court discuss ed the due process issue in addition to do uble jeopardy in State v. Martha L. Penni ngton , No. 01C01-9607-CC-00323, 1997 WL 602909, at *3-*4 (Tenn. Crim. App., Nas hvi lle, Sept . 30, 1997). In that case, the defendantwas arre sted, reg istered a 0 .13 on a n Intoxim eter 300 0 test, arranged to make her bond, and was not permit ted to be rel eased for ei ght hours pursua nt to a po li cy requir ing defendants to be held for a minimum of six hours . We addressed a certified qu estion of la w appe aled by th e defen dant: “Whether or not the detention of the defe ndant, in th is case, u nder the policy of th e Dickso n Coun ty S h eriff’s Department, constit utes punishment so as to precl ude further-10-

prosecution on double jeopar dy grounds or violates t he defendant’s due process rights.” Id. at *1.

In Martha L. Pennington , we recited the two-p art test of State v. Coolidge , 915 S.W.2d 8 20, 824 (Tenn. Cri m. App. 1995), to determine whether pretri al detention qualifi ed a s p unishment for due process purposes: “(1) wheth er the detention served an alterna tive pur pose , and (2 ) wheth er dete ntion is excessive in relation to the purpose.” 1997 WL 602909, at *4. In that case, we found t hat “[d]etention for the p urpos e of de toxific ation may qu alify as a legitim ate government goal,” id. (citi ng Coolidge , 915 S.W.2d at 823); and the pe riod of s ix hours of confine ment w as not sh own to b e “exces sive in relati on to the state d purpos e.” Id. We therefore conc luded that the trial court in that case did no t err by denying the defendant’s motion to dismiss.

We believe t he same analysis andresult is appropri ate in thi s case. The arresti ng officer

testified thatDefendant was “swer ving back and forth across the road,” and that he was “all over the road, . . . cros sed the center line and back to the right . . . , [ and] kept weavi ng down the highway. ” The offi cer stated that Defendant had a n odor of alcoholand responded that he had indeed been drinkingthat eveni ng—“a bout six plu s bee rs. ” Offi cer H ill adm inistere d field sobriety tests; Defen dant failed the one -leg stand and refu sed to take a walk- andturn test. He then refused t o take a breat h or blood test to determine the pr ecise level of intox icatio n. Subsequent to Defendant’s ar rest, t he officer fou n d two twelve packs of beer i n the vehicl e in addit ion to severalopen beers, at least one of which w as cold a nd half-e mpty.-11- From this eviden ce, we fi nd tha t the poli cy of holdi ng Defendant, an appa rently intoxi cated indivi dual charged wi th DUI, for a period of six hour

s from the time of

booking was pri marily for the purpose of detoxific ation, a nd tha t this period of time wasnot excessive in relat ion to thefacts of this case. Therefore,
we conclude that

this pret rial deten tion didnot viol ate Defendant’ s right t o due proces s of law.
Finally, we dec line to f ind that t he cumulativeeffect of errors di scussed above operated to deny Defendant the right to a fai r tri al or the right to du e process o f law s uch th at reve rsal of h is conv iction is w arran ted. T his cas e is distinguishable f rom decisions such as State v. Livesay , 941 S.W.2d 63 (Tenn. C ri m. Ap p. 1996), i n which thi s Court aff irmed the trial court’s dismissa l of charg es based upon a deprivation of d ue process where t he defenda nt wa s denied the right to dra w and te st a blo od sa mple indep ende nt of the sam ple drawn a nd tested by the Sta te.

The State argued in Livesay that the defendant must show actual prejudice to be entitled to relief from this Cou rt. Id. at 67. We held that while thedefendant could not show that th e evid ence of which he was d eprived would have been favora ble enough to effect a dismissal, it was suf ficien t to showthat the evidence, if favorable to the defe ndant, “ could easily have secured his a cquittal.” Id. at 66 (emp hasis adde d). W e can not find a para llel dep rivation in this ca se. Defen dant’s du e proce ss argu ment m ust fail.-12- II. PRIOR CONVI CTIONS In his second major issue, Defendant contends that hi s sentence shoul d
n ot have been enhanced to t hird-of fense DUI based upon his two prior

gui lt y pleas becau se those pleas we re invalid. Defendant pleaded guil ty to DUI i n 1989 and 1992. He argues that he should be p ermitted to attack the validity o f th e formerconviction becau se the re cord fails to show that t he trialcourt (1)advised him of the specific ramificatio ns of waiving couns el, (2)informed hi m of various constit utional rights as required by Boykin v . Al abama , 395 U.S. 238(1969), and (3) followed procedural protec tions s uch a s ens uring a factua l basis for the pl ea and creatinga verbati m record of the p lea hearing. He argues that he s hould be permitted to attack

the vali dity of

the latter convict ion becaus e t he record does not reflect

thatDefe ndan t was a dvised his gu ilty plea c ould be used to enhance the sentences for subsequent convicti ons. See State v. Mackey , 553 S.W.2d 337 (Tenn . 1977).
According to our supreme cour t in State v. McClintock , 7 32 S.W .2 d 268 (Tenn. 1987), “The rule ha s bee n firmly e stablis hed in Ten ness ee tha t a facia lly valid, unreversed judgmen t in a court with jurisdict ion over t he subject matter and the person cannot be col lateral ly attacked in a subsequent proceeding exceptby the authorize d rout es of attack.” Id. at 272 . We declin e to ho ld the ru le announced in McClintockunconstit utional followi ng insti tution of a statuteof limitat ions for post- convicti on petiti ons, as Def enda nt requests tha t this Court hold.

The McClintockcourt indic ated th e me aning o f facial invalidity in its conclus ion base d upon the facts o f that case :-13- [T]he present

proceeding i n the case sub judice , a direct app eal of De fenda nt’s most recent conviction, is not the forum in whi ch Defe ndan t’s Constitut ional cl aims may be rai sed because nothing on the face ofthe reco rd “disclos es any w ant of auth ority to pronounce that judgm ent. Hen ce, collater al att ack [is] not permis sible.” Id. (alter ation in original ) (quoti ng Boma r v. State ex rel. Stewart , 300 S.W.2d 885, 887-88 (Tenn. 1957) ). In a ddition, this Court examined “whether

[a] judgment is void on its face and thus subjectto collateral attack,” in State v. Gross , 673 S.W.2d 552 (Tenn. Cri m. App. 1984). I n that case, we concluded, The record shows t he appellee, represented by counsel, appeared before the g en eral sessi on court. He and hi s attorney signed a waiver of indict ment, presentment, etc., andthe appell ee entered a plea of guilty

to the charg e of DUI. . . . The General Sessi ons Court of Sullivan Coun ty had jurisdiction ove r the subject matter of the charge and it had person al jurisdiction of this app ellee. Id. at 553-54. Furthermore, in State v. Gallaher , 730 S.W .2d 622 (Te nn. 1987), our suprem e court held a co nviction facially valid where [t]herecord shows on its face that [t he defendant] executed waivers t o the effec

t that sh e was fully adv ised o f her righ ts and expre ssly advised of her right to the a id of counsel at every stage of the p roceeding and if necessar y an attorney would be appoi nted t o represent

her; that

she expressl y waived her right to cou nsel, to a preliminary hea ring, to a grand jury indictm ent, and a trial by jury. Id. at 623.
Likewise, we find not hing on the face of there cords that discloses any invali di ty to the guilty-p lea conv ictions for D UI in 198 9 and 1 992. See Maur ic e Wilso n v. Sta te , No. 01C01-9310-CR-00352, 1994 WL 151322, at *2 (Tenn. Cri m. App., Nashvil le, Apr. 28, 1994) (“[ The defendant’s]claims of an involuntary guilty plea and inef

fectiv e assistance of

couns el, while the y might s erve to void-14-

the judgm ent, do not m ake it fa cially void .”). The refore , we co nclu d e that the Post-Convict ion Procedure Act i s the authori zed potenti al rout e of attack for Defen dant.

We conclude that

Defendan t is not entitl ed to reli ef in thi s Court based upon the asserted violat ions of due process, and t hat he is not entitled to attack the validi ty of hi s prior DUI conviction s to preve nt them from e nhan cing h is current sentence for

third- offense DUI. The judgment of the trial court is aff irmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE

___________________________________ L.T. LAFFER TY, S PECIA L JUDGE