### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs A

ugust 7, 2001
STATE OF TENNESSEE v. PAUL H . CLEVER Direct Appeal from the Criminal Court for Shelby County No. 99-10172 James C. Beasley, Jr., Judge

No. W2000-01810-CCA-R3-CD - Filed September 14, 2001

The defendant pled guilty to driving under the influence and was sentenced as a multiple offender. In this appeal as of right, the defendant alleges that (1) the trial cour

t erred in finding

that he was a third offender for purp oses o f sentencing, and (2) the DUI sentencing statute is unconstitutional because it is vague and has an ex post f acto effect. After careful review, we affirm the defenda nt’s conviction and sentence. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined. Bill Anderson, Jr., Memphis, Tennessee, for the appellant, Paul H. Clever.
Paul G. Summe

rs, Attorney Genera

l and Reporter; J. R

oss Dyer, Assistan

t Attorney Gener

al; WilliamL

. Gibbons, D istrict Attorney G eneral; and Jim Pow

ell, Assistant Distr

ict Attorney Gene

ral, for the appellee, State of Tennessee.
OPINION
DISCUSSION On Augus t 8, 1999, the defendant was charged in a three-count indictment, the first two counts for DUI, Tenn. Code Ann. § 55-10-401, and the third count for reckless driving, Tenn. Code Ann. § 55-10-205. The indictment alleged that he had

two prior DUI convictions, both in Shelby County, on December 27, 1990, and on November 18, 1986, with the 1990 conviction being in the Shelby County Crimina l Cour t and the 1986 conviction in the Shelby County General Sessions Court.
He pled guilty to driving under the influence of an intoxicant. At the sentencing hearing, the defendant not contesting his 19

90 conviction, the

State introduced e

vid ence of his 1986 DUI conviction through the testimony of the general sessions court presiding judge and a general sessions1 This po licy has be en recen tly chang ed to allow destruction after twen ty years. -2- court clerk. The trial court then senten ced the defenda

nt as a third offender, a Class A misdemeanor, imposed a fine of $1100, and ordered that the defendant be confined for eleven months, twenty-nine days, with all but 120 days suspended and the balance to be served on probation. He was ordered to serve the 120 day

s consecutively da

y for day, and his l

icense was suspe

nded for three y

ears. This appeal as of righ

t results from that j udgment.
ANALYSIS Validity of the 1986 Conviction
T ennessee Code Annotated Section 55-10-403(a)(3) (Supp. 2000) provides for enha nce d punishment for a de

fendant with prior

DUI convictions w

ithin given time per

iods: [A] person who is convicted of a violati on of § 55-10-401 shall not be considered a re

peat or multip

le off ender and subject to the penalties prescribed

in subsection (a) , if

ten (10) or more years have elapsedbetween such con vic tion and any immediately preceding conviction for a violation. If, however, a person has been convicted of a violation of § 5 5-10-401 within ten (10) years of the present violation, t hen suc h person shall be considered a multiple offender andis subject to

the penalties imposed upon multiple offenders by the provisions of subsection (a) . If a person is co nsi dered a multiple offender under this subdivision, then every conviction for a violation of § 55-10-401, within ten (10 ) years of the immediately preceding violation shall be considered in d etermining the number of prior offenses, but in

no event shall a conviction for a violation occurring more than twenty (20) years from the date of the i nstant conviction be considered for such purpose.
The defendant argues that the trial court improperly sente

nced him as a

DUI third offender under Tennessee Code Annotated Section 55-10-403(a)(3), because there was inadequate proof as to his 1986 DUI conviction. Because of a policy of the She

lby County Public

Records Commission, certain records of the Shelby County General Sessions Court were destroyed after ten years. 1 The record of his first D

UI convi ction consists of a copy of the November 18, 1986, docket sheet of Judge Tim Dwyer and a certified copy of a computer-generated printout. The defendant argues that “[b]ecause

the official Cour

t records have b

een destroyed, t

he trial Court in this

matter did

not have the ability to adequately review the records and ascertain t he val idity and sufficiency of the judgments therein.”-3-

In det er mining whether this testimony is sufficient to establish the fact of the defendant’s 1986 conviction for

DUI and that he wasrepresented by counsel, we first compare the defic iencies in records in

this matter with those in Parke v. Raley , 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992), in w hic h a K ent uck y prose cutor sought to utilize prior convictions for enhancement purposes. Ricky Harold Raley had been charged by the State of Kentucky

withrobbery and with being a persistent felony

offender in the f

irst degree beca

use of two prior burglary convictions to which he hadentered p leas o f guilty in 1979 and 1981 and had not appealed. He argue d that the two convictions could not be used for enhancemen t purposes becau se the record did

not contain transcripts

of the pleas and, thus, there was no showing that they were knowing and voluntary. The court, however, noted th e “presumption of

regularity

” that attaches to

the acts o f a court of competent

jurisdiction. Id. at

29, 113 S. Ct. at 523 ( citing Johnson v. Zerbst, 304 U.S. 458, 464, 468, 58 S. Ct. 1019, 1023, 1025, 82 L. Ed. 146 1 (1938)). Additionally, the court observed that no nefarious motive could be inf erred from the a

bsence of transc

ripts of the pleas of guilty. Such transcripts

were not prepa

red, absent a

direct appeal or a judge’s order, and, additionally, c ourt reporter’s tapes normally were retained for only five years. Recognizi ng the diffi culty in attac king, in a recidivism proceeding, a prior conviction, given the unavailability of records and inaccessibil

ity of witnesses after the pas sage of time, the court concluded that the prosecution must satisfy a “clear and convincing” evidence standard. Id. at 34-35, 113 S. Ct. at 526.
In the instan t case, cont ending ge nera lly t hat the State failed to prove, for purposes of enhancement,

his 1986 DUI conviction alleged in the indictment,

the defendant argues that he is not making a collateral attack upon the conviction, but, instead, questioning whether it can be used for enhancement

purposes. Although our sup reme court made it clear in State v. McClintock , 732 S.W.2d 268, 273 (Tenn. 1987), that an earlier facially valid DUI conviction could not be attacked during a sentencing hearing following a subsequent DUI conviction, the record in the earlier c as e consisted of the arrest warrant/judgment of conviction including the defendant’s signed waiver of counsel. In this matter, however, the record of the 1986 charge shows only that the defendant was convictedof DUI, and sets out the resulting sentence. It is silent as to whether he was represented by counsel at

the proceedi ng, and the law is clear that representation by counsel cannot be pre sumed from a silent record. Burgett v. Texas , 389 U.S. 109, 115, 88 S. Ct. 258, 262, 19 L. Ed. 2d 319 (1967). However, the State soughtto establish, through testimony, the fact and validity of the 1986 DUI conviction so that i

t could be utilized

for enhanceme

nt purposes. At the

sente ncing hearing, the State called Judge Tim Dwyer, who testified that he was the presiding judge in Division VIII of the Shelby County General Sessions Court on November 18, 1986. He expla

ined the procedu

re in general sessions court regarding a plea of guilty:

Q. And could you tell The Court what your – is it your practice andprocedure befor

e accept ing a guilty plea to advise a-4- defendant of their constitutional rights regarding the right to a trial?
A. Yes, sir. Q. And has it been your practiceand procedure while you were on the bench to advise defendants that they have a right to cross examine witnesse

s as well at that tri

al?
A. Yes, sir. Q. That

they could testify

if the y chose to but did not have to testify?
A. Yes, sir. Q. That

they had a right to an attorney, were they advised of t hat right?
A. Yes, sir. Q. And if a person chose to represent t

hemself [sic] are they allowedto do that if they ca n establish to

your satisfaction that they are capab

le of represent

ing themselves?
A. It’s a g eneral rule if it’s a Class C misdemeanor occ

asionally we’ll let somebody pro se, but if it’s a B or an A and it involves enhancement

punishment then we require theperson to have a lawyer, private lawyer or we’ll appoint the public defender. Q. In regards to Class A misdemeanors and

specifically

the offense of driving under the influence, have you ever while on the benchaccepted a plea of guilty from a defendant wh o is not represented by

counsel?
A. No, sir. The State introduced a photocopy of the docket sheet of November 18, 1986, on which Judge Dwyer hadmade notations regarding thedefendant’s guilty plea. Judge Dwyer explained his notes on the docket sheet: Okay. It would show to the plea of g uilty to driving under the influence, that the defendant was ordered t o pay a $250 fine plus-5- court costs, that he was sentenced to 15 days in jail with 13 days suspended, that he had credit for 12 hours, we had 36 hours to serve, that the other charges were nol prossed.
Re gardi ng the additional documents which once existed, Judge Dwyer, referring to the docket sheet, stated:

Q. This document shows a guilty plea and a sentence for M r
. Clever for the offense of driving under the influence. Can you say without any unc ertai nty that these notations reflect that there w as a P lea Waiver form signed by Mr. Clever, and that there was an Order of Sentence that was signed by Mr. Clever?
A. I could say this, I don’t remember Mr. Clever, but I know that if I broke that down there was paperwork that I signed off on. Q. So you would have sig ned those papers ?
A. I wouldn’t have just put it on m y docket and done anything else.
The State also introduced a certified copy of a computer printout fromthe court clerk’s office which showed the guilty plea, the date of disposition, and the $250 fine. Mike Triplett, a supervisor in the Shelby County General Sessions Court Clerk’s office, testified that he had been a courtroom deputy in Judge Dwyer’s court in 1986, the yea r that, according to the records, the defendant had entered a guilty plea

to DUI. He said that he had no memory of that particula r matter. However, he said that one of the responsibilities of the clerk, following the disposition of a matter, was to enter the information regarding the matter into their computer system and, the n, enter onto the clerk’s docket the same information which had been recorded into the computer. He said that these

entries would be made at the time the matter was being disposed of. Additionally

, he would

compare the entries on the judge’s docket as to the disposition with

entries on the othe

r records, to mak

e certain that the information was consistent, before entering it into the computer.
Based upon this proof, the trial court concluded that the State had sufficiently proven that the defendant was convicted of DUI in 1986:

In my opinion the

re’s been proof

of a convictio

n. Tha t proof consists of the te stimony of Judge Dwyer, the record of his blotter which he noted a conviction of Mr. Clever, the testimony from Judge Dwyer as to the punishment that he imposed, a comput er print -out, Exhibit 2, which evidences the sentence that wasimposed against a Paul Clever on t he day in questi on that Ju dge Dwyer indicated he did so th at’s consistent with his findings, the judgment was entered on-6- that date according

to the clerk and to

the judge of tha

t court , and withnothing to the contrary to indicate that tha

t, in fact, did not occur this Court is going to accept the testimonythat’s present tha t, in fact, a conviction did occur.
The validity of that

conviction in my

opinion, is not befor

e this Court. The fact that a conviction occurred for purposes of enhancement, in my opinion, has been proven. And , again, I w

ould reiterate that I do not

feel that the vali

dity of that c

onviction is

before me, and for that reason I will accept the testimony that’s been presented by the State as to

Mr. Clever’s 1986

conviction, and wo

uld rulethat Mr. Clever, based upon the testimony that I’ve heard, would qualify as a third offender under the Driving Under The Influe nce Statutes.
Based upon the proof presented

at the sent encing heari ng, we agree with the ruling of the trial court. As for

the fact of the 1986 conviction, Judge Dwyer, testify ing from his docket, stated that it had occurred, and the conviction was show n by t he clerk’s compu ter printout, as we

ll. Add iti ona lly, we note that the testimony of Judge Dwyer w as unequivocal that he had never allowed a defendant to plea

d guilt y to a Class A misdemeanor, as DUI was, unless the defendant was represented

by counsel. Although the defendant argues that the

State did not prove that the dictates of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), were complied with, he overlooks the fact that this is nota post-conviction proceeding, a

nd even if it

were, the Mackey

precepts which exceed the requirements

imp ose d by Boykin v. Al

abama , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d274 (1969), cannot be raised in

a post-conviction proceeding. Blankenship v. Sta te , 858 S.W.2d 897, 905 (Tenn. 1993); Teague v. State

, 789 S.W.2d 916, 917 (Tenn. Crim. App. 1990).
Add iti ona lly, we disagree th at State v. Beck , 950 S.W.2d 44 (Tenn. Crim. App. 1997), requires , as the defendant asserts, that a prior DUI conviction can be proven only by a “c ertifie d cop y” of the conviction. Id. at 47. Beck held that a

jury could not infer that the defendant had earlier been convicted of DUI from a “certified copy of a March 1990 Ro

bertson County conviction for DUI, second offens e.” Id. Without additional proof of the first such conviction, it cannot be determinedwhether it is within the period allowin

g it to be used for enhancement purposes. We do not understand Beck

to conclude that, absent a certified copy, a conviction cannot be prove n.
We cannot conclude that the trial court erred in ruling that the State had presented sufficient proof as to the defendant’s 1986 DUI conviction, and we c onc lude, further, that the proof was sufficient to show that he was represented by counsel. The proof as to both of these issues was clear and convincing.-7- Constitutionality of the Statute
As his second issue, th

e defendant ar

gues that the lan guage contained in Tennessee Code AnnotatedSection 55-10-403 (a)(3) is void fo r vagueness and f

or being ex post fa

cto in its effect. He asserts that the statute sets out two separate standards for determination of multiple offender status because the fir

st s entence cl early states a te n-year period r

unning from convic

tion to conviction, whereas the last sen tence sets the measure from the last conviction to the present violation.
This issue has previously been a rgued. Two other

panels of this cour

t have alread y acknowledged

that while the statu

te could have been more artfully drafted, it does not fail to give a pers on of o rdinary intelligence fair notice of the conduct which is forbidden by the statute. See Statev. Russell

Snider , No. W2000-01240-CCA- R3-CD, 2001 WL 721030 (Tenn. Crim. App. at Jackson, June 26, 2001); see also State v. Sean W. Conway, No. M2000-01263-CCA-R3-CD, 2001 WL 487689 (Tenn. Crim. App. at Nashville, May 8, 2001). In both Snider and Conway , this court concluded

that the ten-year period is measured from conviction to conviction. We also conclude that the defendant in this case qualifies as a mult iple offender si

nce his immediatel

y preceding conviction is within the ten-year period, regardless of how the time frame is measured.
The defendant argues that this statute is unconstitutional, because at the time of his second DUI conviction in 1990,

he could not have f

oreseen that the

legislature would

allow the courts to go back an additional ten years for purposes of enhancement. He further contends that had he known about the statute, he would not have pled guilty to the 1990 offense. Thus, the defendant arguesthat the statute is ex post facto.
In State v. Johnson , 97 0 S.W. 2d 500, 505 (Tenn. Crim. App. 1996), this court rejected a similarex post facto argument made by a defendant facing enhanced punishment

as a multiple rapis

t because of a prior rape conviction:

[I]t is well-establishe

d that penalty

enhancing statutes only enhance the sentence for

the triggering offense, rather than punish prior acts. See Gryger v. Burke , 334 U .S. 7 28, 73 2, 68 S . Ct. 1256, 1258, 92 L. Ed. 1683 (1948) (cita

tions omitt

ed) (“[T] he fact that one of the convictions that entered into the calc ulati ons by which petitioner became a fourth offender occurred before the Act was passed, [does not] make the Act invalidly retroactive.”

); Statev. Bomar , 213 Tenn. 487, 376 S.W.2d 446, 447 (1964); Conradv. State , 202 Tenn. 36, 302 S.W.2d 60 (1957). S ee also Suzanne M. McDonald, Foreseeability as a Limitation on the

Retroactive Appl

ication of Judicial D

ecisions: Davis v . Nebraska , 26 CREIGHTON L.REV. 931, 948-49 (1993); Joel W.L. Millar, Nichols v. United Sta tes, The Right

to Counsel, and Collateral Sentence Enhancement: In Search of a Ratio nale , 144-8- U.P A.L .REV. 1189, 1191-93 (1996). The punishment is enhanced for the latest crime alone. Since the defendant received multiple offender punishment for an offense committed after enactment

of the DUI en

hanced punishmen

t statute, his

claim is without mer

it that the statute cannot utilize his 199 0 D UI conviction because he would not have pled guilty had he known of the enhancement possibilities. He is not being punished anew for his

prior convictions, but rather for a subsequent offense. Thus, we conclude that the DU I statute, enhancing punishment for future offenses based upon prior DUI convictions, is not ex post facto.
CONCLUSION
After careful review of the

record, we conclude that the State presented sufficient evidence of the defendant’s 1986 DUI conviction to use it for enhancement purposes. We also concludethat Section 5 5-10-403(a)(3 ) is not void for vag ueness, nor does i

t violate ex post fa

cto prohibitions. Accordingly, we affirm the judgment of the trial court.

___________________________________ ALAN E. GLENN, JUDGE