State v. Phillip Todd Swords

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED NOVEMB ER SESSION, 1998 April 14, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9807-CR-00239 ) Appellee, ) ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A. MEYER, PHILLIP TODD SWORDS, ) JUDGE ) Appe llant. ) (DUI—Third Offense)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JERRY H. SUMMERS JOHN KNOX WALKUP 500 Lindsay Street Attorney General and Reporter Chattanooga, TN 37403-3496 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

BILL COX District Attorney General

PARKE MASTERSON District Attorney General 600 Market Street - Courts Building Chattanooga, TN 37402

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE

OPINION

The Defenda nt, Phillip Todd S words, appe als as of right from his conviction for third offense DUI in the Criminal Court for Hamilton County. In this ap peal, he asserts two primary claims: (1) that he was denied liberty without due process as a result of deficie ncies in the cu stom ary arre st and bail procedures in Hamilton County, and (2) that the trial court erred by enhancing the conviction at bar due to two prior DUI convictions that Defe ndan t argue s are fa cially invalid. We a ffirm the dec ision of the trial court.

I. DUE PROCESS

To support his argument that he was denied due process of law, Defendant directs our attention to four alleged violations: (1) that he was denied the right to be taken before a ma gistrate or judge at the time of his arrest, (2) that he was denied the right to have an arrest warrant issued by a neutral and detached magistrate, (3) that the procedures for setting bail do not conform to the Release from Custod y and B ail Act, and (4) that he was punished without 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, the procedure by which a probable cause determination was ma de following his wa rrantless arrest by po lice failed to “serve as a protection against unfounded interference with liberty” and failed to “‘provide a fair and reliable determination of probable cause as a condition for any

-2-significant pretrial restraint of liberty.’” Defendant’s Brief (quoting Gerstein v. Pugh, 420 U.S. 103, 124-25 (1975)). Defendant correctly maintains that he shou ld have been brought before a magistrate “w ithout unnece ssary delay” following his arrest. See Tenn. R. Crim. P. 5; Tenn. Code Ann. § 55-10-203. Furthermore, as Defendant insists, the magistrate should have informed him at this appearance of the 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 he received no opportunity to appear b efore a magis trate or judge on the morning of his arrest. Moreover, a deputy clerk from the Hamilton County Clerk’s office explained the usual procedure for those defend ants arrested overnigh t without a warrant: The arresting officer delivers a recitation of probable cause to a depu ty clerk, who then grants the warrant and sets bail for the defendant as a matter of course. Customarily, she testified, the accused is seated elsewhere 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 proper hearing before a judicial officer, nor was he app rised by su ch an o fficer of the nature of the charges against him or of his right to counsel. How ever, Defendant is not entitled to a remedy in this Court. The Tennessee Supreme Court in State v. Cam pbell, 641 S.W.2d 890 (Ten n. 1982), a case in which the defendant received no hearing before a magistrate, but was instead permitted to make an appearance bond, concluded,

The failure to bring the Defendant before a magistrate, as provided by T.C.A. Sec. 55-10-203(a)(3), results only in release from custody of an accused who is still in jail when the issue is

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raised, or results in possib le exclusio n of evide nce, [for exa mple,] a confession that occu rs during the delay . In short, the 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, 893 (Tenn . 1982) (c itations om itted); see also State v. Billy L. D avis, No. 85-343-III, 1986 WL 5681, at *2 (Tenn. Crim. App., Nashville, May 20, 1986 ). Here , Defe ndan t mad e bon d app roxim ately six hours after he was booked, and he produced no evidence during that time that was later used against him. We find no prejudice to Defendan t; theref ore, this issue lac ks me rit.

B. Probable Cause Determination

Defendant next argues that 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. United States, 451 U.S. 204, 216 (1981), in two ways: He asserts that (1) a deputy clerk cannot constitutionally make such a determination and thus issue a warrant, and (2) the office of the cou rt clerk has a financia l incentive to issue wa rrants be cause of filing costs.

With respect to his first point, Defe ndan t adm its that o ur Ge neral A ssem bly granted deputy court clerks the authority 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 unconstitutional in light of the United States Supreme Court’s opinion in United States v. Leon, 469 U.S. 897 (1984), in which the Court upheld a warrant not supported by proba ble cause based upon the officer’s relianc e that th e ma gistrate ’s determina tion was “objectively rea sonable.” Id. at 919-21. Defendant argues,

This “good faith” exception insures that the final decision on the validity of a warrant will virtually always be decided by the magis trate issuing the warrant and not by the appellate court. . . . However, the

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basic underlying assumption of the Court’s decision in Shadwick [v. City of Tampa, 407 U.S. 345 (1972),] was that the decisions made by persons not trained in the law would always be subject to appellate review, an assu mption wh ich is no longer valid after Leon.

Hence, the absenc e of appellate review for probable cause determinations by those with no legal training constitutes the basis for this prong of Defendant’s due process challenge.

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 jurisdiction and authority, concurrent with that of the judges 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 unconstitutional as applied to deputy clerks of court who may lack legal training. Althoug h we rec ognize the distinct p ossibility that d eputy clerks without legal training may not be “capable of the probable cause determination” as required by Tennessee Rule of Criminal 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 are gene rally incap able of properly recognizing the notion of probable cause due to a lack of legal training would b e to encr oach u pon the doma in of our sta te legislature .

Second, Defendant argues that because the Hamilton County Clerk’s office receives a fee for each arrest warrant issued, it has a financial incentive to issue the warrants, disturbing its ability to serve as a neutral and detached adjudicator of probab le cause . Defendant contends that “[w]hile the deputy clerk issuing the warrant does not get the fee personally, the General Sessions Clerk’s Office

-5-certain ly gets the fee, and this fe e is used with other revenues to determine how many deputy c lerks can be hired .”

W e conc lude th at this claim ha s no m erit. First, Defendant has not shown that the 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 issuance or non-issuance” of the arrest warrant at issue in this case, as prohibited by Tennessee Code Annotated § 40-5-106. In addition, we decline to infer that as the clerk’s office accrues revenue, the salary of the deputy clerks increases accordingly, influencing their decisions to grant arrest warrants. Furthermore, the State correctly observed that “the proof that defendant did offer by way of [the deputy clerk’s] testimony evidenced no inkling that she issued the arrest warrant for any reason other than the fa cts attested to by the arresting officer and no inkling that she was anything other than detach ed and neutral.”

C. Bail Procedures

In a related argument, Defendant asserts that he was denied due process (1) when he was not granted a bail hearing be fore a judge, ma gistrate, or court clerk, but by a deputy court clerk, and (2) when his bail was “assigned from 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 achieve the functions of bail—assuring the defen dant’s contin ued p resen ce in court and preventive detention. The deputy 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).

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Defendant first challenges the authority of the Hamilton County General Sessions deputy clerk to set bail. He contends that having his bail set by a deputy clerk of General Sessions violates Tennessee Code Annotated § 40-11-105, which provides that bail determinations may be made “by the committing magistrate, by any judge of the circuit or criminal court, or by the clerk of any circuit or criminal court.” Tenn. Code Ann. § 40-11-105(a)(1) (empha sis added).

W e conclude that even if the depu ty clerk of the Hamilton County General Sessions court lacked authority to set Defendant’s bail, he nevertheless has no remedy in this Court. Tennessee Code Annotated § 40-11-144 states,

(a) The actions by a trial court from which an appeal lies to the supreme court or court of criminal appeals in granting, denying, setting or altering conditions of the defendant’s release shall be review able in the manner provided in the Tennessee Rules of Appe llate Proce dure. (b) If the action to be reviewed is that of a court from which an appeal lies to a court inferior to the supreme court or court of crimin al appeals, review shall be sought in the next higher court 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 bail was appeal to the Hamilton Coun ty Criminal Court. This issue has been waived. Any other remedy now lies 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 Hamilton County are contrary to the principles and procedures of the Bail Act since the procedures reflect an arbitrary sche me w hich determin es the form a nd am ount o f bail. First, alternative forms of release are not conside red in lieu o f a cash bond. The Jail does not hold any hearing to determine (i) the defend ant’s relation to the c omm unity, (ii) th e defe ndan t’s background, or (iii) whether the defendant had a prior criminal record. Second, the bail is set according to a pre-arrange d “Bond Sched ule” which lists various o ffenses a nd a bo nd am ount.

-7-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 also prescribes factors which “the magis trate shall consider,” including the defendant’s length of residence in the comm unity; emp loyme nt statu s and history; financ ial con dition; fa mily ties and relationships; reputation, chara cter, and me ntal condition; record of prior presence at or flight from court appearances; nature of the offense, probability of conviction, and likely sentence; prior criminal record and perceived risk of danger to the pu blic; an d resp onsib le members of the community who will vouch for the defen dant’s reliability. See Ten n. Co de An n. § 40 -11-1 18(a) , (b) (em phas is added).

W e find that Defendant’s bail was set in accordance with neither the letter nor the principles underlying the Bail Act noted above. However, we further find that again , any re med y lies ou tside th is Cou rt, as we find no prejudice in the 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 prevent Defendant from release. In fact, he contends in his next argument that he could have made his bond sooner than the time he was permitted to leave. We conclude, therefore, that Defendant did not suffer prejudice sufficient to permit this Court to find a due process violation warran ting revers al of his con viction.

D. Six-Hour Detention

Defe ndan t’s final due pro cess ch allenge c ontests th e Ham ilton Cou nty policy of holding persons charged with DUI for a period of at least six hours. The record reflects that Defendant was arrested shortly after 1:40 a.m., he was taken

-8-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 tention, Defendant claims, constitutes punish ment w ithout due proces s of law.

The State argues that the detention policy is “not unconstitutional” 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 Court in State v. Donnie Lamar Carden, No. 03C01-9610-CR-00378, 1997 WL 789933 (Tenn. Crim. App., Knoxville, Dec. 23, 199 7), in which the policy was h eld no t to invok e dou ble jeopardy protections, preventing further prosecution for DUI, because the detention is primarily remedial rather than punitive and because jeopardy had not yet attached. This argument does not directly decide the issue at hand. We do not examine whether the detention 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 punishment for refusing to take a breathalyser test (a non-offense), or (2) constitutes punishment for DUI without due process of law.

This Court discussed the due process issue in addition to double jeopardy in State v. Martha L. Pennington, No. 01C01-9607-CC-00323, 1997 WL 602909, at *3-*4 (Tenn. Crim. App., Nashville, Sept. 30, 1997). In that case, the defendant was arre sted, reg istered a 0 .13 on a n Intoxim eter 300 0 test, arranged to make her bond, and was not permitted to be released for eight hours pursuant to a policy requiring 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 the Dickson Coun ty Sheriff’s Department, constitutes punishment so as to preclude further

-9-prosecution on double jeopardy grounds or violates the 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 820, 824 (Tenn. Crim. App. 1995), to determine whether pretrial detention qualified as punishment for due process purposes: “(1) whether 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 that “[d]etention for the p urpos e of de toxification may qu alify as a legitim ate government goal,” id. (citing 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 relation to the stated 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.

W e believe the same analysis and result is appropriate in this case. The arresting officer testified that Defendant was “swerving back and forth across the road,” and that he was “all over the road, . . . crossed the center line and back to the right . . . , [and] kept weaving down the highway.” The officer stated that Defendant had an odor of alcohol and responded that he had indeed been drinking that evening—“about six plus beers.” Officer 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 to take a breath or blood test to determine the precise level of intoxication. Subsequent to Defendant’s arrest, the officer found two twelve packs of beer in the vehicle in addition to several open beers, at least one of which w as cold a nd half-e mpty.

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From this eviden ce, we find that the policy of holding Defendant, an appa rently intoxicated individual charged with DUI, for a period of six hours from the time of booking was primarily for the purpose of detoxific ation, a nd tha t this period of time was not excessive in relation to the facts of this case. Therefore, we conclude that this pretrial detention did not violate Defendant’s right to due proces s of law.

Finally, we decline to find that the cumulative effect of errors discussed above operated to deny Defendant the right to a fair trial or the right to due process of law such th at reve rsal of h is conv iction is w arran ted. T his cas e is distinguishable from decisions such as State v. Livesay, 941 S.W.2d 63 (Tenn. Crim. App. 1996), in which this Court affirmed the trial court’s dismissal of charges based upon a deprivation of due process where the defendant was denied the right to draw 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 the defendant could not show that the evid ence of which he was deprived would have been favora ble enough to effect a dismissal, it was sufficient to show that 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 case. Defen dant’s du e proce ss argu ment m ust fail.

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II. PRIOR CONVICTIONS

In his second major issue, Defendant contends that his sentence should not have been enhanced to third-offense DUI based upon his two prior guilty pleas becau se those pleas we re invalid. Defendant pleaded guilty to DUI in 1989 and 1992. He argues that he should be p ermitted to attack the validity of the former conviction becau se the re cord fails to show that the trial court (1) advised him of the specific ramifications of waiving counsel, (2) informed him of various constitutional rights as required by Boykin v. Alabama, 395 U.S. 238 (1969), and (3) followed procedural protec tions s uch a s ens uring a factua l basis for the plea and creating a verbatim record of the plea hearing. He argues that he should be permitted to attack the validity of the latter conviction because the record does not reflect that Defe ndan t was a dvised his gu ilty plea c ould be used to enhance the sentences for subsequent convictions. See State v. Mackey, 553 S.W.2d 337 (Tenn . 1977).

According to our supreme court in State v. McClintock, 732 S.W .2d 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 jurisdiction over the subject matter and the person cannot be collaterally attacked in a subsequent proceeding except by the authorized routes of attack.” Id. at 272 . We declin e to ho ld the ru le announced in McClintock unconstitutional following institution of a statute of limitations for post-conviction petitions, as Defendant requests tha t this Court hold.

The McClintock court indic ated the meaning o f facial invalidity in its conclus ion base d upon the facts o f that case :

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[T]he present proceeding in the case sub judice, a direct appeal of Defendant’s most recent conviction, is not the forum in which Defe ndan t’s Constitutional claims may be raised because nothing on the face of the reco rd “disclos es any w ant of auth ority to pronounce that judgm ent. Hen ce, collater al attack [is] not permis sible.”

Id. (alteration in original) (quoting Boma r v. State ex rel. Stewart, 300 S.W.2d 885, 887-88 (Tenn. 1957)). In addition, this Court examined “whether [a] judgment is void on its face and thus subject to collateral attack,” in State v. Gross, 673 S.W.2d 552 (Tenn. Crim. App. 1984). In that case, we concluded,

The record shows the appellee, represented by counsel, appeared before the general session court. He and his attorney signed a waiver of indictment, presentment, etc., and the appellee entered a plea of guilty to the charge of DUI. . . . The General Sessions Court of Sullivan Coun ty had jurisdiction over 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]he record shows on its face that [the defendant] executed waivers to the effect 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 proceeding and if necessary an attorney would be appointed to represent her; that she expressly waived her right to counsel, to a preliminary hea ring, to a grand jury indictm ent, and a trial by jury.

Id. at 623.

Likewise, we find nothing on the face of the records that discloses any invalidity to the guilty-p lea conv ictions for D UI in 198 9 and 1 992. See Maurice Wilson v. State, No. 01C01-9310-CR-00352, 1994 WL 151322, at *2 (Tenn. Crim. App., Nashville, Apr. 28, 1994) (“[The defendant’s] claims of an involuntary guilty plea and ineffective assistance of couns el, while the y might s erve to void

-13-the judgm ent, do not m ake it fa cially void .”). The refore , we co nclude that the Post-Conviction Procedure Act is the authorized potential route of attack for Defen dant.

W e conclude that Defendant is not entitled to relief in this Court based upon the asserted violations of due process, and that he is not entitled to attack the validity of his prior DUI convictions to preve nt them from e nhan cing h is current sentence for third-offense DUI. The judgment of the trial court is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JAMES CURWOOD WITT, JR., JUDGE

___________________________________ L.T. LAFFERTY, SPECIAL JUDGE

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